HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 23.11.2017
Judgment delivered on 08.01.2018
Court No. 14
(1) Case :- CRIMINAL APPEAL No. – 4195 of 2008
Appellant :- Jai Singh @ Bade
Respondent :- State Of U.P.
Counsel for Appellant :- R.B. Sahai,Amrish Sahai,Jagdish Singh Sengar,Jitendra Singh,Nisar Uddin
Counsel for Respondent :- Govt. Advocate
(2) Case :- CRIMINAL APPEAL No. – 3665 of 2008
Appellant :- Mohan Singh And Others
Respondent :- State Of U.P.
Counsel for Appellant :- R.B. Sahai, Amrish Sahai,Jagdish Singh Sengar
Counsel for Respondent :- Govt. Advocate, A.K.S.Chauhan
Hon’ble Umesh Chandra Tripathi,J.
1. Heard Sri R.B. Sahai, learned counsel for the appellants and Sri L.D. Rajbhar, learned A.G.A., for the State.
2. These two appeals are directed against the common judgment and order dated 30.5.2008 passed by learned Addl. Sessions Judge/Fast Track Court No. 2, Fatehpur in S.T. No. 84 of 2006 (State Vs. Jai Singh @ Bade and others) arising out of case crime no. 136 of 2005 whereby the accused-appellants Jai Singh @ Bade, Mohan Singh, Smt. Ram Beti, Vijay Singh, Km. Meenu @ Namita Singh and Km. Manu @ Pooja were convicted and sentenced as follows: (a) Ten years’ rigorous imprisonment for offence under Section 304B Indian Penal Code (hereinafter referred to as “IPC”), (b) Two years’ simple imprisonment and a fine of Rs. 2000/- each and in case of default in payment of fine, three months additional imprisonment each for offence under Section 498A IPC; and (c) One year simple imprisonment and a fine of Rs. 2000/- each and in case of default in payment of fine, additional imprisonment for three months for offence under Section 4 Dowry Prohibition Act ( hereinafter referred to as “DP Act”).
3. All these sentences were directed to run concurrently.
4. The brief facts of the prosecution case are that marriage of Arti @ Baby (now deceased) daughter of complainant/informant Ram Dulari was solemnized with appellant Jai Singh @ Bade s/o Mohan Singh Chauhan r/o Civil Lines, Behind Power House, Fatehpur on 23.4.2004. After her marriage, her husband (Jai Singh @ Bade), father-in-law (Mohan Singh), mother-in-law (Smt. Ram Beti), Sister-in-law (nanad) (Km. Meenu), Sister-in-law (nanad) (Km. Manu) and Brother-in-law (dewar) (Vijay Singh) started demanding cash of Rs. 50,000/- and Refrigerator, as dowry. Due to demand of dowry, she was treated with cruelty and was harassed by them till her death. The said demand of dowry was also made from the informant/complainant (Ram Dulari) by her daughter’s in-laws. The information about the death of deceased was given to the complainant Ram Dulari by a boy aged about 18-20 years. Thereafter complainant alongwith her nephew Dharmendra went to in-laws house and they saw that dead body of her daughter was lying in the room of second floor and at that time in-laws were not present there. On the written information of complainant Ram Dulari, FIR was lodged on 20.5.2005 at 8:45 PM against accused-appellants Jai Singh @ Bade, Mohan Singh, Smt. Ram Beti, Vijay Singh, Km. Meenu and Km. Manu under Sections 498-A, 304-B IPC and Section 3/4 D.P. Act.
5. Inquest report (Ex. Ka-4) has been prepared by Naib Tehsildar (Ashok Kumar Singh Chandel) on 20.5.2005 at 1:20 PM. Post-mortem (Ex. Ka-3) has been conducted by Dr. A.S.Khan on 20.5.2005 at 4:00 PM. There was no any other injury except ligature mark on the neck of the deceased (Arti @ Baby). Cause of death is asphyxia as a result of ante-motem hanging.
6. From perusal of the statement of PW-3 Dr. A.S. Khan and post mortem report, it is evident that deceased has committed suicide, it is not a case of homicidal death. Sub Inspector Ajai Kumar has recovered ‘Gamchha’ (towel) used in the hanging on 20.5.2005 in presence of public witnesses Jang Bahadur Singh, Ajay singh and Ashraf Khan.
7. After investigation chargesheet has been submitted against appellants Jai Singh @ Bade, Mohan Singh, Smt. Ram Beti, Vijay Singh, Km. Meenu @ Namita Singh and Km. Manu @ Puja under Sections 498-A, 304-B IPC and Section 3/4 D.P. Act.
