CHHAIL BEHARI Vs. STATE OF U.P

JUDGEMENT

(1.) CHHAIL Behari and Rupan Lal preferred this appeal against the judgment and order dated 24th July, 1995 passed by Ist Additional Session Judge Lakhimpur Kheri in Session Trial No. 336 of 1991, Crime No. 401 of 1991, under Sections 498-A and 304B I.P.C., P.S. Singhai, District-Kheri, convicting the appellants under Section 498-A I.P.C. for two years rigorous imprisonment and under Section 304-B I.P.C. seven years rigorous imprisonment. The prosecution case in brief is that one Rameshwar Dayal lodged a written report at Police Station Singhai alleging that his sister Smt. Patuva aged about 19 years was married to Chhail Behari about 1 and 1/2 years ago. Her husband and father-in-law Rupan Lal had demanded Motocycle several time. The complainant and his family members told the accused persons that they were unable to give Motorcycle at present, but whenever in future they are capable of arranging the Motorcycle they will give Motorcycle. Inspite of this assurance Chhail Behari and Rupan Lal did not believe it they used to torture Smt. Patuva occasionally for non delivery of Motorcycle. Smt. Patuva then sent a message to the complainant that she should be taken back to her parent house otherwise she will be killed by her in-laws any time. On this, complainant's father Manohar Lal went to the house of accused person for Vidai of Smt. Patuva in the morning of 03.06.1991, but her in-laws did not sent her. The same evening Chhail Behari and Roopan Lal killed her by administering poison. The dead body of complainant's sister is lying at her house. On this report, F.I.R. was registered and investigation was started. After completion of investigation, charge-sheet was submitted against the appellants under Section 498-A/304-B I.P.C and ¾ of Dowry Prohibition Act. The case was committed by the Magistrate concerned to Session Court and charges were framed against accused persons in Session Court under Section 498-A and 304-B of the I.P.C. Prosecution in support of his case examined Mohan Lal father of the deceased as P.W.-1, Rameshwar Dayal complainant as P.W.-2, Constable Yamuna Deen Dixit as P.W.-3, and Ramashrey Singh I.O. as P.W.-4. Statement of accused persons were recorded under Section 313 Cr.P.C. in which they denied the prosecution case and stated that they were falsely implicated due to enmity. In defence accused appellants examined D.W.-1 Teeka Ram. He is samdhi of accused Roopan Lal and brother-in-law (Sala) of P.W.-1 Manohar Lal. After hearing the argument of both side learned Session Judge convicted Chhail Behari and Roopan Lal under Sections 498-A I.P.C. to undergo rigorous imprisonment of two years and under Section 304-B I.P.C. to undergo rigorous imprisonment of seven years. Aggrieved by the said judgement, present appeal was preferred by appellants mainly on the ground that judgment and order of the court below is illegal and against the evidence on record. There is major contradiction between the allegation made in F.I.R. and statement. The judgment was passed only on the basis of circumstantial evidence. Court below has wrongly rejected the testimony of defence witness D.W.-1. The judgment and order is perverse in law and fact both.

(2.) HEARD learned counsel for the appellants and learned A.G.A. for State. Learned counsel for the appellants submitted that as per post mortem report there was only one ante-mortem abraded contusion was found and Viscera was preserved, but as per opinion of doctor cause of death could not be ascertained when the cause of death could not be ascertained then it can not be said that how deceased died and it cannot be said that death is otherwise than a normal death and no offence against accused appellants is made out under Section 304-B I.P.C. Prosecution has to prove that death is not in normal circumstances, but prosecution failed to prove it because there is no Viscera report on record and even as per medical report cause of death is not ascertained. When cause of death is not ascertained then it can not be said that death is otherwise than under normal circumstances. Hence no offence under Section 304-B of I.P.C. is made out. Prosecution has to prove his case beyond all reasonable doubt, but in this case prosecution totally fails to prove his case beyond reasonable doubt. Prosecution has not discharged his burden. There are major contradiction in the evidence of witnesses. The death of deceased is not a dowry death because the conduct of accused persons is very important if it is a dowry death they must have run away but they remained present at the spot and they did not cremated the body in the night even when father of the deceased was not there. They waited for complainant to reach from Nepal in the morning and after his arrival they cremated the body which shows that there is no involvement of accused persons in the death of deceased. The death of deceased is a normal death and it cannot be said that death is not under normal circumstances. The defence witness D.W.-1 Teeka Ram who is also the relative of complainant clearly stated that there was never any demand of dowry and accused persons has no concerned with the death of the deceased. In these circumstances, prosecution fully failed to prove his case and accused persons are liable to be acquitted.

(3.) TO prove the case under Section 304-B I.P.C. essential components are (1) death of woman occurring otherwise than under normal circumstances within seven yeas of marriage; (2) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand of dowry. When the above ingredients are fulfilled the husband or his relatives who subjected her to such cruelty or harassment can be presumed to be guilty of offence under Section 304-B of I.P.C. as held in Satvir Singh Versus State of Punjab (2001) 8 SCC 633. The Hon'ble Apex Court in Kansraj Versus State of Punjab (2000) 5 SCC 2007, held that in a case of dowry death the prosecution is obliged to prove that (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected to soon before her death.