Hon'ble Ravindra Nath Mishra-II,J.
[ Delivered by Hon'ble Ravindra Nath Mishra-II, J. ]
1. This appeal has been preferred by appellant-State of U.P against judgment dated 18th January, 2008 passed by Additional District and Sessions Judge, Sitapur in Sessions Trial No. 442/2006 'State Versus Ramjiwan and others' arising out of Crime No. 396 of 2005, under Sections 498A and 304B I.P.C. and Section 3/ 4 Dowry Prohibition Act, Police Station Hargaon, District Sitapur whereby the respondent/accused have been acquitted of the charges levelled against them.
2. The brief facts, giving rise to this appeal, as deciphered from written complaint (Exhibit Ka-1), are that deceased Asha Devi was married to respondent- accused Ramjiwan two years prior to the date of occurrence. As per prosecution case the deceased used to complain of demand of double bed and cash by her husband, father-in-law and mother-in-law in dowry whenever she came to her parental house. Due to his poor economic condition, the complainant could not fulfill the demand of her in-laws. His son-in-law Ramjiwan wanted some money to purchase motorcycle. Due to harassment for dowry by her in-laws the deceased had come to her parental house. But approximately 7-8 days before the date of occurrence, her husband, accused Ramjiwan came to her and took her alongwith him. The deceased did not want to go to her matrimonial home, but the complainant persuaded her to go. Thereafter, on 15.10.2005 the complainant received information that she committed suicide. On inquiry from neighbours, it came to his knowledge that due to non-fulfillment of demand of dowry, her husband Ramjiwan, father-in-law Mahesh and mother-in-law Smt. Savitri harassed her and killed her. As per complainant's case the respondents-accused after killing her, hanged her from ceiling. A written complaint (Exhibit Ka-1) was given by complainant Sunder Lal in Police Station Hargaon on which first information report (Exhibit Ka-3) was lodged. Corresponding entries were made in General Diary of police station, copy of which is Exhibit Ka-4. Inquest report (Exhibit Ka-5) was also prepared by Naib Tehsildar, Hargaon, Sitapur. Thereafter, autopsy was conducted on cadaver of the deceased and postmortem report was prepared by Dr. S. P. Ojha, which is Exhibit Ka-2. During investigation, site-plan of place of occurrence was prepared by the investigating officer, which is Exhibit Ka-12. Letter to Chief Medical Officer (Exhibit Ka-6), Specimen of seal (Exhibit Ka-7), Photo of the dead body (Exhibit Ka-8), Challan of the dead body (Exhibit Ka-9) and letter of R.I. (Exhibit Ka-10) are also on record. Prima-facie, case having been found during investigation, charge-sheet against respondents-accused was prepared and filed in the Court, which is Exhibit Ka-11. On the basis of charge-sheet, respondents-accused were summoned and committed to the Court of Sessions where charges were framed against the respondents-accused under Sections 498-A and 304-B Indian Penal Code and 3/4 Dowry Prohibition Act. The charges were read-over and explained to the accused persons, which were denied by them and they claimed to be tried.
3. To prove charges of demand of dowry and harassment of the deceased against the accused, prosecution examined complainant Sunder Lal as PW-1 and Virendra Kumar as PW-2. PW-1 has stated that the deceased Asha Devi was married to respondent-accused Ramjiwan two years before the occurrence of the incident. Two months after the marriage when she came to her parental home, she complained that her husband Ramjiwan, father-in-law Mahesh and mother-in-law Smt. Savitri started putting pressure on her to bring double bed and cash for purchase of motorcycle. He has also stated that the accused also stopped food and clothes to her. They threatened to kill her in case demand is not fulfilled. He has also stated on oath that last time when her husband Ramjiwan came to take her with him to her matrimonial house, she was not willing to go as she had apprehension that they would kill her. Thereafter, he received information from one Shri Shahnoor that respondent-accused killed her. When the complainant reached her house, the respondent-accused were not present on the scene of occurrence and door of their house was also closed. Then with the help of villagers the complainant entered the house and found his daughter hanging from ceiling. There upon he dictated the complaint to Shri Ram Chander and went to police station Hargaon to lodge first information report.
