Ram Asrey & Others vs State Of U.P. on 14 September, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 14 A.F.R.

Reserved

Case :- CRIMINAL APPEAL No. – 612 of 1995

Appellant :- Ram Asrey Others

Respondent :- State Of U.P.

Counsel for Appellant :- Rakesh Srivastava,Anil Kr. Mishra,Ram Chandra Dwivedi,Sheo Prakash Singh,Vinay Kumar Misra

Counsel for Respondent :- Govt. Advocate

Hon’ble Sheo Kumar Singh-I,J.

1. This is a case of dowry death where a young lady of about 18 years was hanged to death by strangulation within four months of her marriage. The accused- appellant Mishri Lal (husbnd), Rajesh (brother of the husband) and Dulli Devi (mother of husband) had challenged the conviction and sentence passed by Special Judge Unnao vide order dated 1.11.1995 whereby and whereunder all the appellants were found guilty under sections 498A and 304B IPC and sentenced as under:-

(1) 498AIPC Rigorous imprisonment of two years and fine of Rs. 500/-. In case of default of payment of fine, they have to further undergo rigorous imprisonment for six months.

(2) 304B Rigorous imprisonment of 10 years

(3) Section 4 of Dowry Prohibition Act Rigorous imprisonment of one year and fine of Rs. 1000/-. In case of default of payment of fine, they have to further undergo rigorous imprisonment for one year.

All the sentences were directed to run concurrently.

2. The prosecution story as unfolded in the complaint/first information report is that Prem Kumari daughter of the complainant Kishore Lodh was married to Mishri Lal son of Ram Asrey on 7.5.1993 with all Hindu traditions after payment of sufficient dowry according to the status of the family but the demand of bed, wrist watch and buffalo were not fulfilled at the time of marriage which were regularly complained by members of the family and all the demands were continued till death of the deceased. The deceased was continuously harassed and tortured for non fulfilment of demand and on 29.8.1993 an information was received by the complainant that the appellants had caused death of the deceased by roping her neck and strangulation. One of the relative of the cousin brother of the complainant communicated this fact to the complainant who lodged the first information report by means of Ex. Ka-1 on 30.8.1993 at about 20.30 ‘O’ clock which was entered into G.D. and after that, inquest of the dead body was prepared and photo lash, challan lash and letter to Chief Medical officer were prepared and dead body was sent for post mortem. After investigation, charge sheet was submitted against the accused appellants Ram Asrey, Mishri Lal, Rajesh and Dulli Devi. The accused-appellants were summoned before the trial court and charges were levelled against them for which they pleaded not guilty and claimed for trial.

3. In order to prove the prosecution case, PW-1 Kishore, PW-2 Dori Lal, PW-3 Ashok Kumar, PW-4 Rajendra Singh Yadav Deputy Superintendent of Police,PW-5 Ram Dulari Mishra, PW-6 Dr. Arun Shah and PW-7 Mahaveer singh Tomar Deputy Superintendent of Police were examined.

4. In the statement recorded under Section 313 Cr.P.C., all the accused have stated that the deceased was alone in the house and all the family members were in the agricultural field. Some person entered into the house and after causing injuries, caused death of the deceased. DW-1 Saradhe was examined before the court as a defence witness.

5. After assessment of evidence on record and hearing learned counsel for the parties, learned court below disposed of the case by the impugned order and found the accused/appellant guilty under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act and sentenced as above.

6. Aggrieved by the order, the appellant has filed the instant appeal on the following grounds:-

i. There was no demand of dowry at the time of marriage.

ii. There is no documentary evidence to support the prosecution story about the demand of dowry and there is no evidence on record that deceased was treated with any cruelty or was ill treated at any point of time.

iii. There is no evidence that soon before death the deceased was subjected to cruelty.

iv. The accused/appellant has been falsely implicated in this case due to ulterior motive.

7. Learned counsel for State has submitted that the marriage of the deceased was solemnized just before four months of the incident with the appellant Mishri Lal. It is necessary to mention here that the case of appellant Ram Asrey has been abated due to his death.

