Allahabad High Court
Deepak vs State Of U.P. on 3 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 192
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on :29.09.2020 Date of delivery:03.03.2021 Court No.-90 Case :- JAIL APPEAL No. - 18 of 2019 Appellant :- Deepak Respondent :- State of U.P. Counsel for Appellant :- From Jail, Ashok Kumar Yadav, Rakesh Dube Counsel for Respondent :- A.G.A. Hon'ble Dinesh Pathak,J.
1. Heard learned counsel for the appellant and Shri O.P. Mishra, learned A.G.A. for the State.
2. The instant jail appeal has been preferred by the accused-appellant challenging the judgment and order dated 30.11.2018 passed by the Additional District Judge/Fast Track Court (created by XIVth Finance Commission), Kanpur Nagar in Sessions Trial No.529 of 2015 (State vs. Deepak and two others) convicting the present appellant under Section 498-A IPC sentencing him to undergo three years imprisonment along with fine to the tune of Rs.5000/- and, in case of default thereof, he was further to undergo three months additional imprisonment and under Section 304-B IPC sentencing him to undergo eight years imprisonment. He was also convicted under Section 4 of Dowry Prohibition Act, 1961 (hereinafter referred to as "D.P. Act") and sentenced to undergo one year imprisonment along with fine to the tune of Rs.5000/- and in case of default thereof, he was further to undergo three months additional imprisonment. All the sentences were directed to run concurrently.
3. An First Information Report (hereinafter referred to as "FIR") had been lodged by the informant namely Deena Nath (PW-1) with respect to dowry death of his daughter, who was allegedly killed by her in-laws. As per F.I.R. version, marriage of informant's daughter was solemnized with Deepak (accused/appellant herein). At the time of marriage, he had given Rs.1 lakh cash as well as goods worth Rs.1 lakh. That apart, he had given one golden chain and golden ring to the groom, but in-laws of his daughter were not satisfied with the dowry. Husband (Deepak), father-in-law (Dinesh alias Tota Ram), mother-in-law (Sunita), brother-in-law (Anshu) and sister-in-law (Rekha w/o Anshu) of his daughter used to physically and mentally torture her for want of motorcycle and cash amounting Rs.50,000/-. Due to non-fulfillment of their demand of dowry, they used to beat her up. In-laws of his daughter had attempted several times to kill her, who used to tell her ordeal to her parents. On 22.11.2014, her in-laws kicked her out from their house, later on, when relatives intervened in the matter, they permitted her to enter the house on 20.05.2015, but she was throughout subjected to cruelty. On 12.06.2015 at about 12:30 hours, police informed him about his daughter's death. After reaching there, he came to know the entire facts. The informant believed that five accused, as mentioned above, had hanged his daughter to death due to non-fulfillment of their demand of dowry.
4. In this backdrop, PW-1 had filed a written report dated 12.06.2015 (Exhibit Ka 1) with respect to the death of his daughter. Aforesaid written report was endorsed in General Diary (Exhibit Ka 10) and on the basis thereof, an F.I.R. Dated 12.06.2015 (Exhibit Ka 9) was registered, at about 19:00 hours, as Case Crime No.0449 under Sections 304-B, 498-A IPC and 3/4 of the D.P. Act, accusing five persons namely, Deepak (husband of the deceased/victim), Dinesh alias Tota Ram (father-in-law), Sunita (mother-in-law), Anshu (Jeth) and Rekha (sister-in-law) respectively.
5. As per Inquest Report dated 12.06.2015 (Exhibit Ka 2), there was no sign of injury on the dead body of the deceased except a ligature mark on the right side of the neck. Aforesaid report was prepared and signed by Pramesh Srivastava, Tehsildar (PW-4). Forensic Field Unit, Cantt. Kanpur Nagar had inspected the site of occurrence and submitted a report dated 12.06.2015 (Exhibit Ka 11). Aforesaid report was proved by Vinod Kumar (PW-9), Chief Scientist, Forensic Science Laboratory.
6. Dr. Anil Nigam (PW-5) has proved Post Mortem Report dated 13.06.2015 (Exhibit Ka 7). In the Post Mortem Report, cause of death has been shown asphyxia due to ante mortem injury. Two external injuries had been shown on the body, which are as under :-
(i) Ligature mark 30 cm x 2 cm around the neck, with 7 cm gap right side back of neck. Distance 5 cm below chin, 6.5 cm below left ear, 1 cm below right ear. On dissection of ligature mark-dry and parchment like glistening present under the ligature mark. Ligature mark obliquely placed, high up in the neck between chin and thyroid cartilage.
(ii) Contusion 8 cm x 3 cm on front of forehead, just above both eyebrow.
Hanging and use of hard and blunt object had been shown under the head of manner of causation of injuries.
7. After completion of investigation, the Investigating Officer had submitted a charge-sheet dated 10.08.2015 (Exhibit Ka 10) arraigning only three persons as accused namely Deepak (husband), Dinesh (father-in-law) and Sunita (mother-in-law) under Sections 498-A, 304-B IPC and 3/4 of the D.P. Act.
8. By the order dated 18.09.2015, Chief Metropolitan Magistrate, Kanpur Nagar has committed the case to the Sessions Court for trial. By the order dated 25.02.2016, the case was transferred to the Court concerned. Learned Trial Court, vide order dated 11.01.2016 had framed charges under Section 498A/34, 304-B/34 IPC and 3/4 of the D. P. Act. Subsequently, vide order dated 25.10.2018, learned Trial Court had framed an alternative charge under Section 302/34 IPC.
9. To prove the accusation, prosecution had produced as many as nine witnesses, out of them three witnesses are of the fact and the remaining are formal witnesses.
