Pattu And (3) Others. vs State Of U.P. on 22 August, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Reserved

Case :- CRIMINAL APPEAL No. – 178 of 1999

Appellant :- Pattu And (3) Others.

Respondent :- State Of U.P.

Counsel for Appellant :- Rakesh Tripathi,Janardan Prasad.

Counsel for Respondent :- Government Advocate

Hon’ble Sheo Kumar Singh-I,J.

1. Instant criminal appeal has been filed against the judgment and order 21.04.1999 passed by Special/Additional Sessions Judge, Sitapur, in Sessions Trial No.489 of 1995 arising out of Case Crime No.266 of 1994, under Sections 498-A, 304-B IPC and Section ¾ of the Dowry Prohibition Act, Police Station Sandana District Sitapur, whereby and whereunder the appellants Pattu, Kailash, Mannu and Smt. Munni Devi were found guilty under Section 304-B IPC and were sentenced to undergo rigorous imprisonment for a period of ten years.

2. Here in the present case a young innocent lady was subjected to dowry death just within one and half years’ of her marriage by the husband and in-laws and after lodging the first information report the provisions of Criminal Procedure Code were set into motion. The contents of the first information report reveal that the daughter of the complainant Swami Dayal was married to Pattu son of Kailash just before one and half year of the incident. After the marriage when the deceased visited the house of in-laws and came back to the parental house she informed her parents that her husband and in-laws had been regularly asking and pressurizing for bringing cycle and transistor in dowry and for non-fulfillment of their demand she was subjected to cruelty and ill treatment in the in-laws house. A lady named Bitali daughter of Jagdamba from the village of the complainant was also married to the same village where the daughter of the complainant was married and on 06.12.1994 at about 12.00 in the day Bitali came back to her parental house, met with the complainant and communicated the death of Guddi, the daughter of the complainant. She had also communicated that the deceased was continuously tortured by the members of the husband’s family and her dead body was found to be hanging in the room. After receiving the information, the complainant lodged the first information report Ext. Ka-1 at about 1935 hours on 06.12.1994 where it was registered at case Crime No.266 of 1994 under Sections 498-A, 304-B IPC and ¾ of the Dowry Prohibition Act against all the accused-appellants. During investigation, Panchayatnama was prepared by the Investigating Officer and after preparing the site map the dead body of the deceased was sent to postmortem and after completing the investigation charge sheet was submitted against all the accused-appellants. Learned Chief Judicial Magistrate took cognizance and committed the case to the Court of Sessions. Learned Sessions Judge summoned the accused and charged them under the aforementioned sections for which they pleaded not guilty and claimed for trial.

3. In order to prove the prosecution case, PW-1 Swami Dayal, PW-2 Ruchi daughter of Swami Dayal, PW-3 Smt. Bitali, PW-4 Dy. S.P. Jograj Singh, PW-5 Nagendra Sharma, Tehsildar, PW-6 Constable Sabhajeet Singh, PW-7 Dy. S.P. Rajendra Singh and PW-8 Dr. S.K. Sinha were examined.

4. In the statement recorded under Section 313 Cr.P.C., it has been narrated by the defence that a false report had been lodged by the complainant. It has further been narrated that the deceased Smt. Guddi was not willing to reside in the village and she was of the view to reside in Nai Basti and to do business in Mishrikh town and that was the reason she regularly used to visit her Mama’s house. The defence has also taken a plea that appellants Pattu and Mannu were not at their house till the death of the deceased and they were residing in Lucknow and after receiving the information about the death of the deceased they came at the residence. It has further been stated that the father of Pattu and Munni Devi were not in the house and deceased committed suicide inside the room. The accused-appellants had also pleaded in their defence that witness Bitali has inimical relations with their family. The complainant had demanded the items and the money paid as dowry which was refused and thus the complainant lodged the first information report.

5. Learned Trial Judge by his judgment and order under appeal found all the appellants guilty under Section 304-B IPC and sentenced them as above.

6. Learned counsel for the appellants has challenged the judgment and order mainly on the following grounds:-

i. That learned Trial Judge has passed the order against the facts on record and against the law.

ii. That the prosecution has failed to establish the necessary ingredients to attract the provisions of Section 304-B IPC i.e. soon before the death, the deceased was subjected to cruelty or harassment in connection with demand of dowry.

iii. That there are certain contradictions and inconsistencies in the version of the first information report and the statement of the prosecution witnesses.

iv. That the Court has relied upon the statement of PW-2 Ruchi who is a child and tutored witness.

v. That there are major contradictions in the statement of PW-1 with regard to demand of dowry.

vi. That there is no evidence that any demand of dowry was made by the father as well as by the mother of the husband of the deceased.

vii. That all the accused appellants were not present at the scene of occurrence.

viii. That the statement of Bitali is not trustworthy and cannot be relied upon.

ix. That before the alleged incident the deceased had been sent with his father in law after reconciliation and after that she died within ten days and there was no evidence that she in any way had communicated her father PW-1 with regard to demand of dowry.

