Court No. 47 Reserved on -24.09.2018 Delivered on -29.10.2018
Case :- CRIMINAL APPEAL No. - 2185 of 2009 Appellant :- Ram Bahadur & Others Respondent :- State Of U.P.
Counsel for Appellant :- I.K. Chaturvedi, Ashutosh, Avinash Tiwari, Manoj Kumar shukla, Mazhar Ullah, Praveen Kumar Srivastava, S.K. Upadhyay, Varindra Singh, Vikrant Gupta, Praveen Kumar Srivastava, V.P. Srivastava Counsel for Respondent :- Govt. Advocate, A.K. Sachan Connected with Case :- CRIMINAL REVISION No. - 2043 of 2009 Revisionist :- Ram Chandra Opposite Party :- State Of U.P. & Others Counsel for Revisionist :- A.K. Sachan Counsel for Opposite Party :- Govt. Advocate
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Umesh Chandra Tripathi,J.
[Delivered by Ram Surat Ram (Maurya), J.]
1. Heard Sri V.P. Srivastava, Senior Advocate, assisted by Sri Praveen Kumar Srivastava, for the accused-appellants, Sri Anil Kumar Kushwaha, A.G.A., for State of U.P. and Sri A.K. Sachan, for the informant.
2. Ram Bahadur, Ram Chandra, Smt. Uma Devi and Subhash (the appellants) have filed Criminal Appeal No. 2185 of 2009 from their conviction and sentence passed by Additional Session's Judge/Fast Track Court No.2, Rampur, dated 27.03.2009, in S.T. No. 134 of 2006, State vs. Ram Bahadur and others, arising out of Case Crime No. 626 of 2005, under Section 304-B, 498-A, 201 Indian Penal Code, 1860 (hereinafter referred to as the IPC) and Section 3/4 of Dowry Prohibition Act, 1961, P.S. Milak, district Rampur] convicting Ram Bahadur under Section 304-B, 498-A IPC and Section 4 of Dowry Prohibition Act, 1961 and awarding (i) sentence of rigorous imprisonment for life under Section 304-B IPC, (ii) three years rigorous imprisonment and fine of Rs. 3000/- under Section 498-A IPC along with default stipulation, (iii) two years rigorous imprisonment and fine of Rs. 5000/- under Section 4 of Dowry Prohibition Act, 1961, along with default stipulation and convicting Ram Chandra, Smt. Uma Devi and Subhash under Section 498-A IPC and Section 4 Dowry Prohibition Act, 1961 and awarding them (iv) three years rigorous imprisonment and fine of Rs. 3000/- each, under Section 498-A IPC, along with default stipulation (v) two years rigorous imprisonment and fine of Rs. 5000/- each, under Section 4 of Dowry Prohibition Act, 1961, along with default stipulation. All the sentences were directed to run concurrently. Ram Chandra, the informant has filed Criminal Revision No. 2043 of 2009, against the acquittal of Ram Chandra, Smt. Uma Devi and Subhash under Section 304-B, 201 IPC, in aforementioned S.T. No. 134 of 2006. Dharmaveer, co-accused, has been acquitted by impugned judgment but no appeal from acquittal has been filed.
