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Allahabad High Court
Ram Sahai & Others vs State Of U.P. on 17 June, 2010
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AFR
RESERVED

Court No. - 10

Case :- CRIMINAL APPEAL No. - 211 of 1996
Petitioner :- Ram Sahai & Others
Respondent :- State Of U.P.
Petitioner Counsel :- Virendra Mohan,Amol Kumar,Tribhuban Narain Singh
Respondent Counsel :- Govt. Advocate,T.N. Yadav


Hon'ble Y.K.Sangal, J.

This appeal has been filed on behalf of the accused appellants Ram Sahai,

Smt. Shiv Kali, Pradeep Kumar and Bablu against the judgement and order

dated 14th May, 1996 passed by the Second Additional Sessions Judge, Hardoi

in S.T. No. 496 of 1993 under Section 304 B, 498-A IPC and 3/4 Dowry

Prohibition Act.

By the impugned judgement and order, learned Sessions Judge held guilty

to the accused appellants along with accused Anil(not appellant in this appeal)

for the offence under Section 498-A, 304-B IpC and Section 4 of the Dowry

Prohibition Act. They were sentenced to undergo Rigorous Imprisonment for

the offence under Section 304-B for the term of ten years, under Section 498-A

IPC for a term of two years and for the offence under Section 4 of the Dowry

Prohibition Act for a term of two years.

A seperate appeal was filed on behalf of the accused Anil being Criminal

Appeal No. 198 of 1996 against the same judgement and order but as per report,

accused-appellant Anil had died and orders for abating his appeal has already

been passed vide order dated 04.01.1996, which is clear from the file of that

case.

In the present appeal also appellant Pradeep had died. Orders of
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dismissal of his appeal as abated has already been passed on 04.08.2006.

As per prosecution case, a report was lodged by Rameshwar Dayal saying

that he married his daughter Rani Devi (deceased) with Anil Kumar, (accused-

appellant deceased of Appeal No. 198 of 1996) on 8th June, 1991. After 6 or 7

months of the marraige, accused Ram Sahai and his wife Shiv Kali made a

demand of Hero Honda Motorcycle and Rs. 25,000/- from them and they left

his daughter at her parental house. They are continuously pressing their demand

saying that his daughter will be taken back at their house only when the

demand is fulfilled. As per his financial position he payed Rs. 5,000/-, Electric

Fan, Box then she was brought her her husband house after 18 months by the

accused Pradeep. Later on accused Pradeep Kumar (decased) came at his house,

and pressed the demand of Hero Honda Motorcycle and rest money. He stayed

at their house for 2-3 days and returned back. Again he came on 20th August at

about 6 O’ clock in the evening along with his Brother Bablu and three unknown

persons by a Zeep he again came and stated that daughter of the informant is

seriously ill. If they are intersted to see her they may accompany them. He

alongwith three other family members started to go to the house of Ram Sahai.

Pradeep etc. bring them up to Kannauj and under the pretext of Urination they

left them at Kannauj and escaped with the Zeep. Having doubt on their this

action, arranging another vehicle they went to the house of Ram Sahai in

Baziganj. They were informed there that his daughter had been put on fire

sprinkling Kerosene Oil on her body and they killed her. It was also informed

to him that since when his daughter was brought at Ram Sahai house, she was

being beaten by the accused persons. On the day again, she was beaten. She

became unconscious. Accused persons after sprinkling Kerosene upon her body
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put her on fire and closed the Kundi of the Kothari from the out side as their

was space in the door for that purpose. He has further mentioned in the FIR that

accused Ram Sahai was ‘Malik’ of the marriage and her marriage took place

from his house. Anil was not having any relation with his natural parents. Still

Anil is living in the house of the accused persons.

A report of case was registered against the accused persons. Police of

P.S. concerned started investigation in the matter. Statement of the witnesses

were recorded. Site plan of the place of occurrence was prepared. Partly burn

cloths were recovered. Panchayatnama of the dead body and relevant papers

were prepared. Dead body was sealed and sent for post-mortem. Post-mortem

report was collected. Ante-mortem burn injuries up to 90 % were found on the

body of the deceased along with two contusions, one on the right Ankle joint

and the another on the right Toe. In the opinion of the Doctor death was result of

shock and haemorrhage ante-mortem burn injuries. Investigation was completed

and charge-sheet was submitted against all the named accused in the FIR.