7. Learned A.G.A. vehemently supported the judgment of the Lower Court and he replied the arguments of appellants on all counts. He supported that there is sufficient material and the Trial Judge has taken note of all the facts and on detail examination the appellants have been convicted.

8. There is no dispute about the fact that death has taken place well within seven year of marriage in an unnatural way.

Section 304-B I.P.C. deals with the dowry death. It will be useful to quote it at this place:

“304-B. 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 harrassment 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 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.”

9. To press and apply the aforesaid Section, the prosecution has to establish that death of a woman is caused by burns or bodily injury, occurs not under normal circumstances within seven years of the marriage and the lady was subjected to cruelty or harassment by the husband and relatives of the husband in connection with the demand of dowry. Section 113-B of the Evidence Act was also inserted with a view to draw a presumption as to the dowry death.

“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.”

10. As per the definition of “dowry death” in Section 304-B I.P.C. and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand for dowry”. While considering these two provisions, Hon’ble Apex Court in M. Srinivasulu Vs. State of A.P. reported in (2007) 12 SCC 443 has observed thus:

“8 The presumption shall be raised only on proof of the following essentials:

(1) The question before the court must be whether the accused has committed the dowry death of a woman, (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband for dowry.

(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death.”

11. Hon’ble Apex Court in the case of Raman Kumar Vs. State of Punjab reported in (2009) 16 SCC 35 has again discussed Section 113-B of the Evidence Act and Section 304-B IPC and has quoted one paragraph of its judgment rendered in the case of Kaliyaperumal Vs. State of Tamilnadu reported in (2004) 9 SCC 157 as under:-

“A conjoint reading of Section 113-B 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. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances. The expression soon before is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. Soon before is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. 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 113-B of the Evidence Act. The expression soon before her death used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression soon before used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term soon before is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression soon before would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.”

12. If it is established by the prosecution that the circumstances to presume the death of the lady as a dowry death are reliable and if all the points are raised from the appellants side is negated it will be a case of confirmation of the conviction and sentence.

13. Admittedly, the marriage of the deceased was solemnized just before one and half year of her death and she died within seven years of her marriage in unnatural circumstances within the house of the appellants. Here is the case where none of the accused-appellants informed about the incident either to the complainant or to the police. The complainant had received the information, came on the spot and thereafter the first information report was lodged. There is evidence on record that when the incident happened and the informant came to the house of the deceased none of the appellants were available there and the Investigating Officer was examined before the Court who narrated on oath that the appellants were traced just after the incident but they left their residential house and fled away due to fear of arrest. There is no explanation from the side of the appellants that for what purpose and under what circumstances they left the house.

14. Learned counsel for the State has argued that the fact of absconding just after the incident provides certain presumption regarding culpability of the appellants.

15. This Court has to examine the circumstances under which the appellants left their house just after the incident for which the Investigating Officer had deposed that he tried to search out the house of the appellants but found them absconding.

16. There is no doubt that the circumstances like absconding can be treated as one of the incriminating circumstance but the said circumstance itself can not be a ground of convicting unless the other circumstances are linked with that one. In Mutru @ Girish Chandra versus the State of U.P. AIR 1971 SC 1050, the Apex Court held that the act of absconding is no doubt relevant piece of evidence to be considered along with other evidence, but its value would always depend on the circumstances of each case. Generally the court considers it as a very small item in the evidence for sustaining conviction.

17. In the instant case, it can not be ruled out that the accused-appellants left their place of residence either due to fear or to avoid arrest as such is the instinct to self preservation in an average human being as would be evident from the decision of the Apex Court in Thima versus The State of Mysore, AIR 1971 SC 1871. The conduct of absconding is relevant under Section 8 of the Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest. Such is the instinct of self-preservation in an average human being.

18. One of the arguments advanced by learned counsel for the appellants is delay in lodging the first information report.

