Prem Shanker and Another vs State of U.P.

Alok K. Singh, J.—This criminal appeal has been preferred against the judgment and order dated 15.04.1991 passed by the Special Additional Sessions Judge, Hardoi whereby appellants Prem Shanker and Jamuna Prasad have been convicted and sentenced to undergo 10 years'' rigorous imprisonment u/s 304B I.P.C. and two years'' rigorous imprisonment u/s 498A I.P.C.

Briefly stated the facts giving rise to this appeal are that the marriage of Gita, the daughter of first informant Mangoo Lal Trivedi, was solemnized with co-villager Prem Shankar about a year before the occurrence. She was being tortured and beaten by the husband and about 4 months before the occurrence Gita was ultimately turned out of the house. She came to her father''s house and told about a demand of dowry of Rs. 5000/- which was being made. But after some time her sister-in-law came and after assuring that nothing will happen, she took Gita along with her. Then on 20.07.1985 the father of the victim was informed that the father-in-law of Gita who was working as Cabin Man at Dalel Nagar Railway Station visited the village on 20.07.1985 and got his daughter Gita killed. One Brahmanand who has adjoining roof had also heard the noise of beating and had forbidden them a day before the killing. But his authority was challenged and he was also threatened to be killed. On 21.07.1985 Brahmanand informed that Gita has been killed. The first informant got it verified by uncle Parshuram who visited the house of the in-laws of Gita for this purpose and confirmed it. Then he rushed to the police station Majhila at about 9.30 P.M. and found the husband of Gita i.e. Prem Shanker sitting and talking with the police station incharge. Though he narrated the entire incident but his report was not lodged. He then returned back to his village and immediately rushed to the Superintendent of Police, Hardoi and lodged his report there. Thereupon the Station Officer Majhila was directed to interfere into the matter and as a consequence thereof the chik report Ext-Ka-2 was prepared on the basis of hand written report Ext.Ka-1 vide G.D. Ext.Ka-3. On 21.07.1985 at 9.45 P.M. Gita''s husband also gave an information at the police station that she has committed suicide on the basis of which the police officials visited there and prepared Panchayatnama Ext. Ka-4. Thereafter the relevant papers i.e. photo lash, letter to R.I. etc. Ext.Ka-5 to 8 were prepared and the body was sent for post mortem. The I.O. prepared the site plan Ext.Ka-12 and on the basis of post mortem report (Ext KA-11) sent the Viscera for chemical examination wherein aluminum phosphate (poison) was found. Finally the charge sheets Ext. Ka-13 and Ka-14 were submitted against the husband, father-in-law (both the appellants) and also against mother-in-law and sister-in-law. All the accused denied the charges and claimed trial. They also said that on 21.07.1985 all of a sudden Gita felt some pain in her stomach and one doctor, namely Dr. Yasin, was called but she did not get any relief and while they were preparing to take her to hospital she died. They claimed that Gita died her natural death. Jamuna Prasad (appellant) claimed that he was serving at Dalel Nagar Railway Station and was living separately along with his wife and daughter. Further it was said that they came to the village only on receiving information about Gita''s death.

In order to prove its case the prosecution examined Mangoo Lal Trivedi, first informant and father of the deceased as P.W.1, Brahmanand as P.W.2, S. I. Ram Pal Singh as P.W. 3, Dr. M. L. Tandon as P.W. 4, P.S. Negi Circle Officer as P.W. 5 and Dr. S.C. Sharma Scientific Officer as P.W.6. From the defence side Uma Shanker, Ram Pal and Chhotey Lal record keeper were examined as D.W.1, D.W.2 and D.W.3 respectively.

After scrutinizing the entire evidence on record the court below came to the conclusion that the prosecution has proved its case to the hilt against the husband and father-in-law namely Prem Shanker and Jamuna Prasad (both appellants) and accordingly convicted and sentenced them under Sections 304B and 498A I.P.C. as mentioned hereinbefore. As there was no specific allegation of alleged demand of dowry against mother-in-law, Smt. Prema, and sister-in-law Smt. Guddi, therefore giving the benefit of doubt, both of them were acquitted.

