Category Archives: husband acquitted

Supreme court : Clear cut case of #gross #abuse of #dowry #laws. Can’t convict based on #inconsistent, #embellished & #improved #witness statements ..

Hon. Supreme court of India “….It is a clear cut case of gross abuse of the dowry laws. We find it difficult to sustain the conviction of the appellants on the aforesaid counts based upon the inconsistent, embellished and improved statements of the witnesses, which materially contradict their respective statements recorded earlier……”

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 891 of 2004

Dr. Sunil Kumar Sambhudayal Gupta & Ors. …Appellants

Versus State of Maharashtra …Respondent

JUDGMENT
Dr. B.S. CHAUHAN, J.

(1.) This appeal has been preferred against the judgment and order of the High Court of Bombay, dated 29.4.2004, passed in Criminal Appeal No. 865 of 1987, by which the High Court has reversed the judgment and order of the Trial Court acquitting the appellants of the charges under Sections 306/34 and 498A/34 of the Indian Penal Code, 1860 (hereinafter called as `IPC‘).

(2.) Facts and circumstances giving rise to this case are that appellant No.1 got married to one Neeru Gupta (hereinafter called as `the deceased’) on 1.12.1978 by way of an arranged marriage. Out of the said wedlock, a female child named Mili was born in 1981. There had been some disputes between the husband and wife on petty matters. Neeru committed suicide on 28.9.1985 by hanging herself in the bathroom when all the other family members had gone outside. Rajesh (PW.2), brother of the deceased, filed a complaint dated 30.9.1985, against the appellants i.e. the husband and parents in law of the deceased, alleging that they had been demanding dowry and had given ill treatment to the deceased, and that is why Neeru committed suicide. The police investigated the matter and filed the charge sheet against all the three appellants on 9.1.1986 under Section 306 read with Section 34 IPC and Section 498A read with Section 34 IPC. The prosecution examined a large number of witnesses to substantiate its case. After the conclusion of the trial, the Sessions Court vide its judgment and order dated 21.5.1987, held that the deceased had committed suicide. However, no role could be attributed to any of the appellants for the same, and the prosecution failed to prove any of the charges beyond reasonable doubt against the appellants. The witnesses examined by the prosecution improved their version with regard to claims of the alleged demands, particularly in respect of the gold ornaments and ill treatment of the deceased. The Trial Court came to the conclusion that the deceased was suffering from epilepsy, psychosis and depression and had been getting regular treatment for the same. Therefore, it was not a case of dowry demand or treating her with cruelty.

(3.) Being aggrieved, the State of Maharashtra preferred Criminal Appeal No.865 of 1987 before the High Court of Bombay and the High Court reversed the order of acquittal, convicted the appellants vide its judgment and order dated 29.4.2004 and imposed the punishment of 3 years RI on the husband, appellant No.1, and 2 years on the other appellants i.e. the in-laws of the deceased. Hence, this appeal.

(4.) Shri K.T.S Tulsi, learned senior counsel appearing for the appellants, has submitted that the High Court failed to appreciate the medical evidence and depositions of the prosecution witnesses in the right perspective, as the same could not establish conclusively that the suicide by the deceased could be attributed to the appellants to any extent. It was a clear cut case of suicide because of depression, as the deceased had been suffering from epilepsy and other mental disorders. The deceased had developed an illicit relationship with a family friend, Kake, and a letter written by the said Kake had been in the possession of the other family members and, therefore, they had informed her parents and brother about the said illicit relationship. The medical evidence, particularly, the deposition of Dr. Daulatram Nekumal Gurbani (PW.10) made it clear that the deceased had been suffering from serious depression and such a patient often develops suicidal tendencies. The deceased had also made an attempt earlier to commit suicide in 1985 and she had been taken to the local hospital. Subsequently, she had also been treated at Kanpur. The findings of fact recorded by the Trial Court that there was neither any demand of gold ornaments or any kind of dowry, nor had the deceased been subjected to cruelty, could not be held to be perverse by the High Court to bring home the charges against the appellants under Sections 306 or 498A IPC. The parents-in-law of the deceased were not living at Kalyan, as the appellant No.2 had been transferred to Kurudwadi in 1983 and the deceased was living with her husband i.e. appellant No.1, at Kalyan. The High Court committed an error in shifting the burden of proof to the defence as the court observed that the defence failed to prove its version. In fact the prosecution has to prove its case beyond reasonable doubt and the failure of the defence to prove the defence version cannot be a ground for conviction. More so, as there has been no abetment to suicide, the provisions of Section 306 IPC could not be attracted. Thus, in view of above, the appeal deserves to be allowed.

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(5.) On the contrary, Shri Sushil Karanjakar, learned counsel appearing for the State has vehemently opposed the appeal contending that the High Court’s judgment is based on cogent reasons and on a proper appreciation of the evidence on record. The High Court has correctly reached the conclusion that the findings of fact recorded by the Trial Court were perverse. The High Court is the final court of facts, its findings do not deserve to be disturbed by this Court in a routine manner. There is sufficient evidence on record to prove the demand of dowry and abetment to suicide. Therefore, no interference is required by this Court with the findings of fact recorded by the High Court. The appeal lacks merit and, thus, is liable to be dismissed.

(6.) We have considered the rival submissions made by learned counsel for the parties and perused the record.

(7.) Before proceeding further, it may be pertinent to mention here that Shri K.T.S Tulsi, learned senior counsel appearing for the appellants, has informed us that appellant No.3, Sou. Pushamalati Sambhudayal Gupta died in the month of February, 2010. In view thereof, the appeal by appellant No.3 stands abated and we only have to consider the case of appellant Nos. 1 and 2, i.e., the husband and the father-in-law of the deceased.

(8.) The Trial Court after appreciating the depositions of the witnesses and examining the documentary evidence on record came to the conclusion that the alleged demand of gold ornaments or ill- treatment of the deceased could not be established and none of the letters produced by the prosecution has been suggestive of either of ill-treatment or demand of dowry. None of the prosecution witnesses, i.e. the family members of the deceased, made such allegations either while lodging the FIR or in their statements recorded under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter called `Cr.P.C.’). Such allegations had been made for the first time while making statements before the court during trial. There were material contradictions and improvements, which were not mere elaborations of their statements already made. Thus, their statements in regard to those allegations were liable to be discarded.

(9.) The High Court reversed the findings of fact recorded by the Trial Court, mainly relying upon the evidence of Dr. Daulatram Nekumal Gurubani (PW.10), as he had deposed that when he had examined the deceased, she told him that she had been deprived of love and affection by her family members. She had no faith in any member of her family. He had also opined that it was not a case of psychosis, but the deceased had been suffering from a mental disorder. The High Court also reached the conclusion that the defence failed to establish that the deceased was suffering from epilepsy before her marriage. The stay of the deceased along with her parents in a Guest House for two-three days after going from Kanpur to Kalyan has also been taken by the High Court as a circumstance adverse to the appellants. The High Court also came to the conclusions that the intimacy between the deceased and Kake did not mean that she had illicit relationship with Kake; and there had been a demand of a gold chain by appellant No.3.

(10.) As the High Court has reversed the order of acquittal and taken a view contrary to the view taken by the Trial Court, we have taken upon ourselves the task of appreciation of evidence and considered the legal and factual issues involved in the case.

(11.) Letters written by the parties to each other:

(A) A large number of letters had been placed on record before the Trial Court by both the parties. Letter dated 24.2.1979 (Ext.P-26), written by the deceased to her husband, about 3 months after the marriage reveals that there was no problem in the relationship between the husband and wife. In fact, it suggests that they had deep love and affection for each other.(B) Letter dated 3.4.1985, written by appellant no. 2 to the father of the deceased, makes it evident that something had gone wrong and the behaviour of the deceased had been totally unwarranted, as it revealed that she had gone out of the house i.e. on the main road, half-naked and she had brought disrepute to the family of her in-laws. However, they had been tolerating such behaviour. She had lowered their prestige so much that they had not been able to show their faces to anyone. It suggested an illicit relationship between the deceased and one family friend, Kake. It also suggested that the deceased wanted to live with the said Kake, as she had developed love for him and she was willing to elope with him. It also suggested that it was wrong on the part of Smt. Shanti (mother of the deceased) to have been giving wrong advice to the deceased and making false allegations that her in-laws were not treating her properly. According to this letter, the deceased had declared that she was no longer interested in Sunil, her husband, as she did not like him any more and in the end appellant No.2 had expressed great concern about his grand daughter Mili and stated that he was willing to keep her in a hostel so that she could be spared humiliation because of the illicit relationship between the deceased and Kake. The author of the letter suggested to the father of the deceased that he should call the deceased to Kanpur as there could be some untoward/disastrous incident in future.

(C) The undated letter (Ext. P-2) purported to have been written by Kake to the deceased, gives an impression that the deceased had not only deep intimacy, but something more with Kake. Kake was also in possession of some of her photographs which he claimed to be his fortune and said that the same would not be returned to her as she had requested and would be burnt only with the end of his life. This letter also suggested that he had the opportunity to have a physical relationship with her. (D) There are several other letters on record showing that after the development of the intimacy between Kake and the deceased, both families were disturbed and attempts had been made from both the sides to patch up the matter. However, none of the letters suggests any demand of dowry or ill treatment to the deceased amounting to cruelty by the appellants.(E) The letter dated 7.7.1985 written by the complainant, Rajesh, brother of the deceased to appellant No.1, is suggestive in nature. It suggests that appellant no. 1 should try to save the prestige of the family at any cost and forget all that had happened in the past, as the deceased was willing to improve herself and accept any advice given by her husband. Another letter dated 9.7.1985, written by the informant, Rajesh, brother of the deceased to the appellant No.2 revealed that the entire family of the deceased had been making serious attempts at re-conciliation. Even in this letter there was not even a whisper/mention of any demand of dowry or of ill treatment.

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(F) The letter dated 18.7.1985 written by the father of the deceased to his son Rajesh (PW.2) from Kalyan made it clear that the author along with the deceased had gone to Kalyan to meet the family of the appellants, and they were not welcomed by the mother-in-law of the deceased at the initial stage. They had been staying in Modern Guest House in the same colony. Appellant No.1, the husband of the deceased suggested that the  deceased should meet her mother-in-law and apologies, which was accepted by the deceased. The deceased met her mother-in-law and apologized. After some time, the mother-in-law became quiet and calm and started behaving properly and all the appellants treated them well. (G) The un-dated letter (Ex.P-21) written by the deceased to her father revealed that her mother-in-law wanted her to separate herself from the other members of the family and her parents. It also gave the impression that her mother-in-law was asking for a gold chain (“zanzir ke liye keh rahi thi”) and created problems for her in meeting her husband and daughter. After the arrival of her brother-in-law to Kalyan, the behaviour of her mother-in-law had improved a lot, but her husband being busy in his practice and did not have sufficient time to be with her.

(H) From the original record, a letter dated 1.4.1985 (Ext. 16), by the mother-in-law to the father of the deceased seems to have been written after losing hope completely and concluding that the deceased had become incorrigible. The said letter suggests that the relationship between the deceased and her husband had come to an end. The deceased had become a woman of bad character. They had tolerated her to a great extent. The deceased had been tutored by her mother; she had been misbehaving with them and it had become difficult for them to tolerate her any more. The deceased had been using abusive language to all the family members. She had lowered their reputation and they had been very unlucky to have such a daughter-in-law. As she wanted to live with Kake and not with her husband, they did not want to have any relationship with her. [Appellant No. 3 had denied writing the said letter]. (I) Another letter dated 22.5.1985, is on record written by Jai Narain Gupta from Sandila, U.P. (who seems to be relative of the deceased) wherein a suggestion had been made to patch up the matter.  The author has drawn the inference that the problems were being created for the deceased, and she has been treated with cruelty as her in-laws did not receive dowry according to their expectations, though, there is no allegation that there has been any demand of dowry and for not giving the same.

(J) The undated letter written by the deceased to her aunt Manorma Gupta at Barabanki does not suggest anything against the accused, as the deceased had written that everything was fine and that she would discuss things when they met. The undated letter written by her aunt in reply, suggests that there was something amiss. She had mentioned that the whole family was very disturbed, but they were not able to suggest any solution. There was nothing to worry or fear as all of them were with the deceased and she also told the deceased to face things with courage, as she had equal rights to stay in the house and to fight for justice.

(12.) Depositions of Prosecution witnesses (Relevant parts):

(I) Dr. Mohan Kulkarni, a practicing doctor residing in the same building (PW.1)-“I know both accused Nos. 2 and 3 used to occasionally visit their block at Waldhuni (Kalyan) after transfer of accused No.2 at Kurduwadi…..I have no any personal knowledge about the relations in between accused No.1 and his deceased wife…..It is true that I was told by accused No.1 some four or five month before the incident that his wife Guddi was getting the attacks of epileptic fits. The ailment of epileptic fits is of neurological problems. I say that these medicines namely used in neurological problems as gardenal, have their side effects on the patient. E.C.T. (Electro Convulsive Therapy) treatment is given to mental patients of some sort. If a person shows abnormal signs then he is branded as a mental patient. I say that those who have tendency of mental depression they tend to commit suicide. It is true that mental disorder in some cases creates mental depression.”

(II) Rajesh (PW.2) (Brother of the deceased)-

“It is true that there was nothing wrong in between the accused and Neeru till the delivery of a female child and everything was smooth and cordial, in between them……I cannot say why it is not disclosed specifically in my complaint that as accused no.3 instructed Neeru to fetch golden ornaments on account of my marriage ceremony, my father presented with four golden bangles in the ceremony…….I cannot say why it is not stated in my complaint that after the birth of her daughter we presented Neeru with two golden ear rings and golden chain of two tolas because those were demanded by her husband’s family members…..

As I did not remember the exact account of the remaining ornaments presented to Neeru by us as and when demanded by her in laws. I did not narrate about them in the complaint. Except my words I have no documentary evidence to show how many golden ornaments were presented to Neeru and when……

There is no reference to golden chain any other letters except letter (Exh.21) sent by Neeru to my parents and myself. That golden chain we give to Neeru in 1985 was weighing 2 and = tolas…..

The only reference about the golden chain asked for by accused no.3 appears in letter (Exh.21) sent by Neeru to us after she was reached at her in laws place on 24.8.1985.”

(III) Manorma (PW.7) Aunt of deceased-

“She told me that accused persons had demanded a golden chain from her and hence she was not being called back now shown inland letter dated 10.7.1985 which is written by me to Neeru alias Guddi at Kanpur…..

I have not stated before the police that when I met Neeru in March 1985 she told me that accused persons were demanding more golden ornaments from her and that they were keeping her starving and were not allowing her to meet her daughter Mili, and that she was craving to meet Mili. As I was not well at that time I forgot to narrate the things before the police. I have told this fact for the first time to the court……

I have not written specifically in my two letters (Exh.39 and 40) addressed to my brother and sister in law that Neeru told me that she was subjected to physical assault by the accused and that she was kept starving by the accused and further accused demanded golden ornaments from her.”

(IV) Ramkishan Gupta (PW.8) Father of deceased-

“I then arranged for a golden chain and sent Rajesh along with Neeru with a golden chain to Kalyan on 24.8.1985. Rajesh handed over golden chain to accused, and left Neeru in her in laws house and returned back to Kanpur. After 15 days we received a telegram sent by brother of accused no.1 Pradeep Kumar that all was well in the house at Kalyan. On 29.9.1985 we received a phone call informing us the said news of death of Neeru…..

