Court: High Court Of Gujarat At Ahmedabad
Bench: S.H. Vora and Rajendra M. Sareen, JJ.
State of Gujarat vs. Modi Kanaiyalal Mulchanddas and Ors. on 14 December, 2022
Law Point:
Without any evidence on record regarding demand of dowry, allegation of abetment of suicide cannot be believed, because there is nothing on record except bare words that accused has abetted commission of offence, acuittal
JUDGEMENT
1. Present appeal has been filed by the appellant – State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 challenging the judgment and order dated 19.09.1994, passed in Sessions Case No. 168 of 1991 by the learned Additional Sessions Judge, Mahesana, recording the acquittal.
2. Brief facts are that complainant – Kamalaben wife of Rasiklal Ambalal (hereinafter shall be referred to as the complainant) lodged the complaint stating that she is residing at Ahmedabad with her family and she has four children, out of which, marriage of her elder daughter – Saroj was performed on 3/2/1991 as per their rites and rituals with Girishkumar Kanaiyalal Modi – respondent No. 3 herein. After the marriage, Saroj had gone to her matrimonial house and stayed there for 25 days and thereafter she came back to her parental house. After coming to her parental house, deceased informed the complainant that she will not go to her matrimonial house, since her mother-in-law Taraben, father-in-law Kanaiyalal and sister-in-law Manishaben, all three were taunting her time and again about sufficient dowry not given by her parents. She further informed the complainant that on the aspect of dowry, they used to quarrel with the deceased and torturing her physically and mentally. The deceased has also informed the complainant that her in-laws are instigating her husband against her and not permitting her to have physical relation with her husband and compelled her to sleep with them. Complainant had informed the aforesaid facts to her husband. However, complainant and her husband asked the deceased to go back to her matrimonial home and told her that they will talk with her in-laws regarding all such issues. Therefore, deceased went to her matrimonial house on 25/3/1991. However, on 29/3/1991, the complainant received telephonic information through her relative that deceased has burnt and she is taken to Civil Hospital, Ahmedabad for treatment. Therefore, the complainant, her husband and other persons have gone to Civil Hospital and found that deceased sustained burns on her entire body and as she was unconscious, they could not talk with the deceased. At that night, the sister-in-law of the complainant named Lilaben and Vidyaben, who are residing in the neighbourhood of deceased in Mehsana, met the complainant and informed her that mother-in-law of the deceased told them that they do not want deceased and they should kill her.
3. Hence, the complainant lodged a complaint against the respondents for the offences punishable under Sections 304(B), 306, 498(A) and 114 of the Indian Penal Code, 1860 (herein after referred to as ‘the IPC’) and Sections 3 and 4 of the Dowry Prohibition Act.
4. Upon filing of such complaint, the investigation was set in motion and the investigating officer recorded statements of witnesses, panchnama of the scene of offence and other panchnamas were prepared, got postmortem of the deceased done, muddamal was sent to the FSL, and as there was sufficient evidence against the accused, chargesheet was filed in the court of learned Judicial Magistrate First Class. As the case was triable by the Sessions Court, the learned Magistrate having no jurisdiction to try the case, the case was committed to the Sessions Court accordingly and was numbered as Sessions Case No. 168 of 1991.
5. The learned Sessions Judge before whom the case was committed, framed the Charge. The accused denied the contents of the charge. As a result, trial was conducted by the Sessions Judge. Further Statements of the accused – respondents under section 313 of the Code of Criminal Procedure were recorded in which accused – respondents denied the charges and prayed for trial. Upon recording of the Further Statements of the accused, arguments were heard by the learned Sessions Judge and thereafter trial was resulted into acquittal of all the accused from the charges levelled against them. As a result of which the present appeal is filed by the appellant – State of Gujarat.
6. Heard learned APP Ms. Asmita Patel for the appellant – State and learned advocate Mr. Krunal Shah appearing with learned advocate Mr. B.A. Surti appearing for the respondents -accused.
