Court No. - 87
Reserved on 09.11.2021 Delivered on 21.12.2021 Case :- CRIMINAL APPEAL No. - 4279 of 2016 Appellant :- Rajesh Respondent :- State of U.P.
Counsel for Appellant :- Rajesh Kumar Singh,Piyush Kumar Shukla,Ram Bahadur Counsel for Respondent :- G.A. With Case :- CRIMINAL APPEAL No. - 4191 of 2016 Appellant :- Mool Chandra And Another Respondent :- State of U.P.
Counsel for Appellant :- Rajesh Kumar Singh,Piyush Kumar Shukla,Ram Bahadur Counsel for Respondent :- G.A.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Present criminal appeals have been preferred by the accused appellants against the judgment and order dated 26.07.2016 passed by the Additional Sessions Judge, Court No.1, Banda in Sessions Trial No.212 of 2013 (State Vs. Rajesh and others) arising out of Case Crime No.79 of 2013, Police Station Mataundh, District Banda.
By the impugned judgment and order, all the accused persons have been convicted and sentenced under Sections 498A I.P.C. with two years rigorous imprisonment and fine of Rs.2,000/- each with default stipulation, under Section 4 of Dowry Prohibition Act for one year rigorous imprisonment and fine of Rs. 1,000/- each with default stipulation and under Section 304 B I.P.C. accused Rajesh has been convicted and sentenced for ten years rigorous imprisonment and fine of Rs. 5,000/- wherein accused Mool Chandra and Smt. Prema Devi have been convicted under Sections 304 B I.P.C. and sentenced for seven years rigorous imprisonment and fine of Rs. 5,000/- each with default stipulation.
As both the appeals arise from the common judgment and order dated 26.07.2016, therefore, both are heard together and being decided by common judgment.
The prosecution story in nutshell as unfolded by complainant- Dwarka Prasad Sahu in his written report exhibit ka-1 is that his daughter Archana Devi was married with accused Rajesh on 13.05.2011. Gifts/ dowry as per his status was given in the marriage but after sometime of the marriage due to demand of dowry her daughter was being mentally and physically harassed by her in-laws. Her daughter complained him many times but she was persuaded by him to live with the in-laws. Her daughter Archana many times complained about an evil eye of her father- in-law on her. She is also said to have informed her husband and mother- in-law about the molestation by her father-in-law but she was not believed rather she was beaten and continued to be harassed by her in- laws. On 02.09.2013 complainant made a call whether Archana was coming for her examination or not then he was informed that Archana has hanged herself. He immediately alongwith his family rushed to the matrimonial house of her daughter there they found that she did not hang herself rather she was murdered because at the place where she was hanged her legs were touching the floor, mouth and nose were bleeding.
He has full belief that his daughter Archana has been murdered by her husband- Rajesh, father-in-law Mool Chandra and mother-in-law Prema Devi in a planned way. On the basis this written complaint F.I.R. was lodged at the Police Station Mataundh, District Banda on 05.09.2013 at 16:30 hours and investigation was conducted by C.O. Ashutosh Shukla.
Prior to this F.I.R., on the information of the brother of the deceased and the father-in-law of the deceased police of police station Mataundh prepared inquest report of the deceased on 03.09.2013 and her postmortem was conducted. The investigation culminated into charge- sheet no. 63 of 2013 dated 23.09.2013 against all the three accused persons Rajesh, Mool Chandra and Prema Devi under Sections 498A, 304B IPC and Section 3/4 of Dowry Prohibition Act.
After receiving the charge-sheet the Magistrate as per procedure committed the case to Sessions court on 05.10.2013.
On 21.11.2013, Additional Sessions Judge, Banda charged all the three accused persons Rajesh, Mool Chandra and Prema Devi under Sections 498A, 304 B IPC and 3/4 Dowry Prohibition Act and the alternative charge under Section 302/ 34 I.P.C. was also framed. All the accused persons denied the charges and pleaded to be tried.
To bring home the guilt of the accused persons the prosecution produced as many as seven witnesses PW-1 Dwarka Prasad Sahu, PW-2 Ramesh (son of P.W.-1) and PW-4 Chuniya (wife of P.W.-1) are the witnesses of fact, PW-3 Dr. Ashok Singh, has conducted the postmortem on the dead body of the deceased, PW-5 is the Nayab Tehsildar, who prepared the inquest report, PW-6 is the then C.O. City, who conducted the investigation and PW-7 is the Head Constable, who recorded the first information report and prepared G.D.
