Tag Archives: 306

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.

LOVE match 2 court! DV b4 marriage! 498a 307 323 AFTR marriage. Sis in law runs 4 quash !

LOVE match to court! DV even b4 marriage, 498a 307 323 AFTR marriage & Sis in law runs 4 quash. Bombay HC 498A Quashes case on facts

Classic case of a LOVE and INTERCASTE marriage where wife files DV before marriage and the rest 498a etc AFTER marriage. Many in laws including women are roped in.

Do you have an absurd 498a on a sister in law or a mother / father in law who are NOT even present at the place / time of incidents and allegation ? use this classic quash granted by Bombay HC

In this case of an inter-caste marriage the sister in law has NOT even visited the couple after marriage ! Sis in law lives in pune while alleged incidents are supposed to have happened at Aurangabad. Sis in law’s name is NOT in the FIR or in the preliminary evidences but she is roped in as an after thought. The case on the husband itself looks like an after thought !! initially the woman says it was an accident, but later the woman says her first statement was under pressure !! and make a fresh statement and FIR is lodged and case starts !!

Bombay HC appreciates the facts, quotes the classic Chaudhry Bajan Lal’s case and quashes the case against the sister in law

Excerpts :
***********************
Initially at the hospital, the wife / complainant woman says “…..her husband took her along with their children in their own car to Dhoot hospital for treatment. As there was no facility for burnt patients, the complainant was shifted to Bobde Hospital, Beed Bypass road, Aurangabad. The complainant was treated 8 days. …5. It is alleged that during the course of the treatment at Bobde Hospital, police and government officer recorded the statement of the complainant, in which she has stated that the kerosene can was spread over and as there was no electricity in the house, while igniting the candle, suddenly there was a burst. Thus, she sustained burn injuries. She had also stated that, no one tried to burn her and she has no complaint against anyone. …..” … so initially this was JUST an accident

But later on the the wife / complainant woman changes that statement and says the first statement was MADE UNDER fear ! She was worried that husband will beat her!! So she makes a fresh statement to get an FIR lodged against husband and in laws !! “…..It is further alleged that at that time, no close relative of the complainant was there with her and her husband was threatening her to beat her and the children and therefore, the complainant stated the statement under pressure. Thereafter, it is alleged in the FIR that she   was feeling better and taking treatment in Dahiphade hospital, Adalat Road, Aurangabad. Therefore, she has lodged the complaint……..”

The sister in law petitions for a quash on the following grounds “…..6. The learned Counsel for the petitioner submitted that the FIR was registered against the husband by the complainant and there was no mention of petitioner’s name, no allegation was made against her by the complainant. The complaint was lodged belatedly, which is afterthought. He submitted that the petitioner is a married sister-in-law of the complainant. He submitted that the petitioner had performed intercaste marriage and since then, she had not visited house of her parents, the complainant and her husband. The petitioner is permanently residing with her husband at Pune. The complainant even did not make any allegation against the petitioner in her complaint and also in the statement recorded in the hospital by the Magistrate….”

The sister in law also shows that though the incident is supposed to have happened on 22.12.2013, the sister in law’s name is NOT mentioned in the FIR or preliminary statements and her name is roped in by the wife’s father only on 30.01.2014 !

Bombay HC appreciates the facts, quotes the classic Chaudhry Bajan Lal’s case and quashes the case against the sister in law. The honourable HC goes to say “….13. The case in hand is covered under Categories (1) and (5)   of the said categories. The view taken by us also lends support from the view taken by the Supreme Court in cases of (1) Preeti Gupta & Anr., (supra), (2) Shalu @ Siya Lavin Keswani and others (supra), and (3) Sau. Sharda Ravindra Patil and others (supra)…..”

The Bombay HC observes that “….. It appears that there is belated attempt by the mother of the complainant namely, Sangita Suresh   Shirke to attribute role to the petitioner for the incident dated 23.12.2013. In fact, the complainant had lodged FIR and also her statement at the earliest opportunity was recorded, in which name of the petitioner is not mentioned….”