3. On the complaint (Ex-Ka-1) of Ram Chandra (PW-1), FIR (Ex-Ka-8) of Case Crime No. 626 of 2005 was registered on 19.11.2005 at 7:10 hours, under Section 304-B, 498-A, 201 IPC and Section 3/4 of Dowry Prohibition Act, 1961, at P.S. Milak, district Rampur, against Ram Bahadur (husband), Ram Chandra (father-in-law), Smt. Uma Devi (mother-in-law) and Subhash (nandoi) of the deceased Smt. Saroj, by Head Moharri Sheesh Ram Singh (PW-10). It has been stated in the FIR that Smt. Saroj, the daughter of the informant, was married to Ram Bahadur son of Ram Chandra, resident of village Mada Nagla, PS Kemari on 23.05.2005. His daughter came to his house at village Sihari on the occasion of bhaiyadwuj. His daughter Saroj informed that her husband Ram Bahadur, father-in-law Ram Chandra, mother-in-law Smt. Uma Devi and nandoi Subhash were demanding Rs. 50000/- and they had very much embarrassed her in relation to demand of dowry. When she refused to bring dowry then her husband Ram Bahadur, father-in-law Ram Chandra, mother-in-law Smt. Uma Devi and nandoi Subhash threatened to kill her and remarry again. Yesterday on 18.11.2005, the marriage of the daughter of his brother-in-law (sala) was scheduled at village Nand Gaon, PS Meerganj, Bareilly. His son-in-law Ram Bahadur came to his house on 18.11.2005 at 10:00 AM, then he, Ganga Ram son of Bhole Ram and Puran Lal son of Ram Dayal of his village pacified him and expressed his inability to pay Rs. 50000/-. On hearing their talk, he kept silence. He took his daughter on his motorcycle on 18.11.2005 at 11:00 AM on the pretext to attend the marriage at village Nand Gaon. Today in morning, dead body of Saroj was found on the way, behind the house of Ganga Ram of his village. Ram Bahadur committed murder of his daughter in greed of dowry, after taking her from his house, threw dead body in night and ran away. His daughter Saroj was murdered in furtherance of common intention, of her husband Ram Bahadur, father-in-law Ram Chandra, mother-in-law Smt. Uma Devi and nandoi Subhash and dead body was thrown at his village. The dead body of his daughter was lying at his village.
4. After lodging FIR, the police requested Sub-Divisional Magistrate for conducting Inquest of the dead body. Then Naib Tahsildar, Nanak Singh (PW-14) conducted Inquest (Ex-Ka-2) of the dead body on 19.11.2005 between 12:05 to 13:30 hours. On his direction, SI Chandra Pal Singh prepared photo lash, police paper and letters to authorities (Ex-Ka-3 to Ka-7) to conduct postmortem of the deceased. He dispatched the dead body for postmortem through constables Khachedu Singh and Indrapal Singh. Dr. Sohan Lal Diwakar (PW-2) conducted autopsy of the dead body on 20.11.2005 at 11:00 AM and prepared postmortem report (Ex-Ka-2) in which following ante-mortem injuries were noted:-
(i) Multiple (4 in nos.) brushed injuries on right side of neck, in area of 6 cm. x 3 cm. which is below & at 6 cm. right ear lobule.
(ii) Contusion on right side of forehead, size is 2 cm. x 1 cm., 3 cm above right eyebrow.
(iii) Brushed injury below right eye, size is 2 cm. x 1 cm.
In the internal examination, brain tissues and membranes are congested, pleura congested, larynx, trachea and hyoid bone are fractured, both lungs congested. Both chambers of Heart filled. Stomach contains 50 ml. semi digested food. Small as well as large intestines contained fecal and gaseous matters. Liver is congested. Both kidneys as well as Spleen are congested. Bladder was empty. According to the Doctor, cause of death was Asphyxia, as a result of throttling.
