IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 407 of 2012
Reserved on: 18.08.2017
Decided on: 01.09.2017

.

_

State of Himachal Pradesh …..Appellant.

Versus
Ashwani Kumar others ……Respondents.

_
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? Yes.

_
For the appellant: Mr. V.S. Chauhan, Additional
Advocate General with Mr. J.S.

Guleria, Assistant Advocate General.

For the respondents: Mr. Rajesh Mandhotra, Advocate.

Chander Bhusan Barowalia, Judge.

The present appeal has been preferred by the

appellant/State (hereinafter referred to as “the appellant”) laying

challenge to judgment, dated 28.05.2012, passed by learned

Additional Sessions Judge, Fast Track Court, Kangra at

Dharamshala, H.P., in Sessions Case No. 22-J/VII/2011 (Sessions

Trial No. 10/12), whereby the accused persons/respondents

(hereinafter referred to as “the accused persons”) were acquitted for

the offence punishable under Sections 498-A, 306 and 404 read with

Section 34 of Indian Penal Code, 1860 (hereinafter referred to as

1
Whether reporters of Local Papers may be allowed to see the judgment?

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“IPC”).

2. Succinctly, the facts giving rise to the present appeal, as

per the prosecution, are that on 16.06.2011 complainant, Smt.

.

Nirmala Devi, mother of Anita Devi (deceased) lodged a complaint

with the police, alleging that in February, 2009, her daughter, Anita

Devi, was married with accused Ashwani Kumar, after three months

of marriage accused persons, being husband, father-in-law, mother-

in-law and devar (brother-in-law) of the deceased started maltreating

the deceased for not bringing dowry. The deceased, on her visits to

the house of the complainant, used to tell about the conduct of the

accused persons. As per the complainant, the deceased was ousted

from her matrimonial home 3-4 times, however, every time she was

sent back and the accused persons were asked to mend their

behavior towards the deceased. Despite repeated requests, the

behavior of the accused persons further deteriorated towards the

deceased. On 16.06.2011, at about 08:30 a.m., the complainant

came to know from accused Brahmi Devi (mother-in-law of the

deceased) that the deceased has consumed some medicine. When

the complainant reached at Shahpur/Rait, she came to know that

her daughter has expired in Tanda Hospital, so she alighted en route

and subsequently went to Tanda Hospital with other villagers. The

deceased was having four months’ infant and she committed suicide

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yielding to mental and physical torture meted out by the accused

persons for not bringing dowry. As per the prosecution, the

deceased was initially taken to CHC Shahpur, where she was not

.

found fit to give statement and therefrom she was referred to

Rajendra Prasad Government Medical College, Tanda. In CHC,

Shahpur, gastric levage and other necessary material was preserved

for chemical analysis. The deceased expired in Tanda Hospital and

her inquest papers were prepared. Post mortem report of the

deceased was obtained and necessary samples were preserved by the

Medical Officer, which were sent for chemical analysis. As per the

medical opinion, the deceased died due to “phosphine gas poisoning”.

Police thoroughly investigated the matter and recorded the

statements of the witnesses. The spot map was prepared. The

corpse was photographed, marriage certificate, copy of pariwar

register and call record were taken into possession. As per the

prosecution, the accused persons also dishonestly misappropriated

the ornaments of the deceased. The police, after exhaustively

investigating the matter, found that the accused persons used to

torture the deceased physically and mentally and so they abetted her

to commit suicide. After completion of investigation, challan was

presented in the Court.

3. The prosecution, in order to prove its case, examined as

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many as twenty two witnesses. Statements of the accused persons

were recorded under Section 313 Cr.P.C., wherein they denied the

prosecution case and claimed innocence, however, the accused

.

persons did not examine any defence witness.

4. The learned Trial Court, vide impugned judgment dated

28.05.2012, acquitted all the accused persons for the offence

punishable under Sections 498-A, 306 and 404 IPC read with

Section 34 IPC, hence the present appeal.

5. Learned Additional Advocate General has argued that the

proof required under Section 498-A is not strict proof, but only

preponderance of probabilities are required to be established. He has

further argued that the statements of the witnesses i.e. PW1 and

PW3 clearly establish the guilt of the accused persons beyond the

shadow of reasonable doubt. To support his arguments, he has

relied upon the law as laid down by Hon’ble Supreme Court in V.K.

Mishra another versus State of Uttrakhand another, 2015

(9) SCC 588. Learned Additional Advocate General has further

argued that in case the evidence as a whole is taken into

consideration, the prosecution has proved the guilt of the accused

beyond the shadow of reasonable doubt. He has further relied upon

the decision of Hon’ble Supreme Court rendered in Rajinder Singh

versus State of Punjab, 2015 (6) SCC 477.

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6. On the other hand, learned Counsel appearing for the

respondents has argued that Smt. Nirmala Devi (PW-1), mother of

the deceased, in her cross-examination, has admitted that the

.

accused persons never raised any demand of dowry and so the

judgments as cited by the learned Additional Advocate General are

not applicable to the facts of the present case. He has further argued

that Shri Amar Singh, Up-Pradhan (PW-3), though deposed with

regard to some oral complaint earlier made to him, however, his

statement is not at all reliable simply for the reason that he was not

Up-Pradhan of the concerned Panchayat and he has failed to show

any written record with regard to the complaint made by the

prosecutrix or her father. He has further argued that the material

witness Sunita was not examined and the statements of the

witnesses, if read as a whole, go to show that no case is made out

against the accused persons and the judgment passed by the learned

Court below is just, reasoned and no interference is called for.

7. In rebuttal, the learned Additional Advocate General has

argued that the written complaint was not made by the father of the

prosecutrix to Up-Pradhan and this fact stands duly explained by

the Up-Pradhan that the family of the prosecutrix has to marry their

other two daughters.

8. In order to appreciate the rival contentions of the parties,

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we have gone through the record carefully and in detail.

