Rajoo Yadav vs State Of U.P. on 21 September, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Reserved

Case :- CRIMINAL APPEAL No. – 280 of 1997

Appellant :- Rajoo Yadav

Respondent :- State Of U.P.

Counsel for Appellant :- G.K. Singh,Manish Kumar Singh

Counsel for Respondent :- Govt. Advocate

Hon’ble Sheo Kumar Singh-I,J.

1. Instant criminal appeal has been filed against the judgment and order 30.04.1997 passed by 5th Additional District Sessions Judge, Unnao, in Sessions Trial No.155 of 1995 whereby and whereunder appellant Rajoo Yadav was found guilty under Sections 498-A, 304-B IPC and ¾ of the Dowry Prohibition Act and was sentenced as under:-

U/s 498-A IPC – 3 years’ rigorous imprisonment

U/s 304 B IPC – 10 years’ rigorous imprisonment

¾ D.P. Act – 1 year’s rigorous imprisonment

All the sentences were directed to run concurrently.

2. The brief facts giving rise to filing of the present appeal are that on 14.08.1994 in day time when the appellant Rajoo was outside the home, the deceased Sunita caught fire and on her screaming and making noise, the appellant and some of the neighbours came to rescue her. They saw that the door of the room was locked from inside and with the help of villagers it was broken up to bring the injured outside. Thereafter, the injured was taken to hospital by the accused/appellant Rajoo Yadav with the assistance of neighbours and got her admitted in the District Hospital Unnao for medical treatment. Appellant and his family members were busy in the treatment and just after some relief, a communication was sent to brother and mother of the injured through telegram since they were residing in Bombay. The mother of the injured Sunita reached immediately after receiving telegram and looked after the injured, her daughter. After 19 days of medical treatment, the injured died in the hospital on 02.09.1994 while she was under treatment. In the meantime, brother of the injured Sunita was also called from Bombay, who attended the injured and on 31.08.1994, a first information report was lodged in the Police Station Achalganj as Crime No.240 of 1994 under Sections 498-A, 307 IPC and ¾ of the Dowry Prohibition Act.

3. It is admitted case that the marriage took place in the year 1989 and the incident of fire occurred on 14.08.1994 at about 10.00 AM. It is also admitted case that injured was immediately hospitalized on the same day at about 03.00 PM and after receiving the information, the mother of the injured also reached there. The first information report was signed and handed over to the Police Station on 30.08.1994 but in the relevant column which contains the date of submitting to the police station is entered as 31.08.1994.

4. After lodging of the first information report, the Investigating Officer visited there and recorded the statement of the injured under Section 161 Cr.P.C. and again Naib Tehsildar visited the hospital and recorded the statement of the injured on 31.08.1994 but unfortunately the injured could not be saved and died on 02.09.1994. After that on the same first information report the Investigating Officer converted the offence under Section 304-B IPC and in addition to other Sections, submitted charge sheet before the Court.

5. During the investigation, the inquest report was prepared and the body was also sent for postmortem report and the statement of the witnesses were also recorded. Learned Chief Judicial Magistrate, after taking cognizance, committed the case to the Court of Sessions where accused/appellant was summoned and charges were levelled against him for which he pleaded not guilty and claimed for trial.

6. In order to prove the prosecution case, PW-1 Dev Kumar – the complainant, PW-2 Usha, PW-3 Dr. Arun Shah, PW-4 Leelawati – mother of the deceased, PW-5 Head Constable Data Ram, PW-6 Ram Naresh Dwivedi – first Investigating Officer, PW-7 Vinod Chandra Mishra and PW-8 Rajendra Singh Yadav – second Investigating Officer, were examined.

7. In the statement recorded under Section 313 Cr.P.C., the accused/appellant had submitted that it was an incident as the deceased was preparing tea at the time of incident and caught fire in the clothes while he was outside the room and when on alarm, he came there with other neighbours and found the room bolted from inside and after breaking the door, he tried his best with the aid of other family members or neighbours by pouring water on her to save her and immediately rushed to hospital and got the injured admitted there. Up to 14 days of treatment, she could not be saved and died. He had also submitted that he is a rickshaw puller and has a daughter and taking care of her daughter at present. Unfortunately due to certain reasons the first information report was lodged by the complainant under certain misunderstanding but there is nothing in the statement of the witnesses that there was any demand of dowry.

8. After hearing learned counsel for the parties learned trial court vide order impugned found guilty appellant and sentenced him, as above. Aggrieved by the order, this appeal has been filed on the following grounds:-

i. That the judgment and order passed by the Court below convicting and sentencing appellant cannot be sustained either on facts or on law.

ii. That the evidence on record of the Court below fully established. That deceased Sunita died on account of an accidental fire and not due to her been set on fire by the appellant as falsely alleged by the prosecution.

iii. That the alleged incident took place on 14.08.1994 while the FIR in the case was lodged on 30.08.1994, without their being any plausible explanation for the long delay in lodging the FIR which established with the prosecution alleged falsely implicating the appellant in the alleged incident to be an after thought.

iv. That the innocence of the appellant is fully established by the statement of the informant PW-1, Dev Kumar Yadav, could not denied the demand of dowry etc. from the appellant and did not support the prosecution case, which facts have not been properly considered by the trial court.

v. That the prosecution story is not supported rather falsified by PW-2 who is the only alleged eyewitness of the incident, which fact alone was sufficient for the acquittal of the appellant.

vi. That the innocence of the appellant is fully established from the facts that appellant took all necessary steps within his means to rush the injured took the hospital and yet her treated at hospital.

vii. That the infringe drawn against the appellant is wholly unjust and based on conjecture and surmises not supported by evidence.

viii. That the alleged dying declaration relied upon the prosecution has been established to be made under the influence of persons unfavourable to the appellant cannot be voluntarily and further it was established to be false on material points by other evidence on record.

ix. That the prosecution case is falsely coloured by the medical evidence by complete absence of mark of any physical injury or violence on the body of the deceased.

x. That the deceased was said to have received 95% burn injury on her body and therefore it is incredible and absolutely false that the deceased had made any proper and correct dying declaration.

xi. That the prosecution story is incredible and false.

8. I have heard Mr. Manish Kumar Singh, learned counsel for the appellant, Mrs. Zeba Islam Siddiqui, learned Additional Government Advocate for the State and perused the record.

10. It is admitted fact that the marriage between the parties took place in the year 1989 and the incident took place on 14.08.1994. It is also admitted fact that she was admitted to the hospital on the same day and the appellant or his family members immediately informed the complainant with regard to the facts, who rushed from Bombay to Unnao and took care of the injured while she was in hospital.

11. Learned counsel for the appellant has submitted that during whole period of more than four years while the deceased was residing with the appellant there was no complaint of any type of demand of dowry and also while she was admitted in the hospital and brother or mother of the deceased was with her, she never made any complaint that there was any demand of dowry or any type of harassment of the deceased. It has been narrated that after attending the patient in the hospital, her mother regularly pressurized the injured to make a statement with regard to demand of dowry and she never stated so but lastly her mother succeeded to convince the deceased and she made some statement which was recorded by the Investigating Officer on 31.08.1994. Learned counsel for the appellant has submitted that there is nothing in the statement of the deceased with regard to any type of demand of dowry and it has further been submitted that if Naib Tehsildar or Executive Magistrate was intimated to record the statement of the injured, there was no need to record the statement by the Investigating Officer. Further the statement recorded by the Investigating Officer is not the statement of the victim or it can never be treated as dying declaration.

12. Let me first examine the statement recorded by the Investigating Officer. Learned counsel for the appellant has firstly opposed the statement recorded by the Investigating Officer under Section 161 Cr.P.C. on the reasons that there is no date on the statement and secondly it is not statement of the victim coming within the purview of dying declaration. The last sentence says “the condition of Sunita is serious, she becomes silent for the reasons as above. The detailed inquiry could not be made”. For these reasons, learned counsel for the appellant has submitted that the Investigating Officer himself had narrated in this paper that the detailed inquiry or conversation was not made and the fact has not been narrated in the form of question and answer and it is simply a version of the Investigating Officer. In the total statement, there is nothing that accused appellant had ever stated for demand of dowry or tortured her for demand of dowry. The version as narrated by the Investigating Officer reveals that the injured had stated that the character of appellant Rajoo was not good and he used to misbehave with her and says to call the money from her house.

13. Second statement was recorded by Naib Tehsildar on 31.08.1994 by one Vinod Chandra Mishra at about 01.40 PM in the day. In the statement, she had submitted that the appellant had directed her to prepare the tea but tea was not in the house, thus, she could not prepare it. The appellant poured kerosene oil and he went outside of the room. The deceased closed the door from the inside and the appellant went away. In the meantime, when she saw outside from the window, her clothes caught fire and she made loud, a girl present there near the room also shouted and every one including her husband and Usha came there. Her husband with other persons immediately broken the door and poured water on her to save. From perusal of the total statement of the injured, which is taken as dying declaration, there is nothing in the statement which may reveal that at any point of time the accused/appellant had made any demand of dowry.

14. In light of above statement, let me examine the statement of other witnesses. The complainant, brother of the deceased, had lodged the first information report. He was examined as PW-1, who had narrated that Sunita was his sister and was married with appellant Rajoo. He had stated on oath before the Court during trial that Rajoo and his family members never made any demand during the course of marriage or after the marriage. After the marriage of Sunita, his father died. The demand of dowry was never made before this witness and further the deceased Sunita, his sister, never communicated him that Rajoo appellant had ever made any demand of dowry or had ever harassed her with regard to demand of dowry. He had further stated that she was admitted to the hospital due to burning and when the facts were communicated to his family then immediately his mother Leelawati rushed to hospital and remained with the injured. She was unable to talk anything and during the course of treatment she never communicated these facts to this witness. During cross examination this witness had also submitted that it is in his knowledge that character of accused/appellant was not good and due to this reason there was certain quarrel between husband and wife. It was further submitted that some villagers had instigated him to lodge the first information report and for that reason he lodged the first information report. During cross examination it has been clearly stated that that the demand of dowry was never raised before him or before his father or the deceased had never narrated with regard to demand of dowry or with regard to torture or harassment due to demand of dowry. It was also admitted by the complainant that the deceased was admitted and brought to the hospital by the accused/appellant Rajoo and the expenditure of the medical treatment was also born by the appellant. It is also admitted fact that cremation and all rituals were done by the accused/appellant Rajoo. One thing, which was the bone of contention between the parties, is that in the statement of PW-1 it was reported that the character of appellant was not good and he used to play gambling.

15. PW-2 Usha was examined before the trial court, who had stated on oath that she had not seen the occurrence but came to know that the appellant carried his wife to the hospital for treatment.

16. PW-3 Dr. Arun Shah was examined, who had stated on oath that on 02.09.1994, he was posted as Medical Officer and had conducted the postmortem of the deceased and found that whole body was burnt except the lower side of the stomach and lower side of leg. He had also stated that no ante-mortem injuries were found on the body of the deceased.

