VIJAY PAL SINGH & ORS. Vs. STATE OF UTTARKHAND
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Section 498 A - Husband or relative of husband of a woman subjecting her to cruelty
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 37 of 2011, Judgment Date: Dec 16, 2014
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO (S). 37 OF 2011
Vijay Pal Singh and others ... Appellant (s)
Versus
State of Uttarakhand ... Respondent (s)
J U D G M E N T
KURIAN, J.:
The appellants faced trial before the IIIrd Additional Sessions Judge,
Nainital, Camp Haldwani in Sessions Trial No. 281 of 1991 for offences
punishable under Section 302 read with Section 34 of the Indian Penal Code
(45 of 1860) (hereinafter referred to as 'IPC'), Section 304B read with
Section 34 of IPC, Section 498A of IPC and Section 201 of IPC. Sessions
court acquitted all of them; but in appeal by the State, the High Court
convicted them under Section 304B read with Section 34 of IPC, Section 498A
of IPC and Section 201 of IPC and sentenced them for seven years rigorous
imprisonment, two years rigorous imprisonment with fine of Rs.2,000/- and
one year rigorous imprisonment, respectively, for each of them. Hence, this
appeal.
It is the prosecution case that the marriage between the second appellant-
Narendra Singh-son of the first appellant-Vijay Pal Singh and the deceased
Saroj daughter of Ramesh Singh took place on 10.02.1991. PW-1 was informed
on 25.05.1991, by the first appellant-Vijay Pal Singh through his son
Rakesh Singh that Saroj was found missing from the intervening night of
23/24th May, 1991. This information, PW-1 received around 08.00 a.m. on
25.05.1991 and, thereafter, he lodged a complaint at the Police Station,
Jaspur. On the same day, PW-2-Samar Pal Singh, Village Pradhan, lodged a
report at Police Station, Dillari stating therein that one Sukhe had
informed him that he had seen a dead body of an unknown woman in burnt
condition in the forest area on the side of the road. Thereafter, the case
was registered under Section 302 read with Section 201 of IPC. PW-8-Ashok
Kumar was entrusted with the investigation. The usual formalities on
inquest etc. were undertaken and the body was sent for postmortem
examination. PW-10-Dr. S. K. Arora conducted the postmortem on 26.05.1991
at 04.40 p.m.
Ramesh Singh-father of the deceased, on 26.05.1991, lodged another petition
at Police Station, Dillari alleging that his daughter Saroj, aged about 20-
22 years, had got married on 10.02.1991 and after the marriage, his
daughter had gone back to her in-laws' house at Kasampur, Police Station,
Jaspur, District Nainital with her husband Narendra Singh two times, and
the third time on 19.05.1991, his son-in-law Narendra Singh
had come at 12 noon and had taken Saroj along with him at 04.00 p.m. It was
alleged that the appellants were continuously making dowry demands for
television, fridge and cooler and he had given them an assurance to fulfill
the same, if given some time. But due to his weak economic position, he
could not fulfill those demands immediately. When the husband came to
Ramesh Singh's house to take back his daughter Saroj to her matrimonial
home for the second time, he was accompanied by his father Vijay Pal Singh,
his younger brother-Rakesh Singh and his brother-in-law-Gyan Chandra and
all of them had threatened him with dire consequences if the dowry demands
were not fulfilled. They also threatened to cause harm to her in case the
dowry demand was not fulfilled. The said incident took place in the
presence of the family members of PW-1-Ramesh Singh, people in the
neighbourhood and some villagers also. It was further alleged that his son-
in-law Narendra Singh went along with his daughter on the assurance that
their dowry demands would be fulfilled. On 25.05.1991, at about 08.00 a.m.,
Rakesh Singh came to his house and told him that Saroj had been missing
since the intervening night of 23/24th May, 1991. Ramesh Singh thereafter
went to Kasampur and enquired about Saroj but could not get any information
about her.
