Allahabad High Court
Brijesh Singh vs State Of U.P. And 5 Others on 25 October, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:172190-DB
Reserved On- 02.09.2024
Delivered On-25.10.2024
Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 319 of 2021
Appellant :- Brijesh Singh
Respondent :- State Of U.P. And 5 Others
Counsel for Appellant :- Gopal S. Chaturvedi,R.P.S. Chauhan
Counsel for Respondent :- Raj Kumar Tripathi
and
Case :- GOVERNMENT APPEAL No. - 378 of 2024
Appellant :- State of U.P.
Respondent :- Ajit Singh And 4 Others
Counsel for the appellant :- Govt. Advocate
Hon'ble Siddharth,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
(Delivered by Hon'ble Siddharth J.) Order on Criminal Appeal
1. Heard Sri R.P.S. Chauhan, Sri Vipin Kumar Singh and Sri Shashank Shekhar, learned counsel for the appellant; Ms. Manju Thakur, learned A.G.A.-1 and Sri Prem Shankar Prasad, learned A.G.A for the State, respondent no. 1; Sri Kamal Krishna, learned Senior Counsel assisted by Sri Raj Kumar Tripathi, learned counsel for the respondent nos. 2 to 6 and perused the material on record.
2. The above noted appeal under Section 372 Cr.P.C and the Government Appeal are directed against the common judgment and order of acquittal dated 14.08.2014 passed by Additional Sessions Judge, Court No. 2, Ghaziabad in Sessions Trial No. 2125 of 2012 (State vs Ajit Singh and Others) arising out of Case Crime No. 225 of 2010, under Sections- 302/149, 304-B, 498-A IPC and Section ¾ of D.P. Act, Police Station- Indirapuram, District- Ghaziabad, whereby the opposite party nos. 2 to 6 in appeal u/s 372 Cr.P.C., have been acquitted of charges under the aforesaid sections.
3. Earlier the above noted appeals were dismissed by this Court. The judgments of this Court were challenged before the Apex Court, which set them aside and directed this Court to decide the appeals by giving elaborate reasons.
4. The facts in both the appeals noted above are common and the sake of clarity and convenience reference to the parties hereinafter shall be as per Criminal Appeal u/s 372 Cr.P.C., No. 319/2021.
5. As per the F.I.R., the prosecution case is that the sister of P.W.-1, the informant, Suchita Singh, aged about 27 years, was married to Ajit Singh, respondent no. 2, on 12.12.2008 as per hindu marriage rites. In their marriage informant gave Rs. 10 lakhs in cash, jewellery worth 4 lakhs, T.V., Fridge, etc., in dowry. Few days after marriage father-in-law, mother-in-law, husband, father of elder sister-in-law, Kaushlendra Pratap Singh, who was related as Mama of respondent no. 2, Ajit Singh, also and was also mediator in marriage of deceased with Ajit Singh, informed him on phone about the dissatisfaction with the dowry given in marriage of sister of P.W.-1 and respondent no. 2, Ajit Singh. He informed P.W.-1 that furniture of Rs. 2 lakhs and Rs. 2 lakhs in cash should be given. On the eve of rakhshabandhan sister of P.W.-1 came to his house and informed about her harassment for dowry by the respondent nos. 2 to 6. He requested the respondent nos. 2 to 6 on telephone not to harass his sister since telephone he is not in a position to fulfil their demand right now. After the festival of rakhshabandhan, P.W.-1 went to the matrimonial home of his sister at Raibareilly alongwith his mother and sister from Allahabad and tried to convince respondent nos. 3 to 6 that he is not in a position to spend Rs. 4 lakhs to fulfil their demand. They stated that leave your sister and assured that they will not harass her and, thereafter, P.W.-1 came back. After sometime his sister again informed P.W.-1 on phone that she is being harassed by the respondent nos. 2 to 6. In the evening of 05.10.2010 P.W.-1 and his family members were informed on phone that sister of P.W.-1 has died. P.W.-1 and his family members went to her place at Ghaziabad and found that his sister has died and her dead body was lying on a folding cot. Thereafter F.I.R was lodged against the respondent nos. 2 to 6 on 09.10.2010 by P.W.-1.
6. To prove the prosecution case, the prosecution produced, P.W.-1, Brijesh Singh, informant (brother of deceased); P.W.-2, Jai Narayan Singh (father of deceased); P.W.-3, Sangeeta Singh (elder sister of deceased); P.W.-4, R.K. Vashishtha (Sub-Inspector) who prepared the inquest report of deceased; P.W.-5, Dr. Ashok Kumar (Autopsy Doctor); P.W.-6, Kamlesh Kumar, (Deputy Supreintendent of Police), IInd Investigating Officer; P.W.-7, Satish Chandra, First Investigating Officer. (S.H.O.,P.S- Indirapuram).
7. Statement of respondent nos. 2 to 6 were recorded under Section 313 Cr.P.C and two defence witnesses, namely, Dr. Rajesh Singh and Smt. Pushpa Devi, were produced as D.W.-1 and D.W.-2 before the trial court.
8. Before the trial court, P.W.-1 repeated the contents of F.I.R in his examination-in-chief. He further stated that on receiving the information about the death of his sister, Sucheta Singh, on 05.10.2010 at about 07:00 p.m, his father and family members reached Ghaziabad and saw dead body of his sister lying on a folding cot. He lost his senses on account of grief and sudden death of his sister after looking to her dead body. He got convinced that her death has been caused by the respondent nos. 2 to 6 by strangulating her to death. On 06.10.2010 he gave written information to the police. On 09.10.2010 he got the application typed on computer and after putting his signature gave it at police station- Indirapuram for lodging F.I.R.