I have not stated in letter (Exh.23/1) that while we were standing out side the house of accused and requesting them to accept Neeru, accused no.3 demanded a golden chain from us and refused to allow Neeru to see her daughter in side the house, because Rajesh already knew all these things at Kanpur. I have no documentary evidence except my words to show that I had written to my sister Manorama and to my brother that accused persons were demanding……

I have not stated in either of my two statements before the police that when accused no.3 came to attend the wedding of my son Rajesh she demanded golden ornaments for herself (Accused no.3). I have not stated in either of my two statements before the police that even after the delivery of Neeru in 1981 none of the accused persons came to Kanpur to visit her. I have not stated in my first statement dated 1.10.1985 before the police that when Neeru came for delivery at Kanpur she informed us that accused no.3 was demanding golden ornaments from her…..

I have not stated in either of my two statements specifically that when I and my wife went to the house of accused on 17.2.1985 we met all three accused at the entrance and all of them asked me whether I had brought golden ornaments or had come empty handed, and that they had already asked Rajesh to bring along golden ornaments and whereupon I told all three accused that I had not brought along golden ornaments as I was not having them and where upon all three accused pointed out towards Neeru and said as to how all those accused had driven Neeru to such a condition and that they would further make her condition miserable. I have not stated in either of my two statements before the police that when Neeru returned back to our house in March 1985 she told us that all accused told her that till their demand for cash and ornaments was not made, they would not allow Mili to go along with Neeru. I have not stated in either of my two statements before the police that when accused nos.2 and 3 had come to attend the marriage ceremony at Kanpur in the month of March 1985 accused nos.2 and 3 did not allow me to meet Mili. I had not stated in either of my two statements before the police that when Rajesh brought back Neeru in the month of June 1985 at Kanpur Neeru told me that she was not allowed to meet her daughter Mili in the house of her husband and accused no.3 asked her if she had brought golden chain or not.”

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(V) Daulatram Nekumal Gurubani (PW.10), Doctor-

“In the mid of February, 1985 accused No.1 told me that his wife has become aggressive and was not co-operative and also used to become violent. When I reached the house of accused No.1, there I met accused No.2 and Accused No.3. I examined Neerubai, the wife of accused No.1. She was lying in store room and was not in a mood to talk anything with me even she become aggressive with me in the sense she was not co-operative with me. Accused No.1 told Neerubai that I was psychotherapist of Thane Mental Hospital and then Neeru asked me whether I treated my wife in the same way she was being treated by her husband accused No.1. She showed me injury marks bruises on her both knees and a small injury on the lower lip and also bruises on the back. She also told me that she was beaten by her family members and by a ward boy of hospital. She also told me that she had been maltreated by her husband, by her mother in law. She also told me that, her ornaments were being worn by accused No.3. On seeing the injury marks on her person I talked with accused No.1 and asked for details. Accused No.1 told me that as Neeru had become violent and we were controlling her it was possible that she sustained small bruises…..

Accused No.1 told me that his wife was suffering from epileptic fits since before her marriage and that she was on Geroin tablets. I told him that there were side effects of this drug and the drug should be stopped after 3 years. He told me that she was on drug for so many years and she is maintained on that drugs. I told him to continue with above tablets and consult Neurologist if she is suffering from the above ailments. I visited her place for 4 times in the same month i.e. February, 1985. During all those visits I never found any signs of epileptic fits……

Cross examination:

I started my practice in January 1985 at Ulhasnagar and handed the case of Neeru in February 1985 after I passed my M.D. Degree in Psychiatry in July 1984 though I joined mental hospital at Thane as Medical Officer……

I agree that even in major epilepsy this medicine Geroin is prescribed. It will not be correct to say that because I prescribed medicine Geroin I was convinced that the patient was suffering from major epilepsy. Even though I knew that drug Geroin carried side effect yet I prescribed it though I knew she had no sign of epilepsy because once the drug is started it cannot be abruptly discontinued otherwise the patient may get fits. I stick to the proposition that if an anti- convulsent drugs such as Geroin is given for long period and withdrawn abruptly then she may get convulsions. I am backed by authority. Clinical examination alone cannot decide whether a patient is suffering from epilepsy or not. Patient of epilepsy may have a grand-mal or petit-mal. It is true that dose of Geroin daily is more in case of grand-mal than in the case of petit-mal. It is true that a maximum dose of Geroin tablets is 4 tablets 3 times a day. I agree that brain scan, EEG and X-ray of all the skull are required for investigations in cases of epilepsy….prescribed by me to Mrs. Neeru wife Exh.46 are normally prescribed in a case of epilepsy with psychoses and in depressive state….I have prescribed to Neeru E.C.T. treatment…..It is not stated in my prescription letter (Exh.46) that if the drug as Sr. Nos. 1 to 5 prescribed to Neeru do not work out, then E.C.T. therapy should be started to her, though verbally told her so. It is true that I have not specifically stated in my prescription letter (Exh.46) at any time during my visits to Mrs. Neeru on 4 or 5 occasions that as the drugs at Sr.Nos. 1 to 5 in (Exh.46) were working, E.C.T. therapy was not essential…..I have not stated in my police statement that the room in which Neeru was found was an unkept room or a store room. I have not stated before the police that when I was introduced to Neeru as a psychiatrist, Neeru asked me whether I treat my wife in the same way as she was treated by her husband. I have not stated before the police that before Neeru was examined by me she told me that she was harassed by accused persons and that her ornaments were worn by accused No.3…… I have not stated before the police that I examined Neeru and found that there was not any gross psychological problem but she was mentally disturbed and I found that she had no faith in any of the members of the family and I found that she was deprived of love, affection and sympathy of her family members. I have not stated before the police that accused No.1 told me she was also epileptic but I did not find any signs and symptoms of that disease with her. I have not stated before the police that I requested accused No.1 where was the X-ray of skull and other investigation papers and accused No.1 told me that his wife was suffering of epileptic fits since before her marriage and that she was on geroin tablet. I have not stated before the police that I told him that there were side effects of this drug and the drug should be stopped after 3 years…..

I agree that Mrs. Neeru did not meet me in April 1985 but she brought the letter of April 1985 of Dr. S. Mahendru in the month of June 1985. I have not stated before the police that Neeru either met me in April 1985 or in June 1985. Beyond my word there is no any other evidence to show that in September 1985 accused Nos. 1 and 2 came to me. I have not stated before the police that both accused Nos. 1 and 2 later on told me that Neeru committed suicide and that they needed certificate about her mental condition…..”

(VI) Dr. Ramesh Kumar Mahendru (PW.12) – Doctor from Kanpur :

xxx

“…..I say that the experts prescribed E.C.T. (Electro Convulsive treatment) in cases of retarded depression and, manic depressive psychosis. I am shown the chart today by the learned Defence counsel in which the prescription of medicines advised by Dr. Gurubani for Niru and by me are practically same except with a difference that the medicines mentioned at Sr.No.4 does not potentiate as anti depressants but it prevents the reactions caused by the medicines stated at Sr.No.3 in the chart…..

Narco therapy is a kind of suggestive psycho therapy under the influence of narcotic drugs such as barbiturates.”

(13.) The above referred letters and the depositions of the witnesses have to be understood/appreciated within the four corners of law, particularly dealing with the issues of reversal of the order of acquittal by the appellate court and discrepancies/improvement/embellishment and contradictions in the statements of the witnesses.

(14.) Material Contradictions:

While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152).

(15.) Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide : State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106).

(16.) The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334).

(17. )In case, the complainant in the FIR or the witness in his statement under section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide: State Represented by Inspector of Police, Tamil Nadu v. Sait @ Krishnakumar, (2008) 15 SCC 440).

(18.) In State of Rajasthan v. Smt. Kalki & Anr., AIR 1981 SC 1390, while dealing with this issue, this Court observed as under: “In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.”

(19.) The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. (see: Syed Ibrahim v. State of A.P., AIR 2006 SC 2908; and Arumugam v. State, AIR 2009 SC 331).

(20.) In Bihari Nath Goswami v. Shiv Kumar Singh & Ors., (2004) 9 SCC 186, this Court examined the issue and held: “Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.”

(21.) While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited.

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Appeal against Acquittal:

(22.) It is a well-established principle of law, consistently re-iterated and followed by this Court is that while dealing with a judgment of  acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses.

(23.) Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration. The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court’s acquittal bolsters the presumption of his innocence. Interference with the decision of the Trial Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.

(24.) In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is `against the weight of evidence’, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (See: Balak Ram & Anr. v. State of U.P., AIR 1974 SC 2165; Shailendra Pratap & Anr. v. State of U.P., AIR 2003 SC 1104; Budh Singh & Ors. v. State of U.P., AIR 2006 SC 2500; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors., AIR 2008  SC 2066; Arulvelu & Anr. v. State, (2009) 10 SCC 206; Ram Singh alias Chhaju v. State of Himachal Pradesh, (2010) 2 SCC 445); and Babu v. State of Kerala, (2010) 9 SCC 189).

(25.) The instant case is required to be examined in light of the aforesaid legal principles. Undoubtedly, the record reveals that at an initial stage the relationship between husband and wife had been very cordial and they had love and affection for each other. At a later stage when the family suspected an illicit relationship between the deceased and Kake, the appellants were very much disturbed. Both the families made serious attempts to re-concile and patch up the matter and the appellants agreed that the deceased may be given an opportunity to improve her behaviour. Thus, admittedly there was a doubt that the deceased had developed serious intimacy with Kake, which was much more than what happens in normal course with a family friend. Therefore, the finding recorded by the High Court that the intimacy between them to the extent of having an illicit relationship was not there, loses its significance, for the reason that even the suspicion of such a matter becomes the talk of the town and the reputation of the family remains at stake. The protests on the part of the appellants even on a mere suspicion and asking the deceased to keep distance from Kake or improve her behaviour is not something which can be termed to be unwarranted or uncalled for.

(26.) There is ample evidence on record to suggest that the deceased had been suffering from psychosis/mental dis-order. According to Dr. Daulatram Nekumal Gurubani (PW.10) the ailment was not of a very serious nature. However, the prescriptions given by Dr. Gurubani (PW.10) reveal that the deceased had been suffering from serious mental dis-order, otherwise such medicines could not have been prescribed by him. He has prescribed the deceased the medicine Geroin because he was convinced that the deceased was suffering from major epilepsy, in spite of the fact that he was fully aware that the said drug has side effects. He also deposed that mere clinical examination alone is not sufficient to decide whether the patient is suffering from epilepsy. He further deposed that such medicine can be given to a person suffering from grand-mal epilepsy. More so, had it not been the case of serious ailment of mental dis-order, the question of prescribing and giving E.C.T. to the deceased could not arise.

(27.) There had been a lot of improvements and contradictions in his statements. The witness deposed for the first time in the court during the trial, that when he went to examine the deceased, she was found in an unkept room/store room and that he was introduced to the deceased as a Psychiatrist and that the deceased had asked him whether he treated his wife in the same way as she had been treated by her husband. None of this was mentioned in his statement recorded by the police. Nor it had been recorded therein that the deceased had told him that she was harassed by the appellants and her ornaments were taken away/worn by her mother in law (A.3). More so, he had not stated in his police statement that the deceased was merely mentally disturbed and not suffering from a gross psychological problem. Nor had he stated therein that the deceased had told him that she was not having any faith in any of her family members and she was deprived of their love, affection and sympathy. Such contradictions in his statements cannot be held to be mere explanations or elaborations of his version, but are tantamount to material contradictions or vital omissions. The Rules of appreciation of evidence requires that court should not draw conclusions by picking up an isolated sentence of a witness without adverting to the statement as a whole. In such a fact-situation, it is not safe to rely on his testimony for the simple reason that he had made a lot of improvements/embellishments while deposing in court and vital contradictions exist with his earlier recorded statement. Thus, no reliance can be placed on his depositions to hold that appellants had ill-treated the deceased or that appellant No.3 had taken away/worn her ornaments or that she had been deprived of their love and affection or that she was not suffering from epilepsy etc.

(28.) The deposition of Dr. Mohan Kulkarni (PW.1) reveals that E.C.T. treatment is given only to mental patients, who have mental depression and tend to commit suicide; the ailment of epileptic fits is a neurological problem. His statement also suggests that her in-laws had not been living with her after 1983, as the appellant No.2 stood transferred to Kurudwadi and had shifted to the said transferred place and her in-laws had been visiting Kalyan occasionally. This view stands fully corroborated by the deposition of Dr. Ramesh Kumar Mahendru (PW.12), Reader in Psychiatric Medicine, Mental Hospital, Kanpur, as referred to herein above. He had examined the deceased and prescribed medicines for manic depressive Psychosis. The prescription of this witness substantially remained the same as of Dr. Daulatram Nekumal Gurubani (PW.10). The cumulative effect of the medical evidence given by three Doctors leads us to the conclusion that deceased had been suffering from manic depression and certainly had some mental/epileptic/ psychosis problem.

(29). So far as the other witnesses are concerned, they are the father, brother and aunt of the deceased. Thus, being close relatives, in such facts and circumstances they might have developed inimical feelings towards the appellants, since they came to the conclusion that the appellants were responsible for the death of the deceased. However, their depositions are full of contradictions and have marked improvements from their statements recorded earlier. The exaggerations and improvements are of such a nature that they make their whole statements in respect of the demand for gold ornaments and/or the ill-treatment of the deceased liable to total disregard on these counts. Gold ornaments had been given by the complainants to the deceased out of love and free will at the time of the marriage of Rajesh (PW.2) and at the time of delivery of her daughter Mili. Undoubtedly, Rajesh (PW.2) had alleged in the FIR that there had been demand of gold ornaments by the appellants without any details of the same, however, he could not furnish any explanation as why this fact had not been disclosed to the police when his statement and supplementary statement was recorded. Also no such inference can be drawn from any of the letters on record. Only one un-dated letter (Ext.P-21) written by the deceased to her father suggests that her mother in-law had been asking for a chain. More so, as the chain had been given by the complainants to the deceased just 2/3 months before her death, and there is no evidence that any further demand had been there, the issue became totally irrelevant in terms of proving the motive, and it cannot be presumed that any demand had been made. More so, even if it is presumed that there was some demand by appellant No.3, as she is no more, and her appeal stands abated, this issue becomes totally irrelevant for the reason that no such allegation had ever been made against the remaining two appellants.

(30). So far as the stay of the deceased with her parents after coming from Kanpur to Kalyan at the guest house is concerned, admittedly at that time the relations between the parties were strained because of the suspicion that the deceased was having an illicit relationship with Kake. However, it has been admitted by Ramkishan (PW.8), father of the deceased, that subsequently the relations became normal and they were invited at the house of the appellants after the deceased tendered an apology to her mother-in- law. The said witness did not state in his statement before the police that when he went to see the appellants on 17.2.1985, they had asked him whether he had brought gold ornaments or had come empty handed or that he was told that the deceased would not be allowed to live there and they would make her condition even more miserable. Such an improvement was made while deposing in court and no explanation could be furnished by him as to why such vital facts were not stated by him at the time of recording his statement under Section 161 Cr.P.C. This statement is to be discarded as it is not safe to hold the appellants guilty of the offences alleged against them on such an improved version.

(31.) The deposition of Manorma (PW.7), aunt of the deceased is by no means different, as she had also made major contradictions and improvements in her statement made in court. She had not stated in her police statement that the appellants were demanding gold ornaments from the deceased and her family or that the appellants were keeping the deceased starving and were not allowing her to meet her daughter, Mili. The explanation furnished by her that she had not been feeling well and had forgotten to narrate such material facts, cannot be believed.