9. The complainant, Smt. Nirmala Devi (PW-1), who is

mother of the deceased, while appearing in the witness-box deposed

.

that the deceased was married with accused Ashwani Kumar in

February 2009, however, only after three months accused persons

started torturing her for not bringing any dowry. PW-1 twice/thrice

asked the deceased to go to her matrimonial home. She has further

deposed that she alongwith Smt. Jogindera Devi (PW-2) went to the

house of the accused persons asking them to mend their behavior,

on which the accused persons assured the complainant that they

will not repeat such acts in future, but accused Shashi Kant (devar

of the deceased) objected for giving assurance and he asked his

parents (accused Brahmi Devi and Satpal) to oust the deceased.

PW-1 has further deposed that 17-18 days prior to occurrence, the

deceased came to their house and she was looking depressed. The

deceased divulged that accused persons used to torture her for not

bringing dowry and ornaments. She has further deposed that on

16.06.2011, at about 08:30 a.m., police asked her to talk to accused

Brahmi Devi, mother-in-law of the deceased, who asked her to see

the deceased, as she had consumed some medicine. She rushed to

Shahpur and en route near place Rait she came to know from some

relative, who telephoned her, that the deceased had been shifted to

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Tanda Hospital, therefore, she returned to Daraman and took her

relatives with her to Tanda Hospital. In Tanda Hospital, she saw the

dead body of the deceased and there were no ornaments on her

.

body. She has further deposed that on 15.06.2011 the deceased

informed her that accused persons are quarrelling with her and

exerting pressure on her to leave the matrimonial home, but she

asked the deceased to remain there and gave her assurance that she

would come tomorrow. As per this witness, due to the harassment

and torture meted out by the accused persons on the deceased, she

was compelled to end her life. This witness, in her cross-

examination, has deposed that accused Ashwani (husband of the

deceased) came on leave and on 16.06.2011 he was supposed to

return on duty. She feigned her ignorance that the deceased was

asking accused Ashwani to take her to Pathankot and he told her

that firstly he will make arrangements for accommodation. She

denied the suggestion that the deceased was of obstinate nature.

10. PW-2, Smt. Jogindra Devi, deposed that PW-1 is her

samdhan and deceased’s sister has been married to her son. When

she came to know qua the death of the deceased, she sent her

daughter-in-law to the home of the deceased. She alongwith her son

went to Tanda Hospital. This witness has further deposed that the

deceased, after her marriage, visited her twice and complained that

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accused persons used to beat her for not bringing dowry. As per this

witness, the deceased also told her that accused persons wanted her

to bring dowry or leave their house. She alongwith PW-1 went to the

.

house of the accused persons for pacifying the matter, but the

accused persons said that they did not do anything to the deceased.

She has further deposed that father-in-law of the deceased admitted

the guilt, but devar of the deceased was saying that oust the

deceased from the home. As per this witness, the deceased

committed suicide, as she was subjected to harassment for want of

dowry. This witness, in her cross-examination, has feigned

ignorance that the deceased wanted to reside with accused Ashwani

at Pathankot. She has deposed that when she had got the deceased

engaged with accused Ashwani, at that time no dowry was

demanded. At the time of marriage also no demand for dowry was

raised.

11. PW-3, Shri Amar Singh, Up-Pradhan of Gram Panchayat

Hanerra, deposed that the deceased came to him with one Sunita

and complained that her mother-in-law and devar used to harass

and beat her for not bringing dowry. As per this witness, the

deceased was having injury on her forehead. He advised her to call

for Panchayat from both the sides for resolving the matter. On

subsequent day Nirmala (PW-1) alongwith her jethani came to him

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and told that she has to marry other two daughters, so she averted

from the Panchayat. The deceased was not happy in her in-law’s

house due to harassment and torture meted out by her in-laws.

.

This witness, in his cross-examination, has deposed that no case

was registered with the Panchayat against the accused persons and

he did not get the deceased medically examined.

12. PW-4, Dr. Mohan Singh, Medical Officer, deposed that on

16.06.201, around 08:00 a.m., the deceased was brought before him

with alleged history of consuming some poisonous substance. On

application, Ex. PW-4/A, moved by the police, he conducted medical

examination of the deceased and observed as under:

“Patient was drowsy, not responding
to command, cold clammy skin, BP
and Pulse not recorded, foul smelling
from her breath was present. History

of vomiting at home was given by the
attendant.

“Gastric levage was done and first

sample preserved for chemical
analysis. After giving emergency
treatment, patient was referred to

RPGMC, Tanda for further
management.”

He handed over to police a sealed bottle having a seal containing

gastric levage of the deceased and an envelop having four seals

containing facsimile seal, medical report of the deceased, forwarding

letter to Director, FSL and Police request letter for conducting the

medical examination of the deceased. He also issued medico legal

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certificate of the deceased, which is Ex. PW-4/B. He has further

deposed that when the deceased was admitted in the hospital, she

was not found fit to give her statement and to this effect he has

.

issued certificate on the application, Ex. PW-4/A, which is encircled

in red.

13. PW-5, Shri Chander Shekhar Premi, deposed that in

July, 2011, he was posted as JTO, Nurpur. On his directions Office

Clerk, Shri Rajesh Sanga, issued record qua telephone No. 230258,

which was in the name of Satpal son of Gorkha Ram and the same

telephone number was disconnected on 05.08.2010. He issued

certificate, Ex. PW-5/A. PW-6, Harbans Lal, Secretary, Gram

Panchayat, Bhali, deposed that on 01.07.2011 police, vide

application Ex. PW-6/A, requested him for copy of pariwar register.

He issued copy of pariwar register, which is Ex. PW-6/B, relating to

the family of Satpal son of Gorkha Ram. He also issued marriage

certificate, Ex. PW-6/C, qua the marriage of the deceased with

accused Ashwani Kumar.