10. PW-1 Deena Nath (first informant/father of the victim) had supported the version of FIR qua allegation of dowry death against the accused persons (in-laws of his daughter). He had reiterated that marriage of his daughter was solemnized on 10.12.2012 with Deepak (appellant herein), wherein Rs.1 lakh cash and goods worth Rs.1 lakh were given by him. Apart from that, he had also given one golden ring and one golden chain. After marriage, everything was quite normal for some time, but when his daughter came for the second time to her parental house, she had narrated her ordeal to the informant (PW-1), his wife Chandrmukhi, son Anil Kumar and daughter Pooja. As per informant/PW-1, his daughter had made an allegation against her husband (Deepak), father-in-law (Dinesh alias Tota Ram), mother-in-law (Sunita), Jeth/brother-in-law (Anshul) and Jethani/sister-in-law (Rekha) that they used to torture her physically and mentally for want of one motorcycle and cash Rs.50,000/-. Informant had tried to persuade the in-laws of his daughter and sent her back with them, but they used to torture her for demand of dowry. On 22.11.2014, when his daughter was kicked out from her matrimonial home, she stayed at her parental house for six months under the belief that one day everything would be normal. On 20.05.2015, she had been sent to her in-laws' house due to intervention of the relatives. On 12.06.2015 at about 12-12.30 hours, he had received telephonic information from the police about death of his daughter. Thereafter, he along with his son Sanjay, wife Chandramukhi and elder son-in-law reached at his daughter's matrimonial house on the same day i.e. 12.06.2015 at about 5.00 P.M., where he saw his daughter lying dead on the floor. Thereafter, he went to police station and moved a complaint. He had proved the Written Report as Exhibit Ka 1. On the next date i.e. 13.06.2015, he was called upon by the Circle Officer before whom he had stated all the facts. At that time, his wife and son Sanjay had stayed at the house of his daughter. He had made emphasis that his daughter had been killed by her in-laws due to non fulfillment of dowry demand. In his cross-examination, PW-1 had stated that his son-in-law was educated upto 8th Standard and was serving in Air Force. He has further stated that in-laws of his daughter had never demanded any dowry from him, rather they demanded dowry from his daughter. It is further stated that in his presence in-laws have never demanded any dowry or tortured his daughter. His daughter was intelligent and was a Graduate.
11. PW-2 Anil alias Sanjay, brother of victim, has supported the case of prosecution and stated that victim was his third sister, who was married with present appellant. First time, after 8 days, he brought his sister back to home. Second time, after 1 and ½ months when she returned back to her parental home, she had narrated her ordeal before her mother and sister. PW-2 has stated that his sister(victim) disclosed that her in-laws were not satisfied with the dowry and they were demanding cash Rs.50,000/- and one motorcycle. His sister had made allegation against all the five accused persons, who are named in the FIR, that they used to torture her mentally and physically. His sister was kicked out from her in-laws' house and after intervention of the relatives, she returned to her matrimonial home. His father received a telephonic information from the police qua death of his sister. After getting information, he, his father, mother and 1-2 persons of the area reached at the house of victim, where he found his sister lying dead on the floor. As per statement of PW-2, he and his family members had bonafide belief that victim had been killed by her in-laws for want of dowry. His father moved a written report to the police and thereafter dead body of the victim was sent for post mortem examination. Funeral was conducted by younger brother of appellant in which PW-2 and his family members had participated. He has verified his signature on the Inquest Report. In his cross-examination, PW-2 has stated that neither any of the accused had demanded dowry from him nor his sister was tortured in his presence. He had given divergent statement with respect to the position of dead body of victim as to what he had seen on the spot and what he had already stated before the I.O. under Section 161 Cr.P.C. In his cross-examination, he has further stated that at the time of inquest there was no Magistrate available on the spot.
12. PW-3 Chandramukhi (mother of the victim) had also supported the prosecution case and made accusation against all the accused persons for dowry death of her daughter. In her examination-in-chief she had stated that when, after four days, his son brought her daughter back to parental home, she had told that her mother-in-law, sister-in-law and husband are demanding cash Rs.50,000/- and one motorcycle. She had sent her daughter back to her in-laws' house after persuading her. Thereafter, several times, she went to her parental house and all times she narrated her ordeal qua dowry demand by the accused persons/her in-laws. Last time, she sent her daughter back to her in-laws' house on their assurance that they will keep her happily. In the meantime, she used to narrate her ordeal on telephonic conversation. After 16-17 days, her husband received telephonic information from the police qua death of her daughter. When she, along with family members, reached at the matrimonial house of her daughter (victim), found dead body of her daughter lying on the floor. At that time, no one was present from the in-laws side. In her cross-examination, she had stated that before the incident, accused persons had demanded cash Rs.50,000/- and one motorcycle from them, which included she herself, her husband and son.
13. PW-4 Pramesh Srivastava (Tehsildar) has stated that he had prepared and signed the Inquest Report (Exhibit Ka 2). Inquest Report was singed by the witnesses and Constable Bachcha Singh, Constable Pushpa Tomar and Inspector. He has made a report for post mortem examination of the dead body and referred to the Chief Medical Officer.
14. PW-5 Dr. Anil Nigam, Senior Consultant, U.H.M. Police Hospital, Kanpur has deposed in his examination-in-chief that on 13.06.2015 he was posted as Senior Consultant at Kanpur Post Mortem Hospital. At the time of post mortem examination rigor mortis had passed from upper extremity and present in lower extremity. Lips, face, nails cyanosed, mark of saliva and saliva dribbling on left angle of mouth. Eyes closed, mouth half open, tongue protruding out. He has further deposed that there was two marks of injuries on the body, first is a ligature mark on the neck which was sign of hanging, second injury was contusion. Cause of death was asphyxia due to ante mortem injury (hanging). He has proved post mortem examination report as Exhibit Ka 7 and said that injury no.2 was caused due to hard and blunt object.
15. PW-6 Om Prakash Singh, the first Investigating Officer (hereinafter referred to as "I.O."), has reiterated all the facts to which he has investigated and has proved Site Plan as Exhibit Ka 8.
16. PW-7 Manju Yadav (Constable No.904) has deposed that computerized copy was prepared on the basis of written report submitted by first informant Deena Nath. According to him, G.D. entry No.46 at about 19.00 hours on 12.06.2015 was made by then Station House Officer, Rajdev Rai. She has proved FIR as Exhibit Ka 9 and photocopy of G.D. entry as Exhibit Ka 10.
