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2023 DAILYLAW 3419 (ALL)

Sudhir Rajbhar v. State of U. P.

2023-03-01

Ashwani Kumar Mishra, Nalin Kumar Srivastava

body2023
JUDGMENT 1. This appeal is by the accused appellant Sudhir Rajbhar challenging the judgment and order of conviction and sentence, dated 08.02.2019, passed by the 3rd Additional Session Judge, Ballia in Session Trial No. 123 of 2017 (State vs. Sudhir Rajbhar and another) arising out of Case Crime No.301 of 2017, Police Station- Rasara, District- Ballia, whereby he has been convicted and sentenced to life imprisonment for the offence under Section 304B I.P.C., further to undergo rigorous imprisonment of three years for the offence under Section 498A I.P.C. with a fine of Rs. 5,000/- in default thereof, to undergo three months additional simple imprisonment, further to undergo two years rigorous imprisonment for the offence under Section 4 of Dowry Prohibition Act with a fine of Rs.2000/- in default thereof, to undergo three months additional simple imprisonment. All the sentences are to run concurrently. 2. The prosecution case proceeds on the basis of the written report (Ex.Ka-1) as per which the informant Sohan Rajbhar, who is the resident of district Mau had solemnized the marriage of her daughter with accused appellant on 29.04.2016. Ever since the marriage, the informant’s daughter (deceased) was being harassed for demand of dowry. There had been hot talks between the informant and the accused appellant. It is alleged that on 2.3.2017 informant’s daughter was given poison and has been done to death by the mother-in-law, father-in- law, husband and two brothers & their wives. There was persistent demand of dowry at their instance. The name of the deceased is Anju who was 21 years of age. On the basis of the aforesaid written report, case crime no. 301 of 2017 was registered under Sections 498-A, 304-B I.P.C. The inquest followed in which the mother of the deceased and her father and brother were witness. No external injury was noticed on the body of the deceased and the inquest witnesses resolved that post mortem be conducted to ascertain the cause of death. The body was accordingly sent for post mortem. It is worth noticing that in the inquest report no time is mentioned with regard to the commencement or its conclusion. The post mortem has been conducted on 2.3.2017 at about between 1.00 pm to 4.30 pm. The autopsy surgeon found no injuries on the body of the deceased and the cause of death accordingly could not be ascertained. The viscera was preserved. The post mortem has been conducted on 2.3.2017 at about between 1.00 pm to 4.30 pm. The autopsy surgeon found no injuries on the body of the deceased and the cause of death accordingly could not be ascertained. The viscera was preserved. The statement of witnesses was recorded including that of the father, uncle and cousin of the deceased. The witnesses alleged that the deceased has been done to death on account of demand of dowry. The viscera report (Ex.Ka-25) was also received wherein insecticide poison was found in the intestine, stomach, liver and kidney of the deceased. Ultimately, investigation concluded with submission of charge sheet against the appellant and also his parents, who were the father-in-law & mother-in-law of the deceased, however, two brothers of the accused appellant and their wives were exonerated of the charges at the stage of submission of the charge sheet. The concerned Magistrate took cognizance in the matter and referred the case to the Court of sessions by which the offence was exclusively triable. 3. The trial proceeded in which charges were framed against the accused appellant on 17.07.2017 under Section 498A and 304 B I.P.C. Alternative charge was also framed under Section 302 I.P.C. and Section 4 of the Dowry Prohibition Act for demand of motor cycle and Rs.1,50,000/- cash. 4. The trial commenced in which the informant has been produced as P.W.1. He has stated that marriage of his daughter was solemnized on 29.4.2016 and his daughter has been poisoned, as the demand of dowry was not fulfilled. He has stated that the in-laws of the deceased were demanding a motor cycle and Rs.50,000/- cash. The deceased was also physically assaulted for such purposes. He has stated that on 1.3.2017 his daughter has been poisoned. The accused appellant telephonically informed P.W.1 that the deceased was not well, therefore, he may come and when he reached the place of in-laws, he found the dead body of his daughter. On receiving information, various other relatives came on the spot and the written report was got scribed by one Chardrajeet Rajbhar. This witness has proved the written report and has also disclosed the names of the in-laws as Ram Narayan and Meena Devi. P.W.1 has been cross-examined in which he has stated that the accused appellant informed him that his daughter has consumed poison. This witness has proved the written report and has also disclosed the names of the in-laws as Ram Narayan and Meena Devi. P.W.1 has been cross-examined in which he has stated that the accused appellant informed him that his daughter has consumed poison. He has further stated that on receiving the information he reached the house of the accused at about 5.00 in the morning. The police personnels had not completed any formality by then. The I.O. reached at about 9.00 in the morning. Various other relatives were present. This witness has stated that after conclusion of inquest he came to the police station at about 12.00 for lodging the FIR. P.W.1 in his cross examination has disclosed about his visit to the house of accused appellant a few days prior to the death of his daughter in connection with a birthday party, where from he returned happily. 