Allahabad High Court
Bhupendra Singh vs State Of U.P. on 4 February, 2016
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 27 Case :- CRIMINAL APPEAL No. - 4046 of 2014 Appellant :- Bhupendra Singh Respondent :- State Of U.P. Counsel for Appellant :- Anurag Shukla, Gopal Swaroop Chaturvedi Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Ranjana Pandya,J.
1. Challenge in this appeal is to the judgment and order dated 13.10.2014 passed by the learned Additional Sessions Judge, Court No. 10, Ghaziabad in Sessions Trial No. 501 of 1998 (State Vs Bhupendra Singh and others), arising out of Case Crime No. 522 of 1995, under Sections 498A/149, 306/149, 304-B I.P.C., 3/4 Dowry Prohibition Act/149 IPC, Police Station Hapur, district Ghaziabad, whereby accused Parvinder Singh alias Bobby and Rimpi alias Talvinder Kaur were acquitted, whereas the accused Bhupendra Singh was found guilty under Sections 498A/149, 306/149, 304-B/149 I.P.C. under Section 4 Dowry Prohibition Act, and sentenced to undergo six months simple imprisonment under section 4 of Dowry Prohibition Act and a fine of Rs.1000/-, one year simple imprisonment under section 498-A IPC and a fine of Rs. 2000/-, five years' imprisonment under section 306 IPC and a fine of Rs. 2500/- and ten years' imprisonment under section 304-B/149 IPC with default stipulation.
2. Filtering out unnecessary details, the prosecution story in brief is that initially, there was a G.D. report (Report No. 51) at 21.15 hours on 19.8.1995 by the father-in-law of the victim about the unnatural death of the victim. It was further stated that she set herself ablaze and committed suicide. Later on, on 20.8.1995 an F.I.R. was lodged by the brother of the victim at the Police Station stating that his sister Jasveer Kaur alias Mandeep was married to the appellant about 18 months prior to the incident. After sometime of the marriage, the victim was being harassed for dowry. A demand of scooter and Rs.50,000/- was made by the husband and his family members and when the deceased used to come to her house, she used to state this fact to her family members. She also used to tell that her father-in-law, sister-in-law, husband and brother in-law (dewar) used to assault her often. The informant has further stated that the financial position of his father was not good, hence, he could not fulfill the demands of the in-laws of the deceased and, finally, the father of deceased expired due to this sorrow. When the deceased was six months pregnant, her husband had beaten her with his leg and he got her pregnancy terminated at Sharda Hospital, Hapur. In the meantime, the deceased was brought to her parental house although she was not willing to go to Hapur. She came to attend the 'terahawi' of her father at Hapur where panchayat was held and on the request of panchayat members, the deceased was sent to her in-laws house due to which the deceased was disturbed, hence, she has herself set her ablaze or she has been set at fire by in-laws of the house, on account of which she has died.
3. On the basis of information sent by the father-in-law of the victim, inquest was prepared by S.I. Prithavi Singh (P.W.8). He prepared the inquest report on 20.8.1995, sealed the dead body and handed over the papers and the dead body to Constable Hardeep and Constable Prabhu Dayal. He proved the inquest report as Ext. Ka-8. Investigation was entrusted to S.I. Prem Pal Singh, P.W.5. He received investigation on 20.8.1995. He copied the F.I.R. and chik report in the case diary, recorded the statement of the informant, Sukhveer Singh and after that he went to the place of incident where Sub-Inspector Prithavi Singh was preparing the inquest report. He inspected the place of incident and prepared the site plan which was proved as Ext. Ka-3. The accused Bhupendra, Dharm Singh and Parvinder Singh alias Bobby were arrested on the spot. Statements were recorded. After that statements of panch, namely, Chandrajeet Singh, Harbeer Singh, Jaswant Singh, Swarup Singh and Amar Singh were recorded. All the three accused were admitted in the police station. After that statements of Jeet Singh and Panda Singh were recorded. Later on this witness recorded the statements of Rajendra Kumar Agarwal, Raj Kumar, Khsetra Ram Singh, Sat Pal Singh, Har Jeet and S.I. Prithavi Singh. On 25.8.1995, the statements of Dinesh Kumar, and Kuldeep Singh were recorded. He tried to apprehend the remaining accused but failed. On 4.9.1995 Rimpi surrendered before the court whose statement was recorded by the Investigating Officer. On 16.9.1995, he submitted charge sheet against all the accused except Banti and proceeded to obtain process under Section 82/83 against Banti and filed charge sheet against all the accused and accused Banti as an absconder, which charge sheet was proved as Ext. Ka-4.
