Allahabad High Court
Neeraj vs State Of U.P. on 3 March, 2020
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on : 05.02.2020
Delivered on : 03.03.2020
Case :- JAIL APPEAL No. - 501 of 2018
Appellant :- Neeraj
Respondent :- State of U.P.
Counsel for Appellant :- From Jail,Deepak Kumar,Satyendra Narayan Singh,Subhash Chandra Pandey
Counsel for Respondent :- A.G.A.
Hon'ble Suresh Kumar Gupta,J.
1. This jail appeal has been preferred against the judgement and order dated 17.07.2018 passed by Additional Sessions Judge, Court No. 4, Moradabad, in S.T. No. 70 of 2013 (State Vs. Neeraj), arising out of case crime No. 481 of 2012, under Sections 498A, 304-B, 302 IPC & 3/4 of D.P. Act, Police Station-Bilari, District Moradabad convicting and sentencing the appellant u/s 498A for 2 years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine 2 months additional rigorous imprisonment, under section 304-B IPC, 10 years rigorous imprisonment and u/s 4 D.P. Act 1 year rigorous imprisonment and fine of Rs. 5,000/- in default of payment of fine two months rigorous imprisonment. Further order that out of recovery of fine 50% money shall be given to the brother of deceased Om Prakash @ Sonu and all the sentence shall run concurrently.
2. Brief facts of the case are that the complainant Om Prakash @ Sonu lodged the FIR by giving written report with the allegation that his sister Lokesh aged about 24 years was married with appellant Neeraj five years back of the incident as per Hindu rites and rutuals. During marriage, he has given sufficient dowry according to his financial capacity, but appellant's family was not satisfied with dowry. Thereafter appellant Neeraj, his elder brother Mahendra, his wife Usha, mother-in-law Radha and father-in-law Dungar Singh used to harassment and torture to his sister by demanding motorcycle as additional dowry. Due to poor financial condition of the complainant's family they, were unable to fulfill their demand of motorcycle. Due to this appellant's family used to harass and assaulted her on two occasion due to nonfulmilment of demand of motorcycle they ompel his sister to leave the matrimonial home. Appellant had taken her back to his house after persuasion, but they continued to stick with their demand of motorcycle and often beat to his sister. On the fateful night of 20/21.09.2012 some unknown time her husband Neeraj, Mahendra, Usha, Radha and Dungar Singh had committed murder to his sister by hanging. The dead body was lying at the house of his brother-in-law in village Gataura and all family members including husband of the deceased fled away. On this allegation FIR Ext Ka-4 was lodged at police station Bilari by the complainant on 21.09.2012 at 04.30 p.m., as a case crime no. 481 of 2012, under sections 498A, 304B IPC and ¾ D.P. Act. The distance of the police station is 15 Kms.
3. Before the investigation of the case inquest was done by P.W. 7 Abhay Kumar Singh in presence of inquest witness. Inquest report was prepared by P.W. 7 Abhay Kumar Singh, Tehsildar, and cause of death could not be ascertained so as per opinion of Panch, the dead body was sent to the district hospital for autopsy of deceased Smt. Lokesh.
4. P.W. 3 Dr. S.K. Chaudhary has conducted the postmortem of dead body of the deceased on 22.09.2012 at 12.30 p.m. at District Hospital Moradabad, and prepared postmortem report Ext Ka-3, in which doctor found the age of the deceased was about 24 years and the eye and mouth of the decease was closed, bleed from both intestine. Face congested. Following antemortem injury were found on the person of deceased:-
1. Abraded contusion 15cm x 3cm front of neck extending to left side of neck 4cm below chin, 5cm below left year and 9cm below right ear of lobule subcutaneous tissue under injury mark ecchymosed.
2. Abraded contusion 7cm x 3 cm back of middle of left side of chest.
3. Abraded contusion 6cm x 3cm back of abdomen on left side, 16cm away from injury no. 2.
5. Hyoid Bone fractured. Larynx and Vocal Cords congested. Both lungs congested. Stomach (wall condition, Contents & smell) 200 grms pasty food material . Small intestine chyme & gasses was presemt.
Cause of death due to Asphyxia as a result of antimortem strangulation. Time of death about 1 and ½ day old.
