Dowry; Kamlesh Vs. State of U.P. [Allahabad High Court, 06-06-2016]

Contents

Penal Code, 1860 – Ss.¬†498-A, 304-B, 201 –¬†Dowry Prohibition Act – 3/4 – Prosecution has successfully proved that : (i) Deceased died an unnatural death. (ii) She died within seven years of her marriage. (iii) She was subjected to cruelty by the appellant. (iv) Harassment was for demand of a Maruti 800 Car in dowry. (v) She was subjected to cruelty soon before her death.


HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Hon’ble Surendra Vikram Singh Rathore,J.

Hon’ble Anil Kumar Srivastava-II,J.

(Judgment delivered on 06.6.2016)

CRIMINAL APPEAL No. – 3034 of 2010

Appellant :- Kamlesh Respondent :- State Of U.P. Counsel for Appellant :- Pradeep Kumar Singh, Anil Mishra, Anuj Kumar,Pankaj Kumar Tripathi, Praveen Tripathi, S P Tripathi,Sail Mohan, Vijay Kumar Counsel for Respondent :- Govt. Advocate

(Per Anil Kumar Srivastava-II, J.)

1. Heard Shri Praveen Tripathi, learned counsel for the appellant and Shri Chandra Shekhar Pandey, learned A.G.A. on behalf of State.

2. Instant appeal has arisen out of the judgment of conviction and sentence passed by learned Additional Sessions Judge/ Special Judge Sitapur on 01.11.2010 in Sessions Trial No.842 of 2009, State Versus Kamlesh and others, Case Crime No.382/09, under

# Section-498-A, 304-B, 201 I.P.C., 3/4 Dowry Prohibition Act

Police Station – Machhrehata, District- Sitapur, whereby learned trial court has acquitted accused Siya Ram, Smt. Mithilesh and Shanti for the charges under Section-498-A, 304-B, 201 I.P.C. and 3/4 Dowry Prohibition Act. Accused appellant Kamlesh was convicted and sentenced under different sections as under :-

(i) Section-304-B I.P.C. – Imprisonment for life and fine of Rs.5000/- with default stipulation of two months.

(ii) Section – 498-A I.P.C. :- Rigorous imprisonment for two years and fine of Rs.5000/- with default stipulation of two months.

(iii) Section 201 I.P.C. :- Rigorous imprisonment of two years and fine of Rs.5000/- with default stipulation of six months.

(iv) Under Section-4 of Dowry Prohibition Act :- Rigorous imprisonment for one year and fine of Rs.2000/- with default stipulation of one month.

All the sentences to run concurrently.

3. According to the prosecution version, marriage of Pushpa Devi, aged about 25 years, daughter of complainant Rajendra Kumar was performed with accused-appellant Kamlesh Kumar about four years from the date of occurrence. One Splendor Honda motorcycle alongwith other articles and a cash of Rs.1,50,000/- was given in the marriage but mother of appellant Shanti Devi, elder brother Siya Ram, his wife Smt. Mithilesh Kumari and father Ram Autar were not satisfied and were demanding a Maruti 800 car in dowry. Complainant was not in a fit financial condition to meet out the demand. It is stated in First Information Report, which was lodged on 23.5.2009, that complainant was trying to talk to his daughter on phone for the last one month but every time appellant Kamlesh was taking a false excuse for not connecting the call to Pushpa. Then complainant went to Bahadurpur Kharg and met appellant. He asked him about Pushpa. Appellant told him that she has gone in a marriage alongwith all the family members. At that time appellant was alone in the house then complainant went to Sohan Lal who was mediator in the marriage and asked him about his daughter. Then he came to know that Pushpa is missing for the last one month. All the family members of appellant were also absconding. Complainant asked appellant to take him to his daughter then appellant told him that Pushpa is no more. When complainant insisted that dead body be shown to him then appellant took him to his new house and opened the lock and asked the complainant to come inside the house. Complainant got suspicious and made a call to his house but appellant ran away from there. Muskan, aged about two and half years daughter of Pushpa, was also missing. First Information Report was lodged by the complainant on 23.5.2009 which was registered at case crime no.382/09, under section-498-A, 304-B, 201 I.P.C. and Section- 3 / 4 Dowry Prohibition act.

