Deen Dayal & Ors vs State Of U.P

Deen Dayal & Ors. ... Appellants

Vs.

State of U.P. ... Respondent

JUDGMENT

AFTAB ALAM,J.

1. This appeal under Section 379 of Code of Criminal Procedure, 1973

read with Section 2(A) of the Supreme Court (Enlargement of Criminal

Appellate Jurisdiction) Act, 1970 is at the instance of three appellants.

Amar Singh, appellant no.3, is the son of Deen Dayal, appellant no.1 and

Smt. Sukhrani, appellant no.2. They were tried for killing Asha Devi, wife 2

of appellant no.3 for non fulfilment of their demand for dowry and were

charged under sections 498-A and 304-B, alternatively section 302 of the

Penal Code. At the conclusion of the trial they were acquitted of the

charges by the 4th Additional Session Judge, vide judgment and order dated

April 30, 2001 in Sessions Trial no.740 of 1998. Against the judgment of

acquittal passed by the trial court the State of U.P. preferred an appeal

before the High Court that was registered as Govt. Appeal no.2998 of 2001.

A Division Bench of the High Court found and held that in the face of

prosecution evidence the conclusion arrived at by the trial court was wholly

untenable. Accordingly, the High Court allowed the appeal, set aside the

Judgment of acquittal passed by the trial court and by judgment and order

dated September 21, 2005 convicted all the three appellants under sections

498-A and 304-B of the Penal Code and sentenced them to undergo

rigorous imprisonment for three years and ten years respectively for the two

offences subject to the direction that the two sentences would run

concurrently. The judgment and order passed by the High Court is brought

under appeal to this court by the three appellants.

2. Dr. J. N. Dubey learned senior counsel made long and elaborate

submissions in support of the appeal. Learned counsel first contended that

in a criminal case the scope of an appeal against acquittal is quite different

from an appeal against conviction and sentence. In the former case, if the 3

trial court has taken one of the two possible views the judgment of acquittal

would not warrant any interference in appeal. Counsel further submitted that

the present case fell under that category and the High Court was in error in

interfering with the judgment of the trial court and substituting its own view

in place of the view taken by trial court. Next, passing over to the merits of

the case, Dr. Dubey submitted that on the evidence on record several

ingredients of the offence of dowry death remained unproved and since the

prosecution failed to establish all the necessary conditions no presumption

would arise against the appellants under Section 304-B of the Penal Code

and Sec. 113-A of the Indian Evidence Act.

3. Before examining the submissions made on behalf of the appellants in

any detail it would be useful and proper to state certain facts of the case that

are admitted or are in any event undeniable. Asha Devi, the deceased was

married with appellant no.3 in June 1997. Fifteen months later she died on

September 6, 1998. At the time of her death she was living with the

appellants. Her dead body was taken out of a well situate at a distance of

about four hundred paces from the house of the appellants. Here it must be

stated that her death was not caused by drowning. According to the

prosecution, Asha Devi was killed by the appellants and her dead body was

thrown into the well. The appellants, however, have a different story. Their 4

case is that she had gone to fetch water and while pulling up the pail of

water she accidently slipped and fell down into the well and died.

4. At this stage we may take a look at the medical evidence. P. W.3, the

doctor holding post-mortem on the dead body of Asha Devi found the

following two injuries

1: Swelling 3 x 3 cm in front upper part of nose.

2: Swelling mark 5 x 5 cm on top and middle of head.

On internal examination he found the following injuries :

"Left parietal bone of head was fractured. Membrane was soiled in blood. There was blood in brain. Bone of nose was fractured. There was 2 ounce clotted blood in nose. There was 2 ounce watery fluid in stomach".

He opined that death was caused due to coma resulting from head injury. He

stated before the court that the injuries were possibly caused by some blunt

weapon. He found no water in the lungs or the wind pipe. He further said

that that if there was water in the well then those injuries couldn't possibly

have been caused (by falling down into it). In cross-examination he said that

both the injuries could be caused by dashing against two different

projections; those could not caused by a single projection. Under persistent

cross-examination he further said that as a result of falling from a high place 5

with mouth (Sic. face) facing downward injury no.1 could possibly be

caused and injury no.2 could be caused by dashing against some stone.

5. The medical evidence thus fully corroborates the prosecution case

that Asha Devi was thrown into the well when she was already dead or was

dying. At any rate she had stopped breathing as indicated by the absence of

any water in her lungs or windpipe.