The post-mortem report is on record and marked as Ext. Ka-3
6. Investigating officer, Pankaj Kumar Pandey, P.W. 4, after obtaining necessary papers conducted investigation in this case and prepare site plan on behest of complaint-informant Ext. Ka-6. Primary investigation of this case was conducted by Pankaj Kumar Pandey. He also recorded the statement of complainant Om Prakash. Second investigating officer is P.W. 6 R.S. Gautam. During investigation he recorded the statement of other witnesses and after completing all formalities of the investigation submitted the charge sheet against the appellant Neeraj under section 498A, 304B IPC and Section ¾ D.P. Act., who proved the charge sheet Ext. Ka-7 and exonerated the other accused namely; Mahendra, Dungar Singh, Radha and Usha.
7. After completion of investigation charge-sheet submitted by him before the Chief Judicial Magistrate, Moradabad and Chief Judicial Magistrate, Moradabad, had taken cognizance on the charge sheet on 17.01.2013 and the case was committed before the court of session where it is registered as S.T. No. 75 of 2013 and the case was transferred for trial to the court of Additional District Judged Moradabad.
8. On 29.06.2013 the charge against the appellant was framed under section 498A, 304B IPC and Section ¾ D.P. Act and alternative charge under section 302 IPC was also framed and charge read over and explained to the appellant, and claimed to be tried.
9. To substantiate the charge levelled against the appellant, prosecution has examined 9 witnesses in all.
10. P.W 1 complainant Om Prakash @ Sonu, who is real brother of the deceased, who proved the written report as Ext. Ka-1 and Inquest report as Ext. Ka-2, P.W. 2 Smt. Sonam @ Renu, sister in-law of the deceased, P.W. 3 Dr. S.K. Chaudhary, who proved the post mortem report as Ext. Ka-3 and P.W. 4 HCP Jai Singh, who proved the chick FIR Ext. Ka-4 and GD entry Sl. No. 33/4.30 p.m. Ext. Ka-5 and P.W.5 Pankaj Kumar Pandey (first investigating officer), who proved site plan Ext. Ka-6 and P.W. 6 R.S. Gautam (second investigating officer), who proved charge-sheet as Ext. Ka-7.
11. After conclusion of the evidence of prosecution, statement of appellant was recorded under section 313 Cr.P.C. in which accused denied all the charges and stated that the witnesses wrongly stated before the court and also stated that he is innocent and has been falsely implicated in this case and the deceased Lokesh committed suicide on account of depression. In defence, no evidence was recorded on behalf of appellant.
12. After conclusion of the trial learned trial court acquitted the appellant under section 302 IPC and convicted him under sections 498A, 304B and Section ¾ D.P. Act as aforesaid.
13. Being aggrieved by the judgement and order of conviction dated 17.07.2018, this appeal has been filed by the appellant.
14. I have heard learned counsel for the appellant and learned AGA and perused the material available on record.
15. Learned counsel for the appellant submitted that the trial court has convicted the appellant admittedly on the basis of surmises and conjectures and has failed to appriciate the evidence available on record. He has further submitted that there are material contradictions in the testimony of prosecution witnesses and also submitted that no independent witnesses was produced by the prosecution. One of the main contention of the learned counsel for the appellant is that the death of the deceased Lokesh Devi was suicidal and appellant has clearly stated in his statement that the deceased had committed suicide herself due to stress. Next submitted that the information of this incident has given by him to the parent of the deceased and thereafter the family member of parental house of the deceased arrived at his house and he was also present at the time of last rutuals of the deceased. It is also submitted that during autopsy no grievious injury was found on the person of deceased and also stated that the prosecution has clearly failed to establish that the death of deceased- Lokesh was subject to cruelty and harassment by the appellant. The prosecution failed to prove the charge levelled against the appellant beyond shadow of doubt. Lastly, learned counsel for the appellant submitted that the appellant is very poor person and languishing in jail at the commencement of trial.
16. Apart from arguing on the merits of the case, learned counsel for the appellant further contended although there is no evidence against appellant if court comes to the conclusion about guilt of appellant then a lenient view should be taken in sentencing him and his sentence should be reduced to minimum prescribed under section 304B IPC that is to say, seven years.