4. PW-2 Virendra Kumar, brother of the deceased, has also endorsed the statement of PW-1 that the deceased got married to accused Ramjiwan two years before the incident, that respondent-accused were demanding double bed and cash for purchase of motorcycle. He has also stated that 7-8 days before the occurrence, when her husband Ramjiwan came to take her with him to her matrimonial house, She was not willing to go, but he and family members persuaded her to go to her matrimonial home, thereafter he received information about her death. He has also gone to the house of accused persons, but the respondent-accused were not present there and the room was closed from outside.
5. PW-3 Dr. S.P. Ojha has proved Exhibit Ka-2. According to him cause of death was hanging. She had died on 15.10.2005 between 8 to 12 a.m due to asphyxia.
6. PW-4 is Constable 162 Shri Jyoti Narain Tiwari. He has proved Chik F.I.R. (Exhibit Ka-3) and corresponding entries on General Diary (Exhibit Ka-4).
7. PW-5 Constable 272 CP Dipty Singh is witness of inquest report.
8. PW-6 Shri Satish Kumar Verma, Naib Tehsildar, who has prepared inquest report (Exhibit Ka-5). He has also proved letter to Chief Medical Officer (Exhibit Ka-6), Specimen Seal (Exhibit Ka-7), Photo of dead body (Exhibit Ka-8), Challan of dead body (Ehibit Ka-9) and letter of R.I. Exhibit Ka-10.
9. PW-7 Rahul Kumar, Circle Officer and PW-8 Ram Charan. Circle Officer are investigating officers, who after recording statement of the witnesses under Section 161 Cr.P.C. prepared charge-sheet against respondent-accused, which is Exhibit Ka-11.
10. Statement of accused were recorded under Section 313 Cr.P.C. Wherein respondent-accused denied allegations made by the prosecution and has stated that his relations with the deceased was always sweet and cordial. On request of the deceased itself he had taken her to her parental home 6-7 days before the date of occurrence where she intended to go back to her matrimonial home with accused Ramjiwan, turning down the request of her father to stay back till 'Karwachauth'. She has told her father that someone from her parental home must come to her matrimonial home to take her to her parental house on 'Karwachauth' then only she would come with 'Karwa'. It is also stated in the statement of Ramjiwan recorded under Section 313 Cr.P.C. that her father has told her if she did not want to stay back then she should leave parental house and should not show her face again. The deceased, therefore, was very much perturbed over this episode and committed suicide by hanging herself. It is also stated in the statement that it was upon his information that the complainant and his family members came to house of accused persons where they demanded Rs.15,000/- to enter into compromise. A compromise was also written, but on inability of respondent-accused to pay Rs.15,000/- this F.I.R. was lodged by the complainant.
11. In defence, DW-1 Bal Govind, DW-2 Gaffar Ali alias Pappu and DW-3 Roj Ali have been examined from respondent-accused side.
12. On appreciation of evidence adduced by the prosecution as well as the respondent-accused, the trial Court found the charges not proved, holding, inter-alia, that prosecution has failed to prove:-
a- demand of double bed and cash in dowry;
13. Challenging the judgment and order of acquittal the learned Additional Government Advocate Smt Smiti Sahay, appearing on behalf of the State, has argued that the trial Court has failed to appreciate the evidence available on record. There is sufficient evidence on record to hold respondent-accused guilty of the charges. It has also been argued that an appellate Court, hearing appeal against acquittal, has full power to review, re-appreciate and reconsider the evidence available on record. The learned trial Court has wrongly held that evidence to prove the demand of dowry or cruelty in connection with dowry soon before her death available on record is insufficient.
14. Per contra, learned counsel appearing for the respondent-accused has argued that if the conclusion reached by the trial Court is also possible on the basis of evidence available on record, then the same cannot be categorized as unreasonable or perverse to justify interference by the appellate Court. The trial Court has rightly reached the conclusion that the evidence to prove demand of dowry and cruelty in connection with dowry soon before her death is absolutely lacking.
15. Before examining the spectrum of the prosecution case, we are required to deal with argument of learned counsel for the respondents-accused regarding the scope and ambit of an appeal against acquittal.