7. The learned APP for the appellant – State has mainly contended that the learned trial Judge has erred in holding that the prosecution has failed to prove its case beyond reasonable doubt. She submitted that the impugned judgment of the trial Court is based on presumptions and inferences and thereby, it is against the facts and the evidence on record. The learned APP further submitted that the learned trial Judge has failed to appreciate the evidence on record in its true and proper perspective and thereby, has erred in recording the acquittal of the respondents – accused.
7.1. The Learned APP has submitted that the judgment and order passed by the learned Sessions Judge is against the evidence on record and provision of law. The learned Sessions Judge has not appreciated and accepted the medical evidence which is corroborated by the version of the eye witness. The learned Sessions Judge has also not appreciated the evidence of the investigating officer in its true and correct perspective. It is further submitted that Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. It is further submitted that the Sessions Judge has erred in acquitting the respondents – accused from the charges levelled against them. It is further submitted that the prosecution has proved that the respondents have committed the offence under sections 304(B), 306, 498(A) and 114 of IPC and sections 3 and 4 of Dowry Prohibition Act. It is further submitted that the learned Sessions Judge has acquitted the respondents – accused merely on some minor contradictions and omissions in the evidence of the witnesses. She has further argued that the learned Sessions Judge has erred in not believing the evidence of the investigating officer who had no reason to implicate the accused falsely in the case. It is further submitted that the offence punishable under sections 304(B), 306, 498(A) and 114 of IPC and sections 3 and 4 of Dowry Prohibition Act, is made out against the respondents – accused, however, the same is not believed by the learned Sessions Judge. It is further submitted that though the prosecution witnesses have supported the case of the prosecution, the learned Sessions Judge has not believed their evidence and acquitted the respondents – accused erroneously. She has requested to allow the present appeal.
8. On behalf of the respondents, Mr. Krunal Shah, learned advocate appearing for the Mr. B.A. Surti, learned advocate has submitted that there is hardly any substance in the submissions of learned APP. There is no evidence on record connecting the accused with the commission of the offence. There are material contradictions and omissions in the evidence of the prosecution witnesses. The trial court has rightly appreciated the evidence on record and held that the prosecution has failed to prove the case against the respondents – accused beyond reasonable doubt and rightly acquitted the accused. He has requested to dismiss the present appeal.
9. Heard advocates for the respective parties and perused the impugned judgment and order of acquittal and re-appreciated the entire evidence on record.
10. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.
10.1. Further, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrive at would not be arrived at by any reasonable person, and therefore, the decision is to be characterized as perverse.
10.2. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence, if it is of the view that the conclusion arrived at by the Court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. That the duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged.
10.3. In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, MANU/SC/1165/2018 : (2019) 2 SCC 752, the Apex Court has observed that,
“The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court”.
10.4. Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, MANU/SC/0917/2020 the Apex Court has observed as under:
“9.1 In the case of Babu v. State of Kerala, MANU/SC/0580/2010 : (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. MANU/SC/0410/1974 : (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar MANU/SC/0069/1991 : (1990) 4 SCC 17, Shailendra Pratap v. State of U.P. MANU/SC/0007/2003 : (2003) 1 SCC 761, Narendra Singh v. State of M.P. MANU/SC/0341/2004 : (2004) 10 SCC 699, Budh Singh v. State of U.P. MANU/SC/8163/2006 : (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh MANU/SC/7886/2007 : (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy MANU/SC/7538/2008 : (2008) 5 SCC 535, Arulvelu v. State MANU/SC/1709/2009 : (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P. MANU/SC/0767/2009 : (2009) 16 SCC 98 and Ram Singh v. State of H.P. MANU/SC/0070/2010 : (2010) 2 SCC 445)
13. In Sheo Swarup v. King Emperor MANU/PR/0071/1934 : AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) “… the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.”