8. Learned Trial Court has framed charges under Section 498-A, 304-B IPC and Section 3/4 D.P. Act against appellants and explained charges to them. They have pleaded not guilty and claimed to be tried.
9. To substantiate charges against accused persons, prosecution has examined PW-1 Informant (Ram Dulari), PW-2 (Ashok Singh), PW-3 Dr. A.S. Khan, PW-4 Naib Tehsildar (Ashok Kumar Singh Chandel), PW-5 Neeraj Singh, PW-6 Circle Officer Shiva Ji Shukla, PW-7 Sub Inspector Ajai Kumar and PW-8 Jang Bahadur Singh.
10. Except as above, no other witness was adduced, therefore, evidence for the prosecution was closed and statements of the accused were recorded under Section 313 Code of Criminal Procedure (hereafter referred to as Cr.P.C.”), wherein, they have claimed their innocence and stated to have been falsely implicated. They further stated that after 4-5 months of marriage deceased Smt. Arti @ Baby compelled her husband Jai Singh @ Bade to live with her in her parental house (maika). He denied to live with her in her maika. Her pregnancy was regularly terminating. Appellant Jai Singh @ Bade smoked smack. Due to these reasons deceased Arti @ Baby committed suicide in her room. Appellant Jai Singh @ Bade and his wife were living separately from other appellants-accused in upper floor of house. They have never demanded any dowry or harassed the deceased Arti @ Baby.
11. In defence DW-1 Ahmad Khan, DW-2 Rakesh Singh, DW-3 Ashok Kumar, DW-4 Handwriting and Finger Print Expert T.N. Shukla and DW-5 Constable Babban Rai were examined.
12. Upon detailed consideration of evidence on record, learned Trial Court found that the guilt of the accused/appellants for the offences punishable under Sections 498-A, 304-B IPC and Section 4 DP Act is proved beyond reasonable doubt and passed aforesaid order of conviction and sentence.
13. Aggrieved by the order of learned trial Judge, the accused-appellants have preferred these two criminal appeals.
14. Learned counsel for the appellants contended that appellant Jai Singh @ Bade has been released after completing his sentence. Learned counsel for the appellants further contended that appellants have never demanded dowry or harassed the deceased Arti @ Baby for demand of dowry. The prosecution has failed to prove guilt of the accused-appellants beyond reasonable doubt. Without properly appreciating the evidence on record, the learned trial court has passed the impugned order and as such, the same is liable to be set aside.
15. Learned A.G.A., has contended that there is no any error or infirmity in the order passed by the learned Trial Court and as such the appeals are liable to be dismissed.
16. To appreciate the arguments of the parties and also the evidence, it is necessary to look into the statutory provisions of Section 304B IPC and Section 113B of the Evidence Act (hereinafter referred to as ‘the Act’). Provisions of Section 304B IPC reads as follows:
[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 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.
Explanation.–For the purpose of this sub-section, “dowry” shall have the 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.]
Section 113B of the Act reads as follows:
[113B. 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. Explanation.–For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]
17. As per definition of dowry death under Section 304B IPC and the wording in the presumptive Section 113B of the Act, if it is proved that death of woman is caused by any burn 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 (i) She was subjected to cruelty or harassment by her husband or his relatives; (ii) Such cruelty or harassment was for, or in connection with, demand of dowry; and (iii) Such cruelty or harassment was soon before her death; then it becomes obligatory on the court to raise a presumption that accused caused dowry death.
18. As per post-mortem report Ex. Ka-3 and statement of Dr. A.S. Khan cause of death of deceased Smt. Arti @ Baby is asphyxia as a result of ante-mortem hanging. There was no any other injury expect ligature mark on the neck of the deceased Smt. Arti @ Baby. This shows that she has committed suicide. Deceased Smt. Arti @ Baby died on 20.5.2005 whose marriage was solemnized on 23.4.2004. This fact has been admitted by the appellants-accused person in their statement under Section 313 Cr.P.C. Therefore, it proved beyond reasonable doubt that Smt. Arti @ Baby died within seven years of her marriage and her death was caused otherwise than under normal circumstances.