17. PW-4 Leelawati, the mother of the deceased, was examined, who had stated in the cross examination that her daughter was married with accused/appellant and on the day of incident, clothes caught fire and later on she was taken to the hospital by the appellant and she was informed and came to attend and see her daughter. During the treatment of the deceased, total expenditure was done by the appellant’s family but the condition of the deceased did not improve and after 4-5 days when his son came at Unnao, the first information report was lodged. She had also stated that the accused/appellant had never made any demand of motorcycle during the course of marriage or after that. She had also stated on oath that whenever the deceased returned back from her husband’s house, she never communicated anything with regard to demand of dowry or demand of motorcycle. She has no knowledge as to whether the appellant is rickshaw puller or used to sell milk. She had further stated on oath that the victim/deceased had never communicated through any letter with regard to demand of dowry, any motorcycle or harassment or ill treatment. The family members of the appellant had never made any complaint with regard to deceased or the deceased had ever made any complaint against the appellant or family members. After the death of the deceased, the cremation and all other rituals were performed by the appellant and three or four years’ daughter is also residing with the appellant.

18. PW-6 SI Ram Naresh Dwivedi was examined before the Court who had stated that initially the case was registered under Sections 307, 498-A IPC and ¾ of the Dowry Prohibition Act but later on after the death of the deceased, it was converted under Section 304 B IPC. He had recorded the statement of the victim while she was in the hospital. He had also stated that no communication had ever been given to him with regard to harassment or demand of dowry by the appellant.

19. PW-8 Rajendra Singh Yadav had investigated the case and had stated on oath that during the period when the deceased was hospitalized for medical treatment, the investigation was done by the Sub-Inspector and after death, he had completed the investigation. He had also submitted that he had not concluded as to whether the death was accidental or homicidal.

20. Now, coming to the facts of the case. Perusal of the statement of the witnesses shows that all were declared hostile including the complainant but after cross examination, the things, which are very much clear, are that there is no whisper about the demand of dowry. Let me examine the statement recorded by the Investigating Officer and the Naib Tehsildar while the deceased was admitted in the hospital and for which learned counsel for the State has argued it to be in the form of dying declaration.

21. Now, the question is relevancy of dying declaration. Dealing with the relevancy of dying declaration, Hon’ble the Apex Court in the case of Laxman v. State of Maharashtra reported in MANU/SC/0707/2002 has held as follows:-

“3. … A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a Rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.”

22. In Atbir v. Government of NCT of Delhi MANU/SC/0576/2010 : (2010) 9 SCC 1, the Court, after noting earlier judgments, has laid the following guidelines with regard to admissibility of the dying declaration:

22. The analysis of the above decisions clearly shows that:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute Rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The Rule requiring corroboration is merely a Rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

23. The dying declaration given by the deceased disclosing therein about the manner in which she got burn injuries could not be disbelieved. Specially when such dying declaration has been recorded in the presence of doctor, who certified the mental state and condition of deceased to give statement before and after recording the dying declaration by a Magistrate. It has been recorded by the independent person. The rejection of such dying declaration by the trial court on the ground that deceased died after 8 days and she was not in critical condition when dying declaration was recorded, is not proper. Moreover suppression of this material evidence, admittedly available with prosecution, creates serious doubt about the prosecution story and an adverse inference is bound to be drawn against the prosecution.

24. Learned counsel for the appellant relying upon the judgement of the Apex court in Kishan Lal Vs. State of Rajasthan, (2000) 1 SCC 310 , has submitted that the Supreme Court discussed the manner of appreciating evidence of dying declaration in the light of English law and Indian Law and held that in Indian law there is no legal necessity before accepting a dying declaration that it should be recorded when maker of it was in imminent danger of death or expecting his death.

25. On the contrary, learned counsel appearing for the State submitted that there is ample evidence on record to disbelieve the dying declaration recorded and relied upon the judgement of the Hon’ble Supreme Court reported in Sudhakar Vs. State of Maharastra,(2012) 7 SCC 569 and Devinder Alias Kala Ram and others Vs.State of Haryana, 2012)10 SCC763. It was further submitted that it is the privilege of the prosecution to adduce evidence in support of its case. Neither court nor accused could insist prosecution to produce the evidence which the prosecution does not want to adduce.

26. Before dealing with the aforesaid questions for consideration, this court must keep in mind the cautions which were reminded from time to time by the Apex Court in dealing with the criminal cases based on dying declaration.

27. It is settled principle of law that prosecution has to prove its case beyond all reasonable doubt while the defence has to prove its case on the touchstone of preponderance and probabilities as held in Sudhakar Vs. State of Maharastra,(2012) 7 SCC 569 .

28. Prosecution should not conceal the facts which were in its knowledge or collected during investigation that could materially effects the issue under consideration of the court to arrive at a truth. If prosecution concealed such fact an adverse inference should have been drawn under section 114 of Indian Evidence Act .

29. Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted, as held in Mohanlal Gangaram Gehani vs. State of Maharashtra ,AIR 1982 SC 839.

30. In Kishan Lal v. State of Rajasthan, (2000) 1 SCC 310, Apex Court has examined the principle of evaluation of dying declaration in para 18 at page 315 of the judgement:

“18. Now we proceed to examine the principle of evaluation of any dying declaration. There is a distinction between the evaluation of a dying declaration under the English law and that under the Indian law. Under the English law, credence and the relevancy of a dying declaration is only when a person making such a statement is in a hopeless condition and expecting an imminent death. So under the English law, for its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of this danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law, the admissibility rests on the principle that a sense of impending death produces in a man’s mind the same feeling as that conscientious and virtuous man under oath. The general principle on which this species of evidence are admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak only the truth. If evidence in a case reveals that the declarant has reached this state while making a declaration then within the sphere of the Indian law, while testing the credibility of such dying declaration weightage can be given of course depending on other relevant facts and circumstances of the case.”

31. In Chirra Shivraj v. State of A.P., (2010) 14 SCC 444, the Hon’ble Supreme Court expressed a caution that a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.

32. In Shudhakar v. State of M.P., (2012) 7 SCC 569 the Hon’ble Supreme Court dealing with the situation of multiple dying declaration has held at page 581 :

“21.Having referred to the law relating to dying declaration, now we may examine the issue that in cases involving multiple dying declarations made by the deceased, which of the various dying declarations should be believed by the court and what are the principles governing such This becomes important where the multiple dying declarations made by the deceased are either contradictory or are at variance with each other to a large extent. The test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the court in such matters.”

33. In Lakhan vs. State Of M.P.,(2010) 8 SCC 514 the Apex Court provided clarity, not only to the law of dying declarations, but also to the question as to which of the dying declarations has to be preferably relied upon by the court in deciding the question of guilt of the accused under the offence with which he is charged. The facts of that case were quite similar, if not identical to the facts of the present case. In that case also, the deceased was burnt by pouring kerosene oil and was brought to the hospital by the accused and his family members. The deceased had made two different dying declarations, which were mutually at variance. The Court held as under: (SCC pp. 518-19 , paras 9-10)

“9. The doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means ”a man will not meet his Maker with a lie in his mouth’. The doctrine of dying declaration is enshrined in Section 32 of the Evidence Act, 1872 (hereinafter called as ”the Evidence Act’) as an exception to the general rule contained in Section of the Evidence Act, which provides that oral evidence in all cases must be direct i.e. it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.

10. This Court has considered time and again the relevance/probative value of dying declarations recorded under different situations and also in cases where more than one dying declaration has been recorded. The law is that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. When a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Merely because a dying declaration does not contain the details of the occurrence, it cannot be rejected and in case there is merely a brief statement, it is more reliable for the reason that the shortness of the statement is itself a guarantee of its veracity. If the dying declaration suffers from some infirmity, it cannot alone form the basis of conviction. Where the prosecution version differs from the version given in the dying declaration, the said declaration cannot be acted upon.{Vide Khushal Rao v. State of Bombay, AIR1958 SC 22, Rasheed Beg v. State of M.P. (1974) 4 SCC 264, K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618, State of Maharashtra v. Krishnamurti Laxmipati Naidu,1980 Supp SCC455, Uka Ram v. State of Rajasthan,(2001) 5 SCC 254, Babulal v. State of M.P.,(2003) 12 SCC 490, Muthu Kutty v. State,(2005) 9 SCC 113 State of Rajasthan v. Wakteng,(2007) 14 SCC 550,and Sharda v. State of Rajasthan,(2010) 2 SCC 85.}”

34. In Nallam Veera Stayanandam v. Public Prosecutor, (2004) SCC 10 SCC 769, the Supreme Court, while declining to accept the findings of the trial court, held that the trial court had erred because in the case of multiple dying declarations, each dying declaration has to be considered independently on its own merit so as to appreciate its evidenciary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the court to consider each one of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs.

35. Tested on the anvil of the aforesaid authorities, this Court is of the view that there is no reason to disregard the dying declaration. The dying declaration has been certified by the doctor attending the patient that the person making the statement was in a fitness of mind. The law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition that he/she could not have made a dying declaration to a witness, there is no justification to disregard the same. Learned court below has not relied the dying declaration only on the basis that the prosecution had not produced this document before the court and it was placed before the court by the defence. It is settled proposition of law that the prosecution should place the facts before the court with all evidence, oral or documentary, and if it was not placed before the Court, it is the duty of the Court to summon that record and even if that was not summoned, the defence has every right to disclose this fact and produce in defence. The recording of dying declaration by the Tehsildar Magistrate on the fitness certification of the doctor is a public document recorded by a person authorized to record it and was sent to the authorities concerned in official duty.

36. The next aspect which is required to be addressed is whether Section 306 Indian Penal Code gets attracted. Submission of the learned Counsel for the Appellant is that even assuming the allegation is accepted to have been proved, it would not come within the ambit and scope of Section 306 Indian Penal Code as there is no abetment.

37. Section 306 Indian Penal Code reads as under:

Section 306. Abetment of suicide.–If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

38. The word ‘abetment’ has not been explained in Section 306 Indian Penal Code. In this context, the definition of abetment as provided Under Section 107 Indian Penal Code is pertinent. Secton 306 Indian Penal Code seeks to punish those who abet the commission of suicide of other. Whether the person has abetted the commission of suicide of another or not is to be gathered from facts and circumstances of each case and to be found out by continuous conduct of the accused, involving his mental element. Such a requirement can be perceived from the reading of Section 107 Indian Penal Code. Section 107 Indian Penal Code reads as under:

Section 107. Abetment of a thing.–A person abets the doing of a thing, who–

First. — Instigates any person to do that thing; or

Secondly. –Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly. — Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.–A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration– A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2.–Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

“Abetment”, thus, means certain amount of active suggestion or support to do the act.

39. Analysing the concept of “abetment” as found in Section 107 Indian Penal Code, a two-Judge Bench in Chitresh Kumar Chopra v. State (Government of NCT of Delhi) MANU/SC/1453/2009 : (2009) 16 SCC 605 has held:

13. As per the section, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 states that any wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may also come within the contours of “abetment”. It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence Under Section 306 Indian Penal Code.