19. The incident took place on 06.12.1994 in the morning at any point of time before 12.00 O’clock and the incident was narrated by PW-2 Ruchi who happened to be the sister of the deceased and was aged about 11 years at the time of recording her statement and was residing with the deceased and after knowledge of the death of the deceased Bitali communicated this fact by visiting to the parental house of the deceased and after that the parents visited the village where the deceased was married and then the report was submitted to the police station. The police station was 12 kilometer away from the place of incident. Thus, in the given circumstances the first information report cannot be said to be delayed.

20. Another argument advanced by learned counsel for the appellants is that there is no evidence with regard to demand of dowry. The prosecution witnesses PW-1 Swami Dayal-father of the deceased, PW-2 Ruchi – sister of the deceased have continuously narrated that there was demand of dowry and it was communicated to them by the deceased and further statement of sister of the deceased PW-2 Ruchi that all the accused appellant demanded cycle and transistor in dowry before her and they slapped the deceased and tortured her and there was repeated complaint by the deceased to her parents.

21. In the statement PW-1 Swami Dayal has narrated that when his daughter returned back to parental home she communicated the demand of dowry from all the accused appellants and also it has been corroborated by PW-2 Ruchi, who was residing with the deceased. She has narrated that the demand of cycle and transistor were made before her and the deceased was also beaten by all the accused appellants before her and on the date of incident when the deceased communicated to the witness PW-2 her sister Ruchi that they will go to the house of their father and communicate him to provide cycle and transistor then the accused appellant Kailash pulled her and slapped PW-2 Ruchi. PW-2 Ruchi came out of the room and Kailash with other appellants pulled her in the room and thereafter when she returned back after some time in the room she found that her sister deceased was hanging and died by strangulation. She has specifically narrated that all the accused appellants were present there at the time of occurrence.

22. Learned counsel for the appellants has submitted that this witness is a child witness and her statement should be taken and considered with great caution.

23. Evidence of child witness cannot be rejected out rightly. It should be evaluated carefully with greater circumspection. Court has to ascertain whether it is free from influence. It on a careful scrutiny, the testimony of a child witness is found truthful, there can be no hindrance in the way of accepting the same and recording conviction of the accused on the basis of his testimony. ( Rameshwar Vs. State of Rejasthan; AIR 1952 SC 54, Nivrutti Pandurang Kokate and Ors. Vs. State of Maharashtra (2008 (12) SCC 565), Md. Kalam Vs. State of Bihar; 2008 (62) ACC 305, State of Karnataka Vs. Shantappa Madivalappa; AIR 2009 SC 2144, Acharaparambath Pradeepan Vs. State of Kerala; 2007 (57) ACC 293 (SC), Ratan Singh Vs. State of Gujarat; (2004) 1 SCC 64, Panchhi Vs. State of U.P. ; 1998 (37) ACC 528 (SC Three Judges Bench), Prakash vs. State of M.P.; JT 1992 (4) SC 594 , State of MP vs. Ramesh 2011 CRLJ 2297 SC, State of UP vs. Krishna Master AIR 2010 SC 3071)

24. The proviso to S.5, Indian Oaths Act, 1873 prescribes that:

“Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that though he understands the duty of speaking the truth he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of S.6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.”

25. An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or judge really was of that opinion can, be gathered from the circumstances when there is no formal certificate [AIR 1952 SUPREME COURT 54 “Rameshwar Vs. State of Rajasthan”]

26. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. [AIR 2008 Supreme Court 1842 “Golla Yelugu Govindu Vs. State of A.P., AIR 2009 Supreme Court 2144 ” State of Karnataka Vs. Shantappa Madivalapa Galapurji””]

27. Right from the lodging of the first information report and till the oral evidence which has been confidently established by the prosecution witnesses that from time to time there was demand of dowry and in spite of giving valuables in the marriage, the lady victim-deceased elaborated the terror on her. The statement of two witnesses on the issue was not shaken during the cross examination. There is no doubt about the fact that death has taken place well within seven years well being unnatural. Section 304-B deals with dowry death. The death may be of following two natures:-(i) Natural death (ii) Unnatural death. Law does not take cognizance of the natural death but in case if it is unnatural death, then the provisions of law and the criminal jurisprudence comes into picture. Unnatural death may be of following kinds:-

(i) Accidental death

(ii) Suicidal death

(iii) Homicidal death

(iv) Dowry death

28. There is no case of accidental death. It is the version of the prosecution that the circumstances under which death took place gives certain presumptions as provided under Section 113-B of the Evidence Act. Further when the death of a woman occurs otherwise than under normal circumstances within seven years of marriage and it is shown that soon before the death, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry, such death shall be called dowry death. There is an allegation of demand of dowry and there is evidence of the prosecution that there was demand of dowry and harassment in furtherance of demand of dowry.