I have heard learned Counsel for the appellants, Sri Nagendra Mohan and Sri V.K. Shukla, learned A.G.A. and carefully gone through the lower court record.

Learned Counsel for the appellants submitted that the allegation of alleged demand of dowry could not be proved in this case. It is true that in the cross-examination of PW-1 it has been said that demand of dowry of Rs. 5000/- was made at a time of marriage which he mentioned in his report, but in the report the said demand of dowry is said to had been made after the marriage. It does not make any significant difference as has been mentioned in the judgment of the lower court also. In fact in the F.I.R. it is clearly mentioned that after sometime of the marriage the victim came to her mother''s house and told that a demand of dowry of Rs. 5000/- is being made and it cannot be said to be either unnatural or unbelievable. The victim''s father has specifically mentioned in his evidence that on account of non fulfillment of the aforesaid amount of dowry his daughter was turned out of the house and she had told it to him. He has further added that after Holi festival his daughter''s Nanand Guddi came to his house and assured that in future no such demand would be made and upon her commitment he had permitted his daughter to go with her Nanand. After a gap of sometime i.e. about 3-4 months he received the unfortunate information about the death of his daughter. Learned Counsel for the appellants also argued that there is no close proximity between the alleged demand of dowry consequent harassment and unnatural death. I am not impressed to accept this argument also. In the backdrop of the specific evidence adduced by the father of the victim it appears that almost immediately after the marriage a demand of dowry was started which subsisted till her death. The intervening period of 3-4 months cannot be said to be much and particularly when the sister-in-law (Nanand) of the victim herself had taken her from her mother''s home after giving assurance but within almost 4 months she died an unnatural death. In Viscera report poison was found in the examination.

There does not appear to be any quarrel on the point of preservation of Viscera, its sending for examination under seal and then finding of aluminium phosphate (poison) in the examination. Learned A.G.A. also pointed out that the father of the victim has categorically stated that besides making demand of dowry she was continuously beaten and she was even turned out of the house. As the victim was an uneducated lady there was no question of her sending any letters regarding this to her parents. Moreover the marriage was performed within the same village and because of this also there was no question of writing of letters. The evidence of witness Brahmanand PW-2 is also significant. He said that from January, 1985 quarrelling and beating had started between the victim and her husband and a day before her death i.e. on 20.07.1985 (she died on 21.07.1985) he had seen from his roof that victim''s husband Prem Shankar (Appellant) was beating her. The roof of the house of this witness is adjacent to the house of appellants and this fact does not appear to has been challenged. This witness further told that when he forbade Prem Shankar from doing so he challenged his authority and asked him to keep away. Then on next day i.e. on 21.07.1985 when he was coming home from Pihani and reached near village Itari then Dr. Yaseen told him that Mangu Lal''s daughter Guddi has been killed and her body is lying inside the Kothari. The aforesaid facts and circumstances prove that the husband appellant was constantly harassing tormenting and beating his wife till her death on account of non fulfillment of demand of dowry.

A question was raised from the side of the appellants that had he really seen beating just a day before then why he did not inform the victim''s father on the same day. There does not appear to be anything unnatural in this regard. On the very next day he had gone to Pihani as he has told and returned around 5.00 P.M. Therefore he had no occasion to do it. Moreover he never knew that on the very next day she would be killed by giving poison. He has also explained that the quarrelling and beating had started right from January, 1985 and therefore there was nothing new about it which would have compelled him to give information regarding beating on 20.07.1985 to the father of the victim. However, he immediately informed the victim''s father when he came to know from Dr. Yaseen about killing of the victim. Thought it was suggested that this witness has deposed due to enmity but from the evidence on record no such significant enmity could be proved. Similarly it could also not be established that this witness is closely related to victim''s father. Be that as it may. But being a next door neighbour of the appellants he was the most natural witness to have known and would have seen which he has deposed in his evidence and there is nothing on record to make his evidence unreliable. Thus sufficient close proximity between the alleged demand of dowry, consequent harassment and the unnatural death of the victim inside the house of the appellants has been duly proved in this case.

