Himachal Pradesh High Court
State Of Himachal Pradesh vs Vidya Devi & Another on 28 July, 2016
Author: Ajay Mohan Goel
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No 506 of 2009.
Reserved on 11.7 .2016.
Decided on: 28.7 .2016.
.
State of Himachal Pradesh. ....Appellant.
Versus
Vidya Devi & another ... Respondents.
................................................................................................
Coram
of
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? 1
rt
For the appellant. : Mr.V.S. Chauhan, Addl. Advocate
General with M/s. Vikram Thakur,
& Puneet Rajta Dy. Advocate Generals .
For the respondents. : Mr. Nimish Gupta, Advocate .
Ajay Mohan Goel, J.
By way of present appeal, the State has challenged the judgment passed by the Court of learned Addl. Sessions Judge, Fast Track Court, Chamba in Sessions Trial No. 3/2009 dated 18.8.2009, vide which the learned Trial Court has acquitted the present respondent for commission of offence punishable under Section s 498-A and 304-B of Indian Penal Code (in short 'IPC').
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 22. The case of the prosecution in brief was that Swarna (hereinafter to be referred as 'deceased') was married .
with accused Ramesh Kumar (in short 'accused') about 1 ½ years prior to the occurrence of incident on 30.7.2008, as per Hindu rites and customs. Just about 5-6 days after marriage, deceased visited her parents' house and told them that she was of being ill-treated by her in -laws for want of dowry. Approximately 1 ½ months after the marriage, accused (Ramesh Kumar) left rt for Gujarat in connection with his job and deceased came to her parents house. She remained there for about one year. About three months prior to the incident, accused returned from Gujarat and deceased was taken back to her in-laws house by him. Deceased died in the matrimonial house on 29.7.2008 and the factum of her death was intimated to her parents at around 7:00 a.m. by one Sashi Kumar. Up-Pradhan of Gram Panchayat Samot informed ASI Harnarayan Singh, In-charge Police Post Sihunta on telephone about the death of deceased .
On the basis of this information, Rapat No. 19 was recorded in the Rojnamcha at Police Post Sihunta and he (ASI Harnarayan Singh) gave information about the incident to SHO Police Station, Chowari on telephone and then proceeded to the spot.
::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 3SHO Kailash Walia on receipt of information also proceeded to the spot and recorded statement of the father of deceased .
under Section 154 Cr.P.C. and sent the same to Police Station for registration of the case, on the basis of which FIR No. 73 of 2008 was registered. The dead body was sent to the hospital for post-mortem. As per the opinion of Medical Officer, the of death had occurred due to burn injuries. During the course of investigation, statement of witnesses were recorded which rt revealed that accused persons ill-treated deceased in her matrimonial house and for that reason she committed suicide by setting herself on fire. After the completion of investigation challan was filed and as a prima facie case was found against the accused, accordingly they were charged for commission of offences punishable under Sections 304-B, 498-A read with Section 34 IPC, to which they pleaded not guilty and claimed trial.
3. In order to substantiate its case, prosecution, in all, has examined 15 witnesses.
4. Father of deceased Ami Chand entered the witness box as PW1 and stated that deceased was married to accused Ramesh Chand and soon-after the marriage, the accused ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 4 started ill-treating his daughter for want of dowry. He further deposed that he came to know about the same 2-3 days after .
the marriage. As per him, accused demanded 'Batlohi', vehicle and money and he had already given articles to the value of Rs.
1.50 lacs in dowry , but despite this accused continued to demand more dowry. His daughter came to his house and of made demand for money for the purchase of vehicle by accused persons saying that accused persons were pressing rt her to bring money. He further deposed that he sen t his sister to the matrimonial house of his daughter to make the accused understand. She did go there and thereafter intimated him that he should not worry, as she talked with the accused. He further deposed that at the time of marriage accused Ramesh was working as driver in a company at Gujarat and he left his house for Gujarat after one and half month and his daughter came back to his house. He further stated that she came back to her parental house as she was being ill-treated in her matrimonial house and even food and maintenance was not being provided to her. Deceased remained there for about nine months and when accused came from Gujarat in the month of May, 2008 he also visited his house to take deceased back to the matrimonial ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 5 house. He refused to send his daughter to the matrimonial house but accused requested with folded hands and assured .
him not to ill-treat deceased in the matrimonial house in future.
