Ram Sewak and Another vs State of U.P.

Yogendra Kumar Sangal, J.—This appeal is at the instance of two accused-persons namely Ram Sewak and Siya Ram who were convicted by the Second Additional Session Judge, Lakhimpur Kheri in S.T. No. 495 of 1996 State v. Ram Sewak and Ors related to Case Crime No. 220 of 1995, P.S. Hyderabad, District Lakhimpur Kheri u/s 498A and 304B IPC and 3/4 D.P. Act. They both have been held guilty by the learned Session Judge and sentenced for the offence u/s 304B IPC for a term of 10 years and Siya Ram has also been sentenced by five years rigorous imprisonment and a fine of Rs. 15,000/-; u/s 3 of D.P. Act and accused Ram Sewak was sentenced u/s 4 of D.P. Act for 6 months rigorous imprisonment and to fine of Rs. 8,000/-and in default of payment of fine to undergo for two years simple imprisonment. All the sentences held to run concurrently. It was further held that out of the amount deposited by the accused-persons as fine Rs. 20,000/-will be paid to the informant as a compensation.

As per prosecution case and version of the FIR which was lodged on 20.11.1995 by the informant Mahadeo that marriage of his daughter Sunaina took place with the accused Ram Sewak according to Hindu rights and customs three years before of her death. Ram Sewak used to torture and harass his daughter for the purpose of fulfillment of his demand of dowry of 4 bigha land. He was not ready to give this land to the accused because he was having five sons. Uncle of the accused Ram Sewak namely Siya Ram used to instigate Ram Sewak saying that if she will be harassed informant will give him 4 bigha land. On 17.11.1995 at about 9.00 A.M., death of his daughter taken place by hanging. He received the information of the same on 18.11.1995 and when he was going Ahmed Nagar, in the way in town Gola he saw that the dead body of his daughter is being taken to mortuary. He went to Lakhimpur Kheri with dead body where post-mortem of body taken place on 19.11.1995. Dead body of his daughter was brought at Ahmed Nagar where last rites and its cremation taken place. On this report, a case u/s 498A and 304B IPC and 3/4 D.P. Act was registered against both the accused-persons at the police station concerned.

Police started investigation in the matter. Panchayatnama, Photo lash, challan lash, letter to C.M.O. and R.I. for the purpose of post-mortem of dead body were prepared. Dead body was sealed and sent for post-mortem to mortuary along with police papers where post-mortem of body has taken place. Doctor found ante-mortem injuries on the body and given details in the post-mortem report and as per opinion of the doctor death took place due to asphyxia as a result of ante-mortem hanging. This report was collected by the investigating officer. Site plan of place of occurrence was prepared. Statement of witnesses were recorded and after concluding the investigation, charge-sheet was submitted against both the accused for their trial for the offence u/s 498A and 304B IPC and 3/4 D.P. Act.

After taking cognizance in the matter, the case was committed to the court of Session as the case was exclusively triable by the court of Session, where learned Session Judge has framed charges against both the accused for the offence u/s 498A and 304B IPC and 3/4 D.P. Act and in alternative u/s 302/34 IPC also. Both the accused have denied the charges leveled against them and pleaded not guilty and claimed their trial.

On behalf of the prosecution four witnesses were examined. PW-1 Mahadeo informant and father of the deceased; PW-2 Smt. Jai Devi mother of the deceased and witnesses of the fact were examined. They have tried to support the version of the FIR and case of the prosecution; PW-3 Dr. D.P. Singh conducted post-mortem on the dead body. He had given the details of ante-mortem injuries found by him on the body. He also given the condition of the body and result of internal examination of same. He opined that injury No. 2 and 3 were inflicted by the blunt object. He proved the post-mortem report Exhibit-Ka-2; PW-4 Investigating Officer Sri K.N. Singh had given the details of investigation and also proved the documents prepared by him during the course of investigation. He also stated that after investigation, he had submitted the charge-sheet against both the accused-persons.

In their statement u/s 313 Code of Criminal Procedure both the accused have admitted that marriage of Ram Sewak with Sunena alias Nanhi has taken place three years before of her death according to the Hindu rites but they have denied the rest case and evidence of the prosecution and pleaded that they have been falsely implicated in this case due to enmity. In addition Ram Sewak stated that when the occurrence took place he was not at his house. He was in Gola and only receiving the information he went there. Siya Ram had stated that he live in separate house and he does not go to the house of his nephew Ram Sewak. No evidence in defence either oral or documentary was adduced on their behalf.

After going through the record and hearing learned Counsel for the parties, learned trial court held guilty and sentenced to both the accused as above. Aggrieved by this judgment and order, this appeal has been filed by both the accused.

Heard learned Counsel for the accused-Appellants and learned AGA for the State and perused the record.

