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CASE NO.:

Appeal (crl.) 639 of 1998

PETITIONER:

State of Rajasthan

RESPONDENT:

Teg Bahadur & Ors.

DATE OF JUDGMENT: 29/09/2004

BENCH:

K.G. Balakrishnan & Dr. AR. Lakshmanan

JUDGMENT:

J U D G M E N T

Dr. AR. Lakshmanan, J.

This appeal is directed against the final judgment and order dated 14.03.1997

passed by the High Court of Rajasthan at Jaipur in S.B. Criminal Appeal No. 487 of

1996 whereby the High Court allowing the appeal held that the evidence adduced by

the prosecution is not reliable and on the basis of such weak and unreliable evidence,

the guilt of the respondents-accused cannot be proved successfully.

The short facts giving rise to the appeal are as follows:

On 05.05.1993, the deceased Suman aged 18 years was married to the

respondent-accused Teg Bahadur in accordance with Hindu rites and ceremonies.

After the Gauna ceremony was completed, deceased Suman was sent back to her

maternal house by her in-laws and she complained to her parents that she had been

sent back because she had not brought enough dowry with her. She also told them

that she had been threatened not to return if she was unable to bring a Television,

Cooler and money. However, after lot of discussions and negotiations with her in-laws,

Suman was taken back by her in-laws. But the demand for dowry still persisted and

within five months that Suman stayed in her maternal house, she was sent back to her

matrimonial house three/four times and threatened to bring new dowry items every

time. According to the prosecution, she was harassed, tormented and tortured by her

in-laws, husband and other relatives and physically abused for bringing insufficient

dowry in her marriage.

On 09.09.1994, at about 10.30 p.m. death of the deceased Suman took place in

mysterious circumstances in the intervening night without assigning any logical or

cogent reasons for her demise. Even before sunrise, the cremation ceremony was

performed in a hasty manner without the parents of the deceased Suman being duly

informed about the death of their daughter.

On 11.09.1994, the information about the death of their daughter Suman was

received by the father of the deceased - Om Prakash PW-13 from their relative Chunilal

PW-8, who was residing in Garhwalon Ki Dhani. Upon receiving this information, Om

Prakash and Ganpat Ram left for the house of Ghanshyam i.e. grandfather of the

respondent-accused, who told them that their daughter Suman died due to Haiza. But

upon asking the neighbours they gathered altogether different information that their

daughter had been killed mercilessly, being thrown in the well. An F.I.R. was lodged on

13.09.1994 by the father of the deceased - Om Prakash who was accompanied by a

number of villagers. On the basis of the written report, F.I.R. was lodged and a case

was registered under Sections 498-A, 302 and 202 I.P.C. The Investigation Officer

PW-24 reached the place of incident and prepared the site plan of the well Ex.P-1 in

the presence of witnesses - Radheyshyam and Lichman Ram. Rameshwar was made

to go down the well from which one gold ear-ring, glass/lak bangle pieces and a metal

clip was recovered and sealed then and there. The mud on the motor installed in the

well was also taken along with the mud which was stuck on the sides of the well was

also scraped and sealed and marked as Ex.P-4. Thereafter, the site plan of the place

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of incident was prepared and samples of plain earth and suspicious mud from the

residential house of the respondent-accused were taken and sealed. In the presence

of the witnesses, the remains of ashes and bones belonging to the deceased Suman

were collected from the cremation place and sealed them there. During investigation,

the statements of various witnesses were recorded under Section 161 Cr.P.C. Upon

completion of investigation, charge sheet was filed against the respondents-accused

Teg Bahadur, Ghanshyam and Smt. Singari under Sections 304-B, 498-A and 201

I.P.C. in the Court of Addl. Chief Judicial Magistrate, Navalgarh. On committal for trial,

it was numbered as Sessions Case No. 7 of 1995.

The prosecution examined as many as 24 witnesses to prove their case. No

witness was examined by the Defence side. Out of 24 witnesses, 8 of them have

turned hostile. Relying upon the facts and circumstances and the evidence adduced on

record, the learned Sessions Judge, Jhunjhunu held the respondents-accused guilty

under Sections 498-A, 304-B, 201 I.P.C. and were sentenced to 8 years of rigorous

imprisonment. However, no sentence was passed separately for the offence committed

by them under Section 498-A.

Aggrieved against the judgment and order passed by the learned Sessions

Judge, the respondents-accused filed S.B. Criminal Appeal No. 487 of 1996 in the High

Court of Rajasthan at Jaipur. Final judgment and order was passed by the High Court

while allowing the appeal filed by the respondents herein. The High Court held that the

evidence adduced by the prosecution is not reliable and on the basis of such weak and

unreliable evidence, the guilt of the accused cannot be proved successfully.

