Allahabad High Court
Smt. Dropa Devi And Another vs State Of U.P. on 19 February, 2016
Bench: Shashi Kant Gupta, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 45 Case :- CRIMINAL APPEAL No. - 368 of 2011 Appellant :- Smt. Dropa Devi And Another Respondent :- State Of U.P. Counsel for Appellant :- Alok Ranjan Mishra,Brijesh Sahai,G.C.Pant,Sushil Dubey Counsel for Respondent :- Govt. Advocate,S.A. Imam Connected with Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 1192 of 2011 Appellant :- Brajesh Kumar Respondent :- State Of U.P. And Others Counsel for Appellant :- S.A. Imam Counsel for Respondent :- Govt. Advocate Hon'ble Shashi Kant Gupta,J.
Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.) Both the above mentioned criminal appeals, which arise out of the same judgment and order dated 19.1.2011 passed by Additional Sessions Judge/ F.T.C. No. 5, Gautam Budh Nagar, were connected and both are being decided by this common judgment.
Three Sessions Trials, S.T. No. 51 of 2007, State vs. Rajpal and Hariom, S.T. No. 482 of 2007, State Vs. Smt. Dropa and Rajiv and S.T. No. 507 of 2007, State Vs. Anil, arising out of the same occurrence registered as Case Crime No. 387 of 2006, under sections 498A, 304 B I.P.C. and 3/ 4 D. P. Act, Police Station Kasna, District Gautam Budh Nagar, were consolidated by the trial court at the stage of evidence. All the accused persons including the husband, father-in-law, mother-in-law and two brothers-in-law of the deceased Manju were tried together. The court below vide impugned judgment dated 19.1.2011 found mother-in-law of the deceased, Smt. Dropa Devi and Hari Om (husband of the deceased) guilty and convicted and sentenced them for ten years R.I. under section 304B I.P.C. Both were awarded two years R.I. and fine of Rs. 5000/- was imposed on each for their conviction under section 498A I.P.C. For the offence under section 4 of the D. P. Act both of them were sentenced to one year's R.I. and fine of Rs. 5000/- was also imposed on each of them. All the sentences were directed to run concurrently. In default of payment of fine imposed under section 498A I.P.C. both the convicts were to undergo four months' additional imprisonment and for the default in payment of fine under section 4 of the D.P. Act both of them were to undergo four months' additional imprisonment. Rest of the accused namely Rajpal (father-in-law of the deceased), Rajiv and Anil (brothers-in-law of the deceased) were acquitted by the trial court vide the impugned judgment.
Being aggrieved by their conviction Smt. Dropa and Hari Om have approached this court by means of Criminal Appeal No. 368 of 2011 and the complainant being dissatisfied by the acquittal of Rajpal (father-in-law), Rajiv and Anil (brothers-in-law) has moved this court by means of Criminal Appeal U/s 372 Cr.P.C. No. 1192 of 2011.
We have heard Sri Brijesh Sahai assisted by Sri Sarvesh Dubey and Ms. Katyayani, learned counsel for the appellants Smt. Dropa Devi and Hari Om, Sri S. A. Imam, learned counsel for the complainant and learned AGA Sri Rajeev Gupta assisted by Sri Rahul Asthana, representing the State.
The prosecution case in brief is that the complainant Brijesh Kumar (PW1) (brother of the deceased bride Manju) lodged an FIR at Police Station Kasna, District Gautam Budh Nagar, on 11.10.2006 against seven accused persons namely Hari Om (husband of the deceased), Smt. Dropa (mother-in-law of the deceased), Rajpal (father-in-law of the deceased), Rajiv and Anil (brothers-in-law), Kumari Rashmi and Kumari Anupma (sisters-in-law/ Nanads of the deceased) alleging therein that the marriage of his sister Manju was solemnized with Hari Om as per Hindu rites and rituals on 8.12.2004 with sufficient dowry. However, her husband and her in-laws named in the FIR being dissatisfied with the dowry given at the time of marriage started cruel treatment and harassment of Manju, demanding seven Bighas of land, Rs. One Lakh in cash and a Maruti 800 Car as additional dowry. After the marriage, when Manju became pregnant, the accused persons tried to get rid of her two and half months pregnancy by getting it aborted forcefully. When Manju informed about this to her father on telephone, he took her with him on 1.11.2005. After about five and a half months, on 14.4.2006 when Manju was pregnant with 8 months she was taken back by the accused persons on assurance that she would no more be harassed in future and stating that the birth of first child should take place in its parental home. However, after lapse of only two days, the accused persons got her eight months' pregnancy terminated, causing aspersions on her character stating that as she had returned to her matrimonial home after staying for nine and half months and had conceived the child from some other person while living in her parental home, they would not keep the child. After the abortion, the brother of Manju/ complainant visited her matrimonial home several times to bring her to her 'Maika' but she was not permitted to go with him. On 11.10.2006 some unknown person telephoned the complainant that Manju's husband and in-laws in a pre-planned manner had administered poison to her in the preceding night and they had admitted her to Kailash Hospital to show their bonafides giving it a colour of suicide. The parents of Manju were never informed about her death.
On receiving such information, Manju's brother (PW1) rushed to the hospital where he found Manju already dead in the I.C.U. The complainant immediately lodged the FIR against all the family members including even the two minor sisters-in-law. The written report lodged by the informant is available on record as Ex. Ka-1.
It is relevant to mention here that there is clear overwriting on the number 5-1/2 (five and half months) in the FIR and five and half months has been made 9-1/2 (nine and half months) by overwriting on it, which is visible from the naked eyes.
The case was investigated and charge sheet was submitted against all the aforesaid accused persons. Being triable by the Court of Sessions, the case was committed to the Sessions court where charges were framed against all the accused persons under sections 498A, 304B I.P.C. and 3/ 4 D.P. C. Act. During course of trial both the sisters-in-law of the deceased namely Km. Rashmi and Km. Anupma were declared juvenile and their files were sent to the Juvenile Justice Board.
In the trial court the prosecution in order to prove its case, produced 12 witnesses in all, a short description of which is as follows:-
PW1 is Brijesh Kumar, who is the first informant and brother of the deceased Manju. PW2 Balbir Singh is the father of the deceased, PW3 Dhiraj is the scribe of the FIR, he is also a witness of inquest, PW4, Yogesh is also the brother of the deceased, PW5, Sohan Lal is a co-villager of the deceased's parental village, PW6 Dr. Madan Lal, is the doctor, who has conducted autopsy of the deceased, PW7 is S.I. Rajbir Singh, who has prepared the inquest report, PW8 S.S. Yadav, is the first Investigating Officer, PW9 J. P. Gupta is the Executive Officer, who was posted as Tehsildar at Tehsil Sadar, District Gautam Budh Nagar, at the time of occurrence. He has proved the inquest report, PW10 Om Prakash, is the police personnel, who registered the FIR, prepared the check report and made entries in the G.D., PW11 Mani Ram Yadav is the second Investigating officer, and PW12 Smt. Bhudevi is the mother of the deceased.
The defence has examined three witnesses DW1 Raghubir Singh, is a co-villager of the accused persons. DW2 Vashishtha Kumar, is a co-villager of the deceased's parental village, and DW3 Dr. Kaushal Kumar Maurya, Head of the Department, Agro Processing and Rural Industries, Mahamaya Agriculture Engineering and Technology College, Akbarpur, District Ambedkar Nagar, has been produced by the defence in order to prove alibi of the accused- Rajiv.
