Allahabad High Court
Ravi And 2 Others vs State Of U.P. on 9 December, 2020
Bench: B. Amit Sthalekar, Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 75 Reserved on 22.09.2020. Judgement delivered on 09.12.2020. Case :- CRIMINAL APPEAL No. - 2571 of 2014 Appellant :- Ravi And 2 Others Respondent :- State of U.P. Counsel for Appellant :- Lav Srivastava,Amber Khanna,Raj Kumar Khanna,V.P. Srivastava Counsel for Respondent :- Govt. Advocate,Govind Saran Hajela,K.D.Tiwari Hon'ble B. Amit Sthalekar,J.
Hon'ble Shekhar Kumar Yadav,J.
(Per. Shekhar Kumar Yadav, J.)
1. The present Criminal Appeal is directed against the conviction and sentence dated 07.06.2014 passed by Addl. District and Sessions Judge, Court No. 9, Moradabad in Sessions Trial No. 666 of 2004 (State Vs Ravi and others), whereby the appellants, namely, Ravi, Chhajju and Smt Premwati were convicted under Sections 498-A, 304-B, 302 I.P.C. and Section 3/4 of Dowry Prohibition Act. They were sentenced for life imprisonment under section 304-B I.P.C. The appellants were also sentenced for life imprisonment under Section 302 I.P.C. along with fine of Rs. 10,000/- each with default stipulation and further all the appellants were also sentenced for three years rigorous imprisonment under Section 498-A I.P.C. along with fine of Rs. 2000/- each with default stipulation and under Section 3/4 of the Dowry Prohibition Act, they were sentenced for one year rigorous imprisonment along with fine of Rs. 1000/- each with default stipulation. All the sentences were directed to run concurrently.
2. Adumbrated facts, as per the prosecution version are that the complainant Mahendra Singh (P.W.-1) submitted a written report (Ex-Ka-1) on 25.10.2003 at P.S. Mainather, District Moradabad to the effect that marriage of his sister, namely, Meena was solemnised with appellant no. 1 Ravi seven months ago. Her sister was at her parental home on the eve of Karwachauth, and at that time she narrated that she had some altercation with her mother-in-law and her mother-in-law tried to strangulate her with the help of her chunni; and when her husband came on Karwachauth to take her back then the said fact was complained to him, on which he said that they must come to his residence, next day after Deepawali, and then he would talk on the matter, and, thereafter, he is said to have taken his wife Meena with him. It is further alleged that on 25.10.2003 at about 7.30 in the morning, it was informed on telephone by appellant no. 1 Ravi that Meena is unwell and on getting this information, the complainant is said to have contacted the appellant no. 1 Ravi, thereafter, to know the situation, and Ravi (appellant no. 1) then told the informant that Meena has died, and, thereafter, the complainant along with other family members reached at his sister's matrimonial home, where he found his sister lying dead. It is further alleged in the report that the complainant suspects that her death was committed by her husband Ravi (appellant no. 1), her father-in-law Chhajju (appellant no. 2), her mother-in-law Smt Premwati (appellant no. 3) and her brother-in-law. It is further alleged that father of the appellant no. 1 used to demand dowry and on his demand a motorcycle was given at the time of marriage.
3. On the basis of the said written report, the FIR (Ex-Ka-6) was lodged on 25.10.2003 at 15.45 p.m vide Case Crime No. 276 of 2003, under Sections 498A, 304-B IPC and Section 3/4 of D. P. Act by Constable Clerk 279 Ramprakash Singh (P.W.-6). Investigation ensued. The post-mortem was conducted and on completion of the investigation a charge sheet (Ex-Ka-5) under Section 498-A, 304 B IPC and Section 3/4 of D. P. Act was submitted against the present appellants. Charges were framed against all the accused appellants under Sections 498-A, 304-B IPC and Section ¾ of Dowry Prohibition Act on 8.12.2004. Additional charge under Section 302 IPC was framed against the appellants, namely Ravi (appellant no. 1/Husband), Chhajju (appellant no. 2/father-in-law) and Smt Premwati (appellant no. 3/mother-in-law) on 29.05.2012. The trial of accused- appellant Sanjay (brother in law of deceased) was separated on account of his being a Juvenile and he has been tried by Juvenile Justice Board.
4. During course of trial of these three accused appellants, as many as eleven witnesses were produced by the prosecution, namely, Mahendra Singh (P.W.1-brother of deceased/complainant), Smt Somati Devi (P.W.-2 mother of deceased), Dr. A. K. Jain (P.W.-3 who conducted postmortem), Smt Beena Rajkumari (P.W.4), S.I. Sunder Lal (P.W.-4), Dr S. P. Singh (P.W.-5), Constable Ram Prakash Sharma (P.W.-6-prepared check report and made G.D. entry), Shyamlal-Tehsildar (P.W.-7 conducted inquest), S.I. Ramveer Singh (P.W.-8-first Investigating Officer), Constable Naeem Abbas (P.W.-9), Constable Veerendra Singh (P.W.-10), and Constable Mehar Singh (P.W.-11).
5. The appellants abjured all the allegations against them in their statement under Section 313 Cr.P.C. and contended that they have been falsely implicated on account of enmity, and, thereafter, as many as four witnesses were produced by the defence, namely, Dr J. K. Jain, (D.W.-1), Jai Gopal (D.W.-2), Ganpat (D.W.-3), and Dr. Vinay Kumar, Radiologist (D.W.-4).
6. Learned Trial Court after analysing all the evidences available on record pronounced its judgement of conviction on 7.6.2014 and sentenced all the appellants as aforesaid.