29. 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.” As per the definition of “dowry death” in Section 304-B I.P.C. and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand for dowry”.

30. In the case of State of Punjab vs. Iqbal Singh, AIR (1991) SC 1532 observed as under:-

“The legislative intent is clear to curb the menace of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Sections 113-A and 113-B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married women is subjected to cruelty or harassment by her husband or his family members Section 498-A, IPC would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under Section 304-B, IPC. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with,any demand for dowry, Section 113-B,Evidence Act provides that the court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract Section 302, IPC.

31. In the case of Ramesh Panjiyar vs. State of Bihar, (2005) 2 SCC 388, the Court held that the prosecution has to rule out the possibility of a natural or incidental death so as to bring it within the purview of “Death occurring otherwise than in the normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B, IPC are pressed into service. Hence, the prosecution is obliged to show that soon before the occurrence there was cruelty or harassment only attracting the provision of Section 113-B.

32. In the case of Kanas Raj vs. State of Punjab Ors., (2000) 5 SCC 207, it was held that in case of dowry death the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instances but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand of dowry is shown to have persisted, it shall be deemed to be “soon before death”.

33. Prima facie neither definite period has been indicted in the aforementioned section nor the expression “soon before” has been defined.

34. In Balka Singh Ors. v. State of Punjab, AIR 1975 SC 1962, the Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 and held as under:

“The Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.”

35. In Sukhdev Yadav Ors. v. State of Bihar, AIR 2001 SC 3678, the Court held as under:

“It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment, sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account.”

36. A similar view has been reiterated in Appabhai Anr. v. State of Gujarat, AIR 1988 SC 696, wherein the Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses now a days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.

37. In Sucha Singh v. State of Punjab, AIR 2003 SC 3617, the Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus (false in one thing,false in everything) has no application in India and the witness cannot be branded as a liar.In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, truth is the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.

38. Learned counsel for appellants had further submitted that the deceased never intended to live in village. It has been evidence from the facts and circumstances that both the parties were familiar with each before marriage and were of village back ground and marriage was performed within full knowledge of these things. Thus the theory that she was not intended to live in village is not justified.

39. Submission of learned counsel for the appellants is that as there was no complaint prior to this incident, therefore, the allegation of demand of dowry become unbelievable. I am not at all convinced with the submission of learned counsel for the appellants. In a matrimonial relationship, the family member of the victim always tries and makes their best efforts for the continuance of the marriage. In case any complaint or any F.I.R. is lodged to this effect then the dispute becomes irreversible and it would further deteriorate the relationship of the wife with her husband and the other family members of her matrimonial home. Due to this reason, the complaint of minor incidents of cruelty with the wife or demand of dowry are not generally reported. The Court is required to appreciate the evidence, keeping in view the prevailing circumstances in the society. Therefore, the ground, which has been taken on behalf of the appellants, has absolutely no force. All the two witnesses have made specific allegation that after ‘Gauna’ ceremony, the demand of dowry was made and the victim was consequently ill treated. She died within seven year of marriage.

40. The next submission of learned counsel for the appellants is that there is no evidence on the point that soon before her death, deceased was subjected to cruelty in connection with the demand of dowry is apparently misconceived. The meaning of the words ‘soon before her death’ has been considered by the Apex Court in various judgments. In the case of Satvir Singh Vs. State of Punjab reported in (2001) 8 SCC 633, which was followed by Hon’ble Apex Court in the case of Balwant Singh Vs. State of Punjab reported in 2004 (7) SCC 724 and has held as under:-

“It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at sometime, if Section 304-B I.P.C. is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few week before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words “soon before her death” is to emphasis the idea that her death should in all probabilities, have been the aftermath of such cruelty or harassment. In other words there should be perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between infliction of such harassment or cruelty and her death is wide the court would be in a position to guage that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the Court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to sneft its cord from the concept “soon before her death.”

41. We find that the appellants were charged under Section 304B I.P.C. The specific allegation leveled against them was that they had subjected the deceased to cruelty far or in connection with the demand of dowry and she had died unnatural death within seven years of her marriage. Thus the appellants knew that they were to defend themselves against the allegation of cruelty.

42. Section 304-B was inserted by amending Act No.43 of 1986 to deal with cases involving dowry deaths occurring within seven years of marriage. Sub-section (1) of Section 304B IPC lays down that 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. By virtue of explanation appearing below sub-section (1), the word `dowry’ used therein carries the same meaning as is contained in Section 2 of The Dowry Prohibition Act, 1961.

