JAGDISH Vs STATE OF UTTARANCHAL
Bench: T.S. THAKUR,ADARSH KUMAR GOEL,R. BANUMATHI
Case number: Crl.A. No.-001097-001097 / 2012
Diary number: 7838 / 2012
Advocates: GAURAV KEJRIWAL Vs
RACHANA SRIVASTAVA
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REPORTABLE IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1097/2012
JAGDISH & ORS. ..Appellants
Versus
STATE OF UTTARANCHAL ..Respondent
J U D G M E N T
R. BANUMATHI, J .
This appeal arises out of judgment dated 29.12.2011
passed by High Court of Uttarakhand in Criminal Appeal
No.215/2002, in and by which, the High Court confirmed the
conviction of the appellants under Sections 304B, 498A and 201
IPC and the sentence of life imprisonment imposed on each of
them.
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2. Briefly stated, case of the prosecution is that marriage
between complainant–Meharchand’s daughter Seema (deceased)
and accused- Late Chandrahas was solemnized in the month of
May 1991. As per his capacity and status, PW-1-complainant
gave sufficient dowry and articles. But within few days of
marriage, Chandrahas alongwith his parents and relatives, started
harassing Seema on account of non-fulfillment of demand of
dowry. PW-1- father of the deceased, having poor resources, was
unable to meet these ever increasing demands. PW-1, repeatedly
requested Chandrahas and his family members not to harass his
daughter, but they remained firm in their demands of motorcycle
and dowry amount. PW-1 could collect only meagre amount of
Rs.2,000/- and gave it to the family of Chandrahas and requested
them not to ill-treat his daughter.
3. Thereafter, in August 1994, the deceased after being
severely beaten, was ousted from her matrimonial home and she
was told that she should only return with Rs.20,000/- cash and a
Hero Honda motorcycle and Seema came to her father’s house.
On seeing her condition, PW-1 took the deceased to Saharanpur
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District Hospital, where she was medically examined and treated
for her injuries. On 4.9.1994, with the intervention of the
Panchayat and assurances on the part of Chandrahas (husband)
and his family, the parties arrived at a settlement and it was
decided that Seema was to be taken back to her matrimonial
house and that they will not torture Seema. Based on the
settlement and the assurance thereon, PW-1 left Seema in her
matrimonial house. However, after one month, the deceased
again wrote a letter to her father describing the harassment
meted out to her. PW-1 was unable to visit his daughter
immediately on account of the then ongoing work of crop cutting.
On 12.5.1995, Subhash Chandra (PW-4) came to the house of PW-
1–Meharchand and informed him that Seema had been killed by
her in-laws and burnt to death. Hearing this, PW-1–Meharchand
alongwith some villagers went to Churiyala–Chandrahas’s village;
but there was none at the house. On being informed of the
incident by the villagers, PW-1 reached the cremation ground and
found the pyre still burning.
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4. PW-1–Meharchand lodged a complaint at Police Station
Bhagwanpur, Village Churiyala, District Haridwar, on the basis of
which FIR No. 42/95 for the offences under Sections 498A, 304B
IPC and Sections 3 and 4 of the Dowry Prohibition Act was
registered against all the persons namely Chandrahas–Husband,
Sukhbir-father-in-law, Jagdish-elder brother of Sukhbir, Yogendra
(jeth)- elder brother of Chandrahas, Chandraprakash-Dewar
(brother-in-law), Pushpa-mother-in-law and Savita (Jethani)- wife
of Yogendra. After due investigation, chargesheet was filed
against all of them.
5. To bring home the guilt of the accused, prosecution has
examined eight witnesses and exhibited documents and material
objects. Sessions Court found all the accused persons guilty
under Sections 304B, 498A and 201 IPC and sentenced each of
the accused to undergo life imprisonment under Section 304B,
two years rigorous imprisonment under Section 498A and two
years rigorous imprisonment under Section 201 IPC. Being
aggrieved, appellants Jagdish–elder brother of Sukhbir, Yogendra–
elder brother of Chandrahas, and Savita–wife of Yogendra filed
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an appeal before the High Court of Uttarakhand. Husband of the
deceased-Chandrahas and his parents, namely, Sukhbir and
Pushpa have all passed away and the case against them abated.
High Court confirmed the conviction and sentence imposed on the
accused-appellants and dismissed the appeal. This appeal assails
the correctness of the judgment of the High Court affirming
appellants’ conviction and the sentence of imprisonment imposed
on them.
6. Mr. V. Giri learned Senior Counsel for the appellants
contended that to raise presumption under Section 113B of the
Evidence Act, prosecution has to prove that there was demand of
dowry and that cruelty and harassment was meted out to the
deceased ‘soon before her death’. It was submitted that none of
the witnesses deposed about the involvement of the appellants
and there is no reliable evidence to establish the essential
ingredients of Section 304B IPC or to justify invoking presumption
under Section 113B of the Evidence Act. It was contended that
the appellants are living separately and they were only witnesses
to the compromise Ex A-3 and are in no way connected with the
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day to day family life of Seema and Chandrahas and the courts
below erred in convicting the appellants under Sections 304B,
498A and 201 IPC.