14. PW-7, Shri Raj Kumar, maternal uncle (mama) of the

deceased, has deposed that after three-four months of marriage of

the deceased she met him and started weeping. She divulged to him

that her husband, mother-in-law and devar used to beat her for

want of dowry. He has further deposed that after seven-eight

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months, the deceased again met him and told him that her mother-

in-law, husband and devar used to beat and torture her for want of

dowry. He requested accused Ashwani Kumar in the house of the

.

parents of the deceased not to harass and torture the deceased, as

she belongs to poor family and her father has already expired and

they had given what they could afford. Likewise, he made request to

accused Satpal on telephone and he assured him not to repeat such

activities in future, but despite that the accused persons did not

mend their behavior. On 16.06.2011 her sister (PW-1) informed him

that the deceased has committed suicide and he alongwith his sister

and villagers went to Tanda Hospital. He found no ornaments on the

dead body of the deceased and it appeared that the ornaments had

been removed. As per this witness, the deceased committed suicide

owing to harassment and torture administered by the accused

persons. Inquest papers, prepared by the police for post mortem,

Ex. PW-7/A and Ex. PW-7/B, bear his signatures, which are

encircled in red. This witness, in his cross-examination, has

deposed that accused Ashwani was doing a private job at Pathankot

and the deceased wanted to reside with him at Pathankot. He

feigned his ignorance that the deceased had ever asked accused

Ahswani to take her to Pathankot.

15. PW-8, Shri Subhash Chand, deposed that on 17.06.2011

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he received a phone call from accused Ashwani and he had informed

that the deceased has consumed poison. He alongwith his mother,

mother-in-law and other relatives reached Shahpur bus stand, but

.

by that time the deceased had been taken to Tanda Hospital by the

accused persons. Subsequently they went to Tanda Hospital and

saw the dead body of the deceased. The dead body had no

ornaments and the same appeared to have been removed. As per

this witness, deceased, after her marriage, met him twice and she

used to tell that her devar and mother-in-law beat her for not

bringing dowry. He has further deposed that his mother and

mother-in-law sent the deceased back to her matrimonial house and

asked the accused persons not to harass her. The matter was

brought to the notice of Pradhan, Gram Panchayat, Harnera, and the

Pradhan assured them that he will talk with the in-laws of the

deceased, however, in the meantime the deceased consumed poison.

This witness, in his cross-examination, has deposed that his

statement was not recorded in Tanda Hospital and the same was

recorded later on. As per this witness, the statement of his mother-

in-law was recorded in Tanda Hospital. He admitted that his

statement was recorded after the post mortem and the police were

asking them to reach at Tanda Hospital at the earliest. He has

admitted that accused Ashwani Kumar was doing a private job at

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Pathankot. He feigned his ignorance that the deceased intended to

live with accused Ashwani Kumar at Pathankot.

16. PW-9, HHC Tilak Gautam, deposed that on 16.06.2011

.

he alongwith SI Lekh Raj, was present at Tanda Hospital and SI

Lekh Raj handed him rukka, Ex. PW-1/A, which he gave to MHC

Police Station, Jawali, on 17.06.2011. He has further deposed that

MHC Police Station, Jawali, handed him the case file, which he gave

to Lekh Raj. PW-10, HC Rachhpal Singh, deposed that on

16.06.2011, around 10:10 a.m. MHC Police Station, Shahpur

telephonically informed Police Post, Kotla, qua poisoning case

pertaining to their area. He alongwith Constable Ranjit reached CH

Shahpur, where HC Ranjit Singh was also present. HC Ranjit Singh

handed over to him medico legal certificate and vomitings of the

deceased and informed him that the deceased had been taken to

Tanda Hospital. He has further deposed that he went to Tanda

Hospital, where the deceased was declared dead and her dead body

was handed over to him. He informed this fact at Police Station,

Jawali, wherefrom SI Lekh Ram came and proceeded accordingly.

PW-11, HC Ranjit Singh, deposed that on 16.06.2011, around 09:15

a.m., on receipt of telephonic information from CHC, Shahpur, qua

some poisoning case, he alongwith police officials, Ravinder and

Suneh Lata, reached CHC, Shahpur. He wrote application, Ex. PW-

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4/A, to Medical Officer for obtaining medico legal certificate and

opinion whether the deceased is fit to give her statement. The

Medical Officer opined that the deceased is not fit to give her

.

statement. The medico legal certificate and vomitings of the

deceased, which were given to him by the Medical Officer, were

handed over by him to Rachhpal and he informed about the case at

Police Station, Shahpur, Police Post, Kotla, and to the parents of the

deceased. This witness, in his cross-examination, has deposed that

the deceased was brought to Shahpur Hospital by accused Ashwani

and Brahmi Devi. PW-12, HHC Parmodh Chand, deposed that on

22.06.2011 MHC Gurdeep Singh, vide RC No. 99/21, handed over

him a dibba viscera with docket, which he deposited on the same

day in Regional Forensic Science Laboratory, Dharamshala. As per

this witness, the case property remained intact under his custody.

17. PW-13, HC Gurdeep Singh, deposed that on 17.06.2011

SI Lekh Ram deposited with him two parcels, which were sealed with

seal CH, Shahpur, and on 19.06.2011 three more parcel sealed were

handed over to him. He entered the same in Register No. 19,

attested copy whereof is Ex. PW-13/A. On 22.06.2011, vide RC No.

99/21, attested copy of which is Ex. PW-13/B, he sent four parcels

through Parmodh to Regional Forensic Science Laboratory,

Dharamshala for chemical analysis. PW-14, SI Parkash Chand

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Verma, deposed that on 16.06.2011 he searched the house of Sat Pal

and the nearby area, however, he found neither suicide note nor any

objectionable article. As per this witness, he prepared memo, Ex.

.

PW-14/A, in presence of the witnesses Netar Ram and Ashok

Kumar. PW-15, ASI Ishwari Prasad, deposed that on 17.06.2011

HHC Tilak Gautam handed over to him rukka, Ex. PW-1/A, which

was sent by SI Lekh Ram, whereupon FIR, Ex. PW-15/A, was

registered by him. He made endorsement, Ex. PW-15/B, and

returned the case file. PW-16, Inspector Hari Pal, deposed that on

01.08.2011 SI Lekh Ram, after completion of investigation, gave him

the case file. He prepared the challan, which bears his signatures.