17. PW-8 Vishal Pandey, second I.O., has taken over the charge of investigation from the earlier I.O. and has stated all the facts chronologically with regard to the investigation. He has proved the Charge Sheet as Exhibit Ka 11.
18. PW-9 Vinod Kumar, Senior Scientist, Forensic Science Laboratory, Lucknow, (the then In-charge of Forensic Field Unit, Cantt. Kanpur) deposed that he has investigated the crime scene and submitted a detailed report with respect to the condition of the dead body of the victim and crime scene. He had also taken photographs thereof. He had prepared the report on spot and signed the same which has been proved as Exhibit Ka 11. He has further deposed that after enquiry/investigation of dead body, it was found to be a case of suicidal death, which is not natural.
19. In his reply to the query, as put to the accused-appellant under Section 313 Cr.P.C., he has admitted his marriage with the victim but denied all the allegations made by the prosecution. He has taken plea of alibi that at the time of incident he was at the factory, from where he was sent to jail. Another accused Dinesh alias Tota Ram (father of the appellant) had stated that victim had hanged herself out of anger, as she was annoyed because she wanted to go to her parental home, but his son (i.e. husband of victim/appellant) had refused to let her go to parental home and he had gone at work place after scolding his wife (victim). According to him, this incident of scolding was witnessed by other residents in the vicinity. He has been implicated in false prosecution. Third accused Sunita (mother of the appellant) had stated that on the date of occurrence, victim was adamant to go to her parental home, but appellant refused to let her go there. Thereafter the victim closed the door of the room and hanged herself with the fan and committed suicide. She had also pleaded her innocence and prayed for trial.
20. In defence, accused persons had got examined three witnesses namely Vijay Kumar Dubey (DW-1), Ram Dulari (DW-2) and Poonam Rathore (DW-3). All the defence witnesses have supported the case of the accused persons and deposed that on the date of occurrence, victim (appellant's wife) was adamant to go to her parental home, which was repressed by her husband and thereafter, he went to his work. That refusal made by her husband resulted into suicidal death of the victim. They further deposed that case of the prosecution qua demand of dowry is false and fictitious. Accused-appellant and the victim were living separately from their other family members. The accused had never demanded Rs.50,000/- cash and a motorcycle, as has been mentioned in the F.I.R.
21. The trial court, after considering the facts and circumstances of the case and the evidence available on the record, had convicted the present appellant under Section 498-A & 304-B IPC and Section 4 of the D.P. Act, but acquitted Dinesh alias Tota Ram (father of the appellant) and Sunita (mother of the appellant) on the ground that they were living separately from their son and daughter-in-law (victim), therefore, no case was made out against them beyond all reasonable doubts.
22. Assailing the impugned judgment, learned counsel for the appellant has submitted as under :-
(a) PW-1 Dina Nath and PW-2 Anil had deposed that neither demand of dowry was made, nor the victim was harassed and tortured in their presence.
(b) Deposition of PW-3 was contrary to the deposition of PW-1 and PW-2 with respect to the demand of dowry, who has stated that accused-appellant has demanded dowry of cash Rs.50,000/- and a motorcycle from the parents and brother of the deceased.
(c) There is a glaring discrepancy/contradiction between the statements of PWs-2 and 3 recorded under Section 161 Cr.P.C. and their deposition before the Court with respect to the condition and position of the dead body at the time when they reached at the crime scene.
(d) There is no evidence of persistent demand of dowry from the victim or her parents. There is no independent witness to corroborate the prosecution's case qua demand of dowry. Disclosure made by the victim before her parents is the only evidence available regarding demand of dowry made by accused persons, which is not sufficient to prove the accusation, that too in light of the fact that PWs-1 and 2 have specifically deposed that no demand of dowry had been made from them.
(e) In the facts and circumstances of the present case, there is no corroborating evidence to prove that soon before the death of the victim she was subjected to cruelty or harassment in connection with demand of dowry, therefore, presumption qua dowry death of the victim cannot be drawn under Section 113-B of the Evidence Act, 1872 (hereinafter referred to as "Evidence Act").
(f) Except one stray incident i.e. dated 22.11.2014 wherein the victim had allegedly been kicked out of her matrimonial home by her in-laws', there is no other corroborating evidence to constitute a proximate live link with death of the deceased.
(g) Learned counsel for the appellant has emphasized that no complaint was made with regard to the alleged incident dated 22.11.2014 and even after 20.05.2015, on which date the victim was accepted/returned in her in-laws family. There is no evidence of demand of dowry from 20.05.2015 till the date of her death i.e. 12.06.2015.
(h) Learned counsel for the appellant has drawn attention of the Court towards deposition of Forensic Expert (PW-9) and Tehsildar (PW-4), who have treated the death as suicidal death. Even Dr. Anil Nigam (PW-5), who had conducted the post mortem examination, has also pointed out possibility of suicidal death.
(i) Learned counsel has also drawn the attention of the Court towards paragraph 33 of the impugned judgment wherein learned Court below has observed that even assuming that she had committed suicide because of refusal made by her husband, while she was adamant to go to her parental house, it cannot be ruled out that she had committed suicide due to subjecting her to harassment and cruelty for demand of dowry. He further submits that in the aforesaid situation it cannot be said that the present case is a case where crime of dowry death has been commissioned by the accused-appellant.
(j) Learned Court below was not just and fair in relying upon the accusation made by the prosecution only on the basis of conjuncture and surmises.
(k) No corroborating evidence was adduced on behalf of prosecution to prove the accusation against the accused-appellant beyond all reasonable doubts, even after considering all the facts and circumstances, culpability of the present accused-appellant cannot be inferred in commission of crime as alleged in the F.I.R.
(l) The Trial Court has failed to weigh the evidence available on the record in its right perspective and has illegally convicted the appellant without proper consideration of the deposition made by the defence witnesses as well as the statement of accused under Section 313 Cr.P.C.
(m) In the facts and circumstances of the present case, no case is made out against the accused-appellant under Sections 498-A & 304-B of I.P.C. and Section 4 of Dowry Prohibition Act for which he has been convicted.
23. Per contra, learned A.G.A. has submitted as under :-
(a) victim was subjected to harassment and cruelty for want of additional dowry of cash Rs.50,000/- and one motorcycle.