43. The ingredient of cruelty is common to Sections 304B and 498A IPC, but the width and scope of two sections is different, inasmuch as Section 304B deals with cases of death as a result of cruelty or harassment within seven years of marriage, Section 498A has a wider spectrum and it covers all cases in which the wife is subjected to cruelty by her husband or relative of the husband which may result in death by way of suicide or cause grave injury or danger to life, limb or health (whether mental or physical) or even harassment caused with a view to coerce the woman or any person related to her to meet unlawful demand for property or valuable security.

44. In our country the bride burning, bride hanging or poisoning cases have become common. These kind of offences are not the ordinary crimes committed in anger or for property. These are crimes against society on account of which the entire social fabric is disrupted. Time has come when everybody is to seriously think over the nature and gravity of the crime. It is very pathetic situation when the young girl aged about 20-25 years leaves her parents to serve another family who is totally unknown to her. She is to be extended even more love, affection and the help in comparison to our own daughter as the lady after marriage is just a part of the family where she is married. She takes care of all the members of the family right from young to old, and therefore, any kind of indiscipline, misconduct with the young lady can be termed as inhuman and nobody can claim any sympathy and deserves any leniency.

45. In the light of facts, this court is of the view that learned trial judge had discussed each and every prosecution witnesses in detail and after proper analysis has drawn a conclusion, which is well permitted in law and found that the death of the deceased was unnatural coming within the purview of dowry death.

46. Mr. Izhar Husain, learned counsel for the State, has submitted that though there are no contradictions, even if there are certain discrepancies, these are normal discrepancies which did not corrode the credibility of the prosecution case as laid down in the following cases:-

“72. In State Represented by Inspector of Police v. Raravanan and another – JT 2008 (11) SC 290, reiterating the principle, the Court held:

“18. …. it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies.”

73. In Mahendra Pratap Singh v. State of Uttar Pradesh- JT 2009 (3) SC 120, the Court referred to the authority in Inder Singh and another v. State (Delhi Administration) 1978 (4) SCC 161 wherein it has been held thus:

“2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect.”

74. In Sunil Kumar Sambhudayal Gupta and others v. State of Maharashtra – JT 2010 (12) SC 287, while dealing with the issue of material contradictions, the Court held:

“30. While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan)

31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh.)

32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt.” (Vide Mahendra Pratap Singh v. State of U.P. )”

And again:

“35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so.” (See Syed Ibrahim v. State of A.P.22 and Arumugam v. State)”

47. In this context, I may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony- (1985) 1 SCC 505:

“10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. …”

48. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.-(2002) 6 SCC 470, it has been ruled that:

“11. …. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses.”

49. In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:

“7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.”

50. In Krishna Mochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:

“32. …. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is, in practice, changing the world over and courts have been compelled to accept that “society suffers by wrong convictions and it equally suffers by wrong acquittals”. I find that this Court in recent times has conscientiously taken notice of these facts from time to time”.

51. In Inder Singh (supra), Krishna Iyer, J. laid down that:

“Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes.”

52. In the case of State of U.P. v. Anil Singh-1988 (Supp.) SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

53. In Mohan Singh and another v. State of M.P.-(1999) 2 SCC 428, this Court has held:

“11. The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eyewitnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeans (sic), clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.”

54. Learned counsel for the appellants has submitted that the provisions of Section 235(2) Cr.P.C. were not complied with. The said provisions read as follows:-

“235. Judgment of acquittal or conviction

(1) …..

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

55. While discussing Section 235(2) CrPC, the Court, in Santa Singh v. State of Punjab – (1976) 4 SCC 190, observed as follows:

“4. …. the hearing contemplated by Section 235(2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same.”

56. A three-Judge Bench in Dagdu and others v. State of Maharashtra – (1977) 3 SCC 68 considered the object and scope of Section 235(2) CrPC and held that:

“79. But we are unable to read the judgment in Santa Singh as laying down that the failure on the part of the Court, which convicts an accused, to hear him on the question of sentence must necessarily entail a remand to that Court in order to afford to the accused an opportunity to be heard on the question us sentence. The Court, on convicting an accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence. That opportunity has to be real and effective, which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence. The accused may exercise that right either by instructing his counsel to make oral submissions to the Court or he may, on affidavit or otherwise, place in writing before the Court whatever he desires to place before it on the question of sentence. The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence. That, perhaps, must inevitably happen where the conviction is recorded for the first time by a higher court.