PW-17, Dheeaj Kumar, deposed that on 16.06.2011 on the asking of

police, he took photographs of the dead body, which are Ex. PW-

17/A to Ex. PW-17/C. PW-18, HC Pardeep Kumar, deposed that on

12.11.2011 he received the case file from SHO, P.S. Jawali. He

recorded the statements of two witnesses and also obtained the

photographs of the dead body. He handed over the case file to SHO,

Ramesh Chand. This witness, in his cross-examination, has

deposed that when he received the case file, challan was already filed

in the Court.

18. PW-19, Dr. Atul Gupta, Medical Officer, Dr. RPGMC

Kangra at Tanda, deposed that he conducted the post mortem

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examination of the deceased. As per this witness, in his final

opinion, the cause of death of the deceased was phosphine gas

poisoning. He gave his final opinion, vide Ex. PW-19/C, which is on

.

the back side of PMR, Ex. PW-19/B, which bears his signatures.

19. PW-20, Smt. Kunta Devi (aunt of the deceased), deposed

that the deceased was married to accused Ashwani Kumar about two

and half years back. The deceased, during her visits to her parental

house, used to weep and tell them that her husband, father-in-law,

mother-in-law and brother-in-law used to torture her for want of

dowry and they used to call her the daughter of beggars. As per this

witness, prior to the incident, she alongwith PW-1 and one other lady

went to the house of the accused persons for inquiring about the

matter. On their asking, the father-in-law of the deceased sought an

excuse and assured them to desist from their activities in future.

However, the brother-in-law of the deceased asked his father why he

was seeking excuses and quarreled with them. She saw the dead

body of the deceased and noticed that no ornaments were present on

it. She has further deposed that the deceased committed suicide

due to the harassment and maltreatment administered to her by the

accused persons. This witness, in her cross-examination, has

deposed that the police did not record her statement on the day

when the deceased died and till 12.11.2011 she did not give her

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statement to the police. The deceased was not her real niece.

20. PW-21, SI Lekh Ram (Investigating Officer), deposed that

on 16.06.2011, around 2:30 p.m., HC Rachhpal (PW-10),

.

Investigating Officer, Police Post, Kotla, telephonically informed at

Police Station, Jawali, qua consuming of poison by the deceased. He

had also informed that the deceased was taken to Tanda Hospital

and he asked to send some NGO to look into the matter. On the

basis of the above information, rapat, Ex.PW-21/A, was lodged and

he alongwith other police personnel went to Tanda Hospital. The

dead body of the deceased was taken into possession and the

relatives of the deceased were informed. He recorded the statement

of Smt. Nirmala Devi, Ex. PW-1/A, after making endorsement, Ex.

PW-21/B, and sent the same to Police Station for registration of the

case. He also prepared the inquest papers, which are Ex. PW-7/A

and Ex. PW-7/B. Vide application, Ex. PW-19/A, the dead body was

sent for conducting post mortem examination. The dead body was

photographed and thereafter the same was handed over to accused

Ashwani Kumar (husband of the deceased). Statements of the

witnesses were recorded and the accused persons were arrested.

Record, qua call details, was obtained, which is Ex. PW-21/C. It was

unearthed that the deceased was not allowed by the accused persons

to use the landline phone to talk with her mother. Marriage

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certificate, Ex. PW-6/C, and copy of pariwar register, Ex. PW-6/B,

were obtained. Viscera and vomiting were sent for chemical analysis

vide docket, Ex. PW-21/G. FSL report, Ex. PW-19/B, was also

.

obtained. Case file, after completion of investigation, was handed

over to SHO Hari Pal Saini. As per this witness, no ornaments were

found on the dead body of the deceased and it appeared that the

same have been removed, so Section 404 read with Section 34 IPC

was added. This witness, in his cross-examination, has denied the

suggestion that firstly he prepared the inquest papers and

subsequently recorded the statement of the complainant (PW-1). He

admitted that on the inquest papers there were no allegations

against the accused persons. He denied the suggestion that

statements under Sections 154 and 161 Cr.P.C. were recorded after

due deliberations. He admitted that no recovery of ornaments was

effected from the accused persons. He further admitted that on

16.06.2011 accused Ashwani Kumar had to go to Pathankot, the

place of his working.

21. PW-22, SI Ramesh Singh, deposed that on 15.11.2011

HC Pardeep handed over to him the case file and he prepared the

supplementary challan, which bears his signatures.

22. The evidence, which has come on record, demonstrates

that the deceased after her marriage visited her parental house twice

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and complained that accused persons used to beat her for not

bringing dowry and when the complainant came to know about the

death of the deceased, she went to Tanda Hospital. The complainant

.

has further deposed that the deceased told her that the accused

persons wanted her to bring dowry otherwise she would be ousted.

This statement of the complainant is fortified by PW-3, Shri Amar

Singh, Up-Pradhan of Gram Panchayat, Harnera. On close scrutiny

of the statements witnesses, i.e., P W-1, Smt. Nirmala Devi, PW-2,

Smt. Jogindra Devi, and PW-3, Shri Amar Singh, it is found that no

written complaint had been made to said Up-Pradhan (PW-3). There

is also no occasion to make the complaint to Up-Pradhan, that too of

a different village, especially when there is Pradhan of the

Panchayat. In fact, the fact qua making of the complaint by the

deceased to her mother (PW-1) and further complaining the matter to

PW-3, Shri Amar Singh, Up-Pradhan, has not been substantiated.

The statement of PW-3, Shri Amar Singh, is not at all confidence

inspiring, as he is Up-Pradhan of a different village and there is

nothing on record that he at any point of time advised the

complainant to make a written complaint to the Panchayat to which

she belongs. In these circumstances, the prosecution has failed to

prove that the deceased was given a cruel treatment by the accused

persons for not bringing dowry or they wanted dowry from the

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deceased or her family. Therefore, the judgment as cited by the

learned counsel for the appellant, i.e., V.K. Mishra another vs.

