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The State Of Mah. Thr. Pso Ps … vs Smt. Vitthabai @ Shalinibai W/O … on 27 April, 2018

1 apeal221.07.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.221 OF 2007

The State of Maharashtra,
(Through Station Officer,
Police Station, Daryapur),
District Amravati. ………. APPELLANT

// VERSUS //

1.Smt. Vitthabai @ Shalinibai
w/o. Shankarban Nimbhekar,
Aged about 58 years.

2.Ku.Neetu d/o. Shankarban
Nimbhekar, Aged about 20 years,

3.Ramesh s/o. Shankarban
Nimbhekar, Aged about 34 years,

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4.Pradeep s/o.Shankarban Nimbhekar,
Aged about 27 years,

All r/o. Banosa, Tq. Daryapur,
District Amravati. ………. RESPONDENTS

Mr.J.Y.Ghurde, A.P.P. for the Appellant/State.
Mr.S.G.Loney, Advocate (Assist to Prosecution).
Mr.Sumit Joshi, Advocate for Respondent Nos.1 to 4.

*****
Date of reserving the Judgment : 17.04.2018.
Date of pronouncement of the Judgment : .04.2018.
*****

CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.

ORAL JUDGMENT (Per M.G.Giratkar, J) :

1. The State has filed the present appeal challenging the

Judgment of Ad-hoc Additional Sessions Judge No.4, Amravati in

Sessions Trial No.50 of 1999 (old Sessions Trial No.24 of 1992),

dt.12.4.2007, by which the respondents/accused came to be

acquitted of the offences punishable under Sections 498-A and 304-B

r/w. Section 34 of the Indian Penal Code.

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2. The case of prosecution against the accused/respondent

can be summarized as under :

Deceased Kusum, daughter of complainant Gopal Ram

Bharti was married with accused no.4 Pradeep Nimbhekar on

7.12.1989. Accused no.1 Vitthabai Nimbhekar is mother of accused

no.4 Pradeep. Accused no.2 Neetu Nimbhekar is the sister and

accused no.3 Ramesh is the brother of accused no.4 Pradeep. After

marriage of Kusum with accused no.4 Pradeep, she went to co-habit

with him. She was treated properly for 1½ months after the

marriage. However, thereafter, the accused persons started

demanding fridge and motor cycle from deceased Kusum. Deceased

informed her father. Her father told her that he would make

arrangement in that regard at the time of Diwali festival. Accused

persons continued ill-treatment for their demand.

3. In the month of March, deceased Kusum had gone to

attend the marriage of Balwant Giri at Akola. At that time, she

informed the complainant/her father about such harassment by

accused persons. Complainant requested accused no.4 Pradeep not

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to ill-treat the deceased. On 3.10.1990, the complainant went to

Daryapur to take Kusum with him for Diwali festival. At that time,

members in the family were not present at their house. Accused no.2

Neetu told the complainant that Kusum should be taken only after

Fridge, Cooler and Motor cycle were given. Complainant went back

without taking Kusum with him. Deceased committed suicide by

burning herself. In the night itself, father and brother of deceased

reached to Daryapur. In the morning, complainant lodged report.

Police Inspector Patil went to the spot of incident, prepared spot

panchanama, inquest panchanama etc. He has recorded statement of

witnesses. Thereafter, investigation was handed over to Crime

Branch, Amravati. Further investigation was carried out by Police

Inspector Uttam Manikrao Solanke (PW-8). He has recorded

statement of Kanchanmala on 7.3.1991 and also recorded statement

of Madhukar Hage on 16.3.1991. He also recorded supplementary

statement of Gajanan Bharti on 19.3.1991. He has recorded

statement of Shamrao Gawande and Gajanan Bharati on 29.3.1991.

After complete investigation, charge sheet was filed before the

Judicial Magistrate, First Class, who, in turn, committed the case to

the Court of Sessions at Achalpur.

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4. The said case was registered as Sessions Trial No.24 of

1992. The case was transferred to the Court of Sessions at Amravati

and registered as Sessions Trial No.50 of 1999. The trial Court

framed Charge at Exh.3. Prosecution examined nine witnesses.

Statement of accused were recorded. They have denied material

incriminating evidence. It is the defence of accused that, on the day

of incident, complainant/father of the deceased came to fetch her.

The deceased was not ready to go with her father. Her father was

insisting her to accompany him on the very same day. He scolded

and beat deceased Kusum. Therefore, in a fit of anger, Kusum

committed suicide. To prove their defence, accused persons

examined defence witness Sharad Prabhakarao Wankhade (DW-1).

