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Gadadhar Panda vs The State & Anr. on 30 August, 2019

$
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment Reserved On: 15.07.2019
Judgment Pronounced On: 30.08.2019
CRL.A.1199/2012
Gadadhar Panda ….. Appellant

Versus

The State Anr. ….. Respondent
Advocates who appeared in this case:

For the Appellant : Ms. S.R.Pandey and Mr.
A.K.Pandey Advocates.
For the Respondents : Ms. Radhika Kolluru, APP for
State.
Mr. Alok Bhachawat, Mr. Uday
Singh and Mr. S.Jeeva Nandan, `
Advocates for R-2.
CORAM:
HON’BLE MR. JUSTICE SIDDHARTH MRIDUL
HON’BLE MR. JUSTICE BRIJESH SETHI

JUDGMENT

BRIJESH SETHI, J

1. The appellant has instituted the present appeal under Sectionsection

372 of the Code of Criminal Procedure, 1973 (hereinafter referred

to as „SectionCr.P.C‟) read with Sectionsection 482 Cr.P.C. against the impugned

judgment dated 30.07.2012 passed in Sessions Case No. 50/2012,

CRL.A.1199/2012 Page 1 of 32
arising out of FIR No.473/2007 (hereinafter referred to as the

„subject FIR‟), registered at Police Station -Kalkaji; whereby the

Trial Court has acquitted the appellant Dev Prasad Giri (hereinafter

referred to as „the respondent no. 2‟) of a charge framed against

him under Sectionsection 498A/Section304B/Section34 Indian Penal Code, 1860.

2. Before going into the merits of the present appeal, it is

relevant to recapitulate the brief facts of the present case which are

as follows:

„On 20.05.2007, at about 9.59 a.m., DD No. 4A
was handed over to SI Balbir Singh and he along
with Ct. Dharam Singh reached at the spot i.e.
H.No. 1680-C/3, 1st Floor, Govind Puri Extn.,
Delhi where they saw a lady lying dead on the bed
with ligature marks on her neck. The name of the
lady was revealed as Pratibha. Appellant Dev
Prasad Giri was found present at the spot and told
the IO that said lady is his wife and she had
hanged herself from the ceiling fan and he had
brought down the dead body from hanging
position. No suicide note was found at the spot.
IO informed the crime team as well as SDM. IO
informed about the present incident to the parents
of victim and thereafter on the next date i.e. on
21.05.2007, Gadadhar Panda (father of the
victim), Ms. Kanchan (mother of the victim) and
Suryakant Panda (brother of the victim) reached
Delhi and they were produced before SDM on
22.05.2007 where statement of Gadhadhar Panda
was recorded before the SDM.

In his statement, Sh. Gadadhar Panda (father of
the victim) stated that his daughter Pratibha
Panda was married with accused Dev Prasad Giri
on 06.07.2003. He alleged that at the time of
marriage, in-law of his daughter demanded the
money of Rs. 3,00,000/- in dowry and on his
request, they agreed to take Rs. 2,50,000/-. He
further deposed that he had given Rs. 2,50,000/- by

CRL.A.1199/2012 Page 2 of 32
way of six demand drafts and apart from that, the
accused and his family also demanded furniture
and he fulfilled their demand by taking money from
his relatives. He has further stated that her
daughter was subjected to cruelty for demand of
dowry. On 20.05.2007, he received information
that his daughter has committed suicide and this
information was given to them by accused Dev
Prasad Giri.

After his statement, recorded by SDM, IO took the
bed sheet in possession with which she was
hanged. Crime team arrived at the spot and took
some photographs. IO seized the jewellery items
which were on the body of the victim and also
seized one small size purse. One gold chain with Z
type locket, two gold kundal and two ear rings, one
gold ring on which thread was wrapped, one gold
ring on which white colour stone was fixed, one
ring with diamond, two gold bangles, one pair
silver paijeb, one silver ring with white stone, four
artificial bangles, one ICICI Visa card and one
leather bag were also seized by the IO. On the
basis of statement of Gadadhar Panda, recorded
by the SDM, the FIR in the present case was
registered under Section 498A/Section304B IPC on
22.05.2007.

On 23.05.2007, IO Insp. Sunder Lal got conducted
the post mortem on the dead body of deceased. IO
also recorded statement of Gadhadhar Panda
(father of deceased), Smt. Kanchan Bala (mother
of deceased) and Surya Kant Panda (brother of
deceased). IO had also taken into possession
photocopies of six bank drafts of total Rs.2.50 Lac
and marriage invitation card.