It is important to note that clauses (1) and (5) of Ch. Bajan Lal’s case are as follows :

1 Whether the allegations made in the F.I.R. or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused

So.. an absurd and inherently improbable case is used to harass half a dozen people AFTER A LOVE MARRIAGE

*****************************disclaimer*******************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Pallavi W/O Sagar Gour vs The State Of Maharashtra & Anr on 31 July, 2015

Bench: S.S. Shinde

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.532 OF 2015.

Pallavi w/o Sagar Gour,
age 27 years Occu. Household,
r/o House No.11, Dhavle Niwas,
Dhawle Vasti, Marwanji Road,
Wakad Chinchwad, Pune.                                   … PETITIONER.

VERSUS

1. The State of Maharashtra.

2. Supriya w/o Vishal Sudke,
age 28 years, occu. Household,
r/o C/o Ssuresh Shirke, Kasba-Bhoom,
Tq. Bhoom, Dist. Osmanabad.                              … RESPONDENTS.

Mr.S.J. Rahate, Advocate for the Petitioner.
Mr.B.L. Dhas, APP for the Respondent – State.
Mr.K.R. Doke, Advocate for Respondent No.2.

CORAM : S.S. SHINDE & A.I.S.CHEEMA, JJ.

Reserved on : 17.07.2015.

Pronounced on : 31.07.2015.

JUDGMENT [Per S.S.Shinde, J.]:

1. The petitioner has filed this petition with the following prayer:

“(B) The chargesheet & proceedings of Sessions Case No.255/2014 pending before the Court of Sessions, Aurangabad offences U/sec.307, 498-A,323, 506 r/w 34 of the Penal Code crime No.I-13/2013 registered with police station MIDC Aurangabad initiated on the basis of the chargesheet filed against the present petitioner be quashed and set aside;”

Rule, returnable forthwith. By consent of the parties, taken up for final hearing.

2. It is the case of the petitioner that, a lady namely Supriya w/o Vishal Sudke r/o Shradha colony (MHADA), HIG-13, Opp. Dhoot Hospital Mukundwadi Aurangabad lodged a complaint with P.S. MIDC CIDCO U/sec. 307, 323, 506 of I.P.Code against her husband alleging inter alia that the marriage between them was solemnized in 2008. the couple has been blessed with two children, one boy namely Harshad 5 years and a girl namely Mitali.

3. It is alleged that the complainant was treated well for few days thereafter, she was ill-treated by her husband.

Under influence of liquor her husband used to beat her and her in-laws never used to interfere. The father-in-law of the complainant expired in July, 2013, since then husband of   complainant started consuming liquor. It is alleged that the husband of complainant used to beat her on petty reasons and she never disclosed about the ill-treatment to her parents as her husband used to threaten her by saying that he will beat her and the children.

4. It is alleged that on 22.12.2013 at 11.30 pm when the complainant, her husband and their children were in the house, the children were asleep, at that time the husband of complainant asked telephone number of her father and the complainant replied that she don’t know the telephone number. On account of this, her husband abused and allegedly drove her out of the house. Thereafter, immediately again he took her inside and locked the door from inside. It is alleged that the husband of complainant then took her to backside of the house and poured kerosene from the plastic can. It is further alleged that the complainant then started running. Her husband then poured kerosene on the person of the complainant from back and threw burning match stick on her sari. She further stated that she herself removed her clothes due to which she sustained burn injuries over her hand, entire front portion, chest, stomach, back, leg. She   further stated that thereafter she jumped in the water tank.

It is alleged that her husband did not try to rescue her. The complainant herself told her husband to shift her to the hospital otherwise she will shout and gather the neighbours, thereafter, her husband took her along with their children in their own car to Dhoot hospital for treatment. As there was no facility for burnt patients, the complainant was shifted to Bobde Hospital, Beed Bypass road, Aurangabad. The complainant was treated 8 days.