4. Investigation was entrusted to Circle Officer Mishrikh. Statement of witnesses were recorded. Site plan of two houses of the appellant was prepared. On 29.5.2009, appellant was interrogated in police custody. On the pointing out of appellant, some bones of the dead body of Pushpa were recovered by the Investigating Officer near Betwa canal from Dhandhari forest which were sealed at the spot and recovery memo was prepared. Inquest proceedings were conducted on 29.5.2009 and bones were sealed and sent for postmortem. Postmortem was conducted by Dr. A.K. Mishra. Cause of death could not be ascertained, hence, bones and hair were kept in safe custody. On 07.6.2009, Kumari Muskan was recovered alongwith Siya Ram and Mithilesh. Sample of blood of Muskan for DNA test was obtained and was sent to Central Forensic Science Laboratory CBI, Ministry of Home Affairs, New Delhi, wherein report was received that the DNA Profile generated from the source of skull and piece of bone is consistent as biological mother of Kumari Muskan. After completion of the investigation, chargesheet was submitted against appellant, Shanti Devi, Mithilesh and Siya Ram.

5. In the statement under section-313 Cr.P.C. appellant has stated that he has no knowledge about the death of Pushpa Devi. Although it is admitted that his brother, his wife and mother are living separately. It is further admitted by him that the marriage was performed six years back from the date of recording of the statement. It is further stated that he was on duty in the PRD. He has given an application at the police station to trace out his wife in defence. An identity card of Prantiya Rakshak Dal Sitapur is filed alongwith certain papers of other co-accused.

6. After appreciating the evidence on record, learned trial court acquitted accused Siya Ram, Smt. Mithilesh and Shanti while appellant is convicted and sentenced as stated above.

7. Learned counsel for the appellant argued that the prosecution has failed to prove the guilt against the accused beyond reasonable doubt. It is further submitted that no demand of dowry was made by the appellant. It is further argued that there is no evidence that ‘soon before the death’ any demand of dowry was made. Skeleton of the dead body of Pushpa was not recovered on the pointing out of the appellant. It is further argued that at the time of alleged occurrence appellant was on his duty in PRD. He was also searching his wife and moved application at the police station but of no result. It is further submitted that in the First Information Report, name of the accused-appellant was not mentioned, rather it was an improvement in the Statement under Section-161 Cr.P.C. Charge under Section-304 – B I.P.C. is not proved. No alternative charge under section-302 I.P.C. was framed.

8. Per contra, learned A.G.A. submits that case against accused-appellant is fully proved beyond reasonable doubt. Learned trial court has given cogent reasons for arriving at the conclusion. A demand of Maruti 800 car was made by the accused-appellant which could not be fulfilled. Some bones of skeleton of the dead body of Pushpa were recovered on the pointing out of the appellant. Appellant has not given any explanation about the death of deceased who was his wife. Necessary ingredient under section-304 B are proved. Presumption under section-113 B Evidence Act would be drawn against the accused as deceased died within seven years of her marriage in abnormal circumstances in her in laws’ house for demand of dowry. It is further argued that a false defence has been taken by the appellant which itself is drawing link to prove the charges against the accused.

9. Before adverting to the factual matrix, we found it appropriate to discuss the legal proposition on the subject.

10. In

# Suresh Kumar versus State of Haryana 2014 (84) ACC 360

Hon’ble Apex Court has propounded the law as under :-

25. Learned counsel for Suresh Kumar made two submissions. It was firstly contended on the merits of the case that there was nothing to suggest that his client was guilty of an offence punishable under section 304-B of the I.P.C. are of importance. This section reads as under :-

# 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 purpose of this sub-section, “dowry” shall have the same meaning as insection 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.”

27. In a large number of decisions, this Court has indicated the ingredients of section 304-B of the I.P.C., which are now broadly accepted. In

# Pawan Kumar v. State of Haryana, (1998) 3 SCC 309

the ingredients were identified as :-

“(a) When the death of a woman is caused by any burns or bodily injury; or

(b) occurs otherwise than under normal circumstances;

(c ) and the aforesaid two facts spiring within 7 years of girl’s marriage;

(d) and soon before her death, she was subjected to cruelty or harassment by her husband or his relative;

(e) this is in connection with the demand of dowry.”

