State Of Up vs Anil Kumar S/O Pokhar Singh

Court: Allahabad High Court

Bench: JUSTICE Manish Kumar Nigam, J.

State Of Up vs Anil Kumar S/O Pokhar Singh And 03 Others on 18 August, 2023

Law Point:

 When charges framed under sections 498A, 304B, 120B and 302/34, IPC and section 4 of DP act and accused persons tried for homicide, then appellant could not have been held guilty for charge under section 306 was for abetment of suicide

JUDGEMENT

1. Upon the death of Krishna Kumari, the daughter of the first informant Lajja Ram Baisala, a First Information Report was lodged on 18.12.2014 with the allegation that Krishna Kumari, who was the daughter of the first informant, had been married to Lalit Mohan Poswal on 15.2.2014 and that Lalit Mohan Poswal; his father Anil Kumar; his mother Simla @ Seema and sister Bhawna tortured Krishna Kumari mentally as well as physically for getting further dowry and ultimately killed her. In the First Information Report, it was stated that the deceased on various occasions had complained about physical torture. It was also stated that the first informant had on three occasions visited the house of the in-laws of the deceased daughter to make them understand that it was not possible for him to give further dowry, yet the in-laws kept on demanding further dowry. It was alleged that the in-laws of the deceased daughter openly asked for a Fortuner Car; 11 lacs rupees; 40 tola gold; a big necklace for the mother-in-law and a gold chain for the husband. It was stated in the First Information Report that the first informant was told by his deceased daughter on an earlier occasion that she used to tell her in-laws that her father would not be able to give any further dowry as he had three more daughters to look after. She allegedly also used to tell her father-in-law that she was in a job earning Rs.40,000/- per month and which money she was always giving to her in-laws. Ultimately in the First Information Report it was alleged that the daughter of the first informant was murdered by the accused on 18.12.2014 for dowry. In this connection, the allegation was that Lalit Mohan Poswal (husband of the deceased daughter); Anil Kumar (father-in-law); Simla @ Seema (mother-in-law); Bhawna (nanad) and Tejpal (mama of Lalit Mohan Poswal) were responsible for the death of Krishna Kumari, the daughter of the first informant and it was prayed that they be punished for having committed murder.

2. The police investigated into the matter and submitted its charge-sheet before the Court which in its turn framed charges against Lalit Mohan Poswal; Anil Kumar, Smt. Simla @ Seema under sections 498-A, 304-B, 120-B and 302/34 of Indian Penal Code and section 4 of Dowry Prohibition Act on 20.6.2016. On 22.11.2016 charges were also framed against Tejpal and Bhawna under the very same sections of Indian Penal Code and Dowry Prohibition Act. Since twice charges were framed, two Sessions Trials came into existence namely Sessions Trial No.332 of 2015 and Sessions Trial No.239 of 2016.

3. A trial was undergone. In it, the prosecution had produced nine prosecution witnesses and the defence had produced 14 defence witnesses. The accused were given an opportunity to give their statements under section 313 Cr.P.C.

4. PW-1 Lajja Ram Baisala was the first informant and the father of the deceased; PW-2 Rajbala was the mother of the deceased; PW-3 Suneel Kumar was the brother of the deceased; PW-4 Dr. Lalit Kumar Singh was the doctor who had conducted the post-mortem; PW-5 Pravin Yadav was the Tehsildar who was given the responsibility of preparing the inquest report; PW-6 Bijendra Singh was the Sub-Inspector who had lodged the First Information Report and had also proven the same and PW-7 Dr. Anoop Singh, PW-8 Anil Kumar and PW-9 Jitendra Kumar were the Investigating Officers.

5. During the trial various documentary evidence were brought on record. Ultimately upon the conclusion of the sessions trial, the accused Anil Kumar and Shimla @ Seema were held not guilty in Sessions Trial No.332 of 2015. Likewise; Tejpal and Bhawna were also held to be not guilty in Sessions Trial No.239 of 2016. However, Lalit Mohan Poswal, the husband of the deceased was convicted for the charge under section 306 IPC in Sessions Trial No.332 of 2015.

6. Aggrieved thereof, the appellant Lalit Mohan Poswal has filed Criminal Appeal No.1823 of 2022. The first informant Lajja Ram Baisala also filed an appeal against acquittal being Criminal Appeal Under Section 372 Cr.P.C. No.672 of 2022. It was filed against the acquittal of Anil Kumar; Shimla @ Seema; Bhawna and Tejpal and for the conviction of Lalit Mohan Poswal under sections 498-A, 304-B, 120-B and 302/34 of Indian Penal Code and section 4 of Dowry Prohibition Act. The State of Uttar Pradesh also filed an appeal being Government Appeal No.356 of 2022 against the judgment and order of acquittal.