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State MANU/SC/0076/1951 : AIR 1954 SC 1, Balbir Singh v. State of Punjab MANU/SC/0101/1956 : AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra MANU/SC/0117/1962 : AIR 1963 SC 200, Khedu Mohton v. State of Bihar MANU/SC/0139/1970 : (1970) 2 SCC 450, Sambasivan v. State of Kerala MANU/SC/0356/1998 : (1998) 5 SCC 412, Bhagwan Singh v. State of M.P. MANU/SC/0218/2002 : (2002) 4 SCC 85 and State of Goa v. Sanjay Thakran MANU/SC/7187/2007 : (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka MANU/SC/7108/2007 : (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42)
“(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
16. In Ghurey Lal v. State of U.P. MANU/SC/3223/2008 : (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court’s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh MANU/SC/1544/2009 : (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) “20. … an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused.”
18. In State of U.P. v. Banne MANU/SC/0268/2009 : (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) “(i) The High Court’s decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court’s conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court’s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.” A similar view has been reiterated by this Court in Dhanapal v. State MANU/SC/1594/2009 : (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.”
11. In the aforesaid background the evidence produced on record by the prosecution if re-appreciated, the prosecution has examined the complainant Kamlaben as PW 1 at Exh. 16, Mansiben as PW 2 at Exh. 18, Hiraben as PW 3 at Exh. 31, Hemaben as PW 4 at Exh. 32, Sureshbhai as PW 6 at Exh. 35 and Dr. Ravindra Balasaheb Deshmukh as PW 9 at Exh. 42.
11.1. In this case PW 1 to PW 6, all the witness have stated that the deceased has committed suicide by self immolation. In support of the case of prosecution, Medical Officer is also examined and he has stated on oath that he has conducted post mortem on the body of the deceased. The cause of death of deceased was intensive burn injuries. Considering the evidence on record and considering the evidence of all the witnesses and the Medical Officer particularly it is not the case of homicidal death but it is the case of suicide death, which comes under Section 306 of the IPC. As the deceased has committed the suicide due to demand of dowry by the accused persons and mental and physical torture given by the accused to the deceased which has instigated the deceased to commit the act of suicide. Whether the case under Section 304B of the IPC i.e. dowry death, Section 306 of the IPC abatement of suicide and 498A of the IPC to the victim has been proved, is to be seen through the re-appreciation of the evidence on record.
11.2. PW 1 the complainant mother of the deceased has been examined at Exh. 16. It is the say of the complainant that the accused were demanding dowry and they were not permitting to have relations with her husband and because of that deceased has committed suicide. It is revealed in the evidence of PW 1 through cross – examination that nothing was decided at the time of marriage to give dowry in the marriage. It is also admitted that marriage has taken place in a group marriage (Samooh Lagnotsav) solemnized according to the customs of the community and in that group marriage ceremony there was no agreement to give dowry. As such, considering the admission on record in her evidence nothing has been brought on record regarding demand of dowry by the respondents – accused. When the marriage is solemnized in group marriage of community and nothing has been agreed upon for taking dowry by any party it cannot be a case of demanding dowry.
11.3. As regarding the allegations regarding the respondents -accused not permitting the deceased to have relations with her husband, it is revealed in the evidence of complainant that after the marriage husband of the deceased was suffering from typhoid and may be due to this reason in-laws of the deceased were not allowing relationship with the husband. In the evidence of complainant, no iota of evidence brought on record regarding any kind of cruelty attributed to the deceased on the ground of dowry.
11.4. PW 2 Mansiben, who is neighbour of the maternal home of the deceased, has stated in her evidence that when the deceased came to her parental home after 25 days of her marriage, she has informed the witness that she has no physical relationship with her husband as respondents -accused are torturing her for not bringing dowry. This aspect of taunting and physical and mental torture by the respondents – accused is not being narrated in the evidence of complainant, who is the mother of the deceased. As such this aspect of harassment of the deceased for want of dowry is contrary to the version of the complainant. As the deceased who was tortured by the in-laws will tell the same to her mother rather than the neighbour and that, though this witness got the information about harassment of deceased by her in-laws, she has not informed this aspect to the parents of the deceased. As such, evidence of PW 2 does not inspire confidence.