On 26.05.1991, he came to know from the police that they had recovered a
partly burnt dead body of an unknown lady from the forest of village
Sahaspuri on 25.05.1991 and the same had been sent to Muradabad for
postmortem. On receiving such information, Ramesh Singh reached the place
of postmortem and, by seeing the dead body and the half burnt clothes,
earrings, ring (anguthi), ring (challa) and bangles on the dead body, he
identified the dead body as that of his daughter Saroj. After the
postmortem, he took the dead body to Supardagi for cremation. Ramesh Singh
alleged that his son-in-law Narendra Singh, father of his son-in-law-Vijay
Pal Singh, brother of his son-in-law-Rakesh Singh and brother-in-law of his
son-in-law, Gyan Chandra, had committed the murder of his daughter Saroj
and had also tried to destroy the dead body by burning the same near
village Sahaspuri. It was further alleged that Vijay Pal Singh mislead him
by sending the missing information.
In view of the above complaint, another FIR was registered on 26.05.1991 at
Police Station, Dillari and the investigation was taken over by Mahindra
Singh Tyagi, Deputy Superintendent of Police-PW-9. As per his report under
Section 173(2) of The Code of Criminal Procedure, 1973 (hereinafter
referred to as "the Cr.PC.), the appellants are guilty of offences
punishable under Sections 304B, 498A and 201 of IPC and Section 3 / 4 of
the Dowry Prohibition Act, 1961.
Charges of offences punishable under Section 304B read with Section 34 of
IPC, Section 302 read with Section 34 of IPC, Section 498A of IPC and
Section 201 of IPC were framed against the appellants. The charges were
read over and explained to the appellants, who pleaded not guilty and
claimed to be tried.
Prosecution, in order to prove its case, examined PW-1-Ramesh Singh,
complainant and father of deceased Saroj, PW-2-Samar Pal Singh, Village
Pradhan, who lodged FIR report-Exhibit-Ka.4, PW-3-Sukhe, who first saw the
dead body lying on the road and thereafter informed the Village Pradhan
about the same, PW-4-Vikram Singh, witness of the recovery memo, PW-5-Dr.
Mushahid Hussain and PW-6-Ishwari Prasad Sharma, local
residents of the village, PW-7-Braham Pal Singh-
husband of the elder sister of the deceased, PW-8-Ashok Kumar Rawat-who
initially conducted the investigation of the case, PW-9- Mahindra Singh
Tyagi -Deputy Superintendent of Police, Investigating Officer of the case,
PW-10-Dr. S.K. Arora-who conducted the postmortem, PW-11-Hemendra Kumar-
photographer and PW-12-Samar Pal Singh-witness of inquest report.
Thereafter, statements of the appellants/accused were recorded under
Section 313 of Cr.PC. The oral and documentary evidence were put to each of
them in question form, who denied the allegations made against them.
However, no oral or documentary evidence was produced by them in their
defence.
The Additional Sessions Judge acquitted all the accused of all the charges
mainly on two counts - (i) the dead body was not in an identifiable
condition and (ii) there was no evidence of cruelty or harassment for
dowry.
The State filed an appeal under Section 378 of Cr.PC before the High Court
which was disposed of by the impugned judgment dated 10.06.2010. The High
Court, after elaborately and minutely discussing the evidence, came to the
following conclusion at paragraph-33, which reads as follows:
"33. From the above said facts and circumstances, the prosecution has
established its case beyond reasonable doubt against the respondents under
Sections 304-B r/w 34 of I.P.C. and 498-A of IPC. Besides above, it is also
necessary to state here that P.W.-10 Dr. S.K. Arora who conducted the post-
mortem of the dead body of the deceased found two ante-mortem injuries on
the body of the deceased, one on head and other on neck. He also found burn
injuries on the body of the deceased which was caused after the death.
Ultimately, he opined that the deceased had died due to asphyxia caused by
strangulation. Thus, from the above facts, it transpires that the
respondents/accused first committed murder of Saroj at their house at
Village Kasampur by throttling her neck and thereafter in order to destroy
the evidence, they burnt the dead body and planted it on road in the forest
of village Sahaspuri at a distance of 35 Kms from Village Kasampur and with
intention to mislead the complainant Ramesh Singh, they sent a false
missing information of the deceased through respondent/accused Rakesh.
Thus, in this way, the respondents/accused have also committed offence
punishable under Section 201 IPC."
On the basis of the above conclusion, the following finding was entered:
"34. Therefore, in view of the above-said discussion, I am of the
considered view that the trial court was not correct and justified in
acquitting the respondents for the offence punishable u/Ss 304-B r/w
Section 34 IPC, 498-A and 201 of IPC. The prosecution has successfully
proved its case against the respondents/accused beyond reasonable doubt
under the aforesaid sections and they are accordingly convicted."