5. After registration of FIR, Circle Officer of police P.K. Tiwari (PW-15) started investigation. He copied the check FIR and G.D. entry in case diary. He came to village Sihari, where dead body was found and recorded statement of the informant Ram Chandra. On the pointing out of the informant, he got prepared site-plan (Ex-Ka-11). He recorded statements of Prem Prakash, Rudrapal, Dori Lal and Ali Sher on the spot. Thereafter, he came to village Mada Nagla along with the informant Ram Chandra. On the pointing out of the informant, he got prepared site-plan (Ex-Ka-12) of the house of the accused Ram Bahadur. He recorded statement of Ganga Ram, Dori Lal, Puran Lal and Hari Nandan on 20.11.2005. On 21.11.2005, he recorded statements of Smt. Sona Devi (mother of the deceased), Km. Neeraj, Dharmendra, Smt. Geeta and Babu Ram. On the pointing out of the informant, he got prepared site-plan (Ex-Ka-13) of the house of the informant. On 22.11.2005, he took copy of postmortem report and Inquest on case diary and arrested the accused Ram Chandra and Smt. Uma Devi and recorded their statement. On 23.11.2005, he arrested Ram Bahadur and Dharmaveer and recorded their statements. On the pointing out of Ram Bahadur, he recovered broken bangles and hair clip of the deceased and prepared its recovery memo (Ex-Ka-10). He got prepared site-plan (Ex-Ka- 14) of the place of recovery, which was at a distance of 3 KM from the house of the informant. He recorded statements of the witnesses of recovery memo. On 08.12.2005, investigation was transferred to Circle Officer of police Shakeel Ahmad Khan (PW-16). He verified the statements of witnesses recorded in case diary by earlier Investigating Officer. He recorded statements of Ahmad Ali, Nabi Ahmad and Kalyan Mali. After investigation, he submitted charge sheet (Ex-Ka-15) against five persons (i.e. four persons named in FIR and one Dharmaveer). On which cognizance was taken.
6. On committal, the case was registered as S.T. No. 134 of 2006. Additional Session's Judge framed charges on 16.09.2006 against the appellants and Dharmaveer. Additional Session's Judge/Fast Track Court No. 2 framed charges on 24.11.2008 against the appellants and Dharmaveer. The appellants and Dharmaveer pleaded “not guilty” and claimed trial. In order to prove the charges, the prosecution examined Ram Chandra (PW-1), the informant and father of the deceased, Dr. Sohan Lal Diwakar (PW-2), to prove postmortem report, Smt. Sona Devi (PW-3), mother of the deceased, Hari Nandan (PW-4), who was declared as hostile, Dori Lal son of Noni Ram (PW-5), who was declared as hostile, Pooran Lal (PW-6), who was declared as hostile, Nabi Ahmad (PW-7) to prove that the deceased was taken by Ram Bahadur on 18.11.2005, Kalyan (PW-8), who was declared as hostile, Dharmendra Kumar (PW-9), brother of the deceased, Constable Clerk Sheesh Ram Singh (PW-10), to prove check FIR, Dori Lal son of Dwarika Prasad (PW-11), to prove recovery memo, Ram Pal (PW-12), to prove recovery memo, Ahmad Ali (PW-13), to prove that dead body was lying on brick paved rasta, behind the house of Ganga Ram, Naib Tahsildar Nanak Singh (PW-14), to prove Inquest of dead body, Circle Officer of Police P.K. Tiwari (PW-15), first Investigating Officer and CO Shakeel Ahmad Khan (PW-16) second Investigating Officer, who submitted charge sheet.
7. After completion of evidence of the prosecution, all incriminatory facts and materials were put to the appellants under Section 313 CrPC. They denied facts and materials. Ram Bahadur stated that he was falsely implicated. Smt. Saroj had illicit relation with Manoj, a boy of her father's village, since before her marriage. After marriage, Manoj attempted to make relation with Saroj, which was objected by her. Then he committed her murder and threw the dead body on the way near house of Ganga Ram. Ganga Ram and his father-in-law had good relation. They were falsely implicated. Other accused denied the facts and evidence and claimed false implication. Subhash stated that his house was at a distance of 50 KM away from the house of Ram Bahadur and 45 KM from the house of the informant. He never went to the house of Ram Chandra nor made any demand of dowry. The appellants examined Shyama Charan (DW-1) to prove that in the marriage of Ram Bahadur no demand of dowry was made nor any demand was made subsequent to the marriage. The appellants used to keep Smt. Saroj respectfully. On 18.11.2005, the appellants were at their village Mada Nagla.