5. It is alleged that during the course of the treatment at Bobde Hospital, police and government officer recorded the statement of the complainant, in which she has stated that the kerosene can was spread over and as there was no electricity in the house, while igniting the candle, suddenly there was a burst. Thus, she sustained burn injuries. She had also stated that, no one tried to burn her and she has no complaint against anyone. It is further alleged that at that time, no close relative of the complainant was there with her and her husband was threatening her to beat her and the children and therefore, the complainant stated the statement under pressure.

Thereafter, it is alleged in the FIR that she   was feeling better and taking treatment in Dahiphade hospital, Adalat Road, Aurangabad. Therefore, she has lodged the complaint.

6. The learned Counsel for the petitioner submitted that the FIR was registered against the husband by the complainant and there was no mention of petitioner’s name, no allegation was made against her by the complainant. The complaint was lodged belatedly, which is afterthought. He submitted that the petitioner is a married sister-in-law of the complainant. He submitted that the petitioner had performed intercaste marriage and since then, she had not visited house of her parents, the complainant and her husband. The petitioner is permanently residing with her husband at Pune.

The complainant even did not make any allegation against the petitioner in her complaint and also in the statement recorded in the hospital by the Magistrate.

7. The learned Counsel for the petitioner further submitted that, statements of complainant, her mother and father were recorded on 23.12.2013 and none of them alleged anything against the petitioner. Even in the statement /FIR   dated 21.01.2014, the complainant made allegations against the petitioner. The learned Counsel for the petitioner further submitted that, in the statement recorded on 30.01.2014 Suresh Vishwanath Shirke – father of the complainant made vague, general, omnibus and inconsistent allegations against the petitioner. Mother of the complainant namely, Sangita w/o Suresh Shirke in her statement dated 30.01.2014 made the same allegations against the petitioner. It is submitted that, brother of the complainant namely, Abhilash s/o Suresh Shirke and uncle of complainant namely, Santosh Shamrao Dhanlangde, in their statements dated 30.01.2014 made general, vague and afterthought allegations against the petitioner. <SMALL>http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com</SMALL&gt;

In support of his submissions that, even if the allegations in the FIR are taken at its face value and considered in its entirety, no offence is disclosed against the petitioner, the learned Counsel for the petitioner placed reliance on the authoritative pronouncement of the Apex Court in the case of State of Haryana and others v. Ch. Bhajan Lal and others1, and also the judgment dated 17 th 1 AIR 1992 SC 604; October, 2012 delivered by the Supreme Court in case of Geeta Mehrotra & Anr vs. State of U.P. & Anr. in Criminal Appeal No.1674 of 2012 (arising out of SLP (Cri) No.10547/2010), and the judgment dated 13th August, 2010 of the Supreme Court in case of Preeti Gupta & Anr. Vs. State of Jharkhand & Anr delivered in Criminal Appeal No.1512 of 2010 (arising out of SLP (Cri) No.4684/2009). He also placed reliance on the judgment of this Court dated 29 th January, 2015 in Criminal Application No.5501 of 2014 in case of Shalu @ Siya Lavin Keswani and others vs. The State of Maharashtra and Ors. as also the order dated 2nd July, 2015 in Criminal Application No.6993/2014 in case of Sau. Sharda Ravindra Patil and others vs. The State of Maharashtra and Anr., therefore, submitted that this petition may be allowed.

8. The learned APP appearing for the State and the learned Counsel for the respondent No.2 submitted that the witnesses namely , father, mother, brother and uncle of the complainant have categorically made allegations against the petitioner and   endorsed her role in meeting out ill-treatment, harassment to the complainant and, therefore, the petition may be dismissed.