Undisputed facts of the case are that marriage of deceased Smt. Sunaina with accused Ram Sewak has taken place three years before her death. Co-accused Siya Ram is the "Chacha" of the accused Ram Sewak covered with the definition of near relative as provided u/s 304B IPC and Section 113B of Evidence Act. Death of daughter of Mahadeo informant namely Sunaina alias Nanhi has taken place within seven years of her marriage, it is also not disputed. Although it was tried on behalf of the accused to say that Sunaina and Nanhi are two different ladies but with the reference of statement of Investigating Officer, learned trial court has dealt this argument of learned Counsel for the accused-Appellant and held that Sunena was also called with the name of Nanhi, it is established from the record. At the time of argument before this Court, this issue was not again raised by the learned Counsel for the accused-Appellants. Her death took place due to asphyxia result of ante-mortem hanging stated by the doctor and also reported by him in post-mortem report. Her death as such took place, it is also not disputed on behalf of the accused-Appellants. This all shows that undisptuedly her death took place within seven years of her marriage otherwise then under normal circumstances.

There are allegations against the accused-Appellants of demand of dowry made by them of 4 bigha land from deceased and her the parents. This demand was made by Ram Sewak as well as Siya Ram both, it is there in on oath statement of PW-1 Mahadeo and PW-2 Smt. Jaidevi who are the parents of the deceased. It is also there in their statement that Siya Ram also used to press Ram Sewak for this demand through the daughter of the informant saying that if she will be harassed and tortured, their demand shall be fulfilled. As such is also mentioned in the FIR lodged at the police station by the informant. This death has taken place in the morning of 17.11.1995. As per prosecution case, information was received by the informant on 18.11.1995. Post-mortem of the dead body was conducted on 19.11.1995 and FIR was lodged by the informant after cremation of the dead body on 20.11.1995, it is also clear from the evidence available on the record. Although, it is stated on behalf of the accused that there is delay in lodging the FIR but the learned Sessions Judge giving detailed and sufficient reasons did not agree with this argument. He has also discarded the arguments of learned Counsel for the accused that there is consultation and deliberation on behalf of the informant in lodging the FIR. There is no reason to differ this findings of learned Sessions Judge in the facts and circumstances of the case.

Nowhere specifically said either u/s 313 Code of Criminal Procedure by both the accused or by adducing defence evidence how she died and argument was raised by the learned Counsel for the accused-Appellant that she has committed suicide but why she has committed suicide, it is not clear from the statement of the accused-Appellants and also not explained by them by adducing defence evidence in this regard. One out of the two accused is husband of the deceased. At least from him it is expected that he should explain under what circumstances, as to why she has committed alleged suicide but no such information in this regard has been given by him in the statement u/s 313 Code of Criminal Procedure.

Section 498A and 304B IPC provides as follows:

Section 498A.-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.

Section 304B(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.

(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.

Provisions are also made u/s 113A and 113B of the Indian Evidence Act which are as follows:

Section 113A. Presumption as to abetment of suicide by a married woman.-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Section 113B. 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 has 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.

With a view to curb the sparingly number of cases where demand of dowry leads to loss of life Dowry Prohibition (Amendment) Act, 1986 brought about sweeping change in the Penal statue u/s 304B IPC and Section 113B of the Indian Evidence Act came to be force.

A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of natural and accidental death so as to bring it within the purview of the death occurring otherwise then in normal circumstances. In the present case, it cannot be said and even it can be presumed that it is a case of natural or accidental death of the lady in the facts and circumstances of the case. She was only 23 years of age at the time of her death. Only three years were elapsed to her marriage till that time. An argument was raised that as she could not deliver baby out of the wedlock so she might have committed suicide. It was also suggested to the prosecution witnesses that her father was keeping her jewellery and not returning the same so she might have committed suicide. As earlier said only three years elapsed to her marriage, no such unusual time was elapsed to say that she cannot deliver baby. Neither by suggestion to the prosecution witnesses nor in the statement u/s 313 Code of Criminal Procedure both the accused have stated that she had committed suicide for the aforesaid reasons. Moreover she was having two more ante-mortem injuries of contusion on her body as per post-mortem report. Learned Counsel for the accused-Appellant argued that these injuries may be result of as her dead body was being taken to mortuary in bullock-cart and due to irregular pathway, possibility cannot be ruled out of these injuries by the impact of cart-wood. No such suggestion was given to the doctor and no inquiry in this regard was made from him. Nowhere, as such, said by the accused-persons in their statement u/s 313 CrPC. Presence of these unexplained injuries also rule out the possibility of the case of the suicide as stated on behalf of the accused-Appellant.

