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.