Om Prakash and Others (in Jail) vs State of U.P.

Onkareshwar Bhatt, J.—Appellants, Om Prakash, Munnu Lal, Ashok and Smt. Simla have preferred this appeal against the judgment and order dated 31.7.1995, passed by the then IVth Additional District and Sessions Judge, Kanpur Nagar in Sessions Trial No. 303 of 1991.

All the Appellants have been convicted u/s 498A, I.P.C. and sentenced to rigorous imprisonment of two years and to a fine of Rs. 2,000 each. In default of payment of fine rigorous imprisonment of one year has been awarded. They have further been convicted u/s 304B, I.P.C. and sentenced to 10 years rigorous imprisonment and to a fine of Rs. 4,000 each. In default of payment of fine, 2 years rigorous imprisonment has been awarded.

Heard Sri P. N. Misra, learned senior advocate and the learned A.G.A. for the State.

The marriage of Sushila, the deceased in the case, took place with the Appellant, Om Prakash on 22.6.1987. This fact is not in dispute. The Appellant, Munnu Lal is father-in-law, Appellant Smt. Simla is mother-in-law and Appellant, Ashok is devar of the deceased. According to the prosecution case on 2.11.1990, the deceased sustained burn injuries at the house of her in-laws and died due to it in the hospital. According to the prosecution case, the Appellants committed cruelty by beating, abusing and harassing the deceased on account of non-fulfilment of demand of dowry and her death also occurred for demand of dowry.

First Information Report of the occurrence was lodged by Mool Chand, P.W. 2, father of the deceased on 2.11.1990 at 7.45 p.m., P.W. 8 Bhanu Pratap Singh, S.I., prepared the inquest report on 2.11.1990 at 3 p.m. at mortuary of hospital. The post-mortem of the dead body of the deceased was performed by P.W. 7, Dr. R. K. Gupta, on 3.11.1990 at 12.30 p.m. According to the doctor, the deceased was aged about 22 years and about 1-1/2 days have expired since her death. It was found that she was in pugilistic posture, Greenish discolourisation was found over the right iliac fossa. Her hairs were burnt. Smell of kerosene oil was coming from her clothes and hairs. The doctor found Ist, IInd and IIIrd degree of burns present all over the body except sole of the foot, lower part of abdomen, in front of neck and both sides of cheek. Pieces of burnt clothes were sticking over the body at places, skin peeled off at places on the body, line of redness present. On internal examination, it was found that skull and brain membrane congested. Both the lungs congested, right chamber of heart full while left chamber was empty. Bladder contained about 1 oz. watery liquid. Her liver, spleen, gall bladder and kidney were congested and uterus was empty. In the opinion of the doctor, death was caused due to shock as a result of burn injuries.

The prosecution has examined father of the deceased Mool Chand, P.W. 2, mother of the deceased, Smt. Nanki, P.W. 3 and Smt. Suman, sister of the deceased, P.W. 5 who have stated about the cruelty caused to the deceased by the Appellants for demand of dowry. Chunua, P.W. 6, was also examined regarding demand of dowry by the Appellants.

The Appellant, Munnu Lal, has denied that his son used to beat the deceased. He has stated that after the deceased sustained burn injuries, he, his son and his wife took the deceased to the hospital of Ordnance Factory, where he is employed. Thereafter, the deceased was sent to Ursala hospital. He has also stated that he has been falsely implicated due to his son. The Appellant, Ashok, has also stated that due to his brother he has been implicated in the case. He has stated to have gone to hospital after the deceased sustained burn injuries. Smt. Simla also stated that she went to the hospital along with the deceased. The Appellant, Om Prakash, has stated that he and his wife lived lovingly. He has stated that there was no quarrel amongst them. He has further stated that ''phaldan'' of the brother-in-law was to take place. He has stated that the deceased was of hot temperament and that he did not permit her to go on that occasion because curfew was imposed. He has stated that his wife committed suicide in the night at about 3.30 a.m. He has stated that he and his family members took the deceased to the Factory Hospital at Armapur, from there she was sent to Ursala Hospital. The fact that the deceased was taken to Ordinance Hospital at Armapur on 2.11.1990 at 4.30 a.m. is stated by D.W. 3, J. P. Sharma. The defence has also examined A. A. Misra, D.W. 1, who has stated that the Ordnance Factory was closed from 30.10.1990 to 3.11.1990. D.W. 2, Smt. Maiki Devi, is the neighbour of Appellants who has stated that the deceased committed suicide and that she was not cruelly treated by the Appellants. She has also stated about the ''phaldan'' ceremony of the brother of the deceased.