7. During the trial, PW-1 had appeared in the witness box and had stated that his daughter had been murdered by the accused persons as their demands for dowry were not fulfilled. He has stated in his statement given before the Court that after the marriage had taken place, he had gone to the house of the in-laws thrice to make them understand that it was not possible for him to give any further dowry. On 12.6.2014, he has stated, he had gone to the house of the in-laws of the daughter and he stayed there for a day and took his daughter back to his house but because of the social pressure, he again sent back her daughter to her in-laws’ house. In July, 2014 again he had brought his daughter to her Maika but again had sent her back to her in-laws’ house. He had stated in his statement-in-chief that Tejpal, one of the accused who was the Mama of the accused Lalit Kumar Poswal, as per his daughter, used to come in the evening everyday and used to instigate other accused persons to ask for dowry. He has further stated that when the accused persons continued with their atrocities then on 11.12.2014 upon getting a phone call from his daughter on 10.12.2014 that the in-laws were indulging in cruelties, had sent his son for bringing the daughter to her Maika. He had stated that on 18.12.2014 before the death had taken place in the morning also his daughter talked to him and had expressed her concern that she would be killed. He has stated that while he was preparing go to to the house of the in-laws of his daughter, he received a message that the daughter had died. The message was received from his son who was living in Pune and was working in the Army. He then reached the spot where the police was present. He had also stated about the articles which he had given at the time of the marriage. In the cross-examination, PW-1 is consistently firm on the statement given in the statement-in-chief and had replied to the questions put to him.

8. PW-2 who was the mother of the deceased also gave her statement and has reiterated the fact that the daughter was being tortured by the in-laws while she was alive and because of the demand of dowry, the in-laws killed her.

9. PW-3 who was the brother of the deceased and son of the first informant also gave his statement and has throughout stated that on various occasions there were phone calls with regard to atrocities which were being meted out to her and has stated that consequent to the atrocities, the deceased was killed.

10. PW-4 Dr. Lalit Kumar Singh who has proved the post mortem report and has stated that the hyoid bone was intact has stated that the death was on account of ante-mortem injuries and because of asphyxia due to hanging.

11. PW-5 was the witness of the inquest. The other witnesses i.e. PWs.-6, 7, 8 and 9 were the Investigating Officers.

12. Sri Satish Chandra Mishra, learned counsel appearing for the appellant, assailing the judgment and order of the Sessions Court dated 5.3.2022, has raised the following grounds :-

(i) The charges were under sections 498-A, 304-B, 120-B and 302/34 of Indian Penal Code and section 4 of Dowry Prohibition Act but the punishment was under section 306 IPC. He has, therefore, submitted that a punishment under section 306 IPC was not possible when the charge was under section 302 as the two offences are of distinct and different categories. He has stated that while the basic constituent of an offence under section 302 is homicidal death, the offence under section 306 is suicidal death and abetment thereof. He, therefore, has submitted that the Court erred in convicting the appellant under section 306 IPC when no case was made out under sections 498-A, 304-B, 120-B and 302/34 of IPC and section 4 of Dowry Prohibition Act. In this regard, learned counsel for the appellant has relied upon a judgment of the Supreme Court in Sangaraboina Sreenu vs. State of Andhra Pradesh reported in AIR 1997 SC 3233.

(ii) Learned counsel for the appellant has submitted that the PWs-1, 2 and 3 were all family members of the deceased and they were all interested witnesses. Even though there were neighbours who must have witnessed the cruelty etc., no independent witness was produced.

(iii) Learned counsel for the appellant has submitted that when throughout PWs.-1, 2 and 3 had stated that the deceased was continuously complaining of harassment, cruelty, demand of dowry and about the apprehension that she might be killed, then complaint ought to have been lodged, but in fact no complaint was made anywhere in writing by the complainants’ family. Learned counsel for the appellant submits that even though on various occasions it has been mentioned that there were phone calls being made by the deceased but no complaint/written complaint was ever made by the deceased with regard to cruelty before any forum whatsoever.

(iv) Learned counsel for the appellant, therefore, states that when there was no documentary evidence and when there was no independent witness then the phone calls which have been mentioned by the complainant’s side have no importance as it was not clear as to what conversation the deceased had with her family members.