28. The ingredients of section – 304-B of the I.P.C. were rephrased in

# Kans Raj v. State of Punjab, (2000) 5 SCC 207

in the following words:

(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 years of her marriage:

(c ) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e ) to such cruelty or harassment the deceased should have been Subjected soon before her death.

29. The expression “otherwise than under normal circumstances” was explained to mean ” death not in the usual course but apparently under suspicious circumstances, if not caused by burns of bodily injury.”

30. A somewhat recent exposition is to be found in

# Hira Lal vs. State (Government of N.C.T.) Delhi2003 (9) AIC 117 (SC)

wherein this Court held that to attract the application of section-304-B of the I.P.C., 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.”

32. This ”formula’, though framed in different words by this Court, from time to time, conveys the same meaning of the essential ingredients of an offence punishable under Section-304-B f theI.P.C.

33. Importantly section – 304-B of the I.P.C. does not categorise death as homicidal or suicidal or accident. This is because death caused by burns can in a given case, be homicidal or suicidal or accidental. Similarly, death caused by bodily injury can in a given case, be homicidal or accidental. Finally any death occurring “otherwise than under normal circumstances” can, in a given case, be homicidal or suicidal or accidental. Therefore, if all the other ingredients of Section-304-B of the I.P.C. are fulfilled, any death (whether homicidal or suicidal or accidental) and whether caused by burns or normal circumstances shall, as per the legislative mandate, be called a “dowry death” and the woman’s husband or his relative “shall be deemed to have caused her death”. The section clearly specifies what constitutes the offence of a dowry death and also identifies the single offender or multiple offenders who has or have caused the dowry death.

34. The evidentiary value of the identification is stated in section – 113-B of the Evidence Act, 1872 (the Act). The key words in this section are “shall presume” leaving no option with Court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable. Section 113-B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him or her.

# 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 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.

Explanation – For the purpose of this section ”dowry death’ shall have the same meaning as insection 304-B of the Indian Penal Code (45 of 1860).”

36. That the presumption under section 113-B of the Act is mandatory may be contrasted with section – 113 A 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 304-B of the I.P.C.; 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 death of the woman but is entitled to rebut the statutory presumption of having caused a dowry death.”

11. In

# Pathan Hussain Basha versus State of A.P. (2012) 8 SCC 594

Hon’ble the Apex Court has laid down law on the point of burden of proof and shifting of onus. It was held that :-

“Applying these principles to the facts of the present case, it is clear that the ingredients of section-304-B read with section 498-A, I.P.C. are completely satisfied in the present case. By a deeming fiction in law, the onus shifts on to the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to expain as to how the death of his wife occurred. Denial cannot betreated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgments of the Courts under appeal.”

12. There are certain admitted facts in the case. It is admitted that the deceased Pushpa was wife of appellant Kamlesh. Their marriage took place within seven years of her death.

13. So far as the death is concerned, admittedly dead body of the deceased could not be found by the police. Rather some bones of skeleton were found on the pointing out of appellant. According to PW-1 Rajendra Kumar and PW-2 Raj Kumari who are father and mother of the deceased, deceased did not come to her parental house for about more than a month from the date when F.I.R. was lodged. Complainant Rajendra Kumar was continuously asking the appellant to connect the deceased on telephone, so that he may talk to her. It is a very natural conduct of the complainant but every time appellant makes a false excuse on one or the other pretext. Complainant was not able to talk to deceased. When complainant came to the house of appellant and asked about the whereabouts of his daughter again appellant cooked up a false story that she has gone in a marriage alongwith other family members. Fortunately, complainant enquired this fact from Sohan Lal who was a mediator in the marriage then he came to know about missing of the deceased. Here again conduct of appellant attains relevance. When complainant again asked him about the whereabouts of the deceased then appellant told him that she is no more in this world. A natural reaction of a father would be to know as to how his daughter was killed. At the same time, he would also like to see her dead body. So in a natural way complainant asked appellant to even show the dead body then appellant took him to his newly constructed house and asked the complainant to come inside the house. Complainant got scared that he may also be killed by the appellant then he made a call to his house. In the meantime, appellant ran away. Thereafter, appellant was arrested and on his pointing out skeleton of the deceased was recovered.

