State Of Chhattisgarh vs Anup Sharma 102 Crr/120/2017 Arun ... on 3 January, 2018

[Cites 19, Cited by 5]

Chattisgarh High Court

State Of Chhattisgarh vs Anup Sharma 102 Crr/120/2017 Arun ... on 3 January, 2018

1. Challenge in this acquittal appeal is to the judgment dated 27.12.2014 passed by Second Additional Sessions Judge, (for short 'the trial Court') Session Division Raipur, (CG) in Session Trial No. 128/2013 wherein the trial Court acquitted the respondent from the charges under Sections 304B, 306, 498-A in alternate Section 302 of the Indian Penal Code.

2. Facts giving rise to the instant appeal is that name of the deceased is Smt. Jyoti Vaishnav Sharma whose marriage was solemnized on 07.02.2013 with respondent Anup Sharma. It is alleged that the respondent demanded dowry from the deceased and told her that land belonging to her father be sold and money 2 should be provided to him. With this reason, the respondent harassed the deceased and beat her. It is further alleged that the deceased cut vein of her wrist and wrote suicidal note. The deceased committed suicide on 03.4.2013. On the basis of the information given by the respondent enquiry was conducted under Section 174 of the Cr.PC and after enquiry FIR was registered by Assistant Sub Inspector of Police namely Arjun Barik. The matter was investigated and during investigation, statements of the witnesses under Section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code') were recorded. Certain articles were seized and after investigation, charge sheet was filed against the respondent. The respondent pleaded innocence and thereafter the trial was conducted. After examination of the witnesses, statement of the respondent was recorded under Section 313 of the Code. After hearing the parties, the trial Court acquitted the respondent as aforementioned.

3. Learned counsel for the State submits as under:

(i) The trial Court was not justified in discarding the evidence of Jagdish Das Vaishnav (PW-1) who is the father of the deceased and whose statement established that harassment was given to the deceased by the respondent.

(ii) The trial Court was not justified in giving too much weightage to the minor omissions and contradictions appeared in the prosecution evidence.

(iii) Re-appreciation of the evidence goes to show that the finding of the acquittal recorded by the trial Court is not justified and perverse and therefore, the accused be convicted properly.

4. Heard learned counsel for the State and perused the record.

5. The first question for consideration is whether this Court can disturb the finding of acquittal recorded by the trial Court and whether any limitation should be placed upon such power.

6. In Shoe Swarup vs. King Emperor reported in AIR 1934 Privy Council 227, it is held that Criminal Procedure Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power. Again in Athley Vs. State of UP reported in AIR 1955 SC 807, it is held that "In our opinion, it is not correct to say that unless the appellate Court in an appeal under Section 417, Criminal Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion. Again in Sanwat Singh Vs. State of Rajasthan reported in AIR 1961 SC 715, it is observed that there was no difficulty in applying the principles laid down by the Privy Council and accepted by the 4 Supreme Court. The appellate Court not only shall bear in mind the principles laid down by the Privy Council but also give its clear reason for coming to the conclusion that the order of acquittal was wrong. Again in Animireddy Venkata Ramana and Others Vs. Public Prosecutor, High Court of Andhra Pradesh reported in (2008) 5 SCC 368, it is held that when there were very serious infirmities in the judgment of the trial Court both in regard to the legal propositions as also appreciation of evidence and there were non-consideration of material facts and consideration of irrelevant facts, the appellate court's interference with the judgment of acquittal would be warranted.

The foregoing discussion yields the following results: (1) an appellate Court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup Case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (I) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should 5 also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.'

7. From the above principles it is clear that the appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

8. In the instant case, the respondent was charged with offence under Sections 304B, 498-A, 306 and in alternate Section 302 of the IPC.

9. For commission of offence under Section 304B of the IPC, it has to be proved that the death of a woman is caused by any bodily injury or occurs otherwise than under normal circumstance 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 in connection with any demand of dowry.

10. For commission of offence under Section 498-A, it has to be established that husband or relative of the husband subjected such a woman to cruelty.

For the purpose of this Section , "cruelty" means -

" (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

11. Case of the prosecution is based on the statements of Jagdish Das Vaishnav (PW-1) who is father of the deceased, Smt. Uma Vaishnav (PW-2), who is the mother of the deceased, Shri RK Singh (PW-8) who conducted autopsy of the deceased and one suicidal note marked as 'Article D' . As per the statement of Dr. RK Singh (PW-8), cause of death of deceased is possible due to hanging. Expert opinion is corroborative piece of evidence and the Court has to decide the matter on the basis of direct or circumstantial evidence available on record.

12. Jagdish Das Vaishnav (PW-1) has categorically stated that no demand was made by the respondent side before the marriage. He stated that both the parties have agreed to share the expenses of the marriage. As per the version of this witness, when after marriage his daughter and the respondent went to Darjeeling for honeymoon, he gave Rs.10,000/- to the respondent. After sometime his daughter called him on telephone and informed him that husband is harassing her for money and he is advising her that land of her father be sold and money should be provided to him. Smt. Uma Vaishnav (PW-2) who is the mother of the deceased has also deposed on the same line.

13. Now the point for consideration is whether Rs.10,000/- provided by father of the deceased for honeymoon comes in purview of dowry.

