HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 28.10.2015 Delivered on 06.01.2016 Court No. - 53 Case :- CRIMINAL APPEAL No. - 7316 of 2010 Appellant :- Greesh Respondent :- State Of U.P. Counsel for Appellant :- Vijay Tripathi,Apul Misra,Rajeev Kumar Counsel for Respondent :- Govt.Advocate With Case :- CRIMINAL APPEAL No. - 6549 of 2010 Appellant :- Jagatpal Singh & Another Respondent :- State Of U.P. Counsel for Appellant :- Vijay Tripathi,Apul Misra,Rajeev Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
1. The present criminal appeals have been filed against the judgment and order dated 7.9.2010 passed by the Additional Sessions Judge Room No. 3, Farrukhabd in Session Trial No. 209 of 1998 (State of U.P. Vs. Jagat Pal & others) arising out of Case Crime No. 126 of 1997, underSections 498-A, 304-B, 201 I.P.C. and 3/4 D.P. Act, P.S. Paraur, District Farrukhabad whereby the appellants have been convicted and sentenced to undergo two years rigorous imprisonment with fine of Rs. 2,500/- under Section 498-A I.P.C. and in default of fine two month rigorous imprisonment, 10 years rigorous imprisonment under Section 304-B I.P.C., 3 years rigorous imprisonment with fine of Rs. 5000/- under Section 201 I.P.C. and in default of fine four months additional imprisonment and 5 years rigorous imprisonment with fine of the Rs. 5000/- under Section 3/4 D.P. Act. and in default of fine four months additional imprisonment.
2. Both the connected criminal appeals arising out of a common order passed by the trial court. Hence, both the appeals are being decided by common judgement.
3. The prosecution story in brief is that the niece of the informant, namely, Omwati was married about six years ago with Greesh Chandra son of Jagat Pal Singh resident of village Sohad, District Farrukhabad and sufficient dowry was given to the in-laws of niece of informant. Her husband Greesh Chandra, father-in-law Jagat Pal Singh and Chachiya Sas Memo Devi was not satisfied with the dowry given by the informant. From the time of the marriage, they were demanding a Yamaha motorcycle and ornaments weighing 2 Tola (24 grams). The informant and his brother had gone to her in-law of niece and pacified them but their conduct did not change and they used to torture and harass the deceased. On 12.11.1997 at 9 p.m. in the night Memo Devi, Jagat Pal Singh and Greesh Chandra due to want to dowry had strangulated the deceased to death and also disposed of her dead body. The information about the incident was given to the informant by his brother-in-law, namely, Jimipal Singh on which, the informant and other persons of the village had arrived at the village of her niece. On the information given by the villagers that her niece has been done to death by Greesh, Jagat Pal Singh and Memo Devi and her dead body has also disposed of. The informant went to lodge the F.I.R. but his report was not lodged, hence he moved an application to the S.S.P., Fatehgarh, Farrukhabad and thereafter, the same was lodged on 19.11.1997. The F.I.R. was lodged on 19.11.1997 at 5.10 p.m. at P.S. Paraur, District Farrukhabad as Case Crime no. 126 of 1997, under Section 304-B I.P.C. and 3/4 D.P. Act. The investigation of the case was carried out and the Investigating Officer recorded the statement of the witnesses, prepared site plan, visited place of occurrence and submitted charge sheet against the accused persons. The charges were framed against the accused on 12.1.1999, under Sections 498-A, 304-B, 201 I.P.C. and 3/4 D.P. Act. They denied the charges and claimed their trial.
4. The prosecution in support of its case examined P.W. 1 Satish Singh, P.W. 2 Omkar, P.W. 3 D.R. Araya, P.W. 4 Constable Dev Sharan Mishra. The documentary evidence filed by the prosecution are application moved by the informant for lodging the F.I.R. to S.S.P., Fatehgarh Ex. Ka-1, site plan Ex. Ka-2 and Ka-3, Charge sheet Ex. Ka-4 and Ka-5, G.D. Ex. Ka-6 and F.I.R. Ex. Ka-7 etc.