State of Uttrakhand another, 2015 (9) SCC 588, wherein vide

.

paras 7 and 39 it has been held as under:

“7. In order to attract application of Section
304-B IPC, the essential ingredients are as

follows:-

1. The death of a woman should be caused by
burns or bodily injury or otherwise than
under a normal circumstance.

2. Such a death should have occurred within

seven years of her marriage.

3. She must have been subjected to cruelty or
harassment by her husband or any relative
of her husband.

4. Such cruelty or harassment should be for or

5.

in connection with demand of dowry.
Such cruelty or harassment is shown to have

been meted out to the woman soon before her
death.

On proof of the essential ingredients
mentioned above, it become obligatory on the

court to raise a presumption that the
accused caused the dowry death. A conjoint
reading of Section 113B of the Evidence Act
and Section 304-B IPC shows that there must
be material to show that soon before her

death the victim was subjected to cruelty or
harassment. “Soon before” is a relative term

and it would depend upon circumstance of
each case and no straitjacket formula can
be laid down as to what would constitute a
period “soon before the occurrence.” There

must be in existence proximate live link
between the facts of cruelty in connection
with the demand of dowry and the death. If
the alleged incident of cruelty is remote in
time and has become stale enough not to
disturb mental equilibrium of the woman
concerned, it would be of no consequence.

… … … … … … …

39. In Sher Singh v. State of Haryana, it had

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been held there in that the use of word
“shown” instead of “proved” in Section 304-
B IPC indicates that the onus cast on the
prosecution would stand satisfied on the
anvil of a mere preponderance of
probability. In other words “shown” will
have to be read up to mean “proved” but only

.

to the extent of preponderance of

probability. Thereafter, the word “deemed”
used in that Section is to be read down to
require an accused to prove his innocence
but beyond reasonable doubt. The “deemed”

culpability of the accused leaving no room
for the accused to prove innocence was,
accordingly, read down to a strong
“presumption” of his culpability. The
accused is required to rebut this
presumption by proving his innocence. The

same view was reiterated in Ramakant
Mishra v. State of U.P”.

The judgment (supra) is not applicable to the facts of the present

case.

23. Likewise, the learned Additional Advocate General has

placed reliance on another judgment of Hon’ble Supreme Court, i.e.,

Rajinder Singh versus State of Punjab, 2015 (6) SCC 477,

apposite para of the judgment is extracted hereunder for ready

reference:

“20. Given that the statute with which we are
dealing must be given a fair, pragmatic and
common sense interpretation so as to fulfill

the object sought to be achieved by
Parliament, we feel that the judgment in
Appasaheb case followed by the judgment of
Vipin Jaswal do not state the law correctly.
We, therefore, declare that any money or
property or valuable security demanded by
any of the persons mentioned in Section 2 of
the Dowry Prohibition Act, at or before or at
any time after the marriage which is
reasonably connected to the death of the
married woman, would necessarily be in
connection with or in relation to the

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22

marriage unless, the facts of a given case
clearly an unequivocally point otherwise.”

This judgment is also not applicable to the facts of the present case,

as no demand of dowry or demand for any other article stands

.

proved on record.

24. Conversely, the learned counsel for the respondents has

placed reliance on the judgment of Hon’ble Supreme Court rendered

in Pinakin Mahipatray Rawal vs. State of Gujarat, (2013) 10

Supreme Court Cases 48, wherein it has been held as under:

“15. We are, however, of the view that for a
successful prosecution of such an
action for alienation of affection, the
r loss of marital relationship,
companionship, assistance, loss of

consortium, etc. as such may not be
sufficient, but there must be clear
evidence to show active participation,
initiation or encouragement on the part
of a third party that he/she must have

played a substantial part in inducing or
causing one spouse’s loss of other
spouse’s affection. Mere acts,
association, liking as such do not
become tortious. Few countries and

several States in the united States of
America have passed legislation

against bringing in an action for
alienation of affection, due to various
reasons, including the difficulties
experienced in assessing the monetary

damages and a few States have also
abolished “criminal conversation”
action as well.

… … … … … …

21. This Court in Girdhar Shankar Tawade
Vs. State of Maharashtra, 2002 5 SCC
177, examined the scope of the
explanation and held as follows:-

“3. The basic purport of the

01/09/2017 23:26:57 :::HCHP
23

statutory provision is to avoid
“cruelty” which stands defined
by attributing a specific
statutory meaning attached
thereto as noticed
hereinbefore. Two specific
instances have been taken

.

note of in order to ascribe a

meaning to the word “cruelty”
as is expressed by the
legislatures: whereas
Explanation (a) involves three

specific situations viz. (i) to
drive the woman to commit
suicide or (ii) to cause grave
injury or (iii) danger to life,
limb or health, both mental
and – physical, and thus

involving a physical torture or
atrocity, in Explanation (b)
there is absence of physical
injury but the legislature
thought it fit to include only
r coercive harassment which
obviously as the legislative

intent expressed is equally
heinous to match the physical
injury: whereas one is patent,
the other one is latent but
equally serious in terms of the

provisions of the statute since
the same would also embrace
the attributes of “cruelty” in
terms of Section 498A.”

… … … … … …

26. Section 113A only deals with a
presumption which the Court may draw
in a particular fact situation which
may arise when necessary ingredients

in order to attract that provision are
established. Criminal law amendment
and the rule of procedure was
necessitated so as to meet the social
challenge of saving the married woman
from being ill-treated or forcing to
commit suicide by the husband or his
relatives, demanding dowry. Legislative
mandate of the Section is that when a
woman commits suicide within seven
years of her marriage and it is shown
that her husband or any relative of her

01/09/2017 23:26:57 :::HCHP
24

husband had subjected her to cruelty as
per the terms defined in Section 498A
IPC, the Court may presume having
regard to all other circumstances of the
case that such suicide has been abetted
by the husband or such person. Though
a presumption could be drawn, the

.

burden of proof of showing that such an

offence has been committed by the
accused under Section 498A IPC is on
the prosecution. On facts, we have
already found that the prosecution has

not discharged the burden that A-1 had
instigated, conspired or intentionally
aided so as to drive the wife to commit
suicide or that the alleged extra
marital affair was of such a degree
which was likely to drive the wife to

commit suicide.”