8. After hearing the parties, Additional Session's Judge by the impugned judgment held that every fact is not required to be disclosed in FIR. It is proved that Smt. Saroj was married to Ram Bahadur on 23.05.2005 and died on 18.11.2005, as unnatural death, i.e. during 7 years of her marriage. From statements of Ram Chandra, Smt. Sona Devi and Dharmendra Kumar (PWs- 1, 3 and 9), it is proved that the appellants were demanding dowry of Rs. 50000/- and were embarrassing Smt. Saroj in relation to it. On 18.11.2005, at 10:00 AM Ram Bahadur demanded Rs. 50000/- at the house of the informant, in presence of witnesses Nabi Ahmad and Puran Lal, who had pacified him then he kept silence and took Smt. Saroj on his motorcycle at 11:00 AM and thereafter her dead body was found as such presumption of dowry death was liable to be raised under Section 113-B of Evidence Act, 1872. On these findings he convicted the appellants under Section 498-A IPC and Section 4 of Dowry Prohibition Act, 1961 and Ram Bahadur under Section 304-B IPC also and sentenced as mentioned above. Hence, this appeal from conviction has been filed. The informant has filed revision from acquittal of Ram Chandra, Smt. Uma Devi and Subhash under Section 304-B and 201 IPC. Dharmaveer has been acquitted.
9. We have considered the arguments of counsel for the parties and examined the record. From the evidence of the prosecution it is proved that Smt. Saroj (the deceased) was married to Ram Bahadur (the appellant) on 23.05.2005 and she died on 18.11.2005 due to throttling. The dead body Smt. Saroj was found on bricks paved rasta behind the house of Ganga Ram at village Sihari, which is village of the informant. According to the informant, the deceased was brought to his house 15 days prior to her death on the occasion of bhaiyadwuj by Ram Bahadur but on 18.11.2005 at 11:00 AM, Ram Bahadur took Smt. Saroj on his motorcycle, under the pretext to attend marriage of his brother-in-law's daughter at village Nand Gaon, PS Meerganj district Bareilly. During night of 18.11.2005, she was murdered and her dead body was thrown. Trial Court has not framed any charge, relating to murder of Smt. Saroj by the appellants. As such it has to be examined as to whether it was “dowry death” within the meaning of Section 304-B IPC.
10. A three Judges Bench of Supreme Court in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588, has held that in order to attract application of Section 304-B IPC, the essential ingredients are as follows:
1. The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
2. Such a death should have occurred within seven years of her marriage.
3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
4. Such cruelty or harassment should be for or in connection with demand of dowry.
5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
On proof of the essential ingredients mentioned above, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. A conjoint reading of Section 113-B of the Evidence Act, 1872 and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. “Soon before” is a relative term and it would depend upon circumstance of each case and no straitjacket formula can be laid down as to what would constitute a period “soon before the occurrence”. There must be in existence a proximate live link between the facts of cruelty in connection with the demand of dowry and the death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
11. In order to prove demand of dowry and torture of the deceased 'soon before her death', the prosecution examined, Ram Chandra, Smt. Sona Devi and Dharmendra Singh (PWs-1, 3 and 9), who are real father, mother and brother of the deceased. Ram Chandra (PW-1) stated that Smt. Saroj was his daughter. She was married to Ram Bahadur on 23.05.2005. At the time of marriage, he had given dowry of Hero Honda Spender motorcycle, black and while television, almira, cooler, double bed, furniture, clothes, gold ring and Rs. 25000/- cash. Thereafter, they demanded Rs. 50000/- again. Due to non- fulfillment of their demand, they began to throw the goods given by him. After pacifying by the people, they took goods and his daughter. But on coming, they used to demand money. Whenever his daughter came to his house after marriage, she informed that her in-laws were demanding Rs. 50000/- and threatening to kill her, in case their demand was not fulfilled. His daughter came to his house on bhaiyadwuj. On 18.11.2005, the marriage of the daughter of his brother-in-law (sala) was scheduled at village Nand Gaon, PS Meergnaj, district Bareilly. Ram Bahadur went to his house to take Smt. Saroj for attending the marriage. Ram Bahadur demanded Rs. 50000/-, then he expressed his inability. Nabi Ahmad and Puran Lal Pradhan were there. They also pacified him and told that he was unable to satisfy that demand.