After hearing prosecution and defence, learned trial Court acquitted

all the accused of the offences punishable under Sections 498-A and

304-B r/w. Section 34 of the Indian Penal Code. Hence, the present

appeal by the State.

5. Heard Mr.J.Y.Ghurde, learned A.P.P. for the

appellant/State. He has submitted that prosecution has proved by

the evidence of Gopal Ram Bharti (PW-1), Gajanan Gopal Bharati

(PW-3) and Ramrao Bajirao Gawande (PW-4) that the accused

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persons ill-treated the deceased for demand of Fridge, Cooler, Motor

cycle etc. Due to constant harassment/ill-treatment of accused

persons, deceased committed suicide. Learned A.P.P. has submitted

that the deceased was in the custody of accused persons. They have

not explained as to how the deceased died. It is submitted that the

accused persons have not rebutted the presumption under Section

113B of the Indian Evidence Act. The learned A.P.P. has submitted

that the deceased died within one year from the date of marriage.

Her death was unnatural, due to burn injuries. Prosecution has

proved that death was due to demand of dowry in the form of

articles like Fridge, Cooler, Motor cycle etc. At last, the learned

A.P.P. has submitted that prosecution has proved the material

ingredients of Sections 304-B and 498A of the Indian Penal Code.

Hence, the learned A.P.P. prayed to allow the appeal and convict the

accused/respondents for the offences charged against them. In

support of his submissions, learned A.P.P. has pointed out the

following decisions :

a. State of Rajasthan .vs. Thakur Singh reported in 2014
LawSuit (SC) 501.

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b. Pathan Hussain Basha .vs. State of Andhra Pradesh
reported in (2012) 8 SCC 594.

c. Smt. Shanti and another .vs. State of Haryana
reported in AIR 1991 SC 1226.

6. Heard Mr.Sumit Joshi, learned Counsel for the

respondents/accused. He has submitted that prosecution has failed

to show that there was any cruelty or harassment for, or in

connection with, any demand of dowry. Since prosecution failed to

prove cruelty or harassment; therefore, the learned trial Court rightly

acquitted the accused persons.

7. Mr.Sumit Joshi, learned Counsel for the respondents has

submitted that the deceased was residing with her husband at

Warud. She was not residing continuously at Daryapur. He has

pointed out evidence of Ramrao Gawande (PW-4). Learned Counsel

has submitted that prosecution has failed to prove any of the

ingredients of Sections 498-A and 304-B of the Indian Penal Code.

Therefore, learned trial Court rightly acquitted the accused persons.

In support of his submission, learned Counsel for the

respondents/accused pointed out the following decisions.

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a) Biswajit Halder @ Babu Halder and Ors. vs. State of
W.B. reported in 2007 ALL SCR 1596.

b) M.Srinivasulu .vs. State of A.P. reported in 2007 ALL
MR (Cri) 2983 (S.C.).

c) Bakshish Ram and another .vs. State of Punjab
reported in 2013 ALL SCR 2480.

d) Baijnath and Others .vs. State of Madhya Pradesh
reported in 2017 ALL SCR (Cri) 104.

e) Dudh Nath Pandey .vs. State of U.P. Reported in 2014
ALL SCR (O.C.C.) 97.

f) Govindaraju @ Govinda .vs. State by Sriramapuram
P.S. and another reported in 2012 ALL MR (Cri) 1385
(S.C.).

8. The evidence of Gopal Ram Bharati (PW-1) shows that

accused no.4 Pradeep was in service in the S.T. Department. He was

residing at Warud. His evidence shows that, after marriage, the

accused persons gave good treatment to deceased for about 1½

months. Thereafter, they started demanding Fridge and Motor cycle.

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He has stated that when deceased Kusum met him in the marriage of

Bhagwat, at that time, she disclosed him about the trouble given to

her by in-laws. Thereafter, he went to the house of accused persons

to fetch the deceased for Akhadi festival. At that time, deceased

Kusum came to his house. She disclosed him that she was having

much trouble from all the four accused. Her husband Pradeep had

been to their house to take back the deceased. Thereafter, he went to

Daryapur and convinced the accused that they should not give

trouble to his daughter. Except this, there is no other evidence to

prove cruelty by the accused persons.