Learned trial court, after a thorough discussion and appreciation of entire evidence available on record, held Smt. Dropa (mother-in-law of the deceased) and Hari Om (husband of the deceased) guilty for all the offences they were charged with. However, both the brothers-in-law of the deceased namely Rajiv and Anil and father-in-law of the deceased namely Rajpal were acquitted by the trial court.
The legality and correctness of that part of aforesaid impugned judgment, which relates to conviction of mother-in-law and husband i.e. Dropa Devi and Hari Om, has been challenged by means of Criminal Appeal No. 368 of 2011. We are first proceeding to take up this appeal.
Sri Brijesh Sahai, learned counsel for the appellants Dropa Devi and Hari Om, has assailed the reliability and truthfulness of prosecution case mainly on the following grounds:-
1. The FIR has been lodged naming seven accused persons but no specific role has been assigned to any one of them.
2. Learned trial court has recorded a clear finding that the FIR in this case is ante-timed.
3. It is an admitted fact that the FIR of this case was written within the premises of police station as per the direction and guidance of the police inspector.
4. There is no dispute that the husband's family members took the deceased to the hospital, which conduct itself is sufficient to prove their innocence.
5. It is an admitted fact that there was no demand of dowry either at the time of engagement or at the time of marriage.
6. It is also an admitted fact that the financial status of accused persons is better than the financial status of the complainant's family.
7. It was a case of suicide. Neither the husband nor in-laws of the deceased had committed any cruelty with the deceased in connection with dowry. Due to the reason that the deceased was better looking in comparison to her husband and the situation had worsen after the husband got a paralytic attack and became unemployed, and also due the reason that the deceased, who had returned to her matrimonial home with eight months pregnancy after staying at her maternal home for about nine and half months, Manju committed suicide by consuming poison because of ignominy and feeling of shame.
Sri Brijesh Sahai has vehemently argued that the statements all the material witnesses clearly reflect that the relations between the parties were cordial. This fact is also undisputedly evident that there was no demand of any dowry either at the time of engagement or at the time of marriage. While drawing our attention to the statement of PW1 Sri Brijesh Sahai has contended that PW1 has admitted that Manju had very cordial terms with her husband Hari Om, which is clearly evident from the following statement of PW1, who has himself stated that "eatw gfjvkse ls vR;f/kd I;kj djrh FkhA". Learned counsel has contended that under these circumstances there is no question of any harassment by the husband because no wife can love a husband, who use to harass her.
It is next argued that there is no such evidence on record, providing a link between suicide by the deceased and the demand of dowry and even in the FIR, the reason behind termination of pregnancy of Manju is given as follows:-
"fQj ;s yksx vk'ok'ku nsdj eatw dks vius ?kj ys vk;sA dkluk esa nks fnu ckn 8 eghus dk xHkZ eatw dk xHkZikr djk fn;k x;kA D;kssafd eatw 9 1@2 eghus vius firk ds ;gkW xkao esa jgdj vkbZ FkhA"
Sri Sahai has contended that the reason given in the FIR for medical termination of 8 months' pregnancy of Manju, is that she had stayed in her Maika for nine and half months. Therefore, the demand of dowry and the death of Manju are not connected with each other and there is absolutely no evidence of any cruelty or forceful medical termination of the pregnancy due to non-fulfillment of demand of dowry.
It is next contended by Sri Brijesh Sahai that even in the dowry death cases, the initial burden is always on the prosecution to prove its case against the accused persons, but the prosecution in this case has miserably failed to prove the presence of all the essential ingredients of section 304B I.P.C. He has vehemently argued that in absence of initial discharge of its burden by the prosecution, the presumption under section 113B of the Indian Evidence Act is not attracted.
In support of his contention, Sri Sahai has placed reliance on the judgment of Hon'ble Apex Court rendered in the case of Baljeet Singh and another Vs. State of Haryana reported in 2004(49) ACC 21 (SC) wherein the Apex Court has held that to attract applicability of Section 113Bof the Evidence Act, it must be proved by the prosecution that the deceased woman married within seven years of death as well as the fact that death was otherwise than in normal circumstances and soon before her death, the woman was subjected to cruelty or harassment.
Sri Sahai has contended that in the present case there is absolutely no evidence that any cruel treatment was meted out to Manju soon before her death. The postmortem report shows that the doctor has not found any external mark of injury or any abnormality in her internal organs. As the cause of death could not be ascertained her viscera was preserved. The submission of learned counsel is that only on the basis of the fact that Aluminum Phosphide has been found in her viscera report, it cannot be assumed that poison was administered to her by her husband or by her in-laws. As there is no evidence on record that under what circumstances or mental state, she consumed poison, the appellants are not liable to be convicted.
It has next been argued by Sri Sahai that the impugned judgment is totally silent on the evidence of two defence witnesses DW1 and DW2, both of whom have categorically stated that Manju's suicide was not a result of harassment for dowry demand but the reason was different. He has vehemently assailed the correctness of the impugned judgment by arguing that the court below should at least have recorded a finding about the credibility of statements of DW1 and DW2 whether reliable or unreliable but without discarding their credibility, the learned trial court has just ignored their testimonies and has arrived at a wrong conclusion while convicting the appellants Smt. Dropa Devi and Hari Om.
Advancing his arguments further learned counsel for the appellants has submitted that the conduct of the family members of the appellants clearly shows their bonafide and innocence as they have tried to save the life of Manju by getting her admitted to the hospital. However, the trial court has convicted Smt. Dropa, the mother-in-law of the deceased, only on the ground that she did not accompany the deceased to the hospital. The submission of Sri Sahai is that only on this ground that the mother-in-law Smt. Dropa Devi had not accompanied her daughter-in-law to the hospital, she should not have been convicted when the father-in-law having the same role, has been acquitted only on the ground that he took the deceased to the hospital.
On the aforesaid grounds learned counsel has prayed that the appeal filed by Smt. Dropa and Hari Om against their conviction be allowed and that part of the impugned judgment, which relates to the conviction and sentence of the aforesaid appellants be set aside.
Per contra Sri Rajiv Gupta, learned AGA, and Sri S. A. Imam, learned counsel appearing for the complainant Brijesh Kumar (the brother of the deceased and the appellant in connected appeal u/s 372 Cr.P.C.), have opposed the aforesaid arguments by contending that all the ingredients of section 304B I.P.C. have been successfully proved by the prosecution, therefore, the presumption under section 113B of the Evidence Act, would arise against all the accused persons and the burden of rebuttal would shift upon them. Learned counsel for the complainant, Sri Imam has submitted that the unfortunate death of Manju was certainly an unnatural death as the viscera report itself reveals that the poison Aluminum Phosphide was found during its examination, which is evident from the report of the F.S.L. Agra, available on record. There is also no dispute that the death was caused within seven years of the marriage. The marriage was solemnized on 8.12.2004 and Manju had died on 11.10.2006 i.e. within two years of the marriage. All the witnesses are through consistent and cogent in their testimonies that after the marriage all the accused persons treated Manju with cruelty, demanding additional dowry in the shape of seven bighas of land, Rs. One lakh in cash and a Maruti 800 Car. Sri Imam has submitted that the witnesses have categorically stated that the accused persons had earlier tried to forcibly terminate her two and half months pregnancy, therefore, on the telephonic information given by her, her parents took her to their home where she had to stay for five and half months under the compelling circumstances. Thereafter the husband and the father-in-law of the deceased visited to her parental place and tendered apology before the Panchayat giving assurance that they would not make any demand of dowry in future. On their assurance Manju was sent to her matrimonial home but just after two days her eight months' pregnancy was terminated and even after termination of her pregnancy she was not allowed to go to her parental place and ultimately within six months Manju met her end under suspicious circumstances in her matrimonial home. The submission of learned counsel for the complainant is that under these circumstances the presumption under section 113-B and 113-A of the Evidence Act would arise and the burden would shift on the appellants to prove their innocence but they have failed to do so. Therefore, the court below has rightly convicted them and there is no need to interfere in the impugned judgment.