11.5. PW 3 Hiraben, who is also neighbour of maternal home of the deceased has gone to the extent that the deceased used to sit with the witness and informed that her mother in law was taunting her on and often, and deceased does not know how to cook and she was burnt on her hand by mother in law and her husband was often telling her that he did not like her and her sister-in-law was demanding frock as and when she went to Ahmedabad. This witness has also tried to support the prosecution case. But her version is totally contrary to the version of the complainant. Since complainant nowhere stated in her evidence that deceased was complaining about demand of her sister in law or taunting by her mother in law or that her husband has told her that he did not like her. Therefore, evidence of this witness also, cannot be relied upon.
11.6. PW 5 Kailashben, who is another neighbour of the maternal house of the deceased, has stated in her evidence that deceased has informed her that she was harassed by the in laws and her husband is also not talking to her and that he has an affair with some other woman. Considering the evidence of this witness, she has tried to support the prosecution case by going to the extent that husband of the deceased was having an affair with some other woman. However, no such information is coming out in the evidence of the complainant and therefore, evidence of this witness is also not reliable.
11.7. PW 6 – Sureshkumar, cousin of the deceased who has gone to the matrimonial house of the deceased to bring her to the maternal house, has stated that when he caught hold of the hand of the deceased, she immediately shouted. At that time, mother in law of the deceased came there and told that as the deceased did not know how to cook, she has burnt her hand. This witness has stated about burning of hand of the deceased. As such, it cannot be believed that the person who has burnt someone’s hand will on her own admit that he or she has burnt the hand. This witness has not stated anything regarding physical and mental torture of the deceased by the respondents – accused. Moreover, this aspect of burning of hand is not told by the mother of the deceased and as per the witness though the incident of burning the hand of deceased was informed to the family members, none of the family members of deceased have reacted to that. As such this witness is also not reliable.
11.8. Considering the evidences of all these witnesses, they have stated the facts, which are contrary to the version of complainant. As such evidence of PW 2 to 6 are of a nature which is bringing new facts, which are not brought by the complainant in her complaint or in her deposition and therefore, the allegations that due to want of dowry as the less dowry was given by the complainant, deceased was mentally and physically tortured, are not believable.
12. Here, in this case a glaring aspect which is to be seen that aunties of the deceased i.e. sister in law of the complainant namely Leelaben and Vidhyaben are residing in neighborhood of the matrimonial home of the deceased and as per the case of the prosecution, they have taken the deceased to the Civil Hospital, but surprisingly, the prosecution has not examined both these important witnesses. These two witnesses – Leelaben and Vidhyaben, who can throw light on the aspect of mental and physical tortured by the respondents -accused. Moreover, it is human tendency that if a person is harassed to that extent that he or she commits suicide, it is natural that person will inform the near relatives about such harassment and not the neighbours of her parental house. However, such important witnesses are not examined and witnesses who are examined are complainant, friend of the deceased and neighbours of the complainant. All these witnesses cannot be said to be independent witnesses. It is admitted in the evidence of the complainant that the marriage has been solemnized in group marriage as per the rituals of their community, wherein there was no decision taken regarding any kind of dowry by the parties. As such when dowry is not decided at the time of marriage, allegations of dowry cannot be believed as to what kind of demand was made by the respondents – accused to the deceased as it was for cash or gold or any other thing. Nothing is brought on record regarding demand of dowry and when there is no decision taken in the marriage itself, this aspect of demanding dowry by the respondents – accused cannot be believed.
13. As per the Section 2 of the Dowry Prohibition Act;
“Definition of “Dowry”:- In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly–
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before [or any time after the marriage] [in connection with the marriage of the said parties.”