As documentary evidence the prosecution produced complaint as Exhibit Ka-1, postmortem report as Exhibit Ka-2, inquest report as Exhibit Ka-3, challan dead body as Exhibit Ka-4, photo dead body as Exhibit Ka-5, specimen seal as Exhibit Ka-6, report of Nayab Tehsildar as Exhibit-7, report of R.I. as Exhibit Ka-8, site plan as Exhibit ka-9, charge-sheet as Exhibit Ka-10, memo of recovery of rope as Exhibit Ka- 11, chik F.I.R. as Exhibit Ka-12 and copy of GD as Exhibit Ka-13.
After the prosecution evidence, the statements of all the three accused persons were recorded under Section 313 Cr.P.C. wherein all the accused persons denied of their guilt posed themselves to be innocent and claimed to be falsely implicated. They have refused the allegations of demand of dowry and harassment in this regard and also committing or abetting death of the deceased. The defence did not produce any evidence against the prosecution allegations.
On the basis of above evidence, after hearing the rival parties on the basis of evidence produced the learned lower court found the prosecution case proved beyond reasonable doubt and convicted the accused persons, accordingly.
Against the impugned judgment, the present appeals have been filed by the accused persons and is claimed that the judgment impugned is illegal, arbitrary and bad in the eyes of law. It is against the weight of the evidence on record. Appellants Mool Chandra and Prema Devi were on bail during trial and they never misused the liberty. From the evidence on record, no case is made out against them under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act. Hence, the appeals are prayed to be allowed and judgment and order impugned are prayed to be set aside.
It is also argued on behalf of the appellants that no injury except ligature mark on the neck of the deceased is found moreover the doctor has also opined on the basis of postmortem report that the death of the deceased is due to hanging. Accused-Rajesh (husband) was in Surat at the time of incident he was called later on and rest two accused Mool Chandra and Prema Devi were also not present at the home at the time of incident. The deceased was all alone in the house at the time of incident, who committed suicide. They neither demanded any dowry nor harassed the deceased for dowry or otherwise nor they hanged her nor committed the murder of the deceased. The deceased used to live in other city in context of her studies. There is no motive of the incident. The deceased was tortured 'soon before her death' is also not proved. The presumption under Section 113 of Indian Evidence Act can only be against the husband, who has already served eight years of incarceration. The father- in-law and mother-in-law were present at the spot all the time after the incident and they have also served out the period of sentence under Section 498A I.P.C. There is no evidence for the charge under Section 304B/302 IPC against them. The charge of having an evil eye by the father-in-law upon the deceased is also denied and it is claimed that there is no evidence of all these allegations on the record. There is no independent witness of the incident. The first information report has been lodged very late.
Learned A.G.A. has argued that the deceased was being harassed for the demand of refrigerator and washing machine as dowry. The girl has died within two years and four months of her marriage in her matrimonial house in the suspicious circumstances. The father-in-law was having an evil eye over the deceased so the deceased was both physically and mentally being harassed at the hands of all the accused persons. The plea of alibi was taken in the statement under Section 313 Cr.P.C. The presumption of Section 113 of Indian Evidence Act and burden of Section 106 of Evidence Act is upon the accused persons which they have failed to discharge and, thus, argued that the judgment of lower court is well founded based upon the evidence on record, hence, there is no ground of interference in the same and appeals are prayed to be dismissed.
It is argued on behalf of the appellants that all the witnesses of fact produced by the prosecution are interested witnesses and no independent witness has been produced, hence, the evidence of interested witnesses cannot be said to be reliable and trustworthy.
It is true that the prosecution has produced three witnesses of fact. PW-1 complainant, happens to be father of the deceased, PW-2 and PW-4 are the brother and mother of the deceased respectively. Admittedly, no independent witness has been produced on behalf of the prosecution. The incident took place in the house of the accused persons so the parents or family members of the deceased could not be the eye witnesses of the incident. As the incident occurred inside the house so there is no probability of any independent witness witnessing the occurrence. Though there can be no eye witness of the offence but certainly there may be witnesses of the circumstances leading to the occurrence such as witness of demand of dowry, witness of harassment of the deceased and so on.
