This criminal appeal, under Section 374 (2), Code of Criminal Procedure (in short 'Cr.P.C.'), has been filed against the judgment and order dated 17.01.2011 passed by learned Additional Sessions Judge, Court No.6, Sitapur in S.T. No.369 of 2004 whereby the appellant Sri Keshan has been convicted and sentenced under Section 304-B IPC with rigorous imprisonment of 10 years, under Section 498-A IPC with rigorous imprisonment of two years and fine of Rs.1000/- and in default of payment of fine one month additional rigorous imprisonment and under Section 4 of the Dowry Prohibition Act (in short ''DP Act') with one year rigorous imprisonment and fine of Rs.1000/- and in default of payment of fine one month additional rigorous imprisonment.
The other co-accused Ramdeen and Smt. Rajwati alias Phoolmati, who are the father-in-law and mother-in-law respectively, have been acquitted by the same judgment. No appeal has been filed by the State against the order of acquittal.
Brief facts for deciding this appeal are that the appellant was married to the deceased Smt. Arti alias Bitto two and a half years ago from the date of incident in accordance with Hindu rites and customs. At the time of marriage, sufficient dowry was given to her in-laws but they were not satisfied. They demanded buffalo, T.V. and cycle as dowry. The deceased was subjected to cruelty on account of such demands. The deceased Smt. Arti Devi informed about the demand of dowry to her brother Radhey Shyam when he visited her in-laws house. The deceased also informed about the demand of dowry to her brother and mother as and when she used to visit her parental house. The informant Radhey Shyam went to take her sister back from her in-laws house but the in-laws refused to send the deceased. On 25.07.2000, the appellant sent an information to Radhey Shyam that her sister is ill. On this information, the informant Radhey Shyam and his mother reached to the house of appellant where they found that Smt. Arti was killed by sprinkling kerosene oil and they are going to cremate the dead body of the deceased. When they were in the village of the accused, the Village Pradhan confined them on gun point and got thumb impressions on plain papers. In the meantime, the dead body of the deceased was cremated. The informant and his mother any how manage their escape and thereafter they went to lodge the FIR but the police of Police Station Hargaon did not register the FIR. Consequently, the informant Radhey Shyam filed an application under Section 156(3), Cr.P.C. before the learned Magistrate and the learned Magistrate vide order dated 05.09.2000 directed the police of Police Station Hargaon to register the case. In compliance thereof, FIR was lodged at Case Crime No.244 of 2000, under Sections 498-A, 304-B, 342 IPC and Section 3/4 of D.P. Act, Police Station Hargaon, District Sitapur. The Magistrate took cognizance and case was committed to the court of sessions for trial of the accused persons. The trial court framed charges under Sections 498-A, 304-B IPC and Section 3/4 of D.P. Act. The accused persons denied the charges and claimed their trial.
The prosecution, in support of his case, examined informant Radhey Shyam, the brother of the deceased as PW 1, Smt. Phoolmati, the mother of the deceased as PW 2, Constable Shiv Kumar Singh, who registered the case, as PW 3, Dr. V.R. Saxena, who conducted the postmortem, as PW 4, Sri Vishwajeet Srivastava, the Investigating Officer as PW 5 and Dhani Ram Verma Police Inspector, who prepared the inquest, as PW 6. The accused persons were examined under Section 313, Cr.P.C. wherein the appellant take defence that he has been falsely implicated in this case. His wife wanted to live with him at Golagokran Nath but he did not allow the deceased to live with him in Golagokaran Nath. On returned, he received information that the deceased committed suicide by setting her on fire. The accused adduced defence evidence in the form of witness Murli. The trial Court after considering the evidence on record convicted the appellant as stated above. Agrrived by the same this appeal has been filed.
I have heard the learned Counsel for the appellant and learned AGA and perused the record of this appeal as well as of the trial Court.
Learned counsel for the appellant challenged the conviction and sentence on the following grounds:
1. That; the marriage was taken place more than 10 years before the incident.
2. That; there is no evidence to the effect that the deceased was subjected to cruelty soon before her death.
3. That; on similar evidence, the parents of the appellant have been acquitted without distinguishing their case from appellant.
