Girish Singh vs State Of Uttarakhand

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1475 OF 2009

GIRISH SINGH ... APPELLANT(S)

VERSUS

THE STATE OF UTTARAKHAND ... RESPONDENT(S)

WITH CRIMINAL APPEAL NO. 1476 OF 2009

J U D G M E N T

K.M. JOSEPH, J.

1. The appellant in Criminal Appeal No. 1475 of 2009

is the first accused and the appellant in Criminal

Appeal No. 1476 of 2009 is the second accused. They

were charged under Sections 306 read with Section 34 Signature Not Verified

and Section 304B read with Section 34 of the Indian Digitally signed by RACHNA Date: 2019.07.23 17:35:27 IST Reason: 1 Penal Code, 1860 (hereinafter referred to as ‘the IPC’

for short). The first accused is the son of the second

accused.

2. It Is the case of the prosecution in brief that the

first accused used to treat his wife with cruelty on

account of dowry demand. The same allegation was made

against his father-second accused. It is also alleged

that his father wanted to fulfil his lust with his

daughter-in-law. She did not agree. The accused

tortured her and gave her beating. The daughter-in-law

committed suicide by burning herself on 05.06.1991.

After complying with the formalities, the charge-sheet

was filed against the accused. Prosecution examined

nine witnesses and produced 17 documents. The Trial

Court came to the conclusion that the prosecution

failed to prove the case against both the accused. They

were accordingly acquitted. Reliance is in particular

placed on certain letters.

3. The appeal carried against their acquittal by the

State was allowed by the High Court by the impugned

2 order. The appellants were convicted under Section 304B

read with Section 34 of the IPC. It was, however, found

that offence under Section 306 read with Section 34 of

the IPC was not made out against the appellants. The

appellants were sentenced to seven years rigorous

imprisonment.

4. We have heard learned counsel for the appellants

and learned counsel for the State.

5. Learned counsel for the appellants would submit

that no case is made out under Section 304B read with

Section 34 of the IPC. He would submit that the High

Court has reversed the verdict of acquittal and

convicted the appellants ignoring the fact that the

prosecution witnesses were unreliable. Prosecution

witnesses, it is complained, have improved their

version while they gave evidence in the witness box.

Contradictions emerging from their previous statements

under Section 161 of the Code of Criminal Procedure,

1973 (hereinafter referred to as ‘the Cr.PC’ for

short), demonstrated that their testimony in court,

3 which is relied upon by the High Court, could not be

the basis for reversal of acquittal. Reliance is placed

on certain letters as well.

6. We have also heard the learned counsel for the

State who supported the judgment by pointing out that

there was evidence to justify the conviction.

7. Before we consider the evidence, it is apposite

that we set out the following findings rendered by the

High Court:

“22. … Just before her death and after 5-6 months of her marriage, respondents-accused Girish Singh and Jodh Singh harassed the deceased Ishwari Devi for getting T.V. and V.C.R. in dowry and by non-fulfilling the demand of dowry, they were continuously beating her. Respondent – Jodh Singh also harassed her by saying her to provide him liquor in the glass and after taking liquor in the state of intoxication, he was asking her to sleep with him. On her refusal, she was subjected to mental cruelty. P.W. 4 Ganesh Singh has specifically stated that after coming back from Mumbai, he came to know that respondent-accused Jodh Singh after taking the liquor was trying to commit rape with Ishwari and also used to harass her for T.V. and V.C.R., due to which his daughter Parvati Devi, P.W. 2 Smt. Laxmi Devi, P.W. 3 Smt. Anandi Devi, P.W. 4

4 Ganesh Singh, and P.W. 5 Yasodh Singh, it is proved beyond reasonable doubt by the prosecution that Ishwari Devi was harassed for the demand of T.V. and V.C.R. in dowry by the respondents after 5-6 months of marriage and they were continuously making demand of dowry just before her death …. Therefore, in view of the aforesaid discussion, it is proved that deceased Ishwari Devi died an unnatural death within 1 ½ years of her marriage in the house of respondents where she was residing along with her husband- Girish Singh and father in law Jodh Singh. Deceased Ishwari Devi has died due to the burn injuries and her body was found to be 100% burnt by the Medical Officer P.W. 9 Dr. P.K. Karnatak. As such, it has been proved by the prosecution beyond reasonable doubt that the deceased was subjected to mental cruelty by the respondents for the demand of T.V. and V.C.R. in dowry and due to non-fulfilment of this demand and due to the harassment and Marpit by the respondents, Ishwari Devi committed suicide by burning herself in the house of her husband. Hence, in view of the above-said facts and circumstances of the case, offence punishable u/s 304-B/34 of IPC is fully made out against the respondents beyond reasonable doubt and learned Sessions Judge has erred in law by acquitting the respondents’ u/s 304-B r/w Section 34 IPC.”