On the basis of above finding, the following sentence was passed:
"35. Accordingly, the appeal preferred by the State is allowed. The
judgment and order dated 22.7.1995 passed by Third Additional Sessions
Judge, Nainital, Camp Haldwani in Sessions Trial No. 281 of 1991, State Vs.
Vijay Pal and others, is hereby set aside. The respondents-accused Vijay
Pal Singh, Narendra Singh, Rakesh and Gyan Chandra are hereby convicted
under Section 304-B IPC r/w Section 34 IPC and each of them are sentenced
to seven years' R.I. Each of them is further convicted u/s 498-A and are
sentenced to further two years' R.I. with fine of Rs.2,000/- each and in
default, the defaulter shall undergo further six months' R.I. They are
further convicted u/s 201 IPC and each of them is sentenced to one year's
R.I. All the sentences except that of fine shall run concurrently. Let the
respondents-accused be taken into custody forthwith in order to serve out
the sentence as awarded against each of them. The period already undergone
by the respondents-accused during the period of investigation and trial
shall be adjusted."
Learned Counsel appearing for the appellants, Mr. P.K. Dey submitted that
this Court may not disturb the acquittal granted to the appellants by the
trial court merely because a different view is possible. It was contended
that the prosecution having miserably failed to establish the ingredients
of the offence under Section 304B of IPC, the impugned judgment is liable
to be set aside. Mr. Dey, learned Counsel further contended that the trial
court having acquitted the appellants, the High Court should not have
interfered with the findings entered by the trial court which alone had the
opportunity to first appreciate the evidence while recording it. It was
further contended that in any case, being an incident of 1991, this Court
may not sustain the sentence awarded to the appellants. At any rate, Mr.
Dey submitted that there is absolutely no evidence so as to connect the
third and the fourth appellants who are the younger brother of the second
appellant, husband of the deceased and the brother-in-law, husband of the
sister of Narendra Singh. And the last contention of Mr. Dey is that the
matter should be remanded to the High Court since the court has not
followed the mandatory procedure under Section 235 of Cr.PC, in having been
denied an opportunity to the appellants to make submissions on sentence.
Learned Counsel appearing for the respondent-State,
Mr. Tanmaya Agarwal, however, contends that the findings of the trial court
being absolutely perverse, High Court is fully justified in reversing the
finding and reaching a correct conclusion. According to the learned Counsel
for the State, all the ingredients of Section 304B have been made out in
the present case and the punishments awarded to all the appellants are
liable to the sustained.
The postmortem report shows the following injuries on the body:
"i) Lacerated wound 10 cm x 4 cm x skull deep on the occipital region of
head underneath occipital, left parietal, temporal bone fractured.
ii) Contusion semi-circular 20 cm x 3 cm on the front of neck underneath
blood vessel lacerated and clotted blood present and cornua of hyoid bone
both side fractured.
One post-mortem injury was also found on the dead body of the
deceased, which reads as under:-
i) P.M burn whole of body including both extremities, abdomen, chest,
face and back."
The cause of death, according to the postmortem report is asphyxia caused
by strangulation.
It is rather strange that the High Court having entered a finding as
extracted by us at paragraph-8 that it is a case of murder committed by the
appellants herein, declined to award appropriate punishment under Section
302 of IPC. It is a case where the appellants had faced trial under Section
302 of IPC and, therefore, the High Court could have, awarded an
appropriate punishment. The probable reasons why the High Court declined to
do so, we shall discuss later.
Since, the victim in the case is a married woman and the death being within
seven years of marriage, apparently, the court has gone only on one
tangent, to treat the same as a dowry death. No doubt, the death is in
unnatural circumstances but if there are definite indications of the death
being homicide, the first approach of the prosecution and the court should
be to find out as to who caused that murder. Section 304B of IPC is not a
substitute for Section 302 of IPC. The genesis of Section 304B of IPC
introduced w.e.f. 19.11.1986 as per Act 43 of 1986 relates back to the 91st
Report of the Law Commission of India. It is significant to note that the
subject was taken up by the Law Commission suo motu. Paragraph-1.3 of the
Report reads thus:
"1.3. If, in a particular incident of dowry death, the facts are such as to
satisfy the legal ingredients of an offence already known to the law, and
if those facts can be proved without much difficulty, the existing criminal
law can be resorted to for bringing the offender to book. In practice,
however, two main impediments arise-
(i) either the facts do not fully fit into the pigeon-hole of any known
offence; or
(ii) the peculiarities of the situation are such that proof of directly
incriminating facts is thereby rendered difficult.