The learned Counsel for the respondent No.2 submitted that charge-sheet has already been filed and, hence the petitioner is having alternate remedy of filing application for discharge. It is submitted that there is specific accusation against the present petitioner in the statements of the witnesses. They have specifically stated that, the petitioner had subjected complainant to cruelty and instigated to kill her. He submitted that the parents, brother and maternal uncle of the complainant have specifically made allegations against the petitioner. He further submitted that there is series of incidents which clearly reveal that present petitioner also subjected the respondent No.2 to cruelty on various occasion. He submitted that, even if it is assumed that section 307 IPC would not be attracted against the petitioner, but petitioner is liable to be prosecuted u/s 498A of IPC. He submitted that for the purpose of offense u/s 498A of IPC, it is not necessary that accused should be present on the spot, it can be mental state of affairs. The initial statement of the complainant as well as mother and father is totally under the   undue influence and coercion as the little children of the respondent No.2 are in custody of the petitioner’s brother and she was threatened. He submits that if the charge-sheet against the petitioner is quashed and set aside, it will badly affect the trial. Therefore, he submits that the petition may be dismissed.

9. We have heard the learned Counsel for the petitioner, learned APP for the State and the learned Counsel appearing for the respondent No.2 – complainant. We have also carefully perused the statement of the witnesses and other accompaniments of the charge-sheet. It is not in dispute that the petitioner is married sister-in-law of the complainant. Her marriage was performed in the year, 2009. The said marriage was an intercaste marriage. It is case of the petitioner that since she performed intercaste marriage against the wish of parents, she is not on visiting terms to the parents and therefore, there was no question of her presence at Aurangabad as alleged by the prosecution witnesses. It appears that the petitioner shifted to Pune and since her marriage, she is residing at Pune. Petitioner has also placed on record proof of her residence at Pune. Upon careful   perusal of the FIR registered by the complainant n 21 st January, 2014, name of the petitioner in respect of alleged offence taken place on 23.12.2013 is not included. The complainant had also given statement about the said incident at the earliest opportunity on 23.12.2013. In that statement also name of the petitioner is not mentioned. It appears that the prosecution witnesses have implicated the petitioner by making general allegations belatedly. It is true that there are general allegations in the statements of the witnesses.

However, at the earliest opportunity when the statements of the witnesses were recorded on 23.12.2013, name of the petitioner was not mentioned. It appears that the statement of Suresh Vishwanath Shirke was recorded on 30 th January, 2014 wherein general allegation has been made against the petitioner. However, there is no any specific role attributed to her or no any specific date is mentioned on which the petitioner was involved in harassment / ill-treatment of the complainant. Even, the statement of the mother of the complainant also, more or less, makes general allegation against the petitioner along with other members of the family of the complainant. It appears that there is belated attempt by the mother of the complainant namely, Sangita Suresh   Shirke to attribute role to the petitioner for the incident dated 23.12.2013. In fact, the complainant had lodged FIR and also her statement at the earliest opportunity was recorded, in which name of the petitioner is not mentioned.

10. Statement of mother of the complainant was recorded on 30th January, 2014 i.e. belatedly, after 38 days of the alleged incident dated 23.12.2013. Other witness Santosh Dhanlagade – uncle of the complainant has also made general allegations. Upon perusal of the entire material placed on record, there appear to be no any specific allegation attributing specific overt-act to the petitioner. It appears that the petitioner is residing at Pune since the year, 2009, she has having a child of three and half years, studying in English School at Pune, as contended by the petitioner in her rejoinder to affidavit-in-reply. It is also relevant to mention that the proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 has been initiated by the wife in the year, 2005 and neither name of the petitioner is mentioned nor any specific role is attributed to her in the said proceedings. That proceeding was even before the marriage of the   petitioner.

11. In that view of the matter, in our opinion, further proceedings of Sessions Case No.255/2014 pending before the Court of Sessions, Aurangabad for offences punishable under sections 307, 498-A, 323, 506 r/w 34 of the Penal Code arising out of Crime No.I-13/2013 registered with police station MIDC Aurangabad as against the petitioner, will be an exercise in futility and abuse of process of Court. The petitioner has placed on record sufficient material, which clearly indicates that she is residing at Pune from the year, 2009.