25. The learned counsel for the respondents has also placed

reliance on another judgment of the Hon’ble Supreme Court in

another case titled K.R.J. Sarma vs. R.V. Surya Rao and another,

(2013) 4 SCC 118, wherein it has been held as under:

“7. Also from the evidence of PW 1 we do
not find any act of cruelty or
harassment as such committed by the
respondent within the meaning of
Clauses (a) and (b) of the Explanation

to Section 498A, IPC. Clause (a) of the
Explanation to Section 498A, IPC

states that any willful 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 amounts to
‘cruelty’. We have noticed from the
evidence of PW 1 that on the day the
deceased committed suicide, the
respondent was not in any way guilty
of any willful conduct which was
likely to drive the deceased to commit
suicide, nor did the respondent cause
any grave injury to the deceased.

Clause (b) of the Explanation to
Section 498A, IPC states that

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25

harassment of a woman 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 amounts to ‘cruelty’. Though

.

PW 1 has stated that the respondent

used to take away the salary of the
deceased, he has very fairly conceded
in cross examination that he had not
stated before the police that the

respondent used to take away the
salary of the deceased. Considering
this evidence of PW 1, we are of the
view that the concurrent findings of
the Trial Court and the High Court
that the respondent was not guilty of

the offences under Sections 498A and
306, IPC should not be interfered with
by us in exercise of our powers under
r Article 136 of the Constitution.”

The above judgments relied upon by the learned counsel for the

respondents are fully applicable to the facts of the present case.

26. Lastly, the learned counsel for the respondents has

placed reliance on the judgment of Hon’ble High Court of Punjab and

Haryana rendered in Devender and others vs. state of Haryana,

1994 Criminal Law Journal 1679, wherein it has been held that

the fact of deceased’s being immediately taken to hospital by the

accused immediately on consuming pills proved the good conduct of

the accused persons. Apposite paras of the judgment (supra) are

reproduced hereunder:

“12. It is also significant to note that after
the appellants came to knew that the
deceased was unwell, she was
immediately removed by Suraj Bhan
brother of Kapoor Singh, appellant and
Smt. Murti, mother-in-law of the

01/09/2017 23:26:57 :::HCHP
26

deceased, to the Medical College and
Hospital at Rohtak, at 7.35 a.m. on 24-
4-1985 where she was examined by Dr.
Kitab Singh, P.W.3. According to the
said doctor, the patient had consumed
some tablets used for preservation of
wheat mistaking it for some tablets

.

used for headache, as stated by the

mother-in-law accompanying the
patient whereas patient herself refused
to give any details. Obviously the
deceased was removed to the hospital

for treatment much before the arrival of
the complainant party. These
circumstances rather indicate that the
conduct of the appellant was not
consistent with the guilty conscience.
The reports of the Chemical Examiner

also indicates that visceras taken from
stomach, small intestines, liver, spleen
and kidney contained aluminium
phosphide. Post mortem report further
shows that the deceased also had four
r injuries on her body including injuries
on her right thigh. The said injuries,

however, were not sufficient in the
ordinary course of nature to cause
death and death of Mahle in all
probability was due to intake of
phosphide poisoning. In the absence of

other material evidence, this
circumstances alone would not be
sufficient to prove the guilt against the
appellants beyond reasonable doubt.

13. There is no reliable material on the
record to prove that the appellants

within reasonable time before the death
of Smt. Mahle had abetted the
commission of suicide by her or that
Devinder appellant husband and

Kapoor Singh and Mst. Murti
appellants, parents-in-law of Mahle
deceased subjected her to cruelty by
willful conduct which drove Smt. Mahle
to commit suicide or caused her
harassment with a view to coerce her
and her father to meet their unlawful
demand for dowry or valuable security,
on account of their failure to meet such
demand. Rather the defence plea that
the deceased was frustrated and
greatly perturbed or agitated because

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27

she could not bear any child even after
more than seven years of her marriage
and committed suicide by intake of
aluminium phosphide on that account
seems probable, in view of the peculiar
facts and circumstances of the present
case.”

.

The judgment (supra) is fully applicable to the case in hand, as it

cannot at all be overlooked that the accused persons shifted the

deceased to nearby hospital, when they noticed that she has

consumed some medicines.

27. The Hon’ble High Court of Himachal Pradesh in Criminal

Appeal No. 361 of 2011, decided on 3.9.2012, titled as Vishal v.

State of Himachal Pradesh, has held as under:

“13. In Vithal Eknath Adlinge v. State of
Maharashtra, AIR 2009 Supreme Court
2067, while reiterating the above principles,
annunciated in Sharad Birdhichand Sarda
(supra), the Hon’ble Apex Court has further

held as under, vide paras 6 to 16 of the
report:-

“6. It has been consistently laid down by

this Court that where a case rests squarely
on circumstantial evidence, the inference of
guilt can be justified only when all the

incriminating facts and circumstances are
found to be incompatible with the innocence
of the accused or the guilt of any other
person. (See Hukam Singh v. State of

Rajasthan (AIR 1977 SC 1063), Eradu and
Ors. v. State of Hyderabad (AIR 1956 SC

316), Earabhadrappa v. State of Karnataka
(AIR 1983 SC 446), State of U.P. v. Sukhbasi
and Ors. (AIR 1985 SC 1224), Balwinder
Singh v. State of Punjab (AIR 1987 SC 350),
Ashok Kumar Chatterjee v. State of M.P. (AIR
1989 SC 1890). The circumstances from
which an inference as to the guilt of the
accused is drawn have to be proved beyond
reasonable doubt and have to be shown to be
closely connected with the principal fact

01/09/2017 23:26:57 :::HCHP
28

sought to be inferred from those
circumstances. In Bhagat Ram v. State of
Punjab (AIR 1954 SC 621), it was laid down
that where the case depends upon the
conclusion drawn from circumstances the
cumulative effect of the circumstances must
be such as to negative the innocence of the

.

accused and bring the offences home beyond

any reasonable doubt.