Aggrieved against the final judgment and order passed by the High Court, the

State of Rajasthan has filed the above appeal in this Court.

We heard Ms. Madhurima Tatia, learned counsel for the appellant and Mr. M.L.

Lahoty, learned counsel for the respondent. We have perused the records and also of

the judgments of both the Sessions Court and of the High Court and heard lengthy

arguments advanced by the counsel appearing on either side.

Ms. Madhurima Tatia, learned counsel appearing for the appellant submitted

that the High Court has erred in acquitting the respondents-accused even when the

facts and circumstances which were proved beyond reasonable doubt and the

evidence adduced on record clearly proves the guilt of all the respondents-accused that

in all probabilities the respondents-accused had caused the death of the 18 year old

deceased Suman. She further submitted that the High Court is not correct in not

appreciating the testimonies of PW-13 - Om Prakash and PW-4 - Ram Kishan who

have clearly stated in their statements the entire chronology of events, which led to the

death of the deceased. According to the learned counsel for the appellant, such clear

and lucid statement of facts, which were proved beyond reasonable doubt should not

have been overlooked and ignored by the High Court even when their testimonies

clearly corroborate the evidence adduced by the prosecution and has successfully

proved the guilt of the accused. The counsel for the appellant contended that all the

ingredients of offence under Section 304B were made out and it was urged that there

was sufficient evidence to hold that before the death of Suman there was demand for

dowry by the appellant and there was consequential harassment on his part. Counsel

also urged that the presumption under Section 113-B of the Evidence Act should have

been drawn and the High Court seriously erred in acquitting the accused without

properly appreciating the evidence.

In view of these submissions, the learned counsel for the appellant submitted

that the High Court has erred in acquitting the accused even when the chain of

circumstances was complete which clearly point out towards the guilt of the

respondents-accused. Winding up her arguments, the learned counsel submitted that

the cremation of the body of the deceased Suman was cremated in the hasty manner

without even informing the parents of the deceased. Learned counsel for the appellant

prayed that the appeal against the final judgment of the High Court be set aside and the

judgment of the Sessions Court be restored.

Per contra, Mr. M.L. Lahoty, learned counsel for the respondents-accused

submitted that the information regarding the death of Suman was given to her family

members who were present at the time of cremation and though many neighbours were

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examined, none of them supported the case of the prosecution. He further submitted

that the alleged recovery of one golden ear-ring, pieces of bangles and hair clip has not

been proved as those of the deceased-Suman. With regard to the demand of dowry,

the important witness is the mother of deceased, Smt. Hira Bai, PW-22 but she also

has not supported the case of the prosecution. Learned counsel for the accused took

us through the evidence of the witnesses and submitted that the death of Suman was

not for the reasons, as alleged by the prosecution and, therefore, the High Court has

rightly allowed the appeal filed by the accused-respondents herein.

In the instant case, the prosecution has examined as many as 24 witnesses. In

these, the father of the deceased, Suman, PW-13, Om Prakash, grand-father of PW-5,

Ganpat and mother of the deceased, Smt. Hira Bai, PW-22, PW-2, Lachhman and PW-

3, Radhey Shyam were examined. PW-6, PW-7, PW-14, PW-15 and PW-16 were

declared hostile. The accused \026 Teg Bahadur, in his statement under Section 313 of

the Criminal Procedure Code, stated that his marriage with Suman was solemnised

without dowry and even after marriage, there was no demand for dowry and that they

were living happily together and that a false case has been lodged against him. The

accused-Ghanshyam, stated in his statement that Teg Bahadur is his grand son whose

marriage was solemnised without dowry and there was no demand of dowry. It is also

in the evidence that at the time of death of Suman, as spoken to by PW-18, Chunnilal,

that Suman's father, mother, grand-father came to the funeral ceremony of Suman at

Ghanshyam's house at Meelo Ki Dhani. The said witness has also stated that there

was no dispute of dowry.

The learned Sessions Judge, on the basis of the evidence produced, held that

Suman died on 9/10 September, 1994 in unnatural circumstances and that she had

died due to fall in well and that the death of Suman took place within seven years from

the date of marriage and, therefore, under Section 113-B of the Evidence Act,

presumption could be made against the accused person and that prior to cremation, the

parents of the Suman and other members of the family were not informed and that the

cremation was done in undue haste. Learned Sessions Judge, in our opinion, is not

correct in holding so. The finding of the learned Sessions Judge is contrary to the

evidence led in this case.