The prosecution has produced only three witnesses mentioned above, who are certainly the interested persons being the family members of the deceased.
The Apex Court in State of A.P Vs. S. Rayappa and others reported in (2006) (4) SCC 512 held that merely because the witnesses are related to the deceased they cannot be said to be interested witnesses and on that ground alone their testimony cannot be rejected in the view of the reluctance of the general public to be a witness. A close relative is the only natural witness and the only requirement is that the testimony of such a witness should be examined cautiously by the court.
Regarding interested witnesses Hon'ble Supreme Court in Vijendra Singh Vs. State of U.P. reported in (2017) 11 SCC 129 has opined that it cannot be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All what is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.
Thus, the evidence of P.W. 1, 2 and 4 cannot be discarded merely on the ground of their being the interested witness/ related witness if on the scrutiny their testimony is found to be reliable the conviction can very well be based upon the same.
It is argued on behalf of the appellants that the alleged incident took place on 02.09.2013 and the first information report has been lodged on 05.09.2013 at 16:30 hours and no plausible explanation has been offered for this delay. Thus, it is claimed that the first information report is afterthought and it cannot be relied upon.
Admittedly, the complainant got the information of the incident at 9:00 PM and he with his family reached at the spot at 11:30 PM. It is true that it was a tough time for the parents to face the death of their daughter within two years and four months of her marriage and grief ridden parents take time to normalize. As per the facts of the case, it is to be seen whether the delay in filing the first information report is excusable or well explained.
Admittedly, when on 02.09.2013 at 11:30 PM the parents and brothers of the deceased reached at her matrimonial house next morning on 03.09.2013 P.W.2 the brother of the deceased and accused Mool Chandra (father-in-law of the deceased) went to the police station and informed there about the suicide committed by the deceased. It is admitted by P.W.2 the brother of the deceased in his statement that officer-in-charge of the police station took a note from him that they do not want to lodge an F.I.R. and afterwards on 05.09.2013 at 16:40 hours the F.I.R. has been registered by the father of the deceased. In this regard P.W. 2- Ramkesh the brother of the deceased on page-7 has stated that when they got free then after consultation among themselves they got the F.I.R. lodged in the police station, which makes it clear that previously the family members of the deceased were not in mood of registering the F.I.R. as they themselves informed at the police station that the death was suicidal. They did not even complained the investigating officer about the demand of dowry and harassment followed by that. When they got free from all the rituals of the deceased they decided to lodge an F.I.R. and resultantly an F.I.R. was lodged on the written complaint of the father of the deceased after three days of the incident, so in my opinion, this three days delay cannot be said to be very well explained.
Now it is to be seen whether it was a murder or it was a suicide. In the first information report, it has been mentioned that complainant has strong belief that the deceased did not hang herself rather she was murdered. The postmortem report has been proved by PW-3 Dr. Ashok Singh, who has deposed in his statement that there was ligature mark of 23X2 cm present upon high up of neck, 2.0 cm below right ear, 6.0 cm below left ear, 5.0 cm below chin leaving with a gap of 7.0 cm on right side of neck of the deceased. The knot is grooved hard and leathery. The death was found due to Asphyxia as a result of ante mortem hanging. The doctor found the trachea, lung, liver, splin of the deceased congested and saliva was found dribbling from the left side of mouth. The ligature mark was not complete there was a gap of 7cms so the doctor was of the strong opinion that the death was a result of hanging.
If we go through the evidence in this regard, P.W. 1- Dwarka Prasad Sahu on page-7 has stated that it is true that when at 6-7 O'clock accused Prema Devi reached at her home the house was bolted from inside. The neighbor Vrindavan sent her grand daughter Vandana, who went inside the house through the house of neighbor Pappu and then opened the bolt of the door. When neighbor Vrindavan alongwith Prema went inside the house they saw Archana hanging over there. It is admitted by the witness that when they reached at the residence of their daughter she was still hanging over there. The rope/ loop was opened in the presence of police and the complainant. The Magistrate had also reached there. P.W. 2- Ramkesh also on page-4 of his statement has admitted that when they reached they met Mool Chandra and his wife Prema and their younger son. The information of the incident was sent to Rajesh, who came from Surat on the third day and he met them on the third day only. This witness has also admitted in his statement that when they reached in the matrimonial house of the deceased the mother-in-law of the deceased revealed that when she came back from the shop at 6-7 O'clock in the evening the house was bolted from inside and when the deceased did not open the bolt then the grand daughter of the neighbor Vrindavan entered therein jumping from the house of neighbor, namely, Pappu and opened the bolt of the door. On page 5 of his statement this witness has also admitted that one loop of the rope was in the neck of Archana Devi (deceased) and the other loop was tagged in the latch inside the wall.