7. We have heard Sri R. K. Khanna, learned counsel assisted by Sri Amber Khanna, learned counsel for the appellants, Sri Ratan Singh, learned AGA and have perused the material on record.
8. Learned counsel for the appellants has submitted that there is no evidence on record to demonstrate that dowry was ever demanded or that the deceased was harassed or subjected to cruelty mental or physical, soon before her death in connection with demand of dowry. It is also argued that necessary ingredients of Section 304B IPC are not made out. It is also argued that Section 302 IPC is also not made out in the facts & circumstances of the present case. It is further submitted that mere fact that a married woman committed suicide within a period of seven years of her marriage would not directly attract the presumption under Section 113 B of the Indian Evidence Act. The important ingredient of showing that she had been subjected to cruelty had to be shown to exist. He further submitted that there is no automatic presumption that Section 113 A of the Indian Evidence Act would apply unless it is shown that the suicide was abetted by the accused.
9. It was next contended that the evidence produced by the prosecution to prove the offence under the Dowry Prohibition Act was inconsistent and unreliable, because the material prosecution witnesses - P.W.1 (brother of deceased) & P.W.-2 (Mother of deceased) are closely related to one another and no independent witness was examined in proof of demand of dowry by the prosecution, therefore, it is not safe to rely on the testimony of interested and related witnesses in absence of there being independent witness to corroborate their testimonies.
10. The submission of learned counsel further is that only on the basis of the fact that ''Aluminium Phosphide' has been found in her viscera report, it cannot be assumed that poison was administered to her by her husband or her in-laws, and there is no evidence on record that under what circumstances or mental state, she consumed poison. It is further submitted that there may be possibility of death of deceased, who was having 32 weeks foetus, due to ''Amniotic Fluid Embolism', i.e. to say that when the amniotic fluid entered into the bloodstream of the mother, it toxifies the mother's blood, which might result in her death.
11. On the other hand, learned A.G.A. appearing for the State opposed the appeal and argued that the deceased died in the house of the appellants under abnormal circumstances within seven months of her marriage. The evidence adduced on behalf of the prosecution is sufficient for drawing inference that soon before her death she was subjected to cruelty and torture in connection with the demand of dowry. The conviction and sentenced awarded to the appellants are based on reliable and clinching evidence.
12. Learned AGA has further submitted that the unfortunate death of deceased was certainly an unnatural death as the viscera report itself reveals that the poison ''Aluminium Phosphide' was found during its examination, which is evident from the report of the Forensic Science Laboratory (Ex-Ka-4), available on record. There is also no dispute that the death was caused within seven months of the marriage. Further submission of learned counsel for the State is that under these circumstances the presumption under Section 113-B and 113-A of the Evidence Act would arise and the burden would shift on the appellants to prove their innocence but they have failed to do so.
13. It is also submitted that the deceased had met her unnatural death inside her matrimonial home, therefore, under Section 106 of the Indian Evidence Act too, the burden is on the appellants to explain under what circumstances the deceased chose to end her life. The submission further is that even assuming that it was a case of suicide, it will not make any difference because suicide is also an unnatural death and suicidal cases are also covered under Section 304-B of I.P.C. The defence has failed to discharge the onus that has shifted on it or to rebut the presumption by any cogent, reliable and trustworthy evidence as to what was the immediate reason/cause that led the deceased to take such drastic step of consuming poison. Therefore, the court below has rightly convicted the appellants and there is no need to interfere in the impugned judgment.
14. At the outset, we deem it appropriate to discuss the testimonies of material witnesses of the prosecution, more particularly the testimonies of P.W.-1 and P.W.- 2, who are brother and mother of the deceased respectively, who have levelled categorical allegations of cruelty and harassment, being meted to the deceased Meena by her husband (appellant no. 1) and his other family members.
15. P.W.-1, brother of deceased deposed before the court below as under:-
