Madhya Pradesh High Court
The State Of Madhya Pradesh vs Sonu on 6 March, 2019
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C.No.2045/2019
(State of M.P. Vs. Sonu & others)
Gwalior, Dated:-06.03.2019
Mr. F.A. Shah, learned Public Prosecutor for the
petitioner/State.
Acquittal of respondents from the charges under Sections 304-
B, 498-A, 34 IPC and Section 3/4 of Dowry Prohibition Act has led the prosecution file this application for leave to appeal.
The respondents who are the husband and parents in law of the deceased Arti were tried for causing murder of her on 08.12.2015 by setting her ablaze for not meeting out dowry demand for which she was harassed. The prosecution story was principally based on the dying declaration Ex.P-12 and the witnesses, Komal Singh (PW-1) father of the deceased, Uma (PW-2) mother of the deceased, Ranjeet (PW-3) brother of the deceased, Naib Tahsildar Gopal Singh Tomar PW-7 before whom the dying declaration was taken on 08.12.2015 at District Hosptial Bhind, Dr. Nikhil Agarwal (PW-10) who conducted autopsy and the FSL report is Ex.P-9.
As to the harassment allegedly meted out to the deceased, the trial Court found that the prosecution failed to discharge the burden.
From the evidence of Komal Singh (PW-1), Uma (PW-2) and Ranjeet (PW-3) the trial Court found that it could not be established. Since the marriage till her death they took any action against alleged harassment. No report to that effect is found to be lodged by these 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No.2045/2019 (State of M.P. Vs. Sonu & others) witnesses. The trial Court found that though an independent witness one Lakhan Pal, an acquaintance of the deceased's parents, who arranged the marriage, was found living near the matrimonial house of the deceased, but was not examined to establish that there was harassment to the deceased for the dowry.
Section 113B of Evidence Act stipulates:
"113B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation: For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)."
In Sher Singh alias Partapa Vs. State of Haryana [(2015) 3 SCC 724] it is held:
"16. As is already noted above, Section 113B of the Evidence Act and Section 304B IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word "deemed" in Section 304B to distinguish this provision from the others. In actuality, however, it is well-nigh impossible to give a sensible and legally acceptable meaning to these provisions, unless the word "shown" is used as synonymous to "prove"
and the word "presume" as freely interchangeable with the word "deemed". In the realm of civil and fiscal law, it is not difficult to import the ordinary 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No.2045/2019 (State of M.P. Vs. Sonu & others) meaning of the word "deem" to denote a set of circumstances which call to be construed contrary to what they actually are. In criminal legislation, however, it is unpalatable to adopt this approach by rote. We have the high authority of the Constitution Bench of this Court both in State of Travancore- Cochin v. Shanmugha Vilas Cashewnut Factory AIR 1953 SC 333 and State of Tamil Nadu v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the Court to ascertain the purpose behind the statutory fiction brought about by the use of the word "deemed" so as to give full effect to the legislation and carry it to its logical conclusion. We may add that it is generally posited that there are rebuttable as well as irrebuttable presumptions, the latter oftentimes assuming an artificiality as actuality by means of a deeming provision. It is abhorrent to criminal jurisprudence to adjudicate a person guilty of an offence even though he had neither intention to commit it nor active participation in its commission. It is after deep cogitation that we consider it imperative to construe the word "shown" in Section 304B IPC as to, in fact, connote "prove"'. In other words, it is for the prosecution to prove that a "dowry death" has occurred, namely,
(i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured,
(ii) within seven years of a marriage,
(iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband,
(iv) in connection with any demand for dowry and
(v) that the cruelty or harassment meted out to her continued to have a causal connection or a live link with the demand of dowry.
We are aware that the word "soon" finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No.2045/2019 (State of M.P. Vs. Sonu & others) necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 306 of the IPC. Once the presence of these concomitants is established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. It seems to us that what Parliament intended by using the word "deemed" was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt. This interpretation provides the accused a chance of proving their innocence. This is also the postulation of Section 101 of the Evidence Act. The purpose of Section 113B of the Evidence Act and Section 304B IPC, in our opinion, is to counter what is commonly encountered - the lack or the absence of evidence in the case of suicide or death of a woman within seven years of marriage. If the word "shown" has to be given its ordinary meaning then it would only require the prosecution to merely present its evidence in court, not necessarily through oral deposition, and thereupon make the accused lead detailed evidence to be followed by that of the prosecution. This procedure is unknown to common law systems, and beyond the contemplation of Cr.P.C.
17. The width and amplitude of a provision deeming the guilt of a person in a legal system founded on a Constitution needs to be briefly reflected on. The Constitution is the grund norm on which the legal framework has to be erected and its plinth cannot be weakened for fear of the entire structure falling to the ground. If the Constitution expressly affirms or prohibits particular state of affairs, all the statutory provisions which are incongruent thereto must be held as ultra vires and, therefore, must not be adhered to. We have already 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No.2045/2019 (State of M.P. Vs. Sonu & others) noted that Article 20 of our Constitution while not affirming the presumption of innocence does not prohibit it, thereby, leaving it to Parliament to ignore it whenever found by it to be necessary or expedient. A percutaneous scrutiny reveals that some legal principles such as presumption of innocence can be found across a much wider legal system, ubiquitously in the Common Law system, and restrictively in the Civil Law system. It seems to us that the presumption of innocence is one such legal principle which strides the legal framework of several countries owing allegiance to the Common Law; even International Law bestows its imprimatur thereto. Article 11.1 of the Universal Declaration of Human Rights, 1948 states -
"11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."
