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Saturday, November 9, 2013

Acquitted under sec. 302 and 306 IPC - convicted under sec.304 B on interpolated letter , without prove of demand of dowry soon before the death - Apex set aside the orders of lower court and high court and acquitted the accused who are nothing but sister in laws of deceased = = ASHA & ANR. ... APPELLANTS VERSUS STATE OF UTTARAKHAND ... RESPONDENT = http://judis.nic.in/supremecourt/imgst.aspx?filename=40955

Acquitted under sec. 302 and 306 IPC - convicted under sec.304 B on interpolated letter , without prove of demand of dowry soon before the death - Apex set aside the orders of lower court and high court and acquitted the accused who are nothing but sister in laws of deceased = 

The  High  Court,  after  careful
examination of the letter dated 28.06.1993,  has  found  that  it  has  been
interpolated and that some changes have been made in  the  letter  and  some
words were added to it. The courts below have erred  in  law  in  convicting
the appellants herein by erroneously placing  reliance  upon  the  above  so
called letter, wherein certain words were added with a view to  make  out  a
fabricated charge against them to  secure  the  conviction  of  the  accused
persons.

 On perusal of the evidence on  record,  we  are  of  the
view that the charge is not proved by the prosecution, particularly  as  the
courts below have failed to notice that the prosecution has failed to  prove
that the dowry demand was  made  by  the  accused  either  at  the  time  of
marriage or subsequently as  it  has  not  produced  convincing  and  cogent
evidence in this regard.

  whether the demand for [pic]30,000/- as alleged to have been  made  by
the accused is a demand for dowry with  the  deceased  that  can  constitute
cruelty or  harassment  by  the  accused.

 In our considered  view,  after  careful  analysis  of  the  aforesaid
aspects of the case and on careful perusal of the evidence  on  record,  the
finding of fact recorded by the High Court in  convicting  the  accused  for
the charge of Section 304B of the IPC is not  only  erroneous  in  fact  but
also suffers from error in law  and  therefore,  the  present  appeals  must
succeed.


                IN THE SUPREME COURT OF INDIA                                                                   CRIMINAL APPELLATE JURISDICTION




                      CRIMINAL APPEAL NO. 1893 OF 2013
                (Arising Out of SLP (Crl.) No. 2098 of 2011)



ASHA & ANR.                            ... APPELLANTS

                VERSUS

STATE OF UTTARAKHAND                       ... RESPONDENT

                                    WITH

                      CRIMINAL APPEAL NO. 1894 OF 2013
                (Arising Out of SLP (Crl.) No. 2924 of 2011)




                               J U D G M E N T

V. Gopala Gowda, J.



      These appeals have been filed by the  appellants  against  the  common
impugned  judgment  and  order  dated  07.01.2011  of  the  High  Court   of
Uttarakhand at Nainital in Criminal Appeal No. 1931 of 2001(Old no. 1060  of
1998), whereby the High Court dismissed the appeal  of  the  appellants  and
upheld their conviction and sentence of 10 years R.I. under Section 304B  of
the Indian Penal Code (in short “the IPC”) awarded by the  trial  court.
 In
Criminal Appeal No. 1893 of 2013 the appellants are  the  sisters-in-law  of
the deceased and in Criminal Appeal No. 1894 of 2013 the  appellant  is  the
father-in-law of the deceased.
During pendency  of  the  appeal  before  the
High Court, the co-accused, Lilawati, the mother-in-law of the deceased  had
died, therefore, the case abated against her.

2. The brief facts of the  case  are  stated  hereunder  to  appreciate  the
   correctness of the findings recorded by both the trial court and the High
   Court on the charges framed against the accused  persons  under  Sections
   302/34, 304B and 306 of the IPC and also to find out as  to  whether  the
   appellants are entitled for the relief as prayed by them.