" esjh cgu djok pkSFk ij gekjs ;gak vkbZ gqbZ Fkh mlus eq>s o ifjokj okyksa dks crk;k Fkk fd bl ?kVuk ls dqN fnu igys fdlh ckr ij mldh lkl Jherh izseorh ls dqN dgk lquh gks xbZ Fkh rFkk lkl us ehuk dk xyk pqujh ls nck fn;k FkkA tc jfo djok pkSFk ij esjh cgu ehuk dks ysus gekjs ?kj ij vk;k rc geus mlls bl ?kVuk dh f'kdk;r dh rks mlus dgk fd nhikoyh esa vxys fnu vkuk ckr dj ysaxsaA jfo ds dgus ij geus viuh cgu ehuk dks jfo ds lkFk llqjky Hkst fn;kA fnuakd 25@10@2003 dks lqcg djhc 730 cts gekjs ?kj ehuk ds ifr jfo dk Qksu vk;k fd ehuk dh rfc;r [kjkc gSA lwpuk feyus ij eSusa jfo dks eksckbZy ij Qksu fd;k vkSj ehuk dh fLFkfr tkuuh pkgh rc jfo us Qksu ij crk;k fd ehuk ej xbZ gSA lwpuk feyrs gh eS vius ifjokj ds yksxksa dks ysdj tViqjk igaqpk tgak ehuk ejh iM+h FkhA geas mldh gR;k dh blfy, lUnsg gqvk fd ehuk dh llqjky okys eqfYteku chp chp esa ngst dh eakx esa 50000@ o vU; lkeku dh eakx djrs FksA mUgha dh eakx ij geus eksVj lkbZfdy ysdj nh Fkh ysfdu fQj Hkh ngst ds :i esa vU; lkeku dh eakx djrs jgrs Fks ftldh f'kdk;r ehuk gels ckj ckj djrh FkhA ngst ds dkj.k ehuk dh gR;k mlds ifr jfo] llqj Nttw flag] lkl Jherh izseorh o nsoj` lat; us feydj dh gSA 'kknh ds 7 ekg ds vUnj gh bu yksxksa us mldh gR;k ngst ds fy, dj nhA eS vius ifjokj okyksa dks ehuk dh yk'k ds ikl NksM+dj Fkkuk eSukBsj x;k] ogak eSusa vius gkFk ls fy[kdj rgjhj nhA&&&&&&&&&&&&&&&&&& ehuk dh iksLVekVZe ds ckn yk'k gekjs lqiqnZ dj nh xbZ vkSj geus ehuk dk laLdkj fof/k iwoZdj dj fn;kA gekjs igaqpus ij ehuk dh llqjky okys ?kVuk LFky ls Hkkx x;s FksA"
16. P.W.-2, mother of deceased deposed before the court below as under:-
" ehuk dh 'kknh esa ,d eksVj lkbZfdy o 31000 :i;s uxn mudh eakx ij fn;s FksA eSusa viuh yM+dh dh 'kknh esa djhc ,d yk[k frjiu gtkj :i;s [kpZ fd;s FksA esjh yMdh ehuk dh llqjky okys bruk 'kknh ds [kpZ djus ds ckn Hkh vkSj ngst dh eakx djrs jgrs Fks rFkk mlds ngst ds fy, rax o ijs'kku djrs FksA ehuk dh llqjky okyksa us eksckbZy rFkk 50000@ dh eakx dh eSusa eksckbZy Qksu mudks ns fn;k FkkA ysfdu 50000@ :i;s ugha ns ikbZ FkhA djokpkSFk ls igys esjh yM+dh ehuk esjs ?kj vkbZ FkhA mlus eq>s crk;k Fkk fd esjh lkl izseorh eq>ls 50000@& :i;s dh eakx djh FkhA esjs euk djus ij esjh lkl us pqujh ls esjk xyk nck dj ekjus dh dksf'k'k djhA djok pkSFk ds fnu esjk nekn jfo esjs ?kj vk;k rks eSusa bl ckr dh f'kdk;r jfo ls djh rc jfo us dgk fd bl le; ehuk dks esjs lkFk Hkst nks fnikoyh ds vxys fnu vkdj ckr phr dj ysaxsA fnuakd 25@10@2003 dks pkjks eqyfteku jfo] NTtw] izseorh o lat; us ,d jk; gksdj esjh yM+dh ehuk dks tgj nsdj mldh gR;k dj nhA esjs ikl fn0 25@10@2003 dks lqcg 7%30 cts Qksu vk;kA bl ij eS] esjk yM+dk egsUnz o ifjokj ds o feyus okys dbZ yksx ehuk dh llqjky x;sA ogka igqap dj geus ns[kk fd ehuk dh yk'k cjkenh esa iM+h FkhA vkSj mlds ifr jfo o llqj Nttw ls iwNus ij mUgksaus dksbZ larks"ktud tckc ugha fn;k vkSj ogak ls Hkkx x;sA"
17. A close scrutiny of the testimonies of PW-1 and P.W-2, brother and mother of the deceased respectively, abundantly reveals that the deceased was subjected to cruelty on account of demand of dowry. Death of the deceased Meena occurred within seven months of her marriage. It is also not disputed that the deceased died in her matrimonial home otherwise than under normal circumstances, where she was living with her husband. Death of deceased was not under natural circumstances as the death of Meena could be said to be certainly an unnatural death on the evidence adduced by the prosecution.
18. In the light of the aforesaid evidence, it would be relevant to discuss as to whether the appellants have been rightly convicted under Section 304-B IPC ?
Section 304-B IPC reads as under:-
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.-For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extent to imprisonment for life."
19. Thus, Section 304-B IPC provides for a statutory compulsion merely on the establishment of two conditions that (i) death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (ii) soon before her death, she should have been subjected to cruelty or harassment by the accused in connection with demand of dowry. If these two factual positions are established then, the court has to presume that the accused has committed dowry death. If any accused wants to escape the rigour of Section 304-B IPC, the burden is on him to disprove it. If he fails to rebut the presumption, the court is bound to act on it.
20. Section 304-B IPC is coupled with Section 113 B of the Indian Evidence Act. Section 113-B of the Indian Evidence Act reads as under:-
"113-B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.-For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)."
21. Section 113-B of the Indian Evidence Act, 1872 also provides that once it is shown that soon before her death a woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court "shall presume" that such person had caused the dowry death. The expression "shall presume" has been defined in Section 4 of the Indian Evidence Act, 1872, relevant part of which is extracted here in below:
"'Shall presume'.- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."
22. Thus, Section 113-B read with Section 4 of the Indian Evidence Act, 1872 would mean that unless and until it is proved otherwise, the Court shall hold that a person has caused dowry death of a woman, if it is established before the Court that soon before her death such woman was subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry. Section 3 of the Indian Evidence Act, 1872 states that unless a contrary intention appears from the context, the word "disproved" would mean a fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exit.
23. It is, thus clear that irrespective of the fact that whether the accused has any direct connection with the death or not, he shall be presumed to commit dowry death provided the other requirements encapsulated in the Section are satisfied. It is not necessary for attracting the provisions of Section 304-B IPC that apart from showing that the death has occurred in unnatural circumstances within seven years of her marriage and that soon before her death and the woman was subjected to cruelty or harassment by the accused for, or in connection with, any demand for dowry, it must also be shown that the accused had any direct nexus with the death.