4. Post mortem report on the dead body of the deceased was conducted by P.W. 4 Dr. Sandeep Pawar. On 20.8.1995 he found the following ante-mortem injuries on the body of the deceased:-
"First and Second degree burn all over the body. Singeing of hair present (jale hue bal the) red. Line of demarcation was present. There were boils at places. There was smell of keorsene oil."
The doctor found the lungs and pleura congested. There were carbon particles in the trachea. Stomach was empty. Spleen and kidneys were congested. The uterus was empty. He prepared the post mortem report and proved it as Ext.Ka-2.
5. The prosecution examined as many as eight witnesses. P.W. 1 is the informant Sukh Dev who has proved the written report as Ext. Ka-1. P.W. 2 is Dinesh Kumar, who is said to be a witness about torturing of the deceased by the accused persons. P.W. 3 is Jasveer Singh, brother of the accused, who has given evidence regarding demand of dowry and harassment. P.W. 4 is Dr. Sandeep Pawar, whose evidence has been discussed. P.W. 5 is S.I. Prem Pal Singh whose evidence has also been discussed. P.W. 6 is constable Rakshpal Singh who prepared the chik report and proved it as Ext. Ka-6. Further he scribed the matter in the G.D. and proved its copy as Ext. Ka-7. P.W. 7 is Dr. S.C. Mishra who has proved the post mortem report as Ext. Ka-2. He conducted the post mortem along with Dr. Sandeep Pawar (P.W.4). P.W. 8 is S.I. Prithavi Singh who has proved the rapat no. 51 as Ext. Ka-8. After examining eight witnesses, prosecution closed its evidence before the trial court.
6. The statements of the accused were recorded in which the accused denied the occurrence and stated that neither there was any demand of dowry nor the deceased was being harassed. In fact the deceased underwent abortion. She was under the treatment of Dr. Indrajeet Sharma and she committed suicide.
7. The accused persons examined three witnesses in defence. D.W. 1 is Dharm Singh, who has proved copy of application Ext. Kha-1 by which information was sent to the father of the victim. P.W. 2 is Indrajeet Sharma, Clinical Neuro Physician, who is said to have treated the victim. D.W. 3 is Raj Kumar, who is said to be a witness of suicide of the deceased.
8. The learned lower court, after hearing counsel for the parties returned the finding of guilt against the accused Bhupendra while acquitting the other accused as has been mentioned in paragraph 1 of the Judgment. Feeling aggrieved the accused has come up in the present appeal.
9. I have heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Shri Anurag Shukla, learned counsel for the appellant and learned Additional Government Advocate for the State-respondent and perused the trial court record.
10. Learned counsel for the appellant has submitted that the conviction is bad in the eyes of law and as such the Court has passed an illegal sentence, inasmuch as neither the accused could be convicted with the aid of section 149 IPC nor the accused could simultaneously be convicted under section 304-B and 306 IPC both.
11. On the other hand learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence, which was clear, cogent and convincing.
12. Perusal of the impugned judgment shows that the accused was convicted under sections 306, 304-B IPC with the aid of section 149 IPC.
13. Unlawful assembly has been defined under section 141 IPC, which runs as follows:
141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--
First.-- To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second.-- To resist the execution of any law, or of any legal process; or Third.-- To commit any mischief or criminal trespass, or other offence; or Fourth. -- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.-- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
14. Section 149 of the Indian Penal Code states that every member of unlawful assembly will be guilty of the offence committed in prosecution of the common object. If there is no finding of the court that the accused formed an unlawful assembly, obviously the conviction with the aid of section 149 IPC would have no legs to stand.