17. Per contra learned AGA contended that victim was died inside her matrimonial home. P.W. 3 Dr. S.K. Chaudhary clearly opined that the cause of death is asphyxia as a result of antemortem strangulation. In this case hyoid bone was fractured so medical report clearly shows that this is the clear case of homicidal death. Prosecution clearly established by cogent and credible evidence that deceased was died within seven years of her marriage and soon before her death she was subjected to mental and physical harassment and tortured by making demand of additional dowry. Prosecution is able to prove his case beyond shadow of doubt and appeal of appellant is liable to be dismissed.
18. A report was obtained from the District Jail Superintendent, Moradabad dated 11.02.2019 which shows that during trial the appellant was in jail from 25.11.2012 to 16.07.2018 (5 years 7 months and 22 days) and from 17.07.2018 to till date the appellant is detained in district Jail Moradabad. So presently appellant languishing in jail for a period of more than 7 years.
19. To appreciate the argument of the party and also the evidence it is necessary to look into the statutory provision of Section 304 B, 498A IPC and 13B of the Evidence Act.
20. Their Lordship of Hon'ble Supreme Court in AIR 2013 (SC 1039) in case of Kashmir Kaur vs. State of Punjab has explained the ingredients of offence under section 304B of IPC which reads as under:-
From the above decisions the following principles can be culled out:
a) To attract the provisions of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.
b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.
c) Such death occurs within seven years from the date of her marriage.
d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.
e) Such cruelty or harassment should be for or in connection with demand of dowry.
f) It should be established that such cruelty and harassment was made soon before her death.
g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence.
h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act.
i) Therefore, the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one.
j) However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.
k) Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B.
l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied.
m) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence.
21. In this case prosecution examined P.W. 1 Om Prakash, as in his deposition he has stated that her sister Lokesh was married with appellant Neeraj about 5 years ago before the incident. His parent gave sufficient dowry in marriage as according to his status, but sometime after marriage her in-laws were not happy with the dowry given in the marriage. Family members of the appellant always taunted to the deceased Lokesh for being less dowry and started demand of motorcycle. He further stated that due to poor condition of his family he could not fulfill the demand of her in-laws. His sister was previously ousted from her matrimonial home for not giving motorcycle, thereafter, on being convinced in punchayat she was taken back to her matrimonial house, still they continued their demand of motorcycle. All her family members (in-laws) tortured her, but family members of the complainant kept patience. On intervening night of 20/21.09.2012 a call came from village Gataura and it was informed that his sister was killed by members of his matrimonial house. On telephonic information, complainant and other family members reached at the matrimonial house of his sister. The dead body of his sister was lying on the floor of the barandah and all the members in-laws family was absconded after the occurrence.
22. All these allegations a written report was submitted in police station and the case was lodged and the written report was proved by P.W. 1 as Ext. Ka 1. He further stated that he is one of the member of the inquest report and he also put the signature in inquest report as panch witness and proved the inquest report as Ext. Ka 2. It is also submitted that in-laws family captivated him. His father and his family members put thumb impression and signature of some papers and after that they absconded.
23. P.W. 2 Sonam @ Renu wife of P.W. 1 and bhabhi of the deceased. Statement of P.W. 1 is also corroborated with her. In her statement she has clearly stated that in-laws of the deceased tortured and harassed her on demand of motorcycle, when she reached on the spot along with her family members then no body was present at the time in laws house. She also stated in her statement that the deceased has resides with mother of the appellant. Only these two witnesses of facts were examined except P.W. 1 and P.W. 2. P.W. 3 is the doctor S.K. Chaudhary, who has clearly stated that this ante-mortem injury has been caused to the deceased before 1 to 1 ½ days of the postmortem. He has clearly stated that the death of the deceased Lokesh as a result of ante-mortem strangulation. This shows that the death of the deceased was homicidal and not suicidal.
24. P.W. 8 Rajaram, father of the deceased is also corroborated the statements of P.W. 1 and P.W.2.
25. Although, learned counsel for the appellant contended that the deceased committed suicide by hanging herself on account of depression, but no such any evidence is produced by the defence side that the deceased had committed suicide due to depression. The death of the deceased was not possible by hanging and strangulation, so as per the doctor, the case was homicidal not suicidal. Beside the injury on the neck two other injuries have also found antemortem injury on the body of the deceased. Dr. S.K. Chaudhary has clearly stated in the cross-examination that the death of the deceased was done by pressing neck of the deceased and due to this asphyxia occurred. So the death of the deceased was not possible by hanging. There will be whole pattern issue in the mark which will not be given in the case of strangulation as per the Modi Medico Jurisprudence .