As the case was exclusively triable by the court of Session, the same was

committed to the court of Session. All the accused persons were charged to face

trial for the offence as above but they pleaded not guilty and claimed their trial.

On behalf of the prosecution seven witnesses were examined. P.W.-1,

informant of the case Rameshwar Dayal and P.W. 2 Mool Chandra Sadhoo of

the accused Ram Sahai and Mediator of the marraige, P.W. 3 Ram Charan the

Investigating Officer of the case, P.W. 4, S.K.Srivastava who conducted the

post-mortem of the dead body and P.W.-5 Constable Indra Bahadur Singh who

prepared Chick report Exbt. Ka-6 and entered the case in G.D. Exbt. Ka-7 and

P.W. 6 Radheyshyam Soni Constable who brought the dead body at the
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Mortuary and P.W. -7 Kaushal Kumar Sub Inspector who prepared the

Panchayatnama of the dead body were examined. They have proved the

documents relied upon by the prosecution side.

In their statement under Section 313 Cr.P.C. accused have denied the

prosecution case and evidence. Accused Anil Kumar admitted his marraige with

deceased but he had stated that their marriage had taken place more than seven

years before her death. He further stated that he has been falsely implicated in

this case due to enmity and witnesses have stated against him under the pressure

of the Police and they are related to the informant. He further stated that he was

ousted from his parental house 8-9 years before since then he is living in the

hosue of Ram Sahai and Ram Sahai treat him as his elder son. He used to help

Ram Sahai in his family affairs. Ram Sahai get solemnised his marriage and

dowry articles are still with Ram Sahai. Sons of Ram Sahai used to go his In-

laws house. He never made any demand of Motorcycle from his In-laws. When

the occurrence took place , he was in her Mausi’s house sitauted in Atwa Back

and receving information, he came there. He never paid rent of the hosue to

Ram Sahai. Ram Sahai stated that he has no concern with Anil and Anil never

helped him in his family affairs. He was not having any family relation with

Anil. He was his tenant. On the date of occurrence, he himself along with his

sons was at Press and his wife was in her parental house.

In their defence, accused persons have examined one Nand Kishor, as

D.W.-1. He calimed himself neighbourer of Ram Sahai and he tried to support

the case of Anil given by him in his statement under Section 313 Cr.P.C. Record

also shows that on behalf of the accused persons copy of Voter-list and the copy

of the application of the accused Ram Sahai to the S.S.P. was filed.
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After hearing the parties counsel and the State counsel and going through

the record, learned Session Judge passed the impugned judgment and order

holding guilty to the accused persons as above and sentenced them as above.

Aggrieved by this order, appeals were filed.

As earlier said sperately filed appeal of Anil has already abated and the

appeal of Pradeep Kumar has already been order to be abated due to his death.

It is undisputed fact that Anil (deceased) was married with the daughter of

D.W.-1 Rameshwar Dayal. As per prosecution case, the marriage took place on

08.06.1991 but Anil tried to say more than seven years before the death of his

wife marraige was solemnised. Marriage Card filed on behalf of the prosecution

available on the record showing that this marriage has taken place on the same

date i.e. 8th June, 1991 as mentioned in the FIR. P.W.-1 and P.W. -2 have also

supported the case of the FIR in their on oath statement. Defence witness Nand

Kishor had tried to support the case of Anil regarding his marriage more than

seven years before the death of his wife but no documentary evidence was

adduced on behalf of the accused to support this case. There is no reliable and

conviencing evidence on the record on behalf of the accused that marriage of

Anil with the deceased had taken place more than seven years before her death.

It is undisputed fact that Anil with his wife was living in the House of

Ram Sahai, co-accused in seperate room as such was also shown by the

Investigating Officer in the site plan. As per case of the accused Ram Sahai,

Anil was living their as his tenant. Although, Anil claimed in his statement that

he was not tenant of Ram Sahai and was living there as his family memeber but

the Investigating Officer, C.O. had found during the course of investigation that

Anil was living seperatly and Anil was tenant of Ram Sahai and he was living in
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his House for the last 3 to 4 years only. In Court question from the P.W.-1

