CRLA/962/1998 of RAJPAL Vs STATE

RajpalS/o Kishan LalR/o Peeth Bazar,Jwalapur, Haridwar

……............... Appellant

Versus

State of U.P(Now State of Uttarakhand)

……….Respondent

Shri Nagesh Aggarwal, Advocate, present for the appellantShri B.S.Parihar and Shri M.A.Khan, Brief Holders, present for the State.

Hon’ble Prafulla C. Pant, J.

This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 21.04.1998 passed by First Additional Sessions Judge Haridwar, in Sessions Trial No. 177 of 1994, whereby said court has convicted the appellant Rajpal under section 304B, 201, 498A of Indian Penal Code, 1860 (for short I.P.C). Appellant Rajpal has been sentenced by the trial court to rigorous imprisonment for period of ten years under

section 304B I.P.C., rigorous imprisonment for period of five years under section 201 of I.P.C., and rigorous imprisonment for period of three years under section 498A I.P.C

(2) Heard learned counsel for the parties and perused the lower court record.

(3) Prosecution story, in brief, is that on 23.02.1992 accused/appellant Rajpal got married to Anjana (deceased). It is alleged by the prosecution that accused/appellant Rajpal and his brother Amardeep, demanded dowry of Rs. 10,000-/, and on non fulfillment of said demand, subjected the deceased to cruelty. Anjana died on 31.10.1992 (within ninemonths of her marriage). Prosecution hasfurther alleged that no post mortemexamination was got done by theaccused/appellant Rajpal in whose house hiswife Anjana died. Nor the accused/appellantwaited for arrival of Ajit Kumar (PW1)brother of the deceased or Saraswati (PW3)mother of the deceased. Parental house of the'sdeceased was at Dehradun and the appellanthouse where his wife died was in Haridwar

(the distance between the two places is 55 km.)Prosecution case is that PW1 Ajit Kumar on receiving telegram on 03.11.1992 went to Haridwar on 04.11.1992 in the morning. He went to his sister's house and after talking to her neighbours lodged First Information Report (exhibit A-1) at police station Jwalapur, where it was registered as crime no. 477 of 1992 against the accused Rajpal and Amardeep. Crime was investigated by PW5 S. S. Chauhan, Deputy Superintendent of Police, who after interrogating the witnesses and on completion of investigation submitted charge sheet (Exhibit A-4) against accused/appellant Rajpal and his brother Amardeep for their trial in respect of offences punishable under section 304B and 201 I.P.C and one punishable under section ¾ of Dowry Prohibition Act, 1961.

(4) The First Additional Munsif/Judicial Magistrate, on receiving said charge sheet , after giving necessary copies to the accused as required under section 207 of Cr.P.C,

committed the case to the court of Sessions for trial. Learned First Additional Sessions Judge Haridwar, to whom the case was transferred on 20[th] of September 1995, after hearing the parties framed charge of offences punishable under section 498A, 304B and 201 I.P.C against the accused/appellant Rajpal and his brother Amardeep. Both of them pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Ajit Kumar (complainant and brother of the deceased), PW2 Ranjana Arora ( teacher of the deceased), PW3 Saraswati (mother of the deceased), PW4 Sub Inspector Vipin Bihari (who on receiving F.I.R registered it and made entry in the general diary) PW5 Circle Officer Surender Singh Chauhan (Investigating Officer), and PW6 Constable Ompal Singh. Oral and documentary evidence was put to the accused Rajpal and his brother Amardeep. The marriage of accused Rampal with the deceased Anjana was admitted to the accused but they pleaded that the evidenceadduced against them was false. In defence DW1 Nasir Khan was got examined. The trial court, after hearing the parties, found accused/appellant Rajpal guilty of charge of offences punishable under section 304B, 201 and 498A I.P.C., and convicted him accordingly. However, the trial court did not find accused Amardeep guilty of charge of offences punishable under section 498A, 304B and 201 of I.P.C., accordingly he was acquited. After hearing on sentence, convict Rajpal was sentenced to rigorous imprisonment for period of ten years under section 304B I.P.C, rigorous imprisonment for period of five years under section 201 I.P.C., and rigorous imprisonment for period of three years under section 498A I.P.C. Aggrieved by said judgment and order dated 21.04.1998 passed by First Additional Sessions Judge, Haridwar in Sessions Trial No. 177 of 1994, this appeal was filed before Allahabad High Court on 29.05.1998, where it was admitted on 01.06.1998. The appeal is received by this court under section 35 of U.P. Reorganization

Act, 2000 (Central Act 29 of 2000), for its disposal.