24. The term "soon before her death" used in Section 304-B IPC and Section 113-B of the Indian Evidence Act connote a sense of proximity of time between the dowry related maltreatment amounting to cruelty and the incident of death. Therefore, an isolated incident of dowry related ill-treatment amounting to cruelty meted out to the woman in the past may not be independently relevant but it may be relevant if it forms a chain of continuous incidents of maltreatment amounting to cruelty.
25. Thus, in case of dowry death, prosecution is not obliged to establish that the accused persons were directly involved in the death of deceased in terms of inflicting physical injuries. If the ingredients of Section 304-B IPC are established by the prosecution, then the court would have no option but to presume that the accused has committed dowry death unless of course, accused or accused persons are able to successfully rebut the presumption.
26. Coming back to the facts of the present case, we find the following undisputed facts:-
(a) Death of deceased Meena occurred within seven months of her marriage thereby the main condition prescribed under Section 304-B IPC namely "within seven years of marriage" was fulfilled.
(b) Death of deceased was not normal as the unfortunate death of Meena was certainly an unnatural death as the viscera report itself reveals that the poison 'Aluminum Phosphide' was found during its examination, which is evident from the report of the Forensic Science Laboratory, Agra, available on record (Ex-Ka-4). It is, therefore, clear that her death was unnatural within seven months of her marriage.
27. It is also not disputed that the deceased died in the house of her matrimonial home where she was living with her husband and in-laws, and the deceased died in the circumstances which can never be said to be normal, therefore, it can safely be concluded that the second condition of Section 304-B IPC is also fulfilled and the appellants have rightly been convicted for the said offence. The testimonies of prosecution witnesses P.W.-1 Mahendra Singh, who is brother of deceased and P.W.-2 Smt Somati Devi, the mother of the deceased respectively also lends credibility to this conclusion.
28. Now, the second question is as to whether any dowry demands were made from the deceased or her parents ? and whether the deceased was tortured and subjected to cruelty on non fulfilment of these dowry demands and whether the appellants have rightly been convicted under Section 498-A IPC ?
29. In this regard, the prosecution has adduced and further relied upon the testimonies of two persons namely P.W.-1 & P.W.-2, the brother and mother of the deceased, which may be seen from the relevant extract of their testimonies, as under:
30. P.W.-1 has testified that " ehuk dh llqjky okys eqfYteku chp chp esa ngst dh eakx esa 50]000 o vU; lkeku dh eakx djrs FksA mUgha dh eakx ij geus eksVj lkbZfdy ysdj nh Fkh ysfdu fQj Hkh ngst ds :i esa vU; lkeku dh ekax djrs jgrs Fks ftldh f'kdk;r ehuk gels ckj ckj djrh FkhA". He has also testified that his sister came to her parental home two-three days prior to Karwachauth and at that point of time she disclosed the fact that some altercation took place with her mother-in-law on account of demand of dowry and at that time her mother-in-law also tried to press her neck with the help of her chunni. The relevant extract of testimony is "esjh lxh cgu ehuk dh 'kknh jfo ds lkFk gqbZ FkhA 'kknh 18@02@2003 dks gqbZ Fkh esjh cfgu djokpkSFk ij gekjs ?kj vk;h Fkh mlus esjh eak dks crk;k Fkk fd ngst eakxus ds mij lkl ls dgk lquh gks x;h rks lkl us pqUuh ls xyk nck fn;k FkkA bldh lwpuk mlus ge yksxksa dks nh Fkh] jfo djokpkSFk ij esjh cfgu ehuk dks ysus vk;k rc bl ckr dh f'kdk;r jfo ls dh Fkh] mlus cksyk nhikoyh ds vxys fnu vk tkuk ckr dj ysxas vkSj cfgu dks vius lkFk ys x;kA esjh cfgu us gh crk;k Fkk fd ngst ds fy, esjh llqjky ds lc eq>s izrkfM+r djrs gSA" Similar statement has been made by P.W.-2 Smt Somati Devi, mother of the deceased. The testimonies rendered by these witnesses are sufficient to show that deceased was subjected to cruelty in terms of Section 498-A IPC explanation (a) which talks of mental cruelty as well. Both of these witnesses have been extensively cross examined where they have reiterated that the deceased was subjected to torture and cruelty on account of non fulfilment of dowry demand. We have carefully examined their testimonies and believe that they are trust worthy and reliable witnesses. There is absolutely no reason to disbelieve their testimonies especially in the light of dowry demand made directly to deceased, her brother and mother. It would not be out of place to mention that after the death of bride the details of harassment & torture is also not possible, but it may be inferred from the evidence of parents & other relatives of the deceased and the circumstances that the deceased was subjected to harassment & torture.
31. Hon'ble Apex Court in Mustafa Shahadal Shaikh Vs State of Maharashtra, AIR, 2013 SC 851 relied on the testimonies of parents of deceased and other witnesses, who in turn narrated the story of torture communicated to them by the deceased. In Kashmir Kaur Vs State of Punjab AIR 2013, SC 1039, Hon'ble Apex Court accepted the story of torture communicated by the deceased to her parents.
32. We have examined the testimonies of P.W-1 and P.W.-2, brother and mother of the deceased. Their testimonies can be accepted for establishing two other ingredients of Section 304-B IPC i.e. the demand of dowry and acts of cruelty on non fulfilment of such dowry demand soon before the death of deceased.
33. Further, as far as the stand taken by learned counsel for the appellants that P. W.-1 and P. W.-2 are interested witnesses and closely related to each other and hence their testimonies cannot be relied upon, is also not tenable in the eyes of law. Hon'ble Apex Court in a catena of decisions has held that the evidence of a closely related witness/s is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case and their evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (Ref: Anil Rai Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju@Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Ganga bhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).