(32.) The statement of Rajesh (PW.2), the brother of the deceased is also full of contradictions and suffers from major improvements. The contradictions are of such a nature that they impair the whole of his evidence. The same cannot be held to be clarificatory. He was not in a position to state what ornaments his family had presented to the deceased on different occasions. More so, it was not even stated in his police statement that after the birth of Mili, his family had given gold ornaments as demanded by the appellants. He could not even furnish an explanation as to why the demand of a gold chain is not evident from any of the letters between the parties, except in the letter (Ext. P-21).

(33.) The complainants have denied the receipt of letter dated 3.4.1985 written by the appellant No.2 to the father of the deceased, referred to hereinabove. However, the appellants have produced the correspondence with the post office and proved the postal stamp to show that the said letter had been sent by registered A.D. to Ramkishan Gupta (PW.8). The law in this regard is well settled. In Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani, AIR 1989 SC 1433, this court examined the issue regarding the presumption of service of letter sent by registered post under Section 27 of the General Clauses Act, 1897 and held as under: “There is a presumption of service of a letter sent under registered cover…. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him…..The burden to rebut the presumption lies on the party challenging the factum of service.” (Emphasis added) A similar view has been re-iterated by this court in Chief Commissioner of Income Tax (Administration), Bangalore v. V.K. Gururaj & Ors., (1996) 7 SCC 275; and Shimla Development Authority & Ors. v. Santosh Sharma (Smt.) & Anr., (1997) 2 SCC 637.

In Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102, a similar view had been taken by the Privy Council, referring to Illustration (f) of Section 114 of the Indian Evidence Act, 1872.

In view of the above, it was the responsibility of the complainants to prove by adducing evidence of the official of the Post Office, Kanpur that the said letter had not been delivered to them.

However, for the reasons best known to the prosecution such an exercise has not been undertaken.

(34). The instant case is required to be examined from another angle also. The marriage took place on 1st December, 1978. The  complainant party could not place any correspondence on record prior to February 1985 except letter dated 24th February, 1979 written by the deceased herself to her husband. However, it goes in favour of the appellants. Therefore, it is evident that the controversy arose only after the expiry of the period of more than 6 years from the date of marriage. It is quite possible that the dispute arose between the parties only because of the suspicion that the deceased had developed an illicit relationship with Kake. Had there been a demand of dowry or ill-treatment to her on any other ground by the appellants, there could have been some correspondence between the parties during the aforesaid long period of more than 6 years. None of the prosecution witnesses had made any allegation of any demand of dowry or ill treatment during the said earlier period. It is unnatural that after expiry of such a long period, the appellants suddenly became greedy and started demanding ornaments and for not meeting their demand, started ill treating the deceased to the extent that she had to commit suicide. Thus, the allegations made by the complainant party remained unnatural and improbable. More so, the demand had been only of a thin gold chain which could not be very expensive in those days, especially given the socio-economic status of all the parties. For the gold ornament worth such a petty amount after the expiry of a long period of about 6 = years, from the date of marriage, it is not natural that the appellants could treat the deceased with such cruelty that she was drawn to commit suicide.

(35.) It is a clear cut case of gross abuse of the dowry laws. We find it difficult to sustain the conviction of the appellants on the aforesaid counts based upon the inconsistent, embellished and improved statements of the witnesses, which materially contradict their respective statements recorded earlier. The High Court did not dislodge the reasons given by the Trial Court for acquittal. The High Court did not make any reference to the deposition of Dr. Daulatram Nekumal Gurubani (PW.10) in the cross-examination and dealt with the case very casually, adopting a very superficial approach to the whole matter and brushed aside the allegation of an illicit relationship for which there had been documentary evidence on record without recording any cogent reasons for the same. The High Court did not make any attempt to appreciate the evidence with accuracy and reversed the findings of the trial court which were based on the evidence on record and for which detailed reasons had been assigned.

(36.) In view of the above, the appeal succeeds and is allowed. The judgment and order of the High Court of Bombay, dated 29.4.2004, passed in Criminal Appeal No. 865 of 1987 is set aside. The judgment and order of the Trial court in Sessions Case No. 25/1986 dated 21.5.1987 is hereby restored. The appellants are on bail. Their bail bonds stand discharged.

……………………………J.

(P. SATHASIVAM)

…………………………

…J.

(Dr. B.S. CHAUHAN) New Delhi, November 11 , 2010


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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

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//// …31. It seems that PW 8 Kanwar Pal has been introduced in order to make out a case that “soon before her death”, the deceased was harassed on account of dowry demands as according to him, on 13 th January, 1996, he had gone to the house of Saroj when she informed him about the demand of Rs.10,000/-. It is pertinent to note that although the unfortunate incident has taken place on 20 th January, 1996, but statement of this witness was recorded by the Police under section 161 Cr. P.C. for the first time on 7th February, 1996.
….
60. Adverting to the facts of the case, although it is established that marriage of Saroj with Mahavir had taken place on 7 th May, 1995 and she has committed suicide within eight months of the marriage, however, none of the three material witnesses examined by the prosecution proved the allegations of demand of dowry and infact the deceased herself gave a clean chit to accused Mahavir and Shri Chand and in the suicide note she does not level any allegation even against her mother-in-law and sister-in-law.

61. It is a cardinal principle of criminal jurisprudence that the guilt of the accused is to be established by the prosecution beyond the possibility of any reasonable doubt. Even if there may be an element of truth in the prosecution story against the accused but considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. Similar view was taken in Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637; Anil W.Singh v.State of Bihar, (2003) 9 SCC 67; Reddy Sampath W. v. State of A.P, (2005) 7 SCC 603 and Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172.

62. In the instant case, prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt. That being so, they are entitled to benefit of doubt.

63. Under the circumstances, appeal is allowed. Impugned judgment and order on sentence dated 16 th October, 1999 and 23rd October, 1999 respectively are set aside and the appellants are acquitted of the offence alleged against them. Their bail bonds are cancelled and sureties are discharged.
///////

In THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: May 16, 2014

CR L.A. 611/1999
MAHAVIR KUMAR & ORS. ….. Appellants
Through: Mr.K.B. Andley, Sr. Advocate with Mr.M.L.Yadav and Mr.Lokesh Chandra, Advocates.

vErsus
STATE ….. Respondent
Through: Mr.Ravi Nayak, APP

CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR
HON’BLE MS. JUSTICE SUNITA GUPTA

JUDGMENT

: SUNITA GUPTA, J.

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment and order on sentence dated 16th October, 1999 and 23rd October, 1999 respectively passed by the learned Additional District and Sessions Judge, Delhi in Sessions Case Nos.161/97 arising out of FIR No.52/96, PS Tilak Nagar whereby the appellants were convicted u/s 304B IPC and were sentenced to undergo imprisonment for life and a fine of Rs.50,000/- each, in default of payment, to further to undergo Simple Imprisonment for 5 years each.

2. Background facts as projected by the prosecution in nutshell are as follows:

3. On 20th January, 1996, on receipt of DD No.15A, PW5 ASI Shekhar Lal along with Constable Umed Singh went to house No. WZ-175, Harijan Colony, Tilak Nagar where he found window of a room broken and the door of the room was locked from inside and saw a lady hanging in the room. After sending a boy through the way of window he got the door of the room opened and found the dead body of Saroj. The dead body was brought on the floor after cutting the chunni with which it was hanging. Information was sent to SDM Mr. Dahia to initiate inquest proceedings. One suicide note was found lying on a table in the room which was seized vide seizure memo Ex.PW2/A in the presence of PW3 Inderjeet and PW2 Dalip. The dead body was sent to mortuary at Sabzi Mandi. When the belongings of the room were searched, at that time father of the deceased Ved Prakash produced one letter allegedly written by the deceased to her parents which was seized vide seizure memo Ex.PW5/A. SDM conducted the inquest proceedings in respect of the dead body. After the post mortem, the dead body was given to the father of the deceased. On 22nd January, 1996, PW14 Sh. K.K. Dahia recorded the statement of Ved Prakash (Ex.PW10/B) and directed SHO PS Tilak Nagar to register the case under the appropriate provision of law and investigate the case according to law. Accordingly, FIR under Section 498A/304B IPC was registered. During the course of investigation, all the accused were arrested. After completing investigation, charge sheet was submitted against them.

4. After hearing arguments on charge, vide order dated 5th August, 1997, charge under Section 304 B IPC was framed against all the accused to which they pleaded not guilty and claimed trial.

5. In order to bring home the guilt of the accused, prosecution, in all, examined 16 witnesses. All the incriminating evidence was put to the accused persons wherein factum of marriage of the deceased Saroj with accused Mahavir on 7th May, 1995 was admitted. It was also admitted that the remaining accused Shri Chand, Chameli and Sarla are father-in-law, mother-in-law and sister-in-law respectively of the deceased. It was also admitted that after marriage, deceased started living with the accused persons at her matrimonial home WZ 175, Harijan Colony, Tilak Nagar, Delhi. It was also admitted that on 20th January, 1996, Saroj committed suicide and on receipt of DD No. 15A, ASI Shekhar Lal along with Constable Umed Singh reached H. No. WZ-175, Harijan Colony, Tilak Nagar, Delhi where they found a lady hanging in the room. The dead body was brought on the floor. A suicide note was found on the table which was seized by the police. However, rest of the case of the prosecution was denied. All the accused pleaded their innocence. It was alleged that the deceased was never harassed nor any dowry was ever demanded nor any cruelty was ever inflicted upon her. It was alleged that she was living happily in the house and was well looked after. She was never beaten. In support of their defence, they examined DW1 Sh.Anand and DW2 Sh.Raghuvir Singh, both of whom are neighbours of the accused and have deposed that the accused persons used to look after and keep the deceased in proper manner and no dowry was ever demanded in their presence.

6. After considering the evidence led by the prosecution, learned Trial Court came to the conclusion that all the essential ingredients of Section 304B IPC were duly proved by the prosecution. Prosecution had succeeded in proving that the deceased was subjected to taunts regarding bringing of insufficient dowry and cruel treatment was accorded to her by physical beatings or mental torture. That being so, a presumption under Section 113B of the Evidence Act has to be drawn that the accused persons committed dowry death. As such, all the accused were held guilty under Section 304B IPC and were sentenced as mentioned above.

7. Feeling aggrieved by the aforesaid finding of the learned Trial Court, the present appeal has been preferred by the appellants. However, during the pendency of the appeal, one of the appellants, namely, Shri Chand expired on 19th January, 2006. Therefore, vide order dated 1st November, 2013, the appeal qua him stood abated.

8. It was submitted by Sh.K.B.Andley, learned Senior Advocate duly assisted by Sh.M.L. Yadav, Advocate for the appellant that only charge under Section 304B IPC was framed against the appellants and there was no separate charge under Section 498A IPC. So far as appellant Sarla is concerned, she is the sister-in-law of the deceased and was married at least five years prior to the marriage of the deceased with Mahavir Prasad and was residing at Palam Colony, Raj Nagar, Delhi which was about 15 k.m. away from her parental home. Only occasionally she used to visit her parental home. As such, there was no possibility of her presence on the day of incident when suicide was committed by the deceased. Deceased herself had left a suicide note wherein she had completely exonerated her husband and father- in-law. The suicide note has not been considered at all by the learned Trial Court. Immediately after the incident, no complaint was lodged by the parents of the deceased. It was only on 22nd January, 1996 father of the deceased gave a statement to the SDM which also does not reflect that there was any harassment meted out to the deceased on account of dowry. The prosecution has relied upon the testimony of father, mother and maternal uncle of the deceased who are giving different versions regarding the treatment meted out to the deceased. The allegations are quite vague and are in fact inconsistent with each other. Reference was also made to the letters handed over by father of the deceased to the police which also does not reflect any harassment to the deceased regarding demand of dowry. Moreover, there is nothing on record to show that “soon before death” there was any demand of dowry in order to bring the case within the four corners of 304B IPC. After a lapse of more than one month, statement of PW8 Kanwar Pal, maternal uncle of the deceased was recorded. It also does not inspire any confidence. As such, it was submitted that prosecution has failed to bring home the guilt of the appellants and they are entitled to be acquitted.

9. Sh. Ravi Nayak, learned Additional Public Prosecutor for the State, on the other hand, relied upon two undated distinct hand written notes recovered from the room of the deceased Saroj @ Rekha and one hand written letter, which was tied to the left forearm of the deceased and was found by Dr. Ashok Kumar for submitting that these letters are a record book of what treatment was meted out to her at her matrimonial home. If all these letters are read over, it only creates doubt regarding recovery of suicide note found on the table. He further referred to the testimony of Ved Prakash, Bimla and Kanwar Pal for submitting that their testimony remains consistent regarding harassment and treatment given to the deceased for insufficient dowry. Kanwar Pal has further deposed regarding demand of Rs.10,000/- which was soon before her death. The appellants have not been able to rebut the presumption under Section 113B of the Evidence Act. No evidence has come from the side of the appellants that they were not present at their house when the incident took place. Post mortem report of the deceased was also referred to for submitting that the Doctor found the bladder and the rectum empty, corroborating the suggestion that the deceased was often made to sleep hungry as she has stated in the letter. Delay of one day in registration of the FIR is no ground to doubt the prosecution case as it has come in the deposition of the parents of the deceased that soon they reached the matrimonial room of their daughter, accused Mahavir and Shri Chand took father of the deceased in a corner and asked him not to make any statement to the police. Even mother was stopped by the accused Chameli Devi from entering the crowd to find out about the incident. Under the circumstances, it was submitted that the impugned judgment does not suffer from any infirmity which calls for interference. Reliance was placed on Surinder Singh v. State of Haryana, 2013 (13) SCALE 691 and Bhateri Devi & Anr. v. State of Delhi, 2013 (4) JCC 2907.

10. We have given our anxious thoughts to the respective submissions of learned counsel for the parties and have also perused the Trial Court record.

11. The dowry system is in existence from the time immemorial in different forms and in different sects of society. It having taken the form of a wide spread epidemic became a matter of concern for the State as well as the social reformatory institutions. The Legislature became alert to the urging necessity of eradicating this social evil by appropriate enactment. True it is that Legislation cannot by itself solve the deep rooted social problem and it is only the education of the society in a particular direction and the efforts of the reformative bodies that social problems can be solved, however, the Legislation has played an important role in curbing the lust of dowry hungry persons. The Legislature, as such, enacted the Dowry Prohibition Act, 1961 and introduced subsequent amendments in the provisions thereof to help the helpless weaker section of the society, i.e., the women folk from the torture and harassment, mental and physical at the hands of the husband and in laws on account of their parents being unable to quench the ever increasing thirst for the property in the form of dowry. Not only those who want to raise their status by managing to get the necessities, comforts and luxuries of life though marriage but the effluent section of the society even in certain cases has a lust for easy money or material through the institution of marriage. Thus the sacred ties of the marriage are given deplorable form and the vows taken by the husband at the alter of marriage are pushed in oblivion and continuous demand every now and then is either directly made by the husband or his relatives to the parents of the bride at the time of marriage or subsequent thereto.

12. Sec. 2 of the Dowry Prohibition Act, 1961 (hereinafter to be referred as ‘the Act’) defines the term ‘dowry’ as under:

“Sec. 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.”

13. The insertion of the word “or any time after the marriage” and “in connection with the marriage of the said parties” by amendments in the year 1986 and 1984 respectively has significance because clever parties initially do not enter into any agreement or make a demand but subsequent to the marriage after the lapse of some period make the demand directly or through the wife in order to make a show that it is not dowry. It is for this reason that Legislation in its wisdom included subsequent demands and the things given as inclusive in the definition of “dowry”. Along with these amendments, provisions were inserted in the Indian Penal Code and in the Indian Evidence Act. Section 304B was inserted in Indian Penal Code as a new provision in the category of offences falling under sections 302, 304A and 307 IPC, in order to curb the lust of procurement of the dowry in the past marital life.