15. As far as the factum of death of the victim is concerned, there is no direct evidence in this case about the crime and the prosecution story rests on circumstantial evidence. Hon'ble the Apex Court in the case of Sharad Birdhichand Sarda vs State of Maharashtra ((1984) 4 SCC 487, has formulated five golden rules- ' Panchsheel' for the proof of a case based on circumstantial evidence. In Para-153 of report it has been observed:
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
16. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & another vs State of Maharashtra (1973)2 SCC 793, where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusion."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
17. These five golden principles, if we may say so, constitute Panchsheel of the proof of a case bases on circumstantial evidence."
18. Before I proceed to evaluate the evidence on record led by the prosecution in support of the charges framed against the accused, it is necessary to examine the law relating to 'dowry death'. The Hon'ble Supreme Court has highlighted all the aspects of law relating to 'dowry demand' and 'dowry death' in recent case of Prem Kanwar Vs. State of Rajasthan- 2009(1) JT 197. Paras 6 to 12 of the reports are as under:-
"6. In order to attract Section 304-B IPC, the following ingredients are to be satisfied:
i) The death of a woman must have been caused by burns or bodily injury or otherwise that under normal circumstances;
ii) Such death must have been occurred within 7 years of the marriage;
iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
iv) Such cruelty or harassment must be in connection with the demand of dowry.
Section 304-B and Section 498-A reads 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 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 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"
498-A: 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 willful 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 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.
7. The term "dowry" has been defined in Section 2 of the Dowry Prohibition Act, 1961 (in short "dowry Act") as under:-
"Section 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 of the marriage; or
(b) by the parents of either party to a marriage or to 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 dowry or mehr in the case of person whom the Muslim Personal Law (Shariat) applies.
Explanation I- For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section unless they are made as consideration for the marriage of the said parties.
Explanation II- The expression "valuable security" has the same meaning in Section 30 of the Indian Penal Code(45 of 1861)."
8. Explanation of Section 304-B refers to "dowry" as having the same meaning as in section 2 of the Act', the question "what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be given" occurring herein, and in the absence of any such evidence it would not constitute to be dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and others vs State of Haryana (1998 (3) SCC 309).
9. The offence alleged against the accused is under Section 304-B IPC which makes "demand of dowry" itself punishable. Demand neither conceives no would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved; hardly any offenders would come under the clutches of law. When section 304-B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry death and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence that could be either direct on indirect. Is is significant that section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The work "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the accused seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including section 3, which refers to giving or taking dowry an Section 4 which deals with a penalty for demanding dowry; under the Act and the IPC. His makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.
10. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Sections 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry death. Section 113-B as follows:-
"113-B: Presumption as to dowry death- When the question is whether as 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 persons has caused the dowry death.
Explanation- For the purposes of this section' dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 196)."
11. The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on "Dowry Deaths and Law Reform" Keeping in view the impediment in the per-existing law in securing evidence to prove dowry related death, legislature through it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of 'Dowry death; in section 304-B IPC and the wording in the presumptive section 113-B of the Evidence Act, one of the essential ingredients, amongst other, in both the provisions in that the concerned woman must have been "soon before her death" subjected to cruelty or harassment for or in connection with demand of dowry" Presumption under section 113-B is a presumption of law. On proof of the essentials mentioned there in, it becomes obligatory on the Court to raises a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused committed the dowry death of a woman (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
12. A conjoint of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be materials to show that soon before the death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances." The expression 'soon before' is very relevant where Section 113-B if the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and would depend upon the circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in section 114-B Illustration (a) of the Evidence Act is relevant. It is lays down that Court may presume that a man who is in the possession of goods 'soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effects of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not be disturb mental equilibrium of the woman concerned, it would be of no consequence."
19. Now I proceed to consider the four ingredients which are essential to a establish case for the offence punishable under section 304-B IPC.