Rameshwar Dayal, it is on the record that Rameshwar Dayal had admitted that

Ram Sahai has no relation (Restedari) with Anil. There was blood relation-ship

between Ram Sahai and Anil. It is also not case of the prosecution. At the time

of arguments on behalf of the prosecution, it was tried to suggest that Anil was

adopted son of Ram Sahai but nowhere in the evidence of any of the witnesses

that such adoption was according to provisions of Hindu Adoption and

Maintenance Act, 1956. Mere living of Anil with the family of Ram Sahai, may

be as family member, cannot be taken his Adoption by Ram Sahai in the eyes

of Law. In the marriage Card as well as in the Voter List available on the record

Anil was shown son of Jagdish. It is on the record that Anil was not at good

terms with his parents (Janmdata) and he was seperately living from the last 8 -9

years and Anil himself has stated in his statement under Sectin 313 Cr.P.C. that

he was ousted form his parental house 8-9 years before. This all above shows

that Ram Sahai and his two sons and wife were not related with Anil by blood.

Adoption of Anil by Ram Sahai is not established from the evidence available

on record. It is undisputed that Anil with his wife was living in the house of

Ram Sahai. As per prosecution case he was living as family member of Ram

Sahai but as per case of the accused, he was living as tenant in the house.

Learned counsel for the accused-appellant argued that for the sake of

arguments, if it is taken correct that Anil was living in the house of Ram Sahai,

may be as his family member, even then Anil was not related with Ram Sahai

by blood and no adoption of Anil by Ram Sahai is established. Learned counsel

for the appellants argued that to hold the accused-appellants guilty for the

offence under Section 498-A and 304-B IPC, it was mandatory for the
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prosecution to establish that accused-appellants were relative of husband of the

deceased and prosecution has utterly failed to establish as such. In (2009) 6

SCC 757 V. Suvetha Vs. State, apex Court held that “Section 498-A IPC is a

penal one it, thus, deserve strict consideration ordinarily, save and except where

a contextual meaning is required to be given to constitute a penal provisions is

required to be construed strictly.”

” Word relative pressing within its perview a status such a status must be

conferred by blood or marriage or adoption.”

” In absence of any statutory definition the term “relative” must be

assigned a meaning as a commonly understood.Ordinarily it would include

Father, Mother, Husband or wife, son, daughter, brother, Sister, Nephew or

Niece, Grandson or Grand daughter on an individual or a spouse of any person.

Meaning of word ‘relative’ would depend upon nature of the statute.”

Interpretting the word ‘relative’ in Section 498-A IPC, apex Court held

that it principally includes a person related by blood, marriage or by adoption.

It is nowhere stated by the P.W. 1 and P.W. 2 that either Ram Sahai or his

wife and two sons have instigated Anil to make a demand of dowry from his In-

laws. Rameshwar Dayal in court question has specifically stated that Anil has

never made any demand from them. There is also no charge for the offence

under Section 302 IPC against the accused persons. There is also no direct

evidence on record that accused-appellants have sprinklled Kerosene Oil on the

body of the deceased and put to her on fire. Circumstancial evidence of

admissible nature on these two facts are also missing in the prosecution

evidence.

In the facts and circumstances of the case, mere saying that Anil was
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living as family member in hosue of Ram Sahai, he treats him as his guardian

Ram Sahai get performed the marriage of Anil with the daughter of Rameshwar

Dayal, all these cannot bring the accused Ram Sahai and his wife and two sons

within the definition of relatives of the husband of the deceased to hold guilty

for the offence under Section 498-A & 304-B IPC and the order passed by the

trial court holding guilty to the accused-appellants for the offence under Section

498-A and 304-B IPC and sentencing them cannot be said according to law and

the same is liable to be set aside.

Accused appellants were also charged to face trial under Section 4 of the

Dowry Prohibition Act. Section 4 of the Dowry Prohibition Act provides as

follows :

[4. Penalty for demanding dowry.- If any person
demands, directly or indirectly, from the parents or other relatives or
guardian of a bride or bridegroom, as the case may be, any dowry,
he shall be punishable with imprisonment for a term which shall not
be less than six months, but which may extend to two years and
with fine which may extend to ten thousand rupees:

Provided that the Court may, for adequate and special
reasons to be mentioned in the judgement, impose a sentence of
imprisonment for a term of less than six months.]

