Hon'ble Ravindra Nath Mishra-II,J.
(Delivered by Hon'ble Ravindra Nath Mishra-II,J.)
1. Challenge is to the judgment dated 8.12.2014 passed in Sessions Trial No. 404 of 2013, arising out of Crime No. 166 of 2013 under Sections 498A, 304B I.P.C and ¾ Dowry Prohibition Act, Police Station Dewa, District Barabanki, whereby learned Additional Sessions Judge, Barabanki has acquitted respondent Arjun and Ambika Prasad of charges levelled against them.
2. Brief facts as revealed from written complaint dated 26.5.2013 (Exhibit Ka-1) are that complainant Suraj Lal son of Gaya Prasad, resident of Village Chandoora, Police Station Mohamamdpur Khala District Barabanki had married her daughter Renu aged 21 years to Arjun son of Ambika Prasad Resident of Village Chandauli, Police Station Dewa, District Barabanki. After three years of her marriage, her daughter Renu went to her matrimonial home in "Gauna". When his daughter came back from her matrimonial home, she complained about demand of golden chain by accused persons. She also complained that accused persons were threatening her to bring golden chain in dowry otherwise they would kill her. Hence his daughter Renu insisted on not to return to her matrimonial home. However, on 21.5.2013 accused persons came to complainant's house and requested for "vidai" of Renu and promised not to harass her again. After intervention of relatives and advice of family members, the complainant sent her daughter to her matrimonial home along with husband Arjun and father-in-law, Ambika Prasad, but only after four days respondent-accused killed her by hanging. The complainant Suraj Lal lodged written complaint (Exhibit-ka 1) in Police Station Dewa, District Barabanki on 26.5.2013, on the basis of which, case crime no-166 of 2013 was registered under Sections 498A, 304B I.P.C and Section ¾ Dowry Prohibition Act against respondent-accused in police station Dewa, Barabanki vide chick report (Exhibit-ka-9). Corresponding entries were made in General Diary of Police Station (Exhibit Ka-10). Inquest of dead body of Renu Devi was conducted and inquest report. was prepared by Umesh Singh, Deputy Tehsildar, Tehsil Sadar, District Barabanki. Investigating officer Vishal Vikram Singh, Circle Officer City Barabanki sent dead body for post-mortem along with Photonash (Exhibit Ka-3), Chalanlash (Exhibit Ka-4), letter to R.I. (Exhibit Ka-5), letters to C.M.O. Barabanki (Exhibit Ka-6). Dr. Shashi Bhushan Singh conducted autopsy of cadaver of Smt. Renu and prepared post-mortem report (Exhibit Ka-8). On the same day, investigating officer visited place of occurrence and prepared Site Plan (Exhibit Ka-11) on the pointing of complainant. He recorded statements of witnesses under section 161 of Cr.P.C. The investigation culminated in submission of charge-sheet (Exhibit Ka-12) in the Court.
3. On the basis of charge-sheet accused persons were summoned by the Court and case was committed to the court of sessions on 23.7.2012, where charges were framed against accused persons Arjun and Ambika Prasad under Section 498A, 304-B I.P.C. and Section ¾ Dowry Prohibition Act. Alternatively charge under Section 302 I.P.C was also framed. Accused persons denied the charges and claimed to be tried.
4. To substantiate the charges, prosecution examined P.W.-1, complainant Suraj Lal, P.W.-2 Smt. Ram Janki, P.W.-3 Umesh singh, P.W.-4 Dr. Shashi Bhushan Singh, P.W.-5 Head Constable Ram Raj and P.W.-6 Circle Officer Vishal Vikram Singh.
5. After conclusion of prosecution evidence, statement of respondent-accused was also recorded under Section 313 Cr.P.C. in which marriage was admitted, but they denied that they ever demanded any dowry or harassed deceased for dowry. Accused Arjun, who was husband of the deceased, inter alia, pleaded that about 15 to 20 days before the incident her elder sister had died due to which she was in depression and she did not want to come to her matrimonial home. When forced to come she committed suicide by hanging herself on 4th day of her coming to her matrimonial home. He has also pleaded that at that time he was not present on the spot. He had gone in another village for cooking food in marriage. Accused Ambika Prasad, who happened to be father-in-law of the deceased has pleaded that he lived separately from accused Arjun. The deceased was in severe depression, due to death of her elder sister. She did not want to come to her matrimonial house. On persuasion of her relatives and insistence of accused to come to matrimonial home she came, but committed suicide by hanging herself when she found loneliness.
