Santosh and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Since both these criminal appeals i.e. [Criminal Appeal No. 885 of 2009-Santosh V State of U.P.] and [Criminal Appeal No. 863 of 2009-Maya Devi-V State of U.P.] arise out of a common judgment, therefore, the same are being disposed of together.

Mr. Rajendra Prasad Mishra, learned counsel for the appellants and Ms. Madhulika Yadav, learned Additional Government Advocate were heard.

Criminal Appeal No. 885 of 2009 has been preferred by the appellant-Santosh and Criminal Appeal No. 863 of 2009 has been preferred by the appellant Maya Devi challenging the judgment dated 09.03.2009 passed by learned Additional Sessions Judge, Court No. 2, Gonda, in Sessions Trial No. 184 of 2005, arising out of Case Crime No. 101 of 2004, Police Station Khodare, District Gonda, wherein appellant Santosh was convicted and sentenced as under:--

"(a) Under Section 304-B IPC - Imprisonment for life.

(b) Under Section 498-A IPC-Three years'' rigorous imprisonment with fine of Rs. 5000/-.

(c) Under Section 4 of the Dowry Prohibition Act-One year''s rigorous imprisonment with fine of Rs. 5000/-."

However, appellant Maya Devi was inflicted only ten years'' rigorous imprisonment for the offence under section 304-B IPC and she was sentenced for all the other offences in the same manner as appellant Santosh was sentenced.

All the sentences were directed to run concurrently.

Appellant Santosh in Criminal Appeal No. 885 of 2009 happens to be husband of the deceased and appellant Maya Devi in Criminal Appeal No. 863 of 2009 happens to be mother-in-law of the deceased.

In brief, the case of the prosecution was that the complainant Chhedi Lal lodged an FIR at the Police Station Khodare, Gonda on 07.09.2004 at 10:15 a.m. alleging therein that his daughter Sangeeta was married about six years ago with appellant Santosh and in Tilak ceremony Rs. 11,000/- cash and one cycle, watch and a gold ring was given in the dowry. After Gauna ceremony when his daughter Sangeeta went to her in-laws house then appellant raised a demand of motorcycle and television and other items in dowry. The complainant being a poor person was unable to fulfill these demands. He himself and the other persons of the village tried to persuade the appellants not to press their demand of dowry but it made no effect on the appellants and they continued to treat the deceased with cruelty in connection with the demand of dowry. On Raksha Bandhan, Sangeeta Devi came to her parental house and narrated the cruel behaviour of the appellants. The complainant and the other persons tried to console her that bad weather shall pass away. The complainant had taken a loan of Rs. 1000/- from Raja Ram and gave it to appellant Santosh. On 04.09.2004 the brother of the deceased went to meet his sister then in his presence her husband and her mother-in-law started quarreling with the deceased on the point of dowry and also threatened the son of the complainant that in case their demand is not fulfilled then they will have to face the consequences. The deceased expressed apprehension of her death to her brother. In the night of 04.09.2004 at about 9:30 p.m. the complainant got the information on phone that Sangeeta has died because of burn injuries. On this information, the complainant side went to her in-laws house then they found that the dead body of Sangeeta was lying in burnt condition. No member of the family was present in the house nor they appeared during postmortem or funeral. After funeral proceedings, the complainant came to the police station and lodged the FIR. Prior to lodging of the FIR, the inquest proceedings were conducted on 05.09.2004. It transpires from the challan lash that the police got the information of the death on 05.09.2004 at 7:45 a.m.

After completing the necessary formalities the dead body of the deceased Sangeeta was sent for postmortem which was conducted on 05.09.2004 at 4:00 p.m. According to the postmortem report following ante-mortem injuries were found on the body of the deceased:--

"(a) Contusion 13 cm x 10 cm on the middle side of chest.

(b) Contusion 14 cm x 8 cm on the front of the neck."

Doctor has also reported that there were postmortem burn injury present on her. Sole spared. No blisters. No line of redness was present.

In the opinion of the doctor, the duration of death of the deceased was about one day and the cause of death was asphyxia due to strangulation.

After registration of the case the investigation was completed and charge-sheet was filed.

The case of the defence was of total denial and their false implication in this case.

In order to prove its case the prosecution has examined PW-1 Chhedi, the complainant of this case, PW-2 Smt. Savitri Devi, mother of the deceased, PW-3 Smt. Sushila, Aunt of the deceased, PW-4 Virendra Bahadur Singh, another eye witness of the fact, PW-5 Rajendra Singh, an eye witness of fact, PW-6 Pappu, brother of the deceased, PW-7 Om Prakash, another brother of the deceased.