6. In order to reconcile the defence case with the medical evidence Dr.

Dubey came up with an explanation. Learned Counsel suggested that in

course of her fall in the deep well (water surface in the well was at a depth

of 60-70 ft.) Asha Devi might have smashed her head against the wall of the

well and as a result she went into coma even before hitting the water

surface. We are totally unable to accept the submission. According to the

investigating officer the mouth of the well was half covered by wooden

planks and a pulley was fixed over the other open half for pulling up the

filled up bucket. With that kind of arrangement it is highly unlikely for a

person to slip and fall down in the well. But even assuming that such an

accident took place no injuries as found on the person of Asha Devi can be

caused in course of the fall into the water. The investigating officer

described the well in question as a kuccha well, that is to say its inner walls

were not brick lined. Asha Devi had suffered two injuries, one over her nose 6

and the other in the parietal area of the head. The doctor was quite definite

that the two injuries were the result of two separate blows by some hard and

blunt substance. In cross examination he said that the two injuries could be

caused by dashing against two different projections; those could not caused

by a single projection. We are completely unable to see Asha Devi falling

down inside the well and getting her face and head smashed twice against

two projections jutting out from the soft clay inner walls without any lining

of bricks. We have no manner of doubt that Asha Devi was first beaten and

then her body was dumped into the well when she was dying or was already

dead.

7. Here, it may be stated that the defence also examined a witness. He of

course said that the appellants kept Asha Devi with great love and affection

and further that she died due to an accidental fall into the well. He himself

saw her slipping while bending down to pull up the bucket full of water and

falling into the well head downwards. The witness has no value in our eyes

and Dr. Dubey too rightly did not even refer to his evidence. As a matter of

fact the defence witness did not make any statement before the investigating

officer and was examined for the first time before the trial court. It also

appears from the materials on record that the appellants' village where the

occurrence took place belonged to the people of one and the same caste. 7

During investigation the co-villagers tried to conceal the facts and no one

was prepared to give any statement against the appellants.

8. Thus on the evidence on record we find it fully established that only

after fifteen months of her marriage and while she was living with the

appellants Asha Devi died under circumstances that were not only far from

normal but also plainly indicated homicide.

9. At this stage Dr. Dubey submitted that though Asha Devi might have

died under abnormal circumstances within seven years of her marriage,

there was no evidence of any demand for dowry by the appellants or her

being subjected to cruelty or harassment by the appellants for or in

connection with the demand for dowry. In any event, there was absolutely

no evidence that any demand for dowry was made soon before her death on

September 6, 1998 and the demand for dowry and the cruelty or harassment

meted out to her in connection with the demand were the proximate cause of

her death. In support of the submission that the appellants did not make any

demand for dowry Dr. Dubey heavily relied on certain sentences picked out

from the evidence of PW 1, the father of the deceased. Learned counsel

referred to two sentences from the statement of PW 1 in reply to the court's

questions where he said that no dowry was decided at the time of the

marriage and appellant no.1 had said that he would be happy with whatever 8

they gave. Learned counsel then pointed out two or three sentences from his

cross examination where he said that there was no talk of dowry at the time

of engagement and marriage of his daughter; there was no talk of dowry at

the time of solemnization of marriage (taking steps around the sacred fire).

And that the appellants took his daughter happily and at the time of

departure also there was no talk (of dowry).

10. We find absolutely no substance in the submission. The evidence of

the witness has to be taken as a whole and not by plucking out one or two

sentences from here and there. In his examination-in-chief PW 1 clearly

stated that in the marriage of his daughter he gave dowry according to his

capacity but the members of the bridegroom side were not satisfied. Asha

Devi's husband Amar Singh (appellant No.3), father-in-law Deen Dayal

(appellant No.1) and mother-in-law Sukhrani (appellant No.2) used to

demand Rs.10, 000/- and a chain of gold in addition to what was already

given by him. They had made the demand from him. They had also made

the demand of dowry from his son when he went to their place for bringing

back Asha Devi. The appellant used to beat and abuse her for the sake of

dowry. When Asha Devi used to come to their house she would tell them

that her in-laws demanded Rs.10, 000/- and a chain of gold and if the money

and the chain were not given then they would arrange a second marriage of 9

Amar Singh. In July 1998, Deen Dayal (appellant no. 3) had come to his

house for taking his daughter. Then too he had demanded Rs.10, 000/- and

the gold chain. He (the witness) had nothing to give; therefore, he could not

give anything. Deen Dayal became annoyed and took away his daughter

Asha Devi with him in angry mood.

11. Dr. Dubey has referred to two sentences in the statement of PW 1 in

reply to the court questions. In reply to the court questions PW 1 indeed

said that at the time of marriage no dowry was decided and the father-in-law

of his daughter had said that he would be happy with whatever they gave.