6. Respondent-accused examined D.W.-1 Devi Sharan, D.W.-2 Sohan LaL and D.W.-3 Ram Lakhan in their defense.
7. After hearing submissions made by prosecution and respondent-accused and appreciation of evidence, trial Court acquitted respondent-accused of charges framed against them concluding that prosecution has failed to prove demand of dowry and harassment in connection with dowry.
8. Feeling aggrieved by the judgment dated 08.12.2014, passed by the trial court, State has preferred this appeal.
9. Learned Additional Government Counsel, Smt. Smiti Sahay has vehemently argued that trial Court has wrongly and illegally acquitted the respondents without considering material evidence available on record. Deceased has died within seven years of her marriage and there is sufficient evidence available on record to prove demand of golden chain in dowry. She was also subjected to physical as well as mental cruelty soon before her death. Trial Court has committed error in law in acquitting the respondents. She has also argued that since judgment and order of trial Court is perverse, as it is against the weight of evidence, interference by the appellate court is required.
10. Per contra, learned counsel for the respondent-accused repelling the argument of learned A.G.A. has contended that except unnatural death of deceased within seven years of her marriage, none of ingredients of Sections 498A & 304B I.P.C. is proved. Trial Court has rightly held that deceased was in severe depression and therefore she committed suicide. There was no mark of injury on her body to conclude that it was a homicidal death. He has also argued that respondent-accused Ambika Prasad was living separate from his son accused Arjun. Trial Court after appreciating the evidence available on record has rightly concluded that charges are not proved. There is no perversity in the judgment, conclusion drawn by the trial court is plausible and if conclusion is plausible, it cannot be interfered in appeal against judgment of acquittal. Reversal of judgment is possible only if it is perverse or not supported by reasons.
11. Though so far as powers of the appellate court are concerned, no distinction has been made in the Criminal Procedure Code between an appeal from acquittal and an appeal from conviction and the appellate court has full power to review the evidence and to arrive at its own independent conclusion but keeping in view presumption of innocence of accused which is golden web of criminal jurisprudence and administration of criminal justice and the fact that after acquittal by the trial Court this presumption of innocence is further strengthened and reaffirmed, certain rule of caution has been propounded by the Apex Court that has to be kept in mind. An accused enjoys double protection in criminal jurisprudence after acquittal by a competent court of Law.
12. There is plethora of cases on the power of appellate Court to interfere in judgment of acquittal. However summarizing broader principles on the point laid down in leading decisions of Hon'ble Apex Court, following principles have been culled out in Chandrappa and others v. State of Karnakata 2007 (4) SCC 415:
"(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(Emphasis is supplied by us)
13. The above view has been further endorsed in subsequent decisions of Hon'ble Apex Court. In Maloth Somaraju vs. State Of A.P. (2011) 10 SCR 349 it is observed;
"5. The law dealing with the judgments of acquittal is now settled. There can be no two opinions that merely because the acquittal is found to be wrong and another view can be taken, the judgment of acquittal cannot be upset. The appellate Court has more and serious responsibility while dealing with the judgment of acquittal and unless the acquittal is found to be perverse or not at all supportable and where the appellate Court comes to the conclusion that conviction is a must, the judgment of acquittal cannot be upset. We have to examine as to whether the High Court, while upsetting the acquittal, has taken such care and it is quite clear from the High Court's judgment that the High Court has certainly taken that care."
14. in the backdrop of above broad principles relating to power of appellate court, the impugned judgment has to be examined as to Whether conclusion drawn by the trial court is perverse, distorted and not plausible and there is any substantial and compelling reason for interference?
15. Normal rule of evidence is that a person is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case by establishing both the actus reus of the crime and the mens rea. It must first satisfy the evidential burden to show that its allegations have something to support them. However there are some exceptions to the normal rule that the burden of proof is upon the prosecution. Some of the exceptions may be given as follows for example- (1) where the defendant pleads right of private defence after admitting the elements of the crime (the actus reus and mens rea), the evidential burden is upon the defendant to prove his defence. (2) Where the defendant pleads automatism, the evidential burden is upon him. (3) Where insanity is pleaded by the defendant as defence, both the evidential burden is upon him. (4) In some cases statute expressly places burden on the defendant; for example, a person who carries an offensive weapon in public is guilty of an offence unless he proves that he had lawful authority for carrying it. Similarly by the introduction of section 8A of the Dowry Prohibition Act the burden of proof was reversed in respect of prosecution for taking or abetting the taking or demanding of any dowry by making the person concerned responsible for proving that he had not committed any such offence.
