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#Vague allegations, #NOdowry demand, #Material #improvements by witness, #Delayed witness recording, NO #mensrea, #No #Abetment : All accused acquitted of #498a #304B #ipc306

//// …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.
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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

 

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

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

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


IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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

Date of decision : 01.03.2016

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

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

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

Mr. K.S. Aulakh, AAG Punjab

ANITA CHAUDHRY, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 01, 2016                                          (ANITA CHAUDHRY)
                                                        JUDGE

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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


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

Wife dies ’84, HC confirms acquittal in 2012. appeal court NOT 2 interfere with acquittal / re write judgement unless lower court judgement totally perverse

Notes

  • Accusation of snide remarks and ill treatment of wife
  • Wife commits suicide on 13.9.1984
  • Charges framed , husband pleads NOT guilty
  • Case committed to Court of Sessions.
  • After appreciating oral & documentary evidence, husband acquitted on 30.10.1996 by sessions court
  • State goes on appeal & original complainant [father in law ? ] has preferred Criminal Revision Application No.20 of 1997 before HC
  • For reasons not known to us the HC order is pronounced only on 07/09/2012, that is approx 26 years after death of the woman
  • HC affirms lower court decision
  • HC follows earlier Supreme court judgements and says that appeal courts should NOT ordinarily interfere with the order of acquittal and re write the judgement unless lower court judgement is totally perverse

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL No. 105 of 1997

With

CRIMINAL REVISION APPLICATION No. 20 of 1997

For Approval and Signature:

HONOURABLE MR.JUSTICE Z.K.SAIYED
*********************************************************

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

*********************************************************
STATE OF GUJARAT – Appellant(s)

Versus

DINESHCHANDRA TRIKAMJI RAVRANI – Opponent(s)

********************************************************=
Appearance :
MR LB DABH, APP for Appellant(s) : 1,
NOTICE SERVED for Opponent(s) : 1,
MR KB ANANDJIWALA for Opponent(s) : 1,
********************************************************=

CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 07/09/2012

ORAL JUDGMENT

1. The Criminal Appeal No.105 has been filed by the appellant – original complainant, State of Gujarat under Section 378 of the Criminal Procedure Code and Criminal Revision Application No.20 of 1997 has been filed under Section 397 of the Criminal Procedure Code by the petitioner – original complainant viz. Chandanben Dhirajlal Parmar, against the Judgment and order dated 30.10.1996 rendered by the learned Assistant Sessions Judge, Junagadh, in Sessions Case No.145 of 1991. The said case was registered against the present respondent viz. Dineshchandra Trikamji original accused for the offence under Sections 498A and 306 of the Indian Penal Code.

2. According to the prosecution case, the accused husband of the deceased Kashmira was giving mental and physical harassment to Kashmira telling her that she is black and he has committed mistake in selecting her. The accused was giving cruelty to deceased Kashmira frequently in presence of other person and he did not allow her to go on service on 13.9.1984. Due to mental and physical harassment meted out to deceased Kashmira she committed suicide on 13.9.1984 at night by strangulating herself with rope. Hence the complaint came to be lodged.

3. Thereafter, investigation was carried out and statements of several witnesses were recorded. During the course of investigation, accused person was arrested and, ultimately, chargesheet came to be filed against him. As the case was sessions triable the same was committed to the Court of Sessions.

4. Thereafter, charge came to be framed and explained to the accused person, to which the accused person pleaded not guilty and claimed to be tried.

5. In order to bring home the charges against the accused person, prosecution has examined several witnesses and also produced documentary evidence.

6. Thereafter, after filing closing pursis by the prosecution, further statements of accused person under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused person has denied the case of the prosecution and submitted that a false case is filed against him.

7. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent – accused.

8. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 30.10.1996 rendered by the learned Assistant Sessions Judge, Junagadh, in Sessions Case No.145 of 1991, the appellant – State has preferred the Criminal Appeal No.105 of 1997 and original complainant has preferred Criminal Revision Application No.20 of 1997 before this Court.

9. Heard Learned APP Mr.L.B.Dabhi, appearing on behalf of the State. He has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. He has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspectives.

10. He has contended that the accused used to harass deceased on the ground of demand of dowry. He has contended that the learned Judge has erred in holding that the prosecution has failed to prove that the deceased Kashmira committed suicide because of the mental and physical torture and ill treatment meted out to deceased by the accused.

11. He has contended that on 13.9.1984 the deceased went to see his aunt but the accused did not allow her and had beaten the deceased in public and on the very same day the deceased committed suicide which clearly reveals ill treatment meted out to the deceased by the accused. Lastly, he has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.

12. Mr.U.M.Panchal, learned advocate appearing for petitioner in Criminal Revision Application No.20 of 1997 has contended that the learned Judge has materially erred in holding that the evidence against the accused is inadequate on the record and, therefore, benefit of doubt is given to the accused. He has contended that the learned Judge has relied on two hand written letters of the deceased Kashmira where the deceased Kashmira has stated that her husband is not responsible for this. But, in fact, on bare reading of those two letters case under Sections 498A and 306 of the IPC is made out and even those two letters are required to be considered as a dying declaration of the deceased. He has also read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside.

13. Notice is served to the other side. Mr.K.B.Anandjiwala, learned advocate is appearing for respondent – accused.

14. Mr.Sahi, learned advocate appearing for Mr.Anandjiwala, for the respondent – accused has contended that the prosecution’s evidence primafacie is not sufficient to establish that the deceased was meted out with cruelty and physical harassment as she was black. He has contended that mental and physical harassment to the deceased meted out by the respondent accused is not proved beyond reasonable doubt. He has prayed that no interference is required in the judgment and order passed by the learned Judge.

15. Heard learned advocates for the respective parties. I have gone through the papers produced in the case. From the papers it appears that the prosecution has primafacie failed to prove that deceased was given mental and physical harassment as she was dislike by the respondent accused as she was black and due to provocation and instigation she committed suicide by strangulating herself. It is true that primafacie role of the present respondent is not proved beyond reasonable doubt.

16. In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:

| “16.From the aforesaid decisions, it is apparent that
| while exercising the powers in appeal against the
| order of acquittal the Court of appeal would not
| ordinarily interfere with the order of acquittal
| unless the approach of the lower Court is vitiated by
| some manifest illegality and the conclusion arrived at
| would not be arrived at by any reasonable person and,
| therefore, the decision is to be characterized as
| perverse. Merely because two views are possible, the
| Court of appeal would not take the view which would
| upset the judgment delivered by the Court below.
| However, the appellate court has a power to review the
| evidence if it is of the view that the conclusion
| arrived at by the Court below is perverse and the
| Court has committed a manifest error of law and
| ignored the material evidence on record. A duty is
| cast upon the appellate court, in such circumstances,
| to reappreciate the evidence to arrive to a just
| decision on the basis of material placed on record to
| find out whether any of the accused is connected with
| the commission of the crime he is charged with.”

17. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.

18. It is settled legal position that in an acquittal Appeal, the Appellate Court is not required to rewrite the Judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the respondent – accused and adopting the said reasons as well as the reasons aforesaid, in my view, the impugned Judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this Appeal requires to be dismissed.

19. In the result, the Appeal and Criminal Revision Application are hereby dismissed.

The impugned Judgment and order dated 30.10.1996 rendered by the learned Assistant Sessions Judge, Junagadh, in Sessions Case No.145 of 1991, acquitting the respondent – accused, is hereby confirmed.

Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.

Bail bond, if any, shall stand cancelled.

(Z.K.SAIYED, J.)

kks