5. The statement of accused was recorded under Section 313 Cr.P.C. and they have denied the prosecution case and submitted that the deceased died on account of illness and the witnesses have falsely deposed against the appellants on account of enmity. They have file their written submissions in their defence.
6. The accused Memo Devi (since deceased) had stated that there was an enmity between her father and the family of the informant Satish Singh because of which she was falsely implicated in the present case. The marriage of the deceased Omwati was solemnized with accused appellant Greesh Chandra in the year, 1998 without any dowry. She had also denied the allegation of demand of motorcycle and gold ornaments. She stated that she was living separately at Jalalabad and she has also filed some documents showing her separate living.
7. The accused appellant Greesh Chandra has also denied the prosecution case and has submitted that the marriage between him and deceased Omwati was solemnized on 24.6.1988 without any dowry with the consent of both the families as his father-in-law Omkar was not having good financial condition. Hence, the entire expenses of the marriage was borne out by his father Jagat Pal Singh. He has also denied the allegation of demand of motorcycle and gold ornaments from the parents of the deceased nor has tortured the deceased. He further stated that from their wedlock a daughter was born on 1.1.1990, namely, Rubi and thereafter a son was born. He has also filed a birth certificate of his daughter Rubi. He has further stated that after giving third baby, his wife’s health was not good and she remained ill for which he had also got her medically treated but on 8.11.1997 she suffered from Cholera for which she was taken to Dr. Yashwant Lal Sharma at Jalalabad, who gave her medical treatment but she could not survive and died. He has further sent an information about the death of the deceased immediately by one Ratibhan and Bankey Mehtar on which the family members of the deceased had come to village Sohad and in their presence last rites of the deceased was performed on 12.11.1997 and at that time there was no dispute between them. But on the next date, the father of the deceased Omkar, uncle Satish and Jagdish had come to his village and had started demand of ornaments and Rs. 50,000/- from his father which was refused by him and on account of which they had lodged the present F.I.R. after due consultation and deliberation against him and his father just to harass them. He has also filed list of documents as paper no. 16-B/6 to 16-B/8 in defence.
8. The accused examined D.W. 1 Kanhaiya Lal, D.W. 2, Sri Niwas, D.W. 3 Bhupendra and D.W. 4 Chaviram.
9. P.W. 1 Satish Chandra Singh, who is informant of the case and uncle of the deceased Omwati has stated that her niece was married to the accused appellant Greesh Chandra six years prior to the incident and he further reiterated the prosecution story as stated by him in F.I.R. He further stated that he came to know about the incident from his brother-in-law Jimipal on which he along with his brother P.W. 2 Omkar father of the deceased and other persons of the village went to the house of the appellants and he came to know from the villagers that his niece was done to death by her husband, father-in-law and Chachiya Saas and have further disposed of dead body after burning the same. He has admitted in his cross examination that he has received the information about the death of her niece on 12.11.1997 at 4 to 5 p.m. in the evening from his brother-in-law Jimipal and receiving the said information, he reached the village Sohad along with Vedpal, Kunwar Pal and Mithalesh Kumar by 7 to 8 p.m. He has denied the suggestion of the defence that the marriage of his niece with Greesh was solemnized on 24.6.1988 but he did not remember the date of marriage. He has further stated that a daughter was born from the wedlock of accused appellant Greesh Chandra and deceased, namely, Rubi. He has further denied the suggestion that daughter of the accused appellant, namely Rubi was born on 31.12.1989 her date of birth has been mentioned in school as 1.1.1990. He has further stated before the trial court that he had engaged a private counsel Sri Asharrfi Lal for doing pairvi of his case and Sri Asharfi Lal, who used to sit along with Sri Hakim Singh Yadav, who has present in the court. He has contacted his lawyer next day after the death of her niece Omwati and further after due consultation and deliberation with Sri Asharfi Lal, he lodged the present F.I.R. He further deposed that on 15.11.1997 he got an application moved to S.S.P. Fatehgarh for lodging an F.I.R. He denied the suggestion that his niece died due to illness and further they had received any information about the incident from Bankey Mehtar. He further denied the suggestion that he along with other family members of the deceased had participated in the last rites of the deceased and when they made illegal demand from accused appellant Greesh Chandra and father-in-law Jagatpal, which was refused, they have falsely lodged F.I.R. against them.