The first impediment mentioned above is aptly illustrated by the
situation where a woman takes her life with her own hands, though she is
driven to it by ill-treatment. This situation may not fit into any
existing pigeon-hole in the list of offences recognized by the general
criminal law of the country, except where there is definite proof of
instigation, encouragement or other conduct that amounts to "abetment" of
suicide. Though, according to newspaper reports, there have been judgments
of lower courts which seem to construe "abetment" in this context widely,
the position is not beyond doubt.
The second situation mentioned above finds illustration in those
incidents in which, even though the circumstances raise a strong suspicion
that the death was not accidental, yet, proof beyond reasonable doubt may
not be forthcoming that the case was really one of homicide. Thus, there is
need to address oneself to the substantive criminal law as well as to the
law of evidence."
In the Statement of Objects and Reasons for the Act 43 of 1986, in the
Bill, it is stated as follows:
"The Dowry Prohibition Act, 1961 was recently amended by the Dowry
Prohibition (Amendment) Act, 1984 to give effect to certain recommendations
of the Joint Committee of the Houses of Parliament to examine the question
of the working of the Dowry Prohibition Act, 1961 and to make the
provisions of the Act more stringent and effective. Although the Dowry
Prohibition (Amendment) Act, 1984 was an improvement on the existing
legislation, opinions have been expressed by representatives from women's
voluntary organizations and others to the effect that the amendments made
are still inadequate and the Act needs to be further amended.
2. It is, therefore, proposed to further amend the Dowry Prohibition Act,
1961 to make provisions therein further stringent and effective. ..."
However, it is generally seen that in cases where a married woman dies
within seven years of marriage, otherwise than under normal circumstances,
no inquiry is usually conducted to see whether there is evidence, direct or
circumstantial, as to whether the offence falls under Section 302 of IPC.
Sometimes, Section 302 of IPC is put as an alternate charge. In cases where
there is evidence, direct or circumstantial, to show that the offence falls
under Section 302 of IPC, the trial court should frame the charge under
Section 302 of IPC even if the police has not expressed any opinion in that
regard in the report under Section 173(2) of the Cr.PC. Section 304B of IPC
can be put as an alternate charge if the trial court so feels. In the
course of trial, if the court finds that there is no evidence, direct or
circumstantial, and proof beyond reasonable doubt is not available to
establish that the same is not homicide, in such a situation, if the
ingredients under Section 304B of IPC are available, the trial court should
proceed under the said provision. In Muthu Kutty and another v. State by
Inspector of Police, T.N.[1], this Court addressed the issue and held as
follows:
"20. A reading of Section 304-B IPC and Section 113-B, Evidence Act
together makes it clear that law authorises a presumption that the husband
or [pic]any other relative of the husband has caused the death of a woman
if she happens to die in circumstances not normal and that there was
evidence to show that she was treated with cruelty or harassed before her
death in connection with any demand for dowry. It, therefore, follows that
the husband or the relative, as the case may be, need not be the actual or
direct participant in the commission of the offence of death. For those
that are direct participants in the commission of the offence of death
there are already provisions incorporated in Sections 300, 302 and 304. The
provisions contained in Section 304-B IPC and Section 113-B of the Evidence
Act were incorporated on the anvil of the Dowry Prohibition (Amendment)
Act, 1984, the main object of which is to curb the evil of dowry in the
society and to make it severely punitive in nature and not to extricate
husbands or their relatives from the clutches of Section 302 IPC if they
directly cause death. This conceptual difference was not kept in view by
the courts below. But that cannot bring any relief if the conviction is
altered to Section 304 Part II. No prejudice is caused to the accused-
appellants as they were originally charged for offence punishable under
Section 302 IPC along with Section 304-B IPC."