3. The deceased, Bhagwati Devi was married to Satish  Chandra  (the  brother
   of the appellants in Criminal Appeal No. 1893 of 2013) on 13.06.1991.
The
   deceased  died  due  to  burn  injuries  in  her  matrimonial  house   on
   18.07.1993, around two years after marriage. 
The co-accused, the  father-
   in-law of the deceased, Nitya Nand (the appellant in Criminal Appeal  No.
   1894 of 2013) lodged a report (Ex.Ka.1) on 18.07.1993  with  the  patwari
   stating that his daughter-in-law committed suicide by burning herself  at
   about 10.00 a.m. 
He alleged in the aforesaid  report  that  the  deceased
   burnt herself to death while he had gone to the market and his  wife  and
   their daughters were away in the jungle for cutting grass. 
On 19.07.1993,
   the complainant, Mahesh Chandra (P.W. 5), the  brother  of  the  deceased
   lodged another report to  the  patwari  making  allegations  against  the
   appellants herein and the mother-in-law of the deceased, upon  which  FIR
   No.1/93 dated 19.07.1993 was registered against them. 
The accused persons
   were arrested and sent to judicial custody on 22.07.1993. On  16.10.1993,
   the police, after investigation, submitted the charge  sheet  before  the
   Chief Judicial Magistrate, Almora.
The case was committed to the Court of
   the Sessions Judge on 23.03.1994  and  the  accused  were  charged  under
   Sections 302/34 and 304B of the IPC and in the alternative,  Section  306
   of the IPC. 
Both the prosecution and the defence witnesses were  examined
   to prove the charges against the accused persons and to  show  that  they
   are not guilty of the offences alleged against them. 
The trial court,  on
   appreciation of evidence on record, vide its  judgment  and  order  dated
   01.06.1998, found the appellants  guilty of offence under Section 304B of
   the IPC and they were sentenced to 10  years  R.I.  
The  appellants  were
   acquitted for offences under  Sections  302  and  306  of  the  IPC.
The
   appellants filed Criminal Appeal No. 1931/2001 (Old no.1060/1998)  before
   the High Court.
The High  Court  dismissed  the  appeal  and  upheld  the
   judgment and order of the Sessions Court vide  its  common  judgment  and
   order dated 07.01.2011.  
Aggrieved  by  the  same  they  preferred  these
   appeals, urging certain grounds and legal contentions.



4. The learned Sessions Judge relied upon the evidence  of  the  prosecution
   witnesses to convict the appellants.
The prosecution examined 9 witnesses
   in support of the case.
P.W 3, Bhuvan Chandra and P.W 5,  Mahesh  Chandra
   are the brothers of the deceased.
 According to P.W. 3, his brother Deepak
   Chandra-the P.W.7 had gone to the matrimonial house of the deceased, when
   the four accused persons demanded        [pic]30,000/- stating  that  the
   deceased had brought less dowry and threatened to send her back to  their
   house if they did not pay the amount demanded. 
P.W.3 had written a letter
   (Ex. Ka.3) on 28.6.1993 to his parents informing them about the demand of
   the in-laws of the deceased for [pic]30,000/- and that  due  to  this  he
   withdrew [pic]4,000/- and sent it to his father  through  a  villager  to
   give it to his sister, the deceased  herein.  
He  also  stated  that  the
   deceased-Bhagwati had told his wife and his father  that  she  was  being
   harassed at her in-laws house because she had brought less dowry.
P.W.4,
   Nanda Devi, the mother of the deceased also alleged that the deceased was
   harassed by the accused persons for bringing less dowry. She deposed that
   the accused persons gave her less food and did not allow her to wear  the
   clothes which were given to her at the time of the marriage.
 P.W.5,  the
   brother of the deceased deposed that his sister had told him that her in-
   laws taunted her about being from a poor family and  for  having  brought
   less dowry.
P.Ws.3, 4 and 5 alleged that the accused  burnt  Bhagwati  to
   death.
P.W.6, Dr. Naval Kishore Pandey, the doctor who conducted the post
   mortem of the deceased deposed before the trial court that she  had  died
   due to 90% of burn injuries.
P.W.7, Deepak Chandra,  another  brother  of
   the deceased deposed before the court that he had gone  to  his  sister’s
   matrimonial  house  in  May,  1993  when  the  accused  persons  demanded
   [pic]30,000/- and said that dowry was not fulfilled by the parents of the
   deceased and they had simply given a sewing machine.
 He also stated  that
   the accused persons had  misbehaved  with  his  sister  Bhagwati  in  his
   presence.

5. The trial court examined the evidence on record and held that the  charge
   under Sections 302/34 of the IPC against the accused persons is not  made
   out, but instead the accused created the circumstances and compelled  the
   deceased to commit suicide. Further, it has held that the prosecution has
   been able to prove the case i.e. the charge under Section 304B of the IPC
   beyond reasonable doubt that the demand for dowry that was  made  by  the
   accused persons subsequent to the marriage and soon before the  death  of
   the deceased amounts to ‘dowry death’. As regards Section 306 of the IPC,
   the trial court held that there is no direct evidence regarding  abetment
   to suicide by the  deceased  and  instead  reiterated  that  the  accused
   created the circumstances for committing suicide and since  evidence  was
   not led under Section 306, the trial court held  that  the  accused  were
   liable to be acquitted for offence under  Section  306.   Therefore,  the
   trial court convicted and  sentenced  the  accused  persons  for  offence
   punishable under Section 304B of the IPC and also  cancelled  their  bail
   bonds, pursuant to this conviction.