13.1. Considering the definition of dowry, no iota of evidence is brought on record by the prosecution as to what was the demand if not at the time of marriage, after marriage when demand of dowry was made. Without any evidence on record regarding demand of dowry, allegation of abatement of suicide cannot be believed, because there is nothing on record except bare words that the accused has abated the commission of suicide. Considering the provisions of Section 306 of the IPC, the basic ingredients to attract the provision of Section 306 of the IPC is the intention of the accused to instigate the deceased to commit suicide is required. Here in this case no iota of evidence has been brought on record to show that the accused has instigated the deceased in a manner as provided under Section 107 of the IPC. The definition of abatement which reads as under;
“A person abets the doing of a thing, who–
First.–Instigates any person to do that thing; or
Secondly.–Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly.–Intentionally aids, by any act or illegal omission, the doing of that thing.”
13.2. At this stage, it is beneficial to refer the decision of the Honourable Supreme Court in case of Arnab Manoranjan Goswami versus State of Maharashtra and others reported in MANU/SC/0902/2020 : (2021) 2 SCC 427, wherein in para 50 it is observed that;
“50. The first segment of Section 107 defines abetment as the instigation of a person to do a particular thing. The second segment defines it with reference to engaging in a conspiracy with one or more other persons for the doing of a thing, and an act or illegal omission in pursuance of the conspiracy. Under the third segment, abetment is founded on intentionally aiding the doing of a thing either by an act or omission. These provisions have been construed specifically in the context of Section 306 to which a reference is necessary in order to furnish the legal foundation for assessing the contents of the FIR. These provisions have been construed in the earlier judgments of this Court in State of West Bengal vs. Orilal Jaiswal, Randhir Singh vs. State of Punjab, Kishori Lal vs. State of MP (–Kishori Lal) and Kishangiri Mangalgiri Goswami vs. State of Gujarat. In Amalendu Pal vs. State of West Bengal, Justice Mukundakam Sharma, speaking for a two judge Bench of this Court and having adverted to the earlier decisions, observed:
“12…It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.”
13.3. Considering the entire evidence on record regarding instigation by the accused – respondents to the deceased for commission of suicide as stated above, if we consider the provisions of Section 304B of the IPC, essential ingredients are as under;
“(i) To attract the provisions of Section 304B of the IPC the main ingredient of the offence to be established is (a) that soon before the death the deceased she was subjected to cruelty and harassment in connection with the demand of dowry; (b) the death of deceased woman was caused by any burn or bodily injury or some other circumstances which was not normal; (c) such death occurs within seven years from the date of her marriage, (d) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband, (e) such cruelty or harassment should be for or in connection with demand of dowry and (f) it should be established that such cruelty and harassment was made soon before her death; Kashmir Kaur v. State of Punjab, MANU/SC/1092/2012 : AIR 2013 SC 1039.”
13.4. As reported in case of Prema S. Rao v. Yadla Srinivasa Rao, MANU/SC/0890/2002 : AIR 2003 SC 11, to attract the provisions of section 304B of the IPC, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment in connection with demand of dowry.
13.5. As per the provision of law, if a woman commit suicide within a period of 7 years of marriage, presumption as to abatement of suicide by the married woman is to be made under Section 113A of the Indian Evidence Act, which reads as under;
“When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.”
13.6. Reference is made to the decision in case of Mangat Ram v. State of Haryana, MANU/SC/0238/2014 : AIR 2014 SC 1782;
“The mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113A of the Evidence Act would not automatically apply. The Legislative mandate is that where a woman commits suicide of her husband has subjected her to cruelty, the presumption under section 498A of Indian Penal Code, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term “the Court may presume having regard to all other circumstances of the case, that such suicide had been abetted by her husband” would indicate that the presumption is discretionary.”
13.7. In the same way, under Section 113B of the Evidence Act, presumption can be taken. Section 113B of the Evidence Act reads as under;
“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.”
13.8. Reference is made to the decision of the Honourable Supreme Court in case of G.V. Siddaramesh v. State of Karnataka MANU/SC/0088/2010 : (2010) 3 SCC 152.