Inviting the attention of this Court towards the statement of PW 2 Smt. Phoolmati, it has been submitted by learned counsel for the appellant that in her statement, she stated that the deceased was her youngest daughter. Her eldest daughter is Ram Rani. The second child is informant Radhey Shyam and her third child is Ram Kali and thereafter her daughter younger to Ram Kali is Chhanga. She also stated that at the time of marriage of Deepa, who is the daughter of her eldest daughter Smt. Ramrani, the deceased was hardly 2-3 months of age. The eldest daughter of Radhey Shyam is Neelam and at the time of marriage of deceased Smt. Arti, she was hardly 2-3 months of age. The age of Deepa at the time of her marriage was 17 or 18 years of age.
It has further been contended that Radhey Shyam PW 1 stated that the marriage of the deceased was taken place one and half years ago from the date of incident. There is variation about the duration of marriage in the statements of witnesses of the prosecution and none of the witnesses are stated that the death of the deceased was occurred within seven years of marriage.
In this case, this fact is not in dispute that deceased Smt. Arti alias Bitto died in her matrimonial home on account of burn injuries sustained by her on 24.07.2000. It is also not denied that the appellant is the husband of the deceased.
Whether marriage is within Seven years from the death of deceased Smt. Arti ?
According to the prosecution, the marriage took place two and a half years ago before the incident. On the contrary, the accused persons adduced evidence that marriage of the appellant was solemnized with deceased, when the age of the deceased was hardly 10-11 years.
According to the post mortem examination report, the age of the deceased was 20 years. It appears that PW 2 has no exact idea about the age of any of her child or grand child. In her statement, she categorically stated that her daughter died about 6 years ago (from the date of her deposition) and within three years her marriage. It would not be believable that marriage would be taken place when deceased was hardly 10 years of age. It is not the case of the appellant in the statement recorded under Section 313 Cr.P.C. that his marriage was taken place about 10 years before the incident.
In view of above the statement of an interested witnesses produce from the side of the defence, that marriage of the deceased was taken place when she was hardly 10-11 years is not believable in the circumstances available on record. Therefore, I am of the opinion that the finding recorded by the trial court that marriage took place within seven years of marriage is liable be confirmed. I do not find any illegality in recording the finding to this effect by the trial court.
Whether deceased was subjected to cruelty soon before her death ?
The second contention of Counsel for appellant is that the prosecution failed to establish that soon before her death, the deceased was subjected to cruelty on account of demand of dowry. Attention of this Court has been drawn towards the statements of prosecution witnesses as well as towards the contents of the FIR. It has not been disclosed in the FIR as to when and on which date and for how many times or for last time when the deceased visited to the house of her parents or when brother of deceased visited her in-laws house to see her sister.
In view of above, the testimony of the prosecution witnesses is required to be looked into to appreciate their evidence on this issue.
I have gone through the entire statement of PW 1 Radhey Shyam recorded by the trial court. He stated in the first information report that the marriage took place about two and a half years ago from the death of the deceased, but in the statement recorded before the trial court he stated that marriage took place about one and a half year ago before the death. Radhey Shyam in his statement also stated that after 15 days of marriage, Arti came to her Maika and informed that her in-laws demanded buffalo, T.V. and cycle as dowry. Thereafter deceased was sent back to her in-laws house again by him and his mother. After lapse of 20 days, the informant went to her in-laws house where the deceased informed that on account of non fulfilment of demand of dowry, she was subjected to cruelty. The in-laws of his sister did not send the deceased with him. The informant in his cross-examination stated that the deceased came to the parents house 2-3 times. He also stated that first time the deceased came to her parents house after three days. He also stated that at the time of marriage or before the marriage, the in-laws did not demand dowry.
PW 2 Smt. Phoolmati stated in her statement before the trial court on 26.06.2006, that marriage of the deceased took place about six years ago. After one and a half month of marriage the deceased came to her parents house and informed that she was subjected to cruelty for non fulfilment of demand of dowry by her in-laws. Thereafter she was persuaded to go back to her in-laws house and consequently, she went back to matrimonial house. After two months thereafter, she sent her son Radhey Shyam to bring her daughter but her in-laws refused to send her on the pretext that unless the demand is not fulfilled, the deceased shall not be allowed to go her parental house.