He asked accused to bring Pradhan from his village but accused assured that there was no need for this. He also deposed that before her death accused visited his house twice of along with deceased and during both the said visits deceased complained that she was being harassed on account of demand rt of dowry. Deceased also told him that she was being harassed by her mother-in-law and sister-in-law for bringing insufficient dowry and clothes. He also deposed that accused used to make telephonic calls to the deceased at his house to the effect that when deceased comes to her matrimonial house then she should bring money from her father. On 30.7.2008 at around 7:00 a.m., Shashi came to his house and told him about the death of deceased. Thereafter he, Shashi, Pritmo, Master Narain Singh and two more persons went to the matrimonial house of deceased in the vehicle of Shashi. There accused told him that dead body of deceased was lying in the kitchen of accused Tilak Raj. He also stated that he along with police visited the room in which deceased used to reside where ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 6 broken pieces of bangles were found lying and one empty bottle of liquor was also found along with other articles. He also .
deposed that during inquiry he came to know that accused persons committed murder of his daughter on account of dowry and they were responsible for her death.
5. Vijay Singh entered the witness box as PW2 and of stated that he was Up Pradhan of Samot. He also deposed that on 20.7.2008 accused Tilak Raj told him that deceased had rt committed suicide by setting herself on fire. He informed the police from his mobile and police arrived within 10-15 minutes.
He accompanied the police to the spot. He also deposed with regard to recovery of articles by the police at the spot.
6. Kanta Devi entered into the witness box as PW3 and deposed that deceased was her niece (sister's daughter) and accused Tilak and Ramesh were her nephews ('Bathijas').
She also deposed that at the time of marriage of accused Ramesh, he and Tilak Raj were living jointly. She further th deposed that in the month of July probably on 29 at around 10/11:00 p.m. accused Tilak came to her house and took her to his house and told her that his mother and deceased were arguing with each other. She went there and made them ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 7 understand and thereafter she returned back to her house. The cause of dispute was household work. Her husband had also .
accompanied her to the house of accused Tilak. Thereafter in the morning at around 5/6:00 a.m. she came to know about the death of deceased. Said witness was declared as a hostile witness, as according to the prosecution she had resiled from of her earlier statement and was suppressing the truth.
7. It is pertinent to mention that PW1, PW2 and PW3 rt were recalled for further examinations after alteration of the charge.
8. It is relevant to take note of the fact that in his further examination PW1 Ami Chand stated that accused had made dowry demand and they had demanded 'Batlohi' and they used to say to his daughter that only one big pot had been given in the dowry instead of 6-7. Accused used to send his daughter to bring money for the purchase of vehicle. His daughter visited his house twice or thrice after the return of accused Ramesh from Gujarat and he demanded money. He also deposed that his daughter used to say that accused had left the job at Gujarat and now he wanted to purchase his own ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 8 vehicle in Himachal and for that purpose he required the money.
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9. PW2 Vijay Singh in his further examination stated that on 30.7.2008 at around 5:30 p.m. at village Samot accused Ramesh and Tilak Raj came to his house and told that deceased had sprinkled kerosene oil on her body and set of herself on fire. He further deposed that before that no complaint had been made to him either by the deceased of anyone else.
10. rt PW3 Kunto Devi has deposed that she was called by accused Tilak to his house where she noticed that there was quarrel between accused and deceased on account of domestic work.
11. Sumna Kumari entered into the witness box as PW4 and stated that she was Pradhan at Gram Panchayat Kamla and on 30.7.2008 she visited the spot and remained associated in the investigation. She also stated that deceased belonged to her village.
12. Joginder Singh entered into the witness box as PW5 and stated that accused Tilak and Ramesh were his nephews.
On 29.7.2008 between 10 and 11 p.m. Tilak Raj came to his house and requested him to make deceased and Vidya ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 9 understand as to why they were arguing with each other. He went to the house of Tilak and tried to pacify the matter. Vidya .
was saying to deceased as to why she did not sweep the floor and deceased was saying that she would do the work as per her will. He further deposed that he stayed there for about 15 minutes and arguments continued in his presence for five to ten of minutes. He also deposed that Kunto was also present there.
She had been called by the accused persons. Next day in the rt morning Tilak Raj came to his house at around 4:00/5:00 a.m. and told him that deceased had gone missing. He advised him to search her. Thereafter at around 6:00 a.m. Tilak Raj again came to his house and told him that deceased had suffered burn injuries in his kitchen and had died.