5

8. Thereafter, the High Court proceeds to hold that

the Sessions Judge erred in holding that the oral

evidence is not supported by the documentary evidence.

After referring to Section 113B of The Evidence Act,

1872, it is found that a presumption is to be drawn

under the said provision that dowry death has been

caused. The finding by the Trial Court that the cruelty

to his wife by the first accused is not proved, was

found to be incorrect. Still further, it is found that

the Trial Court erred in finding that the deceased ran

away to her father’s house where she committed suicide.

The deceased committed suicide in the house of the

appellants. In regard to the letters produced by the

appellants to show that there was no cruelty, it is

found that the actual letters, which show the cruelty,

written by the deceased could not be produced due to

the reason that as submitted by PW4 as they were

misplaced due to the shifting of the house. The

contradictions in the statements made by the

prosecution witnesses also did not appeal to the High

6 Court. It was found that the deposition given by the

prosecution witnesses was reliable and trustworthy.

9. Now, the time is ripe for us to consider what

prosecution witnesses have deposed. PW1 is the sister

of the deceased. She is shown as 14 years old on the

date of deposition. She states that whenever the

deceased sister used to come to her house, she used to

tell her that father-in-law of the deceased and her

husband complained about bringing no dowry and used to

say that colour television was not given. Father-in-law

would consume liquor and ask her to stand in front of

her and sleep with him. When sister did not act like

that, he used to beat her up. The mother of the witness

used to pacify her and sent her to her matrimonial

home. She had gone 7-8 times to see her sister to the

matrimonial home. They used to ask her sister how she

has come without dowry. In the cross-examination she

would, inter alia, state as follows:

The witness went to leave her sister last time to her matrimonial house about

7 three months back. Her grandmother was also with her. No report was given anywhere regarding beating to grandmother by the accused. It is further stated that her sister was influenced by devta (religious spirit). Then her matrimonial home conducted religious ceremony for her. Her sister became normal after conducting it. Whatever madness her sister used to do; it was taken care of by her in-laws house. Only prayers were offered. First accused did not have a good opinion about her sister. Her sister held him good but he did not respond. Sister used to tell about aforesaid facts of consuming liquor to stand in front of him and to sleep with him. Yashodh Singh is her uncle. These facts were not told to her uncle by them. She was examined by Kanungo (Officer). In regard to her statement under Section 161 of the Cr.PC that deceased was alright till 5-6 months after her marriage in the matrimonial home, she denied making that statement. She denies making the statement that the deceased used to run away to their house. She says she has stated to Kanungo that the second

8 accused used to beat her sister. She states that if the Officer has not written it, she cannot give the reason. About the sister weeping while complaining and such statement not being found, the witness says that she has told the Kanungo. The witness stated that she cannot say the reason why it is not written. Again, statement that her mother used to send back the deceased after pacifying her, it is stated that regarding the omission, it is her version that it was stated to Kanungo.

(Emphasis supplied)

10. PW-2 is the mother of the deceased. She states,

inter alia, that the appellants used to tell the

deceased that television and VCR were not given in

dowry. The accused appellant used to say to the

deceased that she is chipri (flattened nose) and not of

their choice. They used to threaten her that they will

burn her by pouring kerosene oil if she did not bring

television and VCR. These facts were disclosed to her

9 by the deceased. The second accused, in the presence of

the witness, said that if television and VCR were not

brought, she would be finished even before coming of

her father to house.

11. Her daughter had told her that in the absence of

the first accused, the second accused would ask her to

serve liquor and to sleep with him after being drunk.

When she refused, he used to beat her up and show her

khukri (knife). Accused had seen the deceased before

marriage. Thereafter, marriage was solemnized. They had

not promised to give television and VCR. In the cross-

examination, she would, inter alia, state that:

Her daughter lived happily for 5-6 months of marriage. Thereafter, disturbances started. About one year disturbances remained. For about 5-6

months, deceased did not make complaint of her in-laws. The first accused used to roam in search of job. When deceased came to their house before her death, she was talked badly and was beaten up. Her statement was taken three times. She is an

10 illiterate. She had told all the facts to Patwari in a statement. She cannot state the reason if the fact of television and VCR is not being written. She further says that deceased used to run away to their house after 5-6 months and they used to ask her not to run away. Her daughter loved her husband but he did not love her. She was confronted with the statement recorded by Patwari (Patwari performs the function of Police in certain parts of State of Uttarakhand) that she had never stated about harassment or beatings or bringing less dowry by her husband. She denied having made the statement. She is unable to tell the reason how the statement is written. She is again confronted with the statement that she had no suspicion about abetment or killing or about any harassment by her husband. She would say that the statement has been wrongly written by the Patwari/Kanungo.