Dr. P.K. Agarwal was examined as CW-1 who had conducted the postmortem on the body of the deceased Sangeeta.

Five witnesses have been examined in defence on the point of separate living of the appellant Maya Devi regarding death of the deceased by burn injuries.

After appreciating the evidence on record, the trial court has convicted the appellants as above, hence the instant appeal.

Submission of the learned counsel for the appellants was that in the instant case the necessary ingredients to constitute an offence under Section 304-B IPC were not present inspite of that learned trial court has committed error of fact and law by convicting the appellants. He has also argued that in the evidence, the witnesses have not made any allegation of demand of dowry and it has also come in evidence that the marriage had taken place more than 7 years prior to this incident. But inspite of that learned trial court has recorded conviction of the appellants and because of the above infirmities the impugned judgment becomes unsustainable under law.

Learned Additional Government Advocate has submitted that in the instant case the cause of death was strangulation and postmortem burn injuries were also found on the body of the deceased. However, he has admitted that alternative charge under Section 302 IPC was not framed against the appellants.

Before proceedings further we would like to discuss the necessary ingredients to constitute an offence under Section 304-B IPC. Hon''ble Apex Court in the case of Rajinder Singh V. State of Punjab reported in , (2015) 6 SCC 477 has held in para 9 which is being reproduced as under:--

"9. The ingredients of the offence under Section 304-B IPC have been stated and restated in many judgments. There are four such ingredients and they are said to be:

(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;

(b) such death must have occurred within seven years of her marriage;

(c) Soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

(d) such cruelty or harassment must be in connection with the demand for dowry."

Hon''ble Apex Court in the case of Ashok Kumar V. State of Haryana reported in , (2010) 12 SCC 350 has held in para 24 which is being reproduced as under:--

"Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304B were not satisfied, rebut the same. While referring to raising of presumption under Section 304B of the Code, this Court, in the case of Kaliyaperumal v. State of Tamil Nadu reported in , (2004) 9 SCC 157, stated the following ingredients which should be satisfied:

"1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC).

2) The woman was subjected to cruelty or harassment by her husband or his relatives.

3) Such cruelty or harassment was for, or in connection with, any demand for dowry.

4) Such cruelty or harassment was soon before her death."

Law is settled on the point that in case the prosecution succeeds to prove that the deceased died an unnatural death within 7 years of her marriage and there was demand of dowry and consequential ill treatment soon before her death then presumption shall be raised against the family members that they have committed her dowry death.

On this point reference may be made to the pronouncement of Hon''ble Apex Court in the case of Suresh Kumar V. State of Haryana reported in (2013) 16 SCC 362 and the Apex Court has observed in paragraphs Nos. 30 and 46 which is being reproduced as under:--

"That the presumption under Section 113B of the Act is mandatory may be contrasted with Section 113A of the Act which was introduced contemporaneously. Section 113A of the Act, dealing with abetment to suicide, uses the expression "may presume". This being the position, a two-stage process is required to be followed in respect of an offence punishable under Section 304B of the Indian Penal Code: it is necessary to first ascertain whether the ingredients of the Section have been made out against the accused; if the ingredients are made out, then the accused is deemed to have caused the death of the woman but is entitled to rebut the statutory presumption of having caused a dowry death."

Section 113B of the Evidence Act introduces a reverse onus, which is to say that though it is ordinarily for the prosecution to prove its case beyond a reasonable doubt, but when a reverse onus is introduced, it is for the accused to refute the case of the prosecution and prove his innocence."

Now we consider the prosecution evidence keeping in mind the aforementioned legal requirements to prove the case of dowry death. PW-1 Chhedi in his examination-in-chief has stated that the marriage of his daughter was solemnized about 6-7 years prior to her death. But he has specifically denied in his examination-in-chief that whenever she used to come to his house then she never made any complaint of any demand of dowry against any of the members of his matrimonial home. This witness was declared hostile by the prosecution and was cross examined by the public prosecutor but nothing material could be elicited in his cross examination to lend support to the case of the prosecution. In the cross examination on behalf of the defence he has stated that her daughter never made any complaint of demand of dowry to him. Daughter Sangeeta was aged about 2 years at the time of incident.

PW-2 Smt. Savitri Devi, who happens to be mother of the deceased who has stated that the marriage of her daughter was solemnized about 8-9 years ago and there was no complaint of any demand of dowry and consequential ill treatment by her family members. This witness was declared hostile by the prosecution and was cross examined by the public prosecutor but nothing material could be elicited in her cross examination to lend support to the case of the prosecution.