9. In his cross-examination, P.W.-1 stated that he has obtained degrees of B.Tech and M.B.A from Agricultural University by studying from the year 2004 to 2008. He has obtained degree of M.B.A from I.I.P.M Delhi. He admitted that he is working in a company at Surat right now. He started his job in 2012. He has one brother and three sisters. One of his sister was married to Atul Singh, who is an Advocate in Allahabad High Court. The other sister is married to an Engineer and the third sister was the deceased and his younger brother is doing the job of contractor. He is resident of Allahabad and original resident of District Chitrakoot. His father is employed in police. At the time of death of his sister, his father, uncle and younger brother, reached Ghaziabad. Number of other relatives reached Ghaziabad. Prior to cremation dead body of deceased at Raebareilly his mother and sister had became ill and the neighbours took them to the hospital. Dead body of deceased was taken from Ghaziabad to Raebareilly on 07.10.2010 in ambulance by him and respondent no. 2, Ajit Singh. His father and brother also accompanied the ambulance in car and reached Raebareilly. He came back before the cremation of a dead body of his sister because his mother and sister had fallen ill. He did not got the F.I.R written. He only informed the S.H.O about the whole incident and why this fact was not mentioned in his statement u/s 161 Cr.P.C he cannot tell the reason. He does not remembers when marriage of his deceased sister was settled. Mediator of the marriage of his sister was Kaushlendra Pratap Singh. The goods given in dowry were given voluntarily. He stated that he does not knows how much amount was spent in the marriage of his sister, Sucheta. His father might be knowing. At the time of marriage his sister, her husband, Ajit Singh, was working in Nokia Company at Bangalore and was earning handsome salary of Rs. 10 lakhs. Father of Ajit Singh namely, Kunwar Bahadur Singh, was earning Rs. 30,000/- per month. His mother, Malti Singh, is house-wife. Brother of Ajit Singh, namely, Amit Singh, is Lecturer and his wife, Kiran Singh, is home maker. Kunwar Bahadur Singh, has his own house on Raebareilly road. His father was posted in Agra on the post of Deputy Superintendent of Police at Agra one year prior to death of his sister. His father reached his sister's place at Ghaziabad from Agra and he went to Ghaziabad by train. When he reached there his father and respondent no. 2, Ajit Singh, were present there alongwith one policeman. He had come from Saharanpur to Ghaziabad. Earlier Ajit Singh used to work at Bangalore and thereafter left his job and came to Ghaziabad and was working at there. His sister came to his house in August, 2010. She came to his house at Allahabad three times after her marriage with Ajit Singh. She came once on festival of Holi and then alone from Bangalore from flight in March-April, 2009 and Ajit Singh had purchased ticket for her. He gave information at police station on 06.10.2010 about the suicide of his sister by hanging from fan. He stated that prior to lodging of F.I.R of this case he never gave any report or complaint to any police or administrative officer regarding harassment of his sister for dowry by the family members of her matrimonial home. His sister wanted to do job and had applied in number of companies but could not get job. He denied knowledge of fact that Ajit Singh left his job at Bangalore because his wife, Sucheta Singh, could not get job at Bangalore and hence they came to N.C.R., Ghaziabad where there were much opportunities of job. He could not tell the names of the companies wherein his sister applied for job. He denied that his sister was mentally preturbed and upset because of not getting any job and due to aforesaid reason she committed suicide. He denied that any list of goods given in dowry was prepared. He admitted that when his sister was at Raebareilly on 13.12.2008 her father-in-law, Krishna Bahadur Singh, made a call and stated that the goods given in dowry are of inferior quality and less in numbers. The cash amount given is also not sufficient and furnitures of Rs. 2 lakhs should be further given. He denied knowledge of phone number wherefrom call was made by Krishna Bahadur Singh. He informed his father in this regard. In August, 2010, when his sister came, she informed about the demand of dowry by the respondent nos. 2 to 6 and her harassment by them. After going back she informed him on phone also. He could not tell the phone number of his deceased sister. He admitted that Ajit Singh, respondent no. 2, gets good salary of about 10 lakhs but his family members were demanding Rs. 2 lakhs in cash and furniture worth Rs. 2 lakhs.
10. P.W.-2, stated that he spent Rs. 26 lakhs in marriage of his daughter, which included Rs. 10 lakhs in cash, jewellery and house hold goods worth Rs. 4 lakhs. The respondent nos. 2 to 6 were not happy and they were demanding Rs. 2 lakhs in cash and furnitures of Rs. 2 lakhs. They used to physically and mentally torture his daughter who informed his children in this regard. He had requested the respondent nos. 2 to 6 not to demand further dowry since he was unable to meet their demand. After going to Bangalore with respondent no. 2, Ajit Singh, she informed him on phone about the demand of dowry by respondent no. 2, Ajit Singh and family members of her matrimonial house. He stated that the mediator of the marriage, Kaushlendra Pratap Singh, also stated that the dowry being demanded by the family members of the matrimonial home of his daughter should be given. After 7-8 months of his daughter going to Bangalore she came back and informed that Ajit Singh had taken loan of Rs. 6-7 lakhs from company. His entire salary goes in re-payment of loan. Rs. 10 lakhs, which was given in dowry, was spent by her elder brother-in-law, Amit Singh, respondent no. 3, for purchasing a plot in the name of his wife, Kiran Singh, respondent no. 5. He questioned Ajit Singh about the loan taken by him and asked him to repay the same and not to harass his daughter. On this his daughter was reprimanded by Ajit Singh. Thereafter respondent no. 2, Ajit Singh, got job at Noida. When his daughter was coming to her parental home. Ajit Singh asked her to came back with Rs. 2 lakhs and furniture of Rs. 2 lakhs. Ajit Singh dropped his daughter at Raebareilly after coming from Bangalore. She came to Allahabad on the eve of rakshabandhan and informed about the demand of further dowry by respondent nos. 3 to 6. His daughter informed her sisters about the demand of respondents, she did not informed her mother in this regard who is sugar patient. When P.W.-2 came to his house, his other two daughters informed him about the harassment of Suchita by respondent nos. 2 to 6. When Suchita went back to Raebareilly, he assured respondents aforesaid that he will fulfil their demand after election. They directed that Suchita should be dropped at Ghaziabad at her husband's place and his daughter, son and wife went to Ghaziabad to drop her. They informed that at Ghaziabad there was only one folding cot, one stool, one chair and one plastic mat in the house of respondent no. 2, Ajit Singh. P.W.-2 stated that he will make arrangement of furnitures after the election but on 05.10.2010, respondent no. 3, Amit Singh, informed him on phone that Suchita, had died. He went to Ghaziabad and saw the deceased lying on a folding cot. Blood was oozing from her nose and mouth. Her dowry death was caused by respondent nos. 2 to 6. P.W.-2 brought on record sale deed got executed by respondent no. 3, Amit Singh, in the name of his wife, Kiran Singh, respondent no. 5. P.W.-2, proved that he started his career on 17.01.1972 on the post of constable and after gradual promotions he became Deputy Superintendent of Police in March, 2007 and was transferred to Agra in June, 2009. He admitted that investigation of dowry death cases are done by the Deputy Superintendent of Police. He proved that Kaushlendra Pratap Singh was the mediator of marriage of his daughter with respondent no. 2, Ajit Singh. He received information of death of his daughter from Amit Singh, respondent no. 3, on 05.10.2010 at 06:00 p.m., when he was at Agra. He left Agra by his private car alone at about 09:00 p.m for Ghaziabad and reached at 06:00 a.m. at the house of respondent no. 2, Ajit Singh. Dead body of his daughter was lying there on a folding cot. Ajit Singh, respondent no. 2, was present there and one relative of P.W.-2, K.K. Singh, was also present. At about 1:00 p.m on the next day the dead body of his daughter was sent for post-mortem. P.W.-1 reached there at about 05:30-06:00 a.m on 06.10.2010. Prior to that at about 05:30, Krishna Bahadur Singh, respondent no. 6 and Kaushlendra Pratap Singh and two unknown persons had also reached there. He had spent Rs. 26 lakhs in the marriage of his daughter but he did not informed about the source of his earning to his higher authorities nor he disclosed it in his income tax return. He further stated that he paid Rs. 10 lakhs in cash and gave jewellery and goods worth Rs. 4 lakhs in marriage of his daughter. He could not inform the place from where he got the jewellery made nor he could inform what items of jewellery were given. He also could not state in whose name T.V and fridge was purchased by him. He also admitted that prior to the death of deceased he never made any complaint to any authority with regard to demand of dowry being made from his daughter by respondent nos. 2 to 6. He could not give any evidence of respondent no. 2 taking loan of Rs. 6-7 lakhs from his company nor he could give details of loan repaid by Ajit Singh. He stated that his daughter never applied for job at Bangalore. She applied for same after coming to Ghaziabad at Noida. She had applied only in Dabur Company but could not get the job.