In cross-examination, he stated that one month prior to bhaiyadwuj his daughter had come to his house and told about demand of dowry. On her information, he came to know about the demand of Rs. 50000/- of the accused. His daughter used to come to his house happily. On the occasion of marriage, nothing was demanded, later on Rs. 50000/- was demanded. When Ram Bahadur came on 18.11.2005, then he demanded Rs. 50000/- in presence of Nabi Ahmad and Hari Nandan. He did not make any complaint to any one before dwuj in respect of demand of dowry.
12. Smt. Sona Devi (PW-3) stated that her daughter Saroj was married to Ram Bahadur, resident of Mada Nagla, PS Kemari, district Rampur. At the time of marriage, Splender Hero Motorcycle, box, Almira, cooler, sari, double bed, television, utensils and clothes were given. The accused were not happy with the dowry given at the time of marriage. They used to assault Saroj. They were demanding Rs. 50000/- and used to threaten that in case, she would not bring Rs. 50000/-, she would be killed. When her daughter used to come to her house, she used to tell all these things to her. They went to the sasural of her daughter to pacify the accused. Subhash, brother-in-law of Ram Bahadur also came to her house for demanding Rs. 50000/-. The accused Ram Bahadur, Ram Chandra and Smt. Uma Devi used to assault her daughter for demand of dowry. Her daughter came to his house fifteen days prior to the incident on bhaiyadwuj and she lived at her house. The marriage of her brother's daughter Sarla was scheduled at village Nand Gaon, PS Meergnaj, district Bareilly. She was there. Ram Bahadur came to her house to take Saroj and took her at 11:00 AM. At that time she was at her house and went to attend the marriage after about two hours. Her son Dharmendra also went with her. Her husband and younger daughter Neeraj remained at the house. She came to know on next day that Saroj had died. Then she came back from Nand Gaon and found the dead body on brick paved road behind the house of Ganga Ram. Ram Bahadur and Subhash murdered her. Nabi Hussain informed her that in night at about 9:00 PM, Subhash was riding motorcycle and Saroj and Ram Bahadur were pillion rider on the motorcycle and they were coming towards village. When Ram Bahadur came for taking Saroj in marriage then Nabi Hussain and Puran Lal Pradhan pacified him. They have killed her daughter for dowry.
In cross-examination, she stated that at the time of settlement of marriage there was no demand of dowry. She has no knowledge that at the time of marriage, the accused had demanded Rs. 50000/-. She cannot tell that after marriage, when and where Rs. 50000/- was demanded. Saroj used to come to her house at an interval of fifteen days and after two-four hours, she used to go back. When she came on bhaiyadwuj then she made complaint, on which her husband went to the house of the accused to ask as to why they were assaulting her and demanding Rs. 50000/-. On the occasion of bhaiyadwuj, Saroj was brought by Ram Bahadur to her house. When Ram Bahadur asked to take Saroj for attending the marriage, then she had sent her. On that day Subhash also came with him. Ram Bahadur had also invitation of that marriage. She used to go to sasural of Saroj.