14. Section 304B reads as under:

“304B. Dowry death:Where the death of a woman is caused by any burns of bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called ‘dowry death’ and such husband or relative shall be deemed to have caused her death.”

Explanation-For the purpose of this sub-section “dowry” shall have the same meaning as in Sec.2 of the Dowry Prohibition Act, 1961 (28 of 1961). Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

15. Hon‟ble Supreme Court in Sunil Bajaj v. State of MP, (2001) 9 SCC 417, after noticing the provisions of section 304B IPC had opined that in order to establish an offence u/s 304B IPC, following ingredients must be established before any death can be termed as dowry death:

(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.

(2) Such death must have occurred within 7 years of her marriage.

(3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.

(4) Such cruelty or harassment must be for or in connection with demand of dowry.

16. This section will apply whenever the occurrence of death of a woman is preceded by cruelty or harassment by husband or in-laws for dowry and death occurs in unnatural circumstances. The intention behind this section is to fasten the guilt on the husband or in-laws though they did not in fact caused the death. It may be noticed that punishment for the offence of dowry death under Section 304B is imprisonment of not less than 7 years, which may extend to imprisonment for life, unlike under Section 498A IPC, where husband or relative of husband of a woman subjecting her to cruelty shall be liable to imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304B IPC, an exception is made by deeming provision as to the nature of death as “dowry death” and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution.

17. Section 113B of the Evidence Act is also relevant for the case in hand. Both Section 304-B IPC and Section 113B of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B of the Evidence Act, 1872 reads as under:-

“113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation.- For the purposes of this section, “dowry death” shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)”

18. As per the definition of “dowry death” in Section 304B Indian Penal Code and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been ‘soon before her death’ subjected to cruelty or harassment “for or in connection with the demand for dowry”. While considering these provisions, Hon‟ble Court in M. Srinivasulu v. State of A.P., (2007) 12 SCC 443 has observed thus:

“8.4… The presumption shall be raised only on proof of the following essentials:

(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B Indian Penal Code.)

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death.”

19. A perusal of Section 113B of the Evidence Act and Section 304B Indian Penal Code shows that there must be material to show that “soon before her death” the victim was subjected to cruelty or harassment. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates.

20. Adverting to the case in hand, as regards the first ingredient that the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances, the prosecution has examined Dr. Ashok Jaiswal (PW1) who conducted the post mortem on the dead body of the deceased Saroj and proved reports Ex. PW1/A and Ex.PW1/B opining that the death was due to ante mortem hanging caused by ligature found tied around neck. In cross- examination, he could not rule out the possibility of suicide. The fact that death of Saroj has taken place due to hanging also stands proved from the testimony of PW2 Dilip, PW3 Inderjeet and PW5 ASI Shekhar Lal, PW7 Bimla, PW10 Ved Prakash and PW13 Constable Umed Singh. A suicide note Ex. PW2/B was also found wherein the deceased has stated that she is committing suicide. The factum of committing suicide by the deceased is not even disputed by the accused. Under the circumstances, it stands proved that Saroj @ Rekha had committed suicide. Suicide committed by a woman comes within the purview of Section 304B IPC as it is also a case of death which does not occur under normal circumstances. As such, it is proved that Saroj @ Rekha died “otherwise than under normal circumstances”.

21. It is also undisputed case of the parties that the marriage of the deceased had taken place with the accused Mahavir on 7th May, 1995 and the unfortunate incident has taken place on 20th January, 1996, i.e., within eight months and 13 days of the marriage. As such, the first two ingredients mentioned above are satisfied.

22. We now have to see whether the third ingredient is also satisfied by looking at the evidence on record.

23. Out of 16 witnesses examined by the prosecution, material witnesses in this regard are PW7 Smt. Bimla, PW8 Kanwar Pal and PW10 Ved Prakash, mother, maternal uncle and father respectively of the deceased.

24. PW7 Smt. Bimla, mother of the deceased has deposed that after marriage her daughter Saroj started living at her matrimonial home at Tilak Nagar. Sufficient dowry was given in the marriage according to her status and capacity despite that all the accused persons used to taunt her for insufficient dowry which fact was stated to her by her daughter after two months of the marriage when she came to her house. Her daughter informed her that she was being taunted for bringing less dowry and no articles for the in-laws. She was also beaten up by all the accused persons for bringing insufficient dowry. These facts were disclosed by her on the occasion of Bhaiya Dooj and Raksha Bandhan when she came to her house. On 18th January, 1996, Chameli Devi, mother-in-law of the deceased came to her house in order to greet her as she was going to be the grandmother. She reciprocated the same. However, on 20th January, 1996, Bittoo, s/o Mohinder came to her and informed that condition of her daughter was not good. As such, she rushed to house of her daughter along with her husband and found a crowd and police officials and found her daughter hanging with a ceiling fan in a room. In cross- examination, she admitted that she did not state to the police that she was informed by her daughter that she was taunted and beaten up due to insufficient dowry.

25. PW8 Kanwar Pal is the maternal uncle of the deceased and has deposed that he had visited the matrimonial home of his niece Saroj two three times after her marriage. On 13th January, 1996 he had gone to the house of deceased Saroj on the occasion of Sakranti. At that time, Saroj told him that her in-laws were demanding Rs.10,000/- on account of construction of shop which was demolished earlier and that her mother-in-law, sister-in-law used to give beatings to her. He informed this fact to father of the deceased on 15th January, 1996 at his residence. In cross-examination, he stated that after 1½ -2 months of the marriage, he had gone to meet Saroj. At that time, she told that in the neighbourhood, in the marriage of someone, colour TV and scooter was given in dowry. Sister-in-law of the deceased also told him “Kallo ne kaha ki meri bhabhi bahut achhi hain magar pados mein kisi ki shadi mein colour TV aur scooter milla hai.” He, however, admitted that this fact was not stated by him to the police when his statement was recorded on 17th February, 1996. As regards demand of Rs.10,000/-, he could not say who demanded this amount.

26. PW10 Ved Prakash is the father of the deceased. He has also deposed that enough dowry was given by him at the time of marriage as per his capacity. At the time of marriage or soon thereafter, there was no complaint from any of the accused person in regard to dowry. However, after about 2 months of marriage, when he visited his daughter at her matrimonial home, at that time, she told him that her in-laws have started teasing her for insufficient dowry after marriage in their neighbourhood had taken place in which the bride side had given enough dowry such as colour TV, scooter etc. On the occasion of Raksha Bandhan when his daughter visited him, at that time, she also narrated that she was being frequently beaten up by the accused persons. After 4-5 days he talked to accused Shri Chand in order to know their grudge but he did not disclose any such thing. On the eve of Sakranti, his brother-in law (Kanwar Pal) had gone to his daughter‟s house to present customary gift. On 15th January, 1996, Kanwar Pal came and told him that when he visited his daughter, she was weeping bitterly and stated that her in-laws were demanding Rs.10,000/- for constructing a shop for Mahavir and for that reason, she was being regularly beaten up by all the accused. On 18th January, 1996, accused Chameli, mother-in-law of his daughter came to his house and congratulated them for becoming prospective grand parents of a baby, however, on 20th January, 1996 at about 8:30 pm, a boy, namely, Bittoo came and informed that condition of his daughter was not well. As such, he along with his wife went to Tilak Nagar. On reaching the matrimonial home, they found that there was a crowd and police officials were also present. As soon as he got down from the scooter, he was taken in a nearby room by accused Shri Chand and Mahavir and was threatened that in case any wrong statement is made before the police then he would be beaten up and would also be involved in a false case and that he would also be hanged as his daughter had been done to death. Thereafter, he was taken to the room of his daughter where he saw his daughter hanging with a ceiling fan. Next day, number of persons visited the house of accused persons in order to see the room in which his daughter was murdered. When they entered the room a small child picked up a paper lying underneath a bed and gave it to his wife who passed it to him. When he got that letter read from his son Mukesh then, it was revealed that his daughter has alleged ill-treatment by her in-laws. He became suspicious and gave photocopy of the paper Ex. PW5/A to the Police. Thereafter, he lodged a complaint Ex.PW10/A with the Police. In cross-examination, he could not say if he had stated to the SDM who recorded his statement that he was informed by Kanwar Pal on 15 th January, 1996 that demand of Rs.10,000/- is being made for construction of a shop for Mahavir.

27. On being informed about the incident, on 22nd January, 1996, PW14 Sh. K.K.Dahia, the then SDM, Punjabi Bagh recorded the statement of Ved Prakash, Ex.PW10/B and directed registration of the case. A perusal of the statement Ex.PW10/B which became the bed rock of investigation reveals that it was alleged that after two months of the marriage, his daughter informed him that the accused persons taunted her that her father had not given anything in the marriage, although in the neighbourhood, a marriage had taken place where the girl‟s side had given a colour TV and scooter. No direct demand was made from his daughter, by her in-laws but they used to taunt. Her mother-in-law also used to beat his daughter.

28. A perusal of the aforesaid evidence led by the prosecution goes to show that the allegations are quite vague, unspecific and uncertain. The witnesses themselves have deposed that no demand was made directly by any of the accused persons either from the deceased or from them. The allegations are confined to the fact that a marriage has taken place in the neighbourhood in which the bride had brought colour TV and scooter and the deceased used to be taunted on that account. Even regarding these facts, there is material improvement in the testimony of the witness, inasmuch as, mother of the deceased admitted in her cross-examination that she did not state to the police that her daughter informed her regarding insufficient dowry or taunts and beatings given by the accused persons when she came to her house on the occasion of Bhaiya Dooj and Raksha Bandhan. As far as Ved Prakash is concerned, he has specifically deposed that either at the time of marriage or soon thereafter, there was no complaint from any of the accused persons with regard to dowry. He has also deposed that after the marriage in the neighbourhood where colour TV and scooter was given in dowry, his daughter used to be teased by her in- laws. Even at this juncture, there is no allegation that any demand was made from the deceased or her parents for bringing any dowry article. He has, however, gone on stating that his brother-in-law Kanwar Pal had gone to the house of his daughter on the occasion of Sakranti to give customary gifts, at that time, his daughter informed him that her in-laws were demanding Rs.10,000/- for constructing a shop for Mahavir. However, this part of the testimony was a clear improvement as he was confronted with his statement Ex.PW10/DA where this fact was not mentioned. It is pertinent to note that even when his statement was recorded by the SDM, at that time also, it was not disclosed by him that his brother-in-law informed him that demand of Rs.10,000/- for construction of shop for Mahavir was made by the accused persons.

29. From the evidence on record, it is clear that there was no evidence of demand of dowry or subjecting Saroj to cruelty for or in connection with demand of dowry other than general and vague statements of the parents and maternal uncle of deceased.

30. Moreover, to bring home the guilt of the accused within the four corners of section 304B IPC, it is incumbent upon the prosecution to prove that “soon before her death” deceased was subjected to cruelty or harassment by her husband or in laws. The expression “soon before death” has not been defined and the legislation has not specified any time which would be the period prior to death that would attract the provisions of section 304B IPC. In Sunil Bansal v. State of Delhi, 2007(7) AD Delhi 780, it was observed as under:

“Though there is no thumb rule as to what is meant by the expression “soon before” death of a woman u/s 304B IPC despite substantial flexibility, the charge cannot be maintained, if the acts are remote in point of time. Hon’ble Supreme Court has held in Kaliya Perumal v. State of Tamil Nadu, AIR 2003 SC 3828 and Yashoda v. State of M.P., 2004 III AD 305:2004 (3) SCC 98 that there should not be too much of the time lag between cruelty and harassment in connection with demand of dowry and the death in question. It was also held that there must exist a proximate and live link between the effect of cruelty based on dowry demands and death of the woman. The Court held that if the alleged incident of cruelty is remote in time and has become stale, not to disturb mental equilibrium of the woman, it would be of no consequence.”

31. It seems that PW 8 Kanwar Pal has been introduced in order to make out a case that “soon before her death”, the deceased was harassed on account of dowry demands as according to him, on 13 th January, 1996, he had gone to the house of Saroj when she informed him about the demand of Rs.10,000/-. It is pertinent to note that although the unfortunate incident has taken place on 20 th January, 1996, but statement of this witness was recorded by the Police under section 161 Cr. P.C. for the first time on 7th February, 1996.

32. There are catena of decisions that if the statement of the witness is not recorded on the date of incident or within reasonable time then, it has to be viewed with caution. To cite a few Paramjit Singh v. State of Punjab, 1997 (4) SCC 156; Jagjit Singh v. State of Punjab, (2005) 3 SCC 689; Maruti Rama Naik v. State of Maharashtra, (2003) 10 SCC 670; Harjinder Singh @ Bhola v. State of Punjab, (2004) 11 SCC 253; Prem Narain and Anr. v. State of Madhya Pradesh, (2007) 15 SCC 485.

33. It is not the case of prosecution that this witness was not available to the Investigating Officer of the case. No explanation whatsoever has been given by the Investigating Officer as to why the statement of this witness was not recorded earlier. Under the circumstances, his statement has to be viewed with caution. Moreover, if he had disclosed about the harassment to the deceased for demand of Rs.10,000/- for construction of a shop for Mahavir to her father Ved Prakash on 15th January, 1996 itself, there is no reason as to why this crucial fact was not disclosed by PW 10 Ved Prakash in his statement Ex.PW10/B made before the SDM. Testimony of PW7 Bimla, mother of the deceased is conspicuously silent in regard to any such demand. Moreover, in Appasaheb and Anr. v. State of Maharashtra, AIR 2007 SC 763 it was held by the Supreme Court that in order to bring the case within the four corners of Section 498- A IPC, any property or valuable security should be given or agreed to be given, either directly or indirectly, on or before or any time after the marriage and in connection with marriage of the said parties. Giving or taking of property or valuable security must have some connection with marriage, which is essential. Demand for money on account of some stringency or meeting some urgent domestic expense cannot be termed as demand for dowry. In Sanju v. State, 2009(164) DLT 459 demand of Rs.50,000/- by the appellant for his business from the father and mother of the deceased was held not to fall under demand of dowry as defined under Section 2 of Dowry Prohibition Act as demand is not made in relation to marriage. Besides that, there are general, vague and inconsistent statements of interested witnesses PW7, PW8 & PW10 being the parents and maternal uncle of the deceased which are not sufficient to establish essential ingredients of Section 304B IPC.

34. On the other hand, PW3 Inderjeet, PW4 Rajinder Singh and PW9 Smt. Sapna, used to live in the neighbourhood of the deceased and all these witnesses have deposed that they have never seen the accused persons causing any harassment or torture to the deceased for demand of dowry nor any dowry was ever demanded in their presence. The accused persons had also examined DW1 Anand and DW2 Raghuvir Singh, neighbours, both of whom have also deposed that the deceased was kept well by the accused persons and was never harassed on account of dowry.

35. Coming to the documentary evidence, it is the admitted case of the parties that a suicide note Ex. PW2/B was found lying on a table which was seized vide seizure memo Ex.PW2/A. A perusal of this suicide note goes to show that the deceased has completely exonerated her husband and father-in-law and has taken the responsibility of committing suicide on her own.

