Allahabad High Court
Sharda Devi vs State Of U.P. on 15 June, 2016
Author: Pratyush Kumar
Bench: Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 02.05.2016 Judgment delivered on 15.06.2016 Court No. - 42 Case :- CRIMINAL APPEAL No. - 6631 of 2009 Appellant :- Sharda Devi Respondent :- State Of U.P. Counsel for Appellant :- J.L. Srivastava,Somil Srivastava Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 6528 of 2009 Appellant :- Anil Kumar Respondent :- State Of U.P. Counsel for Appellant :- Ajay Vikram Yadav,B.P. Singh,Jainendra Singh,M.K.Rajvanshi,Prashant Kumar Dwivedi,Somil Srivastava,V.S.Senger Counsel for Respondent :- Govt. Advocate Hon'ble Pratyush Kumar,J.
Since both the appeals are against the same judgment and orders, they are disposed of by a common order.
These two appeals, filed on behalf of the accused/appellants, are directed against the judgment and orders dated 29th October, 2009 passed by Sri Narendra Singh, Additional Sessions Judge, Fast Track Court No. 5, Firozabad, whereby the accused appellants have been convicted under sections 498A, 306 IPC and sentenced to undergo rigorous imprisonment of three years with fine of Rs. 2,000/- and rigorous imprisonment of 10 years, with fine of Rs. 5,000/-, respectively. In default of payment of fine they were further directed to undergo the simple imprisonment of six months and one year respectively. All the sentences were directed to run concurrently.
Hearing of these two criminal appeals were expedited by the Hon'ble Apex Court vide this order dated 7th November, 2014 whereby the Hon'ble Apex court had directed as under:
"We see no reason to interfere with the impugned order. The special leave petition is accordingly dismissed. We, however request the High Court to make an endeavour to dispose of the appeal as expeditiously as possible and preferably within six months from the date a copy of this order is filed before it."
Heard Sri Anil, Advocate and Sri J.L. Srivastava, Advocate learned counsel for the appellants, Sri Ghan Shyam Maurya learned counsel appearing for the complainant and Sri Raj Bahadur, learned AGA for the State and perused the record.
Learned counsel for the appellants in support of these appeals has submitted that death of the deceased had occurred due to natural causes. No opinion about the cause of death could be given by the doctor who performed the autopsy and visra report is also silent about the cause of death. According to him prosecution could not prove demand of dowry and consequent torture and harassment of the deceased on that account. He has further submitted that there is no evidence even to show that immediately before her death deceased was ill treated or tortured so as to compel her to commit suicide. According to him the trial Judge has not appreciated the evidence in proper perspective, FIR is ante timed. According to him findings recorded by the learned trial Judge are erroneous in fact and law and deserve to be set aside.
On behalf of the State-respondent these arguments have been repelled and it has been submitted that findings recorded by the learned trial Judge are well substantiated from the record, cogent reasons have been given in support thereof. According to him from the facts and circumstances proved by the prosecution the learned trial Judge has rightly raised the presumption under section 113A of the Indian Evidence Act. According to him the impugned judgment and orders need no interference.
The facts giving rise to the present appeal may be summarized as under:
That on 26th June, 1989 at 9.30 p.m. Mahendra Kumar Ojha son of B.K. Ojha gave a written report at police station Tundla stating therein that his mother Smt. Omwati married her daughter Beena 3-1/2 years ago with Anil Kumar. After marriage Anil Kumar, his mother Smt. Sharda and his younger brother Sunil Kumar used to harass and torture his sister for dowry. They were specially demanding scooter. His mother was unable to meet those demands. His sister wrote several letters to her mother. On 25th May, 1989 at 8.15 p.m. he received information from Tundla Control (Room) that his sister had died on 25th May, 1989. They proceeded from Hathras Junction to Railway Hospital, Tundla. Railway doctor informed them Beena was brought dead to the hospital. After seeing the dead body of his sister and surrounding circumstances it appeared that all those three persons had murdered his sister in a preplanned manner.
