Allahabad High Court
Ajay Kumar vs State Of U.P. on 12 February, 2020
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD A . F. R. RESERVED Court No. - 83 Case :- CRIMINAL APPEAL No. - 456 of 2017 Appellant :- Ajay Kumar Respondent :- State of U.P. Counsel for Appellant :- Tripurari Pal,Noor Mohammad,Ronak Chaturvedi Counsel for Respondent :- G.A. Hon'ble Suresh Kumar Gupta,J.
1. This appeal has been preferred against the judgement and order dated 13.1.2017 passed by Additional Sessions Judge, Fast Track Court No. 1 Aligarh in S.T. No. 529 of 2013 (State Vs. Ajay Kumar and others) arising out of case crime No. 120 of 2013, under Sections 304-B IPC & 4 of D.P. Act, Police Station-Jawan, District Aligarh and convicted and sentencing the appellant u/s 304-B IPC 10 years rigorous imprisonment and fine of Rs. 5,000/- in default of payment of fine three months further imprisonment and sentencing the appellant u/s 4 D.P. Act and two years simple imprisonment and fine of Rs. 5,000/- in default of payment of fine two months further imprisonment.
2. Brief facts of the case are that the FIR Exhibit Ka-6 lodged by PW 1 on the basis of written report Exh Ka-1 on 11.4.2013 with allegation that the marriage of daughter of PW 1, namely, Maya Devi was solemnized with appellant on 17.5.2011 with Hindu Reties and Customs, in this marriage informant given sufficient dowry according to his status and spent about 3-4 lacs Rupees, but the appellant and his family members were not happy and they started harassment to his daughter about further demand of dowry as Rs. One Lakh cash and they committed murder to his daughter. It is further alleged that on 9.4.2013 i.e. before two days of unfortunate death of the deceased the appellant had brought the deceased at her matrimonial home on that fateful day i.e. 11.4.013. The first informant had received a telephonic information that his daughter has been done to death, on this information, the informant as well as his family members reached to the matrimonial house of deceased, they saw that the dead body was lying at her matrimonial house inside the floor of room with wounds and contusions on her body. This incident had happened about 8:00 o'clock in the morning and on the basis of above allegations, FIR lodged by PW-1 in P.S., Java, District Aligarh on 11.4.2013 at about 15:40 pm. against the appellant/accused Ajay Kumar (husband of the deceased) and also against Bhagwan Singh (Father in law), Meena Devi (Mother in law), Nirmala Devi (Jethani), Km. Neetu (Nanad).
3. Investigation of this case handed over to the C.O. Sansar Singh Investigating Officer, recorded the statement of informant and other witnesses and also prepared the site plan Exhibit Ka-3 and he also collected the post mortem report and inquest report after conducting the formality of investigation. Investigating Officer submitted the charge sheet (Exhibit-Ka-4) against the appellant Ajay Kumar as well as Bhagwan Singh and Meena Devi under Sections 498A / 304B IPC and section 3/4 D.P. Act exonerated other named accused, namely, Smt. Nirmala Devi and Km. Neetu.
4. Charge sheet submitted before the CJM concerned on 25.6.2013 and trial committed before the court of sessions Judge where it is registered as sessions trial No. 529 of 2013 from where this case was transferred for trial to the Additional Distirct Judge, Fast Track Court-1, Aligarh.
5. On 6.9.2013 appellant as well as other accused charged under Sections 498A/149, 304/149 and under section 4 of the D.P. Act in alternative the appellant was charged under Sections 302/149 IPC. After framing of the charges, they denied all the charges against them and claimed trial.
6. To bring home to the accused prosecution has examined 7 witnesses PW-1 Ramakishan, (complainant) father of the deceased; PW-2 Lokman, uncle of the deceased; PW-3 Saroj, Baua of the deceased; PW-4 Sansar Singh, Circle Officer, Aligarh; PW-5 Dr. S.K. Varshney, C.M.O. Mahoba; PW-6 Rajbahadur Singh, Constable and PW-7 O.P. Rana, Investigating Officer.
7. After conclusion of the evidence of prosecution, statement of the accused recorded under Section 313 Cr.P.C. in which all the accused stated that at the time of incident they were not present on spot and they are falsely implicated in this case.
8. In defence, DW 1 Rajpal Singh examined, he deposed that at the time of incident all the accused were present in their field and busy in doing agricultural work in their field. Nobody was present inside the house at the time of alleged incident.
