TMI Blog2014 (12) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise 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 Indian Penal Code. Sometimes, Section 302 of Indian Penal Code 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 Indian Penal Code, the trial court should frame the charge Under Section 302 of Indian Penal Code even if the police has not expressed any opinion in that regard in the report Under Section 173(2) of the Code of Criminal Procedure Section 304B of Indian Penal Code can be put as an alternate charge if the trial court so feels. 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). 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 Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de and Section 201 of Indian Penal Code are upheld - Appeal allowed in part. - Criminal Appeal No. 37 of 2011 - - - Dated:- 16-12-2014 - Kurian Joseph and Abhay Manohar Sapre, JJ. For Appellant: P.K. Dey, R.K. Rathore, Abhijeet Singh, Andleeb Naqvi, Sudarshan Singh Rawat and Vijay Pal Singh, Advs. For Respondents: Tanmaya Agarwal and Jatinder Kumar Bhatia, Advs. JUDGMENT Kurian Joseph, J. 1. 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 'Indian Penal Code'), Section 304B read with Section 34 of Indian Penal Code, Section 498A of Indian Penal Code and Section 201 of Indian Penal Code. 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 Indian Penal Code, Section 498A of Indian Penal Code and Section 201 of Indian Penal Code and sentenced them for seven years rigorous imprisonment, two years rigorous imprisonment with fine of ₹ 2,000/- and one year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. 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 Moradabad 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. 9. The State filed an appeal Under Section 378 of Code of Criminal Procedure 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 304B r/w 34 of Indian Penal Code and 498-A of Indian Penal Code. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Indian Penal Code, 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 Code of Criminal Procedure, in having been denied an opportunity to the Appellants to make submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al court should proceed under the said provision. In Muthu Kutty and Anr. v. State by Inspector of Police, T.N. (2005) 9 SCC 113, this Court addressed the issue and held as follows: 20. A reading of Section 304B Indian Penal Code and Section 113B, Evidence Act together makes it clear that law authorises a presumption that the husband or 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 304B Indian Penal Code and Section 113B 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 natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sessions Court Under Section 302 of Indian Penal Code, 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 Indian Penal Code 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. 22. 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). 23. No doubt, nothing prevents this Court from putting the Appellants on notice as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of Section 306, Indian Penal Code. In such a case the conduct of the person would tantamount to inciting or 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. ... 25. In Smt. Shanti and Anr. v. State of Haryana (1991) 1 SCC 371, 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 304B 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; (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 113B of the Evidence Act lays down that if soon before the death such woman has been subjected to cruelty or harassment for or in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 29. 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. 30. Mr. Dey contends that even assuming that there is evidence on demand fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Appellant-Narendra Singh. 33. 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 (2014) 5 SCC 154 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 (2008) 1 SCC 258, T. Subramanian v. State of Tamil Nadu (2006) 1 SCC 401, Bhim Singh v. State of Haryana (2002) 10 SCC 461, Kallu alias Masih and Ors. v. State of Madhya Pradesh (2006) 10 SCC 313, Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, Ganpat v. State of Haryana a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Once the ingredients of Section 304B of Indian Penal Code 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 Indian Penal Code 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. 35. 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 Indian Penal Code, 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 AIR 1961 SC 1316 followed in M. Narsinga Rao v. State of Andhra Pradesh (2001) 1 SCC 691). 36. In Alamgir Sani v. State of As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside. 38. Now, the last question as to whether the case should be remitted back to the High Court for the purpose of Section 235 of Code of Criminal Procedure, we are of the view that in the present case, it is not necessary. The conviction is Under Section 304B Indian Penal Code. The mandatory minimum punishment is seven years. of course, there is no such minimum punishment Under Section 498A of Indian Penal Code or Section 201 of Indian Penal Code. Since the sentence in respect of offence Under Section 498A of Indian Penal Code for two years rigorous imprisonment and one year Under Section 201 of Indian Penal Code 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 Code of Criminal Procedure by this Court or for remand in that regard to the High Court. 39. 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 Indian Penal Code read with Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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