Advancing his arguments further Sri S. A. Imam has contended that Manju has met her unnatural death inside four corners of her matrimonial home, therefore, under Section 106 of Evidence Act too, the burden is on the appellants to explain under what circumstances Manju met her tragic end. The submission of Sri Imam is that even assuming that it was a case of suicide, it will not make any difference because suicide is also an unnatural death and suicidal cases are also covered under section 304B of I.P.C. The defence has failed to discharge the onus shifted on it and to rebut the presumption by any cogent evidence as to what was the immediate cause that led Manju to take such extreme step of consuming poison. Sri Imam has vehemently contended that the documents regarding admission of the deceased in the hospital, the treatments provided to her, the death certificate issued from the hospital etc. should have been filed by the defence but this was never done in the present case. Therefore, merely on the basis of the fact that Manju was hospitalized by the accused persons, it cannot be presumed that they are innocent.
While drawing our attention to the statement of the accused-appellants recorded under section 313 Cr.P.C. Sri Imam has vehemently assailed the story of the defence stated therein that Manju was staying at her parental place since nine and half months and in the meantime she conceived a child with some other person, for this reason, out of shame she committed suicide. Sri Imam has contended that this story is ridiculous because had it been true, the deceased had several occasions while residing in her Maika to get her pregnancy terminated. In fact Manju never stayed in her Maika for nine and half months. She had stayed there only for five and half months, which is clearly evident from the statements of witnesses, who have mentioned the specific dates when Manju was taken to her Maika and when she was taken back by her husband and in-laws to her matrimonial home.
Advancing his arguments further Sri Imam has submitted that in the FIR also five and half months was written by the scribe but the absurd story of living at her Maika for nine and half months was developed by the defence without any basis and that is why the accused himself, in connivance with the police, made manipulation in the FIR by writing nine over the number five, which manipulation is apparent even with the naked eyes.
While drawing our attention to page no. 11 of the impugned judgment, Sri Imam has contended that the learned trial court has rightly come to the conclusion that tampering and overwriting in the FIR has been made by the accused persons with a view to corroborate their defence story. He has further argued that eight months pregnancy of a woman is visible from the naked eyes and it cannot be concealed. Even assuming the defence story to be correct, it appears unnatural conduct on the part of the accused persons, that even though knowing that the deceased was pregnant with some other person, they tendered apology before Panchayat and took back the deceased to their place stating that the first child should be delivered at its parental home.
On the aforesaid grounds, it has been submitted by Sri Imam that Criminal Appeal No. 368 of 2011 filed by convicted appellants be dismissed.
In support of connected appeal filed under section 372 Cr.P.C. it has been submitted by Sri Imam that the role of father-in-law Rajpal does not differ from the role of the two accused persons, who have been convicted by learned trial court. Merely on the basis of his presence in the hospital at the time of death of Manju, it cannot be said that he is innocent. The submission of Sri Imam is that being the head of the family, he was under obligation to look after his daughter-in-law with care and affection specially when she was in a state of depression due to miscarriage of her eight months pregnancy, but he failed to do so. Learned counsel has vehemently argued that there is no distinction between the role of Dropa Devi, Hari Om and of Rajpal, hence he is also liable for severe punishment as prescribed under law. He has further prayed that the convicted appellants be punished more severly and their sentence be enhanced.
In support of his argument Sri Imam has placed reliance on the following judgments:-
1. (1998)3 SCC 309, Pawan Kumar and others Vs. State of Haryana,
2. 2014 AIR SCW 4411, Davinder Singh Vs. State of Punjab,
3. 2014 IR SCW 3400, Dinesh Vs. State of Haryana.
Sri Brijesh Sahai has contested Appeal No. 1192 of 2011 under section 372 Cr.P.C. almost on the same grounds taken by him in Criminal Appeal by him filed against conviction of Dropa Devi and Hari Om and there is no need to repeat the same. Laying stress on the arguments advanced by him earlier, he has submitted that the learned trial court has rightly acquitted the father-in-law Rajpal and brother-in-law Rajeev (respondent nos. 2 and 3).
Sri Sahai has also questioned the maintainability and correctness of prayer made in aforesaid Appeal U/s 372 Cr.P.C. on the ground that the victim under section 372 Cr.P.C. has no right to appeal for enhancement of sentence in view of the clear legal position. He has drawn our attention to Section 372 Cr.P.C. which reads as under:
"372. No appeal to lie unless otherwise provided.-
No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]"
A perusal of the aforesaid provision clearly shows that though the victim has a right to prefer appeal against inadequacy of compensation, he has no right to appeal against inadequacy of sentence.
In view of the above legal position, the prayer made by complainant Brijesh Kumar for enhancement of sentence appears wholly misconceived and is rejected. The points for determination, which arise in both these appeals are as under:-
I. Whether the instant case is one of dowry death punishable under section 304-B of I.P.C. and whether all the essential ingredients of the offence u/s 304-B I.P.C. are present in this case?
II. Whether the presumption under section 113-B of the Evidence Act arises in this case so as to shift the burden on the accused persons to prove their innocence?
III. Whether the trial court has wrongly acquitted Rajpal (father-in-law) and Rajeev (brother-in-law) or wrongly convicted Dropa Devi (Mother-in-law) having the same roles except that Rajpal had taken the deceased Manju to the Hospital?
IV. Whether the presumption under section 113-A of the Evidence Act arises in this case so as to shift the burden on the appellants to prove that they have not abetted the suicide?
V. Whether the judgment passed by the trial court suffers from any infirmity, illegality or perversity?
Point No. I- Whether the instant case is of dowry death punishable under section 304-B of I.P.C.?
Point No. 2- Whether the presumption under section 113-B of the Evidence Act arises in this case so as to shift the burden on the accused persons to prove their innocence?
Point No. 3. Whether the trial court has wrongly acquitted Rajpal (father-in-law) and Rajeev (brother-in-law) or wrongly convicted Dropa Devi (Mother-in-law) having the same roles except that Rajpal had taken the deceased Manju to the Hospital?
As all these points are interconnected, we are taking them together for discussion Section 304-B of I.P.C. defines the dowry death. In the landmark case of Smt. Shanti and another Vs. State of Haryana (1991)1 SCC 371, which is seen referred to in many of the subsequent decisions, the Hon'ble Apex Court has analysed section 304-B of I.P.C. as under:-
(I). The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(II).Such death should have occurred within seven years of her marriage;
(III).She must have been subjected to cruelty or harassment by her husband or any relative of her husband, soon before her death.
(IV). Such cruelty or harassment should be for or in connection with demand for dowry.
It is also well settled that despite the deeming provisions of section 304-B of I.P.C., sections 113-A and 113-B of the Indian Evidence Act, the initial burden is always on the prosecution to establish the existence of all the aforesaid ingredients by some cogent and reliable evidence. However, the initial burden of the prosecution is not so heavy to discharge as in cases related to other offences.