11. P.W.-3 stated that marriage of his sister, Suchita, took place with respondent no. 2, Ajit Singh, at Raebareilly. Her parents gave Rs. 10 lakhs in cash and jewellery, T.V., Fridge, etc., worth Rs. 4 lakhs. The respondent nos. 2 to 6 and the mediator of marriage, Kaushlendra Pratap Singh, were not happy with the dowry and used to harass her sister physically and mentally. Deceased informed this fact to her on phone after 7-8 months of her marriage. She came to her mother's place at Allahabad and informed her that husband of Suchita has taken loan of Rs. 6-7 lakhs from his company which is deducted from his salary. Rs. 10 lakhs, which was given in dowry, was spent by respondent no. 3, Amit Singh, for purchasing land in the name of his wife, respondent no. 5, Kiran Singh. Her parents tried to pacify the respondent nos. 2 to 6 to refrain from demand of further dowry but they did not relent. When deceased came to her parental home, she informed about the conduct of the respondent nos. 2 to 6. Her father talked to respondent nos. 2 to 6 in this regard and thereafter Suchita was dropped back to Ghaziabad. She stated that while living at Bangalore, Suchita never sent any letter regarding her harassment for dowry. She never saw any injury on the body of Suchita nor got her treated. P.W.-3 further stated that Suchita informed her that Ajit Singh demanded Rs. 2 lakhs in cash and furniture worth Rs. 2 lakhs. She denied that Suchita was desirous of doing job and she had applied for it. She had done training in Dabur Company but Ajit Singh did not left his job at Bangalore because Suchita was not getting job in Bangalore. She denied that Suchita had applied in number of companies in N.C.R for getting job. She expressed her ignorance about any account in the name of Suchita and her having any A.T.M card.
12. P.W.-4, R.K. Vashistha, proved that he prepared inquest report of dead body of deceased on the dictation of the Tehsildar, Sri Jai Prakash. He mentioned that the deceased committed suicide by way of hanging from the fan. Three pieces of saree were found on the spot. He proved that he sent the dead body of the deceased for post mortem.
13. P.W.-5, Dr. Ashok Kumar, proved that he was posted at Hindon Mortuary on 06.10.2010 where the post mortem of dead body of the deceased was conducted by him on the order of Naib Tehsildar, Jai Prakash, alongwith Dr. K.K. Singh. He found the following ante mortem injuries on the dead body of the deceased:-
(a) Face pale, saliva running down left side.
(b) Ligature mark in front below chin and above thyroid going backward interrupted. Parchment like abrasion size 26 c.m. x 1.5 c.m. It is 5.5 c.m. below right lobe ear, 3.5 c.m. below left lobe ear above suprasternal notch and below chin. On cutting the ligature mark subcutaneous tissue, white hard and glistening.
(c) In internal examination, both her lungs were found to be congested. Dark brown blood was present in the heart. Stomach was found empty and genital organs were non gravid. The doctor opined that death of the deceased was due to asphyxia as result of ante mortem hanging. The possibility of death of the deceased on 05.10.2010 between 10:00 a.m. to 05:00 p.m to 06:00 p.m. was found to be plausible since the rigor mortis had completely passed away from the dead body of the deceased.
14. P.W.-6, Deputy Superintendent of Police and investigating officer of the case, proved that he got the order under section 83 Cr.P.C. for arresting the accused during investigation. He recorded the statement of respondent no.2, Ajit Singh, on 09.01.2012 and all other respondents thereafter. He perused the statements of the accused recorded by the earlier investigating officer and submitted chargesheet against the respondent nos. 2 to 6 on 05.03.2012 under section 498A/304 B I.P.C. and ¾ D.P. Act. In the absence of any evidence against co-accused, Kaushlendra Pratap Singh, he was exonerated. He proved that F.I.R. was typed by Constable, Sanjeev Kumar, before him which he proved. He also proved that Constable, Omveer Singh, registered the report and he proved his signatures. He admitted that during investigation respondent no.2, Ajit Singh, had sent an application alongwith certain documents, but he did not made it part of the investigation since from the earlier investigation the charges against the accused were being proved. He made the documents sent by the accused part of the case diary and may be found in the office of Circle Officer. In further cross-examination, P.W.-6 stated that in compliance of the order dated 11.10.2013 of the Court he has brought the documents sent by respondent no. 2, Ajit Singh, to him alongwith an application during investigation. He filed the documents before the Court. He admitted that whatever documents are submitted during investigation they are produced before the Court for arriving at just decision, but he did not conducted any investigation regarding the documents provided by respondent no.2 because from the evidence of the informant the case against the accused was found to be proved. He denied the suggestion that because father of the deceased was working as Deputy Superintendent of Police at that time, therefore he did not included documents of accused in his investigation. He also denied that he submitted wrong chargesheet under the influence of P.W.-2, the father of the deceased, during investigation. P.W.-1, Brijesh Singh and Smt. Malti Singh, respondent no.4, provided photocopies of C.D.Rs alongwith their affidavits which he made part of case diary. He admitted further that he did not got the C.D.Rs provided by the aforesaid verified from the mobile company nor he made efforts to know who was using the mobile numbers mentioned in the C.D.Rs nor he enquired about the C.D.Rs from anyone.