Learned Counsel for the appellants also submitted that the victim had suddenly developed some pain in her stomach and her husband himself had called Dr. Yaseen for her treatment. But Dr. Yaseen has not been produced to prove it. There is also nothing on record to prove that Dr. Yaseen in fact treated the victim. Therefore even if the husband of the deceased had gone to the house of Dr. Yaseen it does not show that he went to him for treatment of his wife because he knew it very well that either his wife has already died or her life would come to an end very soon due to poison. Further it is also noteworthy that the Investigating Officer S.I. Ram Pal Singh has told that the husband of the victim had informed at the police station that she has committed suicide by hanging. In the inquest report also it was mentioned that she had committed suicide by hanging but no such evidence was found anywhere. From this fact also it becomes clear that things were rather other way round. The husband appellant was not innocent as he had been trying to pretend. Rather he was instrumental in getting her killed by giving her poison that is why he tried to mislead the police by giving wrong information that his wife has committed suicide by hanging. Even if this statement given by the husband-appellant to the police may not be considered against him, there are sufficient facts and circumstances which are against the husband-appellant. The death was admittedly an unnatural death within seven years of marriage inside the house of the husband. Therefore under the relevant law burden is upon him to explain but he tried to mislead the police by telling a wrong and baseless story and concealing the actual facts. Therefore as far as husband-appellant Ram Shankar is concerned there is no reason to interfere in the order of conviction or sentence which is based on cogent and credible evidence of the prosecution as has been discussed elaborately the court below as also in this judgment.

As regards father-in-law appellant Jamuna Prasad the learned Counsel submitted that at the time of incident he was posted and working as Cabin man at Dalel Nagar Railway Station as mentioned in the F.I.R. itself. He was living there along with his wife as well as unmarried daughter, the sister-in-law of the victim, both of whom have already been acquitted by the court below. Even the star witness of the prosecution namely Brahmanand PW-2 has not said in his examination a single word against Jamuna Prasad appellant No. 2 (father-in-law) that either he had come to the village a day before or was available in his house on the fateful day/night or in any manner he participated in killing of the victim. In cross examination also he could not tell as to whether or not anybody else other than the husband of the victim was present in the house at the time of her beating a day before her death. On the other hand DW-2 Ram Bilas of the same village has specifically stated that Jamuna Prasad (appellant) was posted at Dalel Nagar as Railway Cabin man and used to live there only along with his wife and daughter. He further told that at the time of death of the victim also Jamuna Prasad was at Dalel Nagar along with his wife and daughter. When Gita died then he sent telepohnic information to Jamuna Prasad with the help of one clerk of Anghi station. Then Jamuna Prasad reached the village along with his wife and daughter. This witness happens to be father-in-law of appellant Jamuna Prasad but merely on this ground his evidence cannot be discarded. Moreover keeping in view the silence of the star witness of the prosecution i.e. Brahmanand about the presence of Jamuna Prasad appellant at the time of death of the victim as mentioned hereinabove, I am inclined to give at least benefit of doubt to appellant Jamuna Prasad. Even the father of the victim has mentioned in the F.I.R. that he came to know from somebody that on the fateful day/night Jamuna Prasad had also come along with his wife and daughter but he had no direct knowledge. As already said there is no reliable evidence including the evidence of the star witness i.e. PW-2 Brahmanand to prove this fact that they were actually present in the village at the relevant time. His wife and daughter have already been given benefit of doubt by the court below itself. He was at that time posted as Cabin man at Dalel Nagar and was living there along with his wife and daughter and therefore there is no reason to deprive him also from getting that benefit of doubt. Therefore he is also given the benefit of doubt and as such he deserves to be acquitted.

In view of the discussion made hereinabove the appeal of Prem Shankar (husband) is dismissed. His conviction and sentences under Sections 304B and 498A I.P.C. are hereby upheld and confirmed. He is on bail. His bail bonds are cancelled. He may be taken into custody immediately to serve out the sentence. The appeal on behalf of appellant Jamuna Prasad is however allowed. His conviction and sentence under Sections 304B & 498A I.P.C are hereby set aside and he is acquitted of the aforesaid charges. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.