8. Let us examine the injuries found on the body of the deceased. To prove the injuries, the prosecution has examined PW-6 Dr. Arun Shah who has stated on oath that on 29.8.1993 he was posted as Medical officer,T.V. Clinic, Unnao, body of the deceased Prem Kumari was brought by the police and he had conducted the post mortem and found following injuries on her body:-

(1) 28 cm x .5 cm contusion ligation mark on the neck, which was just above thyroid prominence. There was piece of rope around the ligature mark.

(2) Abraded contusion in an area of 4 cm x 3 cm on right side of neck 1 cm below the right angle of jaw.

(3) Superficial burn blisters and line of red was found in right hand, forehead and elbow.

(4) Multiple contusion medial and posterior aspect of thigh 18 cm x 16 cm x 8 cm above knee.

(5) Multiple contusion on lateral and anterior aspect of right leg and knee.

(6) Abrasion 1 cm x 1 cm Right sole

(7) Multiple contusion in an area of 17 cm x 7 cm on medial aspect of knee.

(8) Superficial burn and blister and line on left hand, forehead and elbow.

In the opinion of the doctor, death was caused due to strangulation.

9. 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. 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.

10. 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.

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

12. There is no dispute about the fact that death has taken place well within seven year of marriage in an unnatural way. Section 304-B I.P.C. deals with the dowry death. It will be useful to quote it at this place:

“304-B. Dowry Death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harrassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death. Explanation for the purpose of this sub-section ‘dowry’ shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

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

“113-B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.”

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

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

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

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

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

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

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

16. So far as the demand of dowry is concerned, the complainant in his Ex. Ka-1/first information report to the police station has submitted that during the time of marriage certain things were not given to the husband side and when the deceased returned back to parental house, she communicated to the complainant and family members that due to non fulfilment of demands, she was continuously being mentally and physically tortured by appellant. She was consoled on the ground that after the marriage, the house of the husband is her house and she had to reside there and adjust herself.

17. Further in his statement, PW-1 Kishore had stated on oath that there was regular and continuous demand of dowry. PW-2 Dori Lal had also narrated the fact that the deceased was continuously tortured for non fulfilment of demand. PW-3 Ashok Kumar the then S.D.M. Sadar, Unnao had stated on oath that after receiving the information about death of deceased, he visited on the spot and got prepared an inquest report with all other document and dead body was sent for post mortem. PW-4 is investigating officer who after recording statement of witnesses submitted the charge sheet against the appellants. PW-5 Constable Ram Dulari Mishra has proved the formal documents which were endorsed by herself. PW-7 Mahaveer Singh Tomar, Deputy Superintendent of Police was involved partially in investigation process and he narrated on oath that just after receiving the information, he visited the spot and prepared a site map and other documents and also recorded the statement of the witnesses.

18. Learned counsel for the appellant has 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 appellant 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.

19. 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 304 B IPC.

20. 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 appellant as there is nothing in the evidence of P.Ws. that what amount was demanded by the accused appellant No. 1. 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 304 B IPC will automatically fail because there is absolutely no evidence of abetment of suicide or dowry death. 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.

21. Mr. Shesh Nath Singh, learned counsel for State has submitted that torture of the deceased was continuous and demand of dowry was also all along as would be evident from the statement of near and dear of the deceased. It has been stated by the witnesses and family members that the victim was consistently subjected to mental torture by the appellant and it has become the habitual attitude of the appellant to torture her.

22. As it appears from the submission of the learned Counsel for the parties the allegation against the appellant was mainly that the victim deceased was harassed by the members of her in-laws including her husband, appellant as she failed to fulfil the demand of dowry as made by them. Hence, it is necessary firstly to consider what is the meaning of “cruelty” and “dowry” as well the meaning of “abetment” as there is also the allegation of abetment for suicide.

“Cruelty” – By explanations (a) and (b) of Section 498A of IPC cruelty has been defined as:

(a) “Any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) Harassment of the women where such harassment is with a view of coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

“Dowry” – Dos muliers. Lat” otherwise called maritagium, or marriage goods, that which the wife brings to the husband in marriage. This word should not be founded with dower – Co. Litt 31. Wharton’s Law Lexicon.