10. P.W. 2 Omkar, who is father of the deceased has also reiterated the prosecution case as stated in F.I.R. of P.W. 1. He stated that the marriage of his daughter with accused appellant Greesh Chandra was performed about six years prior to the incident. He stated that in the month of June marriage was performed but he does not remember the year of the marriage. He further stated that he could not remember whether the marriage of his daughter was performed on 26.6.1988 or not. He deposed that there were two children of deceased Omwati. The name of daughter was Rubi and the name of his son was Atul. He further stated that he does not know whether the date of birth of daughter of the deceased, namely, Rubi was 1.1.1990. He further does not know how many years back his grand daughter and grand son were born. He submitted that his brother P.W. 1 Satish Chandra was an Army man and when the incident was taken place his brother was on leave at his house. He does not know that it was stated by him that he received the information about the death of his daughter on 13.11.1997 at 2 p.m. and after opinion from his brother-in-law Jimipal, it was informed by him that his daughter was done to death by her in-laws house and dead body was disposed of. On the information received, he along with his brother Ved Pal and other persons of his village went to his daughter’s matrimonial home. On 13.11.1997 did not lodged the F.I.R. as they had reached in the night and on 14.11.1997, he along with his brother had gone to the police station but their report was not lodged. The information was given to the police station orally. He was sitting outside the police station whereas his brother had gone to give information about the incident. He did not know the scribe of the F.I.R. He further denied the suggestion that on the next day with due consultation and deliberation his brother Satish Chandra had engaged an Advocate Sri Asharfi Lal as a counsel in the case. He also denied the suggestion that his daughter died on 12.11.1997 at 9 p.m. in the night due to illness and further any treatment was done by Dr. Yashwant Lal at Jalalabad. He stated that the deceased prior to her death had lived with him for about two years and 3 to 4 months prior to the incident, she was brought by her husband Greesh Chandra and her Buwa Memo Devi.
11. P.W. 3 D.R. Arya, who was Investigating Officer of the case has deposed that he had carried out the investigation of the present case and recorded the statement of witnesses under Section 161 Cr.P.C. and prepared the site plan. He arrested the accused Jagatpal Singh on 27.11.1997 and recorded his statement and further arrested the accused Greesh Chandra on 10.12.1997 and further made efforts to arrest co-accused Memo Devi and when she could not arrested, he got an order from the Magistrate for initiating proceedings under Section 82 and 83 Cr.P.C. and thereafter, Memo Devi surrendered on 24.2.1998 in the court. He further submitted charge sheet against accused Jagatpal, Greesh Chandra and Memo Devi under Section 498-A, 304-B and 201I.P.C. and Section 3/4 D.P. Act and he has proved the other police papers. He deposed that he has recorded the statement of the neighbours of accused Greesh Chandra and none of the witnesses have stated that any demand was being made from the deceased or his family members and further stated that her death was not due to non fulfillment of demand and further they have stated that deceased died due to vomiting. The accused Jagatpal and other persons of the village, namely Chotey Lal and Ram Saran have stated that the marriage between the deceased and accused appellant Greesh Chandra was performed about 8 to 9 years ago. He has not recorded the statement of witness Jimipal nor the informant had produced him. He has also not recorded the statement of the children of accused Greesh Chandra as they were minor.