Appellant Dev Prasad Giri was arrested on
23.05.2007 and his personal search was also
conducted. On 29.05.2007, the postmortem report
of deceased was obtained. IO also received six
pages of Oriya language along with its translated
copy in English and one CD and one marriage
invitation card and on 19.06.2007 again two
photographs were received. On 19.06.2007, the
Viscera was sent to FSL-Rohini through Ct.
Rajpal. Accused Sneh Lata Giri and Siba Prasad
Giri could not be arrested and they were declared
PO. After completion of the investigation, charge-
sheet against the appellant was filed before the
Court of Ld. MM for the offences punishable under
Sections 498A/Section304B IPC was filed and the matter

CRL.A.1199/2012 Page 3 of 32
was committed to Ld. Sessions Court as the
offences involved in the present case were sessions
triable.

On 24.07.2008, the supplementary charge was
received by SectionSh. V.K.Bansal, the then Ld. ASJ, and
the same was clubbed with the main charge sheet
vide order dated 24.07.2008 wherein both the
accused Sneh Lata Giri and Siba Prasad Giri were
declared proclaimed offender.‟

3. Vide impugned judgment dated 30.07.2012, passed by Sh. Lal

Singh, Ld. ASJ-02/FTC, New Delhi District, Patiala House Courts,

appellant Dev Prasad Giri was acquitted for the offence punishable

under Sectionsection 498A/Section304B IPC and file was ordered to be consigned

to Record Room with direction to reopen the same as and when co-

accused persons namely Sneh Lata Giri and Siba Prasad Giri, who

had been declared proclaimed offenders, are arrested or surrender

before the court.

4. Aggrieved by the impugned judgment dated 30.07.2012, Sh.

Gadadhar Panda, appellant/father of the victim, filed the present

appeal and has argued that Ld. Trial Court has misappreciated the

testimony of material witnesses PW-2 Gadadhar Panda, PW-5 Ms.

Kanchan, PW-8 Surya Kant Panda and PW-9 Alekh Chander Behra,

who have categorically deposed that there was demand of dowry

and deceased was subjected to cruelty for non-fulfilling of the said

demand and as a result of such cruelty, she died an unnatural death.

CRL.A.1199/2012 Page 4 of 32
He has argued that demand of dowry had started right from the

beginning of the marriage and continued till the death of the

deceased Pratibha Panda.

5. Learned counsel for the appellant has argued that learned

Trial Court erred in coming to the conclusion that there was no

demand of dowry and no cruelty was committed upon the deceased

by the respondents for non fulfilling the said demand. PW-2

Gadadhar Panda, PW-5 Ms. Kanchan, PW-8 Surya Kant Panda and

PW-9 Alekh Chander Behra have categorically stated that there

was demand of dowry and a sum of Rs. 2,50,000/- was paid to the

father of the respondent no.2 by way of demand drafts.

6. It was further argued that learned Trial Court failed to

appreciate the evidence of PW-5 Ms. Kanchan who deposed that

she had received a telephone call from her daughter on 19.05.2007,

i.e., just a day before her death and told her that she was beaten by

her husband and she was also tried to be strangulated.

7. Learned Counsel has next argued that there were other

incidents of demand of dowry and cruelty dated 15.04.2007 and

CRL.A.1199/2012 Page 5 of 32
15.05.2007. The learned Trial Court has, however, ignored the same

and wrongly acquitted respondent no. 2.

8. Learned counsel has further argued that despite the fact that

all ingredients of Sectionsection 304B of IPC were fulfilled, the learned

Trial Court has acquitted the respondent no. 2 by relying upon such

minor contradictions which do not go to the root of the case.

Learned Trial Court has also failed to properly appreciate and

interpret the phrase ‘soon before her death’ which does not mean

immediately before death but is a flexible term and in other words, it

should not be remote in point of time and thereby make it a stale one

and that it should not be given a narrow meaning which would

otherwise defeat the very purpose of the provisions of the Act and

should not lead to absurd results.

9. Learned Counsel has further argued that since at the time of

alleged incident, only accused and victim were in the house, it was

for the accused to explain as to why the deceased died an unnatural

death as there cannot be any independent witness to narrate as to

what had happened inside the house.

CRL.A.1199/2012 Page 6 of 32

10. Learned counsel has further argued that even if it is assumed

for the sake of argument that no offence under Section 304B IPC

was made out, however, there was sufficient evidence before

learned Trial Court to convict the appellant under Section 306 IPC.

11. It is next argued by Ld. Counsel that the death of Pratibha

Panda was otherwise than in normal circumstances as there were

ligature marks on the neck. The death had occurred within 7 years

of marriage and as per the evidence appearing on record, the

deceased was subjected to cruelty and harassment which started

after 15 days of marriage and continued till the death of Pratibha.

The learned Trial Court has, therefore, erred in acquitting the

respondent no.2.

12. It is next argued by Ld. Counsel for the appellant that the

acquittal is simply based upon the arguments advanced by learned

defence counsel which are not tenable as these go against the facts

and evidence available on record. Testimony of PW-5 Gadadhar

Panda proves that there was harassment of the deceased for money.