Her husband has never come during vacations after marriage of the deceased before her death. He has visited twice after her death. She says deceased has written about her grief in one year of her

11 marriage to her father. She deposed that the deceased was an illiterate and she did not know how to read or write. Deceased had come a week before her death to their house. She had informed Yasodh Singh about the grief of the deceased and all the facts on getting an information about the death. She has stated about the deceased being called chipri and not being liked and about not bringing television and VCR to the Kanungo. She says, if he has not written, she has no reason to offer. Even the statement that second accused had stated in her presence that if the deceased did not bring television and VCR, then, she and her parents would be killed, was found missing in the statement and she has no reason for the same. She claims to have made the statement. Showing of khukri by the second accused is found missing for which she had no reason except saying that she has no reason for the same not being written. No doubt she claims to have stated no. She would say about the second accused consuming liquor and asking the deceased to sleep with him, she was told this by the deceased and PW1 has not

12 told these facts to her (be it noted that PW1 has categorically stated that she has told these things to her mother, viz., PW2). Suggestion is made that the deceased became restless due to influence of evil spirit which is no doubt denied by the witness.

(Emphasis supplied)

12. PW-3 is the grandmother of the deceased. She

repeated what is stated by PWs 1 and 2, namely, that

accused after marriage, asked the deceased to bring

television and she would say that they told her that

she was chipri. They used to beat her up when she was

sent back and when she came home, she used to pacify

her and sent back to her matrimonial home. Once when

she went to leave the deceased, then, the second

accused beat her 2-3 times on the chest of the

granddaughter. Deceased used to tell her mother and

sister that the second accused consumed liquor, asked

her to serve liquor and thereafter to sleep with her.

She would be beaten up when she refused to sleep. She

13 was asked to bring television. In the cross-

examination, it is stated that deceased was chipri

since beginning. In-laws of the deceased had good

behaviour with her till two months. The deceased lived

properly till six months. She used to do all household

works and she used to run away from matrimonial home

after 6-7 months. Her daughter-in-law/PW2 did not go to

the house of the second accused for patch up. Deceased

had told the fact of demand of television 6-7 months

before her death to her mother. In regard to there

being no statement by her to the Patwari that second

accused used to beat the deceased, she would say that

she had told him. She says that the deceased has not

told her that her father-in-law, with an intent to rape

her, used to scold her. She had given statement to the

Patwari that the deceased used to tell her mother about

the father-in-law scolding her with an intent to rape

her. Regarding the omission about the statement that in

her presence, the second accused used to beat the

deceased badly and that he was inclined to beat her up,

14 she is unable to tell the reason. Upon her statement

that the second accused beat the deceased three times

on her chest and was inclined to beat her also, not

being found on the statement, she is unable to give any

reason. But according to her, she had told the Patwari

this.

13. PW-4 is the father of the deceased. He would state,

inter alia, that the first accused had asked to give

television and VCR in marriage but he told that he

could give only to the extent of his ability. Marriage

was solemnized in his presence when he came during his

yearly vacations. After 5-6 days of marriage, when he

was going back and the first accused came to take the

deceased, then, he told him about television and VCR

not being given. After five months of normal behaviour,

accused started misbehaving. His daughter could read

and write a little and she had written about the

television and VCR, bad language and abuse, in those

letters (PW-2-mother of the deceased, on the other

hand, be it noted, stated that the deceased was

15 illiterate and could not read and write). On receiving

information about the murder of his daughter, he was

told about the complete incident by his family members.

On this, he came to know about the second accused being

drunk, trying to rape the deceased and harassing for

television and VCR and for that reason, his daughter

committed suicide. Regarding letters written by his

daughter, they were lost during shifting of house.

Prior to the marriage of his daughter, the first

accused has not seen the deceased. He has also not seen

the first accused/his son-in-law before marriage. The

first accused came on the second day after the barat

returned (marriage gathering). He came in the evening

and returned next day morning. The first accused and

the deceased came after 5-6 days after marriage. When

they came after 5-6 days after marriage, he was on duty

(in chief examination, it may be remembered that the

witness says that when he was going back after 5-6 days

of marriage, the first accused came to take his

daughter and then the first accused had complained that

16 the television and VCR had not being given and the he

stated that he had given according to his ability and

if everything goes fine, it will also be done). He

admits to have received only letter K3 from second

accused. He states that there is no mention of

harassment for dowry but they used bad language and

harassment. He admits to have written and signing two

letters marked as Kha1 and Kha2 and is unable to

explain why any fact of dowry harassment has not been

written in these letters. He admits that these letters

were written in response to letters by deceased.