6. The High Court, in the impugned judgment has stated that in  dowry  death
   cases, direct evidence is hardly available and  such  cases  are  usually
   proved by circumstantial evidence.
Further, the  High  Court  has  stated
   that the death of  the  deceased  cannot  be  said  to  be  under  normal
   circumstances for  the  reason  that  at  the  place  of  occurrence  the
   investigating officer found  a  matchbox,  a  plastic  jeri-can  of  five
   litres, half filled with kerosene oil and there was cot and  bed  towards
   the feet of the deceased but these articles were intact. 
It was  felt  by
   the High Court that it is surprising that the deceased was burnt  to  90%
   and she might have moved around writhing in pain and during this  process
   the articles kept inside the  room  might  have  caught  fire  but  these
   circumstances were not found.
Further, it has  come  in  the  prosecution
   evidence that the deceased was making complaints about the torture  meted
   out to her by her in-laws at her  matrimonial  house  in  lieu  of  dowry
   demands and it has further held that the appellants-accused persons  also
   could not explain the reason for the deceased having committed suicide at
   her matrimonial house.
Thus, the High Court came to the  conclusion  that
   the death of the deceased cannot be said to be in  normal  circumstances.
 
Therefore, the High Court held that it can be safely presumed  that  this
   is a case of dowry death against the accused persons in whose  house  the
   deceased had died due to burn injuries.
The  High  Court  further  stated
   that another circumstance which goes against the accused persons is  that
   they did not inform the parents/brothers of the  deceased  on  coming  to
   know of her death. 
The High Court has held in its judgment, on the  basis
   of the evidence of the witnesses,  that  the  prosecution  case  of  ill-
   treatment of the deceased at the hands of the accused  was  found  to  be
   fully established. Therefore, the High Court has  upheld  the  conviction
   and sentence awarded by the trial court in its judgment and dismissed the
   appeal of the appellants.

7. The learned counsel for the appellants have contended that
there  was  no
evidence on record to show that the deceased had been  subjected  to  any cruelty or harassment by the appellants  in  connection  with  demand  of dowry soon before her death and the conditions set forth  for  conviction under Section 304B of the IPC were not satisfied by the  prosecution.  
It
   was further contended by the learned counsel that
there were  no  demands
   for dowry either at the time of marriage or subsequently and  the  courts
   below have erred in law in convicting and sentencing  the  appellants  by
   relying upon the letter of P.W.3 marked as Ex.Ka.3, even though the trial
   court had come to the conclusion that the letter has  been  interpolated.
 
The trial court has observed  that  in  the  letter,   the  word  ‘Sasur’
   (father-in-law) has been added after the  word  ‘Sas’  (mother-in-law)and
   many other words have been added or struck off  here  and  there  in  the
   letter. 
Thus, the reliance placed by the trial court upon  such  evidence
   to convict the appellants of the charge was erroneous in law. 
Further, it
   is contended by the learned counsel that the courts below have picked one
   line from one place and another from another place from the  evidence  of the prosecution witnesses to arrive at the conclusion and held that there
   was demand for dowry by the appellants.

8. The learned counsel for  the  respondent-the  State  of  Uttarakhand  has
   contended  that
 the  evidence  on  record  adduced  by  the  prosecution
   witnesses would clearly show that the deceased was regularly subjected to
   cruelty and harassment by the appellants as she was poor and brought less
   dowry to the family of the appellants.
 The  letter,  Ex.Ka.3  written  by
   P.W.3, one of the brothers of the deceased to his parents informing  them
   about the demand of the  accused  persons  for  [pic]30,000/-   with  the
   brother of the deceased would clearly show that the demand for  dowry  is
   proved and the same is accepted by the trial court and  the  trial  court
   rightly convicted and sentenced the accused persons for the offence under
   Section 304B of the IPC.
It is further contended by the  learned  counsel
   for the respondent-State that the conviction of the accused persons under
   Section 304B of the IPC on the  basis  of  the  evidence  on  record  was
   legally correct and the same need not be interfered with  by  this  Court
   and must be upheld.

9.  We have heard the rival factual and legal contentions  urged  on  behalf
   of both the parties and very carefully perused the evidence on record  to
   examine the correctness of  the  finding  recorded  against  the  accused
   persons in the impugned judgment. The following points  would  arise  for
   our consideration:

        i) Whether the trial court and the appellate court were correct  in
           recording the finding that the accused  are  guilty  of  offence
           under S.304B of the IPC and in convicting  and  sentencing  them
           under this Section?

       ii) What order to be passed?