PW.-6 the Investigating Officer has also admitted in his statement that the neighbor Vrindavan had stated in his statement under Section 161 Cr.P.C. that on 02.09.2013 the daughter-in-law of accused Mool Chandra had hanged herself inside the house. When he dropped her grand daughter Vandana from the house of neighbor inside the house of deceased then first of all Vrindavan entered in the house nobody was inside the house and Archana was hanging near stair way from the hole of wall with the help of rope and nearby the plastic chair was lying. The grand daughter of Vrindavan Kumari Vandana, aged 16 years also deposed in her statement under Section 161 Cr.P.C. that on 02.09.2013 at 6:00 PM when the daughter-in-law of Mool Chandra was inside her house and on the calls of her mother-in-law the door could not be opened then on the direction of her maternal grand father Vrindavan she climbed up to the house of neighbor and from there through the stair way she came down and opened the door of the house of the deceased and then her maternal grand father and mother-in-law of the deceased entered in the house wherein Archana Devi was hanging.
P.W.-4 Chuniya the mother of the deceased has also deposed in her examination-in-chief that when they reached on the spot she saw her daughter to be hanging. Her legs were touching the floor and mouth and nose were bleeding. In the inquest report also, it is mentioned that when next day in the morning the Nayab Tehsildar came the dead body was still hanging from the beam of the house in the courtyard with the help of rope. The dead body was brought down with the help of the family members of the deceased. There was no injury on the person of the deceased except the ligature mark.
Thus, from the statement of the parents and brother of the deceased and the statement of Nayab Tehsildar, the Circle Officer (the Investigating Officer) itself, it is clear that when the family members of the deceased reached at the house of the accused persons the deceased was still hanging and the dead body was brought down in the presence of magistrate and police with the help of the family members of the deceased. It is also an admitted fact that at the time of incident the accused Rajesh (husband) was out from the village and was doing job in Surat. He could come on the third day of the incident and the deceased hanged herself when she was all alone in the house. When the mother-in- law of the deceased came from their tea stall (admittedly the father-in-law and mother-in-law of the deceased run a tea stall one kilometer away from the house and since morning at 7 O'clock till evening at 6-7 O'clock they used to remain on the stall itself) the door was bolted from inside. It was got opened with the help of the neighborhood girl by reaching inside through the roof of neighbor Pappu. The dead body hanging in the courtyard was witnessed for the first time by the mother-in-law, neighbor Vrindavan and the grand daughter of Vrindavan, which shows that it was a case of suicide and the deceased committed suicide when she was all alone in the house. The lower court also as per the finding of its judgment on page 13 has come to the conclusion that it was a case of suicide and the deceased hanged herself by bolting the house from inside when she was alone.
The lower court has found that it was a case of demand of dowry and the deceased was being harassed for the same. As the lower court found that the death was caused within seven years of the marriage in the suspicious circumstances at the matrimonial house so with the help of Sections 113A and 113B of Indian Evidence Act found the accused persons guilty under Section 304-B I.P.C. The lower court has not found the accused persons guilty under the alternate charge of Section 302 I.P.C.
Now, let us see whether on the basis of proved suicide case by hanging herself the prosecution has successfully proved the charges under Sections 498A, 304 B I.P.C. and under Section 4 of Dowry Prohibition Act. Perusal of the first information report reveals that there are two fold allegations in the same. One is that the father-in-law of the deceased was having an evil eye on her, which mentally harassed the deceased and the other is the demand of dowry. Though a third ground also came before the court during the arguments that the accused persons were not cooperating the deceased by incurring expenses of her studies.
