Jamuna Das v. State of U.P. & Ors.

In the present matter this Court while entertaining the appeal has called for the records by virtue of the order dated 25.05.2010. However, on 19.04.2022 and 13.07.2022 the counsel for the appellant was not present and thus, this Court proceeded to pass the following orders:- Order dated:- 19.04.2022 "When the matter was taken up, none present for the appellant as well as accused-respondent nos. 2 and 3. However, learned AGA for the State is present. In the circumstances, let bailable warrant for securing and ensuring presence of accused-respondent nos. 2 and 3 (Yogendra and Urmila) be issued. If the accused-respondent nos. 2 and 3 are arrested or surrender before the Chief Judicial Magistrate concerned, they shall be released on bail on their executing a personal bond and furnishing two reliable sureties in the like amount to the satisfaction of the Chief Judicial Magistrate concerned and also giving an undertaking that he shall appear before this Court either in person or through counsel whenever the case is listed for hearing. The concerned Chief Judicial Magistrate shall also send a compliance report by the date fixed in this case. A copy of this order be sent to the concerned Chief Judicial Magistrate through FAX within five days for ensuring necessary compliance. List this criminal appeal on 13th July, 2022." Order dated:- 13.07.2022 "No one is present on behalf of the appellant even in the revised call. Vide order dated 19.4.2022, bailable warrants were issued against the accused respondents. As per the office report dated 12.7.2022, report from the CJM concerned is still awaited. However, Sri Ravindra Tiwari, learned counsel holding brief of Sri Vinay Kumar Singh, learned counsel for the accused respondents states that the accused respondents no. 2 and 3 have presented themselves before the Court below and obtained bail. Learned counsel for the parties may obtain paper book from the office as per rules. List this appeal on 28.7.2022. As the learned counsel for the appellant is not present and the appeal is of the year 2010, therefore, it is made clear that in case counsel for the appellant is not present on the next date, this Court will proceed to hear the appeal with the assistance of the learned AGA. Learned counsel for the accused respondents undertakes to argue the matter on the next date." Today itself also the learned counsel for the appellant is not present. However, in the light of the order dated 13.07.2022 as referred to above this Court is proceeded to hear the appeal with the assistance of learned A.G.A. Heard Sri Vinay Kumar Singh Chandel, learned counsel for the accused-respondent and Ms. Nand Prabha Shukla, learned A.G.A. with her assistance the present appeal is being decided. This criminal appeal has been instituted at the behest of the appellant who happens to be the father of the deceased before this Court u/s 372 Cr.P.C. being dissatisfied and aggrieved against judgment and the order dated 30.08.2010 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Ghaziabad in Session Trial No. 1825/2006 (State Vs. Yogendra) u/s 498A, 304B IPC and 3/4 D.P. Act, P.S. Sahibabad, District Ghaziabad in Case Crime No. 760/2006. Factual matrix of the case which viewed from bird eye reveals that the deceased Babita who happens to be the daughter of the appellant got married with the accused herein being Yogendra S/o Dhan Prasad on 11.12.2005 who is R/o Gali No. 10, Gagan Vihar, P.S. Sahibabad, District Ghaziabad. Though as per financial capacity the appellant offered gifts and however, the same was not found to be commensurate to the expectations of the accused side. It was further alleged that the accused- husband had illicit relationship with the younger brother's wife Urmila and they used to dislike the deceased and demanded dowry also. It was further alleged that on 19.04.2006 on account of dowry demand the deceased was murdered. Further allegations have been made that on 19.04.2006 the appellant received a phone call regarding the fact that his daughter was unwell and she was being taken for medication to S.D.N. Hospital and she expired in the hospital. As per the prosecution on 05.06.2006 application was submitted for lodging of the FIR and in this regard not only correspondences were made but physical attempts were also made to get the FIR lodged which ultimately was lodged on 03.10.2006 u/s 498A, 304 IPC and 3/4 D.P. Act. Consequent to the lodging of the FIR investigation was put to motion while nominating the inquiry officer. As per the prosecution statements were recorded of prosecution witness and thereafter charge sheet was submitted u/s 498A, 304B IPC and 3/4 D.P.Act. The case was committed to Sessions. Charges were read over the accused who happened to be husband and mother-in-law, they pleaded non-guilty. In order to support the prosecution version the following prosecution witnesses got recorded their statements namely, P.W. 1, Jamuna Das, P.W. 2 Kumari Asha, P.W. 3 Asharfi Devi, P.W. 4 Dr. Sachin, P.W. 5 Daya Nand S.D.M., P.W. 6 Dr. Arvind Kumar, P.W. 7 Constable Braj Pal Singh. Learned trial court by virtue of the judgment and order under challenge