13. PW6 Satya Devi deposed that on the date of death of deceased, accused Ramesh and deceased had come to her house at around 9:30 p.m. and had left her house at around 9:45 p.m. Next morning at around 4:30 a.m. she was in her verandah as her son was not feeling well when accused Tilak and Ramesh passed through and told her that deceased was not present in the house. They also stated that deceased had burnt herself and died in the kitchen. She also deposed that she ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 10 had not seen any quarrel between accused and deceased during preceding night. This witness was also declared as a .
hostile witness.
14. Swarna Devi wife of Mohinder Pal entered into the witness box as PW7 and deposed that she knew all accused persons. She deposed that her house is situated at a distance of of one kilometer from their house. According to her, relation between accused and deceased were cordial for about 7-8 days rt after the marriage but thereafter accused persons started ill-
treating her for want of dowry. She further stated that the accused used to quarrel with the deceased. As per her, on 30.7.2008 in the morning she came to know through deceased's brother who telephonically intimated her that deceased had expired.
15. Dr. Samir Jamwal Medical Officer entered into the witness box as PW8 and stated that he had conducted the post-
mortem of the body. Accordingly to him, no anti-mortem injury was evident and he reiterated that death had taken place due to burn injuries only.
16. PW9 Sashi Kumar has deposed to the effect that on 30.7.2008 at around 6:30 a.m. he was in his house when he ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 11 received a phone call from Uttam Singh who informed that daughter of Ami Chand was not feeling well and he should give .
this information to Ami Chand. He further deposed that he personally visited the house of Ami Chand and informed him about the same. He also deposed that he went to the spot i.e. at the house of accused and noticed that dead body of Ami of Chand's daughter was lying there.
17. PW10 Balwant Singh has deposed that on rt 30.7.2008 he had gone to the spot along with SHO who scribed the Rukka and handed it over to him and he took the Rukka to the police station , on the basis of which, FIR was registered.
18. PW11 Satya Devi mother of the deceased has stated that immediately after marriage of her daughter i.e. 4-5 days of marriage, deceased was ill-treated in her matrimonial house by accused persons and deceased also told her that they used to give her beatings with burning sticks. She also stated that accused used to demand dowry. Marriage had been mediated by her sister Swarna. She has also stated that her daughter stayed in her parental house for 7-8 months and thereafter accused came from Gujarat to their house and took her daughter with him to the matrimonial house and requested ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 12 them that deceased would not be ill-treated. However, the deceased after about 2 ½ months was sent back to maternal .
house by accused persons to bring money.
19. MHC Hakam Singh stated with regard to the case property being deposited with him and the same being sent to FSL, Junga through Constable Suresh Kumar.
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20. PW13 Suresh Kumar has deposed with regard to deposit of the case property by him at FSL, Junga.
21. rt PW14 ASI Harnarayan Singh stated that on 30.7.2008 at around 5:45 a.m. while he was at Police Chowki, Sihunta he received a phone call from Up Pardhan, Gram Panchayat Samot who informed him that deceased had committed suicide by setting herself on fire at village Beru. He immediately passed on the said information to SHO on telephone and made an entry in the Daily Diary at Sr. No. 19 dated 30 .7.2008 at Police Post Sihunta and thereafter went to the spot along with other police officials and cordoned the spot.
He further deposed that on the instructions of SHO he took photographs of the dead body.
22. PW15 Inspector Kailash Walia stated that on 30.7.2008 ASI Harnarayan Singh telephonically informed him ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 13 that a newly married lady had died due to burn injuries at village Beru. On receipt of said information , he along with other police .
officials proceeded to the spot, however, before he reached there ASI Harnarayan Singh had already reached the spot. He further deposed that parents of the deceased had also reached the spot. He further stated that statement of the deceased's of father was recorded under Section 154 Cr.P.C., on the basis of which, FIR was registered and the articles lying at the spot was rt taken into possession. He also stated that he had prepared the challan and also recorded statement of witnesses at the spot.
23. Now in this background we will scrutinize the testimonies of the prosecution witnesses in order to ascertain as to whether the learned trial court has erred in acquitted the accused persons or not. In our considered view on the basis of the case which has been set up by the prosecution by no stretch of imagination it can be said that prosecution has been able to substantiate any case against the accused for their conviction under Section 498A and 304B IPC. Undoubtedly, the allegation of the prosecution is that the deceased took the extreme step of ending her life because of the ill-treatment meted out to her by the accused on account of demand of ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 14 dowry but from the material which has been placed on record by the prosecution, the ingredients of commission of an offence .
punishable under Sections 498A and 304 B IPC are not made out. The allegations of the family of deceased against the accused are to the effect that the deceased was harassed by the accused on the demand of dowry. This harassment caused of to the deceased by the accused, intimidated her to end her life.