The first information report and the statements of PW 1 and PW 2 reveal that there are major contradictions in their statements on material points. In the first information report, it has not been stated that as to when the deceased came from matrimonial home and when she was last time subjected to cruelty on account of demand of dowry. There is also major contradiction with regard to the first Vidai of the deceased and the information given by the deceased with regard to cruelty. The statement of PW 1 was recorded on 17.11.2005 before the trial court wherein he has stated that for the first time when the deceased came back from in-laws house, she did not disclosed anything about the demand of dowry. PW 1 also stated that she came for the first time to her parental home after three days of marriage. It has been stated by PW 2 that 7-8 times, the deceased came to Mayaka and went back to her in-laws house. On the contrary, PW 1 stated that the deceased only twice or thrice came to parental house. However there is nothing in the statement of PW 1 or in the statement of PW 2 that as to when the deceased came on last occasion to parents house or when she was subjected to cruelty for demand of dowry for the last time.
To appreciate the arguments of the parties and also the evidence, it is necessary to look into the statutory provisions of Section 304-B IPC, which reads as follows:
"304-B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ''dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purposes of this sub-section, ''dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2)Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
The aforesaid provision shall apply when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v)Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 113-B of the Evidence Act is also relevant for the case in hand. Section 113-B reads as follows:
"113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, ''dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
In Kaliyaperumal v. State of T.N., (2004) 9 SCC 157 the Hon'ble Supreme Court considered these provisions in para 4 and 5 at page 162 "The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its Twenty-first Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand for dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(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 304-B 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.
5. A conjoint reading of Section 113-B of the Evidence Act 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. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
In the latest judgement reported in (2014) 9 SCC 645; Mohan Lal Vs. State of Haryana, the Apex Court has observed that in absence of evidence of cruelty committed upon deceased soon before her death, the conviction under Section 304-B IPC cannot be allowed to sustain.
There is no strait jacket formula to determine the period as to when, it could be said that deceased lady was subjected to cruelty soon before her death. To ascertain the element of soon before death the same has to be considered in the light of the facts and circumstances of each and every case. The nexus of cruelty before death of the deceased is a question of fact and the same has to be looked into in accordance with the evidence adduced during trial.
The case, in hand, even if it is taken to be true on the basis of statement given by prosecution witnesses, the deceased came once or twice after marriage as per PW1. As per statement of PW 2, she came for the first time after one and a half month of the marriage. Thereafter she went back to her in-laws house and after two months thereafter , the informant went to take her back but she was not sent to her Mayaka on the pretext that she will not send unless the demand is fulfilled. This is the longest period which can be taken into consideration for the aforesaid purpose.
From the perusal of the evidence of PWs 1 and 2, it is clear that the deceased came to her Mayaka during the span of 1-2 months after the marriage and she sent back to her in-laws house. The period, which can be calculated on the basis of statements, cannot be extended to more than 4-5 months if marriage is solemnized after two and a half years from the date of incident. Therefore, as per the statement of PW 1 that marriage took place about one and a half year before death, the period of more than one year lapsed when no information was conveyed by the deceased to the informant or her mother with regard to cruelty by in-laws upon her and even if, the statement of PW 2 is taken to be correct that the deceased died about three years after the marriage, then there is a gap of more than two years. As such there is no evidence on record to show that the deceased was subjected to cruelty on account of demand of dowry soon before her death. The prosecution thus, failed to established that Smt. Arti was subjected to cruelty by her husband on demand of dowry soon before her death. The finding recorded otherwise by the trial court is perverse and is contrary to the evidence on record.
In view of the aforesaid discussions made here in above, I am of the view that prosecution has utterly failed to establish that the deceased was subjected to cruelty soon before her death on account of demand of dowry. Therefore, if any of the element constituting an offence under Section 304-B IPC is missing, the presumption under Section 113-B cannot be drawn. Therefore, the appellant cannot be convicted under Section 304-B IPC.
What would be the effect of acquittal of the parents of the appellant?
It is well settled that doctrine of falsus in uno, falsus in omnibus is not applicable in India. The Apex Court in Babu v. State of T.N., (2013) 8 SCC 60, at page 67 held in this regard as under :
17. Now the question is whether if PW 3 Ponnusamy is disbelieved, the entire prosecution story becomes suspect and deserves to be disbelieved. In our opinion, even if PW 3 Ponnusamy's evidence is obliterated, the prosecution case can be held proved on the basis of other evidence on record. Witnesses do exaggerate. They have a tendency to improve upon the prosecution case. If one of the witnesses is found to be prone to exaggeration and, hence, not reliable, the other evidence on record, if it is cogent and reliable, can be relied upon. The entire prosecution evidence does not necessarily become tainted thereby.