7. Mr. Pankaj Bhatia, learned Counsel for the respondent
submitted that the prosecution has adduced overwhelming
evidence to prove that Seema was subjected to harassment and
cruelty ‘soon before her death’ and upon appreciation of
evidence, courts below by concurrent findings rightly convicted
the appellants and the impugned judgment does not suffer from
any infirmity.
8. We have carefully considered the submissions and gone
through the impugned judgment and the evidence and materials
on record.
9. Where the death of a woman caused by burns or bodily
injuries occurs otherwise than under normal circumstances within
seven years of her marriage and evidence reveals that ‘soon
before her death’ she was subjected to cruelty or harassment by
her husband or any of his relatives for or in connection with any
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demand for dowry, such death is described as ‘dowry death’
under Section 304B IPC for which the punishment extends to
imprisonment for life but not less than imprisonment for seven
years. By virtue of Section 113B of the Evidence Act, the Court
has to raise a presumption of ‘dowry death’ if the same has taken
place within seven years of marriage and there is evidence of the
woman having been subjected to cruelty and/or harassment. It
must be remembered that cruelty and harassment on a married
woman and demand of dowry are generally committed within the
four walls of residential houses and in secrecy, thereby making it
difficult to get direct evidence. That is why the legislature by
introducing Section 113B in the Evidence Act tried to strengthen
the prosecution case by enabling the Court to raise the
presumption if certain basic facts are established and that death
has taken place within seven years of marriage. Considering the
scope of Section 304B IPC and presumption under Section 113B of
the Evidence Act, due weightage is to be given to the evidence of
the father, brother, sister and other relatives of the deceased with
regard to the case put forth relating to demand of dowry.
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10. In the instant case, deceased Seema was married to
Chandrahas in the month of May 1991. From the said wedlock, a
male child was born in 1993. Seema died in the month of May
1995. PW-1-the father of the deceased, Meharchand, at the time
of his daughter’s marriage had given the dowry and other articles
as per his capacity and status. As per the evidence of PW-1
sometime after the marriage, Chandrahas and his family
members started demanding motorcycle and dowry and harassed
Seema. The demand of dowry and harassment was
communicated by Seema to her father. PW-1, Meharchand had
taken his relatives to the house of Chandrahas and informed them
about his poor resources and that he will not be able to give
motorcycle. After that, complainant-PW-1 received a letter from
his daughter Seema to bring money or otherwise her husband and
in-laws would kill her. Again PW-1 Meharchand took his relatives
to the Village Churiyala and requested Chandrahas and his family
members not to harass his daughter. In his evidence PW-1
stated that the accused Jagdish, Yogendra and Savita demanded
motorcycle and persisted in their demands. PW-1 could only
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arrange Rs.2,000/- and requested Chandrahas and other accused
not to harass Seema; but it was of no avail. In 1993, Seema was
physically beaten and she was taken to the District Hospital
Saharanpur. PW-6-Dr. R.K. Verma had noticed three injuries on
the body of Seema viz., on the left side of head, on back of the
chest lower part and complain of pain on front of chest of
abdomen and issued Wound Certificate Ex A-8. PW-6–Dr.
R.K. Verma opined that the injuries could have been caused by
blunt object.
11. The demand for motorcycle and Rs. 20,000/- continued
and in 1994, PW-1 lodged a complaint against all the accused
alleging demand of dowry and that Seema was subjected to
cruelty. In 1994, a Panchayat was convened in Churiyala Village
and Ex A-3 compromise deed was executed and all the accused
signed in the same. Ex A-3, compromise deed refers to complaint
lodged by PW-1-Meharchand for beating, torturing and
harassing Seema regarding dowry demand and issuance of notice
by family of Chandrahas against Meharchand. As per the terms of
the compromise, Chandrahas and his family has to deposit
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Rs.50,000/- in the name of Seema as security amount and after so
depositing the amount in her name, accused can take back
Seema and all the accused agreed and had undertaken that
Seema would not be harassed or tortured. The appellants and all
the accused have signed Ex A-3, compromise deed. In terms of
Ex A-3, Rs.50,000/- was to be deposited in the name of Seema
and after depositing the same, she was taken back to the
matrimonial house. Ex A-3, compromise deed dated 4.9.1994 is a
material evidence substantiating prosecution case. Inspite of Ex
A-3, compromise deed and the assurance, the cruelty and
harassment for dowry demand continued.
12. PW-2 Rikhiram, resident of Village Beherki and a
neighbour of PW-1 corroborated the version of PW-1 in all the
essential particulars as to demand of motorcycle and dowry. PW-
2 stated about demand of dowry by the accused and the letter
written by Seema alleging cruelty by the accused and also about
the convening of Panchayat and Ex A-3–compromise deed. There
is nothing in cross-examination of PWs 1 and 2 to hold that they
are not reliable witnesses, there is no reason to disbelieve them.
