Rajasthan High Court - Jodhpur
State Of Rajasthan V. Prahlad Ram vs State Of Rajasthan V. Prahlad Ram on 16 April, 2015
Bench: Gopal Krishan Vyas, Anupinder Singh Grewal
DB CrLA No.245/2014
1/10
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
::
J U D G M E N T
::
APPELLANT: RESPONDENTS:
State of Rajasthan v. Prahlad Ram
D.B. CRIMINAL LEAVE TO APPEAL NO.245 OF 2014
::
Date of Order : 16 April 2015
::
PRESENT
HON'BLE MR JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR JUSTICE ANUPINDER SINGH GREWAL
Mr C.S. Ojha, Public Prosecutor
BY THE COURT {Per Justice Anupinder Singh Grewal}:
There is delay of 04 days in preferring the present application. For the reasons mentioned in the application submitted under section 5 of the Limitation Act, the delay of 04 days in filing present application for Leave to Appeal is condoned. Therefore, the application is being decided on merits.
The instant application for Leave to Appeal by the State of Rajasthan is directed against the judgment dated 19th August 2014 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Barmer {herein after 'the trial court'} in Sessions Case No.41/2014 (44/2014) whereby the accused has been acquitted of charges under sections 498, 304B alternatively 302 IPC.
DB CrLA No.245/20142/10
2.The facts of the case in nutshell are that complainant Atma Ram submitted a written report (Ex.P1) on 21.03.2014 in Police Station Ramsar stating therein that his daughter Hastu was married to accused Prahlad Ram about three years ago according to Hindu rites and since then she has been residing with her husband Prahlad Ram at her matrimonial home at Taraniyon Ki Dhani, Setrau. However, her husband, elder mother-in-law (badi saas), father-in-law and brother-in-law used to harass her for dowry. She had also come home and told him that her inlaws are demanding money and harrassing her for dowry. On 20.03.2014 Gemra Ram, Lekhu Ram, Smt Fanti and Prahlad Ram together killed his daughter and threw her in underground water-tank. At 6PM in the evening they were informed by Ramsar Police Station and they came on the spot. When dead body was taken out injury marks were seen on the body. Police was asked to take action. Thereupon FIR No.16/2014 for offences under sections 498A, 304B IPC was registered.
3.The accused Prahlad Ram husband of the deceased was charged for offences punishable under sections 498A, 304B IPC alternatively under section 302 IPC. The accused denied the charges and sought trial. The prosecution examined 11 witnesses including PW1 Atma Ram, PW2 Kinka, PW3 Sanga Ram, PW4 Kheta Ram, PW5 Amra Ram, PW6 Hukma Ram, PW7 Alu Ram, PW8 Urja Ram, PW9 Dr Kalu Ram Vishnoi, PW10 Rau Ram and PW11 Kishan Singh and produced documents Exhibits P1 to P23. The accused in his statement under section 313 CrPC denied the allegations. He, however, did not lead any evidence in defence. DB CrLA No.245/2014 3/10
4.Before adverting to the evidence on record, it would be necessary to refer to Section 304B IPC and Sections 113-A and 113-B of the Indian Evidence Act, which are reproduced herein after:
"304B, IPC: 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."
"113-A. Presumption as to abetment of suicide by a married woman-- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.--For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).DB CrLA No.245/2014 4/10
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)."
5.A plain reading of the provisions reveal that there are four essential ingredients for an offence to be made out under section 304B IPC - (1) death of the lady should be under unnatural circumstances, (2) it should be within seven years of the marriage, (3) she should have been subjected to cruelty or harassment soon before her death, and (4) the cruelty or harassment must be in connection with the demand for dowry.
6.Section 113-A of the Evidence Act stipulates that in the event of husband or his relative subjecting the woman to cruelty before her suicide then presumption for abetment is upon accused and it is for them to rebut the same. Section 113-B of the Evidence Act provides similar presumption for dowry death where soon before her death she is subjected to cruelty or harassment by such persons in connection with demand for dowry.
7.In the instant case, the prosecution had produced PW1 Atma Ram who while deposing before the court resiled from his statement that the accused had harassed his daughter for dowry. He, in fact, stated that after marriage his daughter used to visit his home but she never told him that accused Prahlad Ram used DB CrLA No.245/2014 5/10 to harass her for dowry. He has further stated that, in fact, she had told him that she was happy in her inlaws' house. He also stated that he does not know how and why his daughter died in the underground water-tank. During his cross-examination he even denied contents of the report made to police and also denied his statement Ex.P5 made to police. He has not denied his signatures on site-plan (Ex.P2), Panchnama (Ex.P3) and memo of handing over of dead body (Ex.P4).
8.Similarly, PW2 Kinka who is mother of the deceased also deposed that the deceased used to visit her parental home but she never told her that her husband Prahlad Ram, father-in-law Gemra Ram and Beeja Ram had been harrassing her for dowry. She had also stated that her daughter told her that she was happy in her inlaws' house. She also denied giving her statement to police (Ex.P7).