20. As regards ingredient No. (i), a perusal of inquest report Ext. Ka-8 shows that the whole body of the deceased was burnt. A perusal of the post-mortem report Ext.Ka-2 shows that the deceased had suffered first and second degree burns all over the body singeing of hair was present. Smell of kerosene on the body of the deceased was also present, but the doctor did not find any other ante-mortem injury on the body of the deceased at the time of autopsy. All the prosecution witnesses have stated that death took place due to burn injuries. It is an admitted case of the defence that death occurred due to burn injuries. Although, it is the case of the defence that the deceased committed suicide by setting herself ablaze, however, the unnatural death of the deceased has not however been disputed by the defence.
21. The inquest report is Ext. Ka-8, which was prepared by S.I. Prithavi Singh. Even as per the inquest report, all the panch have stated that the deceased died due to burn injuries. All the prosecution witnesses have admitted that the deceased died an unnatural death. Even the accused persons in the statement under section 313 Cr.P.C. have admitted that the deceased died due to burning. Although other things have been stated in the statement under section 313 Cr.P.C. However, on the basis of above, point No. (i) has been proved.
22. As far as point No. (ii) is concerned, there is no dispute that the death occurred within seven years of marriage, inasmuch as the oral report was made on 15.08.1995 by the father of the accused-appellant, namely, Dharam Singh mentioning that the deceased was married to his son, 1-1/2 years before the occurrence. Thus, death occurred within seven years of marriage. This fact is not disputed. Consequently point No. (ii) is established.
23. Now it has to be seen whether the prosecution has been able to prove that soon before her death, the woman was subjected to cruelty or harassment by her husband or any relative. As stated earlier "soon before her death" is a relative term, which would depend upon the circumstances of each case and strait-jacket formula can be laid down about the period of "soon before her death". Since points No. (iii) and (iv) are being taken together and it has also to be proved that such cruelty or harassment was in connection with the demand of dowry.
24. PW-1 is the informant, who is brother of the deceased, has stated that after the deceased was taken by her husband and family members, she died due to burn after 15-17 days. In cross-examination this witness has stated that six months after the marriage when the deceased came home, she used to say that she was being harassed for dowry, but the family members did not pay heed to this. He has specified that he could not state as to when lastly the deceased had stated to her family members about the demand of dowry and subjecting her to cruelty.
25. In reference of a letter, also having been written by the deceased as regards the demand of dowry, which is said to be in existence, PW-1 Shukhdev Singh, who stated that he did not mention anything about this letter in the report. PW-1 Sukhdev Singh has stated that this letter was given dasti by the victim to her mother. What was the necessity of giving a dasti letter to her family members is not clear because this witness has specified that in that letter there was allegation of harassment against the husband and his family members. The witness has further stated that "eq>s ;g ;kn ugh fd i= feyus ds fdrus fnu ckn ckr gqbZ Fkh A ;g i= geus viuh cgu ls vius ?kj fy[kk;k FkkA"
26. Thus, adverse inference shall be drawn under the provisions of Section 114 (g) of Indian Evidence Act, which reads as under:
"114 (g). That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;"
27. Base has been made by the prosecution on the letter in existence, but even for the sake of arguments, if it is presumed that any such letter existed, it appears that this evidence was got created by the prosecution for safeguard and to prove harassment and cruelty, which does not find favour and does not prove the appellant either guilty or harassment or in connection with the demand of dowry.
28. Much emphasis has been laid on the point that the deceased was about six months pregnant, her husband assaulted her due to which she got her child aborted. This cruelty, if taken on its face value, will in itself not amount to cruelty or harassment in connection with the demand of dowry in the absence of specific averments about the same. It is nowhere the case of the prosecution that the pregnancy of the victim was got aborted due to demand of dowry.
29. PW-1 Sukhdev Singh has further stated that his sister had told him that the accused demanded dowry. This fact was told to him six months after the marriage, which was repeated many times, but he does not remember when the demand was made.