“(i) There must be material to show that soon before the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption can be drawn that a person has committed the dowry death of a woman.
(ii) xxx xxx xxx
(iii) xxx xxx xxx”
14. Considering these provisions of law in light of the evidence which is brought on record here aspect of cruelty by the respondents – accused to the deceased to the extent of her commission of suicide which can be termed to be abatement, is not proved as per the evidence of the complainant who has not stated regarding any cruelty with the deceased and when there is material contradictions to the aspect of cruelty to the extent of commission of offence, real mother and other witnesses which are merely neighbours of the complainant or the friend of the deceased cannot be relied upon. Moreover, as regarding dowry death, no iota of evidence that deceased was subjected to cruelty soon before her death in connection of demand of dowry and the allegations of taunting the deceasing for not doing household work, are general in nature. As regarding the allegations of burning hand by the mother in law as she was not able to cook properly, no supporting evidence has been brought on record like medical certificate or any other medical papers for the injury. These words regarding burning hand of the deceased by the mother in law are only bare words from the mouth of the witness, who is cousin of the deceased. Surprisingly, cousin brother of the deceased who has informed his father i.e. uncle of the deceased regarding this aspect and father of the deceased was also informed on the next day but burning of the hand is not on record in the evidence of complainant.
14.1. As stated above, instigation or abatement of suicide which are essential ingredients of Section 306 of the IPC is not proved. Thus on re-appreciation of evidence as well as considering the settled legal position, prosecution has failed to prove the case.
14.2. Thus, considering the above, it appears that there are contradictions in the deposition of the complainant herself. Further, there is nothing on record, except bare words that respondents/accused have instigated the deceased to take such and extreme step. At his juncture, if the decision of the Apex Court in case of M. Arjunan vs. State, reported in MANU/SC/1469/2018 : AIRONLINE 2018 SC 846 is referred to, the Court has held as under;
“The essential ingredients of the offence under Section 306 IPC are (i) abetment, (ii) the intention of the Accused to aid or instigate or abet the deceased to Commit suicide. The act of the Accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be Evidence capable of suggesting that the Accused intended by such act to instigate the deceased to Commit Suicide. Unless the ingredients/abetment to Commit Suicide are satisfied. Accused cannot be convicted under Section 306 IPC.”
15. In the present case also, as discussed herein above, there is nothing on record to show or suggest that the accused had instigated the deceased to commit suicide and there are contradictions in the deposition of complainant herself.
16. Considering the entire evidence on record oral as well as documentary, this Court is of the opinion that the prosecution has failed to prove the case against the accused by leading cogent and convincing evidence. The judgment delivered by the Sessions Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgment. The judgment does not suffer any material defect or cannot be said to be contrary to the evidence recorded.
17. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in MANU/SC/0286/2002 : (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-
“6. This Court has held in Kalyan v. State of U.P., MANU/SC/0594/2001 : (2001) 9 SCC 632 :
“8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, MANU/SC/0121/1973 : (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:
“27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of “The Proof of Guilt” by Glanville Williams, second edition:
“I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos.”
28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, MANU/SC/0167/1973 : (1973) 2 SCC 793, as is clear from the following observations:
“Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure considerations.”
“9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court.”
8. In Arulvelu and another versus State reported in MANU/SC/1709/2009 : (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:
“36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court’s view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.”
18. As observed by the Hon’ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in MANU/SC/0258/2011 : (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in MANU/SC/0673/2011 : (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court’s interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
19. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon’ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
20. In view of the above and for the reasons stated above, the judgment and order dated 19.09.1994, passed in Sessions Case No. 168 of 1991 by the learned Additional Sessions Judge, Mahesana is confirmed. The present Criminal Appeal deserve to be dismissed and is accordingly dismissed. Bail bond, if any, stands cancelled. R & P be sent back to the concerned trial Court, forthwith.
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