15. P.W.-7 stated that on 09.10.2010 he was posted on the post of S.H.O., at P.S.- Indrapuram. On that day P.W.-1 got the case registered regarding death of his sister. On getting information he went to the place of incident and started investigation. He prepared the C.D. No. 1 on 09.10.2010 and recorded version of F.I.R; recorded statements of the clerk who registered the case; computer typist Constable, Sanjeev Kumar, and recorded the statement of P.W.-1 and went to the place of incident. On the pointing out of P.W.-1, he investigated the scene of occurrence and prepared the site plan. He took the saree of the deceased in his possession and prepared the recovery memo. He also recorded the statements of the witnesses and the statements of the neighbours of the deceased, namely, K.L. Gupta and Smt. Ranjana. He also recorded the statements of inquest report writer and constables who took the dead body of deceased for post mortem and also statements of doctors. He also recorded the statements of the P.W.-1 and P.W.-2 on 30-31.10.2022. Thereafter, he recorded the statements of the mother of the deceased and also recorded the statements of younger brother and sister of the P.W.-1. He further stated that accused, Kaushlendra Pratap Singh, sent a letter which was marked to him by Deputy Superintendent of Police and he made it part of case diary. Thereafter, he was transferred. In his cross-examination on behalf of accused persons he stated that P.W.-1, Brijesh Singh, never informed him that on 06.10.2010 on the suggestion of police and the oral direction of accused, Kaushlendra Pratap Singh and Krishna Bahadur Singh, he gave application at the police station. He further submitted that P.W.-1 never informed him that he left Raibareilly before last rites of his deceased sister since his mother and elder sister were ill at Allahabad and, therefore, he alone left Raibareilly. He also did not informed him that his deceased sister informed him that the respondent nos. 2 to 6 had beated and harassed her because they were not satisfied with the cash and goods given in dowry. He informed him that the deceased was left at the place of her in-laws (Raibareilly) by her brother and mother from Allahabad. P.W.-7 further stated that P.W.-2 never informed him that he spent Rs. 26 lakhs in the marriage of his daughter nor he informed him that he sought information from Ajit Singh, respondent no.2, of taking loan from the company and Ajit Singh informing him that he has taken loan of Rs. 6-7 lakhs for the purpose of meeting expenses of his marriage and construction of house, 3-4 months prior to his marriage nor he informed him that on the eve of Rakshabandhan both his sons went to Raibareilly for Bidai of the deceased and there the respondent nos. 3-6 and Kaushlendra Pratap Singh, demanded additional dowry and his sons stated that they should talk to their father. P.W.-2 also did not informed P.W.-7 that thereafter he sent his wife, son and younger daughter, Sarita to Raibareilly alongwith his deceased daughter and also respondent nos. 3 to 6 and Kaushlendra Pratap Singh talked about dowry nor he informed him that in the room of Suchita, there was one folding cot, one stool, one chair and one plastic mat. Sister of the deceased, Sangeeta, P.W.-3 never took the name of Kaushlendra Pratap Singh , as the person associated with this case. Sangeeta also did not informed him that on the next day of her marriage deceased informed her on phone on 13.12.2008 that the family members of her matrimonial home are not happy with dowry, but she informed him that when her sister went to her in-laws house she was present. She also did not informed that she met the deceased after she came from Bangalore to Allahabad. She also did not informed that she talked to respondent no.2, Ajit Singh, number of times on phone and tried to make him understand the unreasonableness of demand of dowry being made. She also did not informed him that her father and mother talked to the respondent nos. 2 to 6 in this regard nor she informed that aforesaid persons used to abuse the deceased and respondent no. 2, Ajit Singh, used to beat her deceased sister. She informed him that her sister went to Ghaziabad with her mother and brother, Brijesh. P.W.-7 admitted that he did not found the three pieces of saree of the deceased which was mentioned in the inquest report got prepared by the Naib Tehsildar. Although he had admitted that the memo of recovery of pieces of saree of the deceased was entered by him in parcha no. 10 in case diary on 14.12.2010. During investigation on 31.10.2010 for the first time this fact came to his knowledge that deceased, Suchita, had informed her father after 7 months of her marriage with Ajit Singh that he has taken loan of Rs. 6-7 lakhs from the company where he works and the money given in dowry has been used by respondent no.3, Amit, in purchasing land in the name of his wife, Kiran, respondent no.5. He could not investigate these facts because of his transfer during investigation since he was left with no time to investigate these facts.
16. Learned counsel for the appellant has submitted that the family members of parental home of the deceased came to know about her unnatural death on 05.10.2010 in the late evening thereafter they immediately proceeded from their places and reached at the place of incident on 06.10.2010 at about the 6:00 a.m. On the request of police and others, Brijesh Singh, P.W.-1, gave information which was registered at P.S. Indrapuram vide G.D. No. 8 on 06.10.2010 at 06:10 hours, stating therein that situation is not clear as yet but report is being made so that inquest and post mortem of body of deceased may be conducted. Thereafter, the inquest and post mortem on the dead body of the deceased was conducted till the evening of 06.10.2010 and dead body was handed over to the relatives in the late evening which was brought to Raibareilly, approximately 600 k.m. away from Ghaziabad, for cremation. Before cremation of dead body of the deceased, mother and sister of deceased, become seriously ill and were admitted in hospital at Allahabad by neighbors and after getting information on 07.10.2010, P.W.-1 rushed to Allahabad before cremation of dead body of deceased and, thereafter, other family members also rushed to Allahabad to save life of mother and sister of deceased who were under treatment in the hospital. P.W.-1, his father, P.W.-2 and other family members were busy in providing medical facilities to mother and sister of deceased to save their lives. After their condition became normal, the informant proceeded to Ghaziabad on 08.10.2010 and reached there in the night and lodged FIR in the morning of 09.10.2010 at 08:10 A.M. without any delay. The said short delay in lodging the F.I.R. has been properly explained by the prosecution. The said delay is self explained by G.D. No.8 dated 06.10.2010 at 6:10 hour, P.S. Indrapuram as well as the evidence of P.W-1., who in his statement at page no.37 has stated that the F.I.R. was lodged in short. The P.W.3 in her evidence at page no.68 has stated that her mother was sugar patient. It is evidently clear from the facts and circumstances of the case and the evidence on record that there was no delay in lodging of F.I.R. Deceased, Suchita Singh, was subjected to cruelty and harassment by her husband and his family members for non-fulfillment of their demand of dowry, soon before her death, which is fully proved from F.I.R. and the evidence of P.W.1. Upon demand of dowry by the accused persons, P.W.2 had assured them that after election he will fulfill their demand of furniture. From the inquest report of the deceased dated 06.10.2010 it is clear that there were only iron folding, cot, stool and mat in the house of the respondent no.2 at Ghaziabad. "Soon before death" 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. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after".
17. He has further submitted that Section 304-B read along with Section 113- B of the Evidence Act makes it clear that once the prosecution has succeeded in demonstrating that a woman has been subjected to cruelty or harassment for, or in connection with demand of dowry, soon before her death, a presumption shall be drawn against the accused persons that they have caused dowry death as contemplated u/s 304-B IPC. The said presumption comes with a rider in as much as this presumption can be rebutted by the accused. The learned trial court has appreciated the evidence from the prism of assessing the charge u/s 302 IPC, when the evidence on record ought to have been analyzed and appreciated keeping in mind the requirements of Section 304-B, 498-A IPC and ¼ D.P. Act. The provision of 113-B R/W sections 114 and 106 Evidence Act are applicable to the facts and circumstance of the case, under which the burden of proof lies upon the accused. The alleged written statement of the respondent no.2, Ajit Singh, along with photocopies of statement of bank account of the deceased, NSC, LIC, bank details, attendance register of company, applications, biodata of the deceased received through e-mail messages, have not been proved by the accused persons under the provisions of Section 45-A,63,65,65-B Evidence Act and Section 79-A I.T. Act, by examining any official of working place, company, bank etc., or any other person from whom photocopies of documents have been allegedly obtained, nor the same has been proved by respondent no.2, Ajit Singh, by getting his own evidence recorded u/s 315 Cr.P.C., so that the prosecution had opportunity of his cross examination and accordingly the said photocopies of the documents not having been proved exhibited in evidence were not admissible in evidence. They have been wrongly relied upon by the trial court in the judgment.
18. The said written statement dated 03.03.2014, Paper No.32-Kha, has been filed by the respondent no.2, Ajit Singh, before the trial court after recording of his statement u/s 313 Cr.P.C. dated 13.11.2013 as such he was duty bound to prove his said written statement under the provisions of Evidence Act, but the same has neither been proved nor exhibited hence the same was neither relevant nor admissible in the evidence. The photocopy of alleged written statement along with photocopies of documents filed by the accused, Ajit Singh, have been illegally entertained by the learned trial court on 30.10.2013 from P.W.6, Kamlesh Kumar, during the course of his cross examination, without considering the fact that the said documents were neither part of investigation nor investigated by the investigation agency nor their genuineness was verified/proved. There is no provision in Cr.P.C. and Evidence Act to entertain photocopies of such documents. Learned trial court had acquitted the accused persons on the basis of unproved documents which were not exhibited.