9. After conclusion of the trial, learned trial court exonerated the co-accused Bhagwan Singh and Smt. Meera Devi against charge levelled upon them and after appreciating the evidence on record the prosecution has been able to prove his case against the appellant beyond reasonable doubt and, therefore, the appellant convicted under Sections 304-B IPC and 4 D.P. Act.
10. Being aggrieved by the judgement and order of conviction dated 13.1.2017, this appeal has been filed by the appellant.
11. I have heard learned counsel for the appellant-Sri Noor Mohammad, learned AGA and perused the material available on record.
12. The Exhibit Ka-2-inquest report of the dead body of the deceased-Smt. Maya Devi was done by Virendra Singh, Tehsildar, Tehsil-Kol, District Aligarh in the presence of Sub Inspector-O.P. Rana and police papers were also prepared by Sub Inspector-O.P. Rana. Recovery memo of broken bengles, rings, ear rings, hair clips, khadia, plastic rope was prepared which is Exhibit Ka-8 and a recovery memo of plain soil & vomit mixed soil was also prepared which is Exhibit Ka-9.
13. The post mortem of the death body of Smt. Maya Devi was performed by Dr. S.K. Varshney (P.W. 5) on 12th April, 2013 at about 1:00 pm at District Hospital, Aligarh which is Exhibit Ka-5, in which, doctor found the age of the deceased as about 20 years and the deceased was found to be of average built. Her eyes and bones were protruded. Rigormorties was passed over from the upper part of the body which was present in the lower part of the body. Face and eyes were congested. Clotted blood was present in the left ear and nose.
14. Following ante mortem injuries were found on the body of the deceased:-
1. Contusion at left upper eye lid, measuring 2 cm X 1 cm.
2. Abrasion at left ankle lateral side measuring 1 cm X 1 cm.
3. Abrasion/contusion right side of forehead 2 cm above right eyebrow measuring 1.5 cm X 1 cm.
4. Ligature Marks of 28 cm X 2 cm of around neck upper part present.
5. The mark was hard groomed, leathery on dissection subcutaneous membrane tissue found congested and hemorrhage present.
6. Hyoid bone found fractured.
7. On internal examination, membrane of brain larynx hard; lever, pancreas spleen and other parts of the body were congested.
15. This post mortem report Exhibit Ka-5 was done on the concurrence of Dr. S.K. Verma who has also put his signature on the post mortem report.
16. Dr. S.K. Varshney (PW-5) opined that the cause of death is strangulation asphyxia due to strangulation and death was done one day before.
17. According to Modi's Medical Jurisprudence and Toxicology, 23rd Edition, followings are the symptoms of death caused of strangulation:-
"If the windpipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible, and may die instantly. If the windpipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede delayed death. As in hanging, insensibility is very rapid, and death is quite painless."
a. The death is usually due to asphyxia, but it may be due to other causes, namely, cerebral ischemia or venous congestion, asphyxia and venous congestion combined, or shock due to reflex cardiac arrest.
b. In the case, where the death is caused due to asphyxia, eyes are prominent and open. The pupils are dilated. The tongue is often swollen, bruised, protruding and dark in colour.
c. According to postmortem report, the membranes were congested, brain was congested, spinal cord was congested, larynx and trachea were crushed. Both the lungs were congested, pericardium was congested.
d. According to Modi's Medical Jurisprudence and Toxicology, 23rd Edition, the larynx and trachea are congested in the case of strangulation. The lungs are usually markedly congested, showing haemorrhagic patches and petechiae and exuding dark fluid blood on section. Brain is also congested and abdominal organs are darkly congested.
18. Prosecution, in order to prove its case before the trial court, has produced seven witnesses complainant PW-1 (father of the deceased-Maya Devi) Ram Kishan has stated that her daughter was married to the appellant-Ajay Kumar and during marriage he spent about Rs. Three-Four Lakhs but the family members of in-laws were not happy and started demanding Rs. One Lakh in cash as additional dowry but he could not fulfill the demand of the appellant and his family members. They started treating her with physical cruelty. He console her daughter that by passage of time everything shall be sort out. On 9.4.2013 all the members of in-laws family came to his house for the purpose of 'vidai' and assured that in future they will not harass his daughter. On that fateful day, he received telephonic call from the police then he alongwith his wife, brother-Lokman and Ram Kishore rushed to the village-Pala, Aligarh when they reached there, all the family members of in-law's had run away from the place of occurrence and dead body was lying inside the room near the bed, he lodged the first information report, Exhibit Ka 1 at P.S. Java, Aligarh.