Statement of PW-8 reveals that there was an apprehension that

deceased would be killed by accused persons and in fact the threat

CRL.A.1199/2012 Page 7 of 32
was also transformed into reality as Pratibha Panda died an

unnatural death on 20.05.2007.

13. Learned counsel has next argued that this was a case of

homicide not suicide. According to learned counsel, the postmortem

report reveals that the ligature mark was minimum 1 CM to

maximum 2.5 CM in breadth whereas the bed-sheet which is alleged

to be and is never of this breadth. In fact, it is much wider and in

that case, the ligature mark is all around the neck. Since the ligature

mark is in front of neck and out of 28 CMs circumference of the

neck, it is only on 13 CMs, therefore, the plea of the accused that it

a case of suicide is false and it is in fact a case under Sectionsection 304B

IPC.

14. Ld. Counsel has next argued that the postmortem report

clearly states that death is due to ASPHYXIA as a result of

compression of neck structure and the doctor‟s opinion in the post

mortem report substantiates the fact that belt was used for

compressing the neck and that is why the ligature mark is only in a

portion of the neck and that too in the front and this negates the

accused‟s plea that deceased had committed suicide.

CRL.A.1199/2012 Page 8 of 32

15. Ld. Counsel has further argued that accused‟s silence from

12.00 midnight till 10.00 am in the morning, and the admitted

quarrel between the respondent/husband and deceased wife on the

fateful night just before the unnatural death clearly proves that the

death was due to compression of the neck by the accused with his

own belt.

16. Per contra, it is argued by Ld. Counsel for the respondent no.

2 that there is no evidence to show that soon before her death, the

deceased was treated with cruelty in relation to a demand for dowry.

It is further argued that the incidents dated 15.04.2007 and

15.05.2007 had never taken place and except the statement of

interested and motivated witnesses, there is nothing on record to

prove these incidents. The testimonies of witnesses regarding these

incidents are inconsistent and contradictory to each other. It is

further argued that the incident dated 15.04.2007 is not mentioned in

complaint Ex.PW2/A. It is further argued that there is no medical

examination report of alleged beating on 15.04.2007 and spots on

the face. The demand of dowry by way of drafts has also not been

proved. It is submitted that demand drafts were given for the

CRL.A.1199/2012 Page 9 of 32
purpose of making arrangements for the marriage which had to take

place in Cuttack, Orissa whereas family of victim lived in

Chhattisgarh. It is further argued that it is clear from the evidence

and documents on record that neither harassment was caused nor

any demand of dowry was ever made by the accused which may

constitute an offence under Section 498A IPC. Ld. Counsel

submitted that the allegation relating to demand drafts is an

afterthought so as to make a false case of dowry death. It is further

argued that no police complaint about the harassment/dowry

demand/cruelty from the date of marriage till the death of victim

was filed. It is finally argued that reason of suicide by deceased was

not the demand for dowry, but probably it was on account of her not

being able to conceive for 4 years and respondent no. 2 not agreeing

to adopt a child.

17. We have considered the rival contentions and carefully

examined the impugned judgment and the evidence appearing on

record and are of the opinion that learned Trial Court has correctly

appreciated the evidence appearing on record and has rightly held

that there are major contradictions in the statements of all the

CRL.A.1199/2012 Page 10 of 32
material witnesses. The drafts for Rs. 2,50,000/- were, in fact, given

for the purpose of making arrangements for the marriage which was

to take place in Orissa whereas the complainant was residing in

Jharkhand and was unable to make the necessary arrangements.

Thus, the allegation of the prosecution that Rs. 2,50,000/- were

demanded as dowry was not believed by the learned Trial Court and

it has given following reasons for the same:-

“PW 2 further stated that after two months of
marriage, his daughter was sent to Delhi to live
with the accused and accused started giving
beatings to her and also compelled her to do
work and the accused also told her that she had
not brought sufficient money. He deposed that
before marriage accused Dev Prasad Giri, his
mother and aunt (Tai) demanded Rs. 3 lacs and
on this PW 2 inquired them as to who was the
guardian and Dev Prasad Giri told him that his
father is guardian. PW 2 specifically stated that
the matter was settled at Rs. 2,50,000/−, which
he gave by way of draft. However, in his
cross−examination, PW 2 admitted that the
marriage was performed in Orissa and they were
living in Chattisgarh and for making
arrangements for marriage money was required
in Orissa. PW 2 categorically admitted in his
cross−examination that for that arrangements of
marriage he had to sent the money to Orissa by
way of drafts and he issued the drafts as required
by the family of accused. At the one point, in his
examination in chief, the PW 2 deposed that the
accused and his mother demanded dowry of Rs. 3
lacs and that has been settled for Rs. 2,50,000/−,
but in his cross−examination, he has admitted
that the money was sent for arrangement of
marriage by way of drafts. Therefore, there is
contradiction in the statements of PW 2. In

CRL.A.1199/2012 Page 11 of 32
cross−examination PW 2 has not stated that the
money was sent in lieu of the dowry demand.
Therefore, there is force in the contention of
counsel of the accused that it is improbable that
dowry would be taken in the form of drafts.”