Xxxxx

15. As per Clause Firstly in the said section, a person can be said to have abetted in doing of a thing, who “instigates” any person to do that thing. The word “instigate” is not defined in Indian Penal Code. The meaning of the said word was considered by this Court in Ramesh Kumar v. State of Chhattisgarh MANU/SC/0654/2001 : (2001) 9 SCC 618.

In the said authority, the learned Judges have referred to the pronouncement in Ramesh Kumar v. State of Chhattisgarh.

40. The word “instigate” literally means to goad, urge forward, provoke, incite or encourage to do an act. A person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in (express) words or may be by (implied) conduct.

41. The word “urge forwards” means to advise or try hard to persuade somebody to do something, to make a person to move more quickly in the particular direction, specially by pushing or forcing such person. Therefore, a person instigating another has to “goad” or “urge forward” the latter with the intention to provoke, incite or encourage the doing of an act with a latter. In order to prove abetment, it must be shown that the Accused kept on urging or annoying the deceased by words, taunts until the deceased reacted. A casual remark or something said in routine or usual conversation should not be construed or misunderstood as “abetment”.

42. Analysing further, in Randhir Singh and Anr. v. State of Punjab MANU/SC/0881/2004 : (2004) 13 SCC 129, the Court has observed thus:

12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence Under Section 306 Indian Penal Code.

[emphasis supplied]

43. In Praveen Pradhan v. State of Uttaranchal and Anr. MANU/SC/0812/2012 : (2012) 9 SCC 734, it has been ruled:

18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. …

[emphasis is ours]

44. In Amalendu Pal alias Jhantu v. State of West Bengal MANU/SC/1808/2009 : (2010) 1 SCC 707, the Court, after referring to the authorities in Randhir Singh (supra), Kishori Lal v. State of M.P. MANU/SC/7815/2007 : (2007) 10 SCC 797 and Kishangiri Mangalgiri Goswami v. State of Gujarat MANU/SC/0096/2009 : (2009) 4 SCC 52, has held:

12. Thus, this Court has consistently taken the view that before holding an Accused guilty of an offence Under Section 306 Indian Penal Code, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the Accused which led or compelled the person to commit suicide, conviction in terms of Section 306 Indian Penal Code is not sustainable.

45. A two-Judge Bench in Netai Dutta v. State of W.B. MANU/SC/0165/2005 : (2005) 2 SCC 659, while dwelling the concept of abetment Under Section 107 Indian Penal Code especially in the context of suicide note, observed:

6. In the suicide note, except referring to the name of the Appellant at two places, there is no reference of any act or incidence whereby the Appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the Appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag.

7. Apart from the suicide note, there is no allegation made by the complainant that the Appellant herein in any way was harassing his brother, Pranab Kumar Nag. The case registered against the Appellant is without any factual foundation. The contents of the alleged suicide note do not in any way make out the offence against the Appellant. The prosecution initiated against the Appellant would only result in sheer harassment to the Appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the first information report against the Appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the Appellant herein. We find that this is a fit case where the extraordinary power Under Section 482 of the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings initiated against the Appellant and accordingly allow the appeal.

46. At this juncture, I think it appropriate to reproduce two paragraphs from Chitresh Kumar Chopra (supra). They are:

16. Speaking for the three-Judge Bench in Ramesh Kumar case (supra), R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of “instigation”, though it is not necessary that actual words must be used to that effect or what constitutes “instigation” must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the Accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an “instigation” may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.

Xxxxx

19. As observed in Ramesh Kumar (supra), where the Accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an “instigation” may be inferred. In other words, in order to prove that the Accused abetted commission of suicide by a person, it has to be established that:

(i) the Accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and

(ii) that the Accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

This Court again observed:

20. … The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual’s suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual’s vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self.

47. Section 32 of the Evidence Act is admittedly an exception to the general rule of exclusion to the hearsay evidence and the statements of a person, written or verbal, of relevant facts, after his death are admissible in evidence if they refer to the cause of his death or to any circumstances of the transaction which resulted in his death. To attract the provisions of Section 32, for the purposes of admissibility of the statement of a deceased the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in Sub-sections (1) to (8) of Section 32 of the Act. Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The words “as to any of the circumstances of the transaction which resulted in his death” appearing in Section 32 must have some proximate relations to the actual occurrence. In other words the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. The phrase “circumstances of the transaction” were considered and explained in Pakala Naraycma Swami v. Emperor MANU/PR/0001/1939:

The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular persons, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. “Circumstances of the transaction” is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than “registered”. Circumstances must have some proximate relation to the actual occurrence; though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that “the circumstances” are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that “the cause of (the declarant’s) death comes into question.

48. The death referred to in Section 32(1) of the Evidence Act includes suicidal besides homicidal death. Fazal AH, J. in Sharad Birdhichand Sarda v. State of Maharashtra MANU/SC/0111/1984 : 1984CriLJ1738 after referring to the decisions of this Court in Hanumant v. State of Madhya Pradesh MANU/SC/0037/1952 : 1953CriLJ129 , Dhararnbir Singh v. State of Punjab [Criminal Appeal No. 98 of 1958, decided on November 4, 1958], Ratan Gond v. State of Bihar MANU/SC/0054/1958 : 1959CriLJ108 , Pakala Narayana Swami (supra), Shiv Kumar v. State of Uttar Pradesh [Criminal Appeal No. 55 of 1966, decided on July 29, 1966], Mannohar Lai v. State of Punjab 1981 Crl. LJ 1373 (PH).

49. In Onkar v. State of Madhya Pradesh 1974 Crl. LJ 1200 while following the decision of the Privy Council in Pakala Narayana Swami case, the Madhya Pradesh High Court has explained the nature of the circumstances contemplated by Section 32 of the Evidence Act thus:

The circumstances must have some proximate relation to the actual occurrence and they can only include the acts done when and where the death was caused…. Thus a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime.

50. In Allijan Munshi v. State MANU/MH/0095/1960:(1959)61BOMLR1620 the Bombay High Curt has taken a similar view.

51. In Chinnavalayan v. State of Madras 1959 Mad LJ 246 two eminent Judges of the Madras High Court while dealing with the connotation of the word ‘circumstances’ observed thus:

The special circumstances permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstances permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. This is because the natural meaning of the words, according to their Lordships, do not convey any of the limitations such as (I) that the statement must be made after the transaction has taken place, (2) that the person making it must be at any rate near death, (3) that the circumstances can only include acts done when and where the death was caused. But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence.

Before closing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English Law where only the statements which directly relate to the cause of death are admissible. The second part of Clause (1) of Section 32, viz., “the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question” is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v. State MANU/PH/0137/1960 where the following observations were made;

Clause (1) of Section 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead…are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person’s death comes into question…. It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under Expectation of death.

In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death.

Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:

(1) Section 32 is an exception of the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.

(3) The second part of Clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.

52. In Ratan Singh v. State of Himachal Pradesh MANU/SC/0177/1997 : 1997CriLJ833 this Court held that the expression “circumstances of transaction which resulted in his death” mean that there need not necessarily be a direct nexus between the circumstances and death. Even distant circumstance can become admissible if it has nexus with the transaction which resulted in death. Relying upon Sharad Birdhichand Sarda’s case (supra) the Court held that:

It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death.

53. The offence of “dowry death” was incorporated in the Indian Penal Code and corresponding amendment made in the Evidence Act by way of insertion of Section 113B vide Act No. 43 of 1986. In fact the Dowry Prohibition Act, 1961 being Act No. 28 of 1961 was enacted on 20th May, 1961 with an object to prohibit to giving or taking the dowry. The insertion of Section 304B of the Indian Penal Code and Section 113B in the Evidence Act besides other circumstances was also referable to the 91st Report dated 10th August, 1983 of the Law Commission. In the Statement of Objects and Reasons to Act No. 28 of 1961 it was stated:

The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time enures that any dowry, if given does enure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament, Hence, the present Bill.

Realising the ever increasing and disturbing proportions of the evil of dowry system, the Act was again amended by Act No. 63 of 1984 taking note of the observations of the Committee on Status of Women in India and with a view to making of thorough and compulsory investigations into cases of dowry deaths and stepping up anti-dowry publicity, the Government referred the whole matter for consideration by a Joint Committee of both the Houses of Parliament. The Committee went into the whole matter in great depth in its proceedings and after noting the observations of Pt. Jawaharlal Nehru, recommended to examine the working of Act No. 28 of 1961 and after considering the comments received on the Report from the State Governments, Union Territories, Administrations and different administrative Ministries of the Union concerned with the matter, decided to modify the original definition of “dowry” with consequential amendment in the Act. Again finding that the Dowry Prohibition Act, 1961 has not been so deterrent, as it was expected to be, the Parliament made amendments in the Act vide Act No. 43 of 1986. In the Statement of Objects and Reasons of the said Act it was stated:

The Dowry Prohibition Act, 1961 was recently amended by the Dowry Prohibition (Amendment) Act 1984 to give effect to certain recommendations of the Joint Committee of the House of Parliament to examine the question of the working of the Dowry Prohibition Act, 1961 and to make the provisions of the Act more stringent and effective. Although the Dowry Prohibition (Amendment) Act, 1984 was an improvement on the existing legislation, opinions have been expressed by representatives from women’s voluntary organisations and others to the effect that the amendments made are still inadequate and the Act needs to be further amended.

2. It is, therefore, proposed to further amend the Dowry Prohibition Act, 1961 to make provisions therein further stringent and effective. The salient features of the Bill are:

(a) The minimum punishment for taking or abetting the taking of dowry under Section 3 of the Act has been raised to five years and a fine of rupees fifteen thousand.

(b) The burden of proving that there was no demand for dowry will be on the person who takes or abets the taking of dowry.

(c) The statement made by the person aggrieved by the offence shall not subject him to prosecution under the Act.

(d) Any advertisement in any newspaper, periodical journal or any other media by any person offering any share in his property or any money in consideration of the marriage of his son or daughter is proposed to be banned and the person giving such advertisement and the printer or publisher of such advertisement will be liable for punishment with imprisonment of six months to five years or with fine up to fifteen thousand rupees.

(e) Offences under the Act are proposed to be made non-bailable.

(f) Provisions has also been made for appointment of Dowry Prohibition Officers by the State Governments for the effective implementation of the Act. The Dowry Prohibition Officers will be assisted by the Advisory Boards consisting of not more than five social welfare workers (out of whom at least two shall be women).

(g) A new offence of “dowry death” is proposed to be included in the Indian Penal Code and the necessary consequential amendments in the CrPC, 1973 and in the Indian Evidence Act, 182 have also been proposed.

3. The Bill seeks to achieve the aforesaid objects.

54. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:

(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 years of her marriage;

(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected to soon before her death.

55. As and when the aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under Section 113B of the Evidence Act. It has to be kept in mind that presumption under Section 113B is a presumption of law. We do not agree with the submissions made by Mr. Lalit, learned Senior Counsel for the accused that the statement made by the deceased to her relations before her death were riot admissible in evidence on account of intervening period between the date of making the statement and her death.

56. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. “Soon before” is a relative term which is required to be considered under specific circumstances of each case and no straight jacket formula can be laid down by fixing any time limit. This expression is pregnant with the idea of proximity test. The term “soon before” is not synonymous with the term “immediately before” and is opposite of the expression “soon after” as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long before the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances sowing the existence of cruelty or harassment to the deceased are not restricted to a particular instance 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 for dowry is shown to have persisted, it shall be deemed to be soon before death’ if any other intervening circumstance showing the non existence of such treatment is not brought on record, before the alleged such treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.

57. No presumption under Section 113B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty, and harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman. The reliance placed by the learned Counsel for the respondents on Sham Lai v. State of Haryana 1997(9) SCC 579 is of no help to them, as in that case the evidence was brought on record to show that attempt had been made to patch up between the two sides for which Panchayat was held in which it was resolved that the deceased would go back to the nuptial home pursuant to which she was taken by the husband to his house. Such a Panchayat was shown to have held about 10 to 15 days prior to the occurrence of the case. There was nothing on record to show that the deceased was either treated with cruelty or harassed with the demand of dowry during the period between her having taken to the nuptial home and her tragic end.

58. Learned counsel for the appellant has placed reliance on the case of Dandu Lakshmi Reddi v. State of A.P. reported in 1999 SCC (Crl.) 1176, where it was held as follows:-

“1. On the fact situation of a case such as this, a judicial mind would tend to wobble between two equally plausible hypotheses-was it suicide, or was it homicide? If the dying declaration projected by the prosecution gets credence the alternative hypothesis of suicide can be eliminated justifiably. For that purpose a scrutiny of the dying declaration with meticulous circumspection is called for. It must be saved through the judicial calendar and if it passes through gauzes it can be made the basis of a conviction, otherwise not.

2. The traditional assumption that a dying person would not stoop to speak falsehood is now sought to be played down by the counsel for the appellant on the premise that it is a pedantic notion as the said assumption is fraught with the danger of insulating even a vengeful statement made by a dying person. Learned Counsel submitted that at any rate the dying declaration projected by the prosecution in this case would not stand the test of credibility.

3. There can be a presumption that testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross-examination, inter alia, for rebutting the presumption. But a dying declaration is not a deposition in court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross-examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth.

4. In Tapinder Singh v. State of Punjab MANU/SC/0203/1970 : 1970 CriLJ1415 this Court, by following an earlier decision in Kushal Rao v. State of Bombay [1958] SCR 582 has reminded the courts that a dying declaration should be subjected to very close scrutiny. Following observations were also made by this Court:

The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under Section 32(1) of the Indian Evidence Act in a case in which the cause of that person’s death comes into question. It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, imposing on it an obligation to closely scrutinise all the relevant attendant circumstances.”

59. The noticeable discrepancies between two statements made by the same person which is taken as dying declaration relating to the very occasion of the crime may be considered as (1) one was wrong, and (2) other was wrong. Both could be reconciled with each other only with much strain as it relates to the opportunity to cross examine the relevancy of other witnesses.

60. Learned counsel for the appellant has stated that the statements, after the period when the mother attended the deceased at hospital and after brain washing her and regular insistence, were given. It is simply a statement recorded under Section 161 Cr.P.c. and if tested on the permissibility of acceptance, it will be unsafe to convict any person on the strength of such a fragile and rickety dying declaration.

61. Section 162 of the Cr.P.C interdicts the use of any statement recorded under Section 161 of the Code except for the limited purpose of contradicting the witness examined in the trial to whom such statement is attributed. Of course, the Court has said in Raghunandan v. State of U.P. MANU/SC/0187/1974: 1974CriLJ453 that power of the court to put questions to the witness as envisaged in Section 165 of the Evidence Act would be untrammeled by the interdict contained in Section 162 of the Code. The following observations in the aforesaid decision, in recognition of the aforesaid power of the court, would be useful in this context:

We are inclined to accept the argument of the appellant that the language of Section 162 Criminal Procedure Code, though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice…. Therefore, we hold that Section 162 Criminal Procedure Code does not impair the special powers of the Court under Section 165 Indian Evidence Act.”

62. It must now be remembered that the said procedure can be followed only when a witness is in the box. Barring the above two modes, a statement recorded under Section 161 of the Code can only remain fastened up at all stages of the trial in respect of that offence. In other words, if the court has not put any question to the witness with reference to his statement recorded under Section 161 of the Code, it is impermissible for the court to use that statement later even for drawing any adverse impression regarding the evidence of that witness. What is interdicted by the Parliament in direct terms cannot be obviated in any indirect manner.

63. He also placed reliance on the case of State of Maharashtra v. Sanjay reported in 2005 SCC (Crl.) 231, where it was held as follows:-

“16. True, the story of suicide set up by the accused as DW1 also appears to be incredible. If she had opened the petrol can and started sprinkling petrol on herself, it would have immediately attracted the attention of the accused and he would have stopped the scooter and thwarted her attempt.

17. Thus, the version of homicide set up by the prosecution as well as the version of suicide set up by the accused appear to be highly improbable and do not inspire confidence in the mind of the Court to believe either version. In this state of things, when two incredible versions confront the Court, the Court has to give benefit of doubt to the accused and it is not safe to sustain the conviction. The contradictions in the two dying declarations coupled with the high degree of improbability of the manner of occurrence as depicted by the prosecution case leaves the Court with no option but to attach little weight to these dying declarations. It is not the plurality of the dying declarations that adds weight to the prosecution case, but their qualitative worth is what matters. It has been repeatedly pointed out that the dying declaration should be of such nature as to inspire full confidence of the Court in its truthfulness and correctness (vide the observations of Five Judge Bench in Laxman v. State of Maharashtra MANU/SC/0707/2002: 2002CriLJ4095 ) . Inasmuch as the correctness of dying declaration cannot be tested by cross-examination of its maker, “great caution must be exercised in considering the weight to be given to this species of evidence”. When there is more than one dying declaration genuinely recorded, they must be tested on the touchstone of consistency and probabilities. They must also be tested in the light of other evidence on record. Adopting such approach, we are unable to place implicit reliance on the dying declarations, especially when the High Court felt it unsafe to act on them. This is apart from the question whether the deceased who became unconscious at the spot (as recorded in Ext.37) with 95% burns and who was found to be in disoriented condition two hours later, was in a fit condition to talk to the doctor at the time of her admission to the hospital. We refrain from going into this aspect.”

64. In Lallubhai Devechand Shah and Ors. v. State of Gujarat AIR 1976 S.C. 1776 dealing with a dying declaration this Court laid down:

“The law with regard to dying declarations is very clear. A dying declaration must be closely scrutinised as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case, bearing in mind on the one hand, that the statement is by a person who has not been examined in Court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent person falsely.”

Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner.

65. In the instant case, the occurrence took place on 10.00 AM and she was immediately hospitalized and her mother attended the hospital after three days but she did not disclose earlier to anyone like nurses, doctors and even to the mother or brother that her husband sprinkled kerosene oil on her and set her on fire. She met so many peoples after the occurrence but did not disclose the story to anyone and there is no evidence of the doctor on record that the injured was not in a position to speak or that she had become unconscious between these days. Thus, there is a doubt on the dying declaration made by the deceased and even if the statement is taken as accepted, there is no whisper that there was any demand of dowry. It is not outside the realm of probability that her statement may have been inspired by her mother and brother, therefore, it will not be safe to base the conviction on the basis of this statement.

66. Learned counsel for the appellant has also relied upon the case of Kamla (Smt.) v. State of Punjab reported in (1993) 1 SCC 1, where it was held as under:-

“It is well-settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests, (vide Khushal Rao v. The State of Bombay MANU/SC/0107/1957 : 1958CriLJ106 . The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.”

67. Learned counsel for the appellant has submitted that when all the witnesses were declared hostile and even the mother and brother of the deceased say that there was no demand of dowry and even in the statement of the deceased there is certain altercation with regard to preparation of tea or the character of the appellant has been challenged, no presumption can be raised as provided under Section 113 B of the Indian Evidence Act to prove the defence by the appellant. It is further submitted that onus lies on the prosecution to prove the case beyond all reasonable doubts.

68. The nature and extent of the burden that the accused has to discharge under Section 105 of the Evidence Act has been one of questions of great general importance and for considerable time the opinions of the Courts were not uniform. As a matter of fact, in Partap v. State of U.P. MANU/SC/0181/1975 : [1976]1SCR757 , this Court noted “that the question of law that arises here seems to have troubled several High Courts.

69. The phrase “burden of proof” is not defined in the Act. In respect of criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. Section 105 of the Evidence Act is in the following terms:

“When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.”

The Section to some extent places the onus of proving any exception in a penal statute on the accused. The burden of proving the existence of circumstances bringing the case within the exceptions mentioned therein is upon him. The Section further lays down that the Court shall presume non-existence of circumstances bringing the case within an exception.” The words “the burden of proving the existence of circumstances” occurring in the Section are very significant. It is well settled that “this burden” which rests on the accused does not absolve the prosecution from discharging its initial burden of establishing the case beyond all reasonable doubts. It is also wellsettled that the accused need not set up a specific plea of his offence and adduce evidence. That being so the question is: what is the nature of burden that lies on the accused under Section 105 if benefit of the general exception of private defence is claimed and how it can be discharged? In Woolmington v. The Director of Public Prosecutions [1935] AC 462, Viscount Sankey, L.C. observed:

“When evidence of death and malice has been given (this is a question for the jury), the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of all, the evidence are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.”

70. Section 105 requires that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions or special exception or proviso contained in any part of the Penal Code is on him and the Court shall presume the absence of such circumstances. This presumption is rebuttable. In Parbhoo and Ors. v. Emperor MANU/UP/0062/1941 : AIR1941All402 , a Full Bench of seven Judges considered the scope of Sections 102 and 105 of the Evidence Act. The majority agreed with the view taken by the Full Bench in Dampala’s case. In Parbhoo’s case Bajpai, J. in his concurring judgment observed that Section 105 is stated in two forms, that of a rule as to the burden of proof and that of a presumption and that the burden of proving the guilt of the accused always rests on the prosecution and never shifts and the learned Judge further held that the doubt cast in connection with the right of private defence must be a reasonable doubt and if there is such a reasonable doubt, it casts a doubt on the entire case of the prosecution and that the result is that the accused gets a benefit of doubt. “The presumption laid down in Section 105 of the Evidence Act might come into play but it does not follow therefrom that the accused must be convicted even when the reasonable doubt under the plea of the right of private defence or under any other plea contained in the general or special exceptions pervades the whole case.” In Dampala’s case Dunkley, J. while concurring with the majority view after discussing the law on the subject observed:

“The conclusion therefore is that if the Court either is satisfied from the examination of the accused and the evidence adduced by him, or from the circumstances appearing from the prosecution evidence, that the existence of circumstances bringing the case within the exception or exceptions pleaded has been proved, or upon a review of all the evidence is left in reasonable doubt whether such circumstances had existed or not, the accused in the case of a general exception is entitled to be acquitted, or, in the case of a special exception, can be convicted of a minor offence.”