12. The Supreme Court in the case of “State of Haryana V/s Bhajanlal” {AIR 1992 SC 604} held that, in following categories the Court would be able to quash the F.I.R. :

1 Whether the allegations made in the F.I.R. or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

2. Where the allegations in the First Information Report and other materials, if any, accompanying   the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code, except under an order of Magistrate within the purview of Section 155(2) of the Code;

3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the applicant;

4. Where the allegations in the F.I.R. do not constitute a cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act, (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provisions in the Code of the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

13. The case in hand is covered under Categories (1) and (5)   of the said categories. The view taken by us also lends support from the view taken by the Supreme Court in cases of (1) Preeti Gupta & Anr., (supra), (2) Shalu @ Siya Lavin Keswani and others (supra), and (3) Sau. Sharda Ravindra Patil and others (supra).

14. In the light of the discussion in foregoing paragraphs, the charge-sheet and the proceedings of Sessions Case No.255/2014 pending before the Court of Sessions, Aurangabad for offences punishable under sections 307, 498-A, 323, 506 r/w 34 of the Penal Code arising out of Crime No.I-13/2013 registered with police station MIDC Aurangabad stand quashed and set aside as against the petitioner.

We make it clear that the observations herein above are for the purpose of deciding the present petition and the trial Court shall not get influenced by the said observations while conducting the trial against other co-accused. Rule made absolute in above terms. Petition stands disposed of, accordingly.

[A.I.S.CHEEMA, J.]                 [S.S. SHINDE, J.]

kadam*

Wife dies @Parent’s house. Lowr court convicts hubby & brothr. GujHC acquits them 8yrs latr on facts. Proximity, instigation discussed. Good case where wife is dead.

Why India urgently needs an “innocence project”: An Innocent Husband has to languish in jail for 4 years before being released by the Hon. Gujarat HC !! This man has a minor son as well !!

The unfortunate death of a woman consuming poison triggers a 498a and 306 case, where the husband and his brother who lived 250 KM away from the woman are accused. The lower court convicts them, however Gujarat HC in a very reasoned order acquits them as the evidences do not hold up in proper scrutiny

* The date of marriage in NOT clear, leading to rebuttal of presumption of guilt under sec 113A of Evidence Act

* Witnesses turn out to be hearsay and not dependable on further scrutiny

* There are contradictions to the prosecution story

Quoting the Hon. HC, it is clarified  :
“…Therefore, though, unnatural death of a woman may foster sympathy, it cannot be ignored that such death and incident is not at the house of in-laws or atleast at the house nearby the appellants – accused, when there is clear evidence that the appellants – accused were at Ahmedabad at the material time; whereas the victim was at Village Turkha in Bhavnagar district i.e. beyond 250 kms. It is also evident from the deposition of the wife of the complainant that victim was of Turkha for last two months. Therefore, there is no substance whatsoever in allegation that the accused were beating the victim upon doubt of her character and, thereby, the victim had no option, but to commit suicide.

17. In view of above facts and circumstances, it seems that the trial Court has committed an error in appreciating the evidence so as to convict the accused by impugned judgment and order….”