36. Learned Public Prosecutor for the State, however, relied upon three undated distinct hand written notes, two of them were recovered from the room where the deceased Saroj @ Rekha died by hanging and the third was tied to the left forearm of the deceased. The two handwritten notes found from the room out of which one was lying on the table marked as Ex.PW2/B and recovered in the presence of Dalip (PW2) and Inderjeet (PW3), neighbours of the accused persons. In another similar hand written letter Ex.PW5/C which was found under the bed of the deceased wherein she stated about the physical abuse meted out to her and laments that it was because of her poor background and the fact that she could not bring enough dowry, that she was treated that way. Then the third hand written letter was the 3 page letter written by the deceased, marked as Ex.PW1/A, addressed to her father which was tied to left forearm of the deceased and found by Doctor Ashok Kumar PW1 and in this letter the deceased had stated that by the time this letter would be read, she might be dead. It was submitted that these letters narrate the ordeals to which deceased was subjected to even for regular living necessities such as a sweater where she was taunted to bring her clothes from her parents, she was not fed properly and often slept without food at night. If all these letters are read, it creates doubt over the recovery of suicide note found on the table. It was further submitted that the other two similar undated hand written letters of the deceased highlight the plight of the deceased and showed the circumstances in which she was staying at her matrimonial place and particular attention was brought to third line from the top where she writes about her mother- in-law “jab se aayi hai, yahi kapde dali hai, apne ghar se kuch nahi layi” and at the top five lines where she writes about her husband that he does not even talk about her food and eats himself without even asking her and she remained hungry for several nights and finally the deceased writes about the slaps given to her which she attributes mainly because of her poor background and also because she could not get sufficient dowry. It was submitted that all these show the harassment and constant mental cruelty in the form of taunts and instances of physical cruelty in the form of slaps.

37. Learned senior counsel for the appellant, on the other hand, submitted that these letters do not reflect any demand of dowry or harassment to the deceased on that account.

38. A perusal of the letter Ex.PW5/C goes to show that it is written that:-

“Papaji aap hi bataiye ki meri galti kya hai. Mai peechhe baith kar kapde dho rahi thi. Mammi ne darwaaza khatkhataya tha. Mujhe aawaz nahi aayi kyonki peechhe tape wagairah chal rahi thi. Baad mei aawaz aane par maine jab darwaza khola, to mammi ne bina soche samjhe 2-3 haath rakh diye, baad mei chappal bhi nikaal li tatha bura bhala mere ghar waalo ko bhi bola. Akhir mein kab tak bardasht karein. Mere din baar ke bolne par hi beizzati ho gai. Kya hamari koi izzat nahi hai jo har koi mere upar haath uthate hain. Mai garib ghar ki hu na. Yadi dahej mei achha laati to shayad yeh sab na hota.”

39. In the other letter, she has referred to the comments made on her clothes. That, at best, can be termed to be discord and difference in domestic life which is quite common in the society to which the victim belonged but the same fall short of proving that the deceased has been subjected to cruelty or harassment „for or in connection with the demand of dowry‟.

40. In these letters, there is no reference of any demand of dowry by any of the appellants. Had there been any demand of dowry or demand of Rs.10,000/- for reconstruction of shop of Mahavir, deceased would have certainly commented upon the same in the aforesaid exhibits. This creates a serious doubt about the version of PW7, PW8 and PW10 regarding harassment of deceased by her husband and in-laws on account of demand of dowry.

41. With this evidence on record, it is clear that:-

(i) There is no evidence of demand of dowry or subjecting Saroj to cruelty for or in connection with dowry other than general, vague and inconsistent statement of interested witnesses, PW 7, 8 & 10, being the parents and maternal uncle of the deceased.

(ii) Not a single neighbour has come forward to speak about subjecting Saroj to cruelty by the appellants in relation to demand of dowry.

(iii) According to the parents of the deceased , there was no demand of dowry either at the time of marriage or even thereafter. There was no specific demand made by any of the appellants either from the deceased or from them.

(iv) The suicide note completely exonerates the husband and father-in-law and does not inculpate mother-in-law and sister-in-law.

(v) The letters Ex.PW1/A, Ex.5/B and Ex.5/C written by the deceased make mention of normal wear and tear of life but no mention was made about the demand of dowry or harassment meted out to her in connection with dowry.

(vi) PW7, PW8 & PW10, on account of Saroj having committed suicide, obviously were angry with the appellant and had every reason to involve them for offence under Section 304B IPC.

(vii) It is very unfortunate that within eight months of the marriage, Saroj had taken the extreme step of committing suicide but what exactly prompted her to take this extreme step has not surfaced.

42. Presumption under Section 113B of the Evidence Act can be drawn only when prosecution first establishes the essential ingredients of Section 304B IPC. Since the evidence falls short of proving the essential ingredients to Section 304B IPC, question of drawing presumption against the accused under Section 113B does not arise. The learned Trial Court fell in error in concluding that the appellants were guilty of offence when the crucial and necessary ingredient that deceased Saroj was subjected to cruelty and harassment soon before her death was not proved looking to the evidence and circumstances cumulatively. Therefore, the findings of learned Trial Court cannot be sustained.

43. The charge sheet was submitted under Sections 498-A/304-B IPC, however, no separate charge for an offence under Section 498-A IPC was framed. It is, however, a settled proposition of law that mere omission or defect in framing of charge would not disentitle the Court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Section 221(1) and (2) of the Code of Criminal Procedure, 1973. In M. Srinivasulu (supra), it was held by Supreme Court that a person charged and acquitted u/s 304B IPC can be convicted u/s 498A IPC without that charge being there, if such a case is made out. That being so, it is to be seen as to whether offence under Section 498-A IPC is made out of not. Section 498-A reads as under:-

“498A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.–For the purpose of this section, “cruelty” means–

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

44. A bare reading of Section 498-A goes to show that the term cruelty which has been made punishable under the Section, has been defined in the explanation appended to the said section. Therefore, the consequences of cruelty, which are either likely to drive the woman to commit suicide or to cause grave injury/or danger to life, limb or health, whether mental or physical, of the woman or harassment of the woman where such harassment is with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, are required to be established in order to prove an offence under Section 498 IPC.

45. Turning to the case at hand, as seen above, there is absolutely no allegation that either any demand of dowry was made from the deceased or from her parents. The allegations are confined to the taunts given to the deceased by comparing the dowry articles brought by the bride in the neighbourhood. It was also alleged that a sum of Rs.10,000/- was demanded for re-construction of shop of appellant- Mahavir which in view of the discussion made above does not come within the purview of demand in relation to marriage.

46. Even as per the letters, the beatings given to her are attributed to her mother-in-law alone. As stated above, in the suicide note, she has completely exonerated her husband and father-in-law whereas no allegations have been made against the mother-in-law and sister-in- law. Even the letters do not make a mention about any ill treatment to the deceased by her sister-in-law who undisputedly was married much prior to the marriage of the deceased with Mahavir and was living in her matrimonial home. As such, at the most, the allegations may tantamount to causing physical or mental cruelty upon the deceased under Part (b) of the Section by the mother-in-law, therefore, the allegations at the most are confined to Chameli Devi, mother-in-law of the deceased. However, as per the nominal roll, she remained in custody for a period of 3 years, 7 months and 15 days. The punishment prescribed under Section 498A IPC extends to three years only. Under the circumstances, even if it is held that Chameli Devi is guilty of offence under Section 498A IPC then she is entitled to be released on the period already undergone.

47. Keeping in view the fact that Saroj has committed suicide within seven years of marriage, it may also be seen whether any case u/s 306 IPC is made out. Section 306 IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment which may extend to ten years and with fine.

48. Section 107 IPC defines “abetment” which reads as under :

“S.107. A person abets the doing of a thing, who First– Instigates any person to do 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, and 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 willful misrepresentation, or by willful 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.”

49. This section has to be read with section 113A of Evidence Act, 1872 which reads as under:-

“When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.- For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)”.

50. A perusal of this section goes to show that any person, who abets commission of suicide, is liable to be punished under section 306 IPC. Section 107 IPC lays down ingredients of abetment, which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. As per definition of abetment as laid down u/s 107 IPC, there has to be instigation to commit suicide on behalf of the accused persons.

51. In Sanju @ Sanjay Singh Sengar v. State of M.P., (2002) Cri.LJ. 2796, it was observed:

“Where suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and dies, no offence u/s 306 IPC is made out.”

52. In Kishori Lal v. State of M.P., (2007) 10 SCC 797, it was observed :-

“Mere fact that the husband treated the deceased wife with cruelty is not enough to bring the case within the parameter of Section 306 IPC.”

53. In the absence of direct evidence, it is to be seen whether presumption u/s 113 A of Indian Evidence Act can be drawn or not.

54. Unlike section 113B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in section 113A of the Indian Evidence Act. Under section 113A of the Indian Evidence Act the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband and in-laws (in this case) had subjected her to cruelty. Even if these facts are established, the Court is not bound to presume that the suicide had been abetted by her husband. Section 113A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in section 498A IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband and in-laws does not automatically give rise to the presumption that the suicide had been abetted by her husband and in-laws. The Court is required to look into all other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 wherein Hon’ble Supreme Court observed :-

“This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in laws and incriminating evidence was usually available within the four corner of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability of section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissible as the employment of expression “may presume” suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression “the other circumstances of the case” used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase “may presume” used in section 113A is defined in section 4 of the Evidence Act, which says “Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it”.

30. In the State of West Bengal v. Orilal Jaiswal and anr., (1994) 1 SCC 73, Hon’ble Apex Court observed :-

“We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of section 498A IPC and section 113A of the Indian Evidence Act. Although, the Court’s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater, 1950 (2) All ER 458, 459 has observed that the doubt must of a reasonable man and the standard adopted be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter”.

55. In Gangula Mohan Reddy v. State of Andhra Pradesh, (2010) 1 SCC 750, Hon‟ble Supreme Court, observed as under:-

In State of West Bengal v. Orilal Jaiswal & Ors (1994) 1 SCC 73, this Court has cautioned that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”

56. In Mahendra Singh v. State of MP, 1995 SCC (Cri) 1157, Hon‟ble Supreme Court observed that it is common knowledge that the words uttered in a quarrel or in spur of moment or in anger cannot be treated as constituting mens rea. In the said case, appellant said to the deceased to “to go and die” and as a result of such utterance, the deceased went and committed suicide, however, Hon‟ble Supreme Court observed that no offence under Section 306 IPC read with Section 107 IPC was made out since there was no element of mens rea.

57. In Bhagwan Das v. Kartar Singh & Ors., (2007) 11 SCC 205, it was held that quite often there are disputes and discord in the matrimonial home and wife is harassed by husband or by her in-laws, this, however, would not by itself and without something more attract Section 306 IPC read with Section 107 IPC.

58. Substantially similar view was taken by this Court in Shailender v. State, 169 (2010) DLT 563.

59. In the instant case, there is no averment in the statement of the witnesses that any of the accused instigated the deceased to commit suicide. There is no direct evidence to establish that any of the accused either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. From a reading of the contents of hand written letter, Ex.PW5/B, it appears that some utterances used to be made by mother-in-law of the deceased which was not to her liking and she used to remain disturbed because of that. However, no evidence has come on record to suggest that such utterances were made wilfully and intentionally in order to instigate the deceased in taking extreme steps of ending her life. Rather it has come on record that after Saroj conceived, family members were very happy. In fact on 18th January, 1993, Chameli Devi, mother-in-law of the deceased visited her parents‟ house to congratulate them as they were going to become grand parents of a child. In the facts of this case, prosecution has been unsuccessful in proving that there was element of mens rea on the part of the accused, accordingly, in our view, ingredients of evidence under Section 306 IPC r/w Section 107 IPC are not attracted. As observed in Smt. Bisno v. State, 2011 II AD (Delhi) 501, there is always a reason behind an act committed by a person. Committing of suicide by deceased by hanging herself, that too within eight months of the marriage does raise a suspicion that everything was not normal. This suspicion, however, cannot be a substitute for the proof of dowry demand or subjecting the deceased to harassment and cruelty, i.e., the requisite ingredients which constitute the offence under Section 498-A, 304-B IPC or 306 IPC.

60. Adverting to the facts of the case, although it is established that marriage of Saroj with Mahavir had taken place on 7 th May, 1995 and she has committed suicide within eight months of the marriage, however, none of the three material witnesses examined by the prosecution proved the allegations of demand of dowry and infact the deceased herself gave a clean chit to accused Mahavir and Shri Chand and in the suicide note she does not level any allegation even against her mother-in-law and sister-in-law.

61. It is a cardinal principle of criminal jurisprudence that the guilt of the accused is to be established by the prosecution beyond the possibility of any reasonable doubt. Even if there may be an element of truth in the prosecution story against the accused but considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. Similar view was taken in Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637; Anil W.Singh v.State of Bihar, (2003) 9 SCC 67; Reddy Sampath W. v. State of A.P, (2005) 7 SCC 603 and Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172.

62. In the instant case, prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt. That being so, they are entitled to benefit of doubt.

63. Under the circumstances, appeal is allowed. Impugned judgment and order on sentence dated 16 th October, 1999 and 23rd October, 1999 respectively are set aside and the appellants are acquitted of the offence alleged against them. Their bail bonds are cancelled and sureties are discharged.

Intimation be sent to the concerned Superintendent Jail. Trial Court record be sent back forthwith along with copy of the judgment.

(SUNITA GUPTA) JUDGE (KAILASH GAMBHIR) JUDGE MAY 16, 2014 rs

 

ordinary #petulance & #discord in matrimony do NOT constitute #cruelty under #ipc498a – #BombayHC

“……Prima facie, this discloses hyper sensitivity of a wife, and ordinary petulance and discord in matrimonial life. Prima facie, this incident cannot be said to satisfy the requirement of ingredients of offence of cruelty defined in Section 498A of the IPC. Similarly, for making out an offence punishable under Section 306 of the IPC, what is required to be proved is mensrea. Without knowledge and intention, there cannot be an abetment. There must be some active suggestion or stimulation by accused persons to the victim.

12. Perusal of evidence of parents of deceased Neha, prima facie goes to show that they have spoken about matrimonial cruelty rather than legal cruelty,

 

In the High Court of Bombay
Criminal Appellate Jurisdiction

(Before A.M. Badar, J.)