Appeal against acquittal
1. It is settled principle of criminal jurisprudence that every person having been presumed to be innocent unless he is proved to be guilty by a competent Court of law. After acquittal by the trial Court this presumption of innocence is further strengthened and reaffirmed. Thus, an accused enjoys double presumption in criminal jurisprudence after acquittal by a competent court of Law as there is double presumption in favour of accused. It has been argument of respondents-accused that judgment of acquittal can be interfered in appeal only if the judgment is either perverse or not supported by reasons. This Court can not reverse the judgment of the Trial Court as the view taken by the Trial Court was plausible view based on the evidence on record, hence the finding of the Trial Court can not be overturned.
2. In State of U.P. Vs. Ram Sajeevan and others (2010) 1, SCC 529, Hon'ble Apex Court is of the opinion that ordinarily a Court would be slow in interfering in the order of acquittal. There is plethora of cases on the power of appellate Court to interfere in judgment of acquittal, however, broader principles on the point was laid down by Hon'ble Apex Court in Chandrappa and others v. State of Karnakata 2007 (4) SCC 415 in which having considered almost all leading decisions on the point, following principles were culled out:
"(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 given by us)
16. Similarly, in the case of Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi), (2010) 6 SCC, Page 1, Hon'ble Apex Court taking similar view, has laid down following guidelines:-
"(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
(vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed."
17. Thus, if the judgment of trial Court is found to be erroneous and against the settled principle of law then appellate Court can interfere in it. Keeping in view the above broad principles laid down by Hon'ble Apex Court, this Court is expected to examine the impugned judgment with reference to the evidence adduced by the prosecution and defence.
Case set up by the prosecution
18. As per prosecution case, the deceased was married to respondent-accused Ramjiwan two years before her death. After her marriage, her husband, father-in-law and mother-in-law demanded double bed and some cash to purchase motorcycle. When this demand was not fulfilled, they started harassing her and on 15th October, 2005 the informant, father of the deceased, received information that she was killed and hanged with ceiling.
19. In our society, dowry system is a big menace. In order to curb this social menace, Section 304-B Indian Penal Code was enacted. Section 304-B Indian Penal Code and Section 113-B Indian Evidence Act read as under:-
304B Indian Penal Code:
"(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."
113B Indian Evidence Act:
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)."
20. The ingredients of the offence under Section 304B Indian Penal Code may be stated as under:-
"a. death of a woman must have occurred within seven years of her marriage;
b. such death must have been caused by any burn or bodily injury or her death must have occurred otherwise than under normal circumstances;
c. soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and d. such cruelty or harassment must be in connection with the demand for dowry.
Death within seven years of marriage
21. Now coming to the facts of the present case, it is not disputed that the deceased was married to accused Ramjiwan before two years of her death. F.I.R. (Exhibit Ka-1) also states that two years before her death she was married to Ramjiwan. Accused Ramjiwan has admitted this fact in his statement under section 313 Cr PC. It is also not disputed that her death has occurred otherwise than under normal circumstances. Now questions, which remain to be seen are whether there was any demand of dowry; and whether she was subjected to cruelty or harassment for dowry or in connection with any demand of dowry.
Demand of Dowry
22. According to prosecution case, respondents-accused started demanding double bed and cash for purchase of motorcycle in dowry, after her marriage with respondent-accused Ramjiwan. Prosecution has examined informant Sunder Lal, who is father of the deceased and PW-2 Virendra Kumar, who is brother of the deceased.
23. Though PW-1 Sunder Lal has stated in his examination-in-chief about demand of dowry, but in his cross-examination he has admitted that the respondents-accused never demanded any dowry from him when he visited their house. He has also admitted that at the time of marriage also, there was no demand of dowry. The statement of PW-2 Virendra Kumar is in contradiction to PW-1. PW-2 has stated in his examination-in-chief itself that when his father Sunder Lal came to know about demand of dowry, he went to matrimonial house of the deceased and inquired about the demand. Respondents-accused again demanded double bed and cash to purchase motorcycle from his father Sunder Lal. His father requested many times, but the respondents-accused did not pay any heed, then his father came back. PW-1 has stated that he complained it to Shri Bal Govind, who was mediator in marriage. But Shri Bal Govind has not come in the witness box to substantiate the case of prosecution. He has been produced by respondents-accused in their defence wherein he has denied this fact that respondents-accused ever demanded any dowry or the informant ever complained him in respect of demand of dowry.