71. In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat MANU/SC/0068/1964 : 1964CriLJ472 it is observed:

It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Penal Code. The general burden never shifts and it always rests on the prosecution. But, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the exception lies on the accused; and the Court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of “shall presume” in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the Court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a “prudent man”. If the material placed before the Court such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfied the test of “prudent man”, the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the Judge whether the accused had the requisite intention laid down in Section 299 of the Penal Code.”

A careful reading of these two decisions would reveal that the statement of law therein neither expressly or impliedly overrules or is in conflict with the majority view in Parbhoo’s case. However, in Rishi Kesh Singh and Ors. v. The State MANU/UP/0008/1970 : AIR1970All51 , the question that came up for consideration before a Larger Bench consisting of nine Judges was whether the dictum in Parbhoo’s case is still a good law on the ground that some of the decisions of the Supreme Court have cast a cloud of doubt. A majority of seven Judges approved the principle laid down in Parbhoo’s case. The Larger Bench also referred to various subsequent decisions of the Supreme Court also including the Nanavati’s case; Bhikari v. State of Uttar Pradesh MANU/SC/0073/1965 : 1966CriLJ63 and Dahyabhai’s case, Beg, J., as he then was, in a separate but concurring judgment after referring to the Nanavati’s case; Bhikari’s case; Dahyabhai’s case and Mohar Rai Bharath Rai’s case, held that there is no conflict between what was held by the Supreme Court and the majority view taken in Parbhoo’s case. After analysing the view expressed by the Supreme Court in the several above mentioned decisions, Beg, J. observed:

“After a close scrutiny of every part of each of the seven opinions in Parbhoo’s case MANU/UP/0062/1941 : AIR1941All402 . I have come to the conclusion that the majority of their Lordships did not lay down anything beyond three important propositions which, if not either directly or indirectly supported by decisions of their Lordships of the Supreme Court have not been affected in the slightest degree by these decisions. These propositions are; firstly, that no evidence appearing in the case to support the exception pleaded by the accused can be excluded altogether from consideration on the ground that the accused has not proved his plea fully; secondly, that the obligatory presumption at the end of Section 105 is necessarily lifted at least when there is enough evidence on record to justify giving the benefit of doubt to the accused on the question whether he is guilty of the offence with which he is charged; and, thirdly, if the doubt, though raised due to evidence in support of the exception pleaded, is reasonable and affects an ingredient of the offence with which the accused is charged, the accused would be entitled to an acquittal. As I read the answer of the majority in Parbhoo’s case MANU/UP/0062/1941 : AIR1941All402 . I find it based on these three propositions which provide the ratio decidendi and this is all that needs to be clarified.”

“The practical result of the three propositions stated above is that an accused’s plea or an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully. These stages are; firstly, a lifting of the initial obligatory presumption given at the end of Section 105 of the Act; secondly the creation of a reasonable doubt about the existence of an ingredient of the offence; and thirdly, a complete proof of the exception by “a preponderance of probability”, which covers even a slight tilt of the balance of probability in favour of the accused’s plea. The accused is not entitled to an acquittal if his plea does not get beyond the first stage. At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage, he is undoubtedly entitled to an acquittal. This, in my opinion, is the effect of the majority view in Parbhoo’s case which directly relates to first two stages only. The Supreme Court decisions have considered the last two stages so far, but the first stage has not yet been dealt with directly or separately there in any case brought to our notice.”

72. At this stage it becomes necessary to consider the meaning of the words “the Court shall presume the absence of such circumstances” occurring in Section 105 of the Evidence Act. Section 4 of the Act explains the meaning of the term “shall presume” as to mean that the Court shall regard the fact as proved unless and until it is disproved. From a combined reading of these two Sections it may be inferred that where the existence of circumstances bringing the case within the exception is pleaded or is raised the Court shall presume the absence of such circumstances as proved unless and until it is disproved. In Section 3 of the Act meaning of the terms “proved”, “disproved” and “not proved” are given. As per this provision, a fact is said to be “proved” when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be “disproved” when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be “not proved” when it is neither “proved” nor “disproved.

73. The first part of Section 105 as noted above lays down that when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the exceptions or proviso is on him and the latter part of it lays down that the Court shall presume the absence of such circumstances. In a given case the accused may discharge the burden by expressly proving the existence of such circumstances, thereby he is able to disprove the absence of circumstances also. But where he is unable to discharge the burden by expressly proving the existence of such circumstances or he is unable to disprove the absence of such circumstances, then the case would fall in the category of “not proved” and the Court may presume the absence of such circumstances. In this background we have to examine the meaning of the words “the Court shall presume the absence of such circumstances” bearing in mind the general principle of criminal jurisprudence that the prosecution has to prove its case beyond all reasonable doubt and the benefit of every reasonable doubt should go to the accused.

74. It will be useful to refer to some of the passages from the text books of outstanding authors on evidence and then proceed to consider the ratio laid down by the Supreme Court cases on this aspect. In Phipson on Evidence, 13th edn. page 44, a passage reads as follows:

“The burden is upon the prosecution of proving a defendant’s guilt beyond reasonable doubt before he is convicted. Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes. If on the whole case the jury have such a doubt the defendant is entitled to be acquitted.”

Another passage reads as follows:

“In criminal cases the prosecution discharge their evidential burden by adducing sufficient evidence to raise a prima facie case against the accused. If no evidence is called for the defence the tribunal of fact must decide whether the prosecution has succeeded in discharging its persuasive burden by proving its case beyond a reasonable doubt. In the absence of any defence evidence, the chances that the prosecution has so succeeded are greater. Hence the accused may be said to be under an evidential burden if the prosecution has established a prima facie case. Discharge of the evidential burden by defence is not a pre-requisite to an acquittal. The accused is entitled to be acquitted if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner…. No matter what the charge…the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

X X X

In many cases, however, the accused’s defence will involve introducing new issues, for example, automatism, provocation, self-defence, duress, etc. Once there is any evidence to support such “explanations” the onus of disproving them rests upon the prosecution. The accused, either by cross-examination of the prosecution witnesses or by evidence called on his behalf or by a combination of the two, must place before the court such material as makes the defence a live issue fit and proper to be left to the jury. But once he has succeeded in doing this and thereby discharged his evidential burden it is then for the Crown to destroy that defence in such a manner as to leave in the jury’s minds no reasonable doubt that the accused cannot be absolved on the grounds of the alleged facts constituting the defence.”

Dealing with the presumptions of law, the author has noted on page 60, thus:

“Generally in criminal cases (unless otherwise directed by statute and subject to 4-15 ante) the presumption of innocence casts on the prosecutor the burden of proving every ingredient of the offence, even though negative averments be involved therein. Thus, in cases of murder, the burden of proving death as a result of a voluntary act of the accused and malice on his part is on the prosecution. On charges of rape, etc. the burden of proving non-consent by the prosecutrix is on the prosecution and in bigamy, that of proving the defendant’s knowledge that his or her spouse was alive within the seven years last past.”

Wigmore on evidence, dealing with the “Legal Effect of a presumption” (3rd ed., Vol. IX p. 289) explains:

“It must be kept in mind that the peculiar effect of a presumption ‘of law’ (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion ‘in the absence of evidence to the contrary’ from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the Judge’s requirement of some evidence), the presumption disappears as a rule of law.”

Taylor in his ‘Treatise on the Law of Evidence’ (12th Edn. Vol. 1 page 259) points out:

“On the two fold ground that a prosecutor must prove every fact necessary to substantiate his charge against a prisoner, and that the law will presume innocence in the absence of convincing evidence to the contrary, the burden of proof, unless shifted by legislative interference, will fall in criminal proceedings on the prosecuting party, though, to convict, he must necessarily have recourse to negative evidence. Thus, if a statute, in the direct description of an offence, and not by way of proviso (a), contain negative p matter, the indictment or information must also contain a negative allegation, which must in general be supported by prime facie evidence”

Dealing with the presumptions, the author says:

“The proper direction as to onus of proof where prima facie evidence has been given on the part of the prosecution which, if unanswered, would raise a presumption upon which the jury might be justified in finding a verdict of guilty, and the defendant has called evidence to rebut that presumption, is that if they accepted the explanation given by and on behalf of the prisoner, or if that explanation raised in their minds a reasonable doubt as to his guilt, they should acquit him, as the onus of proof that he was guilty still lay upon the prosecution. If upon the whole evidence the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them.”

It is held in Nanavati’s case that under Section 105 of the act the Court shall presume the absence of circumstances bringing the case within any of the exceptions, i.e. the Court shall regard the non-existence of such circumstances as proved till they are disproved, but this presumption can be rebutted by the accused by introducing evidence to support his plea of accident in the circumstances mentioned therein. This presumption may also be rebutted by admissions made or circumstances elicited from the evidence led by the prosecution or by the combined effect of such circumstances and the evidence adduced by the accused. Dealing with the ingredients of the offence to be proved by the prosecution and the burden to be discharged under Section 105 of the Evidence Act by the accused and a reasonable doubt that may arise on the basis of such rebuttal evidence by the accused, it is observed:

An illustration may bring out the meaning. The prosecution has to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of Section 300 of the Indian Penal Code; the prosecution has to prove the ingredients of murder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the deceased by accident without any intention or knowledge in the doing of a lawful act in a lawful manner by lawful means with proper care and caution, the accused against whom a presumption is drawn under Section 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in Section 80 of the Indian Penal Code, may adduce evidence to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of Section 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence , i.e. it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of Section 300 Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder. In that event, though the accused failed to bring his case within the terms of Section 80 of the Indian Penal Code, the Court may hold that the ingredients of the, offence have not been established or that the prosecution has not made out the case against the accused. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The failure on the part of the accused to establish all the circumstances bringing his case under the exception does not absolve the prosecution to prove the ingredients of the offence; indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence.”

In Dahyabhai’s case as already noted, the relevant portion reads thus:

“The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Penal Code.”

75. The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. Section 105 places burden of proof on the accused in the first part and in the second part we find a presumption which the Court can draw regarding the absence of the circumstances which presumption is always rebuttable. Therefore, taking the Section as a whole the ‘burden of proof and the presumption have to be considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact conclusively then no difficulty arises. But where the accused introduces material to displace the presumption which may affect the prosecution case or create a reasonable doubt about the existence of one or other ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case beyond reasonable doubt. The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised. More so when there are circumstances on the record (gathered from the prosecution evidence, chief and cross examinations, probabilities and circumstances, if any, introduced by the accused, either by adducing evidence or otherwise) creating a reasonable doubt about the existence of the ingredients of the offence. In case of such a reasonable doubt, the Court has to give the benefit of the same to the accused. The accused may also show on the basis of the material a preponderance of probability in favour of his plea. If there are absolutely no circumstances at all in favour of the existence of such an exception then the rest of the enquiry does not arise inspite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part under Section 105 gets discharged and he would be entitled to an acquittal.