13. Dharmendra Kumar (PW-9) stated that he knew the accused Ram Bahadur, Ram Chandra, Smt. Uma Devi and Subhash. The deceased Saroj was his sister. She was married to Ram Bahadur on 23.05.2005. At the time of marriage, his father gave dowry according to his capacity i.e. motorcycle, and other goods. The in-laws of his sister were not happy with the dowry. They used to mentally torture her always. They used to say to his sister to bring Rs. 50000/- from her father as her father had not given any cash at the time of marriage. They also threaten that in case, she would not bring the money then she would be killed. His brother-in-law used to come to his house on the motorcycle given in dowry. His sister Saroj informed to his family members about the demand of Rs. 50000/- of the accused. Then he and his father went to their house to talk in this respect. The accused told them also to give Rs. 50000/- as no cash was given at the time of marriage. Subhash also demanded Rs. 50000/- from his family members, on coming to his house one or two occasions. After marriage, his sister came to his house on bhaiyadwuj. The accused Ram Bahadur came to his house on 18.11.2005 on motorcycle. On that day his family members, Nabi Hussain, Puran Lal, Ganga Ram and Dori Lal and others were present. In their presence, the accused Ram Bahadur demanded Rs. 50000/-. They also pacified him. On that day marriage of his cousin sister was scheduled at village Nand Gaon. After pacifying by the aforesaid persons, Ram Bahadur took his sister from his house on the pretext of attending marriage of his cousin at about 11:00 AM. He and his mother had gone in that marriage. But the accused along with his sister did not reach there to attend the marriage. On 19.11.2005, in morning, they were informed about death of Saroj. Then he and his mother came back to his house and found dead body of Saroj on brick paved rasta near the house of Ganga Ram. In the village, it came to their knowledge that Dori Lal and Hari Nandan of his village were talking in night at poolia that Ram Bahadur came to his village on motorcycle from the side of Rathaude. Saroj was pillion rider on motorcycle and one man was also sitting behind her, catching Saroj. He fully believed that that the appellants have committed murder of his sister due to non-fulfillment of their dowry demand.
In cross-examination, he admitted that he was doing private service at S.K. Diesels Ltd, Rudrapur on a salary of Rs. 4500/- per month and used to stay there in night.
14. In the FIR, it has been stated that when Smt. Saroj came to the house of informant on bhaiyadwuj, then she informed about demand of Rs. 50000/- by the accused. On 18.11.2005, Ram Bahadur demanded Rs. 50000/- in presence of Ganga Ram and Puran who had pacified him. In statement of Ram Chandra (PW-1), this version has been changed and stated that Nabi Ahmad and Puran were present on 18.11.2005, when Ram Bahadur demanded Rs. 50000/-. In cross-examination it has been stated that Nabi Ahmad and Hari Nandan were present at that time. Hari Nandan was examined as PW-4. He did not support the prosecution case and was declared hostile. Puran Lal was examined as PW-6. He did not support the prosecution case and was declared hostile. Ganga Ram was not examined. Nabi Ahmad (PW-7) in his cross-examination stated that the accused Ram Bahadur was resident of village Mada Nagla. He never went to his house. Ram Bahadur never went to his house. He had seen him while coming and going. He had never any talk with him. His house situated after two houses of Ram Chandra. They do not use to go to the houses of each other.
15. Ram Chandra (PW-1) has stated that his wife Smt. Sona Devi and his son Dharmendra Kumar had gone to attend the marriage at village Nand Gaon on 17.11.2005 as such statements of Smt. Sona Devi (PW-3) and Dharmendra Kumar (PW-9) in respect of happening on 18.11.2005 are false. Thus demand of Rs. 50000/- by Ram Bahadur on 18.11.2005 was not proved.
16. Ram Chandra (PW-1), in his cross-examination changed his earlier statement that on the occasion of marriage, Rs. 50000/- was demanded and goods were thrown for it.
He admitted that on the occasion of marriage, nothing was demanded but stated that Rs. 50000/- was demanded on the occasion of lagan. He further stated that one months prior to the incident, when his daughter came to his house, then she had informed in respect of demand of Rs. 50000/- and her torture in relation to it. Smt. Sona Devi (PW-3) admitted that at the time of settlement of marriage there was no demand of dowry. She has no knowledge that at the time of marriage, the accused had demanded Rs. 50000/-. She cannot tell that after marriage, when and where Rs. 50000/- was demanded. Saroj used to come to her house at an interval of fifteen days and after two- four hours, she used to go back. From their statements demand of Rs. 50000/- by the appellants as dowry was not proved. Rather it is admitted that after the marriage, Ram Bahadur used to come to the house of informant along with the deceased Saroj at an interval of fifteen days and after two-four hours, they used to go back. Whenever Saroj came to the house of informant, she was happy. Thus torture of Smt. Saroj in relation to demand of dowry was not proved. During this short period of the marriage, the informant and his family members never went to the house of the accused to take the deceased. On the occasion of bhaiyadwuj also the deceased came to the house of the informant along with her husband Ram Bahadur. Demand of dowry of Rs. 50000/- from the appellants and torture of the deceased in this respect are not proved. As such presumption of 'dowry death' under Section 113-B of Evidence Act, 1872 cannot be raised.