5. This witness has been confronted with his statement under Section 161 Cr.P.C. wherein he had not disclosed about contents of dowry demand. He has admitted that the amount of demand of dowry has not been informed by him to the I.O. He has also stated that the accused appellant and his parents were arrested after the post mortem was conducted. 6. P.W.2 is one Raj Kumar Mishra, who has solemnized the marriage of the deceased with the appellant. 7. P.W.3 Gyan Chandra is the uncle of the deceased, who has stated that father of the accused was demanding Rs.50,000/- cash and a motor cycle as dowry. He has also supported the prosecution case with regard to the harassment meted out to the deceased for such purpose. In the cross examination this witness has stated that he lived in Delhi and had come to the village four days days prior to the marriage of the deceased. He has stated that a motor cycle was given in dowry but the make of vehicle is not known to him. This witness has clearly admitted that information with regard to demand of dowry was received by him from his son i.e. P.W.3 . He has stated that Rs.50,000/- was being demanded in cash and not Rs.1.5 lac. This witness has also stated that though motor cycle was given in dowry but the same was not of good quality and the in-laws wanted a better motor cycle. He has stated that Rs.50,000/- was being demanded in cash and not Rs.1.5 lac. This witness has also stated that though motor cycle was given in dowry but the same was not of good quality and the in-laws wanted a better motor cycle. This witness, however, has been confronted with his previous statement where such assertion has not been made. 8. P.W.4 Harish Kumar is the cousin of the deceased and son of P.W.3. He has also supported the prosecution case with regard to administering poison to the deceased due to demand of dowry. He had arrived in the village after the cremation was done. This witness is employed in CISF and is presently posted at Jharkhand. He has clearly stated that a super splender motor cycle and Rs.30,000/- was given as dowry in the marriage. He has also admitted that the contents of demand of dowry were not specified by him to the I.O. He further stated that a motor cycle and Rs.50,000/- was being demanded towards dowry. He has also stated that the deceased was otherwise harassed on the premise that she was a lady of loose virtues. He has categorically stated that he did not inform any member of the family that a motor cycle or cash was being demanded by accused appellant. This witness has been confronted with his statement made under Section 161 Cr.P.C. where he has not disclosed the I.O. about demand of Pulsar motor cycle by the accused persons. This witness also denied that the marriage of the accused appellant with the deceased is love marriage. 9. P.W.5 Dr. M.K. Singh is the autopsy surgeon, who has proved the post mortem report, as per which no visible mark of injury was noticed on on the body of the deceased. On suspecting poisoning of the deceased he has preserved the viscera. 10. P.W.6 Sri Ram is the Investigating Officer of the present case. He has explained the manner in which the investigation has been conducted in the present case. On suspecting poisoning of the deceased he has preserved the viscera. 10. P.W.6 Sri Ram is the Investigating Officer of the present case. He has explained the manner in which the investigation has been conducted in the present case. In his cross examination he has admitted that the contents of dowry demand was not disclosed to him by any of the prosecution witnesses while their statement was recorded under Section 161 Cr.P.C. He has also admitted that the doctor at the Community Health Centre had informed him that the deceased was brought to the Community Health Centre by her family members in the night itself. He has also stated that P.W.4 Harish Kumar Singh had not informed him that the accused were demanding Pulsar motor cycle in dowry nor had informed him that a motor cycle along with Rs.50,000/- was given as cash at the time of marriage towards dowry, instead, Gyan Chand in his statement under Section 161 Cr.P.C. had told the Investigating Officer that Rs.1.5 lacs and a motor cycle was being demanded which was not mentioned in his statement under Section 161 Cr.P.C. This witness has also proved the charge sheet submitted in the matter. 