In a recent decision, this Court in Jasvinder Saini and others v. State
(Government of NCT of Delhi)[2], observed thus:
"15. It is common ground that a charge under Section 304-B IPC is not a
substitute for a charge of murder punishable under Section 302. As in the
case of murder in every case under Section 304-B also there is a death
involved. The question whether it is murder punishable under Section 302
IPC or a dowry death punishable under Section 304-B IPC depends upon the
fact situation and the evidence in the case. If there is evidence whether
direct or circumstantial to prima facie support a charge under Section 302
IPC the trial court can and indeed ought to frame a charge of murder
punishable under Section 302 IPC, which would then be the main charge and
not an alternative charge as is erroneously assumed in some quarters. If
the main charge of murder is not proved against the accused at the trial,
the court can look into the evidence to determine whether the alternative
charge of dowry death punishable under Section 304-B is established. The
ingredients constituting the two offences are different, thereby demanding
appreciation of evidence from the perspective relevant to such ingredients.
The trial court in that view of the matter acted mechanically for it framed
an additional charge under Section 302 IPC without adverting to the
evidence adduced in the case and simply on the basis of the direction
issued in Rajbir case. The High Court no doubt made a half-hearted attempt
to justify the framing of the charge independent of the directions in
Rajbir case, but it would have been more appropriate to remit the matter
back to the trial court for fresh orders rather than lending support to it
in the manner done by the High Court."
Though in the instant case the accused were charged by the Sessions Court
under Section 302 of IPC, it is seen that the trial court has not made any
serious attempt to make an inquiry in that regard. If there is evidence
available on homicide in a case of dowry death, it is the duty of the
investigating officer to investigate the case under Section 302 of IPC and
the prosecution to proceed in that regard and the court to approach the
case in that perspective. Merely because the victim is a married woman
suffering an unnatural death within seven years of marriage and there is
evidence that she was subjected to cruelty or harassment on account of
demand for dowry, the prosecution and the court cannot close its eyes on
the culpable homicide and refrain from punishing its author, if there is
evidence in that regard, direct or circumstantial.
In the instant case, the prosecution has not made any attempt to explain
the ante-mortem injuries which conclusively point to the cause of death as
asphyxia caused by strangulation. Yet, no serious attempt, it is disturbing
to note, was done to connect the murder to its author(s).
No doubt, nothing prevents this Court from putting the appellants on notice
as to why the punishment should not be appropriately enhanced but why we
reluctantly decline to do so, we shall explain in the later part of the
judgment.
In two of the early decisions of this Court, after the introduction of
Section 304B of IPC, the ingredients of the offence and the interplay of
Section 304B of IPC with Sections 498A, 302, 306 of IPC have also been
discussed. In State of Punjab v. Iqbal Singh and others[3], the Court in
paragraph-8 stated that:
"8. ... The legislative intent is clear to curb the menace of dowry deaths,
etc., with a firm hand. We must keep in mind this legislative intent. It
must be remembered that since crimes are generally committed in the privacy
of residential homes and in secrecy, independent and direct evidence is not
easy to get. That is why the legislature has by introducing Sections 113-A
and 113-B in the Evidence Act tried to strengthen the prosecution hands by
permitting a presumption to be raised if certain foundational facts are
established and the unfortunate event has taken place within seven years of
marriage. This period of seven years is considered to be the turbulent one
after which the legislature assumes that the couple would have settled down
in life. If a married women is subjected to cruelty or harassment by her
husband or his family members Section 498-A, IPC would be attracted. If
such cruelty or harassment was inflicted by the husband or his relative
for, or in connection with, any demand for dowry immediately preceding
death by burns and bodily injury or in abnormal circumstances within seven
years of marriage, such husband or relative is deemed to have caused her
death and is liable to be punished under Section 304-B, IPC. When the
question at issue is whether a person is guilty of dowry death of a woman
and the evidence discloses that immediately before her death she was
subjected by such person to cruelty and/or harassment for, or in connection
with, any demand for dowry, Section 113-B, Evidence Act provides that the
court shall presume that such person had caused the dowry death. Of course
if there is proof of the person having intentionally caused her death that
would attract Section 302, IPC. Then we have a situation where the husband
or his relative by his wilful conduct creates a situation which he knows
will drive the woman to commit suicide and she actually does so, the case
would squarely fall within the ambit of Section 306, IPC. In such a case
the conduct of the person would tantamount to inciting or [pic]provoking or
virtually pushing the woman into a desperate situation of no return which
would compel her to put an end to her miseries by committing suicide. ..."