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13. There is overwhelming evidence that there was
demand of dowry and that Seema was subjected to physical
violence and cruelty. When the essential ingredient that the
victim was subjected to cruelty or harassment in connection with
demand for dowry ‘soon before her death’ is proved, presumption
under Section 113B of the Evidence Act has to be invoked. When
such presumption is raised, it is for the accused to rebut the
presumption by adducing cogent evidence. In his statement
under Section 313 Cr.P.C, late Chandrahas (husband of the
deceased) stated that on 12.5.1995 smoke was coming out from
the room where firewood was kept and the door had been closed
from inside, roof was cut, entered inside the room and they
opened the door and that the death of Seema was either an
accident or suicide. The theory of accident put forth by the
defence completely falls through on careful analysis of the
evidence and the attendant circumstances. Had it been an
accident or in the manner as alleged by the defence, the accused
would not have hurried with cremation without informing PW-1–
Meharchand about the death of Seema or to the police? There
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was no reason for the accused to hurriedly conduct the cremation
without even waiting for the victim’s father and furthermore
without lodging a complaint.
14. As rightly pointed out by the courts below, conducting
cremation hurriedly and burning the dead body of Seema without
informing PW-1–Meharchand and his relatives is a strong
militating circumstance against the accused. It has come on
evidence that the distance between Beherki and Churiyala is
about 20-25 kms. As pointed out by the courts below, the pyre
was lit even before the father and relatives of the victim arrived.
Trial court as well as the High Court upon appreciation of oral and
documentary evidence accepted the version of the prosecution
that Seema was harassed and subjected to cruelty in connection
with non-fulfillment of demand of dowry made by the husband
and in-laws.
15. First appellant–Jagdish is Taya i.e. elder brother of
father-in-law of Seema. To prove the guilt of the appellant–
Jagdish prosecution relied upon:- (i) the evidence of PWs 1 and 2
that Jagdish also demanded dowry; (ii) Jagdish also signed in the
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memo of compromise. To attract the provisions of Section 304B
IPC, the deceased must have been subjected to cruelty or
harassment for or in connection with dowry ‘soon before her
death’. Going by the evidence of PWs 1 and 2, appellant-Jagdish
along with other accused also demanded dowry. A mere demand
of dowry at one or two instances may not attract the provisions of
Section 304B IPC though such demand might be an offence
punishable under Section 498A IPC. There is no material to show
that there was persistent demand of dowry by appellant–Jagdish.
16. In his statement under Section 313 Cr.P.C., first
appellant–Jagdish has stated that he has no wife or child and
that he is living separately in Village Churiyala and that his
brother Sukhbir was living with his wife and children. First
appellant has further stated that he has been living separately
even prior to the marriage of Chandrahas and that he has his own
food prepared. We find no reason to disbelieve the statement of
the first appellant- Jagdish. Insofar as signature of first
appellant–Jagdish in Ex A-3 compromise deed is concerned, being
elder member of the family and to ensure peaceful married life of
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Chandrahas, first appellant perhaps might have signed in the
compromise deed. The first appellant who is stated to be living
separately could not have persistently subjected Seema to dowry
harassment and cruelty and the first appellant is to be acquitted
of the charge of 304B IPC. For the alleged demand of dowry by
the first appellant as spoken by PWs 1 and 2, the first appellant is
to be convicted under Section 498A IPC. As seen from the
materials on record, first appellant-Jagdish was about 70 years of
age in the year 1996. Considering his age, lenient view has to be
taken in imposing the sentence for the offence under Section
498A IPC.
17. Insofar as appellants 2 and 3 (Yogenda-jeth and Savita-
jethani), during their questioning under Section 313 Cr.P.C.
though they have stated that they are living separately they have
not produced any ration card or other document to show that
they are living separately. In his statement, first appellant–
Jagdish has stated that Sukhbir was living with his wife and
children thereby indicating that the second and third appellants
were living with Sukhbir as a joint family. Upon proper
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appreciation of evidence, the Courts below convicted appellants 2
and 3 under Section 304B IPC and we find no infirmity in the
concurrent findings recorded by the Courts below.
18. So far as the sentence of appellants 2 and 3, it was
stated that appellants 2 and 3 are having a physically
handicapped child and they are also taking care of the son of
deceased–Seema. Considering the passage of time and the facts
and circumstances of the case, in our view, extreme penalty of
life imprisonment is not justified and ends of justice would be met
by reducing the sentence of imprisonment awarded against
appellants 2 and 3 to seven years rigorous imprisonment.
19. In the result, conviction of first appellant–Jagdish under
Section 304B IPC is set aside and he is convicted under Section
498A IPC and is sentenced to the period already undergone by
him. While maintaining the conviction of appellants 2 and 3
(Yogendra & Savita) under Section 304B IPC, sentence of life
imprisonment awarded to them is reduced to seven years
rigorous imprisonment. The appeal is partly allowed to the extent
indicated above. Bail bonds executed by first appellant–Jagdish
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stand discharged. Appellants Yogendra and Savita be taken into
custody forthwith for serving out the remaining sentence awarded
to them.
…………………………J. (T.S. Thakur)
…………………………J. (Adarsh Kumar Goel)
………….………………J. (R. Banumathi)
New Delhi; November 25, 2014
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