At this chick FIR was scribed, case crime no. 340/89 under sections 498A, 304 B IPC was registered at the police station, investigation was entrusted to circle officer, Itmadpur. After investigation charge sheet was submitted against all the three accused under sections 498A, 306 IPC. On the said charge they were tried by the Court of Session and convicted as above.
In order to prove the charges on behalf of the prosecution in the documentary evidence written report Ext. Ka-1, postmortem report Ext. Ka-2, chick FIR Ext. Ka-3, inquest report Ext. Ka-5, charge sheet Ext. Ka-10, site plan Ext. Ka-11 and Ka-12 have been filed. In the oral evidence 11 witnesses were examined. Out of these Mahendra Kumar P.W.1 and Smt. Omwati P.W.2 are the family members of the deceased. They have reiterated the facts stated in the FIR.
Dr. J.C. Agrawal, P.W.3 performed the autopsy of the dead body of Smt. Beena on 26th May, 1989 at 1 p.m. Time since death was ¾ days. According to him one abrasion .5x.5 cm on the upper side of neck was present. During the internal examination he found the brain, both lungs, pleura and other internal organs congested. The cause of death could not be ascertained. Visra was preserved. During cross examination he admitted the possibility that death could have occurred due to food poisoning. Dalel Singh P.W.4 is the employee of N.R. Hospital, Tundla who took the death memo to the hospital. H.C.P. Ram Aasre, P.W.5 is the scribe of chick FIR. He has not been given any suggestion about ante timing of FIR.
Mahendra Kumar Gupta, P.W.6 is the second investigating officer who gave details of the steps taken in the course of investigation.
S.I. Laxmi Prasad, P.W.7 conducted the inquest proceedings on 26th May, 1989 at 8.45 A.M. Dr. M.K. Mohanti P.W. 8 is the doctor in whose presence Smt. Beena was brought and he declared her dead.
SSI Jagveer Singh P.W.9 is the 3rd investigating officer who submitted the charge sheet.
Constable Ram Babu Tiwari, P.W.10 has given secondary evidence. He has proved the death of S.I. Shyam Singh. The first investigating officer and also proved the site plans Ext. Ka-11 and Ka-12.
H.C. Sharma, P.W.11 was the Assistant Director, State Forensic Laboratory, Agra who on 21st December, 1992 examined the visra of Smt. Beena Devi. According to him in the part of visra he found morphine poison and no other. He has proved the report of State Domestic Science Laboratory Ext. Ka-13.
During cross examination he admitted that in severe case of vomiting and diarrhoea injunction of morphine might be given to Smt. Beena.
The appellants in their statement recorded under section 313 Cr.P.c. have admitted marriage of Smt. Beena with Anil 3-1/2 years before death of the deceased. Rest of the facts stated by the prosecution witnesses were denied by them. According to them they were falsely implicated. Smt. Beena was ill, suffering from vomiting and diarrhoea and she had died on account of that. In the defence no evidence was given.
The learned trial Judge after taking note of the evidence of the prosecution, has opined that deceased was tortured for dowry which compelled her to commit suicide. FIR was not ante timed.
In view of statement of S.P. Sharma P.W.11 there remains no doubt that in the visra taken out during the postmortem examination of Smt. Beena contains morphine poison.
The defence case is that deceased had died due to vomiting and diarrhoea and prosecution case is that she was forced to commit suicide. Since during autopsy no prick was found on the person of Smt. Beena and from the scientific evidence death by poisoning stands proved, I conclude that death of Smt. Beena was a result of self administration of morphine poison which amounts to committing suicide.
The core question remains whether the deceased was driven to commit suicide by the appellants or she committed the suicide on her own volition without any abetment by the appellants. To decide this, the Court has given statutory guideline in the form of section 113A of the Indian Evidence Act, which reads as under:
"Presumption as to abetment of suicide by a married woman When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation-For the purposes of this section 'cruelty' shall have the same meaning as in Section 498A of the Indian Penal Code."
Before prosecution can take any help from this section. It has to show that married woman committed suicide within seven years of her marriage; and (2) Her husband or any relative of her husband had subjected her to cruelty.