14. Admittedly, deceased was the wife of the appellant who was living with him. According to PW-1 Rajendra Kumar, appellant was demanding a Maruti 800 car in dowry which could not be provided which resulted in the death of his daughter Pushpa. PW-2 Raj Kumari, step mother of the deceased has also stated that the demand of a Maruti 800 car in dowry was made by the appellant. At this stage, we may usefully refer the evidence of Rajendra Kumar, father and Raj Kumari, mother of the deceased. Although, in the First Information Report specifically name of appellant was not mentioned who is demanding the dowry but in the Statement Rajendra Kumar has specifically stated that whenever deceased came back from her in-laws house she told them that her husband alongwith other members of family are demanding Maruti 800 car and are torturing her. Statement of PW-1 inspires confidence. Although it is admitted by him that no dowry was settled in the marriage but he has given sufficient amount in marriage, thereafter his daughter deceased was tortured for demand of Maruti 800 car. PW-2 Raj Kumari is step mother of the deceased. Mother of the deceased died when Pushpa was only two years old. Hence, Rajendra Kumar remarried with Raj Kumari. Raj Kumari was looking after Pushpa. Raj Kumari has also stated that whenever Pushpa comes to her parental house, then she told her that appellant alongwith his family members are demanding Maruti 800 car and are torturing her. It is admitted by PW-2 Raj Kumari that demand was not made to her but demand was made to Rajendra Kumar father of the deceased. It is a very natural conduct that the demand was made from father of the deceased. Hence, learned trial court has rightly concluded that the demand of Maruti 800 car was made by the appellant. Due to non-fulfilment of the demand deceased was tortured by the appellant.

15. At this stage, now we have to see as to whether deceased died in abnormal circumstances. So far as death of Pushpa is concerned her dead body was not found. Skeleton alongwith sari, piece of blouse, scalp hair were recovered by the Investigating Officer on 29.5.2009 on the pointing out of appellant in presence of complainant Rajendra kumar, his father Bhagwan Deen and one Ram Kumar son of Sukh Lal. Skeleton was recovered from Dhandhari forest near Betwa nullah. Recovery is proved by PW-1 Rajendra Kumar and PW-4 Martand Prakash Singh Circle Officer Mishrikh, who was also the Investigating Officer. PW-1 Rajendra Kumar has identified the skeleton on the basis of clothes of Pushpa. Thereafter, DNA test was conducted with the help of blood of Muskan daughter of Pushpa and appellant Kamlesh Kumar. DNA test report confirmed that the skeleton are the bones of biological mother of Muskan which confirms that the bones and skeleton was of Pushpa. It shows that Pushpa died in abnormal circumstances.

16. At this stage we can usefully refer to Section-8 and Section-106 of the Evidence Act which are as under :-

# 8. Motive, preparation and previous or subsequent conduct

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.”

# 106. Burden of proving fact especially within knowledge

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

17. Conduct of the accused becomes very relevant when he did not connect Pushpa on telephone with complainant father of the deceased. Thereafter, when complainant came and met the accused then he told him that Pushpa is no more in this world. On insistence by the complainant appellant took him to the house. When complainant was talking to his family members appellant ran away from the place.

18.

# Prakash Chand v. State (Delhi Administration), (1979)3 SCC 90

was a case of taking bribe of an amount of Rs.30 which was recovered from the file which was in possession of the accused/appellants it was held by the Apex Court that

“There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police officer in the course of an investigation which is hit by Section 162Criminal Procedure Code. What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act

[vide

# Himachal Pradesh Administration v. Om Prakash, (1972)1 SCC 249

(Emphasis added)

19. In

# A.N Venkatesh and Another v. State of Karnataka (2005)7 Supreme Court Cases 714

facts were similar to the present case. Son of complainant did not return from school the missing complaint was lodged. Ransom was demanded. At the place where ransom was to be paid. Accused were arrested by the police, they volunteered that they had kidnapped Madhu and they show the place from where dead body can be recovered, thereafter, they were brought to the police station and were interrogated, their disclosure statements were recorded. Thereafter, on their pointing out dead body was recovered. It was held by the Apex Court that:-

“8. The accused persons were apprehended near the spot where the ransom amount was supposed to be paid. The accused person’s presence at the place where they were arrested is a strong circumstance against the accused appellants. There was no apparent plausible reason for their presence alongside the railway track, loitering around a place which is quite far away from the place where they were residing viz., Hosadurga. Their conduct in running away when they saw the police party is also indicative of their guilty mind and is an important piece of evidence showing their conduct. No plausible explanation was given by the accused appellants for their presence at the spot where they were arrested, which was nearby the place indicated in the demand for payment of the ransom amount.