76. From what has been discussed above it emerges that the presumption regarding the absence of existence of circumstances regarding the exception can be rebutted by the accused by introducing evidence in any one of the manners mentioned above. If from such a rebuttal, a reasonable doubt arises regarding his guilt, the accused should get the benefit of the same. Such a reasonable doubt consequently negatives one or more of the ingredients of the offence charged, for instance, from such a rebuttal evidence, a reasonable doubt arises about the right of private defence then it follows that the prosecution has not established the necessary ingredients of intention to commit the offence. In that way the benefit of a reasonable doubt which arises from the legal and factual considerations even under Section 105 of the Evidence Act should necessarily go to the accused.

77. It can be argued that the concept of ‘reasonable doubt’ is vague in nature and the standard of ‘burden of proof contemplated under Section 105 should be somewhat specific, therefore, it is difficult to reconcile both. But the general principles of criminal jurisprudence, namely, that the prosecution has to prove its case beyond reasonable doubt and that the accused is entitled to the benefit of a reasonable doubt, are to be borne in mind. The ‘reasonable doubt’ is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words “proved”, “disproved” and “not proved” lays down the standard of proof, namely, about the existence or non-existence of the circumstances from the point of view of a prudent man. The Section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, “believe it to exist” and secondly in which though he may not feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The Act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the Court believes that it does not exist or considers its non-existence so probable in the view of a prudent man and now we come to the third stage where in the view of a prudent man the fact is not proved i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by ‘a prudent man.

78. There is a difference between a flimsy or fantastic plea which is to be rejected altogether. But a reasonable though incompletely proved plea which casts a genuine doubt on the prosecution version indirectly succeeds. The doubt which the law contemplates is certainly not that of a weak or unduly vacillating, capricious, indolent, drowsy or confused mind. It must be the doubt of the prudent man who is assumed to possess the capacity to “separate the chaff from the grain”. It is the doubt of a reasonable, astute and alert mind arrived at after due application of mind to every relevant circumstances of the case appearing from the evidence. It is not a doubt which occurs to a wavering mind.

79. Lord Denning, J. in Miller v. Minister of Pensions [1947] 2 All ER 373 while examining the degree of proof required in criminal cases stated:

That degree is well-settled. It need not reach certainty but it must reach a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course, it is possible but not in the least probable”, the case is proved beyond reasonable doubt.”

Regarding the concept of benefit of reasonable doubt Lord Du Paraq, J. in another context observed thus:

“All that the principle enjoins is a reasonable scepticism, not an obdurate persistence in disbelief. It does not demand from the Judge a resolute and impenetrable incredulity. He is never required to close his mind to the truth.”

80. Now, let us examine the types of cases to which these principle underlined under Section 105 can be applied and to what extent? The Section deals with the burden of proof in respect of the general exceptions, special exceptions and proviso contained m the Penal Code or in any part of the same code, or in any law defining the offence. It is already noted that the doctrine of burden of proof has to be the general law and the same remains always upon the prosecution. However, in respect of the cases where the statute wholly places the burden of proof on the accused himself, then the burden is more onerous on him. As already noted in Rishi Kesh Singh’s case Mathur, J. speaking for the majority, while affirming the view taken in Parbhoo’s case observed that in a case where any such exception is pleaded and the evidence led in support of such plea, judged by the test of preponderance of probability, fails to displace the presumption arising from Section 105 of the Evidence Act; yet if upon a consideration of the evidence as a whole including the evidence led in support of plea of exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more of the ingredients of the offence, the accused shall be entitled to the benefit of the reasonable doubt as to his guilt. In C.S.D. Swami v. The State MANU/SC/0025/1959 : 1960CriLJ131 the character of a presumption of guilt under Section 5 of the Prevention of Corruption Act from proof of certain facts “unless the contrary is proved” was considered and it was held there that the exception laid down by statute was “a complete departure from the established principle of the criminal jurisprudence that the burden always lies upon the prosecution to prove all the ingredients of the offence charged and that the burden never shifts on to the accused to disprove his guilt.” V.D. Jhingan v. State of U.P. MANU/SC/0081/1966 : [1966]3SCR736 also is a case dealing with the presumption under Section 4 of the Prevention of Corruption Act under which the accused was under an obligation to disprove his guilt by adducing such evidence by which the preponderance of probabilities prove the defence case.

81. An examination of these cases would reveal that the statutory exception which modifies the operation of the general principle that the prosecution must prove all ingredients of the offence with which the accused is charged, to some extent stands on a different footing. However, Beg, J. in his separate judgment, in Rishi Kesh Singh’s case observed thus:

“It covers every tilt or preponderance of the balance of probability whether slight or overwhelming. In fact, the dividing line between a case of mere “preponderance of probability” by a slight tilt only of the balance of probability and a case of reasonable doubt is very thin indeed although it is there. A case of reasonable doubt which must necessarily be one of which, on a balancing of probabilities, two views are possible. What may appear to one reasonable individual to be a case not fully proved may appear to another to be so proved on a balancing of probabilities. Such a case and only such a case would, in my opinion, be one of reasonable doubt. A mere preponderance of probability in favour of the exception pleaded by an accused would, however, constitute a “complete” proof of the exception for the accused but a state of reasonable doubt would not.”

Somewhat to the same effect are the observations made by the Supreme Court in Harbhajan Singh v. State of Punjab MANU/SC/0074/1965 : 1966CriLJ82 . After citing Woolmington’s case it is therein held that “The principle of common law is part of the criminal law of the country. That is not to say that if an exception is pleaded by an accused person he is not required to. justify his plea; but the degree and character of proof which the accused is expected to support his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case. The onus on the accused may well be compared to the onus on a party in civil proceedings; just as in civil proceedings the Court which tries an issue makes its decision by adopting the test of probabilities, so must a criminal court hold the plea made by the accused proved, if a preponderance of probability is established by the evidence led by him.” It can thus be seen that there is a dividing line between a case of the accused discharging the burden by preponderance of probabilities which is equated to proof of the exception and a state of reasonable doubt that arises on a consideration of the evidence and facts and circumstances as a whole, as regards one or more of the ingredients of the offence. Therefore, in a case where the prosecution has discharged its burden and where the accused pleads exception and if there is some evidence to support that plea the obligatory presumption under Section 105 is lifted and the accused may proceed further and establish his plea by a preponderance of probabilities or he may carry his plea further and succeed in creating a reasonable doubt about an ingredient of an offence. Consequently in respect of the general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the accused by one of these processes would be discharging the burden contemplated under Section 105 but in cases of the exceptions covered 3 by special statutes and where the burden of proof is placed on the accused to establish his plea, he will be discharging the same by preponderance of probabilities and not by merely creating a doubt.

82. At this stage we have to point out that these principles cannot be made applicable to a case where the accused sets up alibi. There the burden entirely lies on him and plea of alibi does not come within the meaning of these exceptions. Circumstances leading to alibi are within his knowledge and as provided under Section 106 of the Act he has to establish the same satisfactorily. Likewise in the case where the statute throws special burden on the accused to disprove the existence of the ingredients of the offence, he has to discharge the burden, for example, in the cases arising under Prevention of Food Adulteration Act if the accused pleads a defence under Section 19, the burden is on him to establish the same since the warranty on which he relies is a circumstance within his knowledge. However, it may not be necessary to enumerate these kinds of cases as we are mainly concerned in this case only with the scope and application of Section 105 of the Evidence Act. We also make it clear that the principles laid down by us are only in respect of the said provision only. As we think that it would be appropriate and useful to set out the sum and substance of the above discussions regarding the scope of Section 105 and we accordingly state the same as follows:

83. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can indirectly introduce such circumstances by way of cross-examination and also rely on the probabilities and the other circumstances. Then the initial presumption against the accused regarding the non-existence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused. The accused can also discharge the burden under Section 105 by preponderance of probabilities in favour of his plea. In case of general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the Court, after due consideration of the evidence in the light of the above principles, if satisfied, would state, in the first instance, as to which exception the accused is entitled to, then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly.

84. Learned counsel for the appellant while relying on the case of Harendra Narain Singh etc. v. State of Bihar reported in AIR 1991 SC 1842 has argued that there is yet another basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused.

85. Besides the rules regarding appreciation of evidence, the Court has to keep in mind certain significant principles of law under the Indian Criminal Jurisprudence, i.e. right to fair trial and presumption of innocence, which are the twin essentials of administration of criminal justice. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefits of such presumption which could be interfered with by the courts only for compelling reasons and not merely because another view was possible on appreciation of evidence. The element of perversity should be traceable in the findings recorded by the Court, either of law or of appreciation of evidence. The Legislature in its wisdom, unlike an appeal by an accused in the case of conviction, introduced the concept of leave to appeal in terms of Section 378 Code of Criminal Procedure. This is an indication that appeal from acquittal is placed at a somewhat different footing than a normal appeal. But once leave is granted, then there is hardly any difference between a normal appeal and an appeal against acquittal. The concept of leave to appeal under Section 378 Code of Criminal Procedure. has been introduced as an additional stage between the order of acquittal and consideration of the judgment by the appellate Court on merits as in the case of a regular appeal. Sub-section (3) of Section 378 clearly provides that no appeal to the High Court under Sub-sections (1) or (2) shall be entertained except with the leave of the High Court. This legislative intent of attaching a definite value to the judgment of acquittal cannot be ignored by the Courts. Under the scheme of the Code of Criminal Procedure., acquittal confers rights on an accused that of a free citizen. A benefit that has accrued to an accused by the judgment of acquittal can be taken away and he can be convicted on appeal, only when the judgment of the trial court is perverse on facts or law. Upon examination of the evidence before it, the Appellate Court should be fully convinced that the findings returned by the trial court are really erroneous and contrary to the settled principles of criminal law. In the case of State of Rajasthan v. Shera Ram alias Vishnu Dutta MANU/SC/1428/2011 : (2012) 1 SCC 602, a Bench of this Court, of which one of us (Swatanter Kumar, J.) was a member, took the view that there may be no grave distinction between an appeal against acquittal and an appeal against conviction but the Court has to keep in mind the value of the presumption of innocence in favor of the accused duly endorsed by order of the Court, while the Court exercises its appellate jurisdiction. In this very case, the Court also examined various judgments of this Court dealing with the principles which may guide the exercise of jurisdiction by the Appellate Court in an appeal against a judgment of acquittal. We may usefully refer to the following paragraphs of that judgment:

“8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for.

9. We may refer to a recent judgment of this Court in the case of State of Rajasthan, Through Secretary, Home Department v. Abdul Mannan MANU/SC/0764/2011 : (2011) 8 SCC 65, wherein this Court discussed the limitation upon the powers of the appellate court to interfere with the judgment of acquittal and reverse the same.

11. This Court referred to its various judgments and held as under:

“12. As is evident from the above recorded findings, the judgment of conviction was converted to a judgment of acquittal by the High Court. Thus, the first and foremost question that we need to consider is, in what circumstances this Court should interfere with the judgment of acquittal. Against an order of acquittal, an appeal by the State is maintainable to this Court only with the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial court is set aside by the High Court, and the accused is sentenced to death, or life imprisonment or imprisonment for more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134(1)(a) and 134(1)(b) of the Constitution of India and Section 379 of the Code of Criminal Procedure, 1973. In light of this, it is obvious that an appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court.