9. Brother of deceased namely Gajanan Gopal Bharati (PW-

3) has stated in his evidence that he brought the deceased after

death of her father-in-law. But she did not disclose anything. When

she met in the marriage of Bhagwat, at that time she disclosed that

her sister-in-law Neeta, mother-in-law Vitthabai and elder brother-in-

law Ramesh used to say her that her brother did not give anything to

her, but he had given only scrap. She disclosed that they were

demanding Fridge and Motor cycle. She also stated that the

members in the family of accused used to offer her food at the end.

Whenever her matrimonial relations used to give new saree to her,

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her sister-in-law and mother-in-law used to wear it. Gajanan (PW-3)

convinced her. Thereafter, he came to know about death of

deceased. Except evidence of Gopal (PW-1) and Gajanan (PW-3) and

to some extent, evidence of Ramrao (PW-4), no other evidence is

adduced by prosecution to prove the guilt of accused persons on

account of demand of Fridge and Motor cycle.

10. Ramrao Gawande (PW-4) has stated in his evidence that

he called family members of deceased after death of her father-in-

law. At that time, she told him that there was demand of Hero

Honda from her in-laws. At that time, accused Vitthabai was saying

that though brother of Kusum was on higher posting, still he has not

given utensils like Cooker. Friends of Pradeep stated that he could

not get Hero Honda. At that time, he had given Cooker as a gift.

11. From the evidence of Gopal (PW-1), Gajanan (PW-3)

and Ramrao (PW-4), it is clear that their evidence are not consistent

with each other. Gopal (PW-1) has stated that the deceased has

disclosed him about the harassment by her mother-in-law, sister-in-

law and brother-in-law. All three witnesses have not stated a single

word against the husband of deceased. Evidence of Gopal (PW-1)

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and Gajanan (PW-3) shows that when the deceased had been to

marriage of Bhagwat at Akola, at that time she complained that the

accused persons were demanding Fridge and Motor cycle. At that

time, her husband Pradeep/accused no.4 was with her. Gopal (PW-

1) himself has stated in his examination-in-chief that Pradeep did not

ask him about the same. Gajanan (PW-3) also stated that her

husband was with her. It was the natural reaction of father and

brother of the deceased to inquire from her husband about ill-

treatment and their demand of Fridge and Motor cycle etc. Both the

witnesses have not stated anything about the ill-treatment on

account of demand of Fridge and Motor cycle against accused no.4

Pradeep. They did not inquire from her husband about the demand

of Motor cycle and Fridge.

12. Ramrao (PW-4) has stated in his evidence that he was

residing at Daryapur and working in S.T. Department. Gajanan (PW-

3) was the Superior Officer when he was working at Akola in S.T.

Department. He was mediator in the marriage of the deceased and

accused Pradeep. He called family members of deceased after death

of her father-in-law. At that time, the deceased told him that she was

having ill-treatment at the hands of mother-in-law Vitthabai, sister-

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in-law Neetu and elder brother-in-law Ramesh. She stated that there

was demand of Hero Honda from her in-laws. At that time, accused

Vitthabai was saying that though brother of Kusum was on higher

posting, still utensils like Cooker is not given. Friends of Pradeep

were saying that he could not get Hero Honda. From this evidence, it

is clear that Vitthabai or any other accused has not demanded Motor

cycle as stated by Gopal (PW-1) and Gajanan (PW-3). If Ramrao

(PW-4) was mediator then it was for him to inquire from the

deceased as to what type of ill-treatment was given to her by the

accused persons. He has stated in his evidence that accused no.4

Pradeep took deceased Kusum in the month of September.

Thereafter, she used to visit Daryapur after interval of 4 to 8 days.

Ramrao (PW-4) has admitted in his cross-examination that “I have

earlier stated wrongly that Kusum stated that they have demanded

Hero Honda.”

13. From the cross-examination of Ramrao (PW-4), it is clear

that all the accused persons were present at his house. None of the

accused demanded Hero Honda or Fridge as stated by Gopal (PW-1)

and Gajanan (PW-3). Ramrao (PW-4) was the nearest friend of

brother of deceased. It was natural for him to inquire from the

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accused persons as to why they were ill-treating the deceased. It was

for the deceased also to narrate all types of ill-treatment by the

accused persons. But nothing was stated by Ramrao (PW-4). The

evidence of Gopal (PW-1) and Gajanan (PW-3) and Ramrao (PW-4)

are not reliable in respect of ill-treatment given by the accused

persons.