19. Now, it has to be seen that soon before her death, deceased Smt. Arti @ Baby was subjected to cruelty or harassment by her husband and his relatives in connection with demand of dowry. This element and burden of prove in case of dowry deaths have been dealt with in detail by Hon’ble The Apex Court in Sher Singh @ Partapa v. State of Haryana 2015 (89) ACC 288 (SC). The Apex Court held as under:
“12 In our opinion, it is beyond cavil that where the same word is used in a section and/or in sundry segments of a statute, it should be attributed the same meaning, unless there are compelling reasons to do otherwise. The obverse is where different words are employed in close proximity, or in the same section, or in the same enactment, the assumption must be that the legislature intended them to depict disparate situations, and delineate dissimilar and diverse ramifications. Ergo, ordinarily Parliament could not have proposed to ordain that the prosecution should “prove” the existence of a vital sequence of facts, despite having employed the word “shown” in Section 304B. The question is whether these two words can be construed as synonymous. It seems to us that if the prosecution is required to prove, which always means beyond reasonable doubt, that a dowry death has been committed, there is a risk that the purpose postulated in the provision may be reduced to a cipher. This method of statutory interpretation has consistently been disapproved and deprecated except in exceptional instances where the syntax permits reading down or reading up of some words of the subject provisions.
13 In Section 113A of the Evidence Act Parliament has, in the case of a wife’s suicide, “presumed” the guilt of the husband and the members of his family. Significantly, in Section 113B which pointedly refers to dowry deaths, Parliament has again employed the word “presume”. However, in substantially similar circumstances, in the event of a wife’s unnatural death, Parliament has in Section 304B “deemed” the guilt of the husband and the members of his family. The Concise Oxford Dictionary defines the word “presume” as: supposed to be true, take for granted; whereas “deem” as: regard, consider; and whereas “show” as: point out and prove. The Black’s Law Dictionary (5th Edition) defines the word “show” as- to make apparent or clear by the evidence, to prove; “deemed” as- to hold, consider, adjudge, believe, condemn, determine, construed as if true; “presume” as- to believe or accept on probable evidence; and “Presumption”, in Black’s, “is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” The Concise Dictionary of Law, Oxford Paperbacks has this comprehensive yet succinct definition of burden of proof which is worthy of reproduction:
“Burden of Proof: The duty of a party to litigation to prove a fact or facts in issue. Generally the burden of proof falls upon the party who substantially asserts the truth of a particular fact (the prosecution or the plaintiff). A distinction is drawn between the persuasive (or legal) burden, which is carried by the party who as a matter of law will lose the case if he fails to prove the fact in issue; and the evidential burden (burden of adducing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or non-existence of a fact in issue.
The normal rule is that a defendant is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case by establishing both the actus reus of the crime and the mens rea. It must first satisfy the evidential burden to show that its allegations have something to support them. If it cannot satisfy this burden, the defence may submit or the judge may direct that there is no case to answer, and the judge must direct the jury to acquit. The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden of proof (e.g. the fact that a woman was subjected to violence during sexual intercourse will normally raise a presumption to support a charge of rape and prove that she did not consent). If, however, the prosecution has established a basis for its case, it must then continue to satisfy the persuasive burden by proving its case beyond reasonable doubt (see proof beyond reasonable doubt). It is the duty of the judge to tell the jury clearly that the prosecution must prove its case and that it must prove it beyond reasonable doubt; if he does not give this clear direction, the defendant is entitled to be acquitted.
There are some exceptions to the normal rule that the burden of proof is upon the prosecution. The main exceptions are as follows. (1) When the defendant admits the elements of the crime (the actus reus and mens rea) but pleads a special defence, the evidential burden is upon him to prove his defence. This may occur, the example, in a prosecution for murder in which the defendant raises a defence of self-defence. (2) When the defendant pleads automatism, the evidential burden is upon him. (3) When the defendant pleads insanity, both the evidential and persuasive burden rest upon him. In this case, however, it is sufficient if he proves his case on a balance of probabilities (i.e. he must persuade the jury that it is more likely that he is telling the truth than not). (4) In some cases statute expressly places a persuasive burden on the defendant; for example, a person who carries an offensive weapon in public is guilty of an offence unless he proves that he had lawful authority or a reasonable excuse for carrying it”.