Smt. Beena died, as a result of suicide within seven years of her marriage, has been proved by the prosecution to the satisfaction of the Court. Now it is to be seen whether the prosecution could successfully show that the appellants had subjected to her to cruelty or not. On this point the court has testimonies of two witnesses Mahendra Kumar P.W.1 the first informant and brother of the deceased and Smt. Omwati P.W.2, mother of the deceased.
On behalf of the appellants it has been submitted that Mahendra Kumar Ojha is not the son of Smt. Omwati and she has no where stated that first informant accompanied her or met her at the hospital. According to Smt. Omwati she was accompanied by the wife of his son Krishna Kumar Ojha and his eldest son Krishna Kumar Ojha met her there. She made no reference of Mahendra Kumar Ojha.
Mahendra Kumar Ojha P.W.1 has given his parentage as son of Sri Ram Babu Ojha. Smt. Omwati P.W.2 has given name of her husband as Sri Ram Babu. From the testimonies of both these witnesses it transpires that these two may not have remained on good terms. For that reason Smt. Omwati did not take his name but their relationship cannot be disputed specially when they have not been suggested about their disputed relationship. The written report was written by Krishna Kumar Ojha and in whose presence the written report was signed by Mahendra Kumar Ojha. This shows that both these have been present at the N.R. Hospital, Tundla. For these reasons I am not prepared to accept the argument that Mahendra Kumar Ojha is not the brother of the deceased. This witness has stated that the appellants and co-accused Sunil Kumar demanded scooter and for dowry beaten his sister. This statement remained unshaken during the cross-examination. Smt. Omwati P.W.2 have also made similar statement. During cross examination her testimony also remained unshaken.
In the defence no evidence has been given to show that no demand of dowry was made, for these reasons I am of the opinion that prosecution has successfully proved the essentials envisaged in section 113A of the Evidence Act.
There is one more point to consider that after two pre conditions contemplated in section 113A of the Evidence Act stand established, how far and to what extent the court may raise the presumption provided in the said section. The Hon'ble Apex Court in the case of Ramesh Kumar Vs. State of Chhattisgarh 2001 Cr.L.J. 4724 has observed that 'usage of words or other circumstances of the case' require that a cause and effect relationship between the cruelty and suicide has to be established before drawing the presumption. The presumption is not of mandatory nature.
On behalf of the appellants reliance has been placed on Desraj Vs. State of Hariyana 2004 (12) SCC 297. In this case the Hon'ble Apex Court was confronted with a similar question and had to some extent similar facts. Suicide was established. Cruelty with married woman was also established. The Hon'ble Apex Court first considered the background wherein such presumption could be raised. The relevant observation in this regard reads as under:
"The question then arises as to whether in the facts and circumstances of the case the appellant can be convicted of the offence under Section 306 I.P.C. with the aid of the presumption under Section 113A of the Indian Evidence Act. Any person who abets the commission of suicide is liable to be punished under Section 306 I.P.C. Section 107 I.P.C. lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more person in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. In the instant case there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon Section 113A of the Indian Evidence Act under which the Court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The explanation to Section 113A further clarifies that cruelty shall have the same meaning as in Section 498A of the Indian Penal Code which means:- "(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand".
The Hon'ble Apex Court has clarified the distinction between presumption provided under section 113A of the Evidence Act and 113B of the said Act. The observation made by the Hon'ble Apex Court dealing with this distinction may be gainfully referred as below:
"Unlike Section 113B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the Court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in Section 498A I.P.C. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in RameshKumar Vs. State of Chhattisgarh (2001) 9 SCC 618 wherein this Court observed : "This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression "the other circumstances of the case" used in Section 113- A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in Section 113-A is defined in Section 4 of the Evidence Act, which says "Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it".
Thereafter the Hon'ble Apex Court has dealt with degree of proof and provided guideline for those cases where there is a very thin line between the words 'proves' and words 'not proves'. The Hon'ble Apex Court in the State of West Bengal Vs. Orilal Jaiswal and Anr. (1994) 1 SCC 73 in this regard observed :
"We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498A IPC and Section 113-A of Indian Evidence Act.