12. P.W. 4 Dev Sharan Mishra, Constable C.P. 38 has given secondary evidence and stated that Constable Clerk 2662 Virendra Pal Singh was posted along with him at police station Shahjahanpur and he has witnessed him and he identified his signature and thus he has proved the Ex.Ka-7 and Ex. Ka-8 which was in the handwriting and signature of constable Virendra Pal Singh. He does not know where Constable Virendra Pal Singh is posted.
13. In defence the accused examined D.W. 1 Kanahiya Lal, who was an employee working in the office of C.M.O. Fatehgarh to prove paper no. 41-A/13 which was issued by the then C.M.O. Dr. Zamil Ahmad under the seal and signature of the said doctor and the said certificate has been marked as Ex. Kha-1. He submitted that C.M.O. Zamil Ahmad had died but he did not know the date of his death.
14. D.W. 2 Sri Sriniwas, who is the son of Dr. Yashwant Lal Sharma, is stated to be medical practitioner with whom the deceased was taken by her husband for treatment when she fell ill. The said witness has stated that his father was an Ayurvedic doctor was having a degree of B.U.M.S. and his father Dr. Yashwant Lal Sharma had died in the year, 2002. He has further witness his father’s handwriting and signature and has proved paper no. 16-B/6 to 16-B/7 which was in the handwriting and signature of his father. He deposed that his father is used to maintain a register of examination the patients. He denied the suggestion that his father was not a doctor nor he used to give any medical slips or any such slips were not signed by his father.
15. D.W. 3 Bhupendra, who is the Principal of Sarswati Gyan Mandir, Jalalabad, District Shahjahanpur, who stated that who was the Principal of the said institution in the year, 1994 and was working there. He has proved the paper no. 16-B/8, which was a certificate and he stated that it was issued from his college. He stated that the said certificate was in the handwriting and signature of Sri Vijendra Singh, who was working in the college and was working under him. He proved the said certificate as Ex. Kha-3 and stated that it was in the name of Rubi daughter of Greesh Kumar, who was the student of his college. He stated that she was a student from 1995 to 1999 as a regular student and her date of birth was mentioned therein as 1.1.1990. He further deposed that on 5.7.1997, he was the Principal of the and he has done the admission of Rubi. He further deposed that the said date of birth has been mentioned in the form by her parents. He further denied the suggestion that Rubi daughter of Greesh was not student of the said school.
16. D.W. 4 Chavi Ram, who is the neighbour of accused appellant Greesh Chandra has stated that the wife of accused Greesh Chandra died due to dehydration and vomiting on 11.11.1997 as he was a neighbour taken care of the wife of Greesh Chandra. He further stated that he had gone at Jalabad to inform Memo Devi wife of late Veer Pal, who was Buwa of Greesh Chandra. He in his cross examination has stated on 11.9.1997, the deceased fell ill on 11.11.1997, she died because of the illness and he did not know the name of the doctor who was treating her but her treatment was being done at Jalalabad.