34. In the present case, nothing has been brought on record to prove that the evidence of PW- 1 and P.W-2 cannot be believed and relied upon or they have falsely implicated the appellants due to some personal vengeance or have implicated the appellants in the present case at the instance of the prosecution. Therefore, aforesaid testimonies cannot be rejected on the mere ground of their relationship because relationship by itself is not a sufficient ground to discard the evidence of the witnesses and label it as inappropriate for credence and hence the argument of the counsel for the appellants with regard to interested witnesses and minor contradictions in the statements of prosecution witnesses holds no ground.
35. So far as the submission of the learned counsel for the appellants that no independent witness was examined to prove the demand of dowry by the prosecution itself renders the entire prosecution case doubtful, also cannot be accepted. There is no doubt that the P.W.-1 and P.W.-2 are closely related to each other but on that count their testimonies cannot be said to be unreliable in absence of any independent witness. Deceased would be the best person to speak about demand of dowry but where she is no more, then the only remaining evidence can be that of the parents of the deceased to whom she would be expected to confide and mention about such demands made time to time in order to ascertain if they could meet the same. The death of the deceased within seven months of her marriage is not disputed. We believe the testimonies of P.W.-1 & P.W.-2 with regard to the demand of dowry and torture of deceased with a view to coercing her to bring more dowry is also not disputed. Therefore, the prosecution story cannot be thrown away merely on the basis of not producing any independent witnesses to support the version of P.W.-1 and P.W.-2.
36. The law is settled on the point that in case the sole testimony of the prosecution witness is trustworthy, the same can be relied upon and it is the quality of the witness and not the quantity, which is relevant. Section 134 of the Evidence Act is also relevant to be referred to in the present case, which prescribes that no particular number of witnesses shall in any case be required for the proof of any fact. The Hon'ble Supreme Court in Maqsoodan Vs State of UP, 1983 AIR 126 has held that it is not the number of witnesses but the quality of evidence that counts.
37. The statements of PW-1 and P.W.-2 are sufficient to prove the demand of dowry against the appellants, as their statements are trustworthy and there is no reason to disbelieve their testimony.
38. We also find from the record that in this case deceased died in her matrimonial home on account of the poison ''Aluminium Phosphide' and the medical/scientific evidence corroborating the testimonies of the prosecution witnesses shifts the burden of proof on to the accused to prove the facts and circumstances, which are within their special knowledge and conscience. Initially the burden to establish the case would undoubtedly rest upon the prosecution, but in our view, the initial burden has been discharged by the prosecution on the basis of the evidence on record, which establishes the fact that the deceased was subjected to cruelty on account of dowry demand. Accordingly, by virtue of Section 106 of the Indian Evidence Act, the burden lay on the appellants to have explained the incriminating circumstances pointing against them. In the present case, harassment is caused within four corners of the matrimonial house of the deceased which is house of the appellants. When any harassment is committed in secrecy of four corners of the house, it is difficult to collect direct evidence against the perpetrators of the crime because either they are members of family or they assist in harassment, therefore, explanation is sought against presumption from the appellants, but no explanation was given by them and their version is plain denial which is without any merit. In these circumstances, it was the appellants who could give some plausible explanation as to how and in what manner the incident in question occurred and as the appellants have failed to discharge the burden under Section 106 of the Evidence Act not only by giving evasive answers but also by making an unsuccessful claim that the deceased died of some disease without any basis and evidence on record, in our opinion, this fictitious story cannot be believed.
39. It is also a settled legal position that Section 106 the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond any shadow of reasonable doubt. It is only, when such a burden is discharged by the prosecution that the onus eventually shifts on to the accused to prove any fact within his special knowledge, to establish that he/she/they is/are not guilty of the aforesaid alleged offence. We may refer to the following Para, from the judgment of the Apex court in Sucha Singh VS State of Punjab, reported in AIR 2001 SC 1436 as under:
"We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to Offer any explanation which might drive the court to draw different inference."
40. In the case of Raj Kumar Prasad Tamarkar Vs. State of Bihar (2007) 10 SCC 403 the Apex Court held that "if some occurrence happens inside the residential portion of the accused, where he was also available, at or about the time of the incident, he is bound to offer his version as to how the occurrence had taken place. The only other person who can speak about the occurrence will be the deceased and now that she is dead, if at all, the accused alone can offer an explanation. Section 106 of the Indian Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is true that this section cannot be used, so as to shift the onus of proving the offence, from the prosecution to the accused. However, in the present, there is satisfactory evidence, which fastens or conclusively fixes the liability, for the death of Gandhimathi, on the inmate of the house, present therein at the relevant time. So, in the absence of any other explanation, the only possible inference is that the accused participated in the act. If he claims contrary, under Section 106 of the Evidence Act, the burden of proving that fact is upon him, since that is within his special knowledge."
41. In the case of Prithpal Singh Vs State of Punjab and others, reported in (2012) 1 SCC 10, the Apex Court in the following Para has held as under:
"... if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
42. In the case of Harijan Bhala Teja vs State Of Gujarat, (2016) 12 SCC 665, it has been held as follows:-
"Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death. "
43. Now the next argument of learned counsel for the appellants that charge under Section 304-B IPC and Section 302 IPC cannot go simultaneously, and all the appellants have wrongly been convicted under Section 302 IPC is required to be examined.
44. So far as the submission that charge under Section 304-B IPC and Section 302 IPC cannot be simultaneously prosecuted is concerned, the Apex Court in the case of Rajbir Vs State of Haryana, (2010) 15 SCC 116, has issued directions to all the trial Courts in India to ordinarily add Section 302 IPC to the charge of Section 304-B IPC, so that death sentence could be imposed in such heinous and barbaric crimes against women.