********************** case from public websites *****************************

          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     CRIMINAL APPEAL (AGAINST CONVICTION) NO. 349 of 2011
                                      With
                        CRIMINAL APPEAL NO. 515 of 2011
                                      With
             CRIMINAL MISC.APPLICATION NO. 9007 of 2015
                        In CRIMINAL APPEAL NO. 349 of 2011

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.G.SHAH

VALJIBHAI DAYABHAI MOKANI & 1….Appellant(s)
Versus
STATE OF GUJARAT….Opponent(s)/Respondent(s)

**********************************************************
Appearance:
MR BB NAIK, SENIOR ADVOCATE with MR PRAVIN GONDALIYA, MS REETA CHANDARANA,
APP for the Opponent(s)/Respondent(s) No. 1
**********************************************************
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

Date : 23/06/2015

Both these appeals are arising out of common impugned judgment and order dated 23.2.2011 in Sessions Case no.106 of 2008 by the Addl.Sessions Judge and Presiding Officer, Fast Track Court no.2 of Bhavnagar, camp at Botad whereby the trial Court has convicted the accused and awarded R.I for 7 years with fine of Rs.5000/- and in default of payment of fine, S.I of one year u/s.306 of IPC, whereas two years S.I with Rs.1000/- fine, and in default, two months S.I u/s.498A of the IPC because of unnatural death of wife of one of the accused, namely, Valjibhai Dayabhai Mokani. The second appeal is by the complainant for enhancement of sentence.

2. I have heard learned senior counsel Mr.B.B.Naik with Mr.Pravin Gondaliya and learned advocate Mr.H.B.Champavat appearing for ld.advocate Mr.R.J.Goswami for both the appellants and learned APP Ms.Reeta Chandarana for the respondent – State. I have also perused the record and proceedings. The trial Court has described the factual details of complaint, investigation and evidence in detail in the impugned judgment and, therefore, I do not wish to reproduce the story and history herein except to recollect that prosecution has examined six witnesses and produced 18 documentary evidence to prove its case.

3. The case is one of circumstantial evidence against both the accused being brothers, when wife of one of the accused has committed suicide in absence of both of them. The evidence and submission of all the advocates are considered jointly to avoid repetition of the entire story and fact.

4. It is submitted by learned counsel for the accused that, in fact, there is no evidence about the date of the marriage of the victim – Jyotsanaben, who is wife of accused no.1 Valjibhai and, therefore, there cannot be a presumption u/s.113A of the Evidence Act so as to convict the appellants when other evidence do not confirm any mental or physical torture by both the appellants. It is undisputed fact that the incident and thereby death of the victim is on 20.12.2007 and, therefore, technically, to have presumption u/s.113A, the marriage of the victim must have taken place on or after 21.12.2000. Thereby, learned counsel for the appellants is right in submitting that to confirm the punishment, date or evidence of marriage is must, but, if we peruse the entire evidence on record, there is no specific or clear evidence of date of marriage of the victim, except a general statement that marriage was solemnised in the year 2000. For concluding the presumption as aforesaid, the marriage must have been performed within 21.12.2000 to 31.12.2000 even if we believe the statement of the witnesses that the marriage was performed in the year 2000.

Therefore, probably it seems that prosecution witnesses have not come forward to disclose the the actual date of marriage. However, it has come on record during the oral evidence that marriage of the brother was solemnised on 24.1.2000 and marriage of the victim was soleminsed within a day of the marriage of his brother. Thereby, a presumption can be drawn that marriage of the victim was solemnised in the month of January, 2000 and not between 21.12.2000 to 31.12.2000 if it is in the year 2000. Thereby, prima facie, it is clear and certain on record that the marriage span of the victim is more than 7 years and, therefore, there cannot be a presumption against the accused so as to convict them based upon such presumption alone.

5. Learned counsel for the accused is also right in submitting that rest of the witnesses are relatives being either brother or parents and uncle of the victim. Therefore, in absence of any cogent and reliable evidence by independent witness, it would be difficult to confirm that it was accused, who has instigated the victim to commit suicide. It is also undisputed fact that at the time of actual suicide, accused were not present either with the victim or nearby the victim and in fact, they were on their duty i.e. away from the place of incident. It is also clear from the evidence that in fact the incident has not taken place at the house of the accused, but, it has taken place at the parental house of the victim when she was with her parents and, therefore also, it cannot be said that there was any immediate abetment or instigation or harassment or torture, so as to drag the victim to commit suicide and, therefore also, the conviction of the appellants is not proper.