14. Gajanan (PW-3) has stated in his evidence that she

disclosed him that family members used to serve food to her at the

end. Her mother-in-law and sister-in-law used to wear her new

sarees. All these are trivial things happening in the matrimonial

homes. Moreover, Gopal (PW-1) and Ramrao (PW-4) have not stated

about the same. Prosecution has not adduced any cogent evidence to

prove the cruelty by the accused persons.

15. There is no dispute that the deceased died due to

burning. Post Mortem report (Exh.20) is admitted by the defence.

Evidence of Dr.Rajendrakumar Madangopal Bhattad (PW-9) shows

that the deceased died due to 98 % burns. Some queries were made

to him by the Investigating Officer. He replied the same saying that

death of deceased due to asphyxia could be secondary to burns or

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strangulation. But, in the cross-examination, he has specifically

admitted that he did not find strangulation marks during post

mortem. His cross-examination further shows that, due to inhalation

of Carbon Monoxide the patient becomes unconscious and when the

burn process go on, the injury can be ante mortem. The person

getting burns with kerosene in a small room with very small

ventilation like a bathroom, there can be much more accumulation of

Carbon Monoxide. Evidence of Dr.Rajendrakumar Bhattad

(PW-9) shows that the deceased died due to burn injuries.

16. Khurshidmiya (PW-2) examined by prosecution at

Exh.65. His evidence shows that he had been to the house of accused

for some purpose. He heard noise of burning something towards the

side of latrine. One lady gave shout to mother saying “aai vahini

jalali” (sister-in-law burnt). Someone opened the door of bathroom

and poured water. Therefore, it is clear that the deceased committed

suicide by pouring kerosene on her person and setting herself on fire

in a bathroom. Spot panchanama (Exh.74) shows that the deceased

chained the door of bathroom from inside and committed suicide.

Door of bathroom was broken. There was no chain from outside of

the door. This itself shows that the deceased has committed suicide.

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17. Prosecution has proved that the deceased was wife of

accused no.4 Pradeep. There is no dispute that their marriage was

performed on 7.12.1989. The deceased died on 4.10.1990. Death of

deceased Kusum was due to burn injuries.

18. Prosecution has failed to prove cruelty or harassment in

connection with demand of dowry. Therefore, all the ingredients of

Section 304-B are not proved by the prosecution.

19. Mr.J.Y.Ghurde, learned A.P.P. for the appellant/State

has pointed out decision in the case of Smt.Shanti and another .vs.

State of Haryana reported in AIR 1991 SC 1226. It is observed by

Hon’ble Supreme Court that the two appellants misbehaved with the

father of deceased saying that he ought to have arranged Scooter and

Television as a part of dowry. He was insulted and pushed out of

house. Thereafter, the deceased was murdered and was cremated by

two accused/ladies with the help of other three persons. They did

not inform any of the relatives and hurriedly cremated the dead

body. Therefore, Hon’ble Supreme Court held that the death was

unnatural and in connection with demand of dowry. In the present

case, evidence of Gopal (PW-1) shows that when he came to fetch

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the deceased, accused nos, 1, 3 and 4 were not present. Accused

no.2 Neetu/sister-in-law were present. Accused no.2 told him that he

had not given Motor cycle and Fridge. Therefore, they would not

send the deceased for Diwali festival. As the elder family members

were not present, therefore, he went back to village Kolambi. The

defence appears to be probable. Sharad (DW-1) has stated in his

evidence that Gopal (PW-1) was insisting the deceased to come with

him. But the deceased was not ready. Therefore, Gopal scolded and

even beaten her. Therefore, she committed suicide.

20. Learned A.P.P. Mr.Ghurde pointed out the decision in

the case of Pathan Hussain Basha vs. State of Andhra Pradesh

reported in (2012) 8 SCC 594. In the cited decision, Hon’ble

Supreme Court has observed that “Mere denial cannot be treated as

discharge of onus. Onus has to be discharged by leading proper and

cogent evidence. Accused must show that death of deceased did not

result from any cruelty or demand of dowry by accused. On facts, it

was held that the accused failed to explain, as to how and under

what circumstances deceased died, as well as conduct of husband

immediately prior and subsequent to death of deceased. On the other

hand, prosecution by reliable and cogent evidence has established

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guilt of the accused. Therefore, no interference with conviction of

appellant is called for”. In the cited decision, both the Courts below

convicted the accused for the offences punishable under Sections

304-B and Section 498-A of the Indian Penal Code. In the cited

decision, cruelty was established persistent to dowry demand by the

accused persons and cruelty and ill-treatment meted out to deceased

for non-fulfillment of demand. In the present case, prosecution has

failed to prove cruelty by accused persons. It appears from the

evidence of Gopal (PW-1), Gajanan (PW-3) and Ramrao (PW-4) that

they have stated about ill-treatment by the accused persons for the

demand of Motor cycle and Fridge. It is pertinent to note that

husband of deceased was present when she narrated to her father

and brother. Both Gopal (PW-1) and Gajanan (PW-3) have not

stated that husband of deceased demanded Motor cycle or anything.