45. Subsequently, Hon'ble the Apex Court in Jasvinder Saini and others Vs. State (Government of NCT of Delhi) reported in (2013) 7 SCC 256, observed that direction issued in Rajbir (supra) was not mean to be followed mechanically and without due regard to the nature of the evidence available in the case. It was clarified that Hon'ble the Apex Court in that case meant to say that in a case where a charge alleging dowry death is framed, a charge under Section 302 IPC can also be framed, if the evidence otherwise permits. The observations of Hon'ble the Apex Court in Jasvinder Saini (supra) read as follows: -
"14. Be that as it may, the common thread running through both the orders is that this Court had in Rajbir case directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court.
46. Now, the next argument of the appellants that merely because ''Aluminium Phosphide' has been found in her viscera report, it cannot be assumed that poison was administered to her by her husband or by her in-laws, and there was no motive to commit the murder of the deceased.
47. It would not be out of context to quote the deposition of P.W.-3 Dr. A. K. Jain, who is said to have conducted the postmortem on the person of deceased. The deposition of P.W.-3 is as under:-
" fnuakd 26@10@2003 dks eSusa dsUnzh; iqfyl fpfdRlky;] eksjknkckn esa ltZu ds in ij dk;Zjr jgrs gq, 1%45 ih0,e0 ij e`rdk ehuk ds 'ko dk iksLVekVZe fd;k Fkk ftls lh0ih0ua 397 esgj flag o lh0ih0 ua0 1455 ohjsUnz flag Fkkuk eSuskBsj lhycUn voLFkk esa yk;s FksA e`rdk dh mez yxHkx 22 o"kZ Fkh rFkk njfe;kuk dn dh FkhA e`R;q ds ckn dh vdM+u 'kjhj ls ikl gks pqdh FkhA psgjk Nkrh dk mijh fgLlk vkSj u[kwu ij uhykiu FkkA 'kjhj ij dksbZ tkfgjk pksV ugha FkhA vkUrfjd ijh{k.k ij efLr"d o mldh f>fYy;k dUtLVM FkhA nksuks QsQM+s o mudh f>fYy;ak dUtLVsM FkhA isV dh f>Yyh dUtLVsM Fkha vkek'k; dh mucosa dUtLVsM Fkh vkek'k; esa 500 fey0 Hkwjk inkFkZ FkkA iwjk vek'k e; inkFkZ ds tkj ua0 1 esa lhy fd;k x;kA isV dh dSfoVh esa ihykiu fy;s gq, nzC; inkFkZ FkkA QsysDl ekStwn Fksa gksB vkSj thHk dk jax uhykiu fy;s gq, Fkk NksVh vakr esa nzO; o xSl FkhA Liyhu dk ,d VqdM+k tkj ua0 2 esa lhy fd;k x;k Fkk A thxj] Liyhu vkSj xqnsaZ dUtLVsM FksA ftxj dk ,d VqdM+k] Liyhu iwjh vkSj ck;k xqnkZ iwjk tku ua0 2 esa lhy fd;k x;k Fkk A cPps nkuh c<+h gqbZ Fkh ftlesa yxHkx iwjh le; dk cPpk FkkA esjh jk; esa e`R;q dk dkj.k Bhd izdkj ls fuf'pr ugha fd;k tk ldk Fkk blfy, mijksDr vax vkxs takp djus gsrq lhy fd;s x;s FksA "
48. The F.S.L. report (Ex-Ka-4) clearly indicates that ''Aluminium Phosphide' was found in the intestine, liver, kidney and spleen of deceased.
49. Learned counsel in support of his argument has further submitted that the deceased died due to ''Aluminium Phosphide' produced because of ''Amniotic Fluid Embolism' and also relied upon ''Modi Medical Jurisprudence & Toxicology (Twenty-third Edition) (at pp.201-202)' and seeks to contend that Aluminium Phosphide cannot be administered in a deceitful manner because of its pungent smell. Taking recourse to the Medical Jurisprudence, where ''Aluminium Phosphide' (Celphos) is stated as "Aluminium Phosphide (Celphos) is used as a fumigant to control insects and rodents in food grains and fields". In reported cases of poisoning, symptoms which have been found are burning pain in the mouth, throat and stomach, vomiting mixed with blood, dyspnoea, rapid pulse, subnormal temperature, loss of co-ordination, convulsions of a clonic nature and death. In the solid form, it acts as a corrosive in the mouth and throat as it precipitates proteins. In postmortem appearance, the tongue, mouth and oesophagus are oedematous and corroded. The mucous membrane of the stomach is corrugated, loosened or hardened and is stained red or velvety. The intestines are inflamed. Celphos once administered or consumed spreads rapidly in the body and kidney, liver, spleen, heart and lungs are affected by the poison.
50. We find from the record that Dr. A. K. Jain's (P.W.-3) opinion, as expressed by him during his deposition that, "psgjk Nkrh dk mijh fgLlk vkSj u[kwu ij uhykiu FkkA vkUrfjd ijh{k.k ij efLr"d o mldh f>fYy;k dUtLVsM FkhA nksuks QsQM+s o mudh f>fYy;ak dUtLVsM FkhA isV dh f>Yyh dUtLVsM Fkha vkek'k; dh mucosa dUtLVsM Fkh" also finds an authoritative support.