(b) Due to bad behaviour of in-laws, victim came to her parental house on 22.11.2014 and, thereafter, it took six months to negotiate the matter with the in-laws of victim, who had ultimately agreed to accept the victim in their family on 20.05.2015 but unfortunately on 12.06.2015 she had been reported dead.
(c) PWs-1, 2 and 3 are consistent in their statements showing cause of death due to non-fulfillment of demand of dowry. Minor discrepancies, if any, occurred in their statements, will not affect the merits of the case.
(d) Much emphasis cannot be given to the statement of witnesses recorded under Section 161 Cr.P.C. in the light of the fact that all the prosecution witnesses have successfully supported the case of dowry death of the victim as mentioned in the FIR.
(e) It is further submitted that under Section 313-A of Evidence Act, burden lies upon the accused to explain the circumstances wherein victim had allegedly committed suicide.
(f) Learned A.G.A. has drawn the attention of the Court towards injury no.(2) as mentioned in the post mortem report wherein one contusion has been shown on the front of forehead just above both eyebrows and manner of injury has been shown by (i) hanging and (ii) use of hard and blunt object.
(g) In the light of post mortem report, learned A.G.A. has submitted that soon before death, victim was subjected to cruelty and harassment. Accused had failed to explain the ante mortem forehead injury caused to victim.
(h) Even three defence witnesses have admitted that there was some quarrel between the parties on the date of incident due to refusal by husband regarding victim's visit to her parental home.
(i) Injury report and the statements of witnesses supports the case of dowry death and the accused should be convicted for imprisonment for life.
(j) Present jail appeal filed on behalf of accused/appellant is devoid of merits and liable to be dismissed. There is no illegality, perversity or infirmity in the impugned judgment and order passed by the Court below in convicting and sentencing the appellant under Section 304 B/34, 498 A/34 IPC and Section 4 of D.P. Act and case is fully made out in the aforesaid sections against the accused-appellant.
24. I have carefully considered the submission made by learned counsel for the parties and perused the record on board.
25. Matter in hand pertains to dowry death of the lady who had been allegedly hanged by her in-laws. As per FIR version and deposition of prosecution witnesses i.e. PWs-1, 2 and 3, who are witnesses of fact, victim was throughout subjected to cruelty and harassment for want of dowry, inasmuch as, after sometime of marriage while she came to her parental home, she told her ordeal that her in-laws are demanding Rs.50,000/- cash and one motorcycle.
26. It is a case of circumstantial evidence wherein wife of appellant no.1 has been found dead due to hanging (otherwise than under normal circumstances) and her death has been treated as dowry death under Section 304-B IPC. On the basis of statement made by prosecution witnesses, learned Trial Court came to the conclusion that demand of dowry was the root cause and drew the victim to take a drastic step of ending her life. Before examining the facts of the instant case, definition of "dowry" and "dowry death" has to be explained. The word "dowry" is defined under Section 2 of the D.P. Act, which reads as follows :-
"2. Definition of 'dowry'. --In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly--
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II.-- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860)."
27. Dealing with the definition of dowry as mentioned in Section 2 of the D.P.Act, Hon'ble Supreme Court in Rajendra Singh vs. State of Punjab, (2015) 6 SCC 477 (Three Judges' Bench) has pointed out six ingredients in paragraph 8 of the judgment, which reads as follows :-
"(1) Dowry must first consist of any property or valuable security - the word "any" is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.
(2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.
(3) Such property or security can be given or agreed to be given either directly or indirectly.
(4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.
(5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnized.
(6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression "in connection with" would in the context of the social evil sought to be tackled by the Dowry Prohibition Act mean "in relation with" or "relating to".
28. With a view to curb the growing menace of dowry death, Section 304-B has been inserted in the Indian Penal Code and as a supporting deal, presumptive provision in Section 113-B has been inserted in the Evidence Act. Section 304-B of IPC and Section 113-B of Evidence Act, which are decisive provision to ascertain the ununatural death as a dowry death, read as follows :-
"304-B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose 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."
"113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860)."
29. Section 304-B IPC clearly enunciates the following ingredients of dowry death :-
(a) the death of woman must have been caused due to burns or bodily injury or due to unnatural circumstances;
(b) such death must have been occurred within seven years of her marriage;
(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(d) such cruelty or harassment must be in connection with demand of dowry.
30. Aforesaid ingredients have been expounded by the Supreme Court in several judgments and held that Section 304-B IPC is a stringent penal provision which has been implemented for dealing with and punishing offences against married women. Conjoint reading of Section 304-B IPC and presumptive provision of Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, is that the woman must have been soon before her death subjected to cruelty and harassment for or in connection with demand of dowry. On the proof of essentials as mentioned in the aforesaid sections, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death.
31. Legal presumption qua dowry death has been expounded by the Hon'ble Supreme court in Sher Singh alias Partapa Vs. State of Haryana, (2015) 3 SCC 724, in paragraphs 9, 10, 14, 16 and 19, which are quoted below :-
"9.The legal regime pertaining to the death of a woman within seven years of her marriage thus has numerous features, inter alia:
(i) The meaning of "dowry" is as placed in Section 2 of the Dowry Prohibition Act.
(ii) Dowry death stands defined for all purposes in Section 304B of the IPC. It does exclude death in normal circumstances.
(iii) If death is a result of burns or bodily injury, or otherwise than under normal circumstances, and it occurs within seven years of the marriage and, it is 'shown' in contradistinction to 'proved' that soon before her death she was subjected to cruelty or harassment by her husband or his relatives, and the cruelty or harassment is connected with a demand of dowry, it shall be a dowry death, and the husband or relative shall be deemed to have caused her death.
(iv) To borrow from Preventive Detention jurisprudence - there must be a live link between the cruelty emanating from a dowry demand and the death of a young married woman, as is sought to be indicated by the words "soon before her death", to bring Section 304B into operation; the live link will obviously be broken if the said cruelty does not persist in proximity to the untimely and abnormal death. It cannot be confined in terms of time; the query of this Court in the context of condonation of delay in filing an appeal - why not minutes and second - remains apposite.