7. We may also make a reference to a
decision of this Court in C. Chenga Reddy

and Ors. v. State of A.P. (1996) 10 SCC 193,
wherein it has been observed thus:

“In a case based on circumstantial evidence,
the settled law is that the circumstances
from which the conclusion of guilt is drawn

should be fully proved and such
circumstances must be conclusive in nature.
Moreover, all the circumstances should be
complete and there should be no gap left in
the chain of evidence. Further the proved

circumstances must be consistent only with
the hypothesis of the guilt of the accused

and totally inconsistent with his
innocence….”.

8. In Padala Veera Reddy v. State of A.P.

and Ors. (AIR 1990 SC 79), it was laid down

that when a case rests upon circumstantial
evidence, such evidence must satisfy the
following tests:

“(1) the circumstances from which an
inference of guilt is sought to be drawn,
must be cogently and firmly established;

(2) those circumstances should be of a
definite tendency unerringly pointing
towards guilt of the accused;

(3) the circumstances, taken cumulatively
should form a chain so complete that there
is no escape from the conclusion that
within all human probability the crime
was committed by the accused and
none else; and
(4) the circumstantial evidence in order to
sustain conviction must be complete and
incapable of explanation of any other
hypothesis than that of the guilt of the
accused and such evidence should not only

01/09/2017 23:26:57 :::HCHP
29

be consistent with the guilt of the accused
but should be inconsistent with his
innocence.

9. In State of U.P. v. Ashok Kumar
Srivastava, (1992 Crl.LJ 1104), it was
pointed out that great care must be taken in

.

evaluating circumstantial evidence and if

the evidence relied on is reasonably capable
of two inferences, the one in favour of the
accused must be accepted. It was also
pointed out that the circumstances relied

upon must be found to have been fully
established and thecumulative effect of all
the facts so established must be consistent
only with the hypothesis of guilt.

10. Sir Alfred Wills in his admirable book

“Wills’ Circumstantial Evidence” (Chapter VI)
lays down the following rules specially to be
observed in the case of circumstantial
evidence:

(1) the facts alleged as the basis of any legal
inference must be clearly proved and beyond

reasonable doubt connected with the factum
probandum;

(2) the burden of proof is always on the party
who asserts the existence of any fact, which

infers legal accountability;

(3) in all cases, whether of direct or
circumstantial evidence the best evidence

must be adduced which the nature of the
case admits;

(4) in order to justify the inference of guilt, the
inculpatory facts must be incompatible with
the innocence of the accused and incapable
of explanation, upon any other reasonable

hypothesis than that of his guilt,
(5) if there be any reasonable doubt of the
guilt of the accused, he is entitled as of
right to be acquitted”.

11. There is no doubt that conviction can
be based solely on circumstantial evidence
but it should be tested by the touch-stone of
law relating to circumstantial evidence laid
down by this Court as far back as in 1952.

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30

12. In Hanumant Govind Nargundkar and
Anr. V. State of Madhya Pradesh, (AIR 1952
SC 343), wherein it was observed thus:

“It is well to remember that in cases where
the evidence is of a circumstantial nature,
the circumstances from which the

.

conclusion of guilt is to be drawn should be

in the first instance fully established and all
the facts so established should be consistent
only with the hypothesis of the guilt of the
accused. Again, the circumstances should be

of a conclusive nature and tendency and
they should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words, there must be a
chain of evidence so far complete as not to
leave any reasonable ground for a

conclusion consistent with the innocence of
the accused and it must be such as to show
that within all human probability the act
must have been done by the accused.”

13. A reference may be made to a later
decision in Sharad Birdhichand Sarda v.

State of Maharashtra, (AIR 1984 SC 1622).
Therein, while dealing with circumstantial
evidence, it has been held that onus was on
the prosecution to prove that the chain is
complete and the infirmity of lacuna in

prosecution cannot be cured by false defence
or plea. The conditions precedent in the
words of this Court, before conviction could
be based on circumstantial evidence, must

be fully established. They are:

(1) the circumstances from which the

conclusion of guilt is to be drawn should be
fully established. The circumstances
concerned `must’ or `should’ and not `may be’
established;

(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except
that the accused is guilty;

(3) the circumstances should be of a conclusive
nature and tendency;

(4) they should exclude every possible
hypothesis except the one to be proved; and

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31

(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must show
that in all human probability the act must
have been done by the accused.

.

14. These aspects were highlighted in
State of Rajasthan v. Raja Ram (2003 (8) SCC

180), State of Haryana v. Jagbir Singh and
Anr. (2003 (11) SCC 261) and Kusuma

Ankama Rao v State of A.P. (Criminal Appeal
No.185/2005 disposed of on 7.7.2008).

15. So far as the last seen aspect is
concerned it is necessary to take note of two
decisions of this court. In State of U.P. v.

Satish [2005 (3) SCC 114] it was noted as
follows:

“22. The last seen theory comes into
play where the time-gap between the point of

time when the accused and the deceased
were seen last alive and when the deceased

is found dead is so small that possibility of
any person other than the accused being the
author of the crime becomes impossible. It
would be difficult in some cases to positively
establish that the deceased was last seen

with the accused when there is a long gap
and possibility of other persons coming in
between exists. In the absence of any other
positive evidence to conclude that the

accused and the deceased were last seen
together, it would be hazardous to come to a
conclusion of guilt in those cases. In this

case there is positive evidence that the
deceased and the accused were seen
together by witnesses PWs. 3 and 5, in
addition to the evidence of PW-2.”

16. In Ramreddy Rajesh khanna Reddy v.

State of A.P. [2006 (10)SCC 172] it was noted
as follows:

“27. The last-seen theory, furthermore, comes
into play where the time gap between the
point of time when the accused and the
deceased were last seen alive and the
deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime

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32

becomes impossible. Even in such a case the
courts should look for some corroboration”.
(See also Bodh Raj v. State of JK (2002(8)
SCC 45).)”

14. In the present case, the following
circumstances were pressed into service by

.

the prosecution to prove its case and the

same have been held to be duly proved by the
learned trial Court:-

1. The illicit relation of deceased with the

accused Neelam.