16. Contemporaneously, Section 304B was introduced into IPC. Section 304-B I.P.C. spells out "dowry death" in following words:
"304B. Dowry death.--(1) Where the death of a woman is caused by any burns or 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 purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) 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."
17. Thus in order to seek a conviction against a person prosecution has to prove that:
a) the death of a woman caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
b) such death should have occurred within seven years of her marriage;
c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
d) such cruelty or harassment should be for or in connection with the demand of dowry; and
e) to such cruelty or harassment, the deceased should have been subjected soon before her death.
If above conditions are fulfilled then a presumption of dowry death shall be drawn against the accused persons under Section 113-B of Indian Evidence Act and the burden of proof shifts upon the accused to prove that he is innocent. Section 113-B of Indian Evidence Act is extracted below:
"113-B. 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.
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. Explaining the reason for introducing Section 113-B of Indian Evidence Act Hon'ble Apex Court has observed in State of Punjab v. Iqbal Singh AIR 1991 SC 1532 that "The legislative intent is clear: to curb the menance of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since such crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing sections 113A and 113B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage."
19. A conjoint reading of Section 113-B of Indian Evidence Act and Section 304-B I.P.C. shows that there must be some material to show that soon before the death the victim was subjected to cruelty and harassment by her husband or relative of husband for dowry in connection of marriage. There must exists live link between the effect of cruelty based on dowry demand and death.
20. Now adverting to the facts of present case, It has been alleged in written complaint (Exhibit-Ka 1) that the deceased was subjected to physical assault and then she was hanged. After her death an autopsy was conducted of her dead body. According to autopsy report (Exhibit-Ka 8) following injuries were found on the body of deceased at the time of examination:
"1. An oblique ligature mark of 25 cm present all around the neck with a gap of 5 cm on Lt. Side. Ligature mark present above thyroid cartilage in front passing obliquely upward and backward along the line of mandilble.
2. Ligature mark is 1.5. cm in broad, 6 cm below Rt. Ear, 3 cm below Lt. Ear and 4 cm away from chin.
3. Base of groove of ligature mark is hard and parchment like on opening subcutaneous and areolar tissue underneath ligature mark is glistening white in colour."
21. According to P.W-4 Dr. Shashi Bhushan Singh, who had conducted autopsy, no other injury except injuries mentioned above was found on the body of deceased at the time of examination. It negates any physical torture or assault before her death. Though physical assault of the deceased is not established by autopsy report and testimony of P.W.-4, but it is established beyond doubt that her death had occurred otherwise than under normal circumstances. It is also not disputed by respondent-accused.
22. Case of the prosecution is that deceased Renu, aged 21 years was married to accused Arjun about three and half years before her death. This fact is also proved by P.W.-1 Suraj Lal and P.W.-2 Smt. Ram Janki, father and mother of deceased. Father and mother are the best person to depose about age of marriage. From the perusal of statement of P.W.1 Suraj Lal and P.W.-2 Ram Janki, it transpires that the age of marriage is not disputed rather accused in their statements under Section 313 Cr.P.C. have admitted the factum of marriage with deceased Renu within seven years of her marriage. Thus it is established that deceased had died within seven years of her marriage.
23. In order to bring home charges under Section 304- B I.P.C., prosecution has also to prove that the deceased was subjected to cruelty or harassment by the husband or any relative of her husband before her death. Cruelty or harassment may be mental or physical. In the instant case, there appears no physical cruelty. In complaint (Exhibit-Ka 1), there is no allegation of any physical assault. It has been stated in Exhibit-Ka 1 that on 21.5.2013 when accused came to his house to take deceased to her matrimonial home, deceased refused to go. It has also been stated that on their undertaking and assurance that they would not harass her in future, he allowed her to go with the accused persons. The relevant portion may be quoted as below:
"--- yxHkx 8 ;k 9 eghuk gq, fnu eaxyokj rk0 21&5&13 dks yM+dh fonk djkus vk;s os esjs fonk u djus dks dgus ij [kkQh [kq"kken djus yxs fd vc yM+dh dks fdlh Hkh ckr ij izrkfM+r ugha djsaxs---------"
Except above quoted lines nothing is written in report (Exhibit-Ka 1) with regard to harassment to constitute cruelty. The conduct of the complainant should be "grave and weighty". It must be something serious than ordinarily "wear and tear of married life" Petty quibbles, trifling differences should not be exaggerated and magnified as cruelty. From the perusal of the statement of P.W.-1 and P.W.-2 it is evident that the factum of harassment has not been proved by the prosecution.