Article 14(3)(g) of the International Covenant on Civil and Political Rights, 1966, assures as a minimum guarantee that everyone has a right not to be compelled to testify against himself or to confess guilt. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, firstly, promises the right to a fair trial and secondly, assures that anyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. We may immediately emphasise that the tenet of presumed innocence will always give way to explicit legislation to the contrary. The presumption of innocence has also been recognised in certain circumstances to constitute a basic human right. Parliament, however, has been tasked with the responsibility of locating myriad competing, if not conflicting, societal interests. It is quite apparent that troubled by the exponential increase in the incidents of bride burning, Parliament thought it prudent, expedient and imperative to shift the burden of proof in contradistinction to the onus of proof on to the husband and his relatives in the 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No.2045/2019 (State of M.P. Vs. Sonu & others) cases where it has been shown that a dowry death has occurred. The inroad into or dilution of the presumption of innocence of an accused has, even de hors statutory sanction, been recognised by the courts in those cases where death occurs in a home where only the other spouse is present; as also where an individual is last seen with the deceased. The deeming provision in Section 304B is, therefore, neither a novelty in nor an anathema to our criminal law jurisprudence. [See Mir Mohammad Omar and Subramaniam v. State of Tamil Nadu (2009) 14 SCC 415.
19. Keeping in perspective that Parliament has employed the amorphous pronoun/noun "it" (which we think should be construed as an allusion to the prosecution), followed by the word "shown" in Section 304B, the proper manner of interpreting the section is that "shown" has to be read up to mean "prove" and the word "deemed" has to be read down to mean "presumed". Neither life nor liberty can be emasculated without providing the individual an opportunity to disclose extenuating or exonerating circumstances. It was for this reason that this Court struck down the mandatory death sentence in Section 303 IPC in its stellar decision in Mithu vs. State of Punjab, AIR 1983 SC 473. Therefore, the burden of proof weighs on the husband to prove his innocence by dislodging his deemed culpability, and that this has to be preceded only by the prosecution proving the presence of three factors, viz. (i) the death of a woman in abnormal circumstances (ii) within seven years of her marriage, and (iii) and that the death had a live link with cruelty connected with any demand of dowry. The other facet is that the husband has indeed a heavy burden cast on his shoulders in that his deemed culpability would have to be displaced and overturned beyond reasonable doubt. This emerges clearly as the manner in which Parliament sought to combat the scourge and evil of rampant bride burning or dowry deaths, to which manner we unreservedly subscribe. In order to avoid prolixity we shall record that our understanding of the law finds support in an extremely extensive and 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No.2045/2019 (State of M.P. Vs. Sonu & others) erudite judgment of this Court in P.N. Krishna Lal v. State of Kerala, 1995 Supp (2) SCC 187, in which decisions spanning the globe have been mentioned and discussed. It is also important to highlight that Section 304B does not require the accused to give evidence against himself but casts the onerous burden to dislodge his deemed guilt beyond reasonable doubt. In our opinion, it would not be appropriate to lessen the husband's onus to that of preponderance of probability as that would annihilate the deemed guilt expressed in Section 304B, and such a curial interpretation would defeat and neutralise the intentions and purposes of Parliament. A scenario which readily comes to mind is where dowry demands have indubitably been made by the accused husband, where in an agitated state of mind, the wife had decided to leave her matrimonial home, and where while travelling by bus to her parents' home she sustained fatal burn injuries in an accident/collision which that bus encountered. Surely, if the husband proved that he played no role whatsoever in the accident, he could not be deemed to have caused his wife's death. It needs to be immediately clarified that if the wife had taken her life by jumping in front of a bus or before a train, the husband would have no defence. Examples can be legion, and hence we shall abjure from going any further. All that needs to be said is that if the husband proves facts which portray, beyond reasonable doubt, that he could not have caused the death of his wife by burns or bodily injury or was not involved in any manner in her death in abnormal circumstances, he would not be culpable under Section 304B."
(emphasis supplied) As no material is commended on record to suggest that there was harassment to the deceased within close proximity of time. The trial Court in our considered opinion is well justified in holding that the case under section 498 A and 304 IPC is not made out.
8THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No.2045/2019 (State of M.P. Vs. Sonu & others) As to death, the trial Court found from the dying declaration Ex.P-12 that the deceased had opined of being burnt by her father-in-
law by putting "Tilli Ka Tilsatta" (Stock of wood) over her head and causing fire; however, in FSL report (Ex.P-9) it was found that the deceased got burnt by kerosene, which led it to disbelieve the credibility of the dying declaration.
In Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka [AIR 2007 SC 2666], it is held:
"6. Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied."
Furthermore, the trial Court found that room wherein the deceased was found burnt was locked from inside the room and there was no other person than the deceased inside the room which led the trial Court disbelieve entire prosecution story.
These findings cumulatively led to acquittal. Though it is urged on behalf of the applicant that the trial Court misread and misconstrued the evidence on record and erred in recording acquittal order thereon, when tested on the anvil of entire evidence, leaves no 9 THE HIGH COURT OF MADHYA PRADESH M.Cr.C.No.2045/2019 (State of M.P. Vs. Sonu & others) iota of doubt the prosecution miserably failed to bring home the charges.
In view whereof, we perceive no error in recording the acquittal of respondents.
In the result, application fails and is dismissed.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
bj/-
BARKHA
JHA
2019.03.1
3 10:47:41
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