11. P.W.7 Mukesh Kumar Singh is the Tehsildar who is the witness of inquest and has proved the inquest proceedings. This witness has stated that at the time of inquest the in-laws and husband of the deceased along with other relatives including the family members of the deceased were present. He has also stated that at the time of inquest none made any complaint with regard to demand of dowry. 12. P.W.8 Nand Lal Yadav is the Constable who has proved the Chick FIR. He has also stated that the main accused has wrongly been mentioned as Sudil in place of Sudhir. 13. On the basis of evidence led in the matter by the prosecution the incriminating material was confronted to the accused for recording his statement under Section 313 Cr.P.C. The accused has admitted that he got married to the deceased in a temple. He has stated that a false report has been lodged in the matter in collusion with the informant and he has been falsely implicated. In reply to question no.12 the accused has stated that he had solemnized marriage out of his own free will with the deceased and no dowry was exchanged at the time of marriage. He has stated that a false report has been lodged in the matter in collusion with the informant and he has been falsely implicated. In reply to question no.12 the accused has stated that he had solemnized marriage out of his own free will with the deceased and no dowry was exchanged at the time of marriage. He has stated that on the date of incident due to inadvertence, on account of it being dark the deceased had consumed insecticide thinking it to be a cough syrup. After this fact got revealed, he rushed the deceased to the Primary Health Centre and the the family members were also informed. The deceased was referred to District Hospital, Ballia, but while on way she died. 14. The defence has adduced Mohd. Kurbaan as D.W.1, who has stated that on hearing commotion he rushed to the house of the accused and there the deceased informed him that on the mistaken belief of cough syrup she has consumed insecticide. The family members immediately rushed her to the Community Health Centre where she was referred to District Hospital. He has also stated that the accused appellant had immediately informed of the incident and the manner in which insecticide was consumed to the father of the deceased on phone and they arrived shortly but on account of their greed a false FIR has been lodged. 15. D.W.2 is one Ram Awadh Rajbhar who has also supported the defence version as per which the deceased was rushed to Community Health Centre as she had consumed insecticide thinking it to be cough syrup. He has also denied of any demand of dowry from the deceased and her family members. 16. On the basis of evidence so led in the matter the trial Court has come to the conclusion that the deceased has been poisoned as demand of dowry was not fulfilled by the family members of the deceased. The statement of prosecution witnesses have been relied upon as their testimony was found credible and reliable. 16. On the basis of evidence so led in the matter the trial Court has come to the conclusion that the deceased has been poisoned as demand of dowry was not fulfilled by the family members of the deceased. The statement of prosecution witnesses have been relied upon as their testimony was found credible and reliable. Further finding has been returned that the death of the deceased occurred within a period of seven years of her marriage, in an unnatural circumstance, and since specific allegation with regard to the demand of dowry was otherwise made by the prosecution witnesses, therefore, necessary ingredients to invoke the offence under Section 304-B I.P.C. read with Section 498A I.P.C. and Section 4 D.P. Act are clearly made out. The accused appellant has accordingly been convicted and sentenced in the present case. 17. Shri Kamal Krishna, learned senior counsel assisted by Shri Tarkeshwar Yadav, learned counsel for the appellant submits that this was a case of accidental consumption of poison by the deceased, who thought the insecticide to be cough syrup in the dark. Submission is that the family members acted bona fidely and not only the parents of the deceased were immediately informed on telephone but the victim was rushed to the Community Health Centre in the night itself and all reasonable efforts was made to save her. He has also urged that demand of dowry is neither substantiated by any evidence nor the statement of witnesses in that regard were consistent and reliable. Further submission is that the prosecution witnesses have themselves admitted that a few days prior to the incident the parents of the deceased had visited the family of the accused in connection with a birthday party and had not raised any grievance, whatsoever. Contention is that conduct of the family members of the deceased clearly proved that the relationship between the two families was cordial. It is also pointed out that no prior complaint was ever made with regard to the demand of dowry and the allegations made for the first time by way of lodgement of FIR is not supported by the prosecution witnesses. Contradictions are pointed out in the testimony of prosecution witnesses to show that the allegation with regard to demand of dowry is not