(v) The deceased woman's body has to be forwarded for examination by the nearest Civil Surgeon.
(vi) Once the elements itemized in (iii) above are shown to exist the husband or relative shall be deemed to have caused her death.
(vii) The consequences and ramifications of this 'deeming' will be that the prosecution does not have to prove anything more, and it is on the husband or his concerned relative that the burden of proof shifts as adumbrated in Section 113B, which finds place in Chapter VII of the Evidence Act. This Chapter first covers 'burden of proof' and then "presumption", both being constant bed-fellows. In the present context the deeming or presumption of responsibility of death are synonymous."
"10. Death can be accidental, suicidal or homicidal. The first type is a tragedy and no criminal complexion is conjured up, unless statutorily so devised, as in Section 304A; but even there the culpable act is that of the person actually causing the death. It seems to us that Section 304B of the IPC, inasmuch as it also takes within its contemplation "the death of a woman ..... otherwise than under normal circumstances", endeavours to cover murders masquerading as accidents. Justifiably, the suicidal death of a married woman who was meted out with cruelty by her husband, where her demise occurred within seven years of marriage in connection with a dowry demand should lead to prosecution and punishment under Sections 304B and/or 306 of the IPC. However, if the perfidious harassment and cruelty by the husband is conclusively proved by him to have had no causal connection with his cruel behaviour based on a dowry demand, these provisions are not attracted as held in Bhagwan Das v. Kartar Singh (2007) 11 SCC 205, although some reservation may remain regarding the reach of Section 306."
"14. In Section 113-A of the Evidence Act Parliament has, in the case of a wife's suicide, "presumed" the guilt of the husband and the members of his family. Significantly, in Section 113-B which pointedly refers to dowry deaths, Parliament has again employed the word "presume". However, in substantially similar circumstances, in the event of a wife's unnatural death, Parliament has in Section 304-B "deemed" the guilt of the husband and the members of his family. The Concise Oxford Dictionary defines the word "presume" as: supposed to be true, take for granted; whereas "deem" as: regard, consider; and whereas "show" as: point out and prove. The Black's Law Dictionary (5th Edition) defines the word "show" as- to make apparent or clear by the evidence, to prove; "deemed" as- to hold, consider, adjudge, believe, condemn, determine, construed as if true; "presume" as- to believe or accept on probable evidence; and "Presumption", in Black's, "is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.""
"16. As is already noted above, Section 113-B of the Evidence Act and Section 304-B of the IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word 'deemed' in Section 304-B 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 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 304-B of the 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 304-B; but we would prefer to interpret its use not in terms of days or months or years, but as 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 are 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 113-B of the Evidence Act and Section 304B of the 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 the Cr.P.C."
"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 304-B, 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 erudite judgment of this Court in P.N. Krishna Lal v. Government 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 304-B 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 304-B, 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 not involved in any manner in her death in abnormal circumstances, he would not be culpable under Section 304-B."
32. The phrase "soon before her death" has also been clarified by Hon'ble Supreme court in Rajendra Singh (supra). The relevant paragraphs 21, 22, 23, 24 and 25 are quoted below :-
"21.Coming now to the other important ingredient of Section 304B - what exactly is meant by "soon before her death"?"
"22. This Court in Surinder Singh v. State of Haryana (2014) 4 SCC 129, had this to say (SCC pp.137-39, paras 17-18):
"17. Thus, the words "soon before" appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words "soon before" is, therefore, important. The question is how "soon before"? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.
18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of Punjab [(2000) 5 SCC 207 : 2000 SCC (Cri) 935] where this Court considered the term "soon before". The relevant observations are as under: (SCC pp. 222- 23, para 15) '15. ... 'Soon before' is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term 'soon before' is not synonymous with the term 'immediately before' and is opposite of the expression 'soon after' as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.' Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law."
"23. In another recent judgment in Sher Singh v. State of Haryana, 2015 (1) SCALE 250, this Court said:
"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 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 are 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." (at page 262)"
"24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304B."
"25. At this stage, it is important to notice a recent judgment of this Court in Dinesh v. State of Haryana, 2014 (5) SCALE 641 in which the law was stated thus:
"15.The expression "soon before" is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straight jacket formula can be laid down by fixing any time of allotment. It can be said that the term "soon before" is synonyms with the term "immediately before". The determination of the period which can come within term "soon before" is left to be determined by courts depending upon the facts and circumstances of each case." (at page 646) We hasten to add that this is not a correct reflection of the law. "Soon before" is not synonymous with "immediately before"."
33. In the aforesaid judgments Hon'ble Supreme Court succinct the scope of Section 304-B IPC and Section 113-B of the Evidence Act. It is clear that in case of dowry death initial burden lies upon the prosecution to prove the ingredients of Section 304-B IPC by preponderance of probability. Prosecution is not required to prove the ingredients beyond reasonable doubt, otherwise it will defeat the purpose of Section 304-B IPC and once prosecution has discharged its initial burden, presumption of innocence of an accused would get replaced by deemed presumption of guilt of accused. In the condition, burden would then be shifted on accused to rebut that deemed presumption of guilt by proving his innocence beyond reasonable doubt. In the matter in hand, prosecution witnesses of fact i.e. PWs-1, 2 and 3 were consistent in their depositions qua cruelly attitude of husband and his family member in connection with demand of dowry.
34. In light of the law as discussed above, the main ingredients of dowry death is harassment and cruelty for demand of dowry, which should be examined first. As per prosecution case, marriage of the victim and appellant herein was solemnized on 10.12.2012. Factum of marriage was admitted by the accused in his statement under Section 313 Cr.P.C. Even defence witnesses have admitted marriage of the accused-appellant with the victim in the year 2012. There is also no dispute that victim was found dead within seven years of her marriage. As per F.I.R. version, on 12.06.2015 father of the victim had received telephonic information from the police with respect of his daughter's death. Factum of death had not been disputed by the accused in his defence, which occurred within two and half years of the marriage. Factum of demand of dowry has been asserted by the prosecution witnesses, though the same has been denied by the accused in his statement under Section 313 Cr.P.C. and the deposition of the defence witnesses.