In Smt. Shanti and another v. State of Haryana[4], which is seen referred
to in many of the subsequent decisions, this Court stated the law on the
point as follows:
"4. ... A careful analysis of Section 304-B shows that this section has
the following essentials:
(1) The death of a woman should be caused by burns or bodily injury or
otherwise than under normal circumstances;
[pic](2) Such death should have occurred within seven years of her
marriage;
(3) She must have been subjected to cruelty or harassment by her husband
or any relative of her husband;
(4) Such cruelty or harassment should be for or in connection with demand
for dowry.
Section 113-B of the Evidence Act lays down that if soon before the death
such woman has been subjected to cruelty or harassment for or in connection
with any demand for dowry, then the court shall presume that such person
has committed the dowry death. The meaning of "cruelty" for the purposes of
these sections has to be gathered from the language as found in Section 498-
A and as per that section "cruelty" means "any wilful conduct which is of
such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life etc. or harassment to coerce her or any
other person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related
to her to meet such demand". As per the definition of "dowry" any property
or valuable security given or agreed to be given either at or before or any
time after the marriage, comes within the meaning of "dowry". ..."
Unto the latest decision available on this point, in Baljinder Kaur v.
State of Punjab[5], except for the required thrust with respect to the
factual situation available in each case, the law has been consistent as to
the requirements for constituting the offence under Section 304B of IPC.
Back to the facts of the instant case, the main evidence in this case is of
PW-1-Ramesh Singh, father of the victim, PWs- 5 and 6 - who are the
residents of the village and PW-7- husband of the elder sister of the
deceased, apart from the medical evidence.
According to PW-1, he had brought his daughter from her in-laws' house. She
had told him about the demand from her in-laws' for the dowry. The deceased
had gone to the in-laws' twice only and the third time when the son-in-law
had come to take his daughter, he was accompanied by his father-Vijay Pal
Singh, younger brother-Rakesh Singh and brother-in-law-Gyan Chandra and
they had threatened him with dire consequences in case their demand for
television, fridge and cooler was not met. PWs-5 and 6 are witnesses of the
same. PW-5-Dr. Mushahid Hussain is a
registered medical practitioner serving in the village for more than two
decades. According to him, the relatives of the husband of the deceased
Saroj and her father-in-law and other relations used to demand more dowry.
He had once used his good office to sort out the dispute. It has also come
out from his evidence that once a Panchayat was called on the issue and
even in the Panchayat, in the presence of PW-5 himself, the husband and his
father and others made demand for dowry. PW-6 is the Gram Pradhan of the
Gram Sabha, Alampur. He has also given evidence to the effect that there
were demands for more dowry from the in-laws' of deceased Saroj. He has
also given evidence regarding the Panchayat held to sort out the matter
and, in his presence also, the in-laws' of deceased Saroj were requesting
for more dowry. The other evidence is of PW-7- husband of the elder sister
of the deceased. Only PW-1 and PW-7, the father and husband of the elder
sister of the deceased, respectively, have given evidence to the effect
that all the appellants had made the demand for more dowry and had posed
threat of consequences, if the demands were not met.
The death is within four months of the marriage. There is ample evidence,
which we have discussed above, to show that there had been demands for
dowry. Then, the only ingredient to be established is as to whether soon
prior to the death of deceased Saroj, whether she had been subjected to
cruelty or harassment on account of or in connection with demand for dowry.
Mr. Dey contends that even assuming that there is evidence on demand for
dowry, there is absolutely no evidence to show that any demand was made to
the deceased Saroj. This contention is difficult to digest. Demand for
dowry so as to come under the purview of Section 304B or Section 498A need
not be to the married woman. The demand can as well be to the father,
mother, brother, etc., of the married woman. Any demand to them is as good
as a demand to the married woman since she is the one to suffer in case the
demands are not met, as has happened in the instant case.
Yet another serious contention raised by Mr. Dey is that in any case, there
is no evidence of cruelty or harassment meted out to the deceased on
account or in relation to the demand for dowry. Cruelty or harassment need
not always be demonstrated in the form of physical violence. The fact that
a married woman had to go out of her in-laws' house and that the in-laws'
had made demand for dowry as a pre-condition for
taking her back and that even a Panchayat was held at the local level to
sort out the issue, are sufficient indicators of cruelty or harassment,
mental, if not, physical. Thus, all the ingredients of Section 304B of IPC
have been established in the instant case.