19. PW-2 Lokman is the witness who is the brother of the PW-1, he also supported the evidence of PW-1 Ram Kishan.
20. PW-3 Saroj who is the wife of PW-2 (Real Aunty of the deceased) also deposed that the appellant as well as in law of the victim were harassed and victimized the deceased on demand of additional dowry of Rs. One Lakh. This fact came into light when Maya Devi came in her maternal home then she told her mother that her inlaws are harassing her on demand of dowry. PW-3 Saroj clearly stated in her statement that all the family members of inlaws committed murder of Maya Devi.
21. PW-4 Sansar Singh who was Circle Officer-III, Aligarh on 11.4.2013 and investigated the case, in that capacity, he collected the copy of application, Chik FIR, general case diary and recorded the statement of FIR Writer Rajbahadur Singh, statement of informant Ram Krishan and prepared the site plan in his handwriting and signature and proved the same as Exhibit Ka-3 and after recording the evidence of witness under Section 161 Cr.P.C. submitted the chargesheet-Exhibit Ka-4 against the accused persons under his signature and in his handwriting.
22. PW-5 is Dr. S.K. Varshney whose statement has already discussed in aforesaid paragraph.
23. PW-6 is constable-clerk Rajbahadur Singh of police station, Java, Aligarh who registered the FIR and prepared the Chik FIR on the basis of the Tehriri-Exhibit Ka-1 and proved the same as Exhibit Ka-6 and he also prepared the G.D. Srl. No. 35, 1540 dated 11.4.2013 in his handwriting and proved as Exhibit Ka-7.
24. PW-7 Inspector O.P. Rana who assisted the Investigating Officer PW-4 Sansar Singh and on the instruction of PW-4 Sansar Singh he prepared the recovery memo of Bangles, Hairclips, ear rings and plastic rope measuring about three hands in which wood is tied in both ends, which are proved as Exhibit Ka-8 and a recovery memo of plain soil as well as vomiting mixed soil Exhibit Ka-9.
25. The appellant also produced one defence witness DW-1-Rajpal Singh who deposed his statement that he know the appellant and he resided in the same village and the appellant's house is too close to this house. At the time of incident, crop was cutting and appellant as well as other family members were present in wheat field. Information of the death of Maya Devi was given by the children of the village then the appellant as well as he was rushed to the house of the appellant at that time except deceased nobody was present there.
26. Learned counsel for the appellant submitted that the trial court has convicted the appellant purely on the basis of surmises and conjectures and has failed to appreciate the evidence available on record. He further submitted that the trial court has ignored the major contradictions present in the testimony of the prosecution witnesses and it is next submitted that informant has failed to produce any independent witness either of the village of the appellant or village of informant to support the prosecution case.
27. Learned counsel for the appellant contended that the death of the deceased-Maya Devi was suicidal and is not homicidal and it is further argued that the appellant in his statement recorded under Section 313 Cr.P.C. has stated that due to his disability his wife herself committed suicide due to stress and has also submitted that at the time of incident, he was not present in his house but he was present in the field with all the family members. It is also submitted that no grievous injury is seen in the inquest report and also submitted that from the prosecution evidence, demand of dowry is not made. The prosecution has utterly failed to prove that just before her death deceased-Maya Devi was subjected to cruelty and harassment by her husband or any relative of the husband, in connection with, demand of dowry. Learned trial court has passed the impugned order without properly appreciating the evidence. The prosecution has failed to prove guilty of the appellant beyond reasonable doubt. Lastly, learned counsel for the appellant has mainly argued to consider the appeal on the quantum of sentence. He submits that the appellant is languishing in jail since 17.4.2013 which is near about 7 years. The appellant who is a very poor person, is a daily wage worker and disabled person. He has to face a lot of difficulty to do the daily tasks of the life. The period of 10 years imprisonment is too excessive, hence, he prays for leniency and submitted that since the appellant's sentence prescribed under Section 304 B IPC that is to say 7 years, should be reduced.