The definition of ‘dowry’ will also be available in Section 2 of the Dowry (Prohibition) Act, 1961. In common parlance, dowry means where the husband or his relations demand valuable security from the parents and other relations of the wife after the marriage.

11. In Satvir Singh v. State of Punjab MANU/SC/0588/2001, the Hon’ble Apex Court considered the definition of “dowry” as defined under Section 2 of the Dowry Prohibition Act, 1961, with reference to the offence under Section 304B of the I.P.C., and held that it should be any property or valuable security given or agreed to be given in connection with the marriage, Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of “dowry”.

The relevant para No. 21 of the judgment reads as under:

21. Thus, there are three occasions related to dowry. One is before the marriage, second is “at any time” after the marriage. The third occasions may appear to be an unending period. But the crucial words are “in connection with the marriage of the said parties”. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of “dowry”. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.

12. In K. Prema S. Rao v. Ydla Srinivasa Rao MANU/SC/0890/2002, the Hon’ble Apex Court considered the definition of “dowry” in the context of offence under Section 304A, I.P.C., along with Section 113B of the Evidence Act and held that one of the key ingredients of the offence is that deceased must have been subjected to cruelty and harassment “in connection with the demand for dowry” shortly before her death. Para 16 of the judgment reads as under:

16. The evidence which has been found acceptable by the Courts below against accused I is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death “otherwise than under normal circumstances”. To attract the provisions of Section 304B, I.P.C., one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry”. There is no evidence on record to show that the land was demanded as dowry. It was given by the father to the deceased in marriage ritual as pasupukumkuma. The harassment or cruelty meted out to the deceased by the husband after marriage to force her to transfer the land in his name was “not in connection with any demand for dowry”. One of the main ingredients of the offence of “demand of dowry” being absent in this case, the High Court cannot be said to have committed any error in acquitting accused 1 for offence under Section 304B, I.P.C.

13. In Appasaheb and Anr. v. State of Maharashtra MANU/SC/7002/2007 : 2007 (1) Crimes 110 : AIR 2007 SC 763 (SC), there Lordships of the Hon’ble Supreme Court considered the similar point in the context of offence under Section 304B, I.P.C. with the meaning of “dowry” as defined under Section 2 of the Dowry Prohibition Act, 1961, and held that giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. Para 9 of the judgment reads as under:

9. Two essential ingredients of Section 304B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for “dowry”. The explanation appended to Sub-section (1) of Section 304B, IPC says that “dowry” shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.

Section 2 of Dowry Prohibition Act reads as under:

2. Definition of “dowry” – In this Act “dowry” means any property or valuable security given or agreed to be given either directly or indirectly:

(a) By one party to a marriage to the other party to the marriage:

(b) By the parent of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of statute that if the act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, (See Union of India v. Garware Nylons Ltd. MANU/SC/0967/1996 : AIR 1996 SC 3509) and Chemical and Fibres of India v. Union of India MANU/SC/0147/1997 : AIR 1997 SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not. Therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B, IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.

23. In para Nos. 11,12 and 13 in the case of Vikaram Singh v. State of Rajasthan reported in MANU/RH/0018/2007 : 2007 Cri LJ 1622 discussed about the definition of dowry and the same are reproduced hereinunder:

11. In Satvir Singh v. State of Punjab MANU/SC/0588/2001, the Hon’ble Apex Court considered the definition of “dowry” as defined under Section 2 of the Dowry Prohibition Act, 1961, with reference to the offence under Section 304B of the I.P.C., and held that it should be any property or valuable security given or agreed to be given in connection with the marriage, Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of “dowry”.

The relevant para No. 21 of the judgment reads as under:

21. Thus, there are three occasions related to dowry. One is before the marriage, second is “at any time” after the marriage. The third occasions may appear to be an unending period. But the crucial words are “in connection with the marriage of the said parties”. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of “dowry”. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.