18. We have also carefully perused the statement of the PW-2

Gadadhar Panda in regard to demand of dowry by the respondent

and found that he has admitted in his cross examination that the

amount was given for making arrangements for the marriage in

Orissa and not as dowry demand.

19. Perusal of the statement of PW-2 Sh. Gadadhar Panda

further reveals that he has deposed that he had met his daughter

lastly on 15.04.2007 in Cuttack, Orissa and he had seen some spots

on her face and on inquiry, his deceased daughter had told him that

these spots were the result of beating given by her mother-in-law

and brother-in-law as they were demanding Rs.1,00,000/-.

However, PW-5 Ms. Kanchan, mother of the deceased, who had

also met her daughter on 15.04.2007 has nowhere stated that there

were pink spots on the face of her daughter and these were there

because of the beating given by the her mother-in-law and Dever

(Brother-in-law). PW-5 Ms. Kanchan has stated that on

15.04.2007, her daughter had told her that she wanted to go to her

CRL.A.1199/2012 Page 12 of 32
parental home and accused had told her (PW-5) that since her

parents have just met her, what was the purpose of going to the

parental home and had also abused her. This is a totally different

version from what has been deposed by PW-2 Sh. Gadadhar Panda.

PW-5 Ms. Kanchan has nowhere stated that her daughter was

beaten on 15.04.2007. Had there been any truth in the statement of

PW-2 Sh. Gadadhar Panda, father of deceased, that her daughter

was beaten and there were pink spots on her face, PW-5 Ms.

Kanchan who had also met deceased on 15.04.2007 must have

noticed this fact without any fail. Learned Trial Court has also dealt

with this contradiction in the statement of witnesses in its judgment

and the relevant observations are as follows:-

“Further, PW 2 stated that he met his
daughter lastly on 15.04.2007 in Cuttack,
Orissa and at that time they had seen some
spots on the face of his daughter and when he
inquired as to how she got those spots and she
told him that she was beaten for Rs. 1 lac and
she was also beaten by her mother−in−law
and dewar. PW 5 Ms. Kanchan, who is the
mother of the deceased also stated that she last
time met her daughter on 15.04.2007 in the
matrimonial home of her daughter. But PW 5,
mother of the deceased stated that on
15.04.2007, her daughter told her that she
wanted to go her parental home and accused
told her that her parents had just met and for
what purpose she wants to go her parental
home and he also abused her. PW 5 further

CRL.A.1199/2012 Page 13 of 32
stated that thereafter, the mother in law stated
that they had said so by joking. She further
deposed that the mother in law, father in law
and husband of her daughter stayed in their
home for one day and thereafter left for
Cuttack, Orissa and they had given the gifts
etc. when they left. Regarding the alleged
incident of 15.04.2007, there is also
contradictions in the testimonies of PW 2 and
PW 5, although, both were stated to have met
their daughter on 15.04.2007. As PW 2
categorically stated that on 15.04.2007, when
he lastly met with his daughter, he had seen
some spots on the face of his daughter and on
inquiry she told him that she was been beaten
for Rs. 1 lac, however, this fact has not been
disclosed by the PW 5 Ms. Kanchan and she
has deposed entirely different version
regarding the incident of 15.04.2007.
Therefore, it creates doubts regarding the
alleged incident of 15.04.2007. PW 2 was also
confronted with the statement Ex. PW 2/A,
given to the police, wherein it was not so
recorded that he had seen spots on the face of
his daughter and on the inquiry she told that
she was given beatings for Rs. 1 lac. PW 2 in
his cross−examination further stated that his
daughter disclosed to him regarding the
incident of 13.04.2007 on 15.04.2007 and at
that time his wife was also with him, but PW 5,
the wife of the PW 2 had not stated so.”

20. There are, thus, contradictions in the testimony of PW-5 Ms.

Kanchan for which the learned Trial Court has rightly disbelieved

her. PW-5 has deposed that one day prior to the death of her

daughter, she (her deceased daughter) had made telephonic call to

her and told that she was beaten and there was an attempt to

strangulate her and her cheek was also swollen and she was not able

CRL.A.1199/2012 Page 14 of 32
to eat. However, this fact has not been disclosed by her to the police

in her statement Ex.PW5/DA. Moreover, PW-2 Sh. Gadadhar

Panda, father of the deceased, has not deposed about this fact in his

testimony. Since this fact is quite material as it had taken place just

one day before the alleged unnatural death, it was not possible that

mother of deceased Ms. Kanchan would not have disclosed the same

to her husband. Even if it is believed for the sake of argument that

this fact was not disclosed by PW-5 Ms. Kanchan to her husband

PW-2 Sh. Gadadhar Panda, however, non disclosure of this fact to

the IO in her statement Ex.PW5/DA is beyond comprehension. It is

difficult to believe the fact that PW-5 Ms. Kanchan would not have

told this material fact to all concerned including investigating

officer. The learned Trial Court has also given its reasoning on this

point and it runs as follows:-

“PW 5 Kanchan, mother of the deceased,
deposed that one day prior to 20.05.2007, her
daughter made a telephone call to her and told
that she was beaten and was also tried to be
strangulated and her cheek had swollen and
she was not able to eat, however, in
cross−examination, PW 5 stated that she had
told to the police regarding the aforesaid facts.
PW 5 was confronted with the statement Ex.
PW 5/DA, wherein it was not so recorded.”