Incidentally, we shall also refer to one contention regarding the
identification of the body. According to the learned Counsel, which has
been the version of the trial court as well, the deceased was not
identified as Saroj, the wife of the second appellant-Narendra Singh. It
appears, there has been slight confusion in the mind of the trial court
with regard to recognition and identification. PW-2 and PW-3 first saw the
body and reported that the dead body was of an unknown person and, the
people who went to see the body, could not recognize as to who the person
was. It has to be seen that PWs-2 and 3 were not from the village of the
deceased. Therefore, one cannot normally expect them to recognize the
deceased person. That does not mean that the face of the dead body was in
such a shape that it had lost its shape. A bare look at Exhibits-4 and 5-
photographs would show that to the people who knew the deceased, they could
easily recognize who the person was. Had the face been completely burnt or
otherwise lost its whole shape, it would not have been possible for anybody
to identify it, let alone recognize the person. In the instant case, PWs-2
and 3 identified the face as that of a woman and PW-1-father has recognized
her to be his daughter. At the time of cremation, it has come in evidence
that others also recognized the deceased as Saroj, daughter of PW-1 and
wife of second appeallant-Narendra Singh.
Learned Counsel appearing for the appellants strongly canvassed for the
position that in an appeal against acquittal, there are some inbuilt
restrictions before the appellate court and the mere possibility of a
different view is not enough to interfere with the acquittal. We have no
quarrel with the well-settled proposition. The author of this judgment is
the author of the judgment in Basappa v. State of Karnataka[6] wherein a
detailed survey has been conducted with regard to the scope of interference
of the appellate court in an appeal against the judgment of acquittal.
After referring to following decisions in K. Prakashan v. P.K.
Surenderan[7], T. Subramanian v. State of Tamil Nadu[8], Bhim Singh v.
State of Haryana[9], Kallu alias Masih and others v. State of Madhya
Pradesh[10], Ramesh Babulal Doshi v. State of Gujarat[11], Ganpat v. State
of Haryana and others[12], State of Punjab v. Karnail Singh[13],
Chandrappa and others v. State of Karnataka[14], which have dealt with the
issue, this Court held that unless the judgment of acquittal is based on no
material or is perverse or the view taken by the court is wholly
unreasonable or is not a plausible view or there is non-consideration of
any evidence or there is palpable misreading of evidence, the appellate
court will not be justified in interfering with the order of acquittal.
While endorsing and reaffirming those principles, we are of the considered
view that on the facts of the present case, there has been a palpable
misreading of evidence by the trial court. As we have already discussed
herein above, the conclusions drawn by the trial court is apparently
against the weight of evidence and thus perverse, and it is so perverse
that no reasonable man could reach conclusions.
Now, the question as to why the High Court, having entered a conclusion
that it is a case of murder at the hands of the appellants, yet chose to
convict them only under Section 304B of IPC. As we have already indicated,
it could have been a case for the High Court or for that matter this Court
for issuing notice for enhancement of punishment to those against whom
there is evidence to connect them with the murder. The incident being of
1991, the prosecution having not chosen to link all the circumstances in a
chain with no missing links to reach the irresistible and conclusive
finding on involvement of the accused, the High Court would have thought it
more prudent to convict the accused only under Section 304B of IPC. No
doubt, in such a case, the High Court should not have entered a categoric
finding on murder since once the court enters such a finding, the
punishment can only be under Section 302 of IPC. Having regard to the
circumstances which we have referred to above, we are of the view that
though this case could have been dealt with under Section 302 of IPC, at
this distance of time and in view of the lack of evidence on the chain of
circumstances, it will not be proper for this Court to proceed under
Section 302 of IPC for enhancement of punishment. There are no such
problems as far as the presumption under Section 113B of the Indian
Evidence Act, 1872 is concerned. Once the ingredients of Section 304B of
IPC are established, the presumption is that the death has been caused by
the husband or his relatives, who caused the cruelty or harassment. That
presumption can safely be drawn in the instant case, as we have already
discussed above, as all the ingredients under Section 304B of IPC have been
proved beyond doubt in the present case particularly since there is no
direct evidence on the part of the appellants to rebut the same.
Yet with all that, we have to address a further question as to the
involvement of the younger brother of husband-Rakesh Singh and brother-in-
law of husband-Gyan Chandra. Though, under Section 304B of IPC, a
presumption has to be drawn against those relatives who have harassed the
deceased in connection with the demand for dowry, there must be evidence,
which is not rebutted to connect the husband and each relative in that
regard. Rebuttal can be made even without direct evidence (See Kundan Lal
Rallaram v. The Custodian, Evacuee Property Bombay[15] followed in M.