Confronted with the omission to mention about the

demand for VCR, the coming of the son-in-law after 5-6

days after marriage and demand of dowry, he is unable

to state the reason why they are not written. According

to him, he has told the Kanungo.

14. PW-5 is relative of the deceased. He says that

deceased would tell all the facts to her mother about

the harassment regarding television and VCR in dowry.

He was also told; he says. He has deposed on similar

17 terms in regard to the second accused asking the

deceased to sleep with her after being drunk and

allegation regarding chipri (flat nose). He, however,

in cross examination says that he had told the Officer

about less dowry being given and about the demand of

television and VCR. He says further that if it is not

written, he cannot tell the reason. Similar is the

position with regard to harassment by the first

accused.

15. PW-6 is Patwari. He has referred to the various

steps taken by him in the investigation. He states in

cross-examination that no complaint was received by him

from the side of the family of the deceased.

16. PW-7 is Kanungo. He states that he took the

statements of the witnesses PWs 1, 2 and 5. Between

05.06.1991 to 08.06.1991 nobody from the side had come

and told him about the facts of harassment of deceased,

demand of dowry and attempt to commit rape by the

second accused. No evidence was given against the first

accused before 19.06.1991. he says as follows:

18

“11. I have taken the statement of Km. Parvati and she had stated that “My sister was ……………. hold good” she had also given the statement that “she use to ran away to our house” I produce all the three aforesaid true copy of statements in my handwriting and signatures. These have been marked as Exh. Kha- 3 to 5.

12. Witness Laxmi had given the statement that “He never…………. Said anything” She had also stated that “I have suspicion ……. regarding him”, Both these marked true copy of these statements are in my handwriting and signatures. I submit the same. These are been marked as Kha-6 and Kha-7.

13. Witness Anadi had stated to me, “I also went ………. not gone”. The true copy of the statement is being submitted, which is in my handwriting and signatures. This has been marked as Exh. Kha-8.”

17. The statement which was got marked in regard to PW1

reads as follows:

“Deceased had never complained about her husband/first accused and she was happy always with him and the first accused also held her good.”

19

18. In regard to the statement proved in regard to

Laxmi-PW2/mother of the deceased, the actual statement

is

“she (apparently the deceased) had never complained about him regarding harassment or beating or any fact about giving less dowry.” (Emphasis supplied)

19. The further statement which is proved through PW7-

Kanungo and attributed to PW2, reads as follows:

“I have no suspicion about the killing or getting killed the deceased or any harassment by him.” (Emphasis supplied)

20. PW-5, the uncle of the deceased is proved to have

made the statement

“The husband of the deceased/Girish Singh is at his residence since one month

20 and I have no knowledge about any harassment of deceased.”

21. Now, much reliance is placed by the learned counsel

for the appellants on two letters which have been sent

by none other than PW2-father of the deceased. These

letters were sent admittedly by the father of the

deceased to her as they were put to him in his

examination and he admits the same. They read as

follows:

Letter dated 29.02.1991

“Dated: 29.02.1991

Om Ganeshay Namah:

Jai Bhagwati Mata

Dear daughter, accept my hugs and blessings and love to both the son in laws and regards to Samadhi ji and love to all others at home. I am fine by grace of God and prays to supreme being for the same for your family. You may live happy always, then I may also felt the same. The reason for writing letter today is that how is the crop this year and if it is

21 sown or not and what other professional things are going on? I received your letter and came to know about the well being and felt happy for the same. Do communicate in the same manner by writing letters. Blessings from younger brother Trilok and love from Ganesh. Pay my regards to elders and love to children. And daughter, you concentrate on your work and also pray daily to God. You will go during Holi. I am sending Rs. 100/- for you. I will bring something for you in box during vacations. Ask your mother to take medicines. I have sent money and to have treatment properly by going to Chamvat and do not do any heavy work and ask children to concentrate on studies and hygiene. I will come in vacations during May-June by God’s grace. Inform complete news in letters and reply as soon as you receive this letter.

Yours father Sd/- (illegible)”

Letter dated 20.03.1991

“Dated: 20.03.1991 Om Ganeshay Namah:

Jai Bhagwati Mata

Dear daughter, say my love to son in law and blessings to him. Love to younger son in law and regards to friend Samdhi ji. Also say my regards in neighbourhood

22 accordingly and also love to children. I am fine here by grace of God and also prays to God for your happiness. Also say regards and blessing from Trilok and Ganesh.