In a recent case V. K. Mishra Vs. State of Uttrakhand (2015)9 SCC 588, the Apex has analysed the aforesaid legal position as under:-
"Use of word "shown" instead of "proved" in section 304-B I.P.C. indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, "shown" will have to be read up to mean "proved" but only to the extent of preponderance of probability.
Thereafter the word "deemed" used in that section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt.
Now testing the facts of the instant case on the touchstone of aforesaid legal position it is to be examined whether all the aforesaid essential ingredients of 304-B I.P.C. are present in the instant case or not.
So far as the first essential ingredient of section 304-B I.P.C. is concerned there is no doubt that Manju has died an unnatural death. Her postmortem report Ex. Ka-2 clearly shows that she was aged only 22 years at the time of her death and as the cause of her death could not be ascertained by the doctors, her viscera was preserved and sent for chemical examination to F.S.L., Agra. In the report received from the Forensic Laboratory, Agra, Aluminum Phosphide was found in her viscera. Therefore, there is no doubt that the first essential ingredient of section 304-B I.P.C. is present in this case.
There is no dispute regarding the existence of second essential ingredients of section 304-B I.P.C. The death of Manju has taken place within seven years of her marriage. All the prosecution witnesses of fact are throughout cogent and consistent with regard to the date of marriage of Manju with Hari Om, which is 8.12.2004. The defence has not cross-examined the witnesses on this point and has not disputed the date of marriage. More so, the accused persons, in their statements under section 313 Cr.P.C. have admitted that the marriage of Manju was performed with Hari Om on 8.12.2004. Thus the second ingredient of dowry death is also present in this case.
Now the question is whether the third ingredient of section 304-B I.P.C. relating to cruelty and harassment by husband and in-laws in connection with dowry demand and harassment of Manju soo before her death is present in this casse of not.
A careful scrutiny of evidence available on record shows that although all the prosecution witnesses have repeated the same facts that there was consistent demand of seven bighas of land, Rs. One lakh in case and a Maruti 800 Car as additional dowry, however on an over all assessment of their depositions it appears that they are not stating the true facts. As an example the following statement of PW1may be quoted here:-
** tc esjh cgu eatw s ekjus dh dksf'k'k dj pqds gSA tykdj o tgj nsdjA rFkk /kedh nsrs gS fd vxj ngst dh ekax iwjh uk dh xbZ rks ,d fnu rsjk dRy dj fn;k tk;sxkA vkSj eq>s 'kkjhfjd o ekufld ;kruk;sa jkst nsrs gS rFkk eq>s gj rjg ls izrkfM+r fd;k tkrk gS ** The aforesaid statement of PW1/ informant shows that Manju had informed him and his family members that her husband and in-laws, on two previous occasions also, had attempted to kill her by setting her ablaze and by poisoning. She had also informed that her in-laws were threatening her with dire consequences if their demands were not fulfilled but no action was taken by PW1 or any one of his family members, even no complaint was made to any authority. The statement of PW1 shows that Manju had informed earlier on telephone and later on, by direct conversation when PW1 and his father had visited her matrimonial home that her in-laws were forcibly trying to abort her pregnancy for non-fulfillment of dowry demand but when her eight month's pregnancy was allegedly terminated by her husband and in-laws, even then no complaint was made to any one either by the informant or his father, which is evident from the statement of father of Manju, Balbir Singh, PW2, reproduced below:-
** tc eSa dkluk eatw ds ikl xHkZikr ds ckn x;k Fkk esjh eatw ls ckr phr gqbZ FkhA rks eq>s esjh iRuh }kjk irk pyk rks csVh us eq>s crk;k Fkk fd eq>s irk ugh gS fd fdl vLirky esa esjk xHkZikr djk;k FkkA eq>s csVh dk xHkZikr djkuk cqjk yxkA eSus blds ckn blds fo"k; es dksbZ pkjktksbZ o dk;Zokgh ugha dh FkhA** In this regard PW1 Brijesh Kumar is also relevant, which is as under:-
**eatw ds xkao ls vkus ds 4&5 fnu ckn gesa mlds xHkZikr dh irk pyh Fkh eSa Loa; x;k FkkA ogha eq>s eatw us crk;k FkkA eSus bl xHkZikr ds laca/k esa fdlh vf/kdkjh dks dksbZ f'kdk;r ugh dh FkhA eSus eatw ls tc ;g iwNk fd xHkZikr dgka djk;k Fkk rks mlus dgk fd mls LFkku dh tkudkjh ugh gSA eatw dh dksbZ MkDVjh xHkZikr ds ckn geus ugh djk;hA 'kknh ds ckn ls vkSj eatw ds ejus rd ngst ekax dks ysdj dgha dksbZ f'kdk;r ugh djk;hA** Moreover, if from the stage of two and half months' pregnancy, there was constant threat by the in-laws and the husband to get the pregnancy aborted and Manju was taken to her parental home to save her pregnancy, when it was 2½ months old, why the complainant sent her to her matrimonial home and why he did not take any action or not even complained to anyone when just after two days of reaching to her matrimonial home, her eight and half months' pregnancy was terminated by her husband and in-laws?
PW1 during his cross-examination has admitted the fact that after five or six days of the termination of the pregnancy his parents asked him to go to Manju's matrimonial home and to take her back. He went to Manju's matrimonial home where Manju informed him that her in-law and her husband had forcefully terminated her pregnancy. The evidence available on record shows that Manju was taken back to her matrimonial home on 14.4.2006. It means that near about 19/20.4.2006 the informant might have visited her matrimonial home. Manju has died on 11.10.2006 but during this long gap of about six months and even though knowing the fact that the husband and in-laws have committed cruelty towards Manju by terminating her pregnancy, neither any FIR was lodged nor any complaint was made. The story of prosecution that in-laws of Manju were trying to forcibly abort her pregnancy in connection with dowry demand does not inspire confidence also due to the reason that neither in the FIR there is any such allegation in the statement of witnesses recorded u/s 161 Cr.P.C. in preponderance of probability. The following statement of PW2 is reproduced here as under:
blds pkj ikWp fnu ckn czts'k ls vius csVs ls Qksu ij dgk fd eatw dks jkth [kq'kh ys vkA rks esjs csVs czts'k us Qksu ij [kcj nh eatw dks gekjs ?kj ls ys tkus ds nks fnu ckn gh mldk xHkZikr mlds llqjky okyksa us djk fn;k gSA blds ckn eSa viuh iRuh o nksuksa csVksa czts'k o ;ksxs'k dks lkFk ysdj eatw dh llqjky dkluk x;kA rks eSaus bu yksxksa ls dgk fd vki us ,slk djds xyr fd;k gS rFkk eSaus bu yksxksa ls viuh csVh eatw dks ?kj ys tkus ds fy, dgk rks bu yksxksa us dgk fd eatw tPpk gS vkSj esjs lkFk ughsa HksthA Normally the word "tPpk" is used to denote a mother, who has just delivered a child. A child of 8 months gets fully developed in mother's womb and it can only be delivered either normally or by operation. Eighth month of pregnancy is the most risky period when the 'would be' mother is advised to take complete rest. However, in the circumstances of this case Manju had to travel during this period. In preponderance of probabilities it appears that due to over strain of travelling from her parental home to her matrimonial home, Manju would have given birth to a still born child and as her husband had become paralytic, she could not conceive another child. Under such depressed state of mind she ended her life by consuming Sulphas tablets easily available to her for the reason that her father-in-law was an employee in Food Corporation of India.