35. PW-1, first informant (i.e. father of the victim) has clearly stated in his examination-in-chief that while his daughter came from her in-law's house, she narrated her ordeal to her family members (i.e. parents, brother and sisters). He has categorically stated that his daughter was throughout subjected to cruelty and harassment for demand of dowry. On 22.11.2014, she was kicked out from her in-law's house. After intervention of the relatives, anyhow she again went to her in-law's house on 20.05.2015 and ultimately on 12.06.2015, he had received information about death of his daughter. In his cross-examination, he stated that after 2-3 months of his daughter's marriage, parents of the accused-appellant and even accused himself had started demanding dowry.
36. PW-2 (Anil-brother of the victim) had also corroborated the allegation of demand of dowry as mentioned in the F.I.R. Second time, after one and half months, when she came to her parental home, she was weeping while narrating her ordeal to her family members about the demand of Rs.50,000/- cash and one motorcycle. She had also clearly narrated that her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law used to treat her with cruelty and thrashed her for demand of Rs,50,000/- cash and one motorcycle. He also supported the version of his father that his sister (victim) was thrown out from her matrimonial house due to non-fulfillment of demand of dowry made by her husband and in-laws and subsequently on persuasion and intervention of the relatives, she was returned to her in-law's house. After said induction i.e. on 20.05.2015, she had been hanged to death on 12.06.2015.
37. PW-3 Smt. Chandra Mukhi (mother of the victim) had also supported the FIR version and categorically stated that when her daughter came from her in-laws' house, she narrated her ordeal that her husband, father-in-law and mother-in-law were demanding Rs.50,000/- cash and one motorcycle. PW-3 has articulated the ordeal of her daughter that she had been through out subjected to harassment and cruelty for the demand of dowry made by her in-laws, who used to beat up her daughter. Her daughter had been kicked out from her in-laws' house for demand of dowry and after intervention of the relatives, she had been permitted to enter into her matrimonial home. After great persuasion, she had anyhow agreed to go to her in-laws house but unfortunately, she had been hanged to death due to non-fulfillment of dowry. In her cross-examination, she had affirmly stated that in-laws of her daughter were demanding Rs.50,000/- cash and a motorcycle.
38. Defence has failed to point out any diversity or weakness in the cross-examination of PWs-1, 2 and 3, suggesting any doubt in their depositions. Prosecution witnesses, in their depositions, had successfully made out a case of persistent demand of dowry and cruelty against the in-laws of the victim and corroborated the prosecution case as mentioned in the FIR, though the accused persons had denied these allegations in their statements under Section 313 Cr.P.C. Even the defence witnesses had denied the factum of demand of dowry in their depositions, though they failed to create any doubt in the accusation made by the prosecution.
39. Learned counsel for the appellant has tried to point out some discrepancies in the statement of the prosecution witnesses with respect to the demand of dowry and before whom it was made. It is submitted that no independent witness had been adduced to corroborate the factum of demand of dowry.
40. Minor discrepancies, which have been tried to be pointed out by learned counsel for the appellant, are not much relevant in the present matter. Though the minor discrepancies or contradictions are not of much relevance in examining the facts and circumstances responsible for the commission of the crime, inasmuch as, with the passage of time when witnesses are called in the witness box, they may have some problem, for many reasons, in recollecting the exact happening which took place on the date of occurrence. In this respect, Hon'ble Supreme Court in Bharwada Ghoginbhai Hirjibhai v. State of Gujrat, AIR 1983 SC 753, has expounded the law showing several conditions wherein minor discrepancies could be occurred and same should be ignored. The relevant portion of paragraph 5 and paragraph 6 are being quoted below :
"5. ..............................Over much importance cannot be attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
41. Learned A.G.A. submitted that there was no glaring discrepancy in the matter which could affect the merit of the case and minor discrepancies cannot be counted for the purpose of acquitting the accused whereas holistic perusal of the statement made by prosecution witnesses clearly corroborated the accusation made by the prosecution. In support of his contention, he has relied upon paragraph 24 of the judgement rendered in Vinod Kumar vs. State of Haryana, (2015) 3 SCC 138, which is quoted below :
"24. The next facet relates to the discrepancies in the evidence of the witnesses. The learned trial Judge has found discrepancies with regard to the handing of letter by Santosh to Manphul; the discrepancies relating to the place and time pertaining to various aspects stated by witnesses and the identity of the accused at the time of arrest. The discrepancies which have been noted are absolutely minor. The High Court has correctly observed that the minor discrepancies like who met whom, at what time and who was dropped and at whose place and at what time, etc. have been given unnecessary emphasis. It is well settled in law that minor discrepancies on trivial matters not touching the core of the case or not going to the root of the matter could not result in rejection of the evidence as a whole. It is also well accepted principle that no true witness can possibly escape from making some discrepant details, but the Court should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that it would be justified in jettisoning his evidence. It is expected of the Courts to ignore the discrepancies which do not shed the basic version of the prosecution, for the Court has to call into aid its vast experience of men and matters in different cases to evaluate the entire material on record."
42. Now the vexed question for consideration is as to whether the victim had died otherwise than under normal circumstances and it was shown that soon before her death, she was subjected to cruelty and harassment by her husband or his relatives for, or in connection with, any demand of dowry.
43. As discussed in preceding paragraph, prosecution has succeeded in making out a case of persistent demand of dowry and defence has failed to create any doubt in all the probabilities of persistent demand of dowry. It has been submitted by learned counsel for the appellant that there was no evidence on record to prove that soon before her death the victim was subjected to cruelty or harassment in relation to demand of dowry. After the incident dated 22.11.2014 when she was allegedly thrown out from her in-laws' house, there was no incident taken place to support the case of the prosecution. There was no other incident of cruelty or harassment with the victim, which can constitute a proximate live link with death of deceased. In support of his contention, learned counsel for the appellant has relied upon paragraph 18 of the judgment rendered in Baljinder Kaur vs. State of Punjab, (2015) 2 SCC 629, which is being quoted below :
"18. The above decisions of this Court laid down the proximity test i.e. there must be material to show that "soon before her death" the woman was subjected to cruelty or harassment "for or in connection with dowry". The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. "Soon before death" is a relative term and no strait-jacket formula can be laid down fixing any time-limit. The determination of the period which can come within the term "soon before death" is left to be determined by the Courts depending upon the facts and circumstances of each case."