17. Heard Sri Dileep Kumar, learned counsel for the appellant and Awadhesh Kumar Saxena, learned AGA for the State.
18. It has been argued by the learned counsel for the appellant that the marriage between the accused appellant Greesh Chandra and deceased was performed on 24.6.1988 and from their wedlock two children were born, namely daughter Rubi and son Atul. He submitted that the daughter of the appellant Greesh was born on 1.1.1990. Hence, the case of the prosecution, the marriage of the deceased with appellant Greesh was solemnized about six years ago is absolutely false and just in order to bring the case within the purview of dowry death the said version has been set up by the prosecution. He argued that none of the witnesses neither P.W. 1, who is uncle of the deceased nor P.W. 2 father of the deceased have disclosed the date of marriage and they have only stated that the marriage was performed about 5 to 6 years prior to the incident. He argued that as the elder daughter of the appellant Greesh and deceased was born on 1.1.1990, therefore, the marriage is presumed to have taken place beyond seven years. Thus, the case does not come within the purview of dowry death as the basic ingredients of Section 304-B I.P.C. are not fulfilled. In order to bring a case under Section 304-B I.P.C. the death of a woman must have taken place within seven years of the marriage. He urged that in defence D.W. 3 Bhupendra, who is Principal of Saraswati Gyan Mandir at Jalalabad has been produced who has stated before the trial court that the certificate which was issued from the college i.e. Ex. Kha-3 paper no. 16-B/8 by Vijendra Singh, an employee of said institution and working under him. The date of birth has been mentioned as 1.1.1990 and further Rubi daughter of accused appellant Greesh Chandra was a regular student of said institution from the year, 1995 to 1999 and her date of birth was filled by her parents and there is no reason to doubt about the testimony of the said witness. He submitted that the deceased after giving birth to three children out of which two were alive, namely Rubi and Atul as she was weak and had fallen ill and she died on account of illness for which she was also taken to a doctor at Jalalabad, who has issued some medical slips regarding her treatment which is also on record has been proved by his son D.W. 2 Sriniwas as the said doctor had died. He contended that the said doctor was no doubt an Aurvedic doctor but in the village he was only available to treat and attend the villagers from any illness. He further argued that P.W. 1 is uncle of deceased was an Army man and when he came to the village after receiving the information about the death of the deceased then he lodged the present F.I.R. after due consultation and deliberation with the lawyer as has come in his evidence with an ulterior motive to extract money from the appellants, who are husband and father-in-law of the deceased and also falsely implicated the accused appellant Memo Devi (since deceased) with whom he had enmity. The deceased died a natural death and her information about her death was also sent by in laws of the deceased through Bankey Mehtar and other persons of the village. The father of the deceased arrived and the last rites were also performed in the presence of the father of the deceased and other family members. He submitted that P.W. 2 father of the deceased also did not lodge the F.I.R. about the incident though he has received information on 13.11.1997 and he only on written report of his brother P.W. 1 Satish Chandra, who lodged the F.I.R. on 19.11.1997 in consultation with an Advocate at Fatehgarh which shows that the said F.I.R. is after thought. Moreover, there appears to be no explanation for delay in lodging the F.I.R. of the incident. The case of the prosecution the deceased was done to death is absolutely a false case and has no legs to stand. He further argued that the deceased was living at her parents house for the last two years and she had come 3 to 4 months prior to the incident and there is no evidence to show that the deceased was subjected to death and cruelty and harassment by the appellant for demand of dowry. Hence, the finding recorded by the trial court and presumption drawn under Section 113-B of the Evidence Act is absolutely incorrect, therefore, the appellants conviction under Sections 498-Aand 304-B by the trial court is liable to be set aside by this Court.
19. Learned counsel for the appellants also pointed out that the accused Jagat Pal, whose is about 80 years of age whereas accused appellant Greesh Chandra, who is husband of the deceased has already served out more than 5 years in jail out of maximum sentence of 10 years rigorous imprisonment awarded to him under Section 304-B I.P.C.
20. Learned AGA on the other hand has argued that the deceased died in an unnatural circumstances in her matrimonial home within seven years of marriage. Hence, the conviction and sentence passed by the trial court is absolutely correct and the appeal be dismissed as it is devoid of merits.