(v) Learned counsel for the appellant has argued that all the family members of both sides were earning members and they were economically and financially independent and nobody required the money of the other, yet the prosecution had tried to come up with a case that the family of the in-laws was demanding money.

(vi) Learned counsel for the appellant argued that the statement of the Doctor and the post mortem report clearly went to show that the deceased had died due to suicide and, therefore, submitted that definitely there was no case of murder.

(vii) Learned counsel for the appellant submitted that even the conviction under section 306 IPC was erroneously done as absolutely no evidence was found by which it could be held that the appellant had abetted the deceased to commit suicide. There was no evidence on record indicating that the harassment before the death was such that the deceased was forced to commit suicide.

(viii) Learned counsel for the appellant has submitted that under section 107 IPC, abetment has been defined. Since the learned counsel has laid much stress on section 107 IPC, the same is being reproduced here as under :

“107. Abetment of a thing.–A person abets the doing of a thing, who–

First.– Instigates any person to to that thing; or Secondly– Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, an in order to the doing of that thing; or Thirdly.– Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1–A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation 2.–Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”

Learned counsel for the appellant, therefore, submitted that there was no instigation whatsoever which could have been said to have instigated the deceased to such an extent that she committed suicide.

(ix) Learned counsel for the appellant in the end submitted that the appellant is a peace loving person and was never involved in any criminal case and, therefore, the conviction be set-aside and the appellant be acquitted.

13. Sri Nipun Singh, learned counsel appearing for the complainant while making his submissions in Criminal Appeal No.672 of 2022 i.e. the appeal which he had filed against the acquittal of Anil Kumar; Simla @ Seema; Bhawna and Tejpal and for the enhancement of the sentence viz.-a-viz. Lalit Kumar Poswal has stated that if the statement of PW-1 is seen then it would reveal that after the marriage of the deceased-Krishna Kumari and the accused-Lalit Kumar Poswal was solemnized on 15.2.2014, continuously their demand for dowry was there; because of the demand, on 12.6.2014, the father of the deceased had taken Krishna Kumari to his home and kept her for 10-12 days. Thereafter the deceased was once again taken back by her father in July, 2014. The PW-1, as per the learned counsel for the first informant, has stated in his statement-in-chief that on 10.12.2014, the deceased had rung up and had said that she was beaten on the previous day. PW-1 thereafter sent his son on 11.12.2014 to fetch Krishna Kumari but the in-laws had refused to send Krishna Kumari back to her Maika. Learned counsel for the complainant further submitted that PW-1 had spent around Rs.40 lacs in the marriage. Quite a bit of it was spent on account of the pressure exerted on him. He has stated that the EMIs for the car of the deceased were also being paid by his son. PW-1 had stated that he had himself seen a wound on the side of neck of the deceased. In effect, learned counsel for the complainant has stated that there was a demand for dowry which included the demand of a Fortuner Car, 11 lacs rupees and a gold chain and which when were not given, the accused Lalit Kumar Poswal and other family members, who were also accused, had killed the deceased.

14. Similarly on the basis of the statements made by PW-2 and PW-3, learned counsel for the complainant has stated that the accused had actually killed the deceased. Learned counsel for the complainant has further stated that the call details of the phone calls which were made by the deceased were also on record and he has pointed out to the number of seconds the calls had lasted and he tried to corelate the dates which were given in the statements of the prosecution witnesses with the dates which were there in the call reports and has tried to establish that even if there was no independent witness, the fact that the call details matched with the timings which were given in the statements of the prosecution witnesses clearly established that there was a demand of dowry and because of the non-fulfillment of the demand, the deceased was tortured and that ended in the murder.

15. Learned counsel for the complainant relying upon the judgments of the Supreme Court in Harjit Singh vs. State of Punjab (Appeal (Crl.) No.756 of 1999 decided on 8.12.2005); Mangat Ram vs. State of Haryana (Criminal Appeal No.696 of 2009 decided on 27.3.2014); Satbir Singh & Anr. vs. State of Haryana (2021) 6 SCC 1; State of Madhya Pradesh vs. Jogendra & Anr. (2022) 5 SCC 401 and in Mariano Anto Bruno & Anr. vs. The Inspector of Police (Criminal Appeal No.1628 of 2022 decided on 12.10.2022) has stated that when mental and physical torture, cruelty and demand of dowry were there, the only inevitable conclusion was that the deceased was murdered. The conclusion was all the more inevitable when the death had occurred within seven years of the marriage of deceased and the accused. He, therefore, submitted that the accused had to defend themselves and had to prove that they were not guilty.