9.PW3 Sanga Ram who is brother of deceased also deposed on similar lines and stated that his sister never told him that her husband Prahlad or inlaws had been harassing her. He stated that rather his sister told him that she was living well and happy at her inlaws' house. In cross-examination, this witness resiled from his statement to police Ex.P8. He also denied suggestion that accused Prahlad had been residing at Jodhpur where he had entered into another marriage and had neglected his marriage with deceased, which may have led her to commit suicide. PW4 Kheta Ram, another brother of deceased also deposed that his sister had never told him that she was harassed or unhappy at her matrimonial home.
DB CrLA No.245/20146/10
10.PW5 Amra Ram, uncle of deceased, deposed that after marriage his niece came 3-4 times to her parental home but did not tell them that her husband and father-in-law had been harrassing her. During cross-examination he also denied suggestion that deceased might have committed suicide because accused Prahlad had settled in Jodhpur and married another woman.
11.The other relatives of the deceased including PW6 Hukma Ram (uncle), PW7 Alu Ram (uncle), PW8 Urja Ram (uncle) and PW10 Rau Ram (cousin) have also deposed that the deceased had not told them that she was subjected to any harassment or cruelty by the accused or inlaws.
12.There was categorical suggestion to all the aforementioned prosecution witnesses that the accused Prahlad used to reside at Jodhpur where he had contracted another marriage and deceased was not happy with her marital life, on account of which she may have committed suicide.
It, thus, appears that an attempt has been made by the prosecution to bring the matter under abetment to suicide and also to draw presumption under section 113-A of the Evidence Act in this regard. The question of presumption for abetment under section 113-A of the Act would arise only if there is any evidence support thereof. As all the prosecution witnesses have categorically denied this suggestion, there is absolutely no scope for attracting provisions of section 113-A of the Evidence Act or for abetment to suicide.
DB CrLA No.245/20147/10
13.There is no gainsaying that demand of dowry or harassment usually takes place behind closed doors and hence, direct evidence is rarely forthcoming. Thus, the testimony of relatives of the victim is of immense significance. In the instant case none of the relatives even remotely supported the prosecution case while deposing in the witness box.
14.It is rather unfortunate that the evil of dowry and consequential dowry deaths still persist in our society. The Law Commission in its 91st report in the year 1983 had suggested amendment of the law to make it more stringent. This led to incorporation of section 304B in the Indian Penal Code making "dowry death" an offence and section 113-B of the Evidence Act raising presumption as to dowry death in case of unnatural death within seven years of the marriage when she was subjected to harassment or cruelty soon before death. When basic ingredients for making out a case for "dowry death" have not been made out the question of drawing any presumption under section 113-B of the Act does not arise.
15.We are conscious of the fact that in an appeal against acquittal the appellate court can re-examine and re-appreciate the evidence. Nonetheless, it has to be kept in mind that the appellate court shall not interfere even if on the basis of evidence on record it is possible to take another view as the presumption of innocence of the accused is reinforced by an order of acquittal. Reference may be made to judgment of the Hon'ble Supreme Court in the case of Prem Singh v. State of Haryana reported as (2013) 14 SCC 88 wherein it was held:
DB CrLA No.245/20148/10
"7. In a recent decision in Murugesan v. State Through Inspector of Police [(2012) 10 SCC 383] this Court had the occasion to consider the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure, 1973. The summary of the relevant principles of law set out in para 21 of the judgment may be extracted hereinunder:
"21. A concise statement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup [AIR 1934 PC 227(2)] is to be found in para 42 of the Report in Chandrappa v. State of Karnataka [(2007) 4 SCC 415] . The same may, therefore, be usefully noticed below:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.DB CrLA No.245/2014 9/10
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(Emphasis supplied in original) "13. The parameters within which the High Court was required to exercise its powers under Section 378 of the Code while hearing the State's appeal have already been noticed. If a conclusion with regard to the innocence of the accused is reasonably possible on the basis of the evidence and materials on record the High Court ought not to have disturbed the findings recorded by the Trial Court, even if, on a re-appreciation of the evidence, it was inclined to take a different view. So long the view taken by the Trial Court was a possible view the exercise of the appellate power of the High Court under Section 378 CrPC would remain circumscribed by the well settled parameters."
16.In the instant case, as already discussed the prosecution has not been able to bring home any cogent evidence so as to prove involvement of the accused in the alleged offence. There is no evidence whatsoever to sustain the prosecution case which has fallen like a pack of cards.
17.Therefore, we have no hesitation to hold that the view taken by the trial court in acquitting the accused is not only plausible DB CrLA No.245/2014 10/10 but appears to be the only one possible under the facts and circumstances of the case. Consequently, there is no merit in the instant application for Leave to Appeal and the same is hereby dismissed.
[ANUPINDER SINGH GREWAL],J. [GOPAL KRISHAN VYAS],J. mma