80. Bhagwati, J. has observed in his judgment that care ought to be taken to ensure that the opportunity of a hearing on the question of sentence is nut abused and turned into an instrument for unduly protracting the proceedings. The material on which the accused proposes to rely may therefore, according to the learned Judge, be placed before the Court by means of an affidavit. Fazal Ali, J., also observes that the courts must be vigilant to exercise proper control over their proceedings, that the accused must not be permitted to adopt dilatory tactics under the cover of the new right and that what Section 235(2) contemplates is a short and simple opportunity to place the necessary material before the Court. These observations show that for a proper and effective implementation of the provision contained in Section 235(2), it is not always necessary to remand the matter to the court which has recorded the conviction. The fact that in Santa Singh this Court remanded the matter to the Sessions Court does not spell out the ratio of the judgment to be that in every such case there has to be a remand. Remand is an exception, not the rule, and ought therefore to be avoided as far as possible in the interests of expeditious, though fair, disposal of cases.”

57. Learned counsel for the appellants has further submitted that the import of Section 235 Cr.P.C. is not only to hear the submissions orally but also to afford opportunity to the prosecution and the defence to place the relevant material having bearing on the question of sentence.

58. Perusal of the record reveals that opportunity of hearing was given to the appellants and there is no violation of the provisions of law contained in Section 235 (2) Cr.P.C. It was held in Dagdu and others vs. State of Maharashtra – 1976 (4) SCC 190 that the Court, on convicting an accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence. This opportunity was given to the appellants and they were at liberty to put the argument on each and every point. Further the perusal of the impugned judgment shows that the accused-appellants were convicted on 21.04.1999 and were given sufficient opportunity of hearing on the point of sentence and a date was fixed after two days where on 23.04.1999 they were heard on the point of sentence and the learned court below finally passed an order by awarding the sentence for the charges levelled against the appellants.

59. Learned counsel for the appellants has submitted that the appellants were falsely implicated in this case but no evidence in defence has been produced to prove as to how the informant or the witnesses have inimical terms. The fact that the appellants were opposing another marriage in the village or family members of the witness Bitali had inimical terms has no relevancy in the present case because the deceased died within the house of the appellants in unnatural circumstances and in unnatural way within one and half years’ of marriage and soon before her death she was subjected to cruelty and harassment for non-fulfillment of demand of dowry for which the same had been communicated to her parental house and the minor sister of the deceased aged about 11 years who was residing with the deceased had seen the occurrence of pulling the deceased by slapping PW-2 Ruchi and just after that PW-2 found her sister dead by strangulation. The conduct of the appellants shows that all were instrumental in causing unnatural death of the deceased and they deserve to be punished appropriately. The statement of the appellants under Section 313 Cr.P.C. that all the family members of the appellants were outside the house at the time of incident is not reliable and cannot be trusted upon unless and until there are cogent and leading evidence to that effect. The plea of alibi does not find support on the principles as laid down in the following citations:-

I. Binay Kumar Singh v. State of Bihar – JT 1996 (10) SC 79

II. Gurpreet Singh v. State of Haryana – JT 2002 (7) SC 58

III. Shaikh Sattar v. State of Maharashtra – JT 2010 (9) SC 152

IV. Jitender Kumar v. State of Haryana – JT 2012 (5) SC 397

V. Subhash Chandra v. State of Rajasthan – (2002) 1 SCC 702

VI. Munshi Prasad v. State of Bihar – (2002) 1 SCC 351

VII. Harijana Narayana and others v. The State of Andhra Pradesh – (2003) 11 SCC 681

60. In light of above facts, the view taken by the learned trial court can not be held to be a view against the provisions of law or against the evidence on record. The contention of learned counsel for the appellants that the trial court failed to exercise proper adjudication and failed to prove the case beyond all reasonable doubt or there are major contradictions, has no relevancy at all . The appreciation of evidence by learned trial court is based on the statement of the witnesses with test of reasonability and actual occurrence. There is no infirmity, illegality or irregularity in the impugned order and thus no interference is required in the order dated 21.04.1999. The criminal appeal lacks merit and thus dismissed.

61. A copy of the order with lower court’s record be immediately sent to the learned Chief Judicial Magistrate, Sitapur, with direction that the accused-appellants be immediately taken into custody to serve out the sentence inflicted on them with submission of compliance report to the Registry of this Court within 30 days.

Order Date :- 22.8.2017

A. Katiyar

 

 

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