I received your letter for well being. I came to know about the same after reading your letter. My heart felt very happy and hope that in future also you would be writing letters. How the agriculture is going on. Dear daughter, take care of your mother and also keep going there and also ask her to take some medicines. Ask son in law to pass his X class. It is hard time and he has to be self dependent. It is the duty of every person to do progress and you are wiser enough. Ask him to be more responsible. I am finishing off this letter and forgive for any mistake.

Reply soon.

Yours father Sd/-“ Address: G.S. Bisht State Bank of Hyderabad S.V. Road, Andheri West Bombay”

22. There is further documentary evidence, namely,

letter dated 02.05.1991, sent by the second accused to

PW4-father of the deceased. It reads as follows:

“(Inland Letter)

23 To, Sh. Ganesh Singh Bisht State Bank of Hyderabad S.V. Road, Andheri West Bombay.

02.05.1991(overwrited)

Dear friend Samdhi ji, accept regards on behalf of your Samdhi Jodh Singh Mehta. Regards to younger Samdhi also and hello to all other friends.

I am fine here with the small child and hope the same for you. The main reason to write the letter is because the daughter-in-law (Bahu) had ran away to her mother’s house on 02.04.1991 and had not returned even when I went to take her. Since I being father in law and like her father is duty bound to frighten her to keep away from all bad deeds. But she wants to be an independent kinds therefore I am writing this letter to you for the first and the last time. I have not written any letter in good times, therefore, writing now. If you would have been in my place, you would have felt bad only what I have been hearing of her. I am an army man and have habit to command and control but the fact is not like this. If I say anything once to her, she reciprocates four times. The son is not at home. What can I say? I have sold the buffaloes and had given up the agricultural land. Nobody listens to me but alright. You write a letter to your daughter from there only. Nothing is spoiled yet. If she wants to come, it is her house. I have nothing remain. She may live, cook and so, the way

24 she wants. I will remain a spectator and not say anything. What else can I write?

You are also having all females in your house. Few things can be said there only. I cannot write all things in the letter. Please forgive me forever from today. We have not done good by marrying our children. We have done bad only. Forgive me and do reply this last letter of mine. I will be waiting for it.

Yours Samdhi

(illegible) Jodh Singh Mehta

Friend, I have written this letter one month before but did not send it because I thought if good sense prevails, it would be better. But she wants to live separately. Wish to bring grocery from her mother’s place. We have been disgraced from all sides. I am in your hands. The letter you find here was written on 05.04.1991.

Yours Jodh Singh (Sd/-)”

23. The last letter is dated 28.05.1991. This is sent

by PW4-father of the deceased in envelope addressed to

his son-Kishore Kumar and it reads as follows:

Dated: 28.05.1991

25 My regards with folded hands to respected mother and convey my hugs, love and blessings to children. Also convey regards to elders and love and blessings to children on behalf of younger brother Ganesh. Blessings to dear daughter Ishwari.

By the Grace of God, we are fine here and pray to God for you and family regarding the well being of everybody so that all of you may live peacefully and happily and then I may also feel happy. How was rain this year? How was wheat crop this year? I received your letter of well being and came to know about the state of affairs. Grandson is getting employment. I felt happy to pray to God that our family shall live happily. You cooperate with the grandson in his work and get prayers done on behalf of me. I am sending Rupees one thousand. I will come in month of July during vacations and for the reason that I may be present at home during autumn season. I would be coming late for vacations. Ask Ishwari not to worry and don’t send her, even if anybody comes to call her. Send the address of Jamai ji (son-in-law) to meet me. Had examinations of children held? Ask them to concentrate on studies. Give news of home and village. How is the health of mother of Ishwari? When the buffalo is going to deliver the calf? Convey my regards to elder brother and love to children. Brother, you fulfil all religious obligations (Devta Pujan) with respect and pride. Do write the complete news of the family in the letter. You are intelligent enough and I really feel that brother you are

26 wise. I am bothering you due to difficult circumstances.

Reply soon.

Yours younger brother Sd/- illegible”

24. It is relevant to remember that the father of the

deceased has admitted that the letters were written

dated 28.02.1991 and 20.03.1991 in reply to letters

written by the deceased. The letters do not disclose

about any harassment or cruelty or the dowry demand. In

his deposition, PW4-father of the deceased would say

that he is unable to say why any fact of dowry

harassment has not been written in these letters. The

letters written by the deceased have been misplaced

according to PW4-father of the deceased.