If we see the allegation of an evil eye of the father-in-law on the deceased, P.W.-1 Dwarka Prasad (father of the deceased) in his examination-in-chief has stated that her daughter had disclosed to her mother that her father-in-law Mool Chandra wanted to develop forceful illicit relations with her and, thus, used to harass her in this regard. This statement of P.W.-1 is the hearsay evidence that his daughter had disclosed this fact to her mother but when mother deposed in the court as P.W.-4 she did not even make a whisper in this regard. Thus, hearsay evidence of the P.W.-1 has not been corroborated with the statement of P.W.-4, hence, this allegation of having an evil eye upon the deceased by her father-in-law of the deceased cannot be said to be proved. In this regard if we go through the lower court judgment on page-21 the court concerned has expressed suspicion that 'it may be possible that the deceased was forced by her father-in-law to develop illicit relations with him'. In my opinion, the suspicion however strong it cannot take place of a evidence. Without any evidence in this regard the allegation of having an evil eye by the father-in-law over the deceased cannot be said to be proved.
In the statement of accused Mool Chandra recorded under Section 313 of Cr.P.C. evidence that he had an evil eye on her daughter-in-law has not been put before him and when the fact/ evidence was not put to the accused in his statement under Secttion 313 Cr.P.C. then the accused Mool Chandra cannot be hold guilty of the allegation of having an evil eye on her daughter-in-law.
If we go through the fact of demand of dowry in the F.I.R., general allegation is there that due to demand of dowry the deceased was being mentally and physically harassed at the hands of her in-laws. Regarding this demand and harassment she had made complaints to her father, the complainant. In the first information report the particulars have not been given as to what was being demanded as an extra dowry from the deceased.
P.W.-1 in his statement has stated that since the time of marriage Rajesh (husband) and his parents used to mentally and physically harass his daughter for bringing less dowry and used to demand refrigerator and washing machine as extra dowry. His daughter used to narrate her plight to him, her mother and her brother whenever she visited his house. In his examination-in-chief on page-5 P.W.-1 has stated that after four/six months of the marriage he come to know about the demand of refrigerator and washing machine. This fact was disclosed to him by his wife. This statement of the witness is in contradiction with his statement in examination-in-chief wherein he has stated that since the marriage itself her daughter was being harassed for the demand of extra dowry of refrigerator and washing machine. Again, the fact of mental and physical harassment is mentioned in the examination-in-chief of the P.W.-1 from the time of marriage itself wherein on page-3 of his statement he has mentioned that at the time of engagement, at the time of Tilak and during all the ceremonies of marriage no demand of dowry was made to him. Again, on page-4 of his statement he has stated that after eight days of the marriage when his both sons Ramkesh and Haricharan went to bring their sister (deceased) she was given a happy farewell there. On page-5, he has stated that two/ three months prior of her death Archana went to her in-
laws house. He used to talk with her and she used to say that she was happy there. Apart from this, it is admitted fact which is mentioned on the page-6 of the statement of P.W.-1 that since prior to one year of her death the deceased was pursuing computer training in Chattarpur district and she used to visit her parental or matrimonial house during leaves only so the statement of this witness with regard to dowry harassment of the deceased is contradictory.
If we go through the statement of P.W.-2 Ramkesh the brother of the deceased in this regard he has stated therein that after ten or fifteen days of the marriage when he alongwith his young brother went to her sister's house for Bidaai all the three accused persons complained them of the less dowry and made a demand of refrigerator and washing machine. They also refused to send the deceased without these things and only after their request the bidaai of the deceased could be made possible. This statement again is in contradiction with the statement of their father P.W.
-1 wherein the father has mentioned that first farewell of the girl was made happily and it was only after four/ six months of the marriage that the demand of refrigerator and washing machine was brought to his knowledge by his wife.
If we go through the statement of P.W.-4 Chuniya in this regard in her examination-in-chief she has mentioned that when her daughter made one or two visits from her matrimonial house to the parental house then she narrated about the demand of washing machine and refrigerator and harassment following the same. She has stated that after 5-6 months of the marriage for the first time this demand was disclosed by her.
Admittedly, this fact of demand of dowry and harassment was not disclosed to the magistrate as stated by P.W.-2 in his examination-in-chief on page-5 of his statement that at that time they did not complained the magistrate or police about the demand of refrigerator and washing machine and harassment for the same and admittedly when next day the brother of the deceased P.W.-2 alongwith accused Mool Chandra went to the police station there also he narrated the death to be a suicide and in writing he agreed there not to lodge an F.I.R. in this regard.