6. To substantiate such submission, learned sr.counsel for the accused had referred the relevant portion of the evidence. I find substance in such submission after referring such evidence and, therefore, instead of entering into minute details of the story and history of investigation as well as entire evidence, it would be appropriate to refer the material evidence only, which confirms innocence or atleast non-involvement of the appellants.

7. The story of the prosecution as per charge at Exh.9 is to the effect that appellant no.1 – husband of the victim, was doubting the character of the victim and was treating her with cruelty, both physically and mentally and thereby the appellants have instigated her to commit suicide and, hence, on the date of the incident i.e. on 20.12.2007, at about 9 p.m., victim has consumed poisonous insecticide in the ‘wadi’ of village Turkha and thereby committed suicide. It is undisputed fact that though accused are native of village Turkha, they are residing in Ahmedabad since long for their livelihood and even at the time of incident, they were at Ahmedabad.

8. PW-1 – Valjibhai Dharamshibhai Prajapati, Exh.16 is complainant and brother of the victim. Though he has narrated about the disturbance between victim and her husband and story of physical and mental harassment by both the accused to his sister, he has to admit that after marriage, his sister was residing at Ahmedabad with her husband and she was residing there throughout her matrimonial life; whereas, the incident has taken place in Turkha village. He further admits that both the accused, though brothers, are residing separately. He also admits that he has never complained against the accused about their alleged physical and mental torture to his sister. He further admits that neither his sister had a mobile nor there was a land-line phone at Turkha village with his parents and, thereby, it negatives his story that on previous day, he has received a phone call from the victim about ill-treatment by the accused when he says that he received phone call on his mobile phone, which he is using since 3-4 years. He could not prove the receipt of phone call from Turkha village as alleged. He also did not confirm the actual date of marriage except that marriage was solemnised in the year 2000. There are several contradictions in his depositions, both with his examination-in-chief as well as complaint. Though he refers the compromise between the husband and wife in presence of his cousin Jagdish and other elders of the society, he did not examine any such person to confirm that in fact there was dispute between the husband and wife for which there was some discussion and settlement thereafter. The veracity of this witness is also questionable inasmuch as he did not want to admit, though he had to ultimately admit that victim was having some medical issues since she was not able to conceive for which she was taking regular treatment, and to admit such fact, he tried to state that victim was having pain in chest and stomach. The scrutiny of entire evidence of this witness makes it clear that though he is complainant, he is chance witness and if there is no corroboration to what he stated on oath, it would be difficult to hold the accused guilty for the offences, which is punishable for more than 10 years.

9. PW-2 at Exh.19 is Dr.K.N.Bathwar. He examined the victim after the incident and, therefore, narrated his story and proved the PM note. Since unnatural death is not disputed fact, no further discussion is required so far as this witness is concerned except to recollect that some of the injuries on dead-body can be possible by some other reason also and death of a person is possible by smell of insecticide used in the ‘wadi’.

10. PW-3 at Exh.26 is Sonalben Valjibhai, wife of PW-1 – complainant and sister-in-law of the victim. She has also tried to depose in favour of the prosecution. However, she failed to realise that she is telling lie when she says that accused are not residing at Ahmedabad, when her husband has admitted that fact, but admits that victim was residing at Turkha since last two months of the incident. Therefore, it is clear and certain that accused were not in direct contact with the victim for atleast two months and, therefore, there cannot be any direct physical or mental torture so as to drag the victim to commit suicide. Though witness has tried to state that the victim has conveyed her about ill-treatment by the accused, it is in general terms and there is no corroboration from an independent witness, more particularly, when witness and her husband admit that the dispute was discussed amongst the elders of the society, when no such third person is examined. PW-4 Rameshbhai Bhanjibhai is a neighbour of PW-1 complainant and, therefore, he supports the prosecution story. But, his deposition makes it clear that his knowledge was only hearsay knowledge i.e. derived from PW-1 and, therefore, when the evidence of PW-1 is not trustworthy, there is no reason to rely upon this witness alone. PW-5 at Exh.29 Haresbhai Pravinbhai, who is serving with the maternal uncle of the victim and, therefore, in one line he simply says that on knowledge of death of the victim, he had been to Turkha and came to know that there was some matrimonial dispute, however, he do not know the reason for death. In any case, he did not prove anything against the appellant.