24. In Reema Aggarwal v. Anupam MANU/SC/0022/2004 : 2004 AIR SCW 344 : AIR 2004 SC 1418 : 2004 Cri LJ 892, the Apex Court discussed about the definition of term “dowry” under Section 2 of the Dowry Act, which is available in para 14 of the said judgment. Para 14 is reproduced herein under:

14. The definition of the term ‘dowry’ under Section 2 of the Dowry Act shows that any property or valuable security given or, “agreed to be given” either directly or indirectly by one party to the marriage to the other party to the marriage “at or before or after the marriage” as a “consideration for the marriage of the said parties” would become “dowry” punishable under the Dowry Act. Property or valuable security so as to constitute ‘dowry’ within the meaning of the Dowry Act must, therefore, be given or demanded “as consideration for the marriage.

25. Further in para 18 of Reema Aggarwal (supra), the Apex Court dealt with the concept of dowry as well as the aim of the legislation introducing the provision of Section 498A as well as 304B IPC. For better understanding para 18 of the aforesaid judgment is quoted herein under:

18. The concept of “dowry” is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498A and 304B, I.P.C. and Section 113-B of the Indian Evidence Act, 1872 (for short the “Evidence Act”) were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take a shelter behind a smokescreen to contend that since there was no valid marriage the question of dowry does not arise? Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature ‘dowry’ does not have any magic charm written over it. It is that a level given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498A. Legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that Legislature which was conscious of the social stigma attached to children of valid and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given it would not further the legislative intent. On the contrary, it would be against the concerned shown by the Legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to “any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction”. It would be appropriate to construe the expression ‘husband’; to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions Sections 304B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A and 304B, IPC. Such an interpretation, known and recognized as purposive construction has come into play in a case of this nature. The absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabitate with such woman, in the purported exercise of his role and status as ‘husband’ is no ground to exclude them from the purview of Section 304B or 498-A, I.P.C. viewed in the context of the very object and aim of the legislations introducing those provisions.

26. The word “abetment” has been defined in Section 107 IPC as under:

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 willful misrepresentation, or by willful 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.

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 facilitates the commission thereof, is said to aid the doing of that act.

27. In the case of Ramesh Kumar v. State of Chhattisgarh reported in MANU/SC/0654/2001 : (2001) 9 SCC 618 : AIR 2001 SC 3837 : 2001 Cri LJ 4724 the Apex Court discussed about words and phrases ‘instigation’ and noted that “instigation is to good, 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 consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case 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 been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.” Referring the case of Orilal Jaiswal MANU/SC/0321/1994(supra) it is also noted that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide and if it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discoid and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

28. Learned Additional Government Advocate had relied on para 8 of judgment of Hon’ble Supreme Court Maya Devi and others versus State of Haryana Manu/SC/1398/2015 which is as under:-

The key words Under Section 113B of the Evidence Act, 1872 are “shall presume” leaving no option with a court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable. Section 113B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him or her. In the case on hand, accused persons failed to prove beyond reasonable doubt that the deceased died a natural death. When Kavita allegedly committed suicide, her husband- Appellant No. 2, though he was not present in the house, was present in his office at M.D. University, Rohtak at the relevant time but he did not make any sincere effort to take her to the hospital which was very near to the place of the incident.

29. Learned counsel for appellant had submitted that the deceased committed suicide and there is nothing on record to show that any demand of dowry was made and she meted out to cruelty or harassment soon before her death. Learned counsel for appellant had further contended that even for the purpose of Section 498-A the evidence is lacking.

30. As has been mentioned hereinbefore, in order to hold an accused guilty of an offence as charged, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. Only then would such death be called “dowry death” and such husband or relative shall be deemed to have caused the death of the woman concerned.

31. The key words Under Section 113B of the Evidence Act, 1872 are “shall presume” leaving no option with a court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable. Section 113B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him or her. In the case on hand, accused persons failed to prove beyond reasonable doubt that the deceased died a natural death. When deceased allegedly committed suicide, her husband- Appellant though he was present in the house at the relevant time but he did not make any sincere effort to save her.

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

(i) Accidental death

(ii) Suicidal death

(iii) Homicidal death

(iv) Dowry death

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

34. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.” As per the definition of “dowry death” in Section 304-B I.P.C. and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand for dowry”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

46. Section 304-B was inserted by amending Act No.43 of 1986 to deal with cases involving dowry deaths occurring within seven years of marriage. Sub-section (1) of Section 304B IPC lays down that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called `dowry death’, and such husband or relative shall be deemed to have caused her death. By virtue of explanation appearing below sub-section (1), the word `dowry’ used therein carries the same meaning as is contained in Section 2 of The Dowry Prohibition Act, 1961.