13. When an accused is acquitted of a criminal charge, a right vests in him to be a free citizen and this Court is very cautious in taking away that right. The presumption of innocence of the accused is further strengthened by the fact of acquittal of the accused under our criminal jurisprudence. The courts have held that if two views are possible on the evidence adduced in the case, then the one favorable to the accused, may be adopted by the court. However, this principle must be applied keeping in view the facts and circumstances of a case and the thumb rule is that whether the prosecution has proved its case beyond reasonable doubt. If the prosecution has succeeded in discharging its onus, and the error in appreciation of evidence is apparent on the face of the record then the court can interfere in the judgment of acquittal to ensure that the ends of justice are met. This is the linchpin around which the administration of criminal justice revolves.

10. When the conclusions of the High Court in the background of the evidence on record are tested on the touchstone of the principles set out above, the inevitable conclusion is that the High Court’s judgment does not suffer from any infirmity to warrant interference.

16. In a very recent judgment, a Bench of this Court in State of Kerala v. C.P. Rao decided on 16-5-2011, discussed the scope of interference by this Court in an order of acquittal and while reiterating the view of a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan, the Court held as under:

13. In coming to this conclusion, we are reminded of the well-settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan 212. At SCR p. 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows:

9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court’s approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) “substantial and compelling reasons”, (ii) “good and sufficiently cogent reasons”, and (iii) “strong reasons”, are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified’.

17. Reference can also be usefully made to the judgment of this Court in Suman Sood v. State of Rajasthan, where this Court reiterated with approval the principles stated by the Court in earlier cases, particularly, Chandrappa v. State of Karnataka. Emphasizing that expressions like “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal, the Court stated that such phraseologies are more in the nature of “flourishes of language” to emphasize the reluctance of an appellate court to interfere with the acquittal. Thus, where it is possible to take only one view i.e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, then the Court may interfere with an order of acquittal.

10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favor of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.

11. Also, this Court had the occasion to state the principles which may be taken into consideration by the appellate court while dealing with an appeal against acquittal. There is no absolute restriction in law to review and re-look the entire evidence on which the order of acquittal is founded. If, upon scrutiny, the appellate court finds that the lower court’s decision is based on erroneous views and against the settled position of law then the said order of acquittal should be set aside. (See State (Delhi Administration) v. Laxman Kumar and Ors. MANU/SC/0109/1985 : (1985) 4 SCC 476, Raj Kishore Jha v. State of Bihar and Ors. MANU/SC/0783/2003 : AIR 2003 SC 4664, Inspector of Police, Tamil Nadu v. John David MANU/SC/0461/2011 : JT 2011 (5) SC 1)

86. If this Court analyzes the above principle somewhat concisely, it is obvious that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and other to his innocence, the view which is favorable to the accused should be adopted. There are no jurisdictional limitations on the power of the Appellate Court but it is to be exercised with some circumspection. The paramount consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than that from the conviction of an innocent. If there is miscarriage of justice from the acquittal, the higher Court would examine the matter as a Court of fact and appeal while correcting the errors of law and in appreciation of evidence as well. Then the Appellate Court may even proceed to record the judgment of guilt to meet the ends of justice, if it is really called for.

87. It is admitted fact that marriage of the deceased was solemnized just four years before the incident with appellant Rajoo.

88. Learned counsel for the appellant has contended that from scrutiny of the evidence of the prosecution witnesses, it appears that no case under Section 498-A IPC is made out against the appellant as there is nothing in the evidence of the prosecution witnesses that what amount was demanded by the accused/appellant. In absence of specific evidence with regard to demand of dowry, mere harassment and negligence to the victim itself would not constitute cruelty and if the case under Section 498-A IPC fails then the case under other sections will automatically fail because there is absolutely no evidence of the fact to prove other charges. It has further been contended that even though there was no independent corroboration as required for establishing a case under Section 498-A IPC i.e. demand of dowry, learned trial court convicted the accused/appellant under Section 498-A IPC, which is liable to be set-aside on the ground that when learned trial court disbelieved one part of the prosecution case and believed other part. According to him, either a witness should be believed as a whole or should not be believed at all. The Court cannot believe for one purpose and disbelieve for another purpose.

89. While responding to the submissions made by learned counsel for the appellant, learned counsel for the State tried to prove the prosecution case contending that torture for demand of dowry was continuous which is evident from the contents narrated in the first information report and in the statement of the prosecution witnesses.

90. Learned counsel for appellant has submitted that remaining witnesses or all the witnesses have not been examined by the prosecution.

91. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (1) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. What is required to be considered is as to whether the testimony of the sole witness is reliable, trustworthy and can be believed or not. In light of the facts of the present case where the presence of sole eyewitness on spot when the incident took place was not doubtful and his evidence was found to be credible and corroborated, in spite of the plea that other witnesses were also present or other witnesses were not produced before the Court in spite of the fact that they were named in the first information report, the testimony of sole witness cannot be rejected. [Journail Singh vs. State of Punjab reported in 2009 (1) Supreme 224]. Reference on this point may be made to the pronouncement of Hon’ble the Apex Court in the case of (i) Manga alias Man Singh Vs. State of Uttarakhand reported in 2013 (7) SCC 629, (ii) State of Haryana Vs. Shakuntala and others reported in 2012 (5) SCC 171 and (iii) Prathipal Singh etc. Vs. State of Punjab and another etc. reported in 2012 (1) SCC 10. We would like to quote paragraph no. 49 of the judgment of Prithvipal Singh’s case (supra), which reads as under:-

“49. This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See: Vadivelu Thevar v. The State of Madras : AIR 1957 SC 614; Sunil Kumar v. State Govt. of NCT of Delhi (2003) 11 SCC 367; Namdeo v. State of Maharashtra (2007) 14 SCC 150; and Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638).”

92. Learned counsel for appellant has submitted before this court that the deceased was suffering from mental depression and psychosis and no case has been made out for bringing the same within the definition of dowry as contained in the Dowry Prohibition Act, 1961. He has further submitted that she was suffering from mental depression even before her marriage.

93. Thus, from the recitals in the conduct we can safely hold that there was a clear possibility and a tendency on her part to commit suicide due to desperation and frustration. She seems to be tired of her married life, but she still hoped against hope that things might improve. At any rate, the fact that she may have committed suicide cannot be safely excluded or eliminated. It may be that fire occurred due to accident while preparing the tea but when two views are reasonably possible the benefit must go to the accused. In order to buttress the opinion, I would like to cite some passages of an eminent psychiatrist, Robert J. Kastenbaum where in his book Death, Society and Human Experience he analyses the causes, the circumstances, the moods and emotions which may drive a person to commit suicide. The learned author has written that a person who is psychotic in nature and suffers from depression and frustration is more prone to commit suicide than any other person. In support of our view, we extract certain passages from his book:

The fact is that some people who commit suicide can be classified as psychotic or severely disturbed.

If we are concerned with the probability of suicide in very large populations, then mental and emotional disorder is a relevant variable to consider.

And it is only through a gross distortion of the actual circumstances that one could claim all suicides are enacted in a spell of madness.

Seen in these terms, suicide is simply one of the ways in which a relatively weak member of society loses out in the jungle-like struggle.

The individual does not destroy himself in hope of thereby achieving a noble post-mortem reputation or a place among the eternally blessed. Instead he wishes to subtract himself from a life whose quality seems a worse evil than death.

The newly awakened spirit of hope and progress soon became shadowed by a sense of disappointment and resignation that, it sometimes seemed, only death could swallow.

Revenge fantasies and their association with suicide are well known to people who give ear to those in emotional distress.

People who attempt suicide for reasons other than revenge may also act on the assumption that, in a sense, they will survive the death to benefit by its effect.

The victim of suicide may also be the victim of self-expectations that have not been fulfilled. The sense of disappointment and frustration may have much in common with that experienced by the person who seeks revenge through suicide…. However, for some people a critical moment arrives when the discrepancy is experienced as too glaring and painful to be tolerated. If something has to go it may be the person himself, not the perhaps excessively high standards by which the judgment has been made…. Warren Breed and his colleagues found that a sense of failure is prominent among many people who take their own lives.

94. The above observations are fully applicable to the case of deceased. She solemnly believed that her holy union with her husband would bring health and happiness to her but unfortunately it seems to have ended in a melancholy marriage which in view of the circumstances detailed above, left her so lonely and created so much of emotional disorder resulting from frustration and pessimism that she was forced to end her life. There can be no doubt that deceased was not only a sensitive and sentimental woman but was extremely impressionate (sic) and the conduct shows that a constant conflict between her mind and body was going on and unfortunately the circumstances which came into existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideal fails, the failure drives them to end their life, for they feel that no charm is left in their life.

95. Mary K. Hinchliffe, Douglas Hooper and F. John Roberts in their book The Melancholy Marriage observe that-

Studies of attempted suicide cases have also revealed the high incidence of marital problems which lie behind the act. In our own study of 100 consecutive cases (Roberts and Hooper 1969), we found that most of them could be understood if the patients’ interactions with others in their environment were considered. (p. 5)

96. Such persons possess a peculiar psychology which instills extreme love and devotion but when they are faced with disappointment or find their environment so unhealthy or unhappy, they seem to lose all the charms of life. The authors while describing these sentiments observe thus:

‘Hopelessness’, ‘despair’, ‘lousy’ and ‘miserable’ draw attention to the relationship of the depressed person ‘to his environment. The articulate depressed person will often also struggle to put into words the fact that not only does there appear to be no way forward and thus no point to life – but that the world actually looks different. (p. 7)

97. Coleridge in Ode to Dejection in his usual ironical manner has very beautifully explained the sentiments of such persons thus:

I see them all so excellently fair –

I see, not feel, how beautiful they are;

98. He further contended that there is nothing available in the evidence of prosecution witnesses to show that since when the inmates of the in-law’s house of the victim started torturing her either for bringing money from her parents or for any other reason. Mere omnibus statement regarding demand of money does not ipso facto make out a case under Section 498A IPC, prosecution is required to prove the overt acts attributed by the accused appellants beyond reasonable doubt. In support of his aforesaid contention, he placed reliance on the decision of the Apex Court in Sakharam and Anr. v. State of Maharashtra reported in : (2003) 12 SCC 368.

99. He also contended that mere harassment of wife by her husband or in -laws due to dispute or difference without anything more pursuant to which if the wife commits suicide that will not attract Section 306 IPC.

100. He contended that from scrutiny of the evidences of the prosecution witnesses, it appears that no case under Section 498A IPC has been made out against the accused appellants as there is nothing in the evidence of P.Ws. that what amount was demanded by the accused appellant. In absence of specific evidence regarding demand for dowry mere harassment and negligence to the victim itself would not constitute cruelty and if a case under Section 498A IPC fails then the case under Section 306 or 304-B IPC will automatically fail because there is absolutely no evidence of abatement of suicide. In support of the aforesaid submission, the case of Girdhar Shankar Tawade v. State of Maharashtra reported in MANU/SC/0361/2002 was relied on.