Neeraj Subhash Mehta
v.
The State of Maharashtra

Criminal Application No. 1213 of 2016

Decided on January 13, 2017

Citation: 2017 SCC OnLine Bom 62
A.M. Badar, J.:—

  1. This is an application for suspension of sentence and releasing the applicant/accused on bail during pendency of the appeal. The applicant/accused is convicted of the offences punishable under Sections 498A and 306 read with Section 34 of the IPC and he is sentenced to suffer rigorous imprisonment for 3 years for the offence punishable under Section 498A read with Section 34 of the IPC and to suffer rigorous imprisonment for 10 years for the offence punishable under Section 306 read with Section 34 of the IPC. In addition, the applicant/accused and the co-accused are directed to pay compensation of Rs. 25,000/- each to the first informant.
  2. 2. Heard the learned counsel appearing for the applicant/accused at sufficient length. By taking me through the evidence of witnesses for the prosecution, the learned counsel pointed out that the incident dated 28th September 2014 is coming on record from the evidence of PW2 Premlata Sharma – mother of the deceased. By taking me through evidence of other witnesses recording the alleged ill-treatment, the learned counsel argued that evidence is lacunae and insufficient to hold that offences alleged against the applicant/accused are proved.
  3. 3. The learned APP opposed the application by contending that the offence alleged is serious and evidence of witnesses examined by the prosecution is sufficient to hold that the offence is proved and therefore considering the nature of offence, the applicant/accused is not entitled for bail.
  4. 4. I have carefully considered the rival submissions and also perused the impugned judgment and order as well as deposition of witnesses.
  5. 5. The applicant/accused married Neha Mehta (since deceased) on 27th April 2009 and thereafter she started cohabiting with the applicant/accused and his family at Nerul, Navi Mumbai, in her matrimonial house. Neha Mehta died suicidal death on 28th September 2014 by hanging herself at the house of the applicant/accused.
  6. 6. On the basis of report lodged by PW1 Kamal Sharma – father of deceased Neha, the applicant/accused and co-accused were prosecuted and ultimately convicted and sentenced as indicated in opening paragraph of this order. Charges of subjecting a married woman to cruelty and abetting her to commit suicide are held to be proved against the applicant/husband.
  7. 7. Explanation to Section 498A of the IPC defines the term cruelty and it reads thus:
    •  498A. Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
      Explanation – For the purpose of this section, “cruelty” means —
    •  (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
    •  (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
  8. 8. Section 107 of the IPC defines the term abetment and this section reads thus:
    • 107. Abetment of a thing – A person abets the doing of a thing, who —
    • Firstly – Instigates any person to do 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, and 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 willful misrepresentation, or by willful 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.
  9. 9. Section 113A of the Evidence Act prescribes rule of presumption in case of suicidal death by a married woman. Whenever the question arose as to whether commission of suicide by a woman has been abetted by her husband or relatives of her husband and it is shown that she had committed suicide within the period of seven years of her marriage and that her husband or relatives of her husband had subjected her to cruelty, then the court may presume “having regard to all other circumstances of the case” that such a suicide has been abetted by her husband or relatives of her husband. It is, thus, clear that, this presumption cannot be raised automatically on proof of suicidal death within seven years of marriage and subjecting a married woman to cruelty. Something more is required to be seen for drawing this presumption.
  10. 10. By catena of judgments of this court as well as Apex Court what amounts to cruelty as envisaged by Explanation to Section 498A of IPC is explained. Cruelty implies harsh and harmful conduct with certain intensity and persistence. It covers acts causing both physical and mental agony and torture or tyranny and harm as well as unending accusations and recrimination reflecting bitterness putting the victim thereof to intense miscarries. The conduct, in order to prove guilt, must be such as strongly stirring up the feeling in the mind of a married woman that life is now not worth living and she should die, being the only option left. In other words, provisions of Section 498A of the IPC envisages intention to drawing or force a woman to commit suicide by un-abetted persistence and grave cruelty. A willful conduct of such a nature as is likely to propel or compel a married woman to commit suicide or to cause grave injury or danger to her life, limb or health is required to be established. In other words, matrimonial cruelty is included from the definition of legal cruelty. To put it in other words, ordinary petulance and discord or differences in domestic life does not amount to cruelty. By keeping this aspect in mind, let us prima facie examine the instant case for a limited purpose as to whether the applicant/accused is entitled for liberty. If the impugned judgment and order of the trial court is perused, then it is seen that the reasoning part is in paragraph 65 of the judgment. Reliance is placed on evidence of PW1 to PW3 by the learned trial court. It is observed that the dispute was over the issue of the deceased having made “kaccha chapati.” Further observations are to the effect that this was too trivial matter to invoke extreme and harsh response of calling her brother and parents. In other words, the learned trial Judge was very well aware of the fact that the incident of commission of suicide was preceded by a trivial incident in the matrimonial life of Neha. Still, without further discussion, offence punishable under Section 498A of the IPC is held to be proved. Then by taking aid of Section 106 of the Evidence Act, as well as Section 113A thereof, it is held that the offence punishable under Section 306 of the IPC is proved.
  11. 11. Evidence of PW2 Premlata Sharma – mother of the deceased, reflects what was the incident which took place just prior to suicidal death of Neha Mehta. Mother of Neha (PW2) disclosed this incident by stating that on that day, excluding Neha, everybody in her house had breakfast. But when Neha was about to take breakfast, her husband i.e. the present applicant, asked her to prepare tea for his mother i.e. the co-accused. Upon that, as per version of PW2 Premlata Sharma, her daughter informed the applicant/husband that she is feeling uneasy and unwell. Then the applicant/husband had spoken bad words about parents and relatives of Neha i.e. his wife. This incident, according to prosecution case, as reflected from the evidence of parents and brother of the deceased, triggered her suicide. Prima facie, this discloses hyper sensitivity of a wife, and ordinary petulance and discord in matrimonial life. Prima facie, this incident cannot be said to satisfy the requirement of ingredients of offence of cruelty defined in Section 498A of the IPC. Similarly, for making out an offence punishable under Section 306 of the IPC, what is required to be proved is mensrea. Without knowledge and intention, there cannot be an abetment. There must be some active suggestion or stimulation by accused persons to the victim.
  12. 12. Perusal of evidence of parents of deceased Neha, prima facie goes to show that they have spoken about matrimonial cruelty rather than legal cruelty, as according to their averments, taunts to deceased Neha were to the effect that she was not knowing how to speak English, how to cook food etc. On this backdrop, parents of the deceased admitted that their daughter studied in English Medium at Army Public School and that she was even cadet in NCC. It has also come on record that after marriage the deceased continued her education. To crown this all, it is seen that prior to few months of the incident, PW2 Premlata Sharma had joined parental relative of deceased Neha to enjoy trip to Himachal Pradesh, Chandigarh and Delhi etc.
  13. 13. In the wake of this evidence against the applicant/accused, and the fact that during trial, he was on bail, he deserves liberty, and therefore the order:
    • i) The application is allowed.
    • ii) Substantive sentence of imprisonment imposed upon the applicant/accused is suspended and he is directed to be released on bail on executing P.R. Bond of Rs. 15,000/- and on furnishing surety in like amount.

No dowry or cruelty soon b4 wife’s death! No evidence except bald statements! ALL acquitted in 306, 304B, 498A. Raj HC

Sad story of how a husband is acquitted 21 years AFTER the death of his wife. The Hon. HC scrutinizes the evidence and notices that there is NO evidence to prove either dowry demand or cruelty linking to the death !!

#SoonBeforeDeath #ProsecutionToProve #Cruelty_SoonBeforeDeath #soon_before_death_304B_(1)_of_IPC #acquittal #acquittalIn304B

The Honourable HC appreciates states “….. On an overall analysis of the entire sequence of events, … it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements!!….”

“…Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully…..”

“…In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific …”

“….As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well….”

=========================================

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
J U D G M E N T :

S.B.CRIMINAL APPEAL NO. 221/1997

Ramesh Kumar
vs.
State of Rajasthan

DATE OF ORDER : 12th July, 2016

P R E S E N T
HON’BLE MR.JUSTICE ARUN BHANSALI

Mr.Suresh Kumbhat, for the appellant.
Mr. Arjun Singh, Public Prosecutor.

BY THE COURT:

This appeal is directed against the judgment dated 28/4/1997 passed by the Addl. Sessions Judge, Bali in Sessions Case No.54/95, whereby, the appellant Ramesh Kumar has been convicted for the offence under Sections 498A, 304B and 306 IPC and has been senteced to imprisonment as under:

U/s 498A IPC : 3 years R.I., Rs.1000/- fine, in default 3 months R.I.
U/s 304B IPC : 7 Years R.I., Rs.5000/- fine, in default 6 months R.I.
U/s 306 IPC : 7 Years R.I., Rs.500/- fine, in default 6 months R.I.
All the sentences have been ordered to run concurrently.
By the said judgment, other two accused Shanker Lal and Nopi Bai, parents of appellant Ramesh Kumar, were acquitted.

The brief facts of the case are that on 19/6/1995, Shanker Lal, father of the appellant, lodged an FIR indicating therein that his son Ramesh Kumar (Appellant) was married to Vimla 05 years ago; they are having one daughter Mamta aged about 2 years and a son Ravi aged about 06 months; at about 8.00 am on the said day Ramesh Kumar, his wife Vimla and other family members went to plough the field; at about 10.30 am his son Pratap informed him that he went to the well to start the pump, the pump did not start and Pratap found that one `odna’ (shorter version of saree) was lying near the motor; Pratap went to the well and Ramesh Kumar and Phoola Ram also came to the well and saw that clothes of woman were lying there; they went back to the house to search Ramesh’s wife and children but they were not found; Ramesh Kumar and Phoola Ram informed Pratap that about 10.00 am Vimla told that she is going to give milk to her children and Vimla along with Mamta & Ravi fell into the well.

On the said report proceedings under Section 174 Cr.P.C. were initiated by SDM, Bali and after investigation they lodged FIR under Section 498A and 304B IPC and after investigation challan was filed against appellant Ramesh Kumar, his father Shanker Lal and mother Nopi Bai. After trial, Shanker Lal and Nopi Bai were acquitted and appellant Ramesh Kumar was convicted and sentenced in the manner indicated hereinbefore.

On behalf of the prosecution, 17 witnesses were examined, whereafter, statement of accused under Section 313 Cr.P.C. was recorded; on behalf of the prosecution documents Ex.P/1 to P/32 were produced and defence produced the statement of Smt. Kastu as D-1.

While P.W.4 to P.W.12 were declared hostile, the trial court based on the statements of P.W.1 to P.W.3, Shesha Ram-brother, Mangi Lalfather and Smt. Kastumother, though brother and father during the course of their statement were also declared hostile, and based on the evidence available on record convicted the appellant for the offences under Sections 306 and 498A and 304B IPC with the aid of Section 113A & 113B of the Evidence Act, 1872. The other accused Shanker lal and Nopi Bai were acquitted, as noticed hereinbefore.

It is submitted by the learned counsel for the appellant that a bare perusal of the entire sequence of events as brought on record by the prosecution would clearly show that the prosecution has failed to bring home the charges against the appellant and, therefore, the judgment impugned deserves to be set aside. It is submitted that there is no evidence worth the name regarding the appellant seeking dowry and, therefore, the conviction under Section 498A and 304B cannot be sustained. With reference to the letters Ex.P/2, Ex.P/3 and Ex.P/4 it was submitted that the letters, even if taken as proved, were written between the period 13/4/1993 and 03/07/1993 and the incident has happened on 19/6/1995 i.e. almost after two years and, therefore, the ingredients of Section 304B regarding ‘demand of dowry soon before death’ is totally missing. It was further submitted that a bare reading of the letters would indicate that the same are nowhere connected with the demand of dowry but infact pertain to the amount which was lying with the appellant’s father-in-law along with some more amount as loan and, therefore, from the very nature of the said documents, it cannot be said that any dowry was ever demanded by the appellant. With reference to the statement of Shesha Ram and Mangi Lal, brother and father of deceased Vimla, it was submitted that from both the statements it is ex facie clear that the appellant did not demand any dowry and, therefore, the conviction of the appellant deserves to be set aside.

With reference to the conviction under Section 306 IPC it was submitted that the entire statements of Mangi Lal and Kastu, father and mother of deceased Vimla, clearly indicate about some dissatisfaction from the mother-in-law only and there is no reference whatsoever regarding any dissatisfaction/dispute with the appellant and, therefore, the appellant could not have been convicted for abetment of suicide by deceased Vimla and, therefore, the judgment deserves to be quashed and set aside. It was also submitted that the documents Ex.P/2 to Ex.P/5 which have formed the basis for conviction are full of overwriting, wherein, the Investigating Officer P.W.16 has indicated that he did not get examined said documents and that overwriting in said letters was apparent and, therefore, said documents could not have been relied on by the prosecution.

Reliance was placed on Harpal Singh vs. State of Rajasthan : 2004 (2) R.Cr.D 274, Devender Singh vs. State of Haryana : 2007 (1) Crimes 228 (SC), Manoj Kumar vs. State of Rajasthan : 2008 (1) Cr. L.R.(Raj.) 865, Vikram Singh vs. State of Rajasthan : 2007 (1) Current Judgments (Raj.) Criminal 295, Indrajit Sureshprasad Bind & Ors. vs. State of Gujarat : 2013 Cr.L.R.(SC) 403 and Bakshish Ram & anr. vs. State of Punjab : 2013 Cr.L.R.(SC) 753.

Learned Public Prosecutor vehemently opposed the submissions made by the counsel for the appellant. It was submitted that from the material available on record it is proved beyond reasonable doubt that deceased Vimla along with her two minor children, Mamta and Ravi, committed suicide on account of demand of dowry by the appellant and, therefore, his conviction is justified and the judgment of the trial court does not call for any interference.

I have considered the submissions made by the learned counsel for the parties and have perused the material available on record.

The ingredients of offence under Section 304B IPC pertaining to dowry death, which has got implication in the present case are death of a woman within seven years of marriage otherwise than under normal circumstances, woman being subjected to cruelty and harassment soon before her death in connection with any demand of dowry. Further, Section 113A of the Evidence Act provides for presumption as to abetment of suicide by a married woman in case it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or relatives of her husband had subjected her to cruelty and Section 113B of the Act provides for presumption as to dowry death if it is shown that soon before the death of a woman she was subject by such persons to cruelty and harassment for or in connection with demand of dowry.

A scanning of the evidence available on record indicates that P.W.1 Shesha Ram, brother of deceased Vimla, stated that his uncle Mangi Lal was in service at Bombay; Ramesh was in service at Bhiwandi; he was not aware about the nature of relation between Vimla and her husband as he used to come to the village once in a year; once or twice Vimla told him at Sadri that Ramesh used to give her beating. The said witness then referred to an incident of some Sunday regarding which he did not indicate any date or period and stated that he along with Puna Ram, Durga Ram and his uncle Mangi Lal went to Bhiwandi to meet Ramesh, where Ramesh sought monetary help from his uncle and offered to pay interest; his uncle told Ramesh that as he is in service he did not have the money; Ramesh had asked for Rs.50,000/-. Witness concluded his statement qua the said visit by indicating that that was the conversation which took place between Ramesh and Mangi Lal and there was no other discussion and then stated that Ramesh told his uncle that he will have to give the amount under any circumstance, whereafter, the said witness was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during police investigation as Ex.1. In cross examination by the counsel for the accused, he stated that Vimla told him 6-7 times about beating and as to when Vimla told him about the said aspect he was not aware of the year and time and reiterated that he used to visit village once in a year. When the witness was asked about other details qua Vimla as to birth of her children, he expressed ignorance. On further cross examination regarding the location of Ramesh’s room at Bhiwandi, he expressed ignorance and with regard to his visit he stated that Ramesh and Vimla were sitting happily. He expressed ignorance about Ramesh lending some money to Mangi Lal. Said statement of P.W.1 Shesha Ram is full of contradictions as noticed hereinbefore, he started with the fact that he met Vimla once or twice in Sadri when she informed about beating given by Ramesh, however, in the cross examination he claimed that Vimla told him 6-7 times regarding beating given to her. The said witness is cousin brother of deceased Vimla and is totally unaware of her family circumstances i.e. birth of her children and in those circumstances, the communication between Shehsa Ram and Vimla regarding her personal affairs, when admittedly Shesha Ram visited his village only once in a year from Bombay, specially in view of rural background of the parties involved, appears to be wholly improbable. The witness even qua the meeting indicated that Ramesh asked for monetary help and also offered to pay interest on the said amount, however, nowhere the witness has indicated anything about the point of time, not even the year has been indicated as to when the said incident regarding their visit to Bhiwandi happened, as such, it cannot be said that the alleged demand could be termed as demand for dowry.