CRL.A.1199/2012 Page 15 of 32

21. Learned Counsel for the appellant has, however, pointed out

that there was another incident dated 15.05.2007 in which PW-5

Ms. Kanchan has stated that her daughter had told her that she was

beaten on that day (15.05.2007) and when she had inquired as to

why she was beaten, she had told that accused asked her to wake up

early in the morning as he has to go somewhere and she replied that

the person who had to go must be concerned about the time and also

told that she will wake up late in the morning and, therefore, she

was beaten. It is argued by learned counsel for the appellant that the

said incident has not been discussed by the learned Trial Court and

it being a material fact, shows non-application of mind by the

learned Trial Court.

22. We have perused the statement of PW-5 Ms. Kanchan. In her

cross examination, she has given the following statement:-

“I had told the police that my daughter told me
that she was beaten on 15.05.2007 when I
inquired as to why she has been beaten by the
accused, she told me that accused asked her to
wake him up early in the morning as he had to
go somewhere and she replied that the person
who had to go must be concerned about the
time and also told that she will wake late in the
morning and therefore she was beaten.
Confronted with Ex.PW5/DA wherein the
reason of beating and the date is not
mentioned, however, it is mentioned that on

CRL.A.1199/2012 Page 16 of 32
15.05.2007 her daughter was beaten and she
sustained injury on her face and cheek.”

23. Perusal of cross examination of PW-5 reveals that she had not

stated to the police about date of incident and reason of her daughter

being beaten. Moreover, PW-2 Sh. Gadadhar Panda has not deposed

anything about this incident of 15.05.2007. There is no medical

examination or police complaint regarding the incident. Perusal of

the record reveals that this fact was never disclosed to the police nor

corroborated by any other witness. Thus, even if the said fact which

is not proved was not discussed by learned Trial Court it does not

affect the findings given by the learned Trial Court.

24. Let us now examine the testimony of PW-8 Surya Kant

Panda who is the brother of the deceased to find out whether

learned trial court has rightly evaluated his testimony. This witness

has deposed that family of the accused had demanded Rs. 3,00,000/-

as part of the dowry but his father had expressed his inability to

arrange such a huge amount but he had finally agreed to pay Rs.

2,50,000/-. This amount was paid in the form of three bank drafts.

In the cross examination, PW-8 Surya Kant Panda has deposed

that the demand of Rs. 2,50,000/- was settled after discussion with

CRL.A.1199/2012 Page 17 of 32
both the sides. His father and mother had gone to Cuttack for talk

and settlement. Whereas father of the deceased PW-2 Gadadhar

Panda has stated in his cross-examination that it was given for

arrangement of marriage. Statement of this witness is, thus, at

variance with the statement of his father regarding purpose for

which amount of Rs. 2,50,000/- was given to the family of the

accused. In fact it is the father of the complainant who had given the

demand drafts and talked to the family of the accused for payment

of amount. His statement is, therefore, more reliable than the

statement of PW-8. In view of the above contradiction, it is difficult

to believe the version of PW-8 and Ld. Trial Court has, therefore,

committed no illegality by not relying upon the same.

25. PW-9 Sh. Alekh Chander Behra is the mediator who had

arranged the marriage of deceased Pratibha Panda and respondent

no. 2 Dev Prasad Giri. He has given a different version regarding

amount of dowry demanded. He has stated that a sum of Rs.

4,00,000/- was demanded by the accused persons whereas PW-5

Ms. Kanchan has stated that it was Rs. 3,00,000/- and PW-2 in his

cross-examination has stated that it was for making arrangement for

CRL.A.1199/2012 Page 18 of 32
the marriage at Orissa. Thus, there is contradiction in the statement

of prosecution witnesses regarding purpose for which amount was

given and there is also contradiction regarding the amount

demanded by the accused persons.