Thus, as per the prosecution accused abetted the deceased to rt commit suicide. Further as per the prosecution, the alleged acts of the accused also amounted to commission of an offence punishable under Section 498-A IPC.
24. Incidentally, though the learned trial court had acquitted the respondents in the present appeal from the charges leveled against them, however, the learned trial had convicted accused Ramesh Kumar for commission of offence punishable under Section 498-A and 304-B IPC. Feeling aggrieved by the said conviction, accused Ramesh Kumar had preferred an appeal against the judgment of conviction before this Court. The appeal so filed by accused Ramesh i.e. Cr.
Appeal No. 284 of 2009 was allowed by this Court vide its judgment dated June 2, 2010 vide which this Court ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 15 quashed and set aside the judgment of conviction passed against accused Ramesh Kumar by the learned trial court.
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25. While setting aside the judgment of conviction passed by the learned trial court in the appeal so filed by Ramesh Kumar, this Court held as under:-
"11. Section 113-B of the Evidence Act does not provide for invoking the presumption in every situation but only on proof of of treatment with cruelty and harassment with respect to dowry. It reads:
"113-B. Presumption as to dowry death-When the question is whether a person has committed the dowry rt death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, on in connection with, any demand for dowry, the Court shall presume tat such person had caused the dowry death."
Explanation - For the purpose of this section "dowry death" shall have the same meaning as in Section 304 -B of the Indian Penal Code."
12. Section 498-A of the Indian Penal Code Provides:-
"498-A. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a terms which may extend to three years and shall also be liable to fine.
Explanation - For the purpose of this section 'cruelty' means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) Harassment of the women 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 is on account of failure by her or any person related to her to meet such demand."
13. It is now well established that presumption under Section 113 - B of the Evidence Act and 304-B of the Indian Penal Code can be ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 16 raised only when the element of cruelty or harassment has been established on the record. (See Babaji Charan Barik versus State 1994 Cr.L.J 1684 (Ori); Keshab versus State 1995 Cr.L.J 174(Ori), Bhakhar Ram versus State, 1995 Cr.L.J 1345, State of H.P versus Nikku Ram (1995)6 SCC 219.
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14. In Satish Kumar Batra and others versus State of Haryana, (2009) 12 SCC 491, the Supreme Court held that when there are infirmities in the evidence of the prosecution and improvements have been made in the testimony of the witnesses, acquittal would be the only consequence. In Bhaskar Lal Sharma and another versus Monica (2009) 10 SCC 604 again the court stresses that the ingredients of the offences have to be clearly established before conviction under Section 498 -A can be sustained. The Court holds:
of "38. The scope of the aforementioned provision came up for consideration in some of the decisions of this Court.
We may notice a few. In Noorjahan v. State this Court rt held :(SCC P. 59, paras 16 -17) "16. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498 -A IPC and presumptive Section 113 -B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of 'cruelty'.
17. The object for which Section 498 -A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Amendment) Act, 1983 (46 of 1983). As clearly stated therein the increase in the number of dowry death is a matter of serious concern. The extent of the evil has been commented upon the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some case, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 17 proposed to amend IPC, the Code of Criminal Procedure, 1973 and the Evidence Act suitab ly to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in -laws and relatives. The avowed object is to combat the menace of dowry .
death and cruelty."
It was observed in the fact situation obtaining therein:
(SCC pp. 59 -60, para 18)
"18. So far as the present appellant is concerned, the evidence is inadequate to show that she was party to any demand for dowry. In fact, PW 1 stated that when she went to the place of her daughter the appellant was of present along with A-1 and A-2. The said A-1 demanded jewels and presentation of Rs. 5000 for Ramzan. She accepted that she told A-1 and A-2 that she will send the same within a week. The next statement of this witness is very significant. She (the appellant) told that two months' rt time will be sufficient for offering the presentation. In other words, she did not made any demand for dowry. That aspect has been accepted by PW 1. Significantly, this witness in her cross examination had admitted that the appellant is residing at Coimbatore for the last 35 years. She has categorically admitted that while she went to the house of her daughter, she (the appellant) was not present. Therefore, there is no evidence to show that the appellant was either present when the demand was made or she herself made any demand."