Mangi Lal, P.W.2, father of deceased Vimla, indicated that relations between Ramesh and Vimla were (??? ???) normal. Ramesh used to serve at Bombay and Vimla was living at Bali. He alleged that Vimla was living at Bali peacefully for 12 months, whereafter, her in-laws stopped giving food to her. He stated that Ramesh Kumar wrote letters to him demanding Rs.2 lacs, which were handed over to Police and marked as Ex.P/2, Ex.P/3 and Ex.P/4. He also exhibited a letter written by Vimla to the community as Ex.P/5. He also stated that he met Vimla at Bombay, where she stated that everything was peaceful and she has no problem; Ramesh used to ask for Rs.2 lacs sometimes and Rs.35,000/- sometimes. When he stated that father-in-law and mother-in-law of Vimla & her husband forced her to commit suicide, he was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during investigation as Ex.P/6 and admitted the production of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5. In cross examination by the counsel for the accused, most of the allegations pertain to father-in-law and mother-in-law. A look at the statement indicates prodution of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5, making statement about demand of Rs.2 lacs and sketchy allegations only pertain to in-laws and not against appellant Ramesh Kumar.

A look at the letters Ex.P/2, Ex.P/3 and Ex.P/4 reveals that while Ex.P/2 is dated 13/4/1993 indicating that Ramesh was not well and that Mangi Lal should come with Rs.2 lacs for treatment and if he does not turn up then they should deem that their son-in-law is no more. The Investigating Officer qua the said letter indicated that there may be interpolation with the figures. The document Ex.P/3 dated 15/6/1993 is a piece of paper, wherein, it is indicated that please pay Rs.2 lacs to Phoola Ram, qua the said piece of paper also the Investigating Officer stated likelihood of interpolation in the figures, which is apparent from the bare look at the said exhibit. The third document is a letter dated 3/7/1993 (Ex.P/4), wherein, it is indicated that Mangi Lal should repay Rs.25,000/- given by Ramesh along with Rs.10,000/-, in total Rs.35,000/- by way of draft. It was indicated that the amount was paid by him two years back and, therefore, he can also lend and that amount would be returned back with interest. The document Ex.P/5 is a Note dated 29/11/1993 written by Vimla addressed to Panchas indicating that she was at her parents home for six months and there should be some settlement. Further reference was made that nobody has turned up from her in-laws to take her back and that she does not want to go back to her in-laws place. In his statement, Mangi Lal made bald statement about demand of Rs.2 lacs by appellant Ramesh and produced document Ex.P/2 to Ex.P/5 for supporting the said contention. However, a bare look at the said documents, as noticed hereinbefore, would indicate that besides the fact that there are apparent interpolations in the figures, from none of the communication it can be deciphered as to demand was in relation to dowry by appellant Ramesh Kumar. On the other hand, the letter Ex.P/4 indicates calling for return of the amount paid by Ramesh Kumar to Mangi Lal and offering interest on the additional amount requested by him. The said document, conclusively indicates that other communications Ex.P/2 & Ex.P/3, apparently cannot be termed as any demand for dowry. Further the indication by the father Mangi Lal regarding his daughter living peacefully at Bombay when he met her, also clearly indicates that in so far as appellant was concerned, there was apparently no dispute between the husband and the wife. The letter/representation dated 29/11/1993 (Ex.P/5) said to have been written by Vimla also does not indicate any demand of dowry from any quarter and only a grievance has been made that her in-laws were not taking her back from her parents’ house.

In view thereof, from the documents produced by Mangi Lal P.W.2 and from his statement also, nothing has emerged so as to bring home the allegations/charge against the appellant Ramesh Kumar.

P.W.3 Kastu,who is mother of deceased indicated that the first child was born to Vimla after about one year of her marriage; the relations of Vimla with her in-laws were normal when she ws sent back after delivery; thereafter, her father-in-law and mother-in-law used to quarrel with her and used to give her beating and would not give food to her. She made reference to communication made to Panchas of the Samaj regarding dispute after Vimla came to Sadri (parental home); Ramesh Kumar had written 2-3 letters, however, she was not aware of the contents thereof and her husband informed her that Ramesh was demanding amount of money, whereafter, Ramesh took Vimla to Bali and from there to Bombay. She alleged that husband of Vimla and her father-in-law and mother-in-law used to give beating and used to demand money. In cross examination she stated that Vimla returned from Bombay to Bali and she did not indicate anything about beating being given to her. She stated about beating given by mother-in-law when Ramesh was at Bombay; Ramesh took Vimla to Bombay where she remained for about 1 -2 years and a son was born to her at Bombay. A bare look at the said statement of Kastu, it can be deciphered that she made reference about relations being normal till the birth of first child and thereafter, when Vimla went to her in-laws place there was some dispute and when she returned back to her parental house and remained there for six months. Thereafter, Ramesh took her back and from there they went to Bombay and stayed at Bombay for over two years and relations were normal inasmuch as Vimla gave birth to her second child at Bombay i.e. place of her husband and whereafter, the incident has happened. The letters which have been written over a period of seven months during the period 3.4.1993 to 29.11.1993, pertain to the period when Vimla was at her parental home. Besides above, there is no other evidence as all other witnesses i.e. P.W.4 to P.W.12 have been declared hostile and P.W.13 to P.W.17 are official witnesses.

On an overall analysis of the entire sequence of events, as noticed hereinbefore, it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements. Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully.

In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific inasmuch as it is admitted on record that Ramesh used to reside at Bhiwandi during the period when allegation of giving beating has been indicated whereas Vimla is stated to be staying at Sadri with her father-in-law and mother-in-law and in the letter Ex.P/5 dated 29/11/1993 written to Panchas also there is no reference of any beating being given to deceased Vimla and,therefore, the prosecution has failed to being home even the said allegation against appellant Ramesh Kumar.

Even as per the evidence led by the prosecution, the demand, if any, (though it has been held hereinbefore that there was no such demand) was made between the period 13/4/1993 to 3/7/1993 based on Ex.P/2 to Ex.P/4, whereas, Vimla committed suicide on 19/6/1995 i.e. after almost two years.

Hon’ble Supreme Court in State of Karnataka vs. Dattaraj & Ors. : 2016 (2) RLW 1573 (SC) held that as the demand was made about two years before the occurrence, the same was too remote to the occurrence and, therefore, would not satisfy the requirement of ‘soon before her death’ as contemplated under Section 304B (1) of IPC. The Hon’ble Supreme Court further with reference to its judgment in the case of Appasaheb vs. State of Maharashtra : (2007) 9 SCC 721 and Rajinder Singh vs. State of Punjab : (2015) 6 SCC 477 refused to consider the demands made by the accused in the said cases for purchasing the agricultural land and also with reference to sewing machine to be treated as demands constituting ‘dowry’.

As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well.

The trial court while making reference to the various statements, frowning on the conduct of the witnesses, who turned hostile specially P.W.4 Prakash, based on drawing presumption under Section 113A and 113B of the Evidence Act, convicted the accused.

The Hon’ble Supreme Court in the case of Bakshish Ram (supra) held that there must be material to show that soon before her death the victim was subjected to cruelty or harassment, in other words the prosecution has to rule out the possibility of a natural and accidental death so as to bring it within the purview of death occurring other than in normal circumstances.

In the present case, the prosecution was obliged to prove that appellant had subjected the deceased to cruelty/soon before the occurrence there was cruelty or harassment and in view of the fact that prosecution has failed to prove that deceased Vimla was subjected to cruelty by the appellant/subjected to cruelty or harassment soon before her death in connection with any demand of dowry, the presumption under Section 113A and 113B of the Evidence Act does not arise and, therefore, the findings recorded by the trial court cannot be sustained.

In view of the above discussion, this Court is satisfied that prosecution has failed to establish the guilt of the appellant beyond reasonable doubt and the trial court committed an error in convicting the appellant and same is, therefore, liable to be set aside.

Accordingly, the appeal is allowed, the conviction of appellant Ramesh Kumar for the offences punishable under Sections 306, 304B and 498A IPC is set aside. The amount of fine, if paid by the appellant, be refunded back to him.

(ARUN BHANSALI), J.

baweja/

An innocent man is spared by the dying declaration of his wife ! Acquittal even after wife’s death P&H HC

Just because a wife is dead, within seven years, due to unnatural causes, does NOT  mean conviction !! Even though the parents of the dead woman weave a false story of dowry demand and cruelty, register a case of dowry death, the husband is spared by the wife’s cogent and clear dying declaration, clarifying that it was an accident and that her husband only tried to save her

The court concludes it’s well reasoned judgement as follows ” ….Having evaluated the evidence independently the finding of the trial Court so far as the dying declaration is concerned is accepted as the same passes the test of credibility. Nisha had narrated sequence of events. The trial Court did not entertain any doubts about the statement. The medical officer had made an endorsement about the mental state, therefore, the dying declaration could not be excluded from consideration. It is found that it would be safe to act on the dying declaration. There is no inconsistency. The deceased had not blamed any one for the incident. She herself was not aware of the reason as to how her clothes caught fire. It appears that the parents out of utter frustration chose to file a complaint subsequently. Even otherwise the demand of money for construction of a house would not fall within the definition of dowry demand. There was no   complaint prior to the incident to the Panchayat. There was no complaint to  the Senior Officers under whom the accused was serving. People have become more aware. In cases where Government servant are involved, people do not hesitate and send written complaints to the senior officers. The incident was an accident. The dying declaration was natural. The maker of the same was in a fit mental condition, therefore, accepting the dying declaration the findings recorded on point No. 2 and 8 are set aside. The Appeal is accepted. All the accused are acquitted. Their bail bonds are discharged. ……..”


IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Crl. Appeal No. S-2331-SB of 2008

Date of decision : 01.03.2016

Dilawar Singh and others  …… Appellants
versus
State of Punjab … Respondent

CORAM:- HON’BLE MRS. JUSTICE ANITA CHAUDHRY
1.Whether Reporters of local papers may be allowed to see the judgment?
2.To be referred to the Reporters or not? Yes
3.Whether the judgment should be reported in the digest?

Present:               Mr. Bipan Ghai, Sr. Advocate with Mr. Paras Talwar, Advocate for the appellants

Mr. K.S. Aulakh, AAG Punjab

ANITA CHAUDHRY, J.

The appellants were convicted and sentenced to undergo rigorous imprisonment for 10 years under Sections 304-B IPC by the Sessions Judge, Jalandhar on 01.10.2008.

Recapitulating the brief facts, Nisha was married to Dawinder Singh on 31.01.2001. An unfortunate incident took place on 13.11.2005. Nisha succumbed to the injuries on 16.11.2005. A dying declaration was made by the deceased giving clean chit to the family, therefore, no FIR was registered. A complaint was filed subsequently and the accused were summoned. The case was committed and the prosecution examined 10 witnesses.

In the statement recorded under Section 313 Cr.P.C. all the   accused denied the circumstances and pleaded innocent. Dawinder had stated that they were living happily and his father and mother had gone to attend a Satsang and he was feeding the pigeons on the roof. The deceased was preparing food on the Chulla using the waste of fire crackers and the fire took place and she was caught in the same and on hearing the cries he came down, tried to save his wife and during that process both his hands were burnt and with the help of the neighbours he took his wife to Puran Hospital Adampur. Six witnesses were examined in defence. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The case set up by the prosecution was that there was a demand of Rs. 5 lacs for construction of the house which was not met and there was an extra judicial confession by the accused that they had caused death and the dying declaration was never made by the deceased nor it was voluntary and the police was helping the accused as the husband was a Constable working in the SPs office, therefore, all help was rendered and it was a case of murder.

The trial Court held the accused guilty under Section 304-B IPC. They were sentenced to the imprisonment mentioned herein before.

The submission on behalf of the appellant was that a dying declaration was made and the police did not register the FIR and subsequently a complaint was filed and the complainant came up with the story of oral dying declaration which was not accepted. It was urged that trial Court had given a finding that the deceased had caught fire accidently while cooking meals and in that case they could not have been convicted for her death. It was urged that there is a contradiction   as to who had poured the kerosene oil and the Court had wrongly  invoked the presumption and when a categorical finding had been given that the deceased had not made any dying declaration before the complainant or Surinder Singh, therefore, the conclusion that since the death was within seven years, therefore, the presumption under Section 113-B IPC was contradictory and there was no evidence that there was any demand or cruelty soon before the incident. It was urged that the husband had sustained burn injuries on both the arms and they had led evidence in defence to prove the injuries and had it been a case otherwise, the husband would not have made any efforts to save her. It was also submitted that the parents were not at home. It was also submitted that the Medical officer was present through out and a certificate was appended that the deceased remained fit and conscious through out the statement. It was urged that even the neighbours had come to support the accused and the relations between the couple were normal and the deceased was shifted to the hospital by the husband in the conveyance of a neighbour and Tarsem DW was in the same vehicle and the injured had disclosed what had happened. It was urged that there were old expired crackers which were in the grass which exploded and incident was an accident.

The submissions on the other hand were that the husband was a Constable working in the same District and oral dying declaration was made and the statement of the complainant was rightly accepted. It was urged that there was demand and cruelty soon before death and the witnesses have spoken about it and the accused had made a confession before Husan Lal PW-4.

Nisha was married to Dawinder Singh in January 2001. The  unfortunate incident took place on 13.11.2005 at about 8.30 a.m. The complainant had alleged that on 07.11.2005 he had received message from his daughter Nisha that she was apprehending death at the hands of all the accused and she be brought back. On 08.11.2015 he alongwith his wife, Gurmukh Singh and Paramjit Singh went to the house of the accused where they had repeated the demand of Rs. 5 lacs. On 13.11.2005, the complainant received information that his daughter had been burnt. On receipt of this information the complainant alongwith Surinder Singh went to village from where he came to know that his daughter has been shifted to Puran Hospital, Adampur from where he came to know that his daughter has been shifted to Johal Hospital, Rama Mandi, Jalandhar. They reached the hospital and spoke to the daughter who in the presence of his wife and Surinder Singh told them that she was beaten up in the morning by all the accused and Mohinder Kaur had poured kerosene oil upon her and when she tried to run away her husband Dawinder Singh and father-in- law Dilawar Singh prevented her from running and her husband put her on fire with a match stick. The complainant had alleged that Dawinder Singh pushed her with his hands and threw her on the ground and warned her that she should not make the statement against them otherwise she would be killed alongwith her parents. The complainant had also stated that his daughter had told him that she had made a wrong statement to save the accused and it was under fear and pressure. The complainant had deposed that the police had refused to take any action against Dawinder Singh as he was posted in the office   of Senior Superintendent of Police, Jalandhar. The complainant had  also alleged that all the three accused approached Husan Lal on 20.11.2005 and made a confession before him one by one that they had committed a mistake and they should be pardoned. A complaint was filed thereafter. The complainant led preliminary evidence and the accused were summoned.

At the trial the prosecution examined Dr. Sanjeet Babuta as the first witness. He had stated that he was posted as Senior Medical Officer, Civil Hospital, Jalandhar. He had conducted the postmortem examination and had given the cause of death.

Paramjit PW-2 had deposed that Nisha was married to Dawinder Singh about 8/9 years ago and she had son and daughter. He had stated that Dilawar Singh had come to him and had told him on 08.11.2005 that his daughter had been maltreated and he should accompany him to the village so that they should speak to the parents and he alongwith Kamla Devi and Gurmukh Singh accompanied Dilawar Singh and they had given a piece of advise to Dawinder Singh and had requested him not to maltreat Nisha. He stated that it was being repeatedly told by their daughter that the accused were demanding Rs. 5 lacs and had threatened to kill her. He came to know about death of Nisha on 13.11.2005. He stated that he had not suggested to the complainant to make any application against the accused before the police or the panchayat. He stated that they did not call any respectable, Sarpanch or Panch of that village.

Gurmukh Singh PW-3 made a similar statement as made by Paramjit Singh. He stated that he had accompanied the complainant,   Paramjit Singh and Kamla Devi to the house of the accused and they  returned after giving them a piece of advise.