21. Considering the submissions advanced by the learned counsel for the parties and perused the record.
22. It appears from the record that the deceased no doubt died in her matrimonial home but whether the death of the deceased was a natural or she died unnatural death in her matrimonial home is to be adjudged from the evidence which has been produced by the prosecution. In this regard the evidence of P.W. 1 and P.W. 2 is to be considered in order to bring out a case of dowry death against the accused appellants. From perusal of the evidence of P.W. 1, who is uncle of the deceased and was employed an Army man appears to be not present at the time of incident and he had come on leave after receiving the information about the death of the deceased. His evidence shows that he has only stated that the marriage of deceased with Greesh Chandra was performed six years ago prior to the incident. He was not aware of the date of marriage. Moreover, he has stated in F.I.R. that he came to know from the villagers that deceased was strangulated to death and her dead body was disposed of. His evidence further shows that he along with his brother P.W. 2 Omkar and other persons of the village on receiving the information from his brother-in-law Jimi Pal had reached in the house of in-laws of the deceased on 13.11.1997 at 7 to 8 p.m. Whereas P.W. 2, who is father of the deceased has stated that they came to know about the incident after receiving the information about the death of the deceased on 13.11.1997 and they reached the village of the deceased and no person went to the in-laws of the deceased. On the next date even he has denied going with P.W. 1 to the village of the deceased on the next date. P.W. 1 further stated that he had contacted a private counsel for doing pairvi in the present case and he after due consultation has moved an application to S.S.P. Fatehgarh on 15.11.1997 for lodging the F.I.R. as his F.I.R. was not lodged. P.W. 2 Omkar, father of the deceased has also deposed before the trial court that the marriage of his daughter with accused appellant Greesh Chandra was performed five years ago prior to the incident and from wedlock of accused appellant Greesh Chandra and deceased, two children were born and the daughter Rubi was eldest. He has stated before the trial court that the marriage was performed in the month of June but he did not remember the date of marriage nor the year of the marriage. He further denied the date of birth of Rubi also to be 1.1.1990. He further deposed that he along with P.W. 1 had gone to the concerned police station to give information about the death of the deceased and both the witnesses P.W. 1 and P.W. 2 have denied the suggestion of the defence that the marriage has taken place beyond seven years i.e. 24.6.1988. Further they have also denied the suggestion about the death of birth of the daughter Rubi i.e. on 1.1.1990. They have further tried to give some explanation regarding the delay in lodging the F.I.R. and further they have denied the suggestion that the deceased died on account of illness as has been suggested by defence. It was denied by them that they participated in the last rites of the deceased and they made illegal demand from the husband and father-in-law of the deceased then they refused they lodged F.I.R. with due consultation and deliberation under a legal mind from Asharfi Lal, Advocate. From the evidence of the said two witnesses, their conduct shows that they have not come up with a true case and they have conceal the actual incident and it is highly improbable that both the witnesses does not remember the date of marriage neither year of marriage of the deceased with accused appellant Greesh Chandra. Further they have also denied the date of birth of Rubi which goes to show that the marriage was performed beyond seven years prior to the incident as the same was also proved by P.W. 3 D.R. Arya and from school record. Moreover, the case which was set up by the prosecution that the deceased was subjected to cruelty and harassment for want of dowry by her husband and father-in-law, does not inspire confidence.
23. The finding which has been recorded by the trial court for conviction of the appellants underSections 498-A, 304-B I.P.C. drawing presumption under Section 113-B of the Evidence Act does not appear to be correct as the basic ingredients of 304-B I.P.C. are also not fulfilled in the instant case. Particularly, it has not been established by the prosecution that the marriage between the deceased Omwati and accused appellant Greesh Chandra was performed within seven years and further she was soon before her death was subjected to cruelty and harassment by her husband and any other relative in connection with any demand of dowry, so as to bring the present case to be a case of dowry death.
24. The Apex Court in the case of Rajinder Singh Vs. State of Punjab reported in (2015) 6 SCC 477 has dealt with the meaning of “Dowry Death” in para nos. 7, 8, 9 and 10 which are quoted herein below :
“7. The primary ingredient to attract the offence under Section 304B is that the death of a woman must be a “dowry death”. “Dowry” is defined by Section 2 of the Dowry Prohibition Act, 1961, which reads as follows:
“2. Definition of “dowry”.-In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I.- [***] Explanation II.-The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).”
8. A perusal of this Section shows that this definition can be broken into six distinct parts.
1) Dowry must first consist of any property or valuable security
– the word “any” is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.
2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.
3) Such property or security can be given or agreed to be given either directly or indirectly.
4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.
5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised.
6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression “in connection with” would in the context of the social evil sought to be tackled by theDowry Prohibition Act mean “in relation with” or “relating to”.