25. The significance of the letters, admittedly written

by PW4 to her deceased daughter and the absence of any

complaint about dowry harassment, lies in the following

categoric statement made by PW4-father of deceased, as

follows:

27

“Accused behaved normally with the deceased for five months and thereafter, they started misbehaving. My daughter could read and write a little and she had written two letters to me in this regard.” (Emphasis supplied)

26. The aforesaid letters written by the deceased are

not made available on the ground that they had been

misplaced. Certainly, if these letters, which are

admittedly written by PW4-father of the deceased are in

response to the letters written by his deceased

daughter, the contents of letters written by the father

do not bear out the case of conduct by the accused as

is sought to be made out.

27. We have referred to the entire evidence. The Trial

Court acquitted the accused. The jurisdiction of the

Appellate Court, when it deals with such an order, is

no longer res integra and is subject matter of catena

of decisions of this Court.

28

28. In Upendra Pradhan v. State of Orissa1, this Court

took the view that if there is benefit of doubt, it

must go to the accused, and in case of two views, the

view that favours the accused, should be taken, which

was more so where the Trial Court’s decision was not

manifestly illegal, perverse and did not cause

miscarriage of justice.

29. In Dilawar Singh and others v. State of Haryana2,

this Court took the view that court will not interfere

with the verdict of acquittal merely because on

evaluation of evidence, a different plausible view may

arise. Very substantial and compelling reasons must

exist with the Appellate Court to interfere with an

acquittal.

30. In Gamini Bala Koteswara Rao and others v. State of

Andhra Pradesh Through Secretary3, this Court accepted

the contention of the appellant that interference in an

appeal against acquittal should be rare and in

1 (2015) 11 SCC 124

2 (2015) 1 SCC 737

3 AIR 2010 SC 589

29 exceptional circumstance. It was further held that it

is open to the High Court to reappraise the evidence

and conclusions arrived at by the Trial Court. However,

it is limited to those cases where the judgment of

Trial Court was perverse. This Court went on to declare

that the word “perverse”, as understood in law, has

been understood to mean, “against the weight of

evidence”. If there are two views and the Trial Court

has taken one of the views merely because another view

is plausible, the Appellate Court will not be justified

in interfering with the verdict of acquittal (See K.

Prakashan v. P.K. Surenderan4).

31. Section 304B of the Indian Penal Code reads as

follows:

“304B. Dowry death.— (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in 4 (2008) 1 SCC 258

30 connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation. —For the purpose of this sub- section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

32. Section 113B of The Indian Evidence Act, 1872 reads

as follows:

“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.

Explanation.—For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).”

31

33. Thus, it can be seen that the offence created by

Section 304B requires the following elements to be

present in order that it may apply:

I. Within 7 years of the marriage, there must

happen the death of a woman (the wife).

II. The death must be caused by any burns or

bodily injury.

OR

The death must occur otherwise than under

normal circumstances.

III. It must be established that soon before

her death, she was subjected to cruelty or

harassment.

IV. The cruelty or harassment may be by her

husband or any relative of her husband.

V. The cruelty or harassment by the husband

or relative of the husband must be for, or in

connection with, any demand for dowry.

32 34. Section 304B treats this as a dowry death.

Therefore, in such circumstances, it further provides

that husband or relative shall be deemed to have caused

her death. Section 113B of The Indian

Evidence Act, 1872 provides for presumption as to dowry

death. It provides that when the question is whether

the dowry death, namely, the death contemplated under

Section 304B of the IPC, has been committed by a

person, if it is shown that soon before her death, the

woman was subjected by such person to cruelty or

harassment, for in connection with, any demand for

dowry, the Court shall presume that such person had

caused the dowry death. It is no doubt a rebuttable

presumption and it is open to the husband and his

relatives to show the absence of the elements of

Section 304B.

35. The foremost aspect to be established by the

prosecution is that there was reliable evidence to show

that the woman was subjected to cruelty or harassment

by her husband or his relatives which must be for or in

33 connection with any demand for dowry, soon before her

death. Before the presumption is raised, it must be

established that the woman was subjected by such person

to cruelty or harassment and it is not any cruelty that

becomes the subject matter of the provision but it is

the cruelty or harassment for or in connection with,

demand for dowry.

36. Admittedly, the deceased was influenced by spirit

(devta). Religious ceremony/prayers were held. The

deceased became normal after doing it. Still further,

there is evidence that whatever madness the deceased

used to do, it was taken care of by her in-law’s house.

The above facts emerge from the testimony of PW1-sister

of the deceased herself. It is relevant to remember

that it is a case of suicide. In the statement under

Section 313 of the Code, the 1st accused in fact states

as follows:

“The deceased was under influence of evil spirit. We conducted prayers two times but she could not be cured. Her mind was

34 restless and she committed suicide and her family falsely implicated us.”