28. Per contra, learned AGA contended that victim was died inside the house in her matrimonial home by means of strangulation. PW-5 Dr. Varsaney opined that the cause of death is asphyxia as a result of ante mortem strangulation and further submitted that this is the clear cut case of murder and also submitted that there is no any document submitted by the appellant with regard to his physical disability. It is proved by clinching evidence that deceased died within seven years of marriage due to physical and mental torture and is also proved that soon before her death the victim was harassed and tortured by making demand of additional dowry. Hence, learned AGA lastly contended that there is no infirmity or illegality in the impugned order passed by the trial court and as such the appeals are liable to be dismissed.
29. To appreciate the arguments of the parties and also the evidence, it is necessary to look into the statutory provisions of Section 304 B IPC and Section 113 B of the Evidence Act (hereinafter referred to as 'the Act'). Provisions of Section 304 B IPC reads as follows:
[304B. Dowry death.--(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 extend to imprisonment for life.]
30. Section 113 B of the Act reads as follows:
[113B. 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 304 B of the Indian Penal Code, (45 of 1860).]
31. As per definition of dowry death under Section 304 B IPC and the wording in the presumptive Section 113 B of the Act, if it is proved that death of woman is caused by any burn 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 (i) She was subjected to cruelty or harassment by her husband or his relatives, or (ii) Such cruelty or harassment was for, or in connection with, demand of dowry, or (iii) Such cruelty or harassment was soon before her death; then it becomes obligatory on the court to raise a presumption that accused caused dowry death.
32. As per post mortem report Exhibit Ka-9 and statement of Dr. Varsaney PW-5 is that cause of death of deceased-Maya Devi asphyxia as result of strangulation, this shows that the death of the deceased was homicidal and not suicidal. The contention of the learned counsel for the appellant that the deceased committed suicide by hanging herself is not acceptable. PW-5 Dr. S.K. Varsaney in his statement clearly stated that the death of the deceased was caused by strangulation. In the present case, dead body of the deceased was lying on bed, inside, bedroom of appellant. It was for him to explain under Section 106 of Evidence Act that under what circumstances his wife died.
33. In [2016 (4) SCC Page 604], in the case of Gajanan Dashrath Kharate v. State of Maharashtra, their Lordships of Hon. Supreme Court have held that the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer explanation. In paragraph no.13, their Lordships have held as under: -
"13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4- 2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."
34. As per post mortem report, Exhibit ka-5, 8 injuries was found on the person of the deceased were contusions and contused swelling. In this case, larynx and trachea are congested. Lungs are also congested. Clotted blood was present in the mouth and nose tray. These are the signs which is clearly shows that in the present case, death of the deceased was homicidal.
35. Prosecution witness PW-1 Ramkishan, PW-2 Lokman, PW-3 Saroj proved this fact that the marriage of Smt. Maya Devi was solemnized with the accused-appellant on 17.5.2011. This fact was also been admitted by accused in their statement under Section 313 Cr.P.C. The deceased died on 11.4.2013 about 8:00 hours in the morning, therefore, it is proved beyond doubt that the death of deceased-Maya Devi was done within 7 years of her marriage and her death was caused otherwise than in normal circumstances.
36. Now, it has to be seen that just before her death, deceased Smt. Maya Devi was subjected to cruelty or harassment by her husband and any relative of husband in connection with demand of dowry. This element and burden of prove in case of dowry deaths have been dealt with in detail by Hon'ble The Apex Court in Sher Singh @ Pratapa v. State of Haryana 2015 (89) ACC 288 (SC). The Apex Court held as under:
12. In our opinion, it is beyond cavil that where the same word is used in a section and/or in sundry segments of a statute, it should be attributed the same meaning, unless there are compelling reasons to do otherwise. The obverse is where different words are employed in close proximity, or in the same section, or in the same enactment, the assumption must be that the legislature intended them to depict disparate situations, and delineate dissimilar and diverse ramifications. Ergo, ordinarily Parliament could not have proposed to ordain that the prosecution should "prove" the existence of a vital sequence of facts, despite having employed the word "shown" in Section 304 B. The question is whether these two words can be construed as synonymous. It seems to us that if the prosecution is required to prove, which always means beyond reasonable doubt, that a dowry death has been committed, there is a risk that the purpose postulated in the provision may be reduced to a cipher. This method of statutory interpretation has consistently been disapproved and deprecated except in exceptional instances where the syntax permits reading down or reading up of some words of the subject provisions.