51. Record further discloses that a suggestion appears to have been put forth by the side of the defence to P.W.-3 Dr A. K. Jain, who conducted the postmortem report of the deceased, that as to whether death of deceased is possible due to carrying of a dead foetus by the deceased? The answer was in the negative. This witness has further testified that " e`rdk ds isV esa iksLVekVZe ds le; ,d cPpk ik;k x;k Fkk og e`r Fkk] og yxHkx 9 ekg dk Fkk]]]]]]e`rdk ds 'kjhj ij dksbZ tkfgjk pksV ugha Fkh vkSj u dksbZ la?k"kZ ds fu'kku FksA" Further, the defence has also produced D.W-1 Dr G. K. Jain, who was also present with the doctor (P.W.-3) conducting the postmortem, in his defence, to contend that the deceased died due to excretion of some poisonous chemical substance after the death of the foetus. In this regard, D.W.-1 has testified that if any foetus dies in its mother's womb, then there is possibility of toxin coming out of the dead foetus, which might affect the mother and possibility of death of mother cannot be ruled out, but a suggestion put to this witness from defence as to whether any poison like ''Aluminium Phosphide' (Celphos) etc. could be excreted/found after the death of foetus in the womb, was denied by this witness in quite specific terms. It is not disputed that the deceased died on account of the poison ''Aluminium Phosphide' and the defence version also gets falsified itself from the testimony of D.W.-4 Dr Vinay Kumar, Radiologist, who had testified before the trial court "24@10@2003 dks xHkZk'k; esa cPpk lh/kk o Bhd gkyr esa Fkk] dksbZ chekjh ugha Fkh vkSj u 24@10@2003 dks cPpk xHkZ esa ejk FkkA" Thus, from the version of the defence witnesses, it is believed that though the foetus died in the womb of mother then also the mother could be alive for more than two or three days and it could not be attributed to be the cause of the death of the deceased.
52. In the case in hand, the accused/appellants are suspected to have administered poison to the deceased. Admittedly, it is a case where no direct evidence is available for administering poison. It is well settled that circumstantial evidence, in order to sustain the conviction, must satisfy that the circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established on the basis of some set of evidence, which unerringly points towards the guilt of the accused persons. In other words, circumstances taken cumulatively should form a complete chain so that there is no escape from the conclusion that in all human probability, the crime was committed, by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
53. The Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116, in the case of death by poisoning held that the Court must carefully scan the evidence and determine the following four important circumstances which can justify a conviction:
i). the accused had the poison in his possession.
ii). the deceased died of poison said to have been administered.
iii). accused had an opportunity to administer the poison to the deceased.
iv). there is a clear motive for the accused to administer poison to the deceased.
54. From the aforesaid, it is clear that in the case of murder by administering poison, the Court must carefully scan the evidence and determine the aforesaid four important circumstances. In the light of above principles, it is necessary to ascertain whether in the present case, the aforesaid four important circumstances have been established or not ?
55. From the evidence available on record the prosecution has not been able to establish that the accused had any motive to commit murder of deceased by administering poison to her. Though prosecution has tried to suggest that the deceased was having foetus older than the period of her marriage and out of this fear and resultant shame, they might have committed murder of the deceased, also does not stand to appeal.
56. In the present case, it is undisputed that the deceased was carrying pregnancy of more than 32 weeks and 4 days and it was in the sole knowledge of the family of the accused persons and in that situation and for that reason no one would ever try to kill the deceased and also stop the birth of the child vis-a-vis no woman would even think of ending her life at the tender age of 22 years unless the circumstances had become such that to embrace death appeared to be a better option than to live. The prosecution has failed to adduce any concrete evidence on record to substantiate its case in relation to motive that all the appellants have conspired together to eliminate the deceased for carrying a foetus older than the period of her marriage, is not sufficient to connect the appellants with the commission of the murder of deceased by administering her poison. Therefore, we have no hesitation in rejecting the theory propounded with regard to the motive for the murder of the deceased. From the evidence available on record, we are of the considered opinion that the prosecution has failed to prove that the accused had any motive to administer poison to the deceased with an intention to cause her death.
57. Though, on the state of the evidence as it exists on record, it can not be concluded positively that ''Aluminium Phosphide' (celphos) was administered to the deceased or the accused had any opportunity available to them for administering poison to the deceased, to prove the contrary circumstance that the accused/appellants had the poison in their possession, the prosecution has failed to bring on record any specific evidence to substantiate the said fact. Therefore, we are of the considered opinion that the prosecution has not been able to establish even this circumstance by adducing reliable and cogent evidence that the appellants were in possession of the poison or had actually administered the same to the deceased with the deliberate intention to kill her.
58. As regards the other two conditions i.e. the deceased died due to poisoning and the accused/appellants had an opportunity to administer the poison to the deceased, true it is that the prosecution has been able to prove the fact of presence of the appellants with the deceased at the relevant time and that the deceased died of poison, as is evident from the report of Forensic Science Laboratory (Ex. Ka-4) that ''Aluminium Phosphide' poison was found in the viscera of the deceased, but, in absence of any concrete evidence establishing that the accused/appellants had any opportunity to administer poison to the deceased and that they had secured the poison from a particular source, it cannot be said that the prosecution has been able to prove the guilt of accused appellants under section 302 IPC by leading cogent and reliable evidence that it is the accused/appellants who have caused death of deceased.
59. From the facts and circumstances of the case, we find that there is no evidence on record to connect the appellants with the murder of deceased or at least to draw an inference that they had actually administered poison to the deceased. In other words the main link in the chain of circumstances is completely broken and there is no connecting evidence whatsoever worth mentioning incriminating the appellants with the murder of deceased. However, we find that the prosecution has been able to prove that the deceased-Meena was treated with cruelty by the appellants, who happened to be the husband, mother-in-law, and her father-in-law, in her matrimonial home and that she died in her matrimonial home otherwise than in normal circumstances within seven months of her marriage. Therefore, their conviction by the trial Court under Section 304-B IPC and Section 498-A IPC and Section ¾ of D. P. Act deserves to be affirmed and conviction and sentence of the appellants under Section 302 IPC deserves to be set aside.