But in the very next sentence he said that after six days of marriage they

brought back Asha Devi from her matrimonial home and then his daughter

told them that his mother-in-law had been beating her and demanding

Rs.10, 000/-. He further said that after three to four months of marriage he

went to the matrimonial home of her daughter. He had told them (the

appellants) not to make (any further) demand of dowry as he was not in a

position to give them anything. But the father-in-law of his daughter told

him that they would not keep his daughter in their house. Similarly, in his

cross-examination he said that there was no talk of dowry either at the time

of engagement or at the time of solemnization of marriage and the

appellants took his daughter happily but again the next sentence is that at 1 0 the time of departure Deen Dayal had refused to take food and he had

demanded dowry. The deposition of PW 1 is full of the assertion about the

appellants demanding rupees ten thousand and a gold chain in dowry and

subjecting her daughter Asha Devi to cruelty and harassment due to non

fulfilment of their demand.

12. Further, the evidences of PW 2 and PW 5, the brother and the mother

respectively of the deceased, leave no room for doubt in regard to the

demand of dowry by the appellants and their subjecting Asha Devi to

cruelty and harassment in connection with the demand. From the

prosecution evidence the picture comes out vivid and clear that in addition

to what was given to them the appellants demanded Rs.10, 000/- and a gold

chain. PW 5 stated before the court as follows:

"At the time of marriage, Amar Singh had demanded chain of gold for himself and rupees ten thousand for his father. After that the demand was repeated many times."

She further stated:

"Two months before death of Asha Devi, Deen Dayal father-in-law of Asha Devi had come to our house for taking her. Deen Dayal had demanded chain of gold for his son and rupees ten thousand and he had asked to send Asha Devi. My daughter was not prepared to go. But we made her to comprehend and then she was sent. Deen Dayal took Asha Devi with him in anger."

1 1 The evidence on record fully establishes that there was a persistent demand

of dowry by the appellants and they subjected Asha Devi to cruelty and

harassment in connection with the demand and eventually beat her to death

due to its non-fulfilment.

13. Dr. Dubey lastly contended that before any presumption may be

drawn against the appellants it must be shown that they had made the

demand for dowry and in that connection subjected Asha Devi to cruelty

and harassment `soon before her death'. He submitted that according to the

prosecution evidence the demand for dowry was last made in July 1998

when appellant no.1 had gone to bring Asha Devi from her parents' house

and she died on September 6, 1998. Thus, according to Dr Dubey, there was

no evidence that she was subjected to any cruelty or harassment soon before

her death and hence, there would be no application of Section 304-B of the

Penal Code and no presumption could be raised against the appellants as

provided under Section 113-A of the Evidence Act. In support of the

submission he relied upon a very large number of decisions but we see no

need to refer to those decisions as in the facts of the case the submission

appears to us to be completely unacceptable.

14. The words `soon before her death' occurring in section 304 B of the

Penal Code are to be understood in a relative and flexible sense. Those 1 2 words cannot be construed as laying down a rigid period of time to be

mechanically applied in each case. Whether or not the cruelty or harassment

meted out to the victim for or in connection with the demand of dowry was

soon before her death and the proximate cause of her death, under abnormal

circumstances, would depend upon the facts of each case. There can be no

fixed period of time in this regard. From the evidence on record, it is clear

that there was an unrelenting demand for dowry and Asha Devi was

persistently subjected to cruelty and harassment for and in connection with

the demand. Both her parents and her brother (PW 1, PW 5 and PW 2)

deposed before the court that appellant no.1 had once again raised his

demand when he had gone to their house in July 1998 to bring Asha Devi to

his place. Their inability to meet his demand had caused him annoyance and

anger. Asha Devi was naturally apprehensive and was very reluctant to go

with him. But they somehow prevailed upon her and made her depart with

him. There is thus direct and positive evidence of her being subjected to

harassment. There is nothing to show that after she was brought to the

appellants' place and till her death on September 6, 1998 merely about two

months later the situation had radically changed, the demand of dowry had

ceased and relations had become cordial between the deceased and the three

appellants. In the facts and circumstances of the case, we are satisfied that in 1 3 connection with the appellants' demand for dowry Asha Devi was subjected

to cruelty and that was the proximate cause of her homicidal death.

15. We are satisfied that all the ingredients of Section 304-B of the Penal

Code are fully satisfied and on the evidence on record no other view is

possible but to hold that the three appellants are guilty of committing dowry

death.

16. In view of the discussions made above, it follows that the view taken

by the trial court was completely untenable and the High Court was fully

justified in reversing its verdict in appeal preferred by the State. We thus

find no merit and substance in any of the submissions made on behalf of the

appellants. The appeal fails and is accordingly dismissed.

.....................................J.

[Lokeshwar Singh Panta]

.....................................J.

[Aftab Alam]

New Delhi,

January 07, 2009.

1 4