It appears unnatural that a financially sound family would try to terminate the much awaited first pregnancy of their only daughter-in-law. The following statement of PW2 (the father of the deceased) is also relevant:-
**gfjvkse vius ifjokj esa lcls cM+k yM+dk gSA vkSj ;s rhu HkkbZ gS ckdh nks tks NksVs gSa mudh 'kknh ugh gqbZA eatw ds isV esa tks cPpk Fkk og igyk gh cPpk FkkA** PW1, during his cross-examination, has admitted that there was no demand of dowry at the time of settlement of marriage, which was settled with the help of his Phupha "Dhanni" after making necessary enquiry about the financial status and business of the appellants' family. After 15 or 16 days of the settlement of marriage, engagement took place and at the time of engagement also no such demand was made.
PW1 has admitted that financial status of the family of the appellants is more sound than that of his family. He has stated that he has three brothers and three sisters, his two borhers are studying and he and one of his brothers are jointly earning Rs. 10-15 thousand per month by private job. He has further stated that there is no landed property in the name of his father. There is 18 bighas of ancestral land in the name of his mother, out of which 12 bighas is leased land. He has also admitted that appellants had purchased 16 Bighas of land in his village. All these facts show that the family of victim was financially weaker than that of appellants. PW1 has stated that after one year of the marriage the husband of Manju- Hari Om suffered paralysis attack. He (PW1) and his parents had gone to see Hari Om and found that the right side of the body of Hari Om had become twisted due to paralysis attack. Manju was such quite perturbed due to paralysis of Hari Om. PW1 has further stated that when he had visited to see Hari Om during his ailment, at that time also Hari Om's family members made demand of dowry from him.
The aforesaid statement of PW1 does not inspire confidence and appears wholly unreliable. A father, whose son is badly suffering from paralysis having his right side body twisted due to paralysis attack and who has become unemployed, will not make any dowry demand for such son, who is not even able to do his daily routine work without help of anyone.
PW2, the mother of Manju, has repeated the statements made earlier by her other family members. During cross-examination she has admitted that at 11.00 O'clock she got the news about the abortion of Manju but she did not make any complaint to any one. She has stated that she had met her daughter after 4 or 5 days of the abortion and had seen blood on her Salwar Suit but even then she did not ask from her husband or in-laws as to how it happened or at which hospital they got the pregnancy of Manju aborted.
It is also to be noted that the statements of witnesses do not find corroboration with their statements recorded earlier under section 161 Cr.P.C. by the I.O. For example PW1 has stated in his examination-in-chief that his sister Manju had informed his wife Rekha and his mother Bhudevi about the intention of Manju's husband and in-laws for forcible abortion of Manju's pregnancy but his this statement does not find corroboration with his statement recorded under section 161 Cr.P.C., which is evident from his following statement:-
**eSus 20-4-07 dks dksVZ esa viuh eq[; ijh{kk vafdr djk;h FkhA eSus fn0 20-4-07 dks U;k;ky; esa ;g c;ku fn;k Fkk **fd blh lwpuk esjh iRuh js[kk -------- xHkZikr djkuk pkgrs gSA** eSus iqfyl okyksa dks mijksDr fn0 20-4-07 dk c;ku iqfyl okyksa dks crk;k Fkk ;fn mUgksus ;g ckr ugh fy[kh gks rks eS bldh dksbZ otg ugh crk ldrkA eSus ,Q-vkbZ-vkj- esa mDr ckr ugh fy[kok;h FkhA** In the postmortem report no external or internal injury has been bound on the body of Manju. Hence it cannot be said that Manju was subjected to any physical assault soon before her death. The prosecution story that the husband and in-laws on earlier two occasions, had tried to commit the murder of Manju by giving her poison and by setting her on fire, has no legs to stand in absence of any cogent evidence as it is an admitted fact that no complaint was made by her parents or brother in this regard.
Now the only allegation, which remains against the appellants to show their cruel treatment and the harassment towards Manju is medical termination of pregnancy of Manju, allegedly caused by them.
It has been discussed earlier that it is impossible to medically terminate a pregnancy in its 8th month. Even assuming for the sake of arguments, the story of forceful medical termination of pregnancy to be true, it cannot be said that this alleged medical termination of pregnancy or miscarriage was the cause behind the death/ suicide of Manju for the reason that the alleged medical termination of pregnancy or the miscarriage has taken place six months prior to the death of Manju and due to this time gap of six months it cannot be said to have some proximate link with her death. Accordingly, it cannot be looked as a cruel treatment towards Manju "soon before her death".
The expression "soon before her death" has been interpreted by Hon'ble Apex Court in several judgements. In V. K. Mishra Vs. State of Uttarakhand, (2015)9 SCC 588 it has been held that "soon before is a relative term and it would depend upon circumstances of each case and no straight jacket formula can be laid down as to what would constitute a period "soon before her death". According to Hon'ble Apex Court there must be in existence, a proximate live link, between the cruelty in connection with the demand of dowry and the death of the woman. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
Looking to the facts of the instant case in light of the legal position referred to above, there does not appear any proximate live link between the only instance of alleged cruelty i.e. forceful termination of pregnancy, in connection with the dowry demand and the death of Manju and we are of the firm view that the said alleged incident of cruelty became remote and stale enough after six months so as to disturb the mental equilibrium of Manju, to such an extent that she committed suicide.
In view of the aforesaid discussion the allegation of demand of dowry and harassment of Manju in connection with demand of dowry soon before her death does not found established and the third and fourth essential ingredients of section 304-B I.P.C. as mentioned earlier are found missing in the present case. As a result, the presumption under section 113-B of Evidence will not be attracted and the burden will not shift on the accused persons to rebut this presumption.
A careful perusal of the impugned judgment shows that the learned trial court, after an elaborate discussion of the evidence on record, has recorded its clear findings regarding certain facts, which are mentioned below:-
I. The F.I.R. in this case is ante-timed and it has been lodged after the due deliberations and consultations under the directions of Daroga Ji at police station, hence it is doubtful.
II. There is no witness of the fact that Manju was forcibly thrown out from her matrimonial home. Although PW4 Yogesh has stated that at the time when Manju was driven out from her matrimonial home, several neighbourers including PW4 had reached there, but PW4 has failed to name any of such witnesses.
III. The testimony of PW5 Sohanpal cannot be relied upon because Sohanpal is neither a near relative nor he is a co-villager of the deceased. Hence, there was no occasion for Manju to express her feelings of grief before PW5. Moreover PW5 has only stated the facts, which PW2 Balvir had told to him. Therefore, the evidence of Sohanpal PW5 being hearsay, is inadmissible.