26. Learned Trial Court has also given reasons for not believing

the version of PW-9 and it runs as follows:-

„PW 9, Alekh Chander Behra, who was the
mediator of the marriage, stated that there was
a demand of Rs. 4 lacs from the accused side.
However, PW 2 and PW 5 stated that there
was demand of Rs. 3 lacs from the accused
side before the marriage. PW 8 also stated
that the demand of dowry was around 2.5 lacs
to 3 lacs, therefore, there is contradiction in
the statements of material prosecution
witnesses, regarding the amount of dowry,
alleged to be demanded by the accused side,
which also creates strong doubt about the
prosecution version.‟

27. We do not find any perversity in the appreciation of testimony

of PW-9 as well as other material witnesses by the learned Trial

Court. It was, therefore, rightly held by learned Trial Court that in

view of the contradictions in the testimonies of witnesses regarding

the incidents of cruelty and harassment, the prosecution has failed to

prove its case that deceased was subjected to cruelty for fulfillment

CRL.A.1199/2012 Page 19 of 32
of demand of dowry and this was responsible for her unnatural

death.

28. Learned counsel for the appellant has, however, argued that

the postmortem report, the breadth of ligature mark, the accused‟s

silence from 12.00 midnight till 10.00am with regard to unnatural

death and the admitted quarrel between the accused and deceased on

the fateful night just before the death are sufficient to draw inference

that the unnatural death was due to compression of the neck by the

accused with his belt, whose general size tallies with the size of the

ligature mark.

29. We have given our thoughts to this argument of learned

counsel for the appellant. Perusal of the report Ex.PW6/A authored

by PW6 Dr. Sudeep Singh reveals that PW-6 has categorically

stated in his report and also deposed in the court that in his opinion,

it was a case of suicide. This witness has not been cross-examined.

In this circumstance, we find no merit in the argument of learned

Counsel for the appellant that postmortem report is not correct and

the deceased Pratibha had not committed suicide but was murdered

by respondent no. 2.

CRL.A.1199/2012 Page 20 of 32

30. Learned counsel for the appellant has next argued that in the

instant case there was a telephone call on 19.05.2007 in which the

deceased had told her mother that she was beaten badly and this

proves that harassment of the deceased continued till death. Learned

Counsel has further argued that it can be made out from testimony

of witnesses that dowry was being demanded right from the date of

marriage till death of deceased and different incidents have been

narrated by the witnesses in this regard. However, learned Trial

Court has not rightly appreciated the evidence and given a judgment

which is perverse and not in accordance with law.

31. In support of his argument Ld. Counsel for the appellant has

relied upon the following judgments:-

(i) SectionYashoda and Anothers V. State Of M.P (2004)3 SCC 98;

(ii) Dilip @ Bidyadhar Pradhan and others Versus State of
Orissa 2002 Cri LJ 1613;

(iii) SectionBalram Prasad Agrawal V. State of Bihar and others
1997SCC(Cri)612;

(iv) Swal Dass Vs. State of Bihar, (1974) 4 SCC 193;

(v) Rajender Singh Vs. State of Punjab.2015SCC171;

(vi) SectionKashmir Kaur vs. State of Punjab, (2012) 13 SCC 627;

(vii) SectionNarwinder Singh vs. State of Punjab;

32. In „SectionYashoda and Anothers V. State Of M.P (2004)3 SCC

98′ the Hon‟ble Supreme Court has defined words „soon before

CRL.A.1199/2012 Page 21 of 32
death‟ and held that the term “soon before” is not synonymous with

the term “immediately before” and is opposite of the expression

“soon after” as used and understood in Section 114, illustration (a)

of the SectionEvidence Act. These words would imply that the interval

should not be too long between the time of making the statement

and the death.

33. Learned counsel for appellant has next relied on „Rajender

Singh Vs. State of Punjab, (2015) 6 SCC 477′ wherein the

Hon‟ble Supreme court has held that “soon before” is a relative

term. In matters of emotions, no one can have a fixed formula. The

time-lag may differ from case to case. This must be kept in mind

while examining each case of dowry death.

34. Learned counsel for the appellant has next relied upon

‘SectionKashmir Kaur vs. State of Punjab, (2012) 13 SCC 627’ wherein

the Hon‟ble Supreme Court has held that the expression “soon

before” would normally imply that the interval should not be much

between the cruelty or harassment concerned and the death in

question. There must be existence of a proximate or live link

between the effect of cruelty based on dowry demand and the

CRL.A.1199/2012 Page 22 of 32
concerned death. In other words, it should not be remote in point of

time and, thereby, making it a stale one. However, the expression

“soon before” should not be given a narrow meaning which would

otherwise defeat the very purpose of the provisions of the Act and

should not lead to absurd results.

35. Learned Counsel for the appellant has next relied upon „Dilip

@ Bidyadhar Pradhan and others Versus State of Orissa 2002

Cri LJ 1613′, wherein the Hon‟ble Supreme Court has held that in

the case of dowry death, it is difficult to have any direct evidence for

the reason that occurrence takes place inside the house and the

prosecution has, therefore, to rely upon circumstantial evidence to

prove its case.