10.  On considering the evidence of the prosecution witnesses as deposed  by
   them which is on record,
we are of the view that the charges  of  cruelty
   or harassment against the accused are not supported by legal evidence  on
   record. The courts below have erroneously placed reliance on  the  letter
   (Ex. Ka.3) written by  P.W.3  to  his  parents  which  is  on  record  to
   establish the charge u/s 304B of the IPC, wherein he has  stated  in  his
   letter that P.W.7 had gone to the matrimonial house of the  deceased  and
   was met with demand for [pic]30,000/-. 
There is no evidence of demand for
   dowry by the accused persons prior to the alleged demand of [pic]30,000/-
   . To satisfy the ingredients of the provision of Section 304B of the IPC,
   the death of a woman must be caused due to burns or bodily injuries,  and
   must be within 7 years of her marriage. Further, it must be  proved  that
   soon before her death, she was subjected to cruelty or harassment by  her
   husband or her relatives “in connection with the demand for dowry”.

11.   The said charge has not been proved by  the  prosecution  by  adducing
evidence to attract the ingredients of the offence  under  Section  304B  of
the IPC.
 The trial court and the appellate court have not taken great  care
in analysing and appreciating the evidence on record, keeping  in  view  the
gravity of the offence of dowry death and the punishment prescribed  for  it
u/s 304B of the IPC.
 They were required  to  scrutinise  the  evidence  very
cautiously and carefully in order to arrive at the conclusion as to  whether
all the  ingredients  of  the  offence  with  reference  to  the  conditions
enumerated u/s 304B of the IPC to convict the accused  have  been  satisfied
by the prosecution.
 On perusal of the evidence on  record,  we  are  of  the
view that the charge is not proved by the prosecution, particularly  as  the
courts below have failed to notice that the prosecution has failed to  prove
that the dowry demand was  made  by  the  accused  either  at  the  time  of
marriage or subsequently as  it  has  not  produced  convincing  and  cogent
evidence in this regard.
In this case, the evidence on record is  not  clear
as to
  whether the demand for [pic]30,000/- as alleged to have been  made  by
the accused is a demand for dowry with  the  deceased  that  can  constitute
cruelty or  harassment  by  the  accused.  The  High  Court,  after  careful
examination of the letter dated 28.06.1993,  has  found  that  it  has  been
interpolated and that some changes have been made in  the  letter  and  some
words were added to it. The courts below have erred  in  law  in  convicting
the appellants herein by erroneously placing  reliance  upon  the  above  so
called letter, wherein certain words were added with a view to  make  out  a
fabricated charge against them to  secure  the  conviction  of  the  accused
persons. We are of the view that the document Ex.Ka.3 was  created  for  the
purpose of falsely implicating the accused to secure  their  conviction  for
the charge under  Section  304B  of  the  IPC.  The  said  letter  has  been
erroneously relied upon by the courts  below  to  establish  the  allegation
that there was cruelty or harassment by the accused persons on the  deceased
which has resulted in setting up of the circumstances  for  her  death.  The
courts below have not noticed the important  aspect  of  the  case,  namely,
that the charge of dowry death,  that  there  was  demand  on  the  deceased
either before the marriage or soon before the death  of  the  deceased  made
against the accused persons,  should  have  been  proved  beyond  reasonable
doubt. The courts below have also  failed  to  consider  the  relevant  fact
namely, the appellants herein were not in the  house  at  the  time  of  the
incident.

12.   In our considered  view,  after  careful  analysis  of  the  aforesaid
aspects of the case and on careful perusal of the evidence  on  record,  the
finding of fact recorded by the High Court in  convicting  the  accused  for
the charge of Section 304B of the IPC is not  only  erroneous  in  fact  but
also suffers from error in law  and  therefore,  the  present  appeals  must
succeed.

13. In view of the aforesaid reasons, i.e. the lack of compelling  evidence,
we have to reverse the judgment and order  of  the  High  Court  by  setting
aside the conviction of the accused persons under Section 304B of  the  IPC.
The impugned judgment of the High Court cannot be sustained and the same  is
accordingly set aside. The appellants are acquitted of all the charges.  The
appellants are on bail, their bail bonds stand discharged.

14. The appeals are allowed accordingly.




                        ………………………………………………………………………J.
                        [SUDHANSU JYOTI MUKHOPADHAYA]


                                   ………………………………………………………………………J.
                                   [V. GOPALA GOWDA]
New Delhi,

November 1, 2013


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