13. In Section 113A of the Evidence Act Parliament has, in the case of a wife's suicide, "presumed" the guilt of the husband and the members of his family. Significantly, in section 113 B which pointedly refers to dowry deaths, Parliament has again employed the word "presume". However, in substantially similar circumstances, in the event of a wife's unnatural death, Parliament has in Section 304 B "deemed" the guilt of the husband and the members of his family. The Concise Oxford Dictionary defines the word "presume" as: supposed to be true, take for granted; whereas "deem" as: regard, consider; and whereas "show" as: point out and prove. The Black's Law Dictionary (5th Edition) defines the word "show" as- to make apparent or clear by the evidence, to prove; "deemed" as- to hold, consider, adjudge, believe, condemn, determine, construed as if true; "presume" as- to believe or accept on probable evidence; and "Presumption", in Black's, "is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted." The Concise Dictionary of Law, Oxford Paperbacks has this comprehensive yet succinct definition of burden of proof which is worthy of reproduction:
"Burden of Proof: The duty of a party to litigation to prove a fact or facts in issue. Generally the burden of proof falls upon the party who substantially asserts the truth of a particular fact (the prosecution or the plaintiff). A distinction is drawn between the persuasive (or legal) burden, which is carried by the party who as a matter of law will lose the case if he fails to prove the fact in issue; and the evidential burden (burden of adducing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or non-existence of a fact in issue.
The normal rule is that a defendant is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case by establishing both the actus reus of the crime and the mens rea. It must first satisfy the evidential burden to show that its allegations have something to support them. If it cannot satisfy this burden, the defence may submit or the judge may direct that there is no case to answer, and the judge must direct the jury to acquit. The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden of proof (e.g. the fact that a woman was subjected to violence during sexual intercourse will normally raise a presumption to support a charge of rape and prove that she did not consent). If, however, the prosecution has established a basis for its case, it must then continue to satisfy the persuasive burden by proving its case beyond reasonable doubt (see proof beyond reasonable doubt). It is the duty of the judge to tell the jury clearly that the prosecution must prove its case and that it must prove it beyond reasonable doubt; if he does not give this clear direction, the defendant is entitled to be acquitted.
There are some exceptions to the normal rule that the burden of proof is upon the prosecution. The main exceptions are as follows. (1) When the defendant admits the elements of the crime (the actus reus and mens rea) but pleads a special defence, the evidential burden is upon him to prove his defence. This may occur, the example, in a prosecution for murder in which the defendant raises a defence of self-defence. (2) When the defendant pleads automatism, the evidential burden is upon him. (3) When the defendant pleads insanity, both the evidential and persuasive burden rest upon him. In this case, however, it is sufficient if he proves his case on a balance of probabilities (i.e. he must persuade the jury that it is more likely that he is telling the truth than not). (4) In some cases statute expressly places a persuasive burden on the defendant; for example, a person who carries an offensive weapon in public is guilty of an offence unless he proves that he had lawful authority or a reasonable excuse for carrying it".
14. As is already noted above, Section 113 B of the Evidence Act and Section 304B of the IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word 'deemed' in Section 304B to distinguish this provision from the others. In actuality, however, it is well nigh impossible to give a sensible and legally acceptable meaning to these provisions, unless the word 'shown' is used as synonymous to 'prove' and the word 'presume' as freely interchangeable with the word 'deemed'. In the realm of civil and fiscal law, it is not difficult to import the ordinary meaning of the word 'deem' to denote a set of circumstances which call to be construed contrary to what they actually are. In criminal legislation, however, it is unpalatable to adopt this approach by rote. We have the high authority of the Constitution Bench of this Court both in State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory, AIR 1953 SC 333 and State of Tamil Nadu v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the Court to ascertain the purpose behind the statutory fiction brought about by the use of the word 'deemed' so as to give full effect to the legislation and carry it to its logical conclusion. We may add that it is generally posited that there are rebuttable as well as irrebuttable presumptions, the latter oftentimes assuming an artificiality as actuality by means of a deeming provision. It is abhorrent to criminal jurisprudence to adjudicate a person guilty of an offence even though he had neither intention to commit it nor active participation in its commission. It is after deep cogitation that we consider it imperative to construe the word 'shown' in Section 304B of the IPC as to, in fact, connote 'prove'. In other words, it is for the prosecution to prove that a 'dowry death' has occurred, namely, (i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured, (ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for dowry and (v) that the cruelty or harassment meted out to her continued to have a causal connection or a live link with the demand of dowry. We are aware that the word 'soon' finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 304B of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. It seems to us that what Parliament intended by using the word 'deemed' was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt. This interpretation provides the accused a chance of proving their innocence. This is also the postulation of Section 101 of the Evidence Act. The purpose of Section 113B of the Evidence Act and Section 304B of the IPC, in our opinion, is to counter what is commonly encountered - the lack or the absence of evidence in the case of suicide or death of a woman within seven years of marriage. If the word "shown" has to be given its ordinary meaning then it would only require the prosecution to merely present its evidence in Court, not necessarily through oral deposition, and thereupon make the accused lead detailed evidence to be followed by that of the prosecution. This procedure is unknown to Common Law systems, and beyond the contemplation of the Cr.P.C.