9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand Vs. State (Delhi Admn.) (1979)3 SCC 90. Even if we hold that the disclosure statement made by the accused appellants(Ex. P15 and P16) is not admissible under Section 27of the Evidence Act, still it is relevant under Section 8.”

(Emphasis added)

20. Now the burden shifts upon the appellant as to how his wife died in abnormal circumstances. No explanation about death of deceased is given by the appellant. Rather he has shown his ignorance about the death of deceased. Deceased was his wife. He was under legal obligation for the safety and security of his wife. Instead of keeping her secure, he himself killed her and thrown the body in a forest.

21. In a recent judgment

# Rajendra Singh vs. State of Punjab (2015) 6 SCC 477

three judges Bench of the Hon’ble Apex Court has reiterated the necessary ingredients of Section-304 B I.P.C. Further definition of word ‘dowry’ was also incorporated in para 20 of Judgment given in

# Appasaheb versus State of Maharashtra (2007) 9 SCC 721

and

# Vipin Jaiswal versus State of A.P. (2013) 3 SCC 684

were held to be not good law. It was held that :-

“We therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise.”

22. Interpretation of “soon before her death” was also made. It was held in para 24 that :-

“We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word “soon” does not mean “immediate”. A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment ofSection 304-B would make it clear that the expression is a relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B.”

23. In the present case, demand of Maruti 800 car was continuously being made by the accused appellant which could not be fulfilled. Consequently, deceased Pushpa was killed and her dead body was also thrown in a forest. In such circumstances, it cannot be said that demand of dowry soon before her death was not made.

24. Further presumption under section – 113 B also comes into play. Burden lies upon the appellant to show as to how his wife died in abnormal circumstances within seven years of the marriage but instead of giving any explanation of the death accused has stated in his statement under section-313 Cr.P.C. that his duty was in PRD. He has moved an application at the police station for search of his wife. So far as the death of Pushpa is concerned he has stated that he has no knowledge about the death of Pushpa. Appellant has taken a defence that he was on duty in PRD. Although specific plea of alibi is not taken but impliedly appellant made an attempt to raise the plea of alibi. No evidence is adduced to prove it, even no explanation of the death of the deceased was given by him. Accused-appellant has taken a false defence.

25. Hon’ble the Apex Court in the case of

# Ravirala Laxmaiah v. State of Andhra Pradesh reported in (2013) 9 SCC 283

in paragraphs 20, 21, 22 and 23 has observed as under:-

“20. It is a settled legal proposition that in a case based on circumstantial evidence, where no eye-witness’s account is available, the principle is that:

“6. ….. when an incriminating circumstance is put to the accused and the said accused either offers no explanation [for the same], or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.

(Vide:

# State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045

# Gulab Chand v. State of M.P. AIR 1995 SC 1598

# State of Tamil Nadu v. Rajendran AIR 1999 SC 3535

# State of Maharashtra v. Suresh (2000) 1 SCC 471

# and

# Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731

26. In

# Neel Kumar @ Anil Kumar v. State of Haryana (2012) 5 SCC 766

Hon’ble Apex Court observed:

“30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement Under Section 313 Code of Criminal Procedure. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him.

(See also:

# Aftab Ahmad Anasari v. State of Uttaranchal AIR 2010 SC 773

27. In cases where the accused has been seen with the deceased victim (last seen theory), it becomes the duty of the accused to explain the circumstances under which the death of the victim has occurred. (Vide:

# Nika Ram v. the State of Himachal Pradesh AIR 1972 SC 2077

# Ganeshlal v. State of Maharashtra (1992) 3 SCC 106

and Ponnusamy (supra).

28. In

# Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681

it was held:-

“22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.”