PW-3 Smt. Sushila is the aunt of the deceased who has also stated that her marriage was solemnized about 8-9 years prior to her death and there was no demand of dowry and consequential ill treatment. This witness was declared hostile by the prosecution and was cross examined by the public prosecutor but nothing material could be elicited in her cross examination to lend support to the case of the prosecution.

PW-4 Virendra Bahadur Singh has stated that when Sangeeta came to her Maika then she never told him anything nor her parents or brother told about the demand of dowry to him. The FIR of this case was scribed by this witness and on the point of FIR he has stated that the FIR was scribed on the dictation of Darogaji. This witness was declared hostile by the prosecution and was cross examined by the public prosecutor but nothing material could be elicited in his cross examination to lend support to the case of the prosecution.

PW-5 Rajender Singh has stated about the demand of dowry and consequential ill treatment of the deceased. He has stated that he has also gone with Chhedi to the place of occurrence, by the time they reached there the proceedings of panchayatnama were being conducted. He has stated that her marriage was solemnized about 5-6 years prior to her death. But in cross examination this witness has stated that in his personal knowledge appellants had never made demand of dowry nor they treated her with cruelty in connection with the demand of dowry. When the deceased used to visit her Maika then she also used to come to his house and she had all the praise for her husband and her mother-in-law.

PW-6 Pappu and PW-7 Om Prakash are the brothers of the deceased and they have also stated that the marriage of their sister was solemnized about 8-9 years prior to her death and there was no demand of dowry and consequential ill treatment of the deceased.

In the background of this prosecution evidence learned trial court in the impugned judgment of para 65 has observed that PW-1 Chhedi and PW-5 Rajendra Singh have stated that the marriage of the deceased was solemnized about 5-6 years prior to her death and on this point there was no cross examination. It is true that PW-1 has stated that the marriage had taken place about 5-6 years prior to her death but he has not made any allegation regarding demand of dowry or consequential ill treatment. Likewise PW-5 Rajendra Singh has stated in his examination-in-chief that the marriage had taken place about 5-6 years prior to her death but in his cross examination he has stated that the marriage was solemnized about 8-9 years prior to her death and there was absolutely no allegation of demand of dowry and consequential ill treatment. This witness has taken a somersault in his cross-examination regarding duration of marriage and also regarding demand of dowry and consequential ill treatment. So this witness cannot be said to be the least reliable. It is true that PW-1 Chhedi in his examination-in-chief has stated that the marriage had taken place about 6-7 years prior to her death but he has also not made any allegation of demand of dowry and consequential ill treatment which was also a necessary ingredient to constitute an offence of Section 304-B IPC. The other witnesses of fact who are brother and mother and family members of the deceased have stated that the marriage had taken place about 8-9 years prior to her death and there was no demand of dowry and consequential ill treatment. In this perspective the presumption under Section 113-B of the Indian Evidence Act could not have been drawn against the appellants. Since there is absolutely no evidence regarding demand of dowry and consequential ill treatment against the appellants so they could not have been convicted for the offence under Section 498-A IPC and Section 4 of the Dowry Prohibition Act also. But the learned trial court ignoring all these facts has convicted the appellants for the said offences. Before parting with the judgment we would like to mention that in the instant case the deceased died because of strangulation and postmortem burn injuries were also found on the body of the deceased. So it was a fit case where an alternative charge under Section 302 IPC must have been framed.

The appellant Santosh has remained in custody from the date of judgment. However, appellant Maya Devi is on bail. The incident of this case is alleged to have taken place on 04.09.2004 so after a lapse of about 12 years we do not consider it proper to remand this matter for fresh trial after framing alternative charge under Section 302 IPC.

Keeping in view the nature of evidence which was produced by the prosecution the appellants could not have been convicted for the offence. Learned trial court has committed error of fact and law in convicting the appellants for the aforementioned offences.

Accordingly both these appeals i.e. Criminal Appeal No. 885 of 2009-Santosh V State of U.P.] and [Criminal Appeal No. 863 of 2009-Maya Devi-V State of U.P.] deserve to be allowed and are hereby allowed. Both the appellants are acquitted of all the charges levelled against them.

Appellant Santosh is in custody. He shall be released forthwith if not, wanted in any other case.

Appellant Maya Devi is on bail. Her bail is cancelled and sureties are discharged.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.