They have also not stated that her husband demanded anything.

They did not inquire from her husband about their demand.

Prosecution has to prove the guilt as defined under Sections 498-A

and the ingredients of Section 304-B of the Indian Penal Code.

Thereafter, burden shifts on the accused.

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21. In the present case, prosecution has failed to prove any

of the ingredients of Sections 304-B and 498-A of the Indian Penal

Code. Moreover, the accused have examined defence witness. He

has stated in his evidence that, on the day of incident, Gopal (PW-1)

had been to fetch the deceased. Elder family members were not

present. He was insisting the deceased to come with him, but the

deceased was not ready. Gopal scolded the deceased and also beat

her. Therefore, possibility cannot be ruled out that the deceased

committed suicide due to behaviour of her father. Hence, the cited

decisions by prosecution are not helpful.

22. In the case of Biswajit Halder @ Bablu Halder and

Others .vs. State of W.B., 2007 ALL SCR 1596, Their Lordships of

the Supreme Court have held that “mere evidence of cruelty and

harassment is not sufficient to bring in application of Section 304-B

of Indian Penal Code. It has to be shown in addition that such cruelty

or harassment was for or in connection with the demand of dowry”.

In the cited decision, there was no demand at the time of settlement

of marriage and thereafter, there was demand of Colour Television,

English Khat, VIP Bag etc. There was mere allegation against the

accused persons. In the present case, there was no demand at the

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time of settlement of marriage in respect of Fridge and Motor cycle

etc. Gopal (PW-1) and Gajanan (PW-3) have not stated that accused

no.1 Vitthabai, accused no.3 Ramesh or husband of deceased namely

Pradep demanded anything to them. They have only stated that the

deceased told them that the accused persons were demanding Fridge

and Motor Cycle and on that count, there was harassment. No

specific act of cruelty was stated by the deceased to any of the

witnesses.

23. Evidence of Ramrao (PW-4) shows that the deceased was

residing with her husband/accused no.4 at Warud and she was

visiting Daryapur after 4-8 days. Therefore, it is clear that she was

not continuously residing with other accused persons. There was no

specific allegation against her husband. Hence, the prosecution has

miserably failed to prove harassment and cruelty by the accused

persons on account of demand of Motor cycle, Fridge etc.

Prosecution has failed to discharge its burden. Mere fact that the

deceased died unnatural death in the matrimonial home within

seven years of marriage is not sufficient to bring home the guilt of

accused. Hon’ble Supreme Court in the case of Baijnath .vs. State of

M.P., (2017 ALL SCR (Cri) 104)
has observed as under :

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” The presumption (under S.113B of the Evidence Act)

as to dowry death would get activated only upon the proof
of the fact that the deceased lady had been subjected to
cruelty or harassment for or in connection with any
demand for dowry by the accused and that too in the
reasonable continuity of death. Such a proof is thus the
legislatively mandated prerequisite to invoke the otherwise
statutorily ordained presumption of commission of the
offence of dowry death by the person charged therewith.

A conjoint reading of the three provisions (viz.
Sections 498A and 304B of IPC and S.113B of Evidence
Act), predicate the burden of the prosecution to
unassailably substantiate the ingredients of the two
offences by direct and convincing evidence so as to avail
the presumption engrafted in
Section 113B of the Evidence
Act against the accused. Proof of cruelty or harassment by
the husband or his relative or the person charged is thus
the sine qua non to inspirit the statutory presumption, to
draw the person charged within the coils thereof. If the
prosecution fails to demonstrate by cogent coherent and
persuasive evidence to prove such fact, the person accused
of either of the above referred offences cannot be held
guilty by taking refuge only of the presumption to cover up
the shortfall in proof. ”

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24. In respect of burden of proof, Mr.J.Y.Ghurde, learned

A.P.P. has submitted that the deceased died in the matrimonial

home. Therefore, it was for the accused persons to explain as to how

she died. Learned A.P.P. has submitted that the deceased was in

the custody of accused persons. The burden to prove the facts within

the knowledge of accused persons is not discharged. The accused

persons have not explained as to how the deceased died. Therefore,

presumption arises against the accused persons. In support of his

submission, he pointed out the decision in the case of State of

Rajasthan vs. Thakur Singh reported in 2014 LawSuit (SC) 501.