19. The postmortem of deceased shows that there was ligature mark size 26 c.m. x 1.5 c.m. around the neck of the deceased without any gap. The width of injury 1.5 cm is not possible in the case of hanging by saree which is only possible by rope, wire etc., as such the explanation of suicide committed by the deceased by saree, offered by the respondent no. 2 to 6, is not corroborated by medical evidence. Regular injury without any gap in 'O' shape was found on the neck of the deceased which is not possible in the case of hanging but it is possible in the case of strangulation only. In case of death by hanging, there should be gap in injury over the neck having 'V' shape.Postmortem of the deceased proved that it is a case of homicidal death. Burden to prove its defence lied upon the respondent no.2, who was admittedly present at the crime scene. Under the provisions of Section 45 of Evidence Act the medical evidence is only an expert opinion and not the conclusive piece of evidence as such the same must corroborate with other evidence.
20. D.W.1 had no specialization for providing medical treatment to patients of mental depression. This fact has been admitted by him in his evidence at the middle of page no.126. He did not produced his medical degree before the trial court. B.H.M.S. is an academic under graduate course having no specialization in any branch of medical science.The respondent no.2, Ajit Singh, in his statement u/s 313 Cr.P.C. dated 13.11.2013, has not disclosed the name of Doctor, who had allegedly given medical treatment to the deceased, which clearly demonstrated that at time the defence had not managed any doctor to be produced before the court. Later on D.W.1, Rajesh Singh, who was only a B.H.M.S. doctor, allegedly practicing at Raibareilly, was produced by the defense side in court on 04.03.2014. He admitted in last paragraph of page no.123 and further evident from the order sheet that Dasti Summon was obtained by the accused from the trial court for summoning D.W.-1. No summon was directly issued to him by the trial court. The said fact clearly demonstrated that the D.W.-1 was produced by the accused after managing him. D.W.-1 issued medical prescriptions of the deceased on 08.03.2009, 30.10.2009, 26.07.2010, Ex. Kha-1, Kha-2, Kha-3 which clearly demonstrate that he has shown starting medical treatment of deceased of mental depression within 2 months and 26 days of her marriage on account of not getting job which is highly improbable. There is no registration number of doctor on Exhibit Kha-2 and Kha 3. The said medical prescriptions of the deceased dated 08.03.2009, 30.10.2009, 26.07.2010 Ex. Kha-1, Kha-2 and Kha-3 have been prepared during period of 1 year, 4 months and 18 days. They appear to have been prepared by the same pen which is prima facie evident from the document. No diagnostic test of the patient was got done by the doctor for diagnosing her disease but without doing so, the doctor has himself assessed her disease as mental depression. D.W.-1 is junior doctor who passed out in 2002 and got registered in 2009. The said medical prescriptions of the deceased dated 08.03.2009, 30.10.2009, 26.07.2010, Ex. Kha-1, Kha-2 and Kha-3 show that over telephonic conversation on 16.05.2009, 09.08.2009, 27.02.2010, 09.05.2010, medical treatment was provided to the deceased. The same telephonic medical treatment of deceased was done during the period of about 1 year. Medical prescription of D.W.-1 prepared on 08.03.2009, 30.10.2009 Ex. Kha-1 and Kha-2 are not in the handwriting of D.W.-1 and the second part of the documents have not been proved by anyone. Admittedly Exhibit Kha-1 and Kha-2 have not been partly proved by the accused. The respondent no.2, Ajit Singh, has also not proved the same by getting his evidence recorded u/s 315 Cr.P.C. D.W.-1 is the family doctor of the accused persons which has been admitted by him in his evidence in second paragraph of page no.124 of the paper book. The name and particular of patient Suchita Singh has not been written in the register of the doctor. During the period of 1 year and 10 months the respondent no.2, Ajit Singh, and deceased, Suchita, were residing at Bangalore and Ghaziabad where best medical facilities were available. However, even if, the defence version of mental depression of the deceased is presumed, though it is disputed by the prosecution, she was never taken to any specialized doctor at Bangalore and NCR nor she was medically examined there nor provided any medical treatment. It clearly demonstrates that she was mentally fit and did not suffered from any mental depression which is vague and false theory subsequently developed by the defence.
21. Evidence of D.W.-1 is self contradictory and he is not reliable and trustworthy witness. Under the provisions of Evidence Act, the plea of alibi has to be proved by the accused with absolute certainty so as to completely exclude the possibility of presence of accused at the crime scene. When the plea of alibi is raised by an accused it is for him to establish the said plea by positive evidence which has not been led in the present case. Photocopy of attendance register of the company filed by the respondent no.2, Ajit Singh, has neither been proved by him by examining any official of his working place nor the same has been proved by him by getting record his own evidence recorded u/s 315 Cr.P.C. and accordingly the said photocopy has not been exhibited in the evidence. The secondary evidence has been defined in Section 63 Evidence Act which need to be proved under the provisions of Section 65 Evidence Act but in the instant case the said photocopy has not been proved according to the provisions of Section 65 Evidence Act.
22. The respondent nos. 2 to 6 are politically sound and high handed persons. Accused, Kaushalendra Pratap Singh, is Senior Political Leader who was having family relation with his neighbour S.N. Singh Ex. A.D.G.P. of U.P. Police, who was resident of his own village who since beginning influenced the local police of Ghaziabad and tried to destroy the prosecution evidence. Under the influence of accused persons, inspite of having issued NBW since before 13.12.2010, no efforts was made by police to arrest accused persons. Consequently, for seeking free and fair investigation P.W.-1, Brijesh Singh, filed a Criminal Misc. Writ Petition No.22072/2010 before this High Court wherein this High Court, vide order dated 13.12.2010, called instructions from the State, only then the local police of P.S. Indrapuram, Ghaziabad, initiated proceedings u/s 82, 83 Cr.P.C. Then the accused persons misusing their political and administrative high positions, got investigation of case transferred from the U.P. Government on 21.01.2011 to C.B.C.I.D, consequently the Civil Police stopped investigation against the accused persons. Then the P.W.-1 was compelled to challenge the order of transfer of investigation to C.B.C.I.D. dated 21.11.2011 before High Court by filing a Criminal Misc. Writ Petition No.2481/2011 which was allowed vide order dated 17.02.2011 quashing the order of State Government dated 21.01.2011, and transferred back the investigation to Civil Police directing it to complete investigation within period of 60 days. Order of this High Court dated 17.02.2011 was challenged by the accused persons before the Hon'ble Supreme Court in S.L.P. (Crl.) No.2194-2195/2011 wherein initially on 18.04.2011 the State Police was restrained from filing the charge sheet, without staying coercive action against the accused persons. Thereafter the Hon'ble Supreme Court on 05.07.2011 called investigation reports from State Police and C.B.C.I.D. Finally, the Hon'ble Supreme court dismissed the S.L.P. vide order dated 14.11.2011 with the direction to the prosecuting agency i.e., police of P.S. Indrapuram, District- Ghaziabad, to submit its report at the earliest before the Magistrate with the further direction that trial shall be concluded within a year. The Hon'ble Supreme Court never granted any interim relief to the accused and never stayed the execution of N.B.W. and the proceeding u/s 82, 83 Cr.P.C. against the them. Inspite of which the police of P.S. Indrapuram, with the collusion of accused person, neither took any action against the accused nor ensured their arrest for to the period of 13 months. Inspite of order of Hon'ble Supreme court dated 14.11.2011 charge sheet was not submitted by police up about 4 months and it was submitted only on 05.03.2012. Furthermore inspite of specific order of Hon'ble Supreme Court to conclude the trial within 1 year, the accused did not permit the trial court to frame the charge up to about 1 year which was framed only on 11.04.2013 thereafter the trial has been concluded on 14.08.2014 which clearly demonstrates that the accused persons are politically sound and high handed persons who inspite of various orders of this High Court and Hon'ble Apex Court absconded for about 2 years and got proceedings of the case delayed.