Thus, in the first information report there is general demand of dowry and harassment following the demand. Admittedly, no fixed date or time of the demand of dowry or harassment has not been given otherwise also when the demand started on this point there is vast contradiction amongst the statements of PWs 1, 2 and 4. The statement of P.W.-1 is self contradictory, hence, the fact of demand of dowry and the harassment following the same cannot be said to be proved from the record.
It is argued from the prosecution side that as it was a dowry death, as per Sections 106, 113A and 113B of the Indian Evidence Act, the burden of proving the fact is upon the accused persons.
Section 106 of the Indian Evidence Act, 1872 runs as under:-
“106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
It is true that the girl has died in her matrimonial house and it must be within the special knowledge of accused persons that how she died. From the above discussion it is clear that it is a case of suicide by hanging and the fact that demand of dowry and harassment therein was made by the accused persons is to be proved by prosecution which they have failed to prove on the basis of above discussion.
Moreover, as per judgment of the Apex Court in Vikramjit Singh Vs. State of Punjab, (2006) 12 SCC 306, the discussion in paragraph Nos.14 & 15 are relevant to be noted as under:-
“14. Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute.
15. It may be that in a situation of this nature where the court legitimately may raise a strong suspicion that in all probabilities the accused was guilty of commission of heinous offence but applying the well-settled principle of law that suspicion, however, grave may be, cannot be a substitute for proof, the same would lead to the only conclusion herein that the prosecution has not been able to prove its case beyond all reasonable doubt.”
In the judgment of Nupur Talwar vs. State of UP and others, 2018
(102) ACC 524, the Division Bench of this Court had extensively dealt with the consequence of Section 106 of the Evidence Act by referring to the landmarks decisions of the Apex Court and held in paragraph No. 246:-
"246. Thus, what follows from the reading of the law reports referred to herein above, is that prosecution has to establish guilt of the accused filtered of all reasonable prognosis favourable to accused to secure conviction and it is never relieved of its initial duty. It is only when the initial burden has been discharged by the prosecution that the defence of the accused has to be looked into. Section 106 of the Indian Evidence Act can not be applied to fasten guilt on the accused, even if the prosecution has failed in its initial burden."
Thus, section 106 of the Evidence Act comes into light when the prosecution proves its case. This Section does not absolve prosecution from discharging its duty of proving its case beyond reasonable doubt.
So far as the Section 113B of the Evidence Act is concerned Section 113 B of the Indian Evidence Act, 1872 can be reproduced 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 has 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.”
For this Section, it is very necessary to prove that 'soon before' the death the women was subjected to cruelty or harassment in connection of dowry. If in this connection the evidence is looked into in the first information report there is not even a single whisper that the deceased was harassed for dowry soon before her death though it is mentioned therein that she was being harassed continuously for the demand of dowry. If we go through the statement of P.W.-1 in this regard in the examination-in-chief of P.W.-1 also there is only general allegation that the demand of refrigerator and washing machine was being made from her and she was being harassed for the same but if we go through the statement of P.W.-1 on page-5, he has stated therein that 2-3 months before her death deceased went back to her matrimonial house alongwith her brother-in-law and since then till her death no one went to meet the deceased in her matrimonial home. He did not get any information during this time though, often he used to talk on telephone and she used to say that she was very well there. This statement of the father of the deceased (P.W.-1) makes it clear that since 2-3 months prior to the death of the deceased she did not meet any of his family members and whenever she was contacted telephonically she reported that she was very well there. As per this statement, it is clear that during this period there was no harassment which she could complaint. On page-6 of his statement P.W.1 has stated that since one year prior to her death she was pursuing computer training in District Chattarpur (the other district) and during her leaves she used to visit her parental house and the matrimonial house off and on. Thus, from the statement of P.W.-1, it cannot be said that there was dowry harassment of the deceased 'soon before' her death. P.W.2 and P.W.- 4 have also not pointed out any incident that soon before her death the deceased was harassed for dowry by her in-laws.
Reliance can be placed in this regard on the judgement of Hira Lal and Ors. Vs. State (Govt. Of NCT), Delhi reported in (2003) 8 SCC 80, wherein it is hold by Apex Court that 'soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
Thus, on the basis of the above judgment, it is proved that for the presumption of Section 113B of the Indian Evidence Act harassment for dowry 'soon before death' must be determined as per facts of the case. On the basis of the above discussion, the prosecution has failed to prove dowry harassment of the deceased 'soon before her death'.