30. PW-3 is another brother of the deceased, namely, Jasbeer Singh, who has also stated that the accused and his family members used to demand dowry from the deceased. He has developed a new theory stating that in the letter written by the deceased, she had mentioned that her father-in-law used to beat her in intoxicated condition. In cross-examination, this witness has stated that a photocopy of the letter was produced before the court, whose original was with PW-1 Sukhdev Singh, brother of the deceased. Although, the other brother being PW-3 Jasbeer Singh has stated that the letter was not got written by the brother of the deceased but by the deceased, whereas PW-1 Sukhdev Singh has specifically mentioned that he had got the letter written intentionally by his sister, the deceased. According to this witness, this letter was handed over on 14.06.1995, but this does not find support from the statement of PW-1 Sukhdev Singh. PW-3 has admitted that he never complained about the harassment of the deceased to any authority. PW-3 has stated that the deceased had raised suspicion that she would be killed, but only this suspicion would not suffice. PW-3 has further stated that his sister had told him that her family members are harassing her. This fact was stated to this witness by the deceased one year before the incident. I do not think a period of one year would come under the category of 'soon before' as envisaged under law.
31. Another important witness produced by the prosecution as regards the demand of dowry and in such connection causing cruelty and harassment is PW-2 Dinesh Kumar, who is the neighbour of the parental house of the deceased and his family friend. He can be a natural witness, inasmuch as in his examination-in-chief he has stated that he used to go to Hapur in connection with his work, when the mother of the deceased asked him to find about the welfare of the victim, since the sister of the victim was married in Hapur. When this witness requested the sister of the deceased to call the deceased, she was called. Then, the deceased stated to this witness that the accused assaulted her and also stated that she should be called back to her house because her in-laws demanded Rs. 50,000/- and a scooter. In cross-examination, this witness has stated that in 1995 the mother of the victim had told him to know the welfare of the deceased, he went on 17th August, 1995. From that time about 1-1/2 years had passed since her marriage. This witness was also tested by means of cross-examination, in which he has stated that he had visited Hapur only once before the occurrence. He had visited Hapur before the year 1994, but he could not indicate the month. Thus, even if in 1994 the victim had made any complaint, it will not be covered by the phrase "soon before the death". The cross-examination of this witness PW-2, Dinesh Kumar was conducted on two dates. In the initial date, he specified that " gkiqM+ es bykgkckn cSad ds lkeus Mcy LVksjh ij nQrj gSA vc mldk nQrj ugha gSA og QzkM dEiuh FkhA"
32. Contradicting himself in his cross-examination, this witness has stated that " eSus vius iqoZ esa fn;s x;s C;ku es ugh dgk Fkk fd ;g dEiuh QzkM gSA eSus blls iwoZ ;g C;ku ugh fn;k Fkk fd "og QzkM dEiuh Fkh" eSa bldh dksbZ otg ugh crk fd iwoZ ds C;ku esa "og dEiuh QzkM FkhA" dSls fy[kk x;kA"
33. Thus, this witness has also miserably failed to prove that the deceased was subjected to cruelty or harassment soon before her death by her husband and family members, which was in connection with the demand of dowry. Thus, point Nos. (iii) and (iv) have not at all been proved by the prosecution. Meaning thereby that the requirement as envisaged under section 304-B IPC do not stand fulfilled.
34. Since initial burden under section 304 IPC has not been discharged by the accused, hence, presumption under section 113-A of Indian Evidence Act also would not come into play.
35. Although the prosecution has not been able to prove point Nos. (iii) and (iv), but the defence taken up by the appellant has to be looked into. This is a case of the defence that the deceased was a patient of depression, due to abortion of her child. She was being treated for the same and due to depression she set herself ablaze and committed suicide. In support thereof the appellant has place reliance upon the copy of report Ext. Kha-1, which goes to show that on 19.08.1995, the father of the appellant, namely, Dharam Singh had given an information at the police station that his daughter-in-law was in depression, who had committed suicide in the bathroom and her family members had been informed. This information as per Ext. Kha-1 was given at the police station at 21.15 hours, whereas report of the incident was lodged on 20.08.1995 at 4.00 a.m.. When the prosecution witnesses were questioned on this point, Sukhdev PW-1 and Jasbeer Singh PW-3 had admitted that when they reached the house of the deceased, her body was kept on ice. Police was present there, who were doing some documentation work. Perusal of the inquest report, Ext. Ka-8 shows that the inquest proceeding commenced from 6.30 a.m to 8.15 a.m., whereas report of the matter was lodged on 20.08.1995 at 4.00 a.m. A perusal of the inquest report also shows that the factum of death of the deceased was reported first by the father of the appellant, namely, Dharam Singh. Even in the inquest report, it has been mentioned that the body of the deceased was kept and preserved in ice.