29. Hon’ble the Apex Court in the case of

# Rameshbhai Mohanbhai Koli v. State of Gujaratreported in (2011) 11 SCC 111

in paragraph 30 has observed as under:-

“30. The appellants herein have denied the factum of recoveries at their instance is a false plea inasmuch as the recoveries have been duly proved by the prosecution by leading cogent and reliable evidence which has not been shaken by the defence. A false plea taken by an accused in a case of circumstantial evidence is an additional link in the chain of circumstances.

[Vide

# Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116

# and

# Mehbub Samsuddin Malek and Ors. v. State of Gujarat (1996) 10 SCC 480

30. Hon’ble the Apex Court in the case of

# Joshinder Yadav v. State of Bihar reported in (2014) 4 SCC 42

in paragraph 19 has observed as under:-

“19. Pertinently, the post-mortem notes do not indicate presence of huge amount of water in the dead body. According to PW-12 Dr. Mandal, in a case of drowning, if immediate death is caused, then, there will be negligible quantum of water in the stomach. From the evidence of PW-12 Dr. Mandal, it appears that the death of Bindula Devi occurred immediately after she was drowned in the water because there was not much water in her stomach. It is also pertinent to note that Bindula Devi was pregnant. Her uterus contained full term dead male baby. She could not have, therefore, offered any resistance. It appears that, therefore, there were no injuries on the dead body. The whole operation appears to have been done swiftly and skillfully. But in any case, as stated hereinabove, it is not for the prosecution to explain in what manner Bindula Devi was done to death by the accused because Bindula Devi was staying in the house of the accused prior to the occurrence and she disappeared from that house. All the circumstances leading to her unnatural death were within the special and personal knowledge of the accused which they chose not to disclose. Instead, they gave a totally false explanation that when Bindula Devi had gone for bath, she slipped, got drowned in the water and died. This story is palpably false. The false explanation offered by the accused further strengthens the prosecution case as it becomes an additional link in the chain of circumstances.”

31. Hon’ble the Apex Court in the case of Kuldeep Singh v. State of Rajasthan reported in (2000) 5 SCC 7, in paragraphs 18 and 19 has observed as under:-

“18. In the case of Swapan Patra v. State of West Bengal : it has been held that it is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. The same principle is reiterated in the case of State of Maharashtra (2000) 1 SCC 471 . In this case it has been held that a false answer offered by the accused when his attention was drawn to a circumstances renders that circumstance capable of inculpating him. It is held that in such a situation like this a false answer can also be counted as providing “a missing link” for completing the chain.

19. The false answer given by Appellant No. 4 denying that she had left the Ramleela programme provides the additional link or a missing link in completing the chain of circumstances.”

32. Appellant has taken an untrue defence which completes the chain of circumstances. Admittedly, dead body of Pushpa could not be recovered. Some bones alongwith sari, piece of blouse and scalp hair were recovered which were proved to be of Pushpa by DNA test. A false plea of alibi was taken by accused. No explanation of death was given which completes the necessary ingredients of Section-304 B I.P.C. read with section 113 B of the Evidence Act. Such are the circumstances and evidence which clearly proves the guilt of the appellant who has murdered his wife and disposed of her body.

33. Prosecution has successfully proved that :-

(i) Deceased died an unnatural death.

(ii) She died within seven years of her marriage.

(iii) She was subjected to cruelty by the appellant.

(iv) Harassment was for demand of a Maruti 800 Car in dowry.

(v) She was subjected to cruelty soon before her death.

34. It is a case where a charge under section 302 I.P.C. in alternative should have been framed by the learned trial court. The learned trial court has failed to frame a charge under section-302I.P.C. which was an error on the part of the learned trial court, however, at this stage, we are not inclined to send back the matter to the learned trial court for framing a charge under section 302I.P.C. in alternative.

35. We are of the considered view that the learned trial court has correctly appreciated the evidence on record and has convicted and sentenced the appellant accordingly. We do not find any merit in the appeal. Appeal lacks merit and is liable to be dismissed. Appeal is accordingly dismissed. Judgment of the learned trial court is affirmed. Appellant is in jail. He shall serve out the sentence as imposed by the learned trial court.

36. Office is directed to certify this order to the learned trial court to ensure compliance. Office is further directed to transmit the lower court record forthwith.

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