made out, therefore, necessary ingredients to attract the offence under Section 304 B are missing. Contradictions are pointed out in the testimony of prosecution witnesses to show that the allegation with regard to demand of dowry is not made out, therefore, necessary ingredients to attract the offence under Section 304 B are missing. Learned senior counsel also submits that the defence version has also not been examined in correct perspective. It is, therefore, urged that the finding returned by the trial Court that the prosecution has established its case beyond reasonable doubt is clearly a perverse finding, which is unsustainable in law and consequently, the appeal ought to succeed. He also submits that the accused appellant is languishing in jail for the last 7 years and is not having any criminal history. 18. Mrs. Archana Singh, learned A.G.A. on the other hand has supported the reasoning contained in the judgement of the Court below, in order to submit that the prosecution witnesses have clearly established the occurrence of crime at the hands of the deceased, who had poisoned his own wife as the demand of dowry was not fulfilled. 19. We have heard learned counsel for the parties and have carefully perused the record of the present appeal and also the lower Court record. 20. The charge against the accused appellant is of committing the offence under Section 498A, 304-B I.P.C. read with Section 4 D.P. Act. An alternative charge was also framed under Section 302 I.P.C. but the same has not been found proved by the Court. 21. Before evaluating the evidence brought on record by the prosecution, it would be apposite to refer to Section 304B I.P.C which defines dowry death. Sub-section-1 provides that where the death of a woman 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”. Sub-section-2 provides that any one who 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. Section 498A I.P.C., which is the other offence allegedly committed by the accused appellant contemplates cruelty by the husband or relative of husband of a woman which is punishable by imprisonment for three years. 22. Section 498A I.P.C., which is the other offence allegedly committed by the accused appellant contemplates cruelty by the husband or relative of husband of a woman which is punishable by imprisonment for three years. 22. This Court is, therefore, required to examine as to whether necessary ingredients to prove the commissioning of the above offences is shown to exist in the facts and circumstances of the present case or not? We are also required to examine as to whether the conclusion recorded by the Court below with regard to the commissioning of offence under the above provisions is based on evidence produced by the prosecution, and whether we finding of guilt is sustainable? 23. From the evidence that has been placed before us, this much is clear that the marriage of the deceased was solemnized with the accused appellant on 29.04.2016. The deceased has died on 2.3.2017 on account of poisoning. The first part of the requirement under Section 304B I.P.C. is, therefore, shown to exist inasmuch as the death of the deceased has occurred within a period of seven years of the marriage in unnatural circumstance. 24. The prosecution states that the other part of the section with regard to the demand of dowry and harassment to the deceased soon before her death is also established from the evidence on record. In order to appreciate this contention we have carefully perused the evidence on record. 25. The testimony of the father of the deceased has been noticed above, which would clearly show that he received information from the accused appellant that his daughter is not well. The incident of consumption of poison admittedly has occurred on 1.3.2017. The prosecution evidence, therefore, clearly shows that it was the accused appellant, who had promptly informed the father of deceased that his daughter had fallen sick. In the cross-examination, he has admitted that on telephone the accused appellant had informed him that his daughter had consumed poison. P.W.1 has stated that after receiving such information he rushed to the house of her daughter and reached there at about 5.00 in the morning. It was after his arrival at the place of incident that the inquest and other proceedings were conducted by the police. In the inquest report there is no narration with regard to the time when such proceedings were commenced or concluded by the I.O. 26. It was after his arrival at the place of incident that the inquest and other proceedings were conducted by the police. In the inquest report there is no narration with regard to the time when such proceedings were commenced or concluded by the I.O. 26. The inquest report has been proved by the Tehsildar, who has appeared as P.W.7. This witness has clearly stated that at the time when the inquest was conducted the in-laws of the deceased and also her husband and other family members were present. The evidence, therefore, clearly shows that family members of the deceased were promptly informed. The in-laws of the deceased including the parents remained present throughout. The conduct of proceeding by the Investigating Officer also shows that there was no attempt on the part of the family members to flee or evade the proceedings to be conducted by the Investigating Officer. 