36. PW-1, Sukhdev Singh has admitted that when he reached his sister's house, police was present. This statement finds support from the statement of PW-3 Jasbeer Singh.
37. PW-4, Dr. Sandeep Pawar, has opined that the deceased died due to asphyxia as a result of ante-mortem injury and smell of kerosene was present on the body of the deceased.
38. S.I. Prem Pal Singh, who is the Investigating Officer has admitted that on 19.08.1995, Dharam Singh one of the accused had reported about suicide of Jasveer Kaur at police station, which was scribed in the G.D. This witness has further stated that place of incident was bath-room, where the body was kept and two or three accused were arrested from the spot. No external marks of injuries were found on the body of the deceased.
39. PW-8, S.I. Prithavi Singh has admitted that he commenced inquest proceedings on the information of the accused Dharam Singh.
40. Dr. Indrajeet Sharma, DW-2 has stated that the deceased was in depression and he was treating her.
41. DW-3 is the neighbour of the accused, who has stated that on 19.08.1995 at about 5.30 p.m. he saw smoke coming out from the bath-room of the appellant. The latches of the bath-room were broken and deceased was taken out in burnt condition.
42. There is no reason to disbelieve this witness, whose evidence is supported by the site plan Ext. Ka-2, in which the place of occurrence is shown to be the bath-room, which is shown by the letter "A" in the site plan. Thus, the prosecution has miserably failed to prove the charges under section 304-B read with 149 IPC against the appellant.
43. As far as the conviction under section 306 IPC is concerned, conviction under section 304-B IPC and 306 IPC is bad in the eyes of law.
44. Before I proceed to analyse the evidence adduced in support of the charges by the prosecution against the accused appellant, it would be pertinent to note the concept of abetment.
45. Section 306 IPC deals with "Abetment of suicide", which reads as follows:
"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
46. The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. `Sui' means `self' and `cide' means `killing', which implies an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
47. Indian Penal Code does not prescribe any punishment for suicide, because the offender is no more in the world. However, attempt of suicide is an offence under section 309 IPC.
48. "Abetment" has been defined under section 107 of the Code, which reads as follows:
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.
Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration- A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.
49. In the case of Ramesh Kumar vs. State of Chhattisgarh (2001) 9 SCC 618, a three-Judge Bench of the Hon'ble Apex court in paragraph 20 of the report has examined different shades of the meaning of "instigation'. Para 20 reads as under:
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. Or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
50. In fact, in the written report itself, the informant has not shown whether the deceased committed suicide or she was burnt to death as is evident from the following lines:
" esjh cgu tlohj dkSj buls dkQh ijs'kku o rax jgrh Fkh blfy;s og [kqn tyh gS ;k mUgksaus vkx yxkdj tyk fn;k gSA tks ej pqdh gSA"
51. Thus, what has been stated and discussed above, I conclude that the prosecution case is a bundle of false allegations and improbable facts, due to which the learned trial court mislead itself and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law, as such the accused is entitled to be acquitted and the appeal is liable to be allowed.
52. Hence, the impugned judgement of conviction and sentence dated 13.10.2014 passed by the learned Additional Sessions Judge, Court No. 10, Ghaziabad in Sessions Trial No. 501 of 1998 (State Vs Bhupendra Singh and others), arising out of Case Crime No. 522 of 1995, under Sections 498A/149, 306/149, 304-B I.P.C., 3/4 Dowry Prohibition Act/149 IPC, Police Station Hapur, district Ghaziabad, is hereby set aside.
53. Accordingly, the appeal is allowed.
54. The appellant-Bhupendra Singh is on bail. His bail bond is cancelled and the sureties are discharged. However, the appellant is directed to comply with the provision of Section 437-A Cr.P.C.
55. Let a copy of this order be sent to the trial court concerned for compliance of the order.
Order Date: 04.02.2016 Sazia