16. Learned AGA has also adopted the arguments made by learned counsel for the complainant and submitted that since there were clear evidence available on record with regard to the cruelty and demand of dowry which had resulted in the death of the deceased, the judgment and order of acquittal be set aside and the appellant be convicted under sections 498-A, 304-B, 120-B and 302/34 of IPC and section 4 of Dowry Prohibition Act.

17. Having heard Sri Satish Chandra Mishra, learned Senior Counsel assisted by Sri Ashutosh Mishra and Sri Siddharth Shankar, learned counsel for the appellant, Sri Nipun Singh, learned counsel for the complainant and the learned AGA, we are of the view that Criminal Appeal No.1823 of 2022 filed by the accused Lalit Kumar Poswal be allowed and the Criminal Appeal Under Section 372 Cr.P.C. No.672 of 2022 and the Government Appeal No.356 of 2022 be dismissed.

18. Firstly, we are definitely of the view that the judgment and order of the Sessions Court was erroneous in as much as when the charges were under sections 498-A, 304-B, 120-B and 302/34 IPC and section 4 of Dowry Prohibition Act and the accused persons were tried for a homicide, then the appellant could not have been held guilty for a charge under section 306 IPC which was for the abetment of a suicide. Suicide is something which a person commits on his own and murder is an act by which the accused with an intention to kill, kills another person and, therefore we find that when the accused-appellant was being charged under sections 498-A, 304-B, 120-B and 302/34 of IPC and section 4 of Dowry Prohibition Act, he could not be held guilty under section 306 IPC.

19. Though we could have allowed the appeal for the simple reason that the trial was undergone was for homicide but the punishment was given for suicide, we are also adverting to the other arguments made by learned counsel for the parties.

20. Definitely, we find that there was no independent witnesses brought during the trial for establishing that there was cruelty. The accused and the deceased both were living in urban areas where there were houses in the neighbourhood. Definitely independent witnesses could have been produced from amongst the neighbours who had seen and witnessed the cruelty and when no independent witness was produced, the only inevitable conclusion is that in fact the cruelty was not witnessed by any independent witness and, therefore, the allegation of cruelty becomes doubtful.

21. We also find that whenever the deceased complained about cruelty to her family members, it was always on the phone and never in writing. In the present age of e-communication, when we tend to text messages, e-mail, WhatsApp and use other messaging systems, not one single message was sent by the deceased to her parents to indicate that there was any cruelty taking place viz.-a-viz. her. Thus the allegation of cruelty definitely becomes doubtful.

22. Also the Court finds that the family of the deceased was an educated family. The father and brother were working in the Armed Forces. If there was any complaint of such a magnitude which was shown in the First Information Report and in the statements of the prosecution witnesses then the Court feels that an educated person should have made a complaint before some appropriate forum. In the absence of any complaint being made, the allegations of cruelty become doubtful.

23. Learned counsel for the complainant has taken us through various statements and has laid much stress on various telephone calls which were allegedly made by the deceased to her parents. We, however, are not convinced with this argument of learned counsel for the complainant. We feel that daughters do make phone calls to their parents and if those phone calls were made, then there was nothing very extraordinary. Further we find that not many phone calls exceeded a minute’s time and, therefore, it appears that there were phone calls only to say ‘hello’ and ‘Good Morning’. It cannot, therefore, be concluded that these phone calls were made to make complaints to the parents or to the brother with regard to cruelty. If such complaints were made, they would take much more time than the phone calls details show.

24. Further we find that there was no instigation to the deceased to the extent that she could end her life. The hyoid bone was intact and, therefore, the only conclusion was that it was a suicide. If the hyoid bone is broken then, under the medical jurisprudence, normally it would mean that the death was caused due to strangulation. The Doctor has also concluded that the death occurred because of hanging which had resulted in asphyxia.

25. Upon considering all the aspects, we are of the view that the appellant Lalit Kumar Poswal in Criminal Appeal No.1823 of 2022 was not guilty of the charges which were framed against him. He, therefore, is being acquitted.

26. Under such circumstances, the judgment and order dated 5.3.2022 passed by the Additional Sessions Judge/FTC-1, Gautam Buddha Nagar, so far as it convicts the appellant Lalit Kumar Poswal, is quashed and is set-aside. The appellant be released forthwith if he is not required in any other criminal case.

27. Since we had allowed the Criminal Appeal No.1823 of 2022, for all the reasons stated above, Criminal Appeal U/S 372 Cr.P.C. No.672 of 2022 and Government Appeal No.356 of 2022 stand dismissed.

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