Learned Counsel for the Appellant argued that to establish case of dowry death, cruelty and harassment are to be proved and these must be for or in connection of demand of dowry. It is a case of the prosecution since very beginning i.e. from the FIR that there was demand of 4 bigha land by both the accusedpersons and informant was showing his inability to fulfill their this demand saying that he is having five sons. It is also their in the statement of both witnesses PW-1 and PW-2 who are father and mother of the deceased from whom this demand was made. They both are family member of the deceased and natural witnesses to state so. It is also in their statement that they made complaint of this demand by the accused to Village Chowkidar and Pradhan. It is also in evidence that co-accused Siya Ram who is real uncle of accused Ram Sewak used to instigate Ram Sewak to harass and torture to the victim only then this demand will be fulfilled by the parents of the deceased.

Real father and mother of accused Ram Sewak still alive. They are not joined as accused in the FIR of the case. Admittedly, Siya Ram lives in separate house. Learned Counsel for the Appellant argued that he was not going to be benefited by this demand by instigating Ram Sewak. Learned Sessions Judge in the impugned judgment had dealt this argument saying that his father and mother may be person of good character. They might have not press demand but if Siya Ram (real uncle) who is admittedly near relative as defined u/s 304B IPC and u/s 113B Evidence Act was pressing this demand, there is no unnaturality in it. If he was not involved as such why he has been falsely implicated in this case leaving father and mother of the accused Ram Sewak,it is not sufficiently explained. It was suggested that some altercation took place during the last rites of the deceased with him of complainant so he has been falsely involved in the matter. No evidence in support was adduced on behalf of the accused. Nowhere as such said by accused Siya Ram in his statement u/s 313 CrPC. Merely due to this alleged altercation, he will be falsely involved, it is not probable and believable. Leaving father and mother of accused Ram Sewak involving Siya Ram in the matter suggests that he was involved in this demand and harassment of the deceased so he was named in the FIR and also on oath statement by the parents of the deceased. Informant in the matter came with clean hands, as they have not falsely implicated to the mother and father of the accused Ram Sewak. The learned trial court had dealt this argument of the learned Counsel for the Appellant in its judgment in Para No. 13 and 14 of judgment and with reference of statement of PW-1 Mahadeo at Page 6 has clarified in this regard. There is no reason also to differ with the findings of the learned trial court in this regard.

It was further argued that another necessary ingredients for establishing dowry death is that demand and cruelty should be soon before death of the deceased which is not proved in the present case. Only three years have passed to the marriage of Ram Sewak and deceased. When the statement of PW-1 was recorded in the year 1997, he stated that the demand by accused Siya Ram was made two years before i.e. in the year 1995 when this occurrence has taken place. It is also said by him that at same time his daughter was beaten for non-fulfillment of this demand. Period of 2-3 years after marriage is not so long that it cannot be taken within the definition of soon before death. Hon''ble Apex Court in Uday Chakraborty and Others Vs. State of West Bengal, had laid down that if within two years of marriage death took place, entire two years period will be relevant for the purpose of soon before death.

There cannot be any strait-jacket formula for deciding question that would amount of soon before death. However, it can be said that there must be some proximate and live-link between effect of cruelty and dowry demand and concern death but there is no proximity and live-link in the matter it cannot be said in the facts and circumstances of the case. In Kamlesh v. State 2005 SCC 511, it has been laid down by the Hon''ble Apex Court as follows

Marriages are made in heaven, is an adage. A bride leaves the parental home for the matrimonial home, leaving behind sweet memories therewith a hope that she will see a new world full of love in her groom''s house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects not only to be a daughter-in-law, but a daughter in fact. Alas ! The alarming rise in the number of involving harassment to the newly wed girls for dowry shatters the dreams. In-laws are characterized to be outlaws for perpetrating terrorism which destroys the matrimonial home. The terrorist is dowry, and it is spreading tentacles in every possible direction.

Giving detailed and sufficient reasons, scrutinizing the evidence with panic eyes, learned trial court held guilty to the accused-Appellants for the offences for which the accused persons were charged. In alternate charge u/s 302/34 IPC was also framed against the accused-Appellants as there was no evidence before the learned trial court for this charge, and already accused-Appellants were held guilty for the offence u/s 304B IPC so charge u/s 302/34 IPC become redundant and if no specific order has been passed for this charge, it will not make any effect in the matter. Already lenient view was taken by the learned Sessions Judge and almost minimum prescribed sentence was awarded to the accused persons. I do not find any force in the appeal of the accused-Appellants. Appeal has no force and is liable to be dismissed.

Accordingly, the appeal of the accused-Appellants Ram Sewak and Siya Ram is hereby dismissed. Finding of conviction and order of awarding sentence by the trial court to them is hereby confirmed. Accused persons-Appellants are on bail. Their bail are hereby cancelled. They are not present in the Court today. Copy of the judgment along with the record be sent to the trial court to procure their attendance and to sent them in jail to serve out the sentence awarded to them. Compliance report be sent by the the trial court to this Court immediately.