acquitted the accused herein. Challenging the judgment of acquittal now the appellant is before this Court. This Court is oblivious of the fact that the present proceedings are under Section 372 of the Cr.P.C. wherein challenge has been raised against the judgment and the order of acquittal. In the matters of challenge so made against the judgment of acquittal the courts cannot simply convert the judgment of acquittal into conviction in a routine manner as the court has to consider the fact and keep in mind the law of the land as consistently held by the Hon'ble Supreme Court in catena of decisions that in the matter of challenge so made against the judgment of acquittal until and unless there are compelling and substantive reasons for overturning the judgment, the said procedure should not be adopted in cursory manner as obviously double presumption of innocence is tagged with the accused. To put in otherwise exception is there that too in the cases where the judgments proceeds towards misreading of the evidence and wrong direction and is not in conformity with the four corners of law and where it is palpably perversed, thus, keeping the said factors in the backgrounds now the present case is to be addressed. To begin with the ocular testimony of prosecution witness is to be scanned. P.W. 1 is the appellant being Jamuna Das, the complainant who lodged the FIR. According to him, his daughter got married with the accused husband on 11.12.2005 and further she was meted with harassment regarding demand of dowry. As the demand of dowry was not being acceded to the same according to the prosecution became the sole reason that eliminating her daughter. Prosecution has come up with a stand that on 19.04.2006 the appellant-complainant received a phone call that the deceased was not feeling well and her condition was severe as she had eaten something and that had made her situation worst and thus they have taken her to S.D.N. Hospital where at she remain alive till 01.05.2006 and then expired. According to the statement of P.W. 1, he had tried his level best for lodging of the FIR but the same was not lodged he had written a letter on 05.06.2006 for lodging of the FIR before higher authorities and he had also produced before the learned trial court and he has also produced registry receipt dated 05.06.2006. So far as P.W.2 is concerned she happens to be Kumari Asha claiming herself to be the eye witness and according to her statement she on the fateful day i.e. 19.04.2006 was 13 years and she was in the deceased's sister house and Urmila being the wife of younger brother of the husband of the deceased had put a tablet in the mouth of the deceased which became the basis of her death. She has also come up with the stand that on 18.04.2006, the deceased's husband and Urmila had administered beating upon her sister in connection with dowry and various injuries were also sustained. Similarly so far as the P.W. 3 being the mother of the deceased, Ashrafi Devi is concerned, she has come with the stand that the deceased was administered threatening and subjected to harassment in connection with Rs. 50,000/- demand for purchase of motorcycle. Section 498A of IPC itself provides for subjecting cruelty upon the woman by the husband or relative of the husband there should be either any wilful conduct which is of a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or help and harassment. So much so, section 304B of the IPC provides penal action to be taken in case of dowry death. The words soon before her death which occurs on account of burn or bodily injuries otherwise the normal circumstances has been interpreted by the Hon'ble Apex Court in the case of Satbir Singh And Another Vs. State of Haryana reported in 2021 (6) SCC 1 wherein paragraph no. 38.3 held as under:- "38.3 The phrase "soon before" as appearing in Section 304-B IPC cannot be construed to mean "immediately before". The prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives." Thus the prosecution has to prove beyond doubt that the deceased daughter was subjected to cruelty and harassment and further the death occurred on account of the same and not in normal circumstances. Though, the same is to be in the perspective of Section 113B of the Evidence Act. Here in the present case P.W.1 is not an eye witness He only received an information on 19.04.2006 regarding eating of some substance which made her condition worst. It has also come on record as per the prosecution that the deceased was hospitalized and she remained there from 19.04.2006 to 01.05.2006. More so the FIR has been lodged on 30.10.2006 that to after a period of approximately 5 and half months. Thus there is a enormous delay in lodging of the FIR. The prosecution has come up with the stand that they taken all possible steps for lodging of FIR which ultimately resulting in writing of the complaint on05.06.2006 before the higher authorities and they claimed to have submitted a postal receipt dated 05.06.2006. However, the learned trial court has analyzed the said aspect while holding that barring the said postal receipt, there was nothing on record to substantiate the fact that the delay was