36. Learned Counsel for the appellant has next relied upon,

‘SectionBalram Prasad Agrawal V. State of Bihar and others

1997SCC(Cri)612’ wherein it was held by Hon‟ble Supreme Court

that as per Sectionsection 106 of the Evidence Act, burden of proving the

fact lies on the accused but the initial burden is upon the

prosecution. However, once that burden is discharged, it is for the

accused to prove the fact specifically within his knowledge.

CRL.A.1199/2012 Page 23 of 32

37. We have given our thoughts to the matter. There is no quarrel

with the law laid down by the Hon‟ble Supreme Court in the above

judgments. However, as discussed earlier, the prosecution has failed

to prove that there was demand for dowry and there was consequent

continuous harassment for the same and it continued till the end

when the deceased had committed suicide and, therefore, the

ingredients of Sectionsection 304B as well as 498A SectionIPC have not been

proved beyond reasonable doubt by the prosecution in the instant

case.

38. Learned counsel for the appellant has, however, argued that in

the alternate, if the prosecution has failed to prove its case under

Section 304B IPC , the appellant can be convicted under Sectionsection 306

IPC. In this regard, he has relied upon, ‘SectionNarwinder Singh vs. State

of Punjab, (2011) 2 SCC 47’ where the Hon‟ble Supreme Court

has held as under:-

„21.The High Court upon meticulous scrutiny of
the entire evidence on record rightly concluded
that there was no evidence to indicate the
commission of offence under Section 304-B IPC.
It was also observed that the deceased had
committed suicide due to harassment meted out
to her by the appellant but there was no evidence
on record to suggest that such harassment or
cruelty was made in connection to any dowry
demands. Thus, cruelty or harassment sans any

CRL.A.1199/2012 Page 24 of 32
dowry demands which drives the wife to commit
suicide attracts the offence of `abetment of
suicide’ under Section 306 IPC and not Section
304-B IPC which defines the offence and
punishment for `dowry death’.

39. Learned Counsel for the respondent no.2 on the other hand

has argued that there is no material on record to convert the offence

under Section 304-B to Section306 IPC in the present case. Section 306 IPC

contemplates that if any person commits suicide, whoever abets the

commission of such suicide, shall be punished with imprisonment of

either description for a term which may extend to ten years, and

shall also be liable to fine. Ld. Counsel for the respondent no.2 has

argued that as per evidence appearing on record there was no

abetment by respondent no.2 to the suicide committed by deceased

Prabibha. He has further argued that it is the duty of the prosecution

to prove beyond reasonable doubt whether deceased Pratibha was

subjected to cruelty or harassment on account of demand of dowry.

As per Section 113-A of the Indian Evidence Act if a married

woman has committed suicide within a period of 07 years from the

date of her marriage and her husband or his relative have subjected

her to cruelty, the Court may presume having regard to the

circumstances of the case that such suicide has been abetted by her

CRL.A.1199/2012 Page 25 of 32
husband or by his relative. In this regard, the learned Counsel for the

appellant no. 2 has, relied upon ‘Mangat Ram vs. State of

Haryana, Crl. A.No. 696 of 2009‟ decided on 27.03.2014 wherein

the Hon‟ble Supreme Court has observed that presumption

contemplated in Sec. 113-SectionA of Evidence Act is not mandatory but

discretionary. The Court has held that, under Section 113A of the

Evidence Act, the prosecution has to first establish that the woman

concerned committed suicide within a period of seven years from

the date of her marriage and that her husband has subject her to

cruelty. Even though those facts are established, the Court is not

bound to presume that suicide has been abetted by her

husband. Section 113A, therefore, gives discretion to the Court to

raise such a presumption having regard to all other circumstances of

the case, which means that where the allegation is of cruelty, it can

consider the nature of cruelty to which the woman was subjected,

having regard to the meaning of the word „cruelty‟ in Section 498-

A IPC.

40. Thus, a consideration of all the circumstances of the case may

strengthen the presumption or may dictate the conscience of the

CRL.A.1199/2012 Page 26 of 32
court to abstain from drawing the presumption. The presumption is,

therefore, not an irrebutable one. It can be rebutted by leading

defence evidence or the facts and circumstances otherwise available

on record may destroy the presumption.

41. In the present case it has been proved on record that deceased

Pratibha had committed suicide. The suicide was committed within

a period of 07 years from the date of her marriage. However, it has

not been proved that there was a demand of dowry and that her

husband or his relatives subjected her to any cruelty so that a

presumption can be raised that the suicide was abetted by her

husband. As discussed above, the presumption is not mandatory and

it is only discretionary. The court, therefore, has to consider all the

circumstances of the case. On consideration of all the circumstances

and evidence led on record, we are of the opinion that prosecution

has failed to prove its case and, therefore, no presumption can be

drawn that husband of the deceased had abetted the offence.

42. It was lastly argued by the Ld. Counsel for the appellant that

on the intervening night of 19-20.05.2007, only accused and his

CRL.A.1199/2012 Page 27 of 32
wife were together and in view of Sec. 106 of SectionEvidence Act, it is for

the accused to explain as to why her wife committed suicide.