This provision clearly shows that here relation ship as above with the

husband of the deceased is not to be seen for convicting the accused persons

under Section 4 of the D.P.Act. It is specific case of the P.W.1 Rameshwar

Dayal that Anil (deceased) has never made any deamand of dowry from them

after the marriage. It is said by him that once Ram Sahai, accused and his wife

has made demand from him of Rs. 25,000/- and of a Motorcycle and pressing
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their this demand they had left the deceased in his house. After 18 months when

he paid them Rs. 5,000/- cash, Electric Fan and a Box through Pradeep. She

was brought by Pradeep at the house of Anil who was residing with Ram Sahai.

Again accused Pradeep came at his house and pressed for the rest amount and

Motorcycle then he stated that he is not in the capacity to satisfy their demand at

this time. Pradeep returned to his house and after 7 -8 days he was informed by

Pradeep and Babloo along with there other unknown persons that his daughter is

seriously ill. On this information when he went to the house of the accused Ram

Sahai, he found her daughter’s dead body due to burn injuries and he was

informed by the neighbourers that she was put on fire by the accused persons.

Already said there is no direct or clear circumstancial evidence to hold guilty to

the accused persons for the offence under Section 302 IPC and they are also not

charged for that offence. P.W.2 had also supported on oath version of the P.W.1

regarding this demand of dowry on behalf of the appellants. It is also on the

record that Anil was living with his wife at the house of Ram Sahai though in a

seperate room. Deceased was brought at the same house after marriage and it is

the case of P.W.1 that Ram Sahai was Malik of the marriage. It is also on record

that Anil used to treat Ram Sahai as his guardian. Anil himself has stated in his

statement under Section 313 Cr.P.C. that articles received in the marriage were

with Ram Sahai and his sons used to visit his In-laws house . Learned Trial

Court after relying upon the evidence available on record found that this

demand case by the accused-appellant is established on the record. No

discrepancy, material contradiction, Unnaturality and improbaility in the

statement of P.W.-1 and P.W. 2 has been pointed out on behalf of the appellants.

This case was not developed on behalf of the prosecution later on. This is case
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is there since very begining since the FIR.

Learned counsel for the appellants argued that from the on oath statement

of P.W.1 and P.W.2 and from the facts narrated in the FIR, it reveals that

allegations of pressing the demand of dowry are against the accused Ram Sahai

and his wife and his one son Pradeep but nowhere it is specifically mentioned

that Ram Sahai’s other son Babloo has also pressed and made a demand either

from the deceased or from her parents. Visiting by Babloo hosue of P.W. 1 is

only said to inform about the illness of the deceased. At that time also he has

pressed about such demand, it is not a case of the prosecution. After going

through the record, learned AGA conceded the correctness of this fact that there

is no clear evidence on record about involvement of accused Babloo in case of

demand of dowry from the deceased or her parents. No overt act or instigation

has been attributed to Babloo to hold him guilty for the offence under Section 4

of the D.P.Act.

Pradeep has already died and orders of abating his appeal has already

been passed.

From the above all discussions, it is clear that from the facts and evidence

available on the record charge levelled against the accused Ram Sahai, Smt.

Shiv Kali is fully established. They both were rightly convicted by the trial

court for the offence under Section 4 of the Dowry Prohibition Act.

Learned counsel for the appellants prayed for lenient view in the matter.

Seeing the heniousness and seriousness of the case and the role played by both

the appellants in the case matter they doe not deserve for leniency in the

sentence awarded to them by the trial court. Their sentence under Section 4 of

the D.P.Act is to be confirmed.

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Accordingly, Appeal is partly allowed as follows:

Accused Babloo is acquitted from the charges levelled against him under

Sections 498-A, 304-B IPC and Section 4 of the D.P. Act. His bail bonds are

hereby cancelled and the sureties are discharged.

The finding of conviction and sentence awarded to the appellants Ram

Sahai, Smt. Shiv Kali for the offence under Sections 498-A and 304-B IPC are

hereby set aside and they are acquitted from these cases.

Sentence awarded to the accused appellants by the trial court to Ram

Sahai and Shiv Kali for the offence under Section 4 of D.P.Act is hereby

confirmed.

Bail of the accused appellants Ram Sahai and Shiv Kali is hereby

cancelled. They are not present today in the court. Record of the case with the

copy of the judgement be sent to the trial court forthwith. The trial court will

take all steps to procure the attendance of these two accused-appellants by

issuing N.B.W. and other process according to law and after their appearance or

production, they will be sent to jail to serve out the rest sentence awarded to

them.

17.06.2010
Kaushal


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