Whether there is possibility of conviction of accused under Section 306 I.P.C can also be looked into.
Section 306 I.P.C. can be reproduced as under:-
306. Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
According to this Section there must be abetment to suicide and in this regard Section 306 I.P.C. can be read alongwith Section 113A of the Indian Evidence Act, which runs as under:-
“113A. Presumption as to abetment of suicide by a married woman.—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 had 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.”
Now it is to be seen whether there is any abetment of suicide on the part of husband, father-in-law and mother-in-law. From the above discussion, it is proved that husband was not present on the spot at the time of occurrence. There is no allegation that the husband used to harass the deceased through mobile or otherwise. The demand of dowry and harassment thereafter has not been proved by the prosecution as discussed above and if the last argument put before the court is considered that the deceased was undergoing computer training residing in district Chattarpur, as per prosecution the accused persons were not contributing or providing the dececeased the expenses of her studies. P.W.-1 in this regard has stated in his evidence that at the time of marriage the deceased had passed her Intermediate exams and on page- 4 of his statement he has stated that after marriage accused Mool Chandra got the deceased admitted in degree college Laudi for perusing her studies of Class B.A. and the girl was residing with her parents and privately persuing her studies of B.A. On page- 6 of his evidence PW.1 has stated that he asked Mool Chandra to get Archana admitted for computer training in Chattarpur then Mool chandra replied that he had no enough money for the same and he was unable to impart computer training to her daughter-in-law and so both Mool Chandra and complainant had hot talks and since then he was angry with the accused Mool Chandra. It is also stated that he got her daughter admitted for computer training and spent Rs.30,000-40,000/- in that when he demanded this money from Mool Chandra he flatly refused to pay the same. In his statement, he has also stated that Rajesh or his mother also did not contribute in the expenses of the computer training of the deceased. On page-8 of his statement P.W.-1 has admitted that his daughter used to keep her stuffs and jewelry in his house and in her in- laws house also. It has come on record that when the accused persons demanded jewelry and other stuff of the deceased kept with the complainant, the complainant who was already annoyed with the Mool Chandra for the reason of not contributing in the expenses of computer training of the deceased he falsely implicated the accused persons in this case.
It is admitted fact that accused Mool Chandra and his wife Prema used to run a tea stall one kilometer away from their house and they had no land in their name and accused Rajesh used to work in Surat, though, it has not come on record that what type of work he was doing there but the father-in-law of the deceased, who persuaded the study of B.A. of the deceased on his own expenses he may not in a position to incur amount of Rs. 30,000-40,000/- in the computer training of his daughter-in-law that too by managing her stay in another city. If the accused persons had no enough money to pursue further studies of their daughter-in-law or wife then it cannot be said to be a ground of the abatement of the suicide of the deceased. Prosecution has failed to prove the cruelty on the part of accused persons towards the deceased as well the abetment of the suicide of the deceased too, thus, the case of the prosecution cannot be said to be proved beyond reasonable doubts.
Thus, having given the careful consideration to the submissions made by the learned counsel for the parties and in the light of evidence and in the background of the well settled proposition of law and in view of the improbabilities, the serious omissions and infirmities, the interested nature of the evidence and other circumstances it is clear that the prosecution has failed to prove the changes against the appellants beyond reasonable doubt. The involvement of appellants in the crime is doubtful. The lower court was in error in evaluating the prosecution evidence in wrong perspective.
In view of the preceding analysis the appeals filed by appellants are allowed. The conviction of Rajesh, Mool Chandra and Smt. Prema Devi under Sections 304B, 498A I.P.C. and Section 4 of Dowry Prohibition Act is set aside. The appellants are, accordingly, acquitted.
Appellant- Rajesh who is presently in jail shall be set free forthwith if not required in any other case.
Appellants Mool Chandra and Smt. Prema Devi are on bail. Their bail bonds are cancelled and sureties are discharged.
Fine imposed by the trial court, if realized from the appellants shall be paid back to them.
Let a copy of the judgment be sent to the court concerned and Chief Judicial Magistrate, Banda for compliance.
Order Date:-21.12.2021 Radhika