44. In the preceding paragraphs, I have already given much deliberations to define phrase 'soon before her death'. Though in the case of Dinesh vs. State of Haryana, reported in 2014(12) SC 532, 'soon before' has been defined as it is synonymous with the term (immediately before) but showing disagreement with the aforesaid observations, a three Judges Bench of the Hon'ble Supreme Court in the case of Rajinder Singh (Supra), it is stated that 'soon before' is not synonymous with 'immediately before'.
45. In the matter of Hira Lal and Others vs. State of State (Govt. of NCT) Delhi, (2003) 8 SCC 80, the Hon'ble Supreme Court has expounded, after comparing study of 'soon after theft' as mentioned in Section 114 - Illustration (a) of the Evidence Act, that determination of period which come within the term 'soon before' is left to be determined by the court, depending upon facts and circumstances of each case. Hon'ble Supreme Court held that there is no straight jacket formula to determine the aforesaid phrase . There must be existence of a proximate live link between the effect of cruelty based on dowry demand and the death concerned.
46. Matter in hand relates to dowry death of victim, which is obviously a case of death other than under normal circumstances. It is quite possible that continuous demand of dowry, as deposed by prosecution witnesses of fact, had driven the wife (victim) to take such an extreme step of suicide and in that condition, it would be reasonably assumed active role of her husband. Inquest report (Exhibit Ka 2) and the statement of Ramesh Chandra Srivastava (PW-4) who had prepared and signed the inquest report clearly evinced death of victim other than under normal circumstances. Even the postmortem report and the statement of Dr. Anil Nigam (PW-5) has also corroborated the aforesaid fact. It may be a matter of dispute as to whether she had been forcibly hanged to death or hanged herself to death but there is no doubt that she had ended her life under extreme pressure created by her in laws.
47. Dealing with the matter of cruelty and harassment soon before the death, injury no.(2) as shown in the postmortem report and the statement of Dr. Anil Nigam (PW-5), explaining the injuries, cannot be ignored which indicates some sort of cruelty committed with the victim. Injury no.(2) clearly shows that there was a mark of contusion 8" x 3" on the front of forehead just above both eyebrows. In the Post Mortem report (Exhibit Ka 7), hard and blunt object has been shown as a manner of causing the injuries. Therefore, injury no.(2) showing mark of contusion, other than the injury no.(1) which is with respect to hanging, creates suspicion about the circumstances wherein the victim was hanged to death.
48. Dr. Anil Nigam (PW-5), who had conducted the post mortem, has proved the post mortem report as Exhibit Ka 7 and stated that at the time of post mortem examination, rigor mortis had passed from upper extremity and present in lower extremity. Lips, face, nails are cyanosed and there was mark of saliva dribbling on left angle of mouth. He has deposed that first injury pertains to a ligature mark on the neck which was sign of hanging but the second injury was contusion, which was caused due to hard and blunt object. In his cross-examination he has stated that though possibility of suicidal death cannot be ruled out, the presence of injury no.(2) indicates the ante mortem wound which cannot be caused while taking the body down from the hanging position. It is further suggested that immediately after hanging while his body is taken down, aforesaid injury no.(2) could be inflicted due to hit by any hard object like chair, wall, stick and any injury inflicted within 2 or 4 minutes of death could suggest to an ante mortem injury. After considering the facts and circumstances of the case and evidence available on the record it cannot be inferred that dead body of victim was taken down within 2 to 4 minutes of the death.
49. There is no evidence on the record that who has informed the police qua death of victim. It has also not been made clear by the defence that as to how and when dead body was taken down from the hanging position. In the light of such suspicious and doubtful circumstances, appellant/accused cannot be permitted to take benefit of deposition made by PW-5. In cross-examination of PW-5, defence has failed to get any suggestion qua explanation about injury no.(2). Accused persons in their statements under Section 313 Cr.P.C. have not explained injury no.(2) which is vital in determining cruelty and harassment soon before death. In replying to question no.(9) qua post mortem report (Exhibit Ka 7) and statement of PW-5 Dr. Anil Nigam, accused has failed to offer any explanation in their statements under Section 313 Cr.P.C. They have simply stated that statement of PW-5 is a formal statement.
50. Learned counsel for the appellant has submitted that dribbling of saliva is surest sign of hanging having taken place during life, as the secretion of saliva being a vital function cannot occur after death. Learned counsel for the appellant has made emphasis that she hanged herself to death because of annoyance of refusal made by her husband, who had turned down her request by scolding not letting her go to parental home.
51. In the facts and circumstances of the present case wherein mark of injury no.(2) is not explained, I am not in agreement with the suggestion made by learned counsel for the appellant as mentioned above. To make an opinion that death was caused by hanging, one can easily say that death was due to hanging, in case, in addition of cord mark, there was mark of driblling of saliva, ecchymosis present around ligature mark, post mortem signs of asphyxia, besides if there are no evidence of a struggle, fatal injury or poisoning. The seat of injury no.(2) at forehead of deceased, prima facie, reflects the inflicting of wound, which cannot be ignored in deciding cruelty soon before death.
52. Learned counsel for the appellant has emphasized on the endorsement made on the Inquest Report (Exhibit Ka 2) wherein no injury has been shown on the dead body of the victim except a mark of ligature on right side of neck, which was caused due to noose. Report dated 12.06.2015 (Exhibit Ka 11) submitted by Forensic Expert (PW-9) shows that body of deceased was hanging with a noose of cloth attached to the fan. Though, in the Inquest Report (Exhibit Ka 2) and the pictures taken by forensic team, no mark of injury has been shown on the forehead of the deceased, as mentioned in the Post Mortem Report, but it would be relevant to consider that the persons who have prepared the Inquest Report (Exhibit Ka 2) and the report dated 12.06.2015 (Exhibit Ka 11) were not expert in examining dead bodies, which is subject matter of expertise of the doctor, who is authorized to conduct the post mortem and, in turn, Dr. Anil Nigam (PW-5) who had conducted, prepared and signed the Post Mortem Report has clearly mentioned the injury no.(2) to be caused by hard and blunt object and had proved the Post Mortem Report (Exhibit Ka 7).