This apart, there is also discrepancy in regard to the statement of reports in the

police station. It is seen that two reports were submitted by Om Prakash, one report is

Ex. P-10 and other report has not been produced. Likewise, PW-12, Mukhram, has

stated in his statement that report was given in the police station on 13th which was

written by Bhagwan Singh, whereas Om Prakash himself has stated that Bhagwan

Singh has written the report. Therefore, it is seen that Ex.P-10 is not the first report an

d

the other report filed prior to Ex.P-10 was removed and afterwards second report was

filed.

In brief, for proving the offence under Section 304-B of the Indian Penal Code,

the prosecution has to prove the following things:

a) The death of the married woman was within seven years of the

marriage.

b) A little prior to death, her husband or relative on the point of demand

of dowry subjected cruelty to her or harassed her.

In the present case, it is proved that Suman was married on 5.5.1993 and she

died on 10.9.1994. Thus Suman's death took place within seven years of her marriage.

In regard to the cause of death, there are two versions. According to the

prosecution, the death was due to falling in well whereas according to the accused,

Suman died due to Plague. However, the facts stated by Om Prakash, PW-13, in FIR,

Ex.P-10, are otherwise. From the evidence, it is not known whether Suman died

during the day time or in the night. PW-8, Ramlal, has stated in his statement that the

wife of Teg Bahadur had died due to vomiting and loose motions and no voice of

beating was heard. Therefore, this witness was declared hostile. Likewise,

Radheyshyam and Ramlal, as mentioned in the First Information Report, told Om

Prakash that in the night in the house of Ghanshyam they heard the cries of woman

weeping and this fact has not been proved. PW-2, Lachhman, was declared hostile

since he has not supported the case of the prosecution. He, in his statement, has

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stated that the father of Teg Bahadur has taken the thick rope and also stated that the

air of Motor of well is to be taken out. Out of the women mentioned in the First

Information Report, the statements of PW-6, Manbhari, PW-7, Smt. Mani, PW-14, Smt.

Manohari, PW-15, Smt. Parmeshwari, PW-16, Smt. Barji and PW-19, Suman was

available. All these witnesses have been declared hostile because they have not

supported the prosecution case and the facts mentioned in Ex.P-10 that when they got

bath to Suman before cremation, no injuries were seen. Likewise, there is no evidence

in regard to the recovery from the well of Suman's ear-rings, pieces of bangles and

hair clip and that these articles found at the well at the time of search were of Suman.

There was no evidence to that effect. The Investigating Officer, in our view, has not

given any attention to this and had not investigated regarding this. As already noticed,

Om Prakash, PW-13, Ganpat, Ramkishan and Shri Ram had stated that they have no

information about the death and that no information was given to the family members of

Suman and that they have denied to have participated in the cremation. Whereas the

other persons of the village, whose statements the prosecution has produced, had

stated the presence of the parents of Suman at the time of cremation, as to be seen

from the statements of Manbhari, Smt. Mani, Ram Lal, Kushal Singh, Smt. Manohari,

Smt. Parmeshwari, Smt. Barji, Smt. Suman and Chunnilal. PW-18, Chunnilal had also

accepted, in cross-examination, that on his telling, Om Prakash, father of Suman, and

the mother of Suman had come for cremation of Suman in the house of Ghanshyam in

Milon Ki Dadhi. As already noticed, for proving an offence under Section 304-B of the

Indian Penal Code, it is necessary that the prosecution should prove this that a little

prior to death on the issue of demand of dowry, her husband or the relatives of her

husband have subjected cruelty with her.

Our attention was drawn to Section 113-B of the Evidence Act and Section 304-

B of the Indian Penal Code by the learned counsel appearing for the accused. A

conjoint reading of Section 113-B of the Indian Evidence Act and Section 304-B of the

Indian Penal Code shows that there must be material to show that soon before her

death the victim was subjected to cruelty or harassment. The prosecution has to rule

out the possibility of a natural or accidental death so as to bring it within the purview of

"death occurring otherwise than in normal circumstances." For the above proposition,

learned counsel appearing for the accused, cited the judgment of this Court in the case

of Hira Lal & Ors. vs. State(Govt.of NCT), Delhi, (2003) 8 SCC 80. In that case this

Court observed thus:

"The expression "soon before" is very relevant where Section 113-B

of the Evidence Act and Section 304-B IPC are pressed into service. The

prosecution is obliged to show that soon before the occurrence there was

cruelty or harassment and only in that case presumption operates.