(5) PW1 Ajit Kumar complainant has stated that his sister Anjana got married to appellant Rajpal on 23.02.1992. He has further stated that traditional dowry was given to Rajpal. He has further stated that appellant demanded Rs. 10,000/- as dowry. The witness further states that his mother expressed inability to pay the dowry as she was poor woman. In the month of “ Saawan” (August) when the witness (PW1) went to her sister's house, appellant Rajpal reluctantly allowed her to go to her parental house, and at that time also his sister told him about the demand made by her husband. PW1 Ajit Kumar further stated that on 03.11.1992, he received telegram that his sister had died. He further stated that he was never told of any illness of his sister, nor he was ever called to attend funeral of his sister, even the dead body was not shown to him. On receiving said telegram, according to the witness, he went to Haridwar, and got lodged

First Information Report(Exhibit A-1). PW2 Ranjana Arora who is the teacher of the deceased has stated that she was told by the complainant that his sister has been killed. She further told that she along with some other people went to Haridwar, but none could see dead body of the deceased.

(6) PW3 Saraswati is mother of the deceased who corroborated the testimony given by her son PW1 Ajit Kumar. She has stated that after marriage of her daughter Anjana with accused/appellant Rajpal, she (Anjana) was subjected to cruelty by accused/appellant Rajpal and her brother for non fulfillment of demand of dowry of Rs. 10,000/-. She has further stated that appellant Rajpal demanded Rs. 10,000/- for his employment. The witness (PW3) further states that she told appellant Rajpal that she is poor woman and unable to meet such demand. This witness has also stated that when in the month of “ Saawan” (August) she had gone to take his daughter, appellant quarrelled with her. PW3 Saraswati has

further stated that her daughter told at that time also that her husband demands Rs. 10,000/- and harasses her. Lastly, the witness stated that when telegram was received that Anjana had died and her cremation has also been done by them, she along with other persons went to Haridwar. She has alleged that she was never informed about any illness. She has further alleged that her daughter is killed due to the non fulfillment of demand of dowry.

(7) As far as the marriage of the deceased Anjana with appellant Rajpal is concerned it is admitted fact that they got married on 23.02.1992. As far as her death is concerned it is also admitted to the accused/appellant that she died on 31[st] of October 1992 (within nine months of the marriage). In his statement under section 313 Cr.P.C accused Rajpal has admitted these facts. The only question now to be seen by this court is whether the appellant subjected his wife to cruelty for non fulfillment of demand of dowry, soon before her death. It is also to be seen by this court

whether the appellant got disappeared dead body of his wife to conceal the crime.

(8) Section 113B of Indian Evidence Act, reads as under:-

“113-B. Presumption as to dowry death.-- When the question is whether person has committed the dowry death of woman and it is shown that soon before her death such woman had 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 purposes of this section, “ dowry death ”, shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).”

Section 304B I.P.C as under:-

“304B. Dowry death.--(1) Where the death of occurswoman is caused by any burns or bodily injury or 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 in section 2 of the

Dowry Prohibition Act, 1961 (28 of 1961).

(2)Whoever commits dowry death shall be punished with imprisonment for term which shall not be less than seven years but which may extend to imprisonment for life. ”

(9) Learned counsel for the appellant argued that it is case of natural death, and ingredients of 304B I.P.C., are not fulfilled. It is contended that appellant's wife Anjana died of illness. The plea raised by the appellant appears to be lame excuse. There is no paperwhatsoever showing that the deceased wastaken to any doctor or any medical treatmentwas given to her. Not only this DW1 NasirKhan no where says what was the illness withwhich the deceased suffered. It is also notdisclosed as to whether the deceased died inher husband's house or in the hospital. DW1 Nasir Khan has stated that on 31.10.1992 when wife of Rajpal died he went to Dehradun to inform about death of Rajpal's wife. The evidence of this witness does not inspire confidence. In cross examination he says that he does not know name of the wife of Rajpal.

Nor he knows name of the brother of the deceased to whom he had gone to inform. It is hard to believe that after appellant Rajpal got sent message through Nasir Khan to the parental house of the deceased , the PW1 Ajit Kumar and his mother Saraswati could not go to see face of Anjana (deceased) or to attend the cremation at distance of mere 55 km., which is well connected by road and train.