14 As is already noted above, Section 113B of the Evidence Act and Section 304B of the IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word ‘deemed’ in Section 304B to distinguish this provision from the others. In actuality, however, it is well nigh impossible to give a sensible and legally acceptable meaning to these provisions, unless the word ‘shown’ is used as synonymous to ‘prove’ and the word ‘presume’ as freely interchangeable with the word ‘deemed’. In the realm of civil and fiscal law, it is not difficult to import the ordinary meaning of the word ‘deem’ to denote a set of circumstances which call to be construed contrary to what they actually are. In criminal legislation, however, it is unpalatable to adopt this approach by rote. We have the high authority of the Constitution Bench of this Court both in State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory AIR 1953 SC 333 and State of Tamil Nadu v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the Court to ascertain the purpose behind the statutory fiction brought about by the use of the word ‘deemed’ so as to give full effect to the legislation and carry it to its logical conclusion. We may add that it is generally posited that there are rebuttable as well as irrebuttable presumptions, the latter oftentimes assuming an artificiality as actuality by means of a deeming provision. It is abhorrent to criminal jurisprudence to adjudicate a person guilty of an offence even though he had neither intention to commit it nor active participation in its commission. It is after deep cogitation that we consider it imperative to construe the word ‘shown’ in Section 304B of the IPC as to, in fact, connote ‘prove’. In other words, it is for the prosecution to prove that a ‘dowry death’ has occurred, namely, (i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured, (ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for dowry and (v) that the cruelty or harassment meted out to her continued to have a causal connection or a live link with the demand of dowry. We are aware that the word ‘soon’ finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 306 of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. It seems to us that what Parliament intended by using the word ‘deemed’ was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt. This interpretation provides the accused a chance of proving their innocence. This is also the postulation of Section 101 of the Evidence Act. The purpose of Section 113B of the Evidence Act and Section 304B of the IPC, in our opinion, is to counter what is commonly encountered – the lack or the absence of evidence in the case of suicide or death of a woman within seven years of marriage. If the word “shown” has to be given its ordinary meaning then it would only require the prosecution to merely present its evidence in Court, not necessarily through oral deposition, and thereupon make the accused lead detailed evidence to be followed by that of the prosecution. This procedure is unknown to Common Law systems, and beyond the contemplation of the Cr.P.C.”
20. According to the principle laid down by Hon’ble The Apex Court, once prosecution proved that where death of woman has occurred otherwise than under normal circumstance within seven years of her marriage and she was subjected to cruelty and harassment by her husband and the relatives of her husband soon before her death in connection with demand of dowry, then heavy burden of proof lies upon accused to adduce evidence dislodging his guilt, beyond reasonable doubt.
21. For the first time, Smt. Ram Dulari produced a letter before the court at the time of recording her evidence alleged to have been written by the deceased Smt. Arti @ Baby. She deposed as follows:-
……….esjk ukrh ¼yMdh dk yMdk½ rhu fnu igys uhjt mldh fcfV;k ds llqjky x;k FkkA uhjt dk ?kj egcsuh esa gSA ;g esjh cMh yMdh :insoh dk yMdk gSA esjh fcfV;k csch us uhjt dks pyrs le; ,d fpV~Bh fn;k FkkA fpV~Bh ysdj og vius xkao egcsuh pyk x;k FkkA csch ds ejus ds nwljs fnu lwpuk nsus ij esjs xkao vkdj mlus crk;k fd csch us ;g fpV~Bh fn;k gS mlesa fy[kk gS fd ;fn eSa ej tkÅa rks llqjky okyksa us ekjk gS bUgsa er NksMukA eSa viuh fcfV;k dh fy[kkoV igpkurh gwaA xokg us csch }kjk fyf[kr i 22 x ns[kdj dgk fd ;g mldh fy[kh gS] eSa mldh fy[kkoV igpkurh gwa ftlij izn’kZ d2 Mkyk x;kA ;g i eSusa tks iqfyl vf/kdkjh esjk c;ku ysus vk, Fks mudks fn;k FkkA ;g i eqls fy;k ugha o dgk bls dksVZ esa nkf[ky dj nsukA”
In letter it is narrated that if she died then it will be presumed that her in-laws has caused her death. This letter has been proved by Smt. Ram Dulari. It must be noted that Smt. Ram Dulari is illiterate lady and she put her thumb impression on her statement before the court. It is not possible for her to prove the letter written by her daughter deceased Smt. Arti @ Baby. This letter has not been produced before the Investigating Officer Circle Officer Shiva Ji Shukla. Investigating Officer has admitted in his statement that Smt. Ram Dulari or any family members have never produced before him any letter written by the deceased. PW-1 Ram Dulari and PW-5 Niraj Singh stated before court that on 21.5.2005 Ram Dulari was producing the letter to Investigating Officer but he did not received the letter and advised them to produce before court. This letter was very important evidence of this case. Investigating Officer was not adverse to the Informant/complainant. He has filed chargesheet not only against husband, his mother, father but also against younger brother and unmarried sisters of husband. In such situation, there was no cause for the Investigating Officer not to receive this letter which was provided to him during investigation. DW-4 Handwriting and Finger Print Expert T.N. Shukla has stated before the court that writing of this letter is different from admitted writing of the deceased. Therefore, on the basis of this letter, it cannot be inferred that appellants have harassed deceased Smt. Arti @ Baby.