101. Learned counsel for the appellant has submitted that it is a case of faulty investigation.

102. The Apex Court in Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, at page 183 and 192 in para 35 and 56 has observed :

“35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice — often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.”

———————-

“56. As pithily stated in Jennison v. Baker8: (All ER p. 1006d)

“The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.”

Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are on record so that there might not be miscarriage of justice. (See Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble (2003)7 SCC 749)”

103. It is true that in case of suppression of evidence from Court an adverse inference should have been drawn against the party concerned but at the same time Courts should not only act on presumption under section 114 of Evidence Act but also examine the suppressed material and its evidentiary value before coming to a definite opinion with a view whether suppressed evidence materially effect the case of such party which suppressed the evidence. Therefore this Court is under an obligation to see whether the suppressed dying declaration recorded by Executive Magistrate/ Tehsildar can be used for any purpose either for strengthening the prosecution case or to rebut the presumption under section 113-B of Evidence Act by the appellant.

104. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The Investigating Officer “is not to bolster up a prosecution case with such evidence as may enable the Court to record conviction but to bring out the real unvarnished truth”. (Vide R.P. Kapur v. State of Punjab, MANU/SC/0086/1960: AIR 1960 SC 866; Jamuna Chaudhary and others v. State of Bihar, MANU/SC/0119/1973: AIR 1974 SC 1822; and Mahmood v. State of U.P., MANU/SC/0154/1975: AIR 1976 SC 69).

105. In State of Bihar v. P.P. Sharma, MANU/SC/0542/1992: AIR 1991 SC 1260, this Court has held as under:

“Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism…..Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the Court, not only to insist upon making specific and definite allegations of personal animosity against the Investigating Officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the Court…..Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power….The word ‘personal liberty’ (under Article 21 of the Constitution) is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme Law, the Constitution. The investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily….. An Investigating Officer who is not sensitive to the constitutional mandates may be prone to trample upon the personal liberty of a person when he is actuated by mala fides.”

106. In Navinchandra N. Majithia v. State of Meghalaya and others, MANU/SC/0641/2000: AIR 2000 SC 3275, this Court considered a large number of its earlier judgments to the effect that investigating agencies are guardians of the liberty of innocent citizens. Therefore, a heavy responsibility devolves on them of seeing that innocent persons are not charged on an irresponsible and false implication. There cannot be any kind of interference or influence on the investigating agency and no one should be put through the harassment of a criminal trial unless there are good and substantial reasons for holding it. Cr.P.C. does not recognize private investigating agency, though there is no bar for any person to hire a private agency and get the matter investigated at his own risk and cost. But such an investigation cannot be treated as investigation made under law, nor can the evidence collected in such private investigation be presented by Public Prosecutor in any criminal trial. Therefore, the Court emphasised on independence of the investigating agency and deprecated any kind of interference observing as under: “The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence…..All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint…..A vitiated investigation is the precursor for miscarriage of criminal justice.”

107. In Nirmal Singh Kahlon (supra), the Court held that a concept of fair investigation and fair trial are concomitant to preservation of the fundamental right of the accused under Article 21 of the Constitution of India.

108. In Manu Sharma v. State (NCT of Delhi), MANU/SC/0268/2010: (2010) 6 SCC 1, one of us (Hon’ble P. Sathasivam, J.) has elaborately dealt with the requirement of fair investigation observing as under:

“…… The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused as presumed to be innocent till prove guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India….

It is not only the responsibility of the investigating agency but as well as that of the Courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society….

The Court is not to accept the report which is contra legem (sic) to conduct judicious and fair investigation….

The investigation should be conducted in a manner so as to draw a just balance between citizen’s right under Articles 19 and 21 and expansive power of the police to make investigation…..”.

109. This Court in K. Chandrasekhar v. State of Kerala and others, MANU/SC/0319/1998: (1998) 5 SCC 223; Ramachandran v. R. Udhayakumar and others, MANU/SC/7684/2008: (2008) 5 SCC 413; and Nirmal Singh Kahlon (supra); Mithabhai Pashabhai Patel and others v. State of Gujarat, MANU/SC/0858/2009: (2009) 6 SCC 332; and Kishan Lal v. Dharmendra Bafna, MANU/SC/1296/2009: (2009) 7 SCC 685, has emphasised that where the Court comes to the conclusion that there was a serious irregularity in the investigation that had taken place, the Court may direct a further investigation under Section 173(8) Cr.P.C., even transferring the investigation to an independent agency, rather than directing a re-investigation. “Direction of a re-investigation, however, being forbidden in law, no superior Court would ordinarily issue such a direction.”

110. Unless an extra ordinary case of gross abuse of power is made out by those in charge of the investigation, the Court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. Thus, in case of a mala fide exercise of power by a police officer the Court may interfere. (vide: S.N. Sharma v. Bipen Kumar Tiwari and others, MANU/SC/0182/1970: AIR 1970 SC 786).

111. In Kashmeri Devi v. Delhi Administration and another, MANU/SC/0237/1988: AIR 1988 SC 1323, this Court held that where the investigation has not been conducted in a proper and objective manner it may be necessary for the Court to order for fresh investigation with the help of an independent agency for the ends of justice so that real truth may be revealed. In the said case, this Court transferred the investigation to the CBI, after coming to the conclusion that investigation conducted earlier was not fair.”

112. Aforesaid judgment has been followed in the case of Hema v. State through Inspector of Police, Madras, MANU/SC/0017/2013 : (2013) 10 SCC 192, wherein Apex Court has once again repeated that the investigating officer cannot be permitted to conduct an investigation in a tainted and biased manner and in case biased investigation or tainted investigation is there then certainly same would never result in fair trial.

113. Apex Court once again in the case of Manohar Lal Sharma v. Principal Secretary, 2014 (2) SCC 553, has emphasised that aim of investigation is ultimately to search for truth and bring the offender to book and Court may in appropriate cases intervene to protect personal/property rights of citizens. In the said judgment itself role of police has been discussed as follows:

25. Lord Denning has described the role of the police thus: “In safeguarding our freedoms, the police play vital role. Society for its defence needs a well-led, well-trained and well-disciplined force or police whom it can trust, and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.

The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man’s house without authority. They must not use more force than the occasion warrants”

26. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book.”

114. The Apex court in Devendar alias Kalaram and others Vs. State of Haryana, (2012 )10 SCC 763 found that accused has rebutted the presumption under section 113-B of Indian Evidence Act on the basis of fact that the deceased stated to the Doctor that fire caught her while preparing tea on stove. In this case the evidence of Doctor examining the deceased in hospital was to the effect that patient (deceased) herself told that she sustained burn injuries while cooking meal on stove. This statement of the deceased was found to be relevant under section 32(1) of Indian Evidence Act and the presumption under section 113-B of the Indian Evidence Act thus, found rebutted and accused persons were given benefit of it and acquitted under the charges levelled against them under section 304B IPC.

115. In a recent judgement the Apex Court in Vipin Jaiswal Vs. State of Andhra Pradesh (2013) 3 SCC 684 held that after relying upon suicide note produced by the accused and proved to be written in hand of the deceased, exonerated the accused from charges. In the suicide note, the deceased mentioned that no body is responsible for her death and her parents and family members have harassed much to her husband, therefore, she is taking this steps as she is fed up with her life. In the light of this judgement the Court observed that the accused has successfully rebutted the presumption under section 113-B of the Indian Evidence Act and prosecution has failed to establish necessary ingredients of section 498A IPC and 304B IPC and held in Para 16 of the judgement reproduced herein below:-

“16. In our considered opinion, the evidence of DW1(the appellant) and Ext. D- 19 casts a reasonable doubt on the prosecution story that deceased was subjected to harassment or cruelty in connection with demand of dowry. In our view, onus was on prosecution to prove beyond reasonable doubt the ingredient of section-498-A IPC and essential ingredients of offence under section 498-A IPC is that the accused, as a husband of the deceased, has subjected her to cruelty as defined in the explanation to section 498-A IPC. Similarly, for the Court to draw the presumption under section 113-B IPC of the Evidence Act that the appellant had caused dowry death as defined in Section 304-B IPC, the prosecution has to prove besides the demand of dowry, harassment or cruelty by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of cruelty, neither of the offences under section 498-A IPC and 304-B IPC has been made out by the prosecution.”

As such in the case in hand in view of first dying declaration recorded by the Executive Magistrate, which was found to be truthful, reliable and admissible in evidence. The reason assigned by the trial court to reject this dying declaration is not sustainable .

116. After considering all relevant facts and evidence on record, this Court is of the view that PW-1 Dev Kumar Yadav, brother of the deceased, and PW-4 Leelawati, mother of the deceased, had not supported the case of the prosecution with regard to the demand of dowry at any point of time and there was no complaint either by the husband or the deceased or the members of the husband’s family for demand of dowry or harassment. There are no allegations even in the statement recorded by the Investigating Officer under Section 161 Cr.P.C. while the victim was hospitalized or in the statement recorded by the Executive Magistrate/Naib Tehsildar. She had simply narrated that on the point of preparation of tea and non-availability of tea in the house, some altercation took place. In light of above facts the presumptions as provided under Section 113 B of the Indian Evidence Act have been rebutted and it is found proved that there was no demand of dowry.

117. The second circumstance is after the incident the victim was reported to be in the room which was bolted from inside and after her cry, neighbours or who heard the noise rushed immediately and her husband/appellant with the help of neighbours broken the door and immediately poured the water to control the fire and took her to the hospital to save her life. Total medical expenditure was born by the appellant and his family members. She was there for more than 14 days under medical supervision. Immediately after the incident information was sent to her parental house in Bombay from where her mother rushed to the hospital and after two or three days her brother also rushed and supervised the medical treatment. During these days nothing was reported to the mother or the brother about the demand of dowry or ill treatment. The above facts or additional evidence disclose that the case does not fall within the purview of dowry death. So far as the suicide is concerned, if there are no allegations of demand of dowry or ill treatment or harassment, the appellant cannot be held guilty for abetment of suicide. This case is also not covered under the provisions of abetment of suicide because nothing had been stated like this by the deceased herself nor she had made any allegation against the appellant. The version that during the period when the room was locked from inside someone thrown burning item does not inspire confidence to happen like this.

118. Considering all relevant facts and especially in light of of the fact that the mother and brother had not supported the case of the prosecution, who have been declared hostile, the case under Section 498-A or 304-B IPC or ¾ of the Dowry Prohibition Act is not found proved. Thus, the accused/appellant is entitled for acquittal. Accordingly, the appeal is allowed. The conviction and sentence, as above, is set-aside. Appellant Rajoo Yadav is acquitted from the charges levelled against him. He is on bail. His bonds are cancelled and sureties discharged.

119. Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.

Order Date :-21.09.2017

A. Katiyar

 

 

Leave a Comment

Your email address will not be published. Required fields are marked *