24. It has been argued by the learned counsel for the respondents that the allegations made in the F.I.R. are also very general in nature. No amount of cash has been disclosed, which was demanded by the respondents-accused in dowry. He has cited Criminal Appeal No. 2321 of 2009 Rajendra Singh Vs. State of U.P. where Hon'ble Apex Court has held that any demand for money on account of some financial exigency or for purchasing manure cannot be termed as a demand of dowry. Thus, keeping in view the general and contradictory nature of demand, contradictions in statement of witnesses on the point of demand and non-production of any independent witness though the mediator could have been produced by the prosecution, it is difficult to hold that the respondents-accused demanded double bed and cash to purchase motorcycle in dowry.
Witnesses produced by the prosecution and defence stand on the same footing.
25. The learned Additional Government Advocate has argued that the trial Court has wrongly drawn adverse inference against the prosecution for not producing material witness Sri Bal Govind and relying upon the testimony of Shri Bal Govind DW-1 who has been examined as DW-1 on behalf of the respondents-accused. Appellant-State has argued that Bal Govind has been won over by the accused. Hence his statement can not be given same weight as that to prosecution witness. The trial Court has expressed the view that the testimony of DW-1 Bal Govind cannot be discarded only because he has been produced by the respondents-accused. In this regard Hon'bleHigh Court of Gauhati in Alok Deb Roy and others Vs. State of Assam reported in 2003 (3) GLJ 592, has observed:-
"Evidence of defence witnesses has to be treated at par with that of prosecution witnesses. Court should not proceed in premises that it is a tainted one. Standard of proof prescribed for prosecution is not applicable in assessing defence evidence. If testimony of defence witness does not appear to fit in with facts and circumstances of case, the same has to be rejected."
26. The above view of Gauhati High Court finds approval of Apex Court in Munshi Prasad and others Vs. State of Bihar, (2002) 1 SCC 351, which can be extracted as below:-
"The evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutor's witnesses."
Soon before her death
27. The learned Additional Government Advocate Ms. Smiti Sahay has argued vehemently that soon before her death the deceased was subjected to harassment in connection with demand of dowry. M. Narayan Vs. State of Karnataka (2015) 6 SCC 465 is relied on by the Learned Additional Government Advocate in which explaining the word "soon before" Hon'ble Apex Court has observed:
"33. Qua the words "soon before" appearing in Section 113B of the Evidence Act, 1872 and Section 304B IPC, it is no longer res integra that the same is laden with the notion of proximity test, but not synonymous with the term "immediately before". It has been inter alia stated also in Surinder Singh v. State of Haryana that though the applicability of this expression would obviously depend on the facts and circumstances of each case, it ought to mean that the time interval cannot be stretched to any period. This Court in Kans Raj v. State of Punjab, while dwelling upon the import of the words "soon before death" observed that there ought to be a proximate and live link between the impact of cruelty based on dowry demand and the consequential death. That these words, however, should receive a fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304B was highlighted by this Court in Sher Singh v. State of Haryana. In Dinesh v. State of Haryana, it was underscored that the expression "soon before" cannot be lodged in a straitjacket formula so as to fix any time for its relevance and applicability."
28. Thus, the Hon'ble Apex Court has distinguished word "soon before" and "immediately before" and proximity test has been held to be applied in such cases.
29. The learned Additional Government Advocate has pointed out towards some contusions below both the knees of deceased appearing in inquest report (Exhibit Ka-5) and has argued that it is sufficient to indicate that soon before her death the deceased was subjected to harassment.
30. The argument of learned Additional Government Advocate is not supported by postmortem report and statement of doctor, who conducted the postmortem examination as except one ligature mark no external injury has been found at the postmortem.