53. Learned counsel for the appellant has submitted that the appellant (husband of the deceased) was made accused along with his parents, but his parents have been acquitted by the Trial Court, therefore, present appellant should also be acquitted, inasmuch as, after acquittal of his parents, genesis of crime as made by prosecution is totally collapsed.
54. I find no force in the aforesaid submission of learned counsel for the appellant, because acquittal of parents of appellant (husband) has been made on a different footing, inasmuch as, even on the preponderance of probability their involvement could not be made out on the ground that they were living separately from the appellant and his wife (victim). After careful consideration of evidences of prosecution witnesses and defence witnesses, Trial Court has taken a pragmatic view that involvement of parents of husband (i.e. appellant herein) is not made out on the facts and circumstances of the present case, who were living separately from their son but involvement of husband cannot be ruled out.
55. From the evidence on record it is proved that appellant was living with his wife, therefore, his claim for acquittal on the ground of acquittal of his relatives (i.e. parents) is not sustainable and being cohabitant with his wife, his complicity in the commission of crime could easily be inferred. On the other hand, in the matter of his parents, who were living separately, strong proof is required to implicate them.
56. Learned A.G.A. has submitted that complicity of present appellant in the commission of crime can easily be presumed under Section 113-A of the Evidence Act.
57. Aforesaid submission made by learned A.G.A. has got no legal force, inasmuch as, intention of legislation in enforcing the provision as embodied under Section 113-A and 113-B of the Evidence Act is clear on different parameters. In the matter of Sher Singh (supra), Hon'ble Supreme Court has given a comparative study on aforesaid sections and expounded that the provisions as embodied under Section 113-A of Evidence Act confers a discretion on Court to draw presumption in case of suicide, whereas Section 113-B of the Evidence Act provides mandatory requirement to the Court to draw an adverse inference about guilt of accused in case of dowry death as defined under Section 304-B IPC. Hon'ble Supreme Court presumed that where a wife is driven to the extreme step of suicide, it would be reasonable to assume active role of her husband rather than leaving it to the discretion of the Court.
58. Learned counsel for the appellant has made emphasis on the statement of accused under Section 313 Cr.P.C. wherein he has shown his absence at the time of incident, as he had gone to his work place. Statement of accused qua his absence at the place of occurrence was supported by statements of defence witnesses i.e. DWs-1, 2 and 3, but they have miserably failed to adduce any concrete evidence beyond doubt and prove his presence at the work place at the time of occurrence. Neither any certificate has been adduced from the employer nor the employer has been got examined on behalf of accused to prove his presence at the work place at the time of occurrence.
59. After considering the facts and circumstances of the present case and the appreciation of evidence available on record, I am of the considered view that there was persistent demand of dowry made by accused from the victim who was used to subjected to cruelty and harassment for such demand and ultimately she had ended her life in suspicious circumstances wherein injury no.(2) inflicted on her forehead suggesting some violence soon before her death. PWs-1, 2 and 3 are consistent in their statements with regard to demand of dowry and cruelly attitude made by her in-laws. Just after marriage victime has been subjected to cruelty and harassment for demand of Rs.50,000/- cash and one motorcycle and she narrated her ordeal to her parents and other family members, whenever she got opportunity to talk with them. After great persuasion and intervention of relatives, she had been sent to her matrimonial home, but unfortunately within 15 days thereafter she had been driven to take a drastic step in which ended her life.
60. I do not find any force in the submission that refusal made by husband not giving her permission to go to her parental home caused serious depression to the deceased, inasmuch as, she had strong affection towards her parent and her inability to cope up with the situation, immediate temptation had driven her to fall into the incident of committing suicide.
61. Prosecution has successfully proved the accusation by preponderance of probability, but defence has failed to discharge his burden qua deemed presumption of his guilt, beyond reasonable doubt.
62. Perusal of evidence of prosecution in totality of surrounding circumstances along with other evidence available on record, in which crime is alleged to have commissioned, it can easily be inferred that the victim was subjected to cruelty and harassment for demand of dowry and the chain of incidents constitute proximate live link with the death of deceased.
63. In the facts and circumstances of present case, it cannot be said that there was stray incident of demand of dowry. Death of victim within two and half years of marriage in suspicious circumstance wherein seat of injury no.(2) at forehead of deceased and persistent demand of dowry shows that soon before her death, she was subjected to cruelty and harassment by her husband for, or in connecting with, demand of dowry. Prosecution has successfully discharges its duty and it is obligatory on the Court to raise a presumption that accused caused the dowry death. No unimpeachable evidence has been adduced by the accused to prove his innocence and rebut his complicity in commission of crime of dowry death. There is no illegality, infirmity or perversity in the impugned judgment and order passed by the Court below warranting interference by this Court in exercise of its appellate jurisdiction. Learned Court below has rightly held the present appellant guilty under Section 304-B and 498-A IPC and under Section 4 of Dowry Prohibition Act.
64. In view of aforesaid discussions and observations, I do not find any good ground to alter or modify the impugned judgment and order dated 30.11.2018 passed in Sessions Trial No.529 of 2015.
65. In the result, the present appeal lacks merit and is, accordingly, dismissed. The conviction and sentence of appellant under Sections 304-B and 498-A IPC and under Section 4 of D.P. Act as awarded by Court below is hereby upheld and impugned judgment and order dated 30.11.2018 passed by the Additional District Judge/Fast Track Court (created by XIVth Finance Commission), Kanpur Nagar in Sessions Trial No.529 of 2015, is hereby affirmed and maintained.
66. Let a copy of this judgment along with lower Court's record be sent to concerned Court below, for compliance. A compliance report be sent to this Court. Copy of this judgment be also supplied to accused-appellant through concerned Superintendent of Jail.
Order date : 03.03.2021 nd/VR/Manish Himwan