Husan Lal PW-4 stated that he was member Panchayat of village Panshta and Dilawar Singh was a resident of his village. He stated that on 20.11.2005 Dilawar Singh, Mohinder Kaur and Dawinder Singh came to him and confessed to the crime and had asked him to intervene and get a compromise effected. He stated that he had not give any written application to the police nor he had met the Panchayat of village Daroli and he had made statement before the Court for the first time. He stated that he did not know how the deceased had caught fire.

Dilawar Singh PW-5 gave details of the articles given in the marriage He stated that the marriage took place in January 2001. He stated that whenever his daughter came to meet him she had been telling him that Dawinder Singh used to return home under the influence of alcohol and acted like butcher and gave her beatings and there was demand of dowry and she had been turned out of the house but he had advised her to stay in the matrimonial home as she had married him. He stated that in 2004 his daughter told him that Dawinder had been threatening to give divorce to her. He stated that he paid Rs. 1,25,000/- to the accused for purchase of plot and Rs. 60,000/- was withdrawn by him and the remaining amount was taken from his brother-in-law. He deposed that the accused had been demanding Rs. 5 lacs for construction of the house. He deposed that a message had been received from his daughter on 07.11.2005 that they would kill her and that he should come and on the next day he alongwith his wife   Kamla Devi, Gurmukh Singh and Paramjit went to the house of the  accused and they met their daughter and the accused were demanding Rs. 5 lacs and all of them requested the accused and his family and after giving them a piece of advise they returned and their daughter was set on fire on 13.11.2005. He stated that they reached the hospital and their daughter had told them that she was beaten by the accused in the morning and that when she tried to run away, Mohinder Kaur poured kerosene oil on her and she was prevented from leaving the house by Dawinder and Dilawar Singh who were standing near the door and Dawinder Singh set her on fire. He had stated that his daughter had told them that she had made a false statement to the police under fear and pressure. He stated that at that time Dawinder Singh was working as Operator with the SSP. He stated that his daughter died on 16.11.2005 and they went to the village of accused and asked them to get the postmortem performed which they refused and they again approached the police but they were not heard and SSP gave an assurance to conduct an inquiry but no inquiry was conducted. He stated that Husan Lal told him on 20.11.2005 that the accused had come to him and had told him that they had burned the girl and they should try for compromise. He stated that they approached the police a number of time and also gave applications and telegrams to the higher police officers, then he filed a complaint against the accused. The complainant admitted that he had not made any complaint to the police or to the SSP about any demand nor he had given any application against Dawinder Singh that he used to remain under the influence of liquor. He denied that his daughter had made statement before the   Magistrate.

Dev Raj PW-6 brought the summoned record pertaining to the Fixed Deposit Receipts in the name of Kamla Devi which was for a sum of Rs. 1,25,000/- which was encashed on 05.02.2003.

Shaminder Singh PW-7 from the DC office brought copy of the sale deed in favour of Dawinder Singh.

Surinder Singh PW-8 had accompanied the complainant to the hospital. He stated that Nisha had told him that she was beaten up by her husband and in-laws and she was caught by her husband and he poured kerosene oil on her and when she tried to run away she was pushed by her husband. He stated that he did not make any statement to the police but he had gone to the SSP but was not heard.

Vijay Kumar PW-9 co-brother of Dilawar Singh had stated that whenever he had met Nisha, he was told that her in-laws were not happy with the dowry and were taunting her for insufficient dowry and had given a sum of Rs. 60,000/- to Dilawar Singh to meet the demand. He stated that he had not gone to the house of the accused nor had accompanied any Panchayat and he had withdrawn the amount from his account in November 2002.

Balbir Singh PW-10 from the Telegram Department stated that the record had been destroyed and receipt Ex. PE shown to him was issued by them.

In defence, the accused had examined Dr. Baljit Singh Johal who deposed that Nisha had died on 16.11.2005 and her husband was discharged on the same date in view of request made by him and he was having burn injuries on the right forearm and left hand, he stated   that injuries most likely could not be self suffered.  MHC Hardev Singh brought the summoned DDR dated 13.11.2005.

Sh. Deepak Kumar Chaudhary, Judicial Magistrate Ist Class, Tarn Tarn, District Amritsar DW-3 had recorded the dying declaration. His statement reads as under:-

“On 13.11.2005, I was posted as JMIC, Jalandhar. On that day, Balwinder Singh ASI presented before me written application for recording the statement of Nisha wife of Davidner Singh r/o village, Daroli Khurd, who was admitted in Puran Hospital, Adampur. Then I went to that hospital. I obtained the opinion of the doctor about fitness of Nisha to make her statement. Doctor declared her fit to make the statement vide his endorsement Ex. DC. Mother, mother-in- law and father-in-law of Nisha were present by her side and they were asked by me to move out. Thereafter, I recorded her statement. I had read out the contents thereof to her and regarding the correctness thereof I obtained her thumb impression. Her thumb was under dressing and for obtaining the impression thereof dressing was got removed.

That statement is Ex. DB and the same also bears my signatures. The doctor remained present during recording of her statement and he appended his certificate to the effect that during recording of her statement, she remained fit and conscious to make her statement. That certificate of the doctor is Ex. DD. Thereafter, I gave my own certificate   which is Ex. DE which is in my hand and bears my signature.  I had correctly recorded the statement of Nisha as per her version without any addition or omission from my State. I had not make an endorsement in the beginning of said statement that there was no threat, promise or inducement to Nisha. Volunteered I had satisfied myself by making inquiries from her. It is incorrect that accused tutored Nisha to make her statement and that it was under the influence of accused, the said statement was made by her.” ASI Balwinder Singh DW-4 had received information from the hospital regarding Nisha’s admission and had gone to the hospital and had taken the opinion and had contacted the Duty Magistrate. He had also recorded the statement of Rattan Lal, Gurmukh Singh and Surinder Singh. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Tarsem Singh DW-5 a neighbour of the accused came in support of the accused. He stated that Dawinder Singh was on the roof feeding the pigeons and he also heard shrieks of ladies and Dawinder went down running and he (DW) also went to the house of Dawinder and Dawinder was putting off the fire and his clothes also caught fire and he also helped in putting the fire out and they shifted Nisha in the vehicle of shopkeeper and on the way he had asked Nisha as to what had happened. He stated that he found one chapati on the Tawa and there was one piece of kneaded flour and dry grass and a bottle and there was a cracker wrapper in the dry grass.

Dr. Karnail Singh DW-6 had declared Nisha fit to make a   statement. He stated that Magistrate had recorded the statement in his  presence and through out the statement Nisha was fit and he had given a certificate at the end of her statement. He had also disclosed that patient was suffering from 70% burns. He stated that the Magistrate had arrived in the hospital after about one or two hours of the admission.

Reading of the judgment of the trial Court brings out contradictory findings. It would be relevant to refer to the findings. The following points were set out for determination and are contained in para 11 of the judgment which reads as under:-

  1. Whether there is delay in filing the complaint? If so, to what effect?
  2. Whether the accused had the motive to cause the death of the deceased?

  3. Whether the deceased voluntarily made dying declaration before Sh. Deepak Kumar Chaudhary, JMIC, DW3? If so, to what effect?

  4. Whether the deceased made dying declaration before Dilawar Singh complainant and Surinder Singh PW8? If so, to what effect?

  5. Whether all the accused made extra judicial confession before Hussan Lal PW4? If so, to what effect?

  6. Whether all the accused intentionally caused the death of the deceased?

  7. Whether the deceased died, otherwise than under normal circumstances?

  8. Whether the deceased was being harassed, treated  with cruelty by all the accused soon before her death on the ground of demand of dowry?

On point No. 1 the trial Court had observed that there was a delay but it was not fatal and had merely put the Court on guard.

On point No. 2 it held that the accused had a motive to cause the death.

On point No. 3 it held that the deceased had died accidently and she was not set on fire by any of the accused.

On point No. 4 the Court rejected the testimony of the prosecution witnesses that any oral dying declaration was made before Dilawar Singh and Surinder Singh. It concluded that the deceased was not set on fire by the accused and she received injuries otherwise.

On point No. 5 the Court had held that no extra judicial confession was made before Hussan Lal and his statement was not admissible in evidence.

On point No. 6 the Court observed that it can not be held that “all the accused intentionally caused the death”.

On point No. 7 it was observed that since the death was on account of burn injuries, therefore, she had died otherwise than under normal circumstances.

On point No. 8 relying upon the statement of all the witnesses held that girl was being harassed and she was subjected to cruelty by all the accused for dowry.

The above would show that the Court had believed the dying   declaration. It rejected the extra judicial confession said to have been  made by the accused. It had held that the death was accidental but at the same time it held that since the death was unnatural and the family had deposed above acts of cruelty, there was a dowry demand, therefore, it recorded their conviction. The findings are contradictory. It would be necessary to refer to the findings recorded on point No. 6 contained in para 35 of the judgment which read as under:-

“35. It has already been held, while deciding point No. 3, that the deceased voluntarily made dying declaration before the Magistrate that the she caught fire accidentally. It has also been decided while deciding point No. 4 that the deceased had not made any dying declaration before the complainant or Surinder Singh PW8 that she was set on fire by the accused. It has also been held above that at the time when she received burn injuries none of the accused was present inside the house. Therefore, it cannot be held that all the accused intentionally caused her death. In the result, this point is decided against the persecution and in favour of the accused.”

In the light of the above, it is necessary to first see whether the dying declaration made by the deceased could be considered as the last statement and whether it was admissible in evidence. There is no eye witness to the manner in which the occurrence took place. The entire case hinges upon the dying declaration and it has to be seen whether the incident was accidental or homicidal. The incident took   place in the morning on 13.11.2005. Nisha was shifted to the hospital  at about 9.45 a.m. This appears in the statement made by Dr. Karnail Singh DW-6. According to him the patient was suffering from 70% burns. Ruqa was sent to the police who called the Magistrate. The Magistrate had received information at 1.00 p.m. He had recorded the time when he started for the hospital. Another note was made by him at 1.35 when he reached the hospital. He met the doctor and took the opinion regarding her fitness and they proceeded to record the statement. A note was also given that the mother, mother-in-law and father-in-law of the patient were present near the girl and they had been asked to leave the room.

The statement given by Nisha reads as under:- “I was going to prepare meal. I was ill for 2/3 days and feeling giddy for 2/3 days. I did not know as to how my clothes caught fire. I was preparing the meal alone. My husband was feeding the pigeons on the roof. There was no other person at home. My mother-in-law, father-in-law and my daughter were away for satsang and my youngest child was at home. I was lighting the fire in the chulha and, therefore, I used kerosene oil. I was also using straw and waste material of the crackers of Diwali. Suddenly the fire broke out. I started crying. My husband got down and started putting out the fire. His hands got burnt. The people of our vicinity and my husband brought me to hospital in the vehicle.

The philosophy in law underlying admittance in evidence of dying declaration is that dying declaration made by person on the verge of his/her   death has a special sanctity as at that solemn moment, a person is most  unlikely to make any untrue statement therefore a dying declaration enjoys a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration and that is the statement of law summed up by this Court in Kundula Bala Subrahmanyam Vs. State of A.P., (1993) 2 SCC 684.

The law is settled that a dying declaration is admissible in evidence, therefore, it has now to be seen whether the dying declaration made by the accused could be accepted. The statement is not a statement on oath and the maker thereof can not be subjected to cross examination, therefore, if the dying declaration suffers from any infirmity during the course of the trial from other evidence then the same can be refused to be accepted. In the present case there is only one dying declaration.

Nisha had been married for almost 5 years. The incident took place in the morning. She is succumbed to the burn injuries three days later. Nisha was shifted to the hospital by her husband and some neighbours. A ruqa was sent and the police arrived in the hospital and message was sent to the Magistrate who arrived in the hospital at 1.35 p.m. He contacted the doctor for his opinion. The pateint was declared fit to make the statement and the Magistrate found that the mother, mother-in-law and father-in-law were present in the room who were asked to leave the room. Thereafter the statement was recorded. Nisha in her detailed statement mentioned about the incident. She had stated that her child had gone with her in-laws to the   Satsang and her husband was on the roof feeding the pigeons and she was  lighting the hearth for which she had used kerosene oil and some waste of the crackers and she did not know how she had got fire. She had also stated that on hearing her cries her husband came to save her and in the process his hands were also burnt. Nisha succumbed to the injuries on 16.11.2005. The postmortem was conducted and she was cremated. The police on the basis of dying declaration and other statements which came came before it did not register the FIR. The father was not satisfied and he filed a complaint on 24.12.2005 . The prosecution had examined 10 witnesses. The trial Court rejected the statement of Husan Lal before whom the extra judicial confession was said to have been made. It also rejected the prosecution story that an oral dying declaration was made before Dilawar Singh and Surinder Singh and believing the dying declaration, a finding was given that the dying declaration could be accepted but in the end on mis-reading of evidence made unwarranted finding that it was a case of dowry death. On point No. 6 it had observed that the accused had not intentionally caused the death. On point No. 7 the finding was that since the cause of death was due to burn injuries leading to Septicemia and it was the direct cause of death, therefore, Nisha had died otherwise than under normal circumstances. On point No. 8 the finding was that since there was demand of Rs. 5 lacs for construction of the house and the deceased was telling her family, therefore, the girl was being subjected to cruelty by all the accused and invoking the presumption under Section 113-B of the Evidence Act the accused were held guilty.

On one hand a finding was recorded that the death was accidental. The trial Court had also held that the accused had not set her on fire, it had believed the dying declaration and had rejected the extra judicial confession, therefore, there was no reason how the presumption under   Section 113-B of the Evidence Act could be invoked.  A reading of the dying declaration coupled with the statement of the Magistrate who had recorded the statement and the statement of the doctor makes it clear that the dying declaration had been made by the injured. There was no occasion for tutoring as the parents of the deceased were also in the hospital. There is no evidence that parents had made any complaint or had lodged the FIR earlier. They accepted the statement of their daughter and immediately did not make a report. Both the family had participated in the cremation. Had there been a demand of dowry or evidence the parents would not have allowed the in-laws to participate in the last rites. One of the neighbour had accompanied the injured and the husband to the hospital. The doctor had given an endorsement that the patient was fit to make a statement and that endorsement had been proved before the Court though in defence. The prosecution did not choose to examine the Magistrate or the treating doctor. The Medical Officer had noted that the hands of the husband were burnt.

Having evaluated the evidence independently the finding of the trial Court so far as the dying declaration is concerned is accepted as the same passes the test of credibility. Nisha had narrated sequence of events. The trial Court did not entertain any doubts about the statement. The medical officer had made an endorsement about the mental state, therefore, the dying declaration could not be excluded from consideration. It is found that it would be safe to act on the dying declaration. There is no inconsistency. The deceased had not blamed any one for the incident. She herself was not aware of the reason as to how her clothes caught fire. It appears that the parents out of utter frustration chose to file a complaint subsequently. Even otherwise the demand of money for construction of a house would not fall within the definition of dowry demand. There was no   complaint prior to the incident to the Panchayat. There was no complaint to  the Senior Officers under whom the accused was serving. People have become more aware. In cases where Government servant are involved, people do not hesitate and send written complaints to the senior officers. The incident was an accident. The dying declaration was natural. The maker of the same was in a fit mental condition, therefore, accepting the dying declaration the findings recorded on point No. 2 and 8 are set aside.

The Appeal is accepted. All the accused are acquitted. Their bail bonds are discharged.

March 01, 2016                                          (ANITA CHAUDHRY)
                                                        JUDGE

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