22. PW-1 Smt. Ram Dulari in her statement before the court has admitted the fact that marriage was solemnized in pleasant atmosphere. Her son-in-law (damad) Jai Singh @ Bade visited her residence regularly with his wife and returned back. Smt. Ram Dulari has not narrated in her statement before the court that at the time of marriage, no demand of dowry was made by the appellants-accused. She further admitted that her daughter came at her residence with her husband before her death. Her daughter and her husband stayed there about 4 days, thereafter they returned to their home. Smt. Ram Dulari has not stated that at that time any demand of dowry was made by the appellant Jai Singh @ Bade. This shows that relation of deceased Arti @ Baby was cordial with her husband-appellant Jai Singh @ Bade. In such cordial relation, it cannot be imagined that husband of deceased or her in-laws demanded dowry or subjected to cruelty or harassment to deceased for, or in connection with, any demand of dowry. She has also admitted this fact that her husband was unemployed. If there was no any demand of dowry at the time marriage, then after marriage there was no reason to demand Rs. 50,000/- and refrigerator in dowry by a person who was unemployed.
23. Smt. Ram Dulari Devi shows her ignorance about smoking of smack by her son-in-law Jai Singh @ Bade in her statement before the court. When asked by learned counsel of accused, she denied to make statement to Investigating Officer that her son-in-law smoked smack. Investigating Officer CO Shivaji Shukla, who recorded statement of Smt. Ram Dulari under Section 161 Cr.P.C. on 21.5.2005 proved the statement of Ram Dulari under Section 161 Cr.P.C. In her statement to Investigating Officer, she had stated that her son-in-law Jai Singh @ Bade smoked smack. This statement was made to Investigating Officer on the next date of death of deceased Smt. Arti @ Baby without any preconcert which is more reliable.
24. Here it must also be noted that on information of appellant Mohan Singh inquest report has been prepared by the police on 20.5.2005. He informed the police at 9:20 AM that her daughter-in-law Smt. Arti @ Baby has committed suicide in her room.
25. Here it must be further noted that no specific role has been assigned to the accused-appellants Jai Singh @ Bade, Mohan Singh, Smt. Ram Beti, Vijay Singh, Km. Meenu @ Namita Singh and Km. Manu @ Pooja for demand of dowry or causing cruelty or harassment to the deceased. Name of the accused-appellant, who demanded dowry or harassed the deceased, has not been specified by the prosecution. Date, time and place of demand of dowry, harassment and cruelty have also not been specified. General allegation of demanding dowry has been made against husband, his mother, father, brother and unmarried sisters. On the basis of general allegation, all relatives of husband including younger and elder brothers, married and unmarried sisters, wives of brother, brother-in-laws etc., cannot be held responsible for demand of dowry and harassment. Our social system is changing at a rapid pace. In the 21st century, the concept of joint family has totally changed. Today, there are very few families which have a joint living. Nowadays, every person likes to live separately from his brother, sister and other family members. In such a social system, unless specific allegation has been made, except the husband, father-in-law and mother-in-law, no other relatives of the husband should be made responsible for demand of dowry, cruelty or harassment.
26. From the facts, circumstances and evidence produced by the parties, it is more probable that deceased may have committed suicide in anger and depression due to smoking smack by her husband.
27. For the aforesaid reasons, I am of the view that the prosecution has not shown, even by preponderance of probability, that soon before her death, deceased Smt. Arti @ Baby was treated with cruelty or harassed by accused-appellants Jai Singh @ Bade, Mohan Singh, Smt. Ram Beti, Vijay Singh, Km. Meenu @ Namita Singh and Km. Manu @ Pooja in connection with demand of dowry. The trial court while recording conviction against the appellants failed to properly appreciate the evidence, facts and circumstances of the case and recorded erroneous finding of conviction, which cannot be sustained.
28. Accordingly, both the aforementioned appeals are allowed. Conviction of appellants- Jai Singh @ Bade, Mohan Singh, Smt. Ram Beti, Vijay Singh, Km. Meenu @ Namita Singh and Km. Manu @ Pooja under Sections 498A, 304B IPC and Section 4 of Dowry Prohibition Act are hereby set aside and they are acquitted.
29. Appellants Mohan Singh, Smt. Ram Beti, Vijay Singh, Km. Meenu @ Namita Singh and Km. Manu @ Pooja are on bail, they need not surrender. Their bail bonds stand cancelled and sureties are discharged. Appellant Jai Singh @ Bade has already been released.
30. Office is directed to send a certified copy of this order to Sessions Judge, Fatehpur for its compliance. Let the lower court’s record be remitted back to the court concerned.
Order Date :- 08.01.2018