23. Learned Senior counsel for the respondent nos. 2 to 6 has submitted that after the deceased committed suicide her, husband, Ajit Singh, informed the father of deceased namely P.W.-2, Jai Narain Singh, who was posted as Deputy Superintendent of Police in Agra. On hearing the news of death of Suchita Singh, P.W.-2, Jai Narain Singh, came to Indirapuram, District- Ghaziabad. P.W.-1 alongwith P.W.-2 went to Police Station and gave the information regarding suicide of Suchita Singh. This information was recorded as Rapat No. 8 dated 6.10.2010 at 6.10 A.M. Information dated 6.10.2010 does not contains the recital regarding demand of dowry made by accused persons. It is relevant to point out that non-mentioning demand of dowry in the information dated 6.10.2010 assumes importance in view of the fact that the P.W.2 was posted at Agra as Dy. S.P. and the P.W.1, Brijesh Singh, who is also having qualifications of B.Tech and M.B.A., were aware of consequences of not mentioning the same. The P.W.-1, Brijesh Singh and P.W.-2, Jai Narain, Singh who are signatories to Panchayatnama yet in the Panchayatnama there is no whisper regarding demand of any dowry. Demand of dowry is also in realm of suspicion in view of the fact that respondent no.2, Ajit Singh, himself, was regularly transferring money into saving account of deceased and she was using it for her expenses even when she was residing at her maternal home. The accused had a package of annual salary of Rs. 10 lakh annually. There is no live link with respect to demand of dowry soon before death of deceased and therefore one of the essential ingredients for proving dowry death is missing in the instant case. It is relevant to point out that after the marriage deceased came to her parental home and as per deposition of witnesses she made complaint about demand of dowry to her mother but the mother has not been examined and in this view of the matter it can be safely inferred that there was no demand of dowry. As per prosecution case the P.W.1 and P.W.2 alongwith their other relatives were present at the time of inquest, yet the F.I.R. has been lodged after a gap of 4 days and no explanation has been offered by the prosecution either in the F.I.R. or during the course of trial for delay and, therefore, it can be legitimately inferred that F.I.R. is result of consultation and deliberation. During course of investigation, husband filed the papers of bank showing that he has transferred about Rs.1.5 lakh in the account of deceased and when the deceased came to her parental home then he arranged the tickets for her either by air or by train. In view of the provisions contained in paragraph no. 107 of the Police Regulations, if any evidence is furnished by the accused during the course of investigation, then it is obligatory on the part of Investigating Officer to look into the evidence adduced by the accused. In the instant case the P.W.-6, IInd Investigating Officer, has admitted on page 84 of the paper book and on page 166 of the paper book that the evidence adduced by the accused was not investigated. Deceased, Suchita Singh, was M.Tech and her husband, Ajit Singh, was posted at Bangalore at the time of marriage. After the solemnization of marriage deceased, Suchita Singh, had applied at number of places for job, but she could not secure any job. The husband had filed e-mail correspondences to show that deceased had applied at number of places but she could not get any job. For this reason her husband, Ajit Singh, left job at NOKIA Company at Bangalore and joined the S.T. MICRO ELECTRONIC Company at N.C.R. in Ghaziabad. There also deceased applied at number of places for job, but she could not secure any job and for this reason the deceased went into depression. Ajit Singh took her to D.W.1, Rajeev Singh, who treated her and gave the medicines and doctor has also diagnosed that deceased was patient of depression.
24. The prosecution case is to the effect that deceased Smt. Suchita Singh, aged about 27 years was married to respondent no.2, Ajit Singh, on 12.12.2008 according to Hindu marriage rites. It is further alleged that at the time of solemnization of her marriage various items were given in dowry. Accused persons were not satisfied with the dowry which was given at the time of marriage and were demanding Rs. 2 lakhs towards cash and Rs. 2 lakhs for furniture. Because of non-fulfillment of demand of additional dowry, deceased was tortured and as a result of which she was done to death on 5.10.2010 at Flat No. 106, Gaur Green, Indirapuram, Ghaziabad. Information was given at police station on 06.10.2010 regarding the incident. F.I.R. was lodged on 9.10.2010 at 9.10 A.M., at Police Station Indirapuram, Ghaziabad by P. W.1, Brijesh Singh, who is brother of deceased. Respondent no.2, Ajit Singh, is husband of deceased; respondent no.3, Amit Singh, is elder brother-in-law (Jeth) of deceased; respondent no.6, Krishna Bahadur, is father-in-law of deceased; respondent no.4, Smt. Malti Singh, is mother-in-law of deceased and respondent no.5, Smt. Kiran, is elder sister-in-law (Jethani) of deceased and wife of respondent no.3, Amit Singh. Husband of deceased, Ajit Singh, was residing at Indirapuram while the rest of accused persons were residing at Raibarailly. Ajit Singh was working in ST MICRO ELECTRONIC, Gr. Noida Company and when he returned from office he found that door of house was locked. Then he opened the door by the duplicate key which he was keeping with him and found his wife hanging from fan inside the flat. He rang up his father-in-law, P.W.2, Jai Narain Singh, who was posted as Dy. S.P. at Agra; informed his brother Amit Singh, respondent no.3, who was at Raibareilly, who in turn informed the other family members of deceased. After the post mortem, the body of deceased was brought from Ghaziabad to Raibareilly in Ambulance. The evidence is to the effect that in the ambulance respondent no.2, Ajit Singh and P.W.1, Brijesh Singh, were sitting and the body was brought from Ghaziabad to Raibareilly where the last rites were performed by the respondent no.2, Ajit Singh, in presence of family members of deceased. The explanation for delay in lodging of F.I.R. on 09.10.2010 by P.W.-1 is that when he reached Raibareilly in an ambulance carrying dead body of his sister, he came to know that his mother and sister, who were living at Allahabad, had fallen ill and have been admitted in hospital by the neighbours. Therefore, he left Raibareilly before cremation of dead body of his sister to look after his mother and sister, who were ill and in hospital at Allahabad. After their condition became normal, he left for Ghaziabad on 08.10.2010 and lodged the F.I.R. in the morning on 09.10.2010 at 08:10 a.m.
25. The Apex Court in the case of Mallappa and Others Vs. State of Karnatka (2024) 3 SCC 544 has laid down the following guidelines for deciding a criminal appeal against the acquittal from paragraph nos. 25 to 29 which are quoted hereinbelow:-
"25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.
26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The 'two-views theory' has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law.
In Selvaraj v. State of Karnataka3, "13. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [(2002) 9 SCC 639] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus:
"9. ...We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal."" (emphasis supplied) 3 (2015) 10 SCC 230 In Sanjeev v. State of H.P.4, the Hon'ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal.