IV. The trial court has also disbelieved the story of medical termination of pregnancy of Manju. The relevant portion of the impugned judgment in this regard is quoted below:-
**iz'u ;g mBrk gS fd vkB eghus ds xHkZ dk xHkZikr dSls gks ldrk gS\ fpfdRlh; :i ls vkB ekg ds iwjh rjg ls fodflr xHkZ dk xHkZikr fdlh nok ds }kjk ugh djk;k tk ldrk D;ksafd ,slk djus ij e`rdk ds e`R;q rd gksus dh lEHkkouk gks ldrh gSA fnukad 14-04-06 ds nks fnu ckn e`rdk dk dfFkr :i ls xHkZikr djk;s tkus ds rhu&pkj fnu ds vUnj gh dfFkr :i ls vfHk;kstu lk{khx.k fczts'k] cyohj] ;ksxs'k vkSj Hkwnsoh e`rdk ls feys FksA buesa ls fdlh us ugha dgk gS fd og chekj Fkh ;k mlds isV ij dksbZ ca/kh gqbZ Fkh] cfYd ;g dgk fd og ckr phr djus dh fLFkfr esa FkhA**&&&&&&& **e`rdk ds 'kjhj ij ,Mokal izsxhusalh dh fLFkfr ds xHkZikr djk;s tkus dk dksbZ lk{; ugha feyk gS vkSj u gh vfHk;qDrx.k us ;g crk;k gS fd ;fn e`rdk xHkZorh Fkh rks mlds xHkZ dk D;k gqvkA ,slh fLFkfr esa Hkys gh xHkZikr vfHk;qDrx.k }kjk djk;s tkus dk dksbZ lk{; i=koyh ij u gks fQj Hkh e`rdk ds xHkZ ds ckjs esa tks jgL;kRed ifjfLFkfr mRiUu gqbZ gS mlls bl lEcU/k esa vfHk;qDrx.k }kjk dzwjrk cjrs tkus dk gh 'kd mRiUu gksrk gSA bl lEcU/k esa cpko i{k ds fo}ku vf/koDrk us ;g rdZ fn;k gS fd vkB eghus dh xHkZorh e`rdk dk tcjnLrh vfHk;qDrx.k }kjk xHkZikr djk;s tkus dk dksbZ iksftfVo lk{; i=koyh ij ugha gS vkSj bl ckjs esa dsoy 'kd ,oa vo/kkj.kk ds vk/kkj ij vfHk;qDrx.k dks bl dzwjrk ds fy, nks"kh ekuuk vijk/k fof/k ds fl)kUrksa ds izfrdwy gSA bl lEcU/k esa fuf'pr :i ls ;g Lohdkj djuk gksxk fd bl ekeys esa vfHk;qDrx.k }kjk e`rdk dk tcjnLrh xHkZikr djk;s tkus dk dksbZ fo/ks;kRed lk{; ugh gSA vr% e`rdk ds izfr dzwjrk cjrs tkus ds lEcU/k esa tcjnLrh xHkZikr djk;s tkus dh ?kVuk dks Li"V ,oa i;kZIr lkf{k;ksa ds vHkko esa lkfcr ugha ekuk tk ldrkA^^ The learned court below has also recorded a clear finding that there was no forceful or deceitful administration of poisonous substances to Manju by the husband or in-law and it was a case of suicide. The following lines of impugned judgment are relevant in this respect:-
^^ e`rdk ds lkFk vfHk;qDrx.k }kjk dzwjrk cjrs tkus ds lEcU/k esa vxyh ifjfLFkfr ;g crk;h x;h gS fd vfHk;qDrx.k }kjk tgj nsdj mls ekj fn;k x;k gSA bl ckjs esa cpko i{k ds fo}ku vf/koDrk us esjk /;ku iksLVekVZe fjiksVZ dh vksj vkd`"V fd;k gS ftlesa bl ckr dk mYys[k gS fd e`rdk ds 'kjhj ij dksbZ tkfgjk pksV ugha ik;h x;h mUgksaus bl ckr ij Hkh cy fn;k gS fd e`rdk dh e`R;q tgj ls gh gqbZ bl ckjs esa Hkh dksbZ Li"V mYys[k iksLVekVZe fjiksVZ esa ugh fd;k x;k gS mUgksaus bl ckr dk Hkh mYys[k fd;k gS fd Lo;a vfHk;kstu lkf{k;ksa us vius 'kiFki=ksa esa ftudks ofj"B iqfyl v/kh{kd xkSrecq)uxj ds le{k izLrqr fd;k tkuk bu lk{khx.k us Lohdkj fd;k gSA ;g ekuk gS fd e`rdk dks fnukad 11-10-06 dks thfor voLFkk esa dSyk'k vLirky esa vfHk;qDr }kjk HkrhZ djk;k x;k Fkk vkSj e`rdk dh e`R;q 11-30 cts fnu esa gksuk crk;k x;k gS blls Hkh lkfcr gksrk gS fd ;fn tgj nsdj e`rdk dks tku ls ekjuk crk;k x;k gS blls Hkh lkfcr gksrk gS fd ;fn tgj nsdj e`rdk dks tku ls ekjuk vfHk;qDrx.k dk mn~ns'; jgk gksrk rks mls thfor gkyr esa og vLirky esa HkrhZ ugha djkrs ,slh ifjfLFkfr;ksa esa esjh jk; esa vfHk;qDrx.k }kjk tgj nsdj e`rdk dh gR;k fd;s tkus dk vfHk;kstu dFku bl ekeys esa lkfcr ugha gksrk] cfYd ekeys dh ikfjfLFkfr;ksa esa tks lk{; vk;k gS mlls ;gh lkfcr gksrk gS fd e`rdk }kjk gh tgj [kkdj vkRegR;k dh x;h gSA^^ However, the learned court below despite the above observations, has convicted the two family members i.e. husband and mother-in-law and has believed the prosecution story of dowry demand and harassment of Manju only on the ground that there is similarity and consistency between the statements of all the prosecution witnesses.
Learned trial court has acquitted two brother-in-laws Rajeev and Anil on the ground that they were students and were not the direct beneficiaries of the alleged dowry. The learned trial court has also believed the "plea of alibi" taken by the appellant Rajeev and has relied on the evidence of Dw3 Dr. Kaushal Kumar, who has proved the presence of Rajeev in practical classes at workshop from 28.8.2006 to 11.10.2006 by producing his attendance register.
The second brother-in-law Anil has been acquitted by the court below on the ground that Anil being a young boy of 19 years cannot be said to be involved in the occurrence.
The trial court has also expressed its clear view that the complainant has implicated the entire family that to build pressure in this case.
The father-in-law Rajpal has been acquitted by the trial court on the basis of his conduct showing that he made sincere effort to save life of Manju by taking her to Kailash Hospital immediately and by informing the family members of Manju without any delay. The learned trial court has also observed that Rajpal had purchased land in village of Manju, which conduct clearly shows that he had an intention to build permanent cordial relations with the family of Manju.