26. The prosecution also examined P.W. 4 Pankaj Kumar Pandey, First Investigating Officer, who has clearly stated that he prepared site plan and recorded the statements of witnesses present at the spot. Particularly he has clearly denied that the family members of the appellant was present at that time. In the statement he has also stated that he also recorded the statement of neighbours of the appellant. Nothing incriminate of hanging was also recovered by the police.
27. P.W. 6, Second Investigating Officer R.S. Gautam has stated that nothing any other important found in the statements of the witnesses and this witness only proved the charge-sheet against the appellant under section 498A, 304B IPC and Section ¾ Dowry Prohibition Act only against the appellant.
28. P.W. 7, Abhay Kumar Sigh, Nayab Tehsildar, who conducted the inquest report and panchayatnama, who proved as Ext. Ka-2.
29. P.W. 9 Satish Kumar, Inspector, who prepared the police papers, proved Ext. Ka-9 to 12.
30. On perusal of the entire record, it is reveals that the death of the deceased was done within 7 years of the marriage . It is also established by the evidence of the doctor that the death of the deceased was occurred due to strangulation and death was occurred homicidal and not suicidal. It is clearly established that the death of the deceased occurred within under normal circumstances.
31. Now, other point it has to be seen just before her death, deceased Smt. Lokesh was subjected to cruelty or harassment by her husband and other relatives 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."
32. 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 disbelieving his guilt, beyond reasonable doubt.
33. In the present case accused appellant-Neeraj has failed to prove beyond reasonable doubt that his wife Smt. Lokesh committed suicide due to depression.
34. In the present case in hand, when the family members and relative were arrived at the matrimonial house of the deceased then they saw that all of the family members of in-law had fled away from the scene of occurrence.
35. Section 8 of the Evidence Act is as under:-
Section 8 in The Indian Evidence Act, 1872
8. Motive, preparation and previous or subsequent conduct.--Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1.--The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. Illustrations (I) of the evidence Act is relevant.
(i) A is accused of a crime. The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.
36. Section 8 of Evidence Act is that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, is also relevant and the conduct of family members of the appellant all of them are fled away from the place of occurrence is also indicate the guilt of the appellant.
37. It is also submitted by prosecution is that the death of the deceased Lokesh is within 5 years in the house of the appellant in view of Section 106 of the Evidence Act. This burden on the appellant to establish those fact which disprove his guilt. In other words, if he fail to establish or explain these facts, an adverse inference of fact may arise against him. In this case the appellant simply show that the deceased had committed suicide only due to depression, except this no defence witness is examined on behalf of the appellant to establish this fact that the deceased had committed suicide due to depression. Hon'ble Apex Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra, in para 17 of the judgement has held that:-
"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
38. For the reasons aforesaid the prosecution is able to prove his case against the appellant. The appellant accused Neeraj for the offence punishable under section 498A, 304B and 4 of D.P. Act beyond shadow of doubt, so far as with regard to the prayer of the appellant for reduction of the sentence of appellant-accused is concerned it is not a case of suicidal death but the case is of homicidal death.
39. The learned trial court although frame alternative charge against the appellant under section 302 IPC, but the learned trial court without assigning any cogent reason acquitted the appellant against the charge levelled under section 302/34 IPC.
40. Thus, finding of the court below is totally whimsical and 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.
41. Since there is no instigating circumstances in favour of appellant, so in these circumstances, it shall not be justified to interfere or reduce the sentence awarded to the appellant by the court below.
42. The appeal is liable to be dismissed and is accordingly dismissed.
43. The conviction and sentence of appellant Neeraj passed by Additional Sessions Judge, Court No. 4, under section 498A, 304B IPC and Section 4 D.P. Act are upheld. The appellant Neeraj is in jail and he served out the sentence awarded to him.
44. Office is directed to transmit the certified copy of this order to the court below along with the lower court record, for necessary compliance.
Order Dated: 03.03.2020.
v.k.updh.