2. The presence of both accused Neelam and
her husband co-accused Vishal together in
the intervening night of 29th and 30th June,
2009.

3. The injury of incised wound on the hands of

accused Vishal.

4. Blood stains on the floor, wall of the room,
in which deceased was lastly seen to have
entered by PW5 Naresh Kumar.

5. Blood stains on the curtains, T.V., floor, sofa

cover, bed sheet etc. of the aforesaid room.

6. The blood stains on the scooter of accused

Vishal as well as its engine cover.

7. The blood stains on the clothes of both the
accused, the recovery of which had been
effected by the police at the instance of the
accused.

8. Both the accused dis-appeared from their
residence they remained absconded up till
3rd and 4th July, 2009.

9. The presence of blood on the weapon of

offence i.e. Kirpan.

10. The extra judicial confession made by
accused Neelam to PW15 Kallash Chand

that she alongwith the accused Vishal had
killed the deceased.

15. The case is required to be judged in the light

of the above legal position, laid down by the
Hon’ble Supreme Court, with regard to
appreciation of circumstantial evidence and
we proceed to undertake the exercise, by
taking up the circumstances individually/
collectively, keeping in view the nature
thereof.

Circumstances No. 1 and 2.

16. Both the circumstances, being inter-

connected, requiring common appreciation

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33

of evidence and law, are taken up together
for discussion and decision. Whereas the
first circumstance relates to the alleged
illicit relations between C-2 Neelam
Sharmaand the deceased, the second
circumstance is in the nature of the
deceased having been last seen together, in

.

the company of C-2 Neelam Sharma, at the

relevant time, that is, during the night
intervening 29/30.6.2009, at her parental
house.

17. PW-5 Naresh Kumar is a co-villager
and friend of the deceased. He has deposed
that in June, 2009 he was working in a
Mobile shop at Nangal Bhoor. He knew the
deceased, who was of his village. He used to
remain in touch with him. According to him,

about two years prior to the death of the
deceased, he had told him that he was
having relations with C-2 Neelam Sharma
and both of them had been meeting each
other. The witness further goes on to depose

that once he had brought the deceased to
the house of C-2 Neelam Sharma at Kandrori

on his motor-cycle. On 29.6.2009, at
about8/8.30 p.m., the deceased informed
him telephonically that he intended to go to
C-2 Neelam Sharma’s place. Thereafter,
again at 10.30 p.m. the deceased telephoned

him and asked him to come. It was at
about11 p.m. that the witness took the
deceased to Kandrori railway station on his
motor-cycle. He remained at the railway

station and saw C-2 Neelam Sharma
roaming in her courtyard, then the deceased
switched on the light of his mobile, upon

which C-2 Neelam Sharma came to the gate
and took him (deceased) inside.Then the
lights of the verandah were switched off.
Thereafter, the witness came back. He

received a telephone call, when he wanted to
talk, the call got disconnected. Then he
made a telephone call to the deceased, but
he did not pick up the phone. On the next
day, at about 1.15 p.m., he received
telephonic information that the dead body of
the deceased was lying under Bain Attarian
bridge. Accordingly, he went there and saw
the dead body of the deceased. The witness
identified C-2 Neelam Sharma in the Court.

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34

28. After exhaustively discussing the evidence and the law, it

is clear that the prosecution has failed to prove that cruel treatment

was given to the deceased and under these circumstances the

.

presumption that it was a dowry death within seven years of

marriage does not at all arise.

29. Section 113-A of the Evidence Act deals with

presumption as to abetment of suicide by a married woman. It

mandates that if a married woman commits suicide within seven

years of her marriage due to the reasons that she was subjected to

cruelty by her husband or relatives then the Court raise the

presumption of the fact that the husband or such relative abetted

the suicide. Primarily for proving the said presumption it has to be

established that the wife was subjected to cruelty, as ingrained in

Section 498-A IPC. Certainly, the said presumption is rebuttable.

Section 107 of IPC defines ingredients of abetment as under:

(i) instigation to commit an offence;

(ii) engaging in a conspiracy to
commit an offence; and
(iii) aiding the commission of offence.

However, in essence, none of the above ingredients is attracted in the

case in hand, as no evidence qua instigation or abetment by the

accused persons to the deceased has come on record. Likewise,

there is also nothing on record to demonstrate that the accused

persons hatched a conspiracy for commission of an offence. Lastly,

01/09/2017 23:26:57 :::HCHP
35

nothing is emanating from the record that the accused persons were

instrumental in aiding the deceased in committing the suicide.

Thus, the prosecution has failed to prove the guilt of the accused

.

persons beyond the shadow of reasonable doubt. Further the

prosecution has also failed to prove that the accused persons had

taken away the ornaments of the deceased. The net result of the

above discussion is that the prosecution has not been able to prove

the guilt of the accused persons.

30. It has been held in K. Prakashan vs. P.K. Surenderan

(2008) 1 SCC 258, that when two views are possible, appellate

Court should not reverse the judgment of acquittal merely because

the other view was possible. When judgment of trial Court was

neither perverse, nor suffer from any legal infirmity or non-

consideration/mis-appreciation of evidence on record, reversal

thereof by High Court was not justified.

31. The Hon’ble Supreme Court in T. Subramanian vs.

State of Tamil Nadu (2006) 1 SCC 401, has held that where two

views are reasonably possible from the very same evidence,

prosecution cannot be said to have proved its case beyond

reasonable doubt.

32. Keeping in view what has been discussed hereinabove, in

a nut shell it is more than safe to hold that the prosecution has

01/09/2017 23:26:57 :::HCHP
36

failed to prove the guilt of the accused beyond the shadow of

reasonable doubt. Thus, there is no occasion to interfere with the

well reasoned judgment of the learned Trial Court, as such the

.

appeal, which sans merits, deserves dismissal and is accordingly

dismissed. Pending application(s), if any, stand(s) disposed of

accordingly.

(Tarlok Singh Chauhan)
Judge

1st September, 2017
(virender)
r to (Chander Bhusan Barowalia)
Judge

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