However, mother-in-law Smt. Dropa Devi having the same role, has been convicted by learned trial court with the following observation:-
^^tgka rd vfHk;qDrk Jherh nzksik dk iz'u gS ;|&fi vfHk;kstu lk{; esa bl vfHk;qDrk ds ckjs esa fdlh fof'k"V Hkwfedk dk mYys[k ugha fd;k x;k gS] ysfdu bl rF; dks /;ku esa j[kuk gksxk fd ;g e`rdk dh lkl gS ftlds ikl e`rdk ds ifr ds vykok e`rdk ds lcls djhc jgus ds lcls vf/kd volj Fks vkSj vke rkSj ij Hkh cgqvksa dks rax o ijs'kku djus esa lkl dh egRoiw.kZ Hkwfedk gksrh gSA blds vykok viuh cgw ds vLirky esa HkrhZ gksus ij ;g vius ifr ds lkFk vLirky x;h bl ckr dk dksbZ izek.k ugh feyrk tcfd ,d efgyk gksus ds ukrs viuh cgw ds lkFk bldk vLirky esa tkuk LokHkkfod ,oa visf{kr FkkA ;fn mlds izfr mlds eu esa dksbZ lgkuqHkwfr jgh gksrh rks viuh cgw ds lkFk t:j vLirky esa x;h gksrhA viuh cgw ds lkFk u tkuk vkSj ckn esa Hkh ogka ekStwn u gksus ds Jherh nzksik ds vkpj.k ds dkj.k rFkk /kkjk 113 ch Hkkjrh; lk{; vf/kfu;e dh vo/kkj.kk ds lEcU/k esa mDr vo/kkj.kk dks [kf.Mr djus ds ckjs esa fdlh rjg dk dksbZ lk{; izLrqr u djus ds dkj.k vkSj Jherh nzksik dh funksZf"krk ds i{k esa vU; dksbZ ifjfLFkfr cpko i{k }kjk bafxr ugh djus ds dkj.k esjh jk; esa bl ekeys esa vfHk;qDrk Jherh nzksik ds fo:) /kkjk 113 ch Hkkjrh; lk{; vf/kfu;e ds vUrxZr ngst e`R;q dh LFkkfir vo/kkj.kk dks cpko i{k [kf.Mr ugha dj ik;k gSA vr% ngst e`R;q lEcU/kh vkjksi esa bl vfHk;qDrk dks nks"kh ekus tkus dk lansg ls ijs vk/kkj ekStwn gSA^^ The aforesaid finding recorded by the learned trial Judge appears to be based only on surmises and conjectures and reflects his biased state of mind towards mothers-in-laws as learned trial court has expressed that generally mother-in-laws use to harass their daughter-in-laws.
In the back drop of the aforesaid facts and circumstances of the instant case, where a general role has been assigned to all the accused persons, and when the learned trial court has believed the plea of alibi taken by accused Rajeev and has acquitted the father-in-law on the basis of his subsequent conduct, it was not proper for the learned trial court to convict the mother-in-law having the same role as that of the father-in-law with only difference that she did not accompany her daughter-in-law to the hospital. The learned trial court has convicted the mother-in-law by making a general observation that often mothers-in-law use to torture their daughters-in-law, which can never form the basis of conviction in every case relating to section 304-B or 498-A I.P.C.
On the basis of the aforesaid discussion, the findings recorded by the learned trial court in so far as the acquittal of the respondents Rajpal, Rajeev and Anil are concerned, deserve to be confirmed by us because we too are of the firm view that the prosecution in this case has failed to discharge its initial burden of establishing the existence of two essential ingredients of section 304B that there was any demand of dowry and that Manju was subjected to cruelty due to such demands by her in laws soon before her death. Therefore, the presumption under section 113B of the Evidence Act is not attracted in this case. For the aforesaid reasons the conviction of Smt. Dropa Devi and Hari Om under sections 498-A, 304-B of I.P.C. and 3/ 4 D. P. Act is unsustainable and liable to be set aside.
Point No. 4. Whether the presumption under section 113-A of the Evidence Act arises in this case so as to shift the burden on the appellants to prove that they have not abetted the suicide?
Now the question is whether the presumption under section 113-A of the Indian Evidence Act is attracted in the circumstances of case?
Section 113-A of the Indian Evidence Act, 1872 reads 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.
Explanation.--For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).
Section 498A of The Indian Penal Code reads as under:-
498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
A careful perusal of both the aforesaid provisions shows that "cruelty" for the purpose of presumption under section 113A of the Evidence Act is not limited to harassment of a woman in connection with demand of dowry but it may include any wilful conduct, which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. According to section 113A of the Evidence Act if any such cruelty has been caused by the husband or his relatives within the period of seven years from the date of the marriage resulting into suicide of a woman, the court 'may' presume that such suicide has been abetted by her husband or his relatives.
Manju has died under unnatural circumstances and "Aluminum Phosphoid" poison has been found in her viscera. The prosecution case is that she has been administered poison either forcefully or deceitfully by mixing it in her food..
Aluminum Phosphoid due to its extreme foul smell cannot be administered to any one deceitfully, by mixing it in food. There is no evidence that it was administered to Manju forcefully as no marks of injuries have been found on her body. Under these circumstances there is no doubt that Manju has committed suicide. Considering the fact that Manju has committed suicide in her matrimonial home within seven years of marriage and the husband has offered no explanation for the drastic step taken by her, on the other hand, by his statement under section 313 Cr.P.C. he has tried for her character assassination, which clearly shows that he had no love and respect for his wife, this court by invoking Section 113-A of Evidence Act may presume that the suicide was abetted by the appellants.
Now the question is whether apart from the husband Hari Om, any other persons is also liable for such abetment.
Section 107 in The Indian Penal Code
107. Abetment of a thing.--A person abets the doing of a thing, who--
(First) -- Instigates any person to do that thing; or (Secondly) --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) -- Intentionally aids, by any act or illegal omission, the doing of that thing.
Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. To hold the appellants Hari Om or Smt. Dropa Devi guilty under section 306 I.P.C. (abetment to commit suicide) it is necessary to see what evidence is available on record against them.
There is no specific evidence on record against the appellant Smt. Dropa Devi that she abetted Manju to commit suicide, therefore, she cannot be held guilty under section 306 I.P.C.
What happened between the husband and the wife within the confines of four walls of their bedroom, persuading Manju to take such extreme step, is known to husband and wife only. Out of the two, Manju is no more to tell the real story. Therefore, the husband Hari Om was under obligation to disclose the true facts during the investigation to the Investigating Officer and during trial to the court. It was only the husband- appellant Hari Om, who could have apprised the court as to what had happened in the night preceding the day when Manju committed suicide but he instead of disclosing the true facts during his statement recorded under section 313 Cr.P.C. tried to evade most of the questions put to him by simply stating "xyr gS " or "irk ugha ". Moreover he has levelled false allegations of adultery against his deceased wife.
Under these circumstances it will be presumed that something extremely unpleasant transpired between the husband and the wife, which compelled Manju to end her life.
Hari Om being the husband and the closest family member of the deceased must have had the knowledge of special circumstance and he was under an obligation to disclose what had transpired between him and Manju in the preceding night or immediately before the suicide of Manju but Hari Om has failed to discharge this burden, so as to rebut the presumption arisen against him under section 113-A of the Evidence Act.
Section 106 of the Indian Evidence Act requires that the burden of proving any fact, which is specially within the knowledge of any person, is upon that person.
Hon'ble Apex Court in State of Rajasthan Vs. Jaggu Ram, (2008)12 SCC 51 has held as under:-
"In our considered view, this was a fit case for invoking Section 106 of the Evidence Act, which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. ........ The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference."
In another case Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 the Apex Court considered the applicability of Section 106 of the Evidence Act and observed as follows:-
"If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944) AC 315)-- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh (2003) 11 SCC 271. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
In a recent case of State of Karnataka Vs. Suvarnamma, (2015)1 SCC 323 where charges were under Sections 304B and 498A of I.P.C. and Sections 3, 4 and 6 of Dowry Prohibition Act and the High Court set aside conviction of the accused persons, the Apex Court set aside the judgment of acquittal passed by the High Court and held that "when accused took false plea about facts exclusively known to him, such circumstance was vital additional circumstance against Accused. ... False plea of Accused that they had no knowledge of burn injuries having been caused to Deceased was additional circumstance against them."