11. PW-6 at Exh.34 – Ramanbhai Sagrabhai, is investigating the incident and filed chargesheet. He was not cross-examined except a suggestion that he has filed false chargesheet.

12. Above is the only sum and substance of the evidence wherein except the brother of the victim and his wife, there is no other evidence not even parents of the victim have come forward to depose that their daughter has any problem at her matrimonial home for which she has committed suicide. It is also obvious that all the witnesses are silent about settlement between the community, when they did not bother to prove it by calling witness, and there is no evidence regarding provocation to commit suicide. It is also evident that prosecution witness has tried to avoid the disclosure of ailment of the victim though they have to admit it since the treatment papers are produced by the accused, which is at page no.107 to 121 of the paper-book. It is also clear and obvious from the medical evidence that no external injuries were found on the body. When brother of the husband is residing separately, presumption by the trial Court regarding abetment is not justified.

13. Learned APP for the respondent is relying upon PW-5 at Exh.29, namely Hareshbhai Pravinbhai submitting that it is to be treated as corroboration of the evidence by the complainant. She is also relying upon the discussion by the learned trial Judge in paragraph 23 of the impugned judgment wherein trial Court has emphasized more on the issue of doubt regarding character of the victim by both the accused and, thereby, the trial Court has presumed that there must have been physical and mental torture.

14. However, the trial Court has failed to realize that there is no clear proof of date of marriage, and on the contrary, the available evidence on record certainly goes to show that the marriage span is more than 7 years and, therefore, there cannot be a presumption against the appellants – accused.

15. Learned counsel for the accused has also submitted that the accused have undergone more than four years of imprisonment and his minor son is with his parents i.e. with grandfather and grandmother and there is no evidence whatsoever either regarding physical or mental torture or regarding provocation to commit suicide.

16. On perusal of impugned judgment, it seems that the trial Court has mainly relied upon the incident of death and allegations by the complainant, but, while presuming against the accused, the trial Court has committed an error since there is no clear evidence for instigation to commit suicide. Therefore, though, unnatural death of a woman may foster sympathy, it cannot be ignored that such death and incident is not at the house of in-laws or atleast at the house nearby the appellants – accused, when there is clear evidence that the appellants – accused were at Ahmedabad at the material time; whereas the victim was at Village Turkha in Bhavnagar district i.e. beyond 250 kms. It is also evident from the deposition of the wife of the complainant that victim was of Turkha for last two months. Therefore, there is no substance whatsoever in allegation that the accused were beating the victim upon doubt of her character and, thereby, the victim had no option, but to commit suicide.

17. In view of above facts and circumstances, it seems that the trial Court has committed an error in appreciating the evidence so as to convict the accused by impugned judgment and order.

18. For the foregoing reasons, such judgment of conviction cannot sustain. Therefore, I have no option but to disturb such judgment by quashing and setting-aside the conviction of the accused by impugned judgment and acquitting them from all the charges levelled against them. Since the accused are in jail, they be released from jail, if not required in any other case.

19. In view of above decision, Criminal Appeal no.515 of 2011 for enhancement of sentence does not survive, and hence, the same is also dismissed.

20. Since the Criminal Appeal no.349 of 2011 is allowed, the Criminal Misc.Application no.9007 filed by the appellants in Criminal Appeal no.349 of 2011 does not survive and stands disposed of.

21. R & P be sent back forthwith to the concerned trial Court.

(S.G.SHAH, J.)

binoy