60. The only issue now before this Court is with regard to the sentence to be imposed upon the appellants for the said offence. Section 304-B IPC prescribes the minimum and the maximum sentence, which may be imposed upon an accused. Since the minimum and maximum sentences are prescribed, the maximum sentence should be imposed in the "rarest of the rare case", and not at the drop of the hat. Some cogent reasons had to be given by the learned Trial Court for prescribing the harshest punishment for the said offence. Moreover, bare perusal of the impugned judgment clearly reveals that no such reasons have been assigned by the learned Trial Court for imposing the harshest punishment of life imprisonment under Section 304-B IPC.
61. In Hem Chand Vs State of Haryana, (1994) 6 SCC 727, the Apex Court observed that awarding extreme punishment, of life imprisonment for the offence under Section 304-B IPC, should be in rare case: and not in all cases. In that case a sentence of 10 years rigorous imprisonment was held to meet the ends of justice.
62. In Smt Shanti and Another Vs State of Haryana, Air 1991 Sc 1226, the Apex Court awarded the minimum sentence of 7 years rigorous imprisonment for such an offence. Again in Salamat Ali VS State of Bihar, A.I.R. 1995 Supreme Court 1863, their Lordships upheld a sentence of 7 years' imposed upon the husband for the dowry death of his wife.
63. In the case of Mohd. Hoshan Vs. State of A.P., 2002 SCC (Crl.) 1765, the Apex Court deemed it appropriate to modify the sentence of imprisonment to the period already undergone having regard to the fact that both the appellants were under imprisonment for about two months. The incident in that case had taken place on 09.03.1983; appellant No. 2 is the mother of appellant No. 1 and was aged about 60 years. In these circumstances, it was held that since both the appellants are on bail it may not be appropriate to sent them to jail. This was a case where the appellants were convicted under Section 306 read with Section 498-A IPC.
64. Similarly in the case of Devi Ram Vs. State of Haryana, 2002 (10) SCC 76, wherein the incident in question relates to the year 1987 and the appellant had already served a part of his sentence, after observing that the appellant was an aged person after upholding his conviction, the sentence was reduced to the period already undergone. However a condition was imposed on appellant to deposit the fine of Rs.10,000/- and in default to serve out remaining part of his sentence. This was also a case under Section 306 IPC and Section 498-A IPC.
65. Further, in the case of Satvir Singh Vs. State of Punjab (supra), 2001 (8) SCC 633, the Apex Court did not interfere with the conviction under Section 498-A IPC. In this case both the appellants were aged and had crossed the age of 70 years and therefore, the Apex Court decided to modify the sentence by reducing it to the period already undergone. However, the fine part of the sentence was enhanced to rupees one lakh.
66. In the case of Kansraj Vs. State of Punjab, 2000 (5) SCC 207, the conviction under Section 304-B and Section 306 IPC was upheld but the sentences awarded was reduced to five years besides payment of fine as imposed by the trial Court.
67. However, in the instant case, it is an admitted fact that a young and promising life has been snuffed out within seven months of her marriage. The deceased would have hoped that her married life would be happy and full of joy. But instead, she was subjected to cruelty and harassment at the hands of the appellants and therefore, the learned Trial Court is justified in convicting the appellants for the offences under Section 304-B, 498-A IPC and Section ¾ of D.P. Act. After giving our careful thought to the facts and circumstances of this case, we find that it is not that type of rare case, which may warrant imposition of the extreme sentence of life imprisonment under Section 304-B IPC without assigning any reasons. Learned Trial Court is not justified in imposing the harshest penalty of life imprisonment upon the appellants, therefore, a lesser sentence would be enough to meet the ends of justice.
68. Consequently, while affirming the conviction of the appellants for the offences under Section 304-B IPC, Section 498-A IPC and Section ¾ of D. P. Act, we reduce the sentence of life imprisonment imposed upon them for the offence under Section 304-B IPC to a period of imprisonment as directed hereinafter. The conviction and sentence of all the appellants under Section 302 IPC is hereby set aside.
69. Insofar as appellants no. 2 (Chhajju) and appellant No. 3 (Smt Premwati) are concerned, they are stated to be on bail by this Court and are aged more than 60 and 65 years respectively. In view of what has been laid down in the above-cited judgments, we find that after six years of their conviction as also looking to the old age of the appellants no. 2 & 3 and also that at the fag end of their lives, no useful purpose would be served in sending the appellants no. 2 & 3, to jail again and as such, the sentence awarded to them is further reduced to the period already undergone, while maintaining their convictions under Section 304-B, Section 498A IPC and Section ¾ of D. P. Act only. Appellant Nos. 2 and 3 are on bail. Their bail bonds stand cancelled and sureties are discharged.
70. As far as the case of the first appellant no. 1 Ravi, the husband of the deceased is concerned, his conviction is maintained u/s 304-B, 498A IPC and Section ¾ of D. P. Act. And so far as sentence of life imprisonment imposed upon him for the offence under Section 304-B IPC is concerned, the same is reduced to a period of 8 years. All the sentences under different count shall run concurrently in respect of appellant no. 1.
71. Let a copy of the judgment be sent to the court concerned through Sessions Judge, Moradabad within fifteen days. The trial court shall thereafter report compliance within one month.
72. With the above modification, this appeal stands disposed of.
Order Date :- 09.12.2020 RavindraKSingh