It observed thus:
"7. It is well settled that:
7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka5, Anwar Ali v. State of H.P.6) 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P.7) 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala8)"
26. After hearing the rival contentions and keeping in view the dictum of Apex Court cited above, this Court finds that the first ground of challenge to the judgment and order of acquittal passed by the trial court by the appellant is that there was no delay in lodging of the F.I.R. and whatever delay had taken place was properly explained by the prosecution before the trial court. Learned counsel for the respondent nos. 2-6 has stated that the unnatural death of the deceased took place sometimes in the afternoon on 05.10.2010. The F.I.R. was lodged on 09.10.2010 at 08:10 a.m., when information of the incident was given at police station- Indirapuram, District- Ghaziabad, on 06.10.2010 at 06:10 hours. This Court finds that P.W.-1 had given information of the incident dated 05.10.2010 at the police station aforesaid on 06.10.2010. In the information given at police station, it is mentioned that situation is not clear as yet, but report is being made so that inquest and post mortem of the dead body of deceased may be conducted. There is not a whisper in the information that the deceased was earlier being subjected to cruelty or harassment earlier because of unfulfilled demand of dowry and she had died in unnatural circumstances on 05.10.2010 for the reasons yet not clear. If the statements of the P.W.-1, P.W.-2 and P.W.-3 are considered, this Court finds that all of them have stated that since after her marriage with respondent no.-2, Ajit Singh, on 12.12.2008, demand of Rs. 2 lakhs in cash and furnitures of Rs. 2 lakhs were being made by the respondent no. 2 to 6. The deceased was beaten and harassed for this purpose since then. If such was the position, lack of any indication in the information dated 06.10.2010 given at police station informing about the incident for the first time makes the conduct of appellant and prosecution case doubtful. It is not a case here that informant, P.W.-1 and his father, P.W.-2, were illiterate or not conversant with the requirements of law of lodging complaint before the police station in such a case. P.W.-1 had the qualification of B.Tech and M.B.A while P.W.-2 himself was working as Deputy Superintendent of Police and was posted at Agra a the relevant time. P.W.-2, must have conducted number of investigations of the cases of dowry death and, therefore, it cannot be accepted that he omitted to mention the allegations regarding repeated long standing demand of dowry being made from his deceased daughter and other family members of her matrimonial home.
27. We find that there is no evidence on record to prove that the mother and sister of P.W.-1, had fallen ill and admitted any the hospital at Allahabad. There is also no evidence on record to prove that P.W.-1 went to Ghaziabad from Allahabad on 08.10.2010. The F.I.R. was lodged after due consultation and confabulation by P.W.-1. The investigating officer of this case, P.W.-7, clearly stated in his statement that he was never informed by P.W.-1 when his statement was recorded, that he left Raibareilly before last rites of his deceased sister because his mother and his elder sister had fallen ill at Allahabad. No ailment of mother and sister of P.W.-1 was proved. Where they were admitted was also not proved by any oral or documentary evidence. P.W.-1, left for Ghaziabad by what mode of transport and when was also not proved. This creates doubt about the explanation given by P.W.-1 regarding delay in lodging of F.I.R. The finding of the trial court in this regard is perfectly justified and does not calls for any interference by this Court. The case laws relied upon by the learned counsel for the appellant, have no application to the facts of this case.
28. The second argument of the learned counsel for the appellant is that the deceased informed the fact of her subjection to cruelty and harassment by her husband and his family members for non-fulfillment of their demand of dowry when she came to her parental home at Allahabad on the eve of Rakshabandhan. This fact has been corroborated by P.W.-2 and P.W.-3 also. However, P.W.-7 has clearly stated that he was never informed by P.W.-1 that his deceased sister was subjected to harassment and cruelty for the above purpose. P.W.-2, also never informed him that he spent Rs. 26 lakhs in the marriage of his daughter nor he informed him about the loan of Rs. 6-7 lakhs taken by respondent no.2, Ajit Singh, from the company for the purpose of meeting expenses of his marriage and construction of house. Regarding the demand of dowry by the respondent nos. 2 to 6 from the deceased there is no documentary evidence produce by the prosecution in the form of any letter, text message or any other document. Regarding her subjection to cruelty and harassment also there is no documentary evidence in the form of medical report of any injury, complaint to any police or administrative authority whatsoever. The trial court has rightly disbelieved the oral testimony of P.W.-1, P.W.-2 and P.W.-3 regarding their failure to prove demand of dowry and meting out harassment and cruelty to the deceased prior to her death by the respondent nos. 2 to 6. We do not find any perversity in the findings of the trial court.
29. The third argument of the learned counsel for the appellant is that the documents produced by the respondent nos. 2 to 6 before the investigating officer in the form of statement of bank account of deceased, NSC, LIC, Policy, attendance register of company and applications made by the deceased for job online were not proved by defence as per the provisions of the Evidence Act. Therefore, they were not admissible in evidence and ought to not have been relied upon by the trial court. We find that the aforesaid documents were provided to the investigating officer of the case, P.W.-6, but he did not enquired about the veracity of the documents but when the court demanded, then he produced them before the court. The trial court has relied upon the same and recorded the findings in favour of the respondent nos. 2 to 6 holding that since the deceased was unable to obtain job and was suffering from depression she committed suicide. We find that even if the findings recorded by the trial court on the basis of the aforesaid documents is ignored like, the findings recorded on the basis of the statement of D.W.-1, Dr. Rajesh Singh, B.H.M.S., case of the prosecution would still not be proved beyond reasonable doubt against the respondent nos.2 to 6. For proving the case under section 304-B IPC, the requirement of proving motive on the part of the deceased to commit suicide or for causing her unnatural death by the respondent nos. 2 to 6 is not required, since there is adverse, but rebuttable presumption against them under section 113-B of IPC. Even if we accept argument of the learned counsel for appellant that D.W.-1 was not medically qualified to treat the deceased for mental depression by his homeopathic medicines and his prescriptions were not proved it will be of no concequence.
30. The next submission of the learned counsel for appellant is that there was ligature mark 26 c.m. x 1.5 c.m. around neck of the deceased without any gap. The width of injury 1.5 c.m. is not possible in case of hanging by saree and it is possibly only by rope, wire, etc. Injury on the neck of the deceased without any gap in "O" shape is not possible in the case of hanging, but it is possible in the case of strangulation. Post portem of the deceased proved that it was a case of homicidal death and not suicidal hanging. His further submission is that medical evidence is only an expert opinion and not conclusive piece of evidence and must be read with other evidence on record. We have gone through the post mortem report of the deceased (Exhibit Ka-7) once again and we found that it is clearly noted therein that the ligature mark is in front below chin and above thyroid going backward and interrupted. Parchment like abrasion size 26 c.m. x 1.5 c.m. It is 5.5 c.m. below right lobe ear, 3.5 c.m. below left lobule ear above suprasternal notch and below chin. On cutting the ligature mark subcutaneous tissue, white hard and glistening was found. The submission that injury on neck was of "O" shape is against the evidence on record. Ligature mark has been found to be "interrupted" and "uninterrupted".