Although, the court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater [(1950) 2 All ER 458,459] has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject- matter".
Now to take help from these guidelines. It appears necessary to notice how the Hon'ble Apex Court had thrashed out the controversy raised before it. To illustrate this relevant observation is reproduced as under:
"Having regard to the principles aforesaid, we may now advert to the facts of this case. The learned Trial Judge took the view that since the wife of the appellant committed suicide and since the appellant did not disclose as to what conversation preceded her committing suicide and that there were allegations of cruelty against the appellant, it must be presumed under Section 113-A of the Indian Evidence Act that the suicide had been abetted by him. We do not find ourselves in agreement with the finding of the Trial Court, having regard to the facts and circumstances of this case and our finding that the prosecution is guilty of improving its case from stage to stage. The allegations that the appellant did not like to keep the deceased with him because she was not good looking, or that he was addicted to liquor or that the deceased had reported these matters to her parents and others, or that the appellant intended to re-marry and had told his wife Jeeto about it, or that the deceased had once come to her father's house in an injured condition, or even the allegations regarding beatings, do not find place in the statements recorded by the police in the course of investigation. These allegations have been made at the trial for the first time. All that was alleged in the FIR or even at the stage of investigation was that there were frequent quarrels between the husband and wife sometimes resulting in physical assault, on account of the husband being addicted to consumption of 'Bhang'. The other allegation that the appellant was aggrieved of the fact that his sister Naro was not being properly treated by Fateh Chand, PW-3, brother of the deceased, also appears to be untrue because there is nothing on record to show that there was any disharmony in the marital life of his sister Naro. In fact, Fateh Chand, PW-3, her husband, himself stated on oath that he was living happily with his wife Naro, sister of the appellant. On such slender evidence therefore we are not persuaded to invoke the presumption under Section 113-A of the Indian Evidence Act to find the appellant guilty of the offence under section 306 I.P.C."
When allegations made in the FIR, in the statements of Mahendra Kumar Ojha P.W.1 and Smt. Omwati P.W.2 are considered, I find that couple lived together 3-1/2 years and deceased died in her sasural. Soon after her marriage she was subjected to demand of dowry specially the scooter about which the deceased had written letters to her mother and whenever she visited her mayake she conveyed the demand of dowry to her and when her mother pleaded her inability to made the demand the appellants were not pacified.
Nowhere it has come out that what ill treatment was meted out to the deceased by the appellants. Whether appellants threatened her either by murdering her or marrying again with another woman in case demand of dowry was not met. There is no specific detail. There are bald statements of these two witnesses that deceased was beaten for dowry. These allegations may be enough to constitute cruelty with married woman as defined under section 498A IPC but they are not enough to satisfy the conscience of the Court to conclude that for this reason the deceased had committed suicide. The Hon'ble Apex Court has also took the similar view. For these reasons I am of the opinion that this is not a case where the learned trial Judge should have raised presumption under section 113A of the Evidence Act. Though conditions were fulfilled but facts and circumstances of the case were not supportive to raise that presumption.
In my opinion against the present appellants charge under section 306 IPC could not be proved by the prosecution beyond all reasonable doubt though charge under section 498A IPC stands proved beyond all reasonable doubt. To this extent I agree with the finding of the learned trial Judge but on the other point I find his finding to be erroneous.
For these reasons appeals have substance to this extent that the charge under section 306 IPC could not be proved against the present appellants. But their conviction under section 498A IPC is fully justified and deserves to be affirmed hence is hereby affirmed.
Appeals are partly dismissed.
Conviction and sentences of the appellants under section 498A IPC are affirmed.
Appeals are partly allowed and conviction and sentences of the appellants under section 306 IPC are set aside. To this extent the impugned judgment and orders are modified.
The appellants are on bail, the learned Sessions Judge, Firozabad is directed to procure the presence of the appellants and send them to jail to serve out their sentences.
Office is directed to certify this order to the court concerned forthwith for compliance and to send back the lower court record.
Order Date :- 15.06.2016 MT**