37. PW4-father of the deceased completely contradicts

himself, when in cross-examination, he states that 5-6

days after marriage, the first accused and the deceased

came, he was on duty. There is evidence when PW4 was

working in Bombay (See the evidence of PW2/wife of PW4,

who has deposed that her husband was working in

Bombay). Earlier in cross-examination, PW4 has deposed

that when he was going back after 5-6 days of marriage,

the first accused came to take the deceased and then

the first accused has said that television and VCR has

not been given. PW4 says in chief examination that he

had told the first accused that he has given according

to his ability and if everything goes fine, it will

also be done. PW4 further stated that on this, the

first accused said that deceased was having flat nose.

Thereafter, he states that he went back to Bombay on

his duty.

35

38. We noticed that this aspect has not been considered

at all by the High Court. This contradiction in

evidence goes to the root of the matter. This proves

that the prosecution case sought to be proved through

PW4, is unacceptable.

39. PW2 would say that the deceased was an illiterate.

She did not know how to read and write. On the other

hand, PW4 would depose that the deceased could read and

write letters. In fact, PW2 herself stated that her

husband-PW4 reached home after hearing about the death

of the deceased and told PW2 that he has received two

letters of the deceased regarding harassment by the

accused about dowry and one letter of Jodh Singh-the

second accused. It is here that two letters which have

been written admittedly by PW4-father of the deceased,

assumes critical significance.

40. PW2-wife of the PW4, as we have noticed, has

deposed that PW4 has told her that he received two

letters from the deceased where there is reference to

harassment about dowry by the accused.

36

41. PW4, when questioned about the letters, admits

having sent the letters by way of reply to such letters

written by the deceased.

42. We have already extracted the letters. It is amply

clear that there is no reference about any harassment

or cruelty on account of dowry in those letters. PW4,

in fact, deposes that he cannot tell the reason that

why any fact of dowry harassment has not been written

in those letters. He admits that those letters were

written in reply to the letters written by the

deceased. Significantly, the two letters written by the

deceased are not produced by the prosecution. The

reason for non-production is, they were misplaced

during shifting of the house. Even, accepting that

those letters were misplaced, the question whether they

contained allegation of harassment due to dowry, should

have been resolved with reference to the letters

admittedly sent by PW4 to the deceased within a few

days of the receipt of the letters. In other words, a

reasonable view would be that as reference to any

37 harassment regarding dowry is conspicuous by its

absence in the letters written by the PW4 to the

deceased. There were no allegations of harassment on

account of dowry in the letters written by the deceased

to her father-PW4. In this regard, the High Court, in

the impugned judgment, has proceeded to ignore this

vital aspect and proceeded on the basis that the

averments made by the deceased of the cruelty caused by

the appellants were mentioned in the letters sent by

the deceased and letters written by PW4, are not

helpful to resolve this issue. The last of the two

letters written by PW4-father of the accused is dated

20.03.1991. The death took place on 05.06.1991. Even,

in the letter written by PW4, letter dated 28.05.1991,

in an envelope addressed to his son, there is no

mention about any harassment or cruelty on account of

dowry demand. He only says to ask the deceased not to

worry and not to send her even if anybody comes to call

her. The High Court, however, still takes the view that

38 dowry related harassment was mentioned in letters sent

by the deceased which are not even produced.

43. We are of the view that this approach,

particularly, in an appeal against acquittal is clearly

unacceptable and cannot be approved.

44. Still further, through the Officer, statements

actually made by the prosecution witnesses, have been

proved. PW1-sister of the deceased, in her statement,

stated as follows:

“The deceased had never complained about the first accused and she was happy always with him and brother-in-law also held her good.” This statement made by her to the Officer was also put to her. She merely says that she does not know how this fact was written in her statement.

She says she has not given such a statement. She is unable to give the reason.

45. The High Court, in regard to the said statement,

gets over previous statement proved though Officer by

39 stating that the statement was not given by the witness

and that she was a girl of 13 years and further stated

that her deposition in court inspires confidence.

46. Likewise, PW2-mother of the deceased, has given her

statement that deceased has never complained about him

regarding harassment or beatings or fact of giving less

dowry. Still further, she is also proved to have given

the statement that she had no suspicion of killing or

getting killed by the accused or any harassment by him.

Similar findings are rendered by the High Court in

regard to the said statements.

47. We would think that particularly in an appeal from

acquittal, the High Court has exceeded its jurisdiction

in the appreciation of evidence as well as its approach

to how the reliability of the witness is to be

evaluated.

48. We are troubled with another aspect highlighted by

the facts of this case. A right of appeal is the

creature of statue. Unless appellate power is expressly

limited by additional conditionalities, the Appellate

40 Court has power or rather is duty bound in the case of

an appeal by the accused to reappraise the evidence.