18. In this connection we may usefully refer to the observations of this Court in Sucha Singh v. State of Punjab (2003) 7 SCC 643 which read thus: (SCC pp. 644f-645a) "The maxim ''falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liars. This maxim has not received general acceptance nor has it come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called ''a mandatory rule of evidence'. The doctrine is a dangerous one, especially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment."
Hence in view of above acquittal of parents of appellant would not give reason for acquittal to the appellant, who is the husband of the deceased.
Further question is whether a case under Section 498-A has been made out, even if accusations under Section 304-B fail. Section 498-A reads as follows:
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purposes of this section, ''cruelty' means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
In Kaliyaperumal's case (supra) at page 163 in para 7 the Apex Court held in this regard as under :
"7. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of "cruelty". In Section 304-B there is no such explanation about the meaning of "cruelty". But having regard to the common background to these offences, it has to be taken that the meaning of "cruelty" or "harassment" is the same as prescribed in the Explanation to Section 498-A under which "cruelty" by itself amounts to an offence. Under Section 304-B it is "dowry death" that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. A person charged and acquitted under Section 304-B can be convicted under Section 498-A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder v. State of A.P.1991 Supp (2) SCC 99) Section 498-A IPC and Section 113-B (sic 113-A) of the Evidence Act include in their amplitude past events of cruelty. The period of operation of Section 113-B (sic 113-A) of the Evidence Act is seven years; presumption arises when a woman committed suicide within a period of seven years from the date of marriage."
So far as the offence under Section 498-A is concerned, the evidence is on record start from lodging of the first information report and giving evidence by the witnesses in the court that the deceased was subjected to cruelty on account of demand of buffalo, cycle and TV. Therefore, the conviction under Section 498-A IPC cannot be said to be illegal.
Whether any offence under Section 4 of D.P. Act is made out?
In this regard, there is one more glaring fact to be noticed that the first information report was lodged on the basis of an application moved under Section 156(3) Cr.P.C. This application was actually moved before the Magistrate on 28.08.2000. The incident took place on 25.07.2000. It has not been disputed by the prosecution that the in-laws of deceased and informant with his mother were present at the time of preparation of inquest and conducting the post mortem of the deceased. The case of the prosecution is that the informant and her mother were illegally confined on gun point and thumb impressions were taken on some blank papers by Village Pradhan. The documents produced during the course of defence is a compromise arrived at in between the parties on 26.06.2000, wherein the mother and brother of the deceased taken back all the belongings of the deceased. But no reliable and acceptable evidence has been adduced during trial that the informant and her mother were illegally restrained or any compromise has been arrived at. Therefore, this part of the prosecution case also become doubtful. It cannot be ruled out from the evidence adduced by the prosecution that some talks had taken place in between the parties after death of the deceased and the FIR has not been lodged promptly. It has been alleged by the prosecution that some blank documents have been obtained after getting thumb impressions create a reasonable doubt in the mind of the court that the articles of the deceased were either taken back or some talk must have been taken place in between the parties. However, the evidence of demand of buffalo, T.V. and cycle was made after the marriage and not at the time of marriage or before marriage as has come in the evidence so the demand of these items cannot be related to the marriage and as such, the same will not come within the definition of Dowry. Therefore, the conviction recorded against the appellant under Section 4 of the D.P. Act is also not sustainable in law and the finding recorded by the trial court to this effect cannot be allowed to sustain.
Having considered all the facts and circumstances of the case and the observatiosn made here in above, the appeal is partly allowed.
The conviction and sentence recorded against the appellant under Section 304-B IPC and Section 4 of D.P. Act is set aside.
However, the conviction and sentence recorded under Section 498-A IPC is maintained. In case, the sentence awarded under Section 498-A IPC has been completely undergone by the appellant, he shall be released forthwith if not warranted in any other case.
Let a copy of this judgement with record of lower Court be sent back to the trial Court forthwith for compliance of the same.
The Senior Registrar of this Court shall insure compliance of this order.
Order dated:18.12.2014 akverma