37. It is well settled principle of law that once prosecution proved that where the death of the woman which was occurred otherwise under normal circumstances within 7 years of her marriage and she was subjected to cruelty and harassment by her husband and relatives of her husband soon before her death in connection with the demand of dowry, then heavy burden of proof lies upon accused to adduce evidence dislodging his guilt, beyond reasonable doubt. In the present case accused appellant-Ajay Kumar had failed to prove reason of doubt that his wife Smt. Maya Devi committed suicide due to depression.
38. In the present case, at the time of incident when the parent and relative were arrived at the matrimonial house of the deceased then they saw that all of the family members of in-law had run away from the scene of occurrence. Neither of any family member was present at the time of preparation of the inquest report. These are the circumstances are clearly shows the indulgence of the appellant.
39. From the post mortem report and statement of the doctor, it is evident that the deceased was beaten just before her death, she was strangulated. This fact is admitted that the deceased is died inside the house and in place of occurrence broken bangles, rings, ear rings, hair clips, plastic rope (fastened with wood) were recovered at the place of occurrence which shows that the deceased was murdered by committing strangulation and by pressing neck of the deceased.
40. Contention of the learned counsel for the appellant is that the prosecution has failed to prove that soon before death of deceased-Maya Devi there was demand of dowry by the accused. To convict the accused under Section 304 B IPC, it is not necessary for prosecution to prove that soon before her death there was no demand of dowry. It will be sufficient for prosecution to prove that soon before the death of the deceased, she was subjected to cruelty or harassment for any demand of dowry or in connection with any demand of dowry.
41. Last argument of learned counsel for the appellant is that the appellant is languishing jail since 17.4.2013 about 7 years. Appellant is disable and very poor person and daily wager so considering the peculiar facts and circumstances, prayer for reduction of sentence from 10 years to 7 years.
42. In this particular case, deceased was beaten and she resisted before her death. On place of occurrence, broken bangles, one plastic rope tied with both ends with wood measuring three hands and autopsy of dead body was conducted by PW-5 Dr. S.K. Varshney noted several ante mortem injuries besides ligature mark measuring 28 cm X 2 cm around the neck and bones underneath were found fractured cause of death was strangulation.
43. The appellant was charged for offence under Section 498A, 304 B and Section ¾ D.P. Act with alternative charge of under section 302 IPC although learned sessions court after appreciating the evidence arrived at a finding that the deceased died about two years of her marriage and held that offence under Section 304 B and Section 4 D.P. Act is proved beyond shadow of doubt but learned trial court acquitted the appellant on alternative charge under Section 302 IPC while holding that since the offence under section 304 B had been fully established by prosecution therefore, the appellant could not be convicted under Section 302 IPC. Thus, finding of the court below is totally whimsical and against the evidence on record acquittal of the appellant under Section 302 IPC is against the evidence on record but as no appeal on behalf of the State for enhancement of sentence. In these circumstances, this Court is not inclined to interfere the judgement and order of the trial court.
44. So far as contention of learned counsel for leniency and reduction of sentence of accused-appellant-Ajay Kumar is concerned, it is not a case of suicidal death but a case of homicidal death. There is no mitigating circumstance against the applicant. It shall not be justified to interfere or reduce the sentence awarded to appellant. Accordingly, the appeal is liable to be dismissed.
45. The conviction and sentence of appellant-Ajay Kumar passed by Additional Sessions Judge, Fast Track Court No. 1 Aligarh, under Sections 304B and 4 D.P. Act are hereby upheld. The appellant-Ajay Kumar is in jail and he shall serve out the sentence awarded to him.
46. In view of the above, the appeal is dismissed.
47. Office is directed to transmit the certified copy of this order to the court below alongwith the lower court record, for necessary compliance.
Order Date :- 12.2.2020 Ankita