Inquest Report
31. Inquest report is not a piece of substantive evidence and it has been a constant view of Hon'ble Apex Court that it can only be utilized for contradicting witnesses to inquest examined during trial. The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstance he was assaulted is matter not falling within the ambit and scope of the provisions of Section 174 Cr.P.C. The purpose of preparing the inquest report is only for making a note in regard to identification marks of the deceased. In Pedda Narayana and others Vs. State of Andhra Pradesh AIR 1975 Supreme Court, Page 1252, discussing the provisions contained in Section 174 Cr.P.C. the Hon'ble Apex Court has observed:-
"A perusal of this provision would clearly show that the object or the proceedings under s. 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under s. 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows: "The learned Sessions Judge had also stated that the details regarding the weapons armed by each of the accused and which accused had attacked on which part of the body of the deceased are not found in the inquest report and from this he sought to draw the inference that the statements of the witness now, found recorded under section 161 Cr. P.C. could not have been the statements then read over to the panchayatdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column 11 (a) shows that A1 to A3, A4 and A5 with 3 strangers came in the jeep driven by A4, got down the jeep, stabbed the deceased with daggers and knives, pushed P.W. 1, lifted the deceased, put him in the jeep, and drove' away the jeep and death was the result of the injuries inflicted. The object of holding any inquest as can be seen from Section 174 Cr.P.C. is to find whether a person died a natural death, or a homicidal death or due to suicide. It was therefore not necessary to enter all the details of the overt-acts in the inquest report. From the mere fact that these details were not noted in the inquest report it cannot be concluded that the statements given by the witnesses and read over at the inquest did not contain those overt-acts and the statements now produced are those of the witnesses which were taken later."
32. From the above, it is clear that any entry made in inquest report prepared under Section 174 Cr.P.C. has no evidentiary value as such. The object of the proceeding is merely to ascertain whether a person has died in a suspicious circumstance or unnatural death, if so what is apparent cause of death and the inquest report may be utilized for contradicting the witnesses mentioned in inquest report. Any omission or discrepancy in the inquest is not fatal to the prosecution's case.
33. In the instant case, though in the inquest report contusions have been shown on the body of the deceased below her knees, but it does not find support from postmortem report. Even the doctor, who had conducted postmortem has not been confronted with inquest report on this point. The statement of doctor (PW-3) and postmortem report show only suicidal death of Smt. Asha Devi, the deceased. In these circumstances, inquest report in contradiction to the postmortem report is not sufficient to indicate that the deceased was subjected to any kind of cruelty soon before her death.
Harassment
34. Harassment or cruelty is a question of fact which is to be proved by examination of witnesses, but the prosecution had made no effort to examine any witness, who can prove harassment of deceased by accused persons, contradictory to it the statement of PW-1 Sunder Lal and PW-2 Virendra Kumar , father and brother of the deceased respectively, so that the deceased was happy in her matrimonial house. She used to come to her parental house by herself along with her husband and after staying there overnight returned to her home. PW-1 in his examination-in-chief himself has stated that the deceased came to him along with her husband and left with him in the next morning. No occasion has been quoted by PW-1 where her husband or her inlaws had refused to send her. PW-1 Sunder Lal has admitted in his statement that Bal Govind, who was mediator of marriage, has his Sasural in complainant's neighbourhood, but there is nothing on record to show that the complainant or the deceased have ever complained of her harassment to Bal Govind. In contradiction to it, DW-1 Bal Govind has denied any harassment of deceased by accused persons. He has also stated that the complainant never complained of any demand of dowry or harassment. In view of above it is evident that the prosecution has miserably failed to prove factum of harassment of the deceased by the accused persons.
35. In these circumstances, the trial Court has rightly held that there was neither any demand of dowry nor harassment by respondents-accused. Though marriage of deceased was within 7 years of her death and her death has also occurred in unnatural circumstances, but in absence of any demand of dowry or harassment for dowry, no presumption under Section 113B Indian Evidence Act can be drawn.
36. Thus, we do not find the judgment passed by the trial Court to be palpably wrong or erroneous, which may warrant interference by appellate Court.
37. The appeal has no merit and, hence, it is dismissed.
Order Date:-
MVS Chauhan/-27.07.2016