Even in an appeal against acquittal, the appellate

court has power of reappraisal of evidence though

subject to the limitation that interference would be in

a case where the Trial Court’s verdict is against the

weight of evidence which is the same thing as a

perverse verdict. We need not catalogue the

circumstances which are well-settled.

49. In this case, we notice that the High Court has

referred to the contents of the chief examination of

the witnesses. Thereafter, it has been stated that the

witnesses have been cross-examined at length but

nothing has come out in evidence which would create any

doubt in his evidence. The witnesses are declared as

being found reliable and believable. We have noted the

facts in this case.

50. Truth in a criminal trial is discovered by not

merely going through the cross-examination of the

witnesses. There must be an analysis of the chief

41 examination of the witnesses in conjunction with the

cross examination and the re-examination, if any. The

effect of what other witnesses have deposed must also

enter into consideration of the matter. On the one

hand, the laudable object underlying Section 304B of

the IPC is not to be lost sight of. On the other hand,

it is equally important that the Appellate Court must

not be oblivious to the fact what it is duty bound to

find is whether an offence is committed or not and such

a pursuit also would embrace the duty of the court to

apply its mind to the evidence as a whole and arrive at

conclusions as to facts and inferences therefrom as

well. After all, at stake for the accused are,

priceless rights to liberty, reputation and the right

to life, not only of himself but also his family

members. The Law Giver, has contemplated that the High

Court will be the final arbiter of facts and even of

law. The jurisdiction of the Apex Court was

deliberately limited to the extra ordinary powers it

enjoys under Article 136 of the Constitution of India

42 unless it be exercised under other provisions. What we

wish to emphasise is that the cause of justice and the

interest of litigants would be better subserved if the

Appellate Court takes a closer look, in particular of

the cross-examination of the witnesses and analyse the

same.

51. There is yet another important aspect in this

matter. It is true that the deceased died on 05.06.1991

which was within seven years of marriage. It is equally

true that her death was due to burning and she

committed suicide. It is not a case where the accused

stood charged under any provision except Section 304B

read with Section 34 of the IPC and Section 306 read

with Section 34 of the IPC. The case of abetting

suicide under Section 306 read with Section 34 of the

IPC has been found unacceptable both by the Trial court

and the High Court and the appellants stand acquitted.

52. A perusal of the impugned judgment of the High

Court would show, that accepting the version of the

prosecution witnesses, the High Court has been

43 persuaded to hold inter alia that the second accused

also harassed her by asking her to provide liquor in

the glass, and after taking liquor, in the state of

intoxication, he used to ask her to sleep with him. On

her refusal, it was found that she was subjected to

mental cruelty. Reference was made to evidence of PW4-

father of the deceased that after he came back from

Mumbai, he came to know that the second accused was

taking liquor and trying to commit rape and also used

to harass her for television and VCR due to which she

committed suicide.

53. The High Court was in clear error in taking into

consideration the evidence relating to harassment by

the second accused on the basis that he, in the state

of intoxication, asked her to sleep with him, and on

that basis, she was subjected to mental cruelty. The

said evidence is totally irrelevant and foreign to the

scope of a trial for the offence under Section 304B of

the IPC. It does not relate, at all, to the demand for

dowry.

44

54. As regards the demand for dowry, having regard to

the state of the evidence, which we have elaborated, we

would think that there was no occasion for the High

Court to even raise a presumption that the deceased in

this case has been subjected to cruelty or harassment

in connection with any demand for dowry. It may be true

and it is not disputed by appellants that as found by

the High Court, the deceased died in the house of the

accused. The fact that the High Court proceeded to

arrive at finding of guilt in an appeal against

acquittal by the Trial Court in the state of the

evidence, which we have referred to, does not commend

itself to us for acceptance.

55. In such circumstances, we would think that the High

Court overstepped its limits in dealing with an appeal

against acquittal and the view taken by the Trial Court

appears to have arrived at, having regard to the state

of evidence, to be a possible one, which did not merit

interference by the Appellate Court.

45

56. The upshot of the above discussion is that the

appeals are only to be allowed and we allow the appeals

and set aside the judgment of the High Court to the

extent it convicts the appellants for the offence under

Section 304B read with Section 34 of the IPC and the

judgment of the Trial Court is restored. Since, during

the course of the appeals, the appellants have been

released on bail, the appellants need not surrender and

their bail bonds stand discharged.

..................J. (SANJAY KISHAN KAUL)

..................J. (K.M. JOSEPH) New Delhi, July 23, 2019.

46