14. Definition of dowry as defined in Section 2 of Dowry Prohibition Act, 1961 reads as under:

"2. Definition of 'dowry'. - In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly -

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties, but does not include) dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation II - The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code."

15. Plain reading of the definition makes it clear that the amount provided by father of the deceased during honeymoon is not included under the definition of dowry and it cannot be termed as illegal demand because the amount was provided for staying in the hotel and other expenses of the deceased also and it appears from the evidence that the same was given voluntarily.

16. From the statement of both the witnesses it is not clear as to who demanded money from the deceased and who asked her for selling the land of father of the deceased. Statement made by both the witnesses is not clear and the same is hearsay evidence. Hearsay evidence is not received as relevant evidence. In Kalyan Kumar Gogoi vs. Ashutosh Agnihotri reported in (2011) 2 SCC 532, Hon'ble the Supreme Court has held as under:

"(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying "I do not know, but so and so told me", 8

(b) truth is diluted and diminished with each repetition and

(c) if permitted, gives ample scope for playing fraud by saying "someone told me that...........". It would be attaching importance to false rumour flying from one foul lip to another. Thus statement of witnesses based on information received from others is inadmissible."

17. When second hand evidence is inadmissible then it is difficult for us to hold that any dowry/ illegal demand was made by the respondent.

18. Jagdish Das Vaishnav (PW-1) further deposed that when he visited house of the respondent, he found that there was some cut injury on the wrist of the deceased. As per the version of this witness the respondent informed him that the injury was inflicted by the deceased herself, but later-on his daughter informed him contrary that the injury was inflicted by the respondent, but no direct evidence is available to connect as to what really happened with the deceased and the evidence adduced by the prosecution is not clinching in this regard. It is alleged by the father and mother of the deceased that there was some quarrel between the deceased and the respondent, but there is no medical evidence to corroborate the same regarding physical assault. Again it is stated by the witness that at the time of Holi Festival, the deceased was willing to stay in their house, but the respondent not consented to that and the deceased left their house. After some time, they received the information regarding death of their daughter.

19. There is one suicidal note seized which is marked as 'Article D' in which it is mentioned that the commission of suicide is independent act of the deceased and no one is responsible for the same act. This note is filed by the prosecution and the same is binding on prosecution side and from that note it is difficult to hold that the incident took place because of the harassment by the respondent.

20. True it is that death of the deceased is caused within seven years of marriage. Section 113-B of the Indian Evidence Act, 1872 reads as follows:

"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 had 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."

For applying Section 113 B of the Evidence Act, it is essential that the woman is harassed soon before her death or subjected to cruelty. But in the present case, there is no sufficient evidence of any demand of dowry was made or she was harassed for the same.

21. For establishing offence under Section 304 (B) of IPC, the prosecution is under obligation to pass proximity test. It has to be proved that there exist a proximity and live link between cruelty and death and that is not the case here. Offence under Section 498-A of the IPC is also based on cruelty, but from the evidence adduced by the prosecution, there is no foundational evidence of 10 taunting, misbehaving or any direct or active act on the part of the respondent against the deceased. It is not a case that any act of the respondent has disturbed the mental equilibrium of the deceased and therefore, after re-appreciation of the evidence, we are of the view that the finding arrived at by the trial Court is based on the settled principles of law and warrant no interference.

22. For commission of offence under Section 306 IPC, ingredients of Section 107 IPC i.e. abetment are to be established.

Ingredients of Section 107 of the IPC are that instigating a person to do a thing and "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite to commit an act. The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation.

23. For offence under Section 306 IPC there should be a clear mens rea to commit the offence and there should be a direct or active act by the accused which lead the deceased to commit suicide. Intentionally aiding a person to do a thing also includes in abetment, but from the record particularly from the suicidal note it cannot be inferred that the respondent instigated or intentionally aided the deceased to commit suicide. It cannot be said that the trial Court has not properly appreciated the scope and ambit of Section 306 of the IPC.

24. The respondent has also been charged alternatively under Section 302 of the IPC. From the postmortem report it is established that the deceased died due to hanging. From the suicidal note, it is established that the act of hanging is an independent act of the deceased and no one is responsible for that. Again from the oral evidence adduced before the trial Court it is not established that any criminal act is done against the deceased by the respondent to cause her death intentionally.

25. Taking into consideration the cumulative facts of the evidence, we are not in a position to reverse the finding of the trial Court. The respondent deserved to be acquitted and the trial Court is well within its jurisdiction to deliver the judgment assailed.

26. In the result, the appeal is liable to be and is hereby dismissed.

                       Sd/-                              Sd/-
                     Judge                               Judge
             (Prashant Kumar Mishra)              (Ram Prasanna Sharma)

Bini
                                                12

                           HEAD NOTE

1)    Amount given by father to his married daughter and son-in-

law for honeymoon neither comes within the purview of dowry nor comes within the illegal demand.

2) For establishing offence under Section 304-B & 498-A IPC, demand should be established and it should also be established that there was live link between harassment and death of the deceased.

3) For commission of offence under Section 306 of IPC, active part of the accused should be established that disturbed mental equilibrium of the deceased.

4) The High Court as appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

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Chattisgarh High Court