(10) Regarding causing disappearance of dead body of Anjana (deceased) by the appellant, it is relevant to mention here what has been stated by Investigating Officer PW5 Circle Officer S.S. Chauhan. In his cross examination in para-5 the Investigating Officer makes statement before the trial court as under:-

“vfUre laLdkj ds ckjs esa fdlh Hkh O;fDr dks dksbZ tkudkjh ugha Fkh mldh 'ko;k=k esa dksbZ Hkh vkneh ugha x;k Fkk vUtuk dh e`R;q ds ckjs esa fdlh us dkj.k ugha crk;k FkkA nkg laLdkj ds ckjs esa dksbZ tkudkjh ugha fey ikbZ ftl fnu vUtuk dh e`R;q gqbZ mlh fnu

mldk nkg laLdkj fd;k x;k ;k vxys jkst fd;k x;k bldh Hkh dksbZ tkudkjh ugha fey ikbZA ” As to the receiving telegram PW1 Ajit Kumar and PW3 Saraswati have specifically stated that after receiving telegram on 3[rd] of November1992, the next day she reached Haridwar. Sending of telegram is admitted to appellant Rajpal who has stated in his replies to the question put to him under section 313 Cr.P.C that he got sent information by telegram about death of his wife Anjana. The appellant has further told the court in her statement under section 313 Cr.P.C that cremation was done on the next day of the death.

(11)Learned counsel for the appellant vehemently argued that in the present case that the ingredients of the offence punishable under section 304B I.P.C are not made out, nor the offences punishable under section 201 or 498A are proved. Learned counsel for the appellant referred cases of Appasaheb vs. State of Maharashtra (2007) 9 SCC page 721, M Srinivasulu vs. State of Andhra Pradesh AIR

2007 SC 3146, Sham Lal vs. State of Haryana 1997 AIR SCW 1614, Gananath Pattnaik vs. State of Orissa (2002) (1) VC 366 and Mungeshwar Prasad Chaurasia vs. State of Bihar 2002 (2) crimes 38 (SC). On the basis of these case laws it is contended that the harassment for non fulfillment of demand of dowry must be shown “ soon before” of the death of the woman. The facts of the afore mentioned cases are different to the present case. In the present case admittedly death has occurred within nine months of the marriage. In the case of Appasaheb (Supra) marriage the appellant had taken place with the deceased two and half years before her death. Similarly in the case of M Srinivasulu (Supra) marriage took place in May 1989 and death occurred in September 1992. In Sham Lal's case (Supra) marriage had taken place in the year 1983 and the death took place in the year 1987. In the case of Mungeshwar Prasad (Supra) marriage took place in the year 1993 and death had occurred in the year 1995. In Gananath's Pattnaik (Supra) marriage was solemnized inthe year 1984 and the death occurred sometime after May 1987. As such none of the cases can be equated with the present case where the death has taken place within nine months of the marriage. The only question in the circumstances, is whether the demand of dowry was made by the appellant and whether for its non fulfillment he subjected his wife Anjana to cruelty or not. On this point there is sufficient evidence given by PW1 Ajit Kumar and PW3 Saraswati who have stated categorically that Rs. 10,000/- were demandedby the accused/appellant and for its non fulfillment due to the poverty of the said witnesses, the deceased was subjected to cruelty . PW3 Saraswati Devi has stated in her cross examination that when she went to Haridwar after receiving telegram she met Taau and elder brother of the father and Chacha (uncle) of the appellant, and even they were unable to tell about as to how Anjana had died and how her body was disposed of.

(12) Having reappreciated the evidence on

record, this court does not find any error of law committed by the trial court in convicting and sentencing accused/appellant Rajpal on the charge relating to offences punishable under section 304B, 201 and 498A I.P.C. However, considering the facts and circumstances of the case, this court is of the view that reducing the sentence awarded under section 304B I.P.C to rigorous imprisonment for period of seven years would meet the ends of justice. Accordingly, the appeal is dismissed so far as it relates to the conviction of the appellant on charge relating to offences punishable under section 304B, 201 and 498A I.P.C. On the point of sentence the appeal is dismissed in respect of offences punishable under section 201 and 498A I.P.C. Only on the point of sentence awarded under section 304 I.P.C the appeal is partly allowed and said sentence is modified, reducing the same to rigorous imprisonment for period of seven years. All the sentences shall run concurrently. With the above modification, this appeal stands disposed of . Appellant is on bail, his bail is

cancelled. Lower court record be sent back to make accused/appellant Rajpal to serve out the sentence, modified by this court.

(Prafulla C. Pant, J.)

Dt.09.08.2010N.P