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

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

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

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

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

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

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

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

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

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

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

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

And again:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

58. Appellants in the statement under Section 313 Cr.P.C. has narrated that he was not present in the house at that point of time and benefit of plea of alibi should be given to him but no evidence has been produced on this point.

59. The plea of alibi does not find support on the principles as laid down in the following citations:-

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

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

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

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

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

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

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

60. It is well settled in law that when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus as regards the presence on the spot is established by the prosecution. In this context, we may usefully reproduce a few paragraphs from Binay Kumar Singh v. State of Bihar[supra]:

“22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Penal Code, 1860 or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

”The question is whether A committed a crime at Calcutta on a certain date. The fact that, on that date, A was at Lahore is relevant.”

23. The Latin word alibi means ”elsewhere’ and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. …”

61. The said principle has been reiterated in Gurpreet Singh v. State of Haryana JT 2002 (7) SC 58, Shaikh Sattar v. State of Maharashtra JT 2010 (9) SC 152, Jitender Kumar v. State of Haryana JT 2012 (5) C 397.

62. Learned counsel for appellant had submitted that DW-1 Saradhe was examined and stated that there was no demand of dowry at the time of marriage and there was certain dispute with Ram Asrey with regard to division of land and for these reasons, the appellants have been falsely implicated in the case. He had further stated that when he entered in the house where the dead body of the deceased was hanging, he saw that the deceased was dead and her body was hanging with wooden support and he visited the house of the complainant to inform the fact. His statement does not create any ground that anybody else has caused death.

63. Learned counsel for appellants has further submitted that a stranger had caused the injuries on the body of the deceased and after death, she was strangulated. The theory is not acceptable to the court for want of any evidence. The evidence can not be based on any imaginary or hypothetical observation or story.

64. The prosecution witnesses have proved that there was demand of dowry and the deceased was tortured and harassed soon before death. The statement of PW-6 Dr. Arun Shah with regard to the injuries on the body of deceased is that there were two burning injuries, the injuries on the neck side, injuries on the internal part of the body, injuries on the region of thigh (both sides), contusion and multiple contusion on the both legs show that before strangulation, the deceased was brutally tortured and beaten.

65. Learned counsel for appellants has further submitted that the accused-appellant No.1 had died and appeal has been abated. Appellant No.2 Mishri Lal is in jail for more than five years. Rajesh Appellant No.3 younger brother of Mishri Lal is in jail for more than three years and he is unmarried. Appellant No.4 Dulli Devi is in jail for more than two years and 9 months. She is very old lady. It has further been submitted and argued that up to maximum punishment, on the basis of the statement of complainant and witnesses, appellants can be held guilty under Section 498-A IPC for demand of dowry and harassment but they can not be held guilty for dowry death because they were in the field for agricultural work. It has further been submitted that due to death of deceased, all the family members have been named in this case while for dowry death, Mishri Lal (husband) may be held guilty.

66. Considering all the circumstances this court is of the view that plea regarding the appellant No.2 Mishri Lal that he was out of house is not believable. On the basis of evidence on record, the learned court below had correctly found the appellant Mishri Lal guilty under Section 304-B, 498-A IPC and Section 4 of Dowry Prohibition Act and correctly sentenced him. So far as the conviction of appellants No.3 and 4 Rajesh and Dulli Devi is concerned, this court is of the view that being mother and younger brother of the husband, they can be held guilty only under Section 498A and Section 4 of Dowry Prohibition Act.

67. The role of the husband to maintain the spouse is greater than other members of the family. The perusal of the record reveals that so far as demand of dowry and harassment for non fulfilment of demand is conerned are equally responsible but so far as dowry death is concerned, it is husband who is solely responsible for the offence in light of the circumstances of the present case. Thus this court is of the view that appellant Rajesh who is unmarried younger brother of the husband and Dulli Devi who happened to be mother of the husband are held responsible for the offence under Section 498A IPC and 4 of Dowry Prohibition Act.