31. P.W.-4, has clearly stated that it is a case of suicidal hanging and not strangulation.
32. If this evidence is considered in the light of the defence case that the deceased was trying to obtain job and being unsuccessful she committed suicide, then finding of the trial court in this regard appears to be justified. P.W.-1 admitted in his statement that his sister was desirous of doing job and trying to get the same. In the statement of respondent no.2 recorded under section 313 Cr.P.C., he has clearly stated in his defence that after the last rites of the deceased at Raibareilly on 07.10.2010, the appellant side demanded Rs. 5 lakhs spent by them in marriage of the deceased, but he stated that he is not at fault and refused to pay the aforesaid amount. Thereafter, the F.I.R. was lodged on 09.10.2010. He has further stated in his defence that his deceased wife was having qualification of M.Tech and wanted to work. She has applied in a number of companies for job, but was unsuccessful. Since there was better scope of getting job at N.C.R. for his wife, he left his job at Bangalore and came to leave at Ghaziabad. Here also his wife applied in number of companies for job unsuccessfully. On 05.10.2010 in the morning, he left for his job and returned at 06:30 p.m. When on knocking the door of his house, it did not opened, he opened the same by second key in his possession. He saw his wife hanging from the fan. He brought her down and found her dead. He informed family members of his matrimonial home and his parental home on telephone. Thereafter, police came to his place. He denied that he took any loan from his company at Bangalore nor there was any such provision for the same.
33. We find that in support of the defence case documents were provided by the respondent no.2 to the investigating officer of this case, P.W.-7, but he derelicted his duty as per section 107 of the police regulations and did not enquired about such documents. He has stated in his statement that he did not considered it necessary to examine and verify the documents produced by defence because the charges against accused stood proved, even without considering such documents. We find that statement of P.W.-7 is absurd. The defence evidence was required to be examined for determination and veracity of defence case. It was not required to be considered for proving the prosecution case. The trial court to satisfy its conscience, called for documents produced by defence and examined it and recorded the findings in favour of defence, but since the documents were not proved in accordance with law, the reliance of the trial court on these documents was of no avail as we have considered earlier. As rightly argued by counsel for appellant that respondent no.2, ought to have got his evidence recorded under section 315 Cr.P.C. for proving the aforesaid documents, which he failed.
34. The last argument of the learned counsel for the appellant is that there was ample evidence to prove that the deceased was subjected to cruelty soon before her death and it was clearly proved by the prosecution, but the trial court failed to consider the same.
35. Learned Senior counsel for respondent nos.2 to 6 has argued that there was no evidence to prove that the deceased was subjected to cruelty or harassment by the respondent nos. 2 to 6 soon before her death. The Apex Court in the case of Kashmir Kaur Vs. State of Punjab AIR, 2013 SC 1039 has laid down the essential ingredients to attract the provisions of 304-B I.P.C. as follows:-
(a) That soon before the death, the deceased was subjected to cruelty and harassment in connection with demand of dowry;
(b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstances which was not normal;
(c) Such death occurs within 7 years from the date of her marriage;
(d) The victim was subjected to cruelty or harassment by her husband or any relative of her husband;
(e) Such cruelty or harassment should be for in connection with demand of dowry; and
(f) It should be established that such cruelty or harassment was made soon before her death.
36. Section 313-B Evidence Act is a real presumption which applies when the above essential conditions are fulfilled as per Apex Court in the case of Kaliyaperumal Vs. State of Tamil Nadu AIR, 2003 SC 3828.
37. The Courts have repeatedly held that the expression " Soon before her death", used in substantive section 304-B IPC and section 113-B IPC of Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before her death" has not been defined. It is to be determined by the Courts depending upon the facts and circumstances of the case. The expression "Soon before the death" normally implies that interval should not be much between the cruelty or harassment and the death in question. There must be existence of an approximate and live link between the act 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 to disturb mental equilibrium of the woman concerned, it would be of no consequence.
38. In the present case there are oral statements of P.W.-1, P.W.-2 and P.W.-3 that just after the marriage of the deceased with respondent no. 2, the demand of dowry was being made from the deceased continuously the demand of Rs. 2 lakhs in cash and furnitures of Rs. 2 lakhs. Yet we find that except the oral testimonies of the aforesaid witness there was not an iota of evidence in the form of any complaint to any authority, letter of deceased, text messages and phone numbers from which calls were made by deceased to aforesaid witnesses. No independent witness was produced by prosecution to prove the allegations. It is also surprising that despite long harassment of deceased by the respondent nos. 2 to 6, neither the deceased nor her family members made any complaint since her marriage in 2008 till her death in 2010.
39. Learned counsel for the appellant has pointed out that there were no furnitures in the house of respondent no.2 where the deceased died, except one folding (cot), one stool, one chair and one mat. Therefore, it is clear that demand of furnitures was being made only because the respondent no.2 was unable to purchase furnitures for his house at Ghaziabad. However, we find that P.W.-1, has stated in his statement that on 13.12.2008 respondent no.6, made a phone call and stated that the goods given in dowry are of inferior quality and less in numbers. The cash amount is also not sufficient and Rs. 2 lakhs in cash and furnitures of Rs. 2 lakhs should be further given. P.W.-2 has stated that he spent Rs. 26 lakhs in the marriage of his daughter, but the respondent nos. 2 to 6 were not happy and were demanding Rs. 2 lakhs in cash and furnitures of Rs. 2 lakhs. He has further submitted that after his daughter went to Bangalore with respondent no.2, Ajit Singh, she informed him on phone call about the demand of dowry by respondent no.2 and his family members. Therefore, it is clear that the demands of Rs. 2 lakhs in cash and furnitures of Rs. 2 lakhs in dowry were being made since after the marriage of the deceased with respondent no.2 when she was at Bangalore. It has not been argued by counsel for appellant that the demand of furnitures of Rs. 2 lakhs was made only when the couple came to live at Ghaziabad. The aforesaid demand is alleged to have been made soon after the marriage of the deceased with respondent no.2. Therefore, the demand of furnitures has no substance if such a demand was being made soon after the date of the marriage of the deceased with respondent no.2., as lack of furniture at Bangalore is not alleged but at Ghaziabad. P.W.-1 has stated that on 13.12.2008 father-in-law of the deceased, respondent no.6, made him a phone call and made such a demand. As we have discussed earlier that neither after the marriage nor till the time of her death, the prosecution brought on record any documentary evidence in the form of letter, electronic message and mobile phone numbers from which calls were made by the respondent nos. 2 - 6 to P.W.-1, P.W.-2 and P.W.-3 to prove that soon before her death, the deceased was subjected to cruelty and harassment connected with demand of dowry. We are not inclined to accept that the deceased was subjected to cruelty and harassment soon before her death. The defence of respondent no.2 taken in his statement under section 313 Cr.P.C. does not appears to be without substance and even in the absence of any supporting evidence, it appears to be credible and trial court has not committed any error in accepting the same and acquitting the respondent nos. 2 to 6 of all the charges.
40. We find that the reasons that weighed with the trial court in acquitting the accused are justified and the judgment and order of acquittal does not deserves reversal by this Court, as held by this court earlier. There does not appears to be any other view possible from the evidence on record, therefore we subscribe to the view of the trial court.
41. The criminal appeal lacks merit and is hereby dismissed. The judgment and order of the trial court is confirmed.
Order on Government Appeal
1. Heard Ms. Manju Thakur, learned A.G.A-1 and Sri Prem Shankar Prasad, learned counsel for the appellant; Sri Kamal Krishna, learned Senior Counsel assisted by Sri Raj Kumar Tripathi, learned counsel for the respondents and perused the material on record.
2. In view of the detailed judgment passed in the above noted criminal appeal against the acquittal, this Government Appeal is also dismissed.
Order Date :-25.10.2024 Abhishek