properly explained. More so in the light of the fact that P.W. 2 who happens to be the daughter of the complainant and the sister of the deceased being Kumari Asha she in fact in her deposition has stated that she was along with her deceased sister on 19.04.2006 when she was subjected to certain medicine which made her health worst. Once the P.W. 3 is herself coming up with the stand that she knew about the said fact then to explanation has been offered after exorbitant and huge delay in lodging of the FIR. Hon'ble Apex Court on the question of delay in lodging the FIR and its impact upon the prosecution theory has observed in the case of (1973) 3 SCC 114 Apren Joseph Alias Current Kunjukunju and others Vs. The State of Kerala wherein para 11 following was mandated: "11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, Cr. P. C. As observed by the Privy Council in K. E. v. Khwaja, the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue unreasonable delay in lodging the F. I. R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case." In the case of Tara Singh and others Vs. State of Punjab 1991 Supp (1) SCC 536, the Hon'ble Apex Court in paragraph 4 has observed as under:- "4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case." Yet, in the case of P. Rajagopal and others Vs. State of Tamil Nadu (2019) 5 SCC 403, the Hon'ble Apex Court in paragraph 12 has held as under:- "12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty- bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely." Ignoring the issue of delay, another aspect needs to be considered which is very relevant is the fact that P.W. 3 Km. Asha has come up with the stand that the deceased was subjected to injuries while being administered beating by the accused-husband and the wife of the younger brother of the accused husband but it has come on record during the postmortem that there was no injury marks present in the body. Nonetheless, so far as the issue regarding demand of dowry is concerned, there is no evidence worth consideration was adduced by the prosecution as while interpreting the word soon before the death as held in the case of Satbeer Singh (Supra) the demand should not be strictly before the death but it should be even more than the period which occasioned death but there has to be cogent evidence to support the same. Here in the present case, barring making oral statements there is nothing on record either by way of complaint or otherwise regarding demand of dowry. Nonetheless, it is also important to note that there was no illicit relationship between the deceased's husband and Urmila as observed by the learned trial court particularly when Urmila was living with her husband in a separate place and further she was blessed with three daughters. None of the independent witness were either produced or who entered into the witness box to substantiate the prosecution theory. Having bestowed anxious consideration over the judgment of acquittal this Court find that the judgment of acquittal so passed by the learned trial court has been laid on a solid foundation particularly in view of the fact that not only there is enormous delay in lodging of the FIR which is thoroughly unexplained, the case of the dowry death itself is not proved, the medical evidences does not support the case of the prosecution as no injury was found on the body of the deceased in postmortem and last but not least, the prosecution has miserably fails to show any illicit relationship being developed with the accused- husband and Urmila who happens to accused younger brother's wife. In view of the net analyses of the facts and the law on the subject, this Court finds that the judgment and the order of acquittal passed by the learned trial court does not suffer from any illegality or perversity and further the view so taken by the learned trial court is a possible view and the same does not link the accused with respect to commission of crime and further in the back ground of the fact that double presumption of innocence is tagged with the accused. The above noted proposition of law is clearly spelt out in umpty number of decisions, some of them are as under namely:-Tota Singh and another vs. State of Punjab, (1987) 2 SCC 529, Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, State of Rajesthan vs. State of Gujarat, (2003) 8 SCC 180, State of Goa vs. Sanjay Thakran, (2007) 3 SCC 755, Chandrappa and others vs. State of Karnataka, (2007) 4 S.C.C. 415, Ghurey Lal vs. State of U.P., (2008) 10 SCC 450, Siddharth Vashishtha Alias Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1, Babu vs. State of Kerala, (2010) 9 SCC 189, Ganpat vs. State of Haryana, (2010) 12 SCC 59, Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, (2010) 13 SCC 657, State of U.P. vs. Naresh, (2011) 4 SCC 324, State of M.P. vs. Ramesh, (2011) 4 SCC 786, and Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219, Guru Dutt Pathak vs The State Of Uttar Pradesh (2021), 6 SCC 116. Resultantly, the present appeal stands dismissed. Record of the present case be sent back to the concerned court below. Order Date :- 28.7.2022 Nisha Reason: Location: High Court of Judicature at Allahabad