25. First of all, prosecution has to prove it’s case and

thereafter, burden shifts on the accused. This cardinal principle is

laid down by Hon’ble Apex Court in the case of Baijnath and

Others .vs. State of Madhya Pradesh (supra). In the present case,

prosecution has failed to prove cruelty to the deceased by any of the

accused persons. No particular instance of cruelty is stated by any of

the witnesses. Ramrao (PW-4) was resident of Daryapur. He was

mediator of the marriage between accused no.4 Pradeep and the

deceased. Therefore, it was natural for Gopal (PW-1) and Gajanan

(PW-3) and the deceased to have arranged meeting about demand of

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accused persons, but no such attempt was made. On the other hand,

Ramrao (PW-4) has not stated that the deceased told him about

demand of Motor cycle etc. by her husband. He has stated that

mother-in-law of the deceased told him that article like Cooker was

not given in the marriage. Cooker is not such an article which can be

taken into consideration as a dowry.

26. Prosecution has failed to prove any of the ingredients of

the offence charged against the accused. Probable defence is

established by the accused persons by examining defence witness. He

has specifically stated that, on the day of incident,Gopal (PW-1) had

been to fetch the deceased. She was not ready to go with him. He

scolded her and beat her. Therefore, possibility of committing suicide

by deceased Kusum in a fit of anger cannot be ruled out.

27. Learned Counsel for the accused pointed out the Judgment

of Hon’ble Supreme Court in the case of Dudh Nath Pandey .vs. State

of U.P. reported in 2014 ALL SCR (O.C.C.) 97. Their Lordships have

observed that “defence witnesses are entitled to equal treatment with

those of the prosecution. The Court ought to have overcome their

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traditional instinctive disbelief in these defence witnesses. Quite often,

they tell lies but so do the prosecution witnesses.”

28. Evidence of Medical Officer and Post Mortem report

show that the deceased committed suicide by burning herself. Spot

panchanama (Exh.74) shows that she has committed suicide in a

bathroom by putting chain from inside. There was no chain from the

outside to the door. The door was broken and fire was extinguished.

This itself shows that the deceased herself committed suicide.

Prosecution failed to prove cruelty on account of demand of dowry

or cruelty which was of such a nature to drive her to commit suicide.

Prosecution has failed to prove any of the ingredients of Section 304-

B and 498-A of the Indian Penal Code. Mere factum of unnatural

death in matrimonial home within seven years of marriage is not

sufficient to bring home the guilt under Sections 304-B and 498-A of

the Indian Penal Code.

29. This is an appeal against acquittal. Hon’ble Supreme

Court has laid down guiding principles while deciding the appeal

against acquittal. In the case of Govindaraju @ Govinda .vs. State

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by Sriramapuram P.S. and another reported in 2012 ALL MR (Cri)

1385 (S.C.), it is observed by Hon’ble Supreme Court as under :

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

Hon’ble Supreme Court has further observed as under :

” The golden thread which runs through the web of
administration of justice in criminal cases is that if two
views are possible on the evidence adduced in a case, one
pointing to the guilt of the accused and other to his
innocence, the view which is favourable to the accused
should be adopted. There are no jurisdictional limitations on
the power of the Appellate Court but it is to be exercised

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25 apeal221.07.odt

with some circumspection. The paramount consideration of
the Court should be to avoid miscarriage of justice. A
miscarriage of justice which may arise from the acquittal of
guilty is no less than that from the conviction of an
innocent. If there is miscarriage of justice from the acquittal,
the higher Court would examine the matter as a Court of
fact and appeal while correcting the errors of law and in
appreciation of evidence as well. Then the Appellate Court
may even proceed to record the judgment of guilt to meet the
ends of justice, if it is really called for. ”

30. From the careful reading of the impugned Judgment, it is

clear that the view taken by the learned trial Court is a correct view

and therefore, no interference is called for. Hence, we are not

inclined to allow the appeal and pass the following order.

// ORDER //

The appeal is dismissed with no order as to
costs.

The record and proceedings be sent back to the
trial Court.

JUDGE JUDGE

[jaiswal]

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