27. At this juncture we would like to refer to the statement of the Investigating Officer, who has clearly stated that the doctor posted at the Community Health Centre had informed him that the in-laws of the deceased had brought her to the Community Health Centre at about 12.30 in the night itself. Since P.W.1 has himself stated that he reached the house of the deceased at 5.00 in the morning, it is very much clear that the in-laws of the deceased together with the accused appellant had rushed the deceased to the Community Health Centre in the night itself. The defence witnesses have also supported such argument. There is no denial of such fact in the testimony of prosecution witnesses. We, therefore, are inclined to accept the defence version that their conduct was natural and responsible in handling the situation and that they acted bona fidely in taking the deceased to the Community Health Centre and all attempts were made to save her life. The defence witness has also stated that when he arrived at the house of the accused he was informed that the deceased had consumed insecticide thinking it to be a cough syrup and the family members were administering salted water to her so that she may vomit and the poison is extracted. This statement of defence witness has not been challenged by the prosecution. This statement of defence witness has not been challenged by the prosecution. The defence witness otherwise is a close neighbor of the accused appellant and his presence at the place of occurrence is natural and cannot be doubted particularly where no challenge is laid to it by the prosecution. 28. So far as the demand of dowry soon before the incident from the deceased and her family members is concerned, we find that none of the prosecution witnesses have alleged that any complaint was ever made prior to this incident with regard to the demand of dowry. In the FIR also vague and general allegations have been made with regard to the demand of dowry and neither the contents of the demand of dowry has been narrated nor any specific incident, day or time with regard to such demand has been mentioned. 29. The testimony of prosecution witnesses have been examined by us in detail. P.W.1 in his testimony has stated that the accused had demanded Rs.50,000/- and a motor cycle towards dowry from the deceased and that is why she was harassed and physically assaulted. No evidence with regard to any physical assault or injury to the deceased has been placed on record. In the testimony of P.W.1 no date or time etc. has been mentioned with regard to the demand of dowry. Even in the statement under Section 161 Cr.P.C. this witness has not given any details with regard to the demand of dowry by the accused appellant and his family members. P.W.3 is the uncle of the deceased and his allegations with regard to the demand of Rs.50,000/- along with a motor cycle towards dowry is based upon the disclosure made by his son Harish Kumar Singh (P.W.4). This witness has also not furnished any details of demand of dowry or the contents of such demand. This witness (P.W.3) admittedly was living in Delhi and although he had come before the marriage to the village but has admitted that he has not made any purchases in respect of the marriage of deceased. He has however admitted that a motor cycle was given in the marriage as dowry but the make of the motor cycle is not known to him. He has however admitted that a motor cycle was given in the marriage as dowry but the make of the motor cycle is not known to him. This witness has then stated that though the motor cycle was given as dowry at the time of marriage by the family members of the deceased but the accused were demanding a motor cycle of a superior make and quality. This statement in the testimony of P.W.3 is clearly an improvement from what has been stated by him in his disclosure before the police under Section 161 Cr.P.C. Learned A.G.A. does not dispute the fact that no such statement was made by P.W.3 to the Investigating Officer while his statement was recorded under Section 161 Cr.P.C. We are not much impressed by the testimony of P.W.3 with regard to the demand of a superior make of motor cycle particularly when no such assertion is contained in the testimony of father of the deceased herself. P.W.4 is the cousin of the deceased and has stated that the accused had demanded a Pulsar motor cycle from him on telephone. This witness however in his cross examination has admitted that a sum of Rs.30,000/- was paid along with Super Splender motor cycle at the time of marriage. He has also admitted that this fact was not disclosed to the I.O. while his statement was recorded under Section 161 Cr.P.C. This witness has also made vague and general allegation with regard to the demand of dowry of Rs.50,000/- and a motor cycle. 