9. The ingredients of the offence under Section 304B have been stated and restated in many judgments. There are four such ingredients and they are said to be:
(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;
(b) such death must have occurred within seven years of her marriage;
(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(d) such cruelty or harassment must be in connection with the demand for dowry.
10. This has been the law stated in the following judgments:
Ashok Kumar v. State of Haryana, (2010) 12 SCC 350 at pages 360-361; Bachni Devi & Anr. v. State of Haryana, (2011) 4 SCC 427 at 431, Pathan Hussain Basha v. State of A.P., (2012) 8 SCC 594 at 599, Kulwant Singh & Ors. v. State of Punjab, (2013) 4 SCC 177 at 184-185, Surinder Singh v. State of Haryana, (2014) 4 SCC 129 at 137, Raminder Singh v. State of Punjab, (2014) 12 SCC 582 at 583, Suresh Singh v. State of Haryana, (2013) 16 SCC 353 at 361, Sher Singh v. State of Haryana, 2015 1 SCALE 250 at 262.”
Thus, if the basic ingredients of Section 304-B I.P.C. are not fulfilled then the conviction of the accused is not sustainable.
25. The evidence of D.W. 3, Bhupendra who is Principal of Saraswati Gyan Mandir, goes to shows that the date of birth of Rubi was endorsed in the school record on 1.1.1990 by her parents which shows that marriage between the appellant Greesh Chandra and deceased Omwati was performed beyond seven years of the incident and there is no material to discard the testimony of D.W. 3. Moreover, the case set up by the defence that the deceased after giving birth three children out of which one died and two survive. She was of weak physique and on account of illness she died for which she also taken for medical treatment by Dr. Yashwant Lal Sharma, who was an Ayurvedic doctor in the village. The deceased was taken by her husband for treatment which is corroborated by the evidence of D.W. 4 Chavi Ram, who was the neighbour has also stated that he was attending the wife of the appellant Greesh Chandra when she was suffering from dehydration and vomiting and she was died on account of the same and was taken to Jalalabad for medical treatment. Moreover, D.W. 2 Sri Sriniwas, who happens to be the son of the Dr. Yashwant Lal Sharma, who was no more has proved his father’s medical slip which was filed by the defence shows that the deceased died a natural death and the P.W. 1 lodged a false F.I.R. against the appellants along with accused Memo Devo (since deceased) with whom he had some earlier litigation and enmity taking advantage of the present incident. P.W. 2 also colluded with his brother P.W. 1 which shows that the prosecution has not set up a true case against the appellants and their false implication in the present case cannot be ruled out.
26. Thus, from the above foregoing discussion, it is clear that the present case does not fall within the category a case of “dowry death” as the basic ingredients of Section 304-B I.P.C. are missing and the testimony of P.W. 1 and P.W. 2 is not at all worthy to be believed, hence, the conviction and sentence of the appellants on the basis of evidence recorded and the law enunciated by the Apex Court in the catena of decisions referred above is not sustainable in the eyes of law, therefore, the impugned judgement and order passed by the trial court the convicting and sentencing of the appellants, Greesh Chandra and Jagat pal Singh for offences in question is hereby set aside and the appellants are acquitted.
27. The accused appellant Jagat Pal Singh, is on bail and he need not surrender. The bail bond and sureties are discharged. The accused appellant Greesh Chandra is stated to be in jail. He shall be released from jail forthwith, if not wanted in any other case.
28. The accused appellant Memo Devi has died as is evident from the report of C.J.M., Farrukhad dated 8.10.2015. Hence, the appeal of accused appellant Memo Devi wife of late Veer Pal stands abated.
29. The Criminal Appeal No. 7316 of 2010 (Gresh Chandra and State of U.P.) is allowed and Criminal Appeal No. 6549 of 2010 (Jagatpal Singh and another Vs. State of U.P.) is partly allowed.
Order Date :- 06.01.2016