39. In Sushil Kumar Sharma v. Union of India this Court held: (SCC pp 285 & 287-88, paras 10 & 19) "10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short 'Cr. PC') and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 18 in -la ws and relatives. The avowed object is to combat the menace of dowry death and cruelty.
19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the .
petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a of licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take rt care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin's weapon. If the cry of 'wolf' is made too often as a prank, assistance and protection may not be available when the actual 'wolf' appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relatin g to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalized a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circu mstantial evidence has to be kept in view." (p.p.617 -619) ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 19
15. The Court considered the combined effect of Section 498-A of the Indian Penal Code and Section 113-B of the Evidence Act in Raman Kumar versus State of Punjab 2009 (6) Scale, 335, holding:
.
"15. The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its Twenty -first Report dated 10.8.1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evid ence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this of background that presumptive Section 113 -B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of rt the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with demand for dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304 -B IPC.)
2) The woman was subjected to cruelty or harassment by her husband or his relatives.
3) Such cruelty or harassment was for, or in connection with any demand for dowry.
4) Such cruelty or harassment was soon before her death.
16. A conjoint reading of Section 113 -B of the Evidence Act and Section 304 -B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 20 otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment .
and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a of presumption under Section 113 -B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304 -B IPC and Section 113 -B of the Evidence Act is present with the idea of proximity test. No rt definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration
(a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence." (p.p. 341-
342)
16. I need not multiply precedent any more. It is only when there is clear and cogent evidence on the record establishing the ingredients of both Sections 498-A of the Indian Penal Code and 113-B of the Evidence Act that a conviction follows. It is not a matter of right of the prosecution to invoke the presumption under law. A conjoint reading of the evidence of three witnesses i.e P.W. 1, P.W. 7 and P.W. 11, namely, Ami Chand, Swarna Devi and Satya Devi clearly indicates that there is neither any demand for dowry nor incident of harassment which would motivate the ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 21 accused to induce Swarna to end her life or cause her to take her own life. For the first time in Court, P.W. 1 Ami Chand states regarding the demands for dowry and cruelty, regarding which he is silent when his statement Ext. PW-1/A was recorded by the police. I do not find the evidence to be reliable or of such a nature .
that even if taken untested by cross examination, would lead to the conclusion that the deceased was harassed for dowry which ultimately resulted in her death. There is no evidence either with respect to demand for dowry which comes as an improvement for the first time in Court or cruelty compelling the petitioner to end her life.
17. This appeal is accordingly allowed. The judgment and sentence passed by the learned Additional Sessions Judge, Fast Tract Court, of Chamba (HP) is quashed and set aside. The appellant is set at liberty. He be released forthwith from imprisonment, in case he is not wanted in any other offence. Before parting, I must express my anguish in the manner, in which the evidence was considered by the learned trial Court for convicting the appellant herein. I find rt from the judgment that no attempt has been made to analyze it in a rational manner."
26. On enquiry, Mr. Chauhan, learned Additional Advocate General has informed this Court that the judgment so passed by this Court has attained finality and the same has not been challenged by the State.
27. Therefore, according to us, keeping in view the fact that the judgment of conviction passed against one of accused, namely, Ramesh Kumar has been quashed and set aside by this Court and the same having attained finality, there is no reason to interfere with the findings of acquittal which have been returned against the present respondents by the learned trial court. Suffice it to say that we are in agreement with the ::: Downloaded on - 15/04/2017 20:54:52 :::HCHP 22 findings returned by the learned trial court to the effect that the prosecution was not able to establish the guilt of the present .
respondents beyond all reasonable doubt. Therefore, keeping in consideration the fact that the judgment of conviction passed by the learned trial court against one of co-accused has been quashed and set aside in appeal by this Court which has of attained finality and further that the present respondents had already been acquitted by the learned trial court after taking into rt consideration the material produced on record by the prosecution, we do not find any reason to interfere with the findings of acquittal so returned in favour of the respondents by the learned trial court.
Accordingly as there is no merit in the present appeal, the same is dismissed. Bail bonds, if any, furnished by the accused are discharged.
(Sanjay Karol) Judge (Ajay Mohan Goel) Judge th 28 July, 2016.
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