30. Three witnesses of fact, who have supported the prosecution case of demand of dowry have, therefore, neither specified the date and time of such demand of dowry nor they have given any specific detail with regard to such demand which may inspire the confidence of the Court. At this stage we would like to refer to a passage from the statement of P.W.1 wherein he has stated as under: 31. The above statement of P.W.1 clearly supports the defence version that relationship between the family of the accused and the deceased were cordial and soon prior to the incident the family members of deceased had visited the house of accused in connection with a birthday party and had stayed with them in night and their trip ended on a pleasant note. If that be the admission of the main prosecution witness, we are not inclined to accept his vague suggestion that there was a demand of dowry from the family of the accused particularly when the details in that regard have not been furnished. There is no disclosure with regard to any phone call or personal demand of dowry from the family of the deceased. Vague and general allegations with regard to the demand of dowry cannot be entertained particularly, when the evidence otherwise suggests existence of cordial relations between the parties. We further find that there is no injury on the body of the deceased noticed at the time of conduct of inquest or from the post mortem. The allegation that the deceased was being harassed and physically tortured for demand of dowry is, therefore, not supported by any evidence on record. 32. The explanation furnished by the accused appellant with regard to the circumstance in which the deceased consumed poison also cannot be out rightly brushed aside. The specific case of the defence is that the insecticide was consumed by the deceased thinking it to be a cough syrup in the dark, which appears to be probable. 33. The conduct of the family members in immediately reporting the incident to the father of the deceased and rushing her to the hospital otherwise supports the inference that the family of the accused acted bona fidely and their conduct was natural. We otherwise find that the demand of dowry as per the prosecution witnesses contains various contradictions and while P.W.3 and P.W.4 allege that a better quality of motor cycle was desired in dowry but such an assertion is clearly not forthwith coming from the father of the deceased who is the best person expected to be aware nature of demand which is being made as dowry. 34. Upon evaluation of the evidence placed on record, we are of the considered opinion that the prosecution has not been able to establish the guilt of the appellant beyond reasonable doubt, particularly as ingredients of the offence with regard to the demand of dowry immediately before the incident of her unnatural death are not proved. 35. 34. Upon evaluation of the evidence placed on record, we are of the considered opinion that the prosecution has not been able to establish the guilt of the appellant beyond reasonable doubt, particularly as ingredients of the offence with regard to the demand of dowry immediately before the incident of her unnatural death are not proved. 35. So far as the judgement of the Court below is concerned, we have been taken through it by the counsel for the parties and we find that the testimony of prosecution witnesses have not been scrutinized by the Court concerned. The contradictions in the version of the prosecution witnesses with regard to the contents of demand of dowry and the fact that such allegations otherwise were not substantiated by furnishing details in respect thereof have completely been omitted from consideration. The cordial relations between the family reflected from the visit of the family of the deceased soon before the incident has also been completely overlooked. In such circumstances the conclusion and findings returned by the Court below that the prosecution has established its case against the accused appellant beyond reasonable doubt cannot be sustained. 36. Before parting, we may also note that on the same set of evidence the trial Court has acquitted the co-accused, who were the mother-in-law and father-in-law of the deceased. So far as the two Jeth and Jethani are concerned a closure report was submitted against them at the stage of submission of charge sheet. These two facts also demonstrate that the evidence to implicate the family of the accused for dowry was found missing at the stage of investigation /trial. 37. We are, therefore, of the view in such circumstances and in view of the fact that other family members have been acquitted of the charges leveled against them, it was not prudent for the trial Court to have convicted and sentenced the accused appellant on same set of evidence. 38. Accordingly, the present appeal succeeds and is allowed. The impugned judgement and order of conviction and sentence dated 08.02.2019 is hereby set aside. The accused appellant Sudhir Rajbhar, who is reported to be in jail, shall be set free, forthwith, unless he is wanted in any other case subject to compliance of section 437-A Cr.P.C. 39. Record and proceedings be sent back to the trial Court for compliance.