1 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
2
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
3
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
4
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.
5
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
6
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
7
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
8
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
9their 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
10
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.
11
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