In the case of Jagdish Vs. State of M.P. (2009)9 SCC 495 the Apex court has held that "where the accused murdered his wife, four minor sons and daughter and he and the deceased family members were the only occupants of the room, it was therefore incumbent on the accused to have tendered some explanation in order to avoid any suspicion as to his guilt. The story that a thief was present in the room introduced by his brother at the stage of trial was found concocted one, hence the conviction under section 302 I.P.C. was held proper and death sentence awarded was upheld."
In the case of Raj Kumar Prasad Tamarkar Vs. State of Bihar (2007) 10 SCC 403 the Apex Court held that "if some occurrence happens inside the residential portion of the accused, where he was also available, at or about the time of the incident, he is bound to offer his version as to how the occurrence had taken place. The only other person who can speak about the occurrence will be the deceased and now that she is dead, if at all, the accused alone can offer an explanation. Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is true that this section cannot be used, so as to shift the onus of proving the offence, from the prosecution to the accused. However, in the present, there is satisfactory evidence, which fastens or conclusively fixes the liability, for the death of Gandhimathi, on the inmate of the house, present therein at the relevant time. So, in the absence of any other explanation, the only possible inference is that the accused participated in the act. If he claims contrary, under Section 106 of the Evidence Act, the burden of proving that fact is upon him, since that is within his special knowledge."
Testing the facts of the present case on the touchstone of law as laid down in above cited cases, this Court is of the firm view that as the appellant Hari Om has failed to discharge the burden under section 106 of the Evidence Act not only by giving evasive answers but also by making an unsuccessful attempt of character assassination of his wife without any basis. Hence the presumption under section 113-A of the Evidence Act would arise and it will be presumed that he has abetted the suicide of Manju and he is liable to be punished under section 306 of I.P.C.
Hari Om being the husband of deceased had the responsibility of taking care of his wife and to provide her moral support during such crucial time when she was living under feeling of disappointment and grief due to her miscarriage, but he failed to do so. No woman would even think of committing suicide at her prime age of 22 years unless the circumstances have become such that to embrace death appears to be a better option than to live.
For the aforesaid reasons we are of the firm view that the appellant Hari Om having failed to rebut the presumption under section 113-A of the Evidence Act by proving his innocence, is liable to be held guilty and to be convicted under section 306 I.P.C.
Now the question is whether it is possible to convict the accused- appellant Hari Om under section 306 I.P.C. without the charge under the said section being framed against him? The record shows that the trial court has framed the charge against the accused appellants only under sections 304B, 498A I.P.C. and 3/ 4 D. P. Act only. Neither any alternative charge under section 302 I.P.C. nor any charge under section 306 I.P.C. has been framed against the accused persons.
In this regard sections 222(2) and 464(1) Cr.P.C., which are reproduced below, are relevant:-
Section 222(2) of the Criminal Procedure Code 222(2). When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
Section 464(1) of the Criminal Procedure Code provides as under:-
464. Effect of omission to frame, or absence of, or error in, charge
1. No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
In the case of Dalbir Singh Vs. State of U.P., (2004)5 SCC 334 the Apex Court, while relying on its earlier judgment rendered in Lekhjit Singh and another Vs. State of Punjab, 1994 Supp (1) SCC 173 has held as under:-
"The main question which requires consideration is whether in a given case is it possible to convict the accused under Section 306 IPC if a charge for the said offence has not been framed against him. In Lakhjit Singh & Anr. v. State of Punjab (supra) the accused were charged under Section 302 IPC and were convicted and sentenced for the said offence both by the trial Court and also by the High Court. This Court in appeal came to the conclusion that the charge under Section 302 IPC was not established. The Court then examined the question whether the accused could be convicted under Section 306 IPC and in that connection considered the effect of non- framing of charge for the said offence. It was held that having regard to the evidence adduced by the prosecution, the cross-examination of the witnesses as well as the answers given under Section 313 Cr.P.C. it was established that the accused had enough notice of the allegations which could form the basis for conviction under Section 306 IPC."
Point No. 5. Whether the judgment passed by the trial court suffers from any infirmity, illegality or perversity?
On the basis of the above discussion the impugned judgment appears to be perverse in some respect and is liable to be set aside.
Accordingly, Criminal Appeal No. 368 of 2011 deserves to be partly allowed. Due to lack of sufficient evidence the appellants are found not guilty under section 304B, 498A I.P.C. and 3/ 4 D. P. Act and both of them deserve acquittal from the aforesaid charges. But appellant Hari Om has been found guilty under section 306 of I.P.C. and he is liable to be punished under the aforesaid section.
So far as Criminal Appeal No. 1192 of 2011 under section 372 Cr.P.C. filed by complainant Brijesh Kumar against acquittal of father-in-law Rajpal and brother-in-law Rajeev is concerned, the well settled legal position is that in an appeal against acquittal, there are some inbuilt restrictions before the appellate court and the mere possibility of a different view is not enough to interfere with the acquittal. The Apex Court in a catena of judgments has laid down the law that unless the judgment of acquittal is based on no material or is perverse or the view taken by the court is wholly unreasonable or is not a plausible view or there is non-consideration of any evidence or there is palpable misreading of evidence, the appellate court will not be justified in interfering with the order of acquittal.
The Supreme Court has repeatedly held that an appellate court must bear in mind that in case of acquittal, there is a double presumption in favour of accused. Firstly, the presumption of innocence is available to such accused under the fundamental principles of criminal jurisprudence, secondly, that a lower court, upon due appreciation of all evidence has found him innocent. Merely because another view is possible, is no reason to interfere with the order of acquittal.
On a careful perusal of the judgment and record, it cannot be said that the view taken by the trial judge is perverse or unreasonable. Simply because another view might have been taken of the evidence provides no ground for interfering with the order of acquittal unless the view taken by the trial judge is not a possible view.
We do not find any good ground to interfere in the judgment of acquittal and Criminal Appeal U/s 372 Cr.P.C. No. 1192 of 2011 filed by the complainant against the acquittal of respondents Rajpal and Rajeev is hereby dismissed.
Accordingly, Criminal Appeal No. 368 of 2011 against the conviction is partly allowed and the conviction of the appellants Smt. Dropa Devi and Hari Om under sections 304B, 498A I.P.C. and 3/ 4 D.P. Act is hereby set aside and both the appellants are acquitted of the aforesaid charges.
The appellant Hari Om is found guilty under section 306 I.P.C. and is convicted under the aforesaid section.
Now the question is what punishment would be proper and justifiable to be awarded to the appellant Hari Om keeping in view the peculiar facts and circumstances of the case, particularly when there is no direct evidence against him that he abetted the commission of such suicide and he has been convicted under section 306 of I.P.C. with the aid of section 106 of the Evidence Act.
In view of this situation, it appears that the ends of the justice would meet if Hari Om is punished with five years imprisonment along with fine of Rs. Twenty five thousand, payable to the parents of the deceased Manju.
Accordingly, the appellant Hari Om is sentenced for five years R.I. and a fine of Rs. Twenty five thousand is imposed on him, which shall be paid to the parents of Manju. In case of default of payment of fine, the appellant Hari Om shall have to under go additional imprisonment for six months. The period of imprisonment of five years shall be adjusted in the period already undergone by the appellant Hari Om.
Both the appellants are on bail. The appellant Smt. Dropa Devi has been acquitted. Her bail bonds are cancelled and the sureties are discharged. The appellant Hari Om has been convicted. His bail bonds are also cancelled and the sureties are discharged. He be sent to jail for serving out the sentence.
Let a copy of this judgment along with lower court's record be sent to the concerned court below for compliance.
Order Date :- 19.02.2016 Pcl