It is not in dispute that Sushila Devi died within seven years of her marriage and her death was otherwise than in the normal circumstances. It is admitted position that her death was due to burns. According to the defence, the deceased committed suicide because she was not allowed to attend the ''phaldan'' ceremony of her brother. According to the prosecution, the Appellants caused her death due to non-fulfilment of the demand of dowry.

Dowry related death, even when it is suicide, will fall within the ambit of Section 304B, I.P.C. because suicide is one of the modes of death mentioned in a case u/s 304B, I.P.C. The prosecution cannot escape from burden of proof that the harassment or cruelty was related to the demand of dowry and also that such cruelty or harassment was caused "soon before her death". The word "dowry" in Section 304B, I.P.C. has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. The definition brings out three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third occasion is "at any time" after the marriage. The third occasion may appear to be an unending period but the crucial words are "in connection with the marriage of the said parties." This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. Hence, the demand of dowry mentioned in Section 304B should be of any property or valuable security given or agreed to be given in connection with the marriage. The harassment or cruelty should have happened "soon before her death". The above phrase can refer to a period either immediately before her death or within a few days or even a few weeks before it but the proximity to her death is a pivot indicated by that expression. The expression emphasizes the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide, the Court would be in a position to gauge that in all probabilities the harassment would not have been the immediate cause of her death. This is the law laid down in the case of Satvir Singh and Ors. v. State of Punjab and Anr. 2001 (3) ACrR 2667 (SC): 2001 (43) ACC 912 (SC).

For deciding the above position, the facts and circumstances of the case and the evidence adduced has to be looked into. In the first information report lodged by Mool Chand, P.W. 2, father of the deceased, a mention is made about the harassment of the victim. It is mentioned in the F.I.R. that the victim was asked to bring a coloured T.V. or Rs. 10,000 cash and when they were not given, the demand of Auto Rickshaw was made. From the F.I.R., it is not clear that these demands were being made in connection with the marriage of victim with Appellant, Om Prakash. In the F.I.R., it is not specified as to which of the Appellants was making this demand. It has come in evidence that the Appellants had a television at their house. Mool Chand, P.W. 2, has stated that it was the Appellant, Om Prakash, alone who was demanding Television, Rs. 10,000 cash and Auto Rickshaw. Neither Appellant Mool Chand, P.W. 2, nor Smt. Nanki, P.W. 3 nor Smt. Suman, P.W. 4, who are father, mother and sister of the deceased have stated that the above demand was being made in connection with the marriage of the deceased from the Appellant, Om Prakash. The Appellant, Om Prakash, has stated that he is a driver of Auto Rickshaw. It might be that the Appellant, Om Prakash, wanted to own an Auto Rickshaw for himself. Mool Chand has stated that he showed his inability to give the items alleged to have been demanded by the Appellants. The fact that the deceased used to tell about her trouble when he visited her in-laws place does not find place in his statement u/s 161, Cr. P.C. Mool Chand has stated regarding harassment alleged to have been caused to the deceased. He had made no complaint nor has given any notice to the Appellants. He had not made any inquiry from the neighbourers of the Appellants also. The witness has admitted that the allegation of abusing, assaulting and not giving food and clothes to the deceased by the Appellants is not mentioned in the F.I.R. The only thing written there is that all the four accused were harassing the deceased. it has come in evidence that on the occasion of bhaiya dooj, which preceded the occurrence, the deceased went to her father''s place. Smt. Nanki, P.W. 3, has also stated that the deceased used to complain that her in-laws asked her to bring Rs. 10,000 or Auto Rickshow or colour T.V. Smt. Nanki has stated that on the occasion of bhaiya dooj, the deceased had complained about the assault and harassment caused to her. However, she admits that she is stating this fact for the first time in the Court. She also admits not to have made any complaint to any of the relatives of the Appellants with regard to the harassment to the deceased. P.W. 5, Smt. Suman, is the sister of the deceased. She has stated that on the occasion of bhaiya dooj, deceased told her that the Appellant, Om Prakash, was continuously asking for Rs. 10,000 and Auto Rickshaw. She has stated that the deceased was harassed due to above demand. However, her statement regarding other Appellants appears to be her own conclusion because she has not stated that the deceased had told this fact to her with regard to this demand. She has stated that her father expressed inability and the Appellant, Om Prakash, kept silent and did not speak anything thereafter. From the statement of Smt. Suman also it is not clear that Rs. 10,000 or Auto Rickshaw was being demanded in connection with the marriage of the deceased with Appellant, Om Prakash. Moreover, Smt. Suman did not tell the above fact of demand of Rs. 10,000 and Auto Rickshaw by Appellant, Om Prakash, earlier to anyone. She has stated this fact before the Court for the first time. She admits that prior to her statement in the Court she was told as to what she was to depose.