24. Prosecution has also to prove that cruelty or harassment, if any, should be for or in connection with demand of dowry. Unless there is demand of dowry any kind of harassment whether mental or physical does not come within definition of Section 304-B I.P.C. Explanation appended to Sub-Section (1) of Section 304-B I.P.C. says that "dowry for the purposes of the this Section shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (for short 28 of 1961). Section 2 of Section 1961 Act defines "dowry" as follows:
"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 parent 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 1 [or any time after the marriage] 2 [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. 3 [***] Explanation II.-- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860)."
25. The definition of "dowry" reproduced above would show that the term is defined comprehensively to included properties of all sorts as it rests within its hold "any property" or "valuable security" given or agreed to be given in connection with marriage either directly or indirectly. It is not confined merely to the demand of money, property or valuable security. Expression "at or before or any time after the marriage" and in connection with marriage of the said parties were introduced by amending Act, 63 of 1984 and Act 43 of 1986 in the year 1985 and 1986 respectively. These amendments appear to have been made with the intention to recover all demands before and even after the marriage of the said parties.
26. In the instant case demand of golden chain is alleged to have been made by accused-respondents. Burden lies on prosecution to prove that accused persons demanded golden chain in dowry. In order to prove the demand of dowry, prosecution has examined P.W.-1, Suraj Lal and P.W.-2 Ram Janki, who are father and mother of the deceased respectively. The trial court has concluded that prosecution was not able to prove the demand of dowry. In this respect the trial court has referred some of the statements of P.W.-1 wherein he has stated that accused never demanded any dowry directly from him when he visited matrimonial home of her daughter. She also did not tell her about any demand. In written complaint (Exhibit-Ka 1) also there is nothing to indicate that accused demanded any article directly from P.W-1. Trial court on the basis of statement of P.W-1 has concluded that they never complained about any demand to the mediator. This fact also negates the allegation of demand of dowry. The mediator Devi Saran has been examined as D.W-1, who has stated against any demand. The statement of P.W-1 and P.W-2 also shows that the relationship between complainant and accused was also very cordial.
27. P.W.-1 and P.W.-2 themselves have admitted that their daughter and son-in-law Arjun were living separately in the same house. This fact also makes prosecution story of demand of dowry doubtful.
28. Thus we do not find the conclusion of trial Court regarding demand of dowry to be baseless or perverse.
29. Explaining terms "soon before" and "cruelty" as used in sections 113-B of the Evidence Act and 304-B IPC Hon'ble Apex Court in Surinder Singh v. State of Haryana (2014) 4 SCC 129, has said:
"17. Thus, the words "soon before" appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words "soon before" is, therefore, important.The question is how "soon before"? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements.It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death."
29. Thus as observed in above judgment a conjoint reading of Section 113-B of Indian Evidence Act and Section 304-B I.P.C. shows that in order to draw presumption of dowry death, prosecution has to prove that soon before her death the victim was harassed in connection of dowry. The word "soon before" is relevant evidence in that regard has to be led by the prosecution. No straight jacket formula can be laid down as to what would constitute of period of soon before the occurrence. It is a relative term and it would depend upon the circumstances of each case. No definite period can be given to bring the case within the expression "soon before". The expression "soon before" her death as used in Section 304-B I.P.C. and Section 113-B of the Indian Evidence Act is pregnant with the idea of proximity. The expression normally implies that the interval should not be much between the cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect and cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the women concerned, it would be of no consequence.
30. As has been seen above, the harassment part of offence is absolutely lacking in this case. P.W.-1 in his statement himself has admitted that after death of her elder daughter, accused persons came to his house and wanted to take Renu (deceased) to their home and at that time they promised not to harass her. Thus matter appears to have been resolved. For the sake of argument, if in any way it is concluded that deceased was ever harassed, there is no evidence on record to show that after this promise and taking the deceased to her matrimonial home, she was harassed or subjected to any cruelty. Thus there is no proximity between so-called harassment and her death. Post-mortem (Exhibit-Ka 8) also negates any kind of harassment committed before her death. Case of accused is that, after death of her elder sister Renu was very much dejected and had gone in depression. She (deceased) committed suicide finding herself in loneliness. D.W.-1 Devi Sharan and D.W.-3 Ram Lakhan have supported the story of defense. The defense also finds support from the statement of P.W-1 where he has stated that after death of her elder sister to whom deceased was very much affectionate, she remained dejected and had gone in depression.
31. Thus the conclusion drawn by trial Court is very much supported by evidence on record, it cannot be called perverse or palpably wrong. Hence no interference is required. Therefore, this appeal is liable to be dismissed.
32. The appeal is dismissed.
Order Date :- 16.09.2016 Arvind