Evidence in that regard has to be led by the prosecution. "Soon before" is a

relative term and it would depend upon the circumstances of each case and

no straitjacket formula can be laid down as to what would constitute a period

of soon before the occurrence. It would be hazardous to indicate any fixed

period, and that brings in the importance of a proximity test both for the

proof of an offence of dowry death as well as for raising a presumption

under Section 113-B of the Evidence Act. The expression "soon before her

death" used in the substantive Section 304-B IPC and Section 113-B of the

Evidence Act is present with the idea of proximity test. No definite period

has been indicated and the expression "soon before" is not defined. A

reference to the expression "soon before" used in Section 114 Illustration

(a) of the Evidence Act is relevant. It lays down that a Court may presume

that a man who is in the possession of goods "soon after the theft, is either

the thief or has received the goods knowing them to be stolen, unless he

can account for their possession". The determination of the period which

can come within the term "soon before" is left to be determined by the

Courts, depending upon facts and circumstances of each case. Suffice,

however, to indicate that the expression "soon before" would normally imply

that the interval should not be much between the cruelty or harassment

concerned and the death in question. There must be existence of a

proximate and live link between the effect of cruelty based on dowry

demand and the death concerned. If the alleged incident of cruelty is

remote in time and has become stale enough not to disturb the mental

equilibrium of the woman concerned, it would be of no consequence."

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With regard to the dowry, there are different versions. PW-1, Sanwarmal

stated that he had not heard anything about the dowry with the wife of Teg Bahadur.

PW-2, Lachhman stated that he does not know this that from Suman, her in-laws

have asked for dowry or not. PW-4, Ram Kishan stated, in cross examination, that

at the time of marriage, the accused persons have not raised any objection regarding

dowry. The statement of this witness is contrary to the statement of Om Prakash.

According to Ram Kishan, when Suman came back for the first time from her in-

laws then she complained regarding dowry whereas Om Prakash and Hira Bai had

not stated so. PW-5, Ganpat, uncle of Om Prakash, in his statement, stated that at

the time of marriage on the issue of dowry Teg Bahadur and Ghanshyam raised the

dispute. PW-9, Shriram, stated that no dowry was demanded at the time of marriage

but afterwards dowry was demanded. PW-10, Kushal singh, stated that at the time

of marriage on the point of dowry displeasure was shown.

On the careful scrutiny of the statements of the aforesaid witnesses, it is seen

that witnesses have given different statements regarding demand of dowry.

According to him, with respect to dowry, dispute was raised at the time of marriage.

According to Om Prakash, when Suman returned to her parents' house, she

complained about demand of dowry by the in-laws. There is no corroboration about

the statement of Om Prakash by the statement of his wife Smt. Hira Bai. Under

these circumstances, we are of the opinion, that there is lack of evidence to prove

the demand of dowry and that the evidence led by the prosecution bristle with

discrepancies and contradictions. On the basis of the evidence, it could not be

treated to have been proved that actually the accused had made a demand of dowry

and that was made soon before the death and due to this, the deceased was

harassed.

In the instant case, the witnesses having given the statements about the facts

within their special knowledge, under Section 161 of the Criminal Procedure Code

recorded during investigation, have resiled from correctness of the versions in the

statements. They have not given any reason as to why the investigating officer

could record statements contrary to what they had disclosed. It is equally settled law

that the evidence of a hostile witness would not be totally rejected if spoken in favour

of the prosecution or the accused, but it can be subjected to close scrutiny and that

portion of the evidence which is consistent with the case of the prosecution or

defence may be accepted.

The prosecution relied upon the recovery of ear-rings, hair clip, pieces of

bangles belonging to the deceased from the well upon the disclosure statement

made by police. It may stated that these are articles of common use and can be

found out in any house. That apart, no family member of the deceased has identified

these articles or claimed that the same belonged to the deceased and/or she was

wearing the same at the time of occurrence.

In the instant case, one of the main ingredients of the offence of demand of

dowry being absent, the High Court is right in acquitting the accused for the offence

under Section 304-B of the Indian Penal Code.

A reading of the judgment of the trial Court clearly shows that the Sessions

Judge proceeded as if the prosecution is available against the accused merely

because an allegation of death within seven years of marriage was made without

even the prosecution having proved the required preliminary fact. Having so shifted

the onus, the Court then proceeded to hold that the accused had not discharged the

said onus and hence convicted the accused primarily based on the presumption

under Section 113-B of the Evidence Act. The approach by the Sessions Court is

not correct.

In this view of the matter, we are of the opinion that the prosecution has failed

to prove the circumstances alleged against the accused persons. The High Court, in

our opinion, has not committed any error in interfering with the conviction of the

accused passed by the Sessions Court.

The appeal, therefore, fails and stands dismissed.