From the appraisal of the above evidence it cannot be said that the alleged demand of Rs. 10,000 and Auto Rickshaw was in connection with the marriage of the deceased with Appellant, Om Prakash. The demand may be for some other purpose. From the above evidence, it is also not proved that the deceased was cruelly treated and harassment was caused to her soon before her death.

Some time did elapse from bhaiya dooj to the date of occurrence. Except the burn injuries found by the doctor on the body of the deceased, there was no other injury found on her body. In early hours on 2.11.1990, the occurrence is alleged to have taken place. At 4.30 a.m. the deceased was taken to Ordnance Hospital, Armapur. D.W. 3, J. P. Sharma, has filed the entry of the register regarding the deceased which was noted by Dr. R. B. Lal, as Exhibit Kha-1. This document shows that the deceased was in semi-conscious condition having superficial burn all over the body. No apparent indication of violation has been found by the doctor. This document shows that after giving first aid, the deceased was transferred to Ursala Hospital. The post-mortem conducted on the body of the deceased shows that she was in pugilistic posture and smell of kerosene oil was coming from her clothes and hairs. No internal organ was damaged. It has come in evidence that the deceased was taken immediately to Armapur hospital and thereafter to Ursala hospital. The conduct of the Appellants in taking the deceased to the hospital is more consistent with their innocence rather than their guilt. It has come in evidence that in the city of Kanpur, curfew was imposed. It has also come in evidence that the Appellant, Munnu Lal, went to the house of Mool Chand to inform him about the fact that the deceased is admitted in Ursala hospital and she was in a serious condition. At the hospital, the Appellant, Ashok, was sitting. When the dead body of the deceased was sealed, all the Appellants were present.

The above fact is more consistent with innocence of the Appellants because, if they had set the deceased ablaze, they would be the last persons to take her to the hospital and thereby take chance of the deceased being cured or regaining consciousness in which case the deceased would have implicated them. In the circumstances, it is reasonable inference that the Appellants having found that the deceased had attempted to commit suicide took her to the hospital immediately so that she could be given proper medical aid and her life may be saved.

The defence plea that the deceased committed suicide because she was not allowed to go to her maika in attending the phaldan ceremony of her brother, although denied, cannot be ruled out. D.W. 2, Smt. Maiki Devi, the neighbour of the Appellants has stated that phaldan ceremony of the brother of the deceased was to take place.

In view of the aforesaid discussion, the appeal is liable to succeed.

The appeal is allowed. The conviction and sentences of the Appellants is set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.