43. Ld. Counsel for the respondent on the other hand has argued

that Section 106 of the Indian Evidence Act does not relieve the

prosecution from its duty to prove the guilt of the accused beyond

reasonable doubt. In this regard he has relied upon ‘SectionShambhu Nath

Mehra vs. The State of Ajmer, Crl. Appeal no. 65 of 1954‟

decided on 12.03.1956 and ‘Sawal Dass vs. State of Bihar, Crl. A.

no. 70 of 1972‟ decided on 09.01.1974.

44. SectionIn ‘Shambhu Nath Mehra vs. The State of Ajmer’ it was

held that in a criminal case, the burden of proof is on the

prosecution and Sectionsection 106 of Indian Evidence Act is certainly not

intended to relieve the prosecution of its duty to prove the case

beyond reasonable doubt. It is only designed to make certain

exceptional cases in which it would be impossible for the

prosecution to establish the fact which are especially within the

knowledge of the accused and which he could prove without

difficulty or inconvenience.

CRL.A.1199/2012 Page 28 of 32

45. In ‘Sawal Dass vs. State of Bihar, Crl. A. no. 70 of 1972‟,

the Hon‟ble Supreme court has held that the burden of proving a

plea specifically set up by an accused which may absolve him from

criminal liability, certainly lies upon him. It is a different matter

that the quantum of evidence by which he may succeed in

discharging his burden or creating a reasonable belief that

circumstance absolving him from criminal liability may have

existed is lower than the burden resting upon the prosecution to

prove the guilt of the accused beyond reasonable doubt.

46. We have given our thoughts to the matter. In the present case,

the fact which can be stated to be specially within the knowledge of

the accused is that the deceased had committed suicide. At best, the

burden of proving the fact that the deceased had committed suicide

and has not been murdered was on the accused. The fact that it was

a suicidal death has been proved by PW-6 Dr. Sukhdeep Singh. The

reason why the deceased committed suicide is not a fact which

would be within the special knowledge of the accused and only the

deceased would be knowing the reason. Even if it is assumed for

the sake of argument that Section 106 of the Indian Evidence Act is

CRL.A.1199/2012 Page 29 of 32
attracted, the accused can succeed in discharging his burden if he

creates reasonable belief that as to why the suicide was committed

by his wife. The accused has led the evidence to discharge the

burden upon him. According to the accused, the reason for

committing suicide by deceased was that she could not bear the

child despite four years of marriage and she wanted to adopt the

child but the accused wanted to wait for some time and, therefore,

altercation used to take place between them. It has come in the

statement of accused that on the fateful night, the couple had not

slept together. It is a settled law that the burden rests upon the

prosecution to establish the guilt of accused beyond reasonable

doubt. It is also a settled law that accused can succeed in

discharging his burden by establishing a reasonable belief, which

means circumstances absolving him from criminal liability may

have existed. In our opinion, the accused has discharged its burden

by leading defence evidence pointing out that the wife was unhappy

as she was unable to conceive and wanted to adopt a child which

was not acceded to by her husband.

CRL.A.1199/2012 Page 30 of 32

47. It is also a well settled law that the High Court should

interfere in appeals against acquittals only where the trial court

makes wrong assumptions of material facts or fails to appreciate the

evidence properly and if two views are reasonably possible from the

evidence on record, one favouring the accused and one against the

accused, the High Court is not expected to reverse the acquittal

merely because it would have taken the view against the accused

had it tried the case. The very fact that two views are possible makes

it clear that the prosecution has not proved the guilt of the accused

beyond reasonable doubt and consequently the accused is entitled to

benefit of doubt. Reliance is placed upon „SectionBannareddy Ors. vs.

State of Karnataka Ors., reported as 2018 (2) Crimes 94 SC’.

48. In the instant case, the Ld. Trial Court has carefully

appreciated the evidence and has taken a reasonable view which has

formed the basis of judgment of acquittal. The conclusion reached

by the Trial Court is neither palpably wrong nor based on erroneous

view of the law. It has taken a very balance view of the evidence.

Ld. Trial Court has correctly held that there are material

contradictions in the statements of the witnesses and the evidence is

CRL.A.1199/2012 Page 31 of 32
such which is not reliable and trustworthy. We are, therefore, of the

opinion that there are no grounds to interfere in the judgment of the

Ld. Trial Court.

49. We, therefore, find no infirmity or illegality in the impugned

Judgment dated 30.07.2012 passed by the learned Trial Court. The

appeal is devoid of merit and is accordingly dismissed. The

impugned Judgment dated 30.07.2012 is therefore, hereby upheld.

50. Accordingly, the present appeal fails and the same is

dismissed.

BRIJESH SETHI
(JUDGE)

SIDDHARTH MRIDUL
(JUDGE)
August 30th, 2019
(AK)

CRL.A.1199/2012 Page 32 of 32

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