17. Neither charge of murder of Smt. Saroj by the appellants has been framed by the trial court nor evidence in this respect is sufficient to convict the appellants for murder of Smt. Saroj. It is admitted to the witnesses of fact that Smt. Saroj had come to the house of informant on the occasion of bhaiyadwuj and lived there up to 18.11.2005 at 11:00 AM. She was murdered on 18.11.2005 some time after 11:00 AM. Ram Chandra (PW-1) has changed his version at every stage in this respect of taking of Smt. Saroj by Ram Bahadur on 18.11.2005 at 11:00 AM. In the FIR, it has been stated that on 18.11.2005, Ganga Ram and Puran were there at his house and they had pacified and thereafter Smt. Saroj went with Ram Bahadur at 11:00 AM. Ram Chandra (PW-1) changed this version in his statements and stated that Nabi Ahmad and Puran were present at that time. In cross-examination, he stated that Nabi Ahmad and Hari Nandan were present at that time. Hari Nandan was examined as PW-4. He did not support the prosecution case and was declared hostile. Puran Lal was examined as PW-6. He did not support the prosecution case and was declared hostile. Ganga Ram was not examined. Nabi Ahmad (PW-7) in his cross-examination stated that the accused Ram Bahadur was resident of village Mada Nagla. He never went to his house. Ram Bahadur never went to his house. He had seen him while coming and going. He had never any talk with him. His house situated after two houses of Ram Chandra. They do not use to go to the houses of each other. Statement of Ram Chandra (PW-1) in respect of taking the deceased Smt. Saroj on 18.11.2005 at 11:00 hours by Ram Bahadur is not corroborated by independent witnesses examined by the prosecution. As such it has not been proved beyond reasonable doubt that Smt. Saroj had gone with Ram Bahadur on 18.11.2005 at 11:00 AM.
18. It is not proved from the statements of Dori Lal (PW-5) and Hari Nandan (PW-4) that they were talking in night at poolia then Ram Bahadur had come to his village on motorcycle from the side of Rathaude and Saroj was pillion rider on motorcycle and one man was also sitting behind her, catching Saroj. So far as recovery of broken bangles and heir clip on the pointing out of Ram Bahadur and co-accused Dharmveer is concerned this recovery is useless as the witnesses of facts have not stated that these bangles and heir clip belonged to the deceased.
19. FIR appears to be ante-timed. Ram Chandra (PW-1) stated that when Neeraj informed him about the dead body of Smt. Saroj lying on brick paved road it was 8:00 AM in morning. The villagers first went to police station to inform about the dead body of Smt. Saroj lying in the village. On that information, the police came to spot. Lodging of FIR on 19.11.2005 at 7:10 hours is ante-timed. Charge of murder of Smt. Saroj by Ram Bahadur in collusion of other appellants is not proved beyond reasonable doubt.
20. In view of the aforesaid discussions, Criminal Appeal No. 2185 of 2009 (Ram Bahadur and Others Vs. State of U.P.) succeeds and is allowed.
Conviction and sentence of the appellants Ram Bahadur, Ram Chandra, Smt. Uma Devi and Subhash, passed by Additional Session's Judge/Fast Track Court No.2, Rampur, dated 27.03.2009, in S.T. No. 134 of 2006, State vs. Ram Bahadur and others, (arising out of Case Crime No. 626 of 2005, under Section 304-B, 498-A, 201 IPC and Section 3/4 of Dowry Prohibition Act, 1961, P.S. Milak, district Rampur), is set aside. Criminal Revision No. 2043 of 2009 (Ram Chandra Vs. State of U.P. and others) has no merit and is dismissed.
Order Date :- 29.10.2018 Jaideep/-