68. In light of above discussions this Court is of the view that the deceased suffered death at her matrimonial home otherwise than under normal circumstances within 7 years of marriage and from the evidence of the prosecution witnesses it is proved that harassment of the deceased was with a view to convince her parents to meet the demand of dowry.

69. Learned counsel for the appellant has submitted that the deceased had no child and thus she committed suicide.

70. In this reference, learned counsel for the State has submitted that non-bearing of issue for committing suicide was never raised before the trial court and further this was not cause of death. Further none of the Members of family of the appellant or the appellant himself had lodged the first information report with regard to commission of aforesaid suicide, if any. It has further been contended by learned counsel for the State that if it was the case of suicide then none had prevented the appellant to lodge a first information report with the same facts but since this was not the case, the appellant did not come forward to lodge the first information report. The contention of learned counsel for the appellant that all other facts which have been narrated in the statement had not been incorporated in the first information report is not relevant for the reason that first information report is not encyclopaedia of everything.

71. The complainant had proved the contents and his signature on the first information report and none had challenged the authenticity of the first information report and since it was proved, thus, the prosecution is not bound to produce each and every witness.

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

73. In a criminal trial quality of evidence which is before the Court is required to be considered and not the quantity of number of witnesses. As per Section 134 of the Evidence Act, no particular number of witnesses is required to prove any fact. If the testimony of a sole witness is found reliable on the touchstone of credibility, accused can be convicted on the basis of such sole testimony. This has been followed in various pronouncements of Hon’ble the Apex Court like Vadivelu Thevar vs. State of Madras; AIR 1957 SC 614, Raj Narain Singh vs. State of U.P.; 2009 (67) ACC 288 (SC), Namdeo vs. State of Maharashtra; 2007(58) ACC 414 (SC), Ramjibhai Narasanghbhai vs. State of Gujarat; (2004) 1 SCC 184, and Ranjeet Singh vs. State of MP; AIR 2011 SC 255.

74. 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. If the evidence is reliable, 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).”

75. Lastly learned counsel for the appellant has submitted that the conviction and sentence passed separately under Section 498-A IPC in addition to Section 304-B IPC is not just and reasonable.

76. This Court is of the view that when the appellant Misri Lal was found guilty under Section 304 B IPC and sentenced properly then there was no requirement to pass separate sentence under Section 498-A as sentence under Section 304-B IPC is a substantive sentence. Further, Hon’ble the Apex Court in the following cases has held that there is no requirement to pass separate sentence under Section 498-A IPC while convicting the accused under Section 304-B IPC:-

i. Shanti v. State of Haryana – AIR 1991 SC 1226

ii. Kailash v. State of M.P. – (2006) 12 SCC 667

77. Considering all relevant facts, the appeal is partly allowed on the following terms:-

(i) Conviction and sentence of appellant No.2 Mishri Lal under Section 304B IPC and Section 4 of Dowry Prohibition Act is confirmed. Conviction under Section 498A of IPC of appellant Mishri Lal is confirmed but there is no requirement to pass sentence under this section for the reasons that he has already sentenced under Section 304-B IPC

(2) The conviction and sentence of appellant No.3 Rajesh and appellant No.4 Dulli Devi under Section 498-A IPC is confirmed however, the conviction and sentence of appellant No.3 Rajesh and appellant No.4 Dulla Devi under Section 304B of IPC is set aide.

(3) The conviction under Section 4 of Dowry Prohibition Act of appellant No.3 Rajesh and appellant No.4 Dulli Devi is confirmed but are sentenced to undergo imprisonment of six months and pay a fine of Rs. 1000/- each. In case of default of payment of fine, they have to further undergo imprisonment for two months.

All the sentences shall run concurrently.

78. Let a copy of this judgment and lower court record be sent immediately to the court concerned for compliance and report to the Registry of this Court within 30 days.

79. The appellants are reported to be in jail. The period of detention already undergone by the appellants in the instant case shall be set off in their substantive sentence in accordance with provisions of Section 428 Cr.P.C.

80. The learned CJM is directed to verify the period of detention after calling the report from Jail Superintendent and pass appropriate order in case of completion of sentence.

Order Date :- 14. 9.2017

prabhat

 

 

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