Narsinga Rao v. State of Andhra Pradesh[16]).
In Alamgir Sani v. State of Assam[17], one of the issues that came up for
consideration before this Court on acquittal under Section 302 of IPC is
whether on account of acquittal under Section 302 of IPC, the accused could
claim acquittal under Section 304B of IPC. It was clarified by this Court
that the acquittal under Section 302 of IPC will not lead to automatic
acquittal under Section 304B of IPC. Even if an accused is acquitted under
Section 302 of IPC, if there is evidence available so as to satisfy the
ingredients of Section 304B of IPC, the accused can still be convicted
under Section 304B of IPC, in case there is no rebuttal of presumption on
the death as caused by the accused. To quote:
"15. We also see no substance in the submission that merely because the
appellant had been acquitted under Section 302 IPC the presumption under
Section 113-B of the Evidence Act stands automatically rebutted. The death
having taken place within seven years of the marriage and there being
sufficient evidence of demand of dowry, the presumption under Section 113-B
of the Evidence Act gets invoked. There is no evidence in rebuttal."
Though PW-1-father of the deceased and PW-7- husband of the elder sister of
the deceased have stated that Rakesh Singh and Gyan Chandra were also with
Vijay Pal Singh and Narendra Singh-husband of the deceased when they
visited his house and demanded dowry and posed a threat, but it has come in
the evidence of PW-5 and PW-6 that in the family of in-laws' of the
deceased Saroj, they did not recognize any person other than the father-in-
law-Vijay Pal Singh and husband-Narendra Singh. Not only that it has come
out in evidence of PW-1 himself that younger brother-Rakesh Singh had been
studying elsewhere and that the brother-in-law Gyan Chandra was from a
different village. Since the independent witnesses PWs-5 and 6 have
recognized only the father-in-law and husband of the deceased, we are of
the view that it will not be safe to conclude the offence under Sections
304B of IPC, 498A of IPC or 201 of IPC as proved against Rakesh Singh and
Gyan Chandra. Therefore, the conviction and sentence as against third
accused/appellant-Rakesh Singh and fourth accused/appellant-Gyan Chandra
are set aside.
Now, the last question as to whether the case should be remitted back to
the High Court for the purpose of Section 235 of Cr.PC, we are of the view
that in the present case, it is not necessary. The conviction is under
Section 304B IPC. The mandatory minimum punishment is seven years. Of
course, there is no such minimum punishment under Section 498A of IPC or
Section 201 of IPC. Since the sentence in respect of offence under Section
498A of IPC for two years rigorous imprisonment and one year under Section
201 of IPC are to run concurrently, no prejudice whatsoever is caused to
the two appellants. Therefore, this is not a fit case for following the
procedure under Section 235 of Cr.PC by this Court or for remand in that
regard to the High Court.
The conviction and sentence against the third and fourth
accused/appellants, Rakesh Singh and Gyan Chandra, respectively, are set
aside. The conviction and sentence as against first and second appellants,
Vijay Pal Singh and Narendra Singh, respectively, under Section 304B of IPC
read with Section 34 of IPC, Section 498A of IPC and Section 201of IPC are
upheld. Their bail bonds are cancelled. They shall immediately
surrender/they shall be taken to custody, to serve the remaining sentence.
The appeal is thus partly allowed as above.
..........................................J.
(KURIAN JOSEPH)
..........................................J.
(ABHAY MANOHAR SAPRE)
New Delhi;
December 16, 2014.
-----------------------
[1]
(2005) 9 SCC 113
[2] (2013) 7 SCC 256
[3] (1991) 3 SCC 1
[4] (1991) 1 SCC 371
[5] (2014) 13 SCALE 96
[6] (2014) 5 SCC 154
[7] (2008) 1 SCC 258
[8] (2006) 1 SCC 401
[9] (2002) 10 SCC 461
[10] (2006) 10 SCC 313
[11] (1996) 9 SCC 225
[12] (2010) 12 SCC 59
[13] (2003) 11 SCC 271
[14] (2007) 4 SCC 415
[15] AIR 1961 SC 1316
[16] (2001) 1 SCC 691
[17] (2002) 10 SCC 277
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