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Monday, January 5, 2015

CRIMINAL APPEAL NO.2267 OF 2014 (Arising out of Special Leave Petition (Crl.) No.1453 of 2013) Kuldeep Kaur …Appellant (s) versus State of Uttarakhand …Respondent(s)

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.2267   OF 2014
       (Arising out of Special Leave Petition (Crl.) No.1453 of 2013)


Kuldeep Kaur                      …Appellant (s)
                                   versus
State of Uttarakhand              …Respondent(s)

                                  JUDGMENT
M.Y. Eqbal, J.:
      Leave granted.
2.    This appeal by special leave arises out of judgment  and  order  dated
3.1.2013 of the High Court of  Uttarakhand  in  Criminal  Appeal  No.213  of
2006, whereby  Division  Bench  of  the  High  Court  dismissed  the  appeal
preferred by the appellant and affirmed the  decision  of  the  trial  court
convicting her under Section 306 of the Indian Penal Code to  undergo  three
years rigorous imprisonment with fine of Rs.5000/-.   The  High  Court  also
dismissed the  appeal  preferred  by  the  State  against  the  judgment  of
acquittal passed by trial court.

3.     The  prosecution  case  in  a  nutshell  is  that  on  6.6.2001   the
complainant of the case viz. Captain Jagtar  Singh  (PW1)  lodged  a  report
Ex.A-1 at P.S. Sitarganj, wherein it has been stated that  marriage  of  his
daughter Jagpreet Kaur was solemnized with Upkar Singh son of  Harpal  Singh
on 1.3.2001.  The complainant gave the articles in  the  marriage  according
to his capacity, but in-laws of his daughter used to  demand  car  etc.  and
used to taunt and harass his  daughter.   It  was  further  complained  that
Jagpreet Kaur told the informant that her in-laws harassed  her  on  account
of non-fulfillment of demand of  dowry  and  in  the  intervening  night  of
5th/6th of June, 2001, she was compelled to commit suicide.   On  the  basis
of this complaint, case was registered against  the  accused  persons  under
Section 304-B, IPC and the police took into custody a  small  bottle,  cover
of which was  slightly  torned,  on  which  “Cypermethrin  High  Emulsifable
Concentrate (Vet) Elitomin 100 E.C.” was written.  Diary Ex.A-2  written  by
the deceased was also seized.  Dead body was sent for post-mortem, where  no
apparent injury except ligature mark on the neck was  found.   According  to
the concerned Doctor, cause of death of the deceased was due to asphyxia  as
a result of ante mortem hanging.

4.     Upon investigation, charge-sheet for  the  offence  punishable  under
Section 304-B, IPC was submitted in the Court of Magistrate,  who  committed
the case to the Court of Sessions for  trial.     The  trial  court  charged
accused persons viz. mother-in-law Smt.  Kuldeep  Kaur  and  brothers-in-law
Gurlal Singh & Rakesh Grover under Section 498A/304-B, IPC and  Section  3/4
of Dowry Prohibition Act, to which the accused persons  pleaded  not  guilty
and sought trial.

5.    It is worth to mention here that  as  accused  Harpal  (father-in-law)
had died, case was abated against him, and   since deceased’s husband  Upkar
Singh and sisters-in-law Rupender Kaur and Satender Kaur were absent at  the
time of filing of chargesheet, their records were taken apart  and  separate
chargesheet was filed against them at later  stage.   In  that  case,  trial
court has acquitted these accused persons by giving them  benefit  of  doubt
with respect to allegations alleged against them.

6.    To prove its case against Smt. Kuldeep Kaur and Gurlal Singh &  Rakesh
Grover, prosecution examined eight witnesses,  namely,  PW1  Captain  Jagtar
Singh  (deceased’s  father),  PW2  Smt.  Gurmeet  Kaur  (deceased’s   cousin
sister), PW3 Pyara Singh (deceased’s relative), PW4  Dr.  R.A.  Kediya  (who
conducted post-mortem), PW5  Harak  Singh  Rawat  (Tehsildar),  PW6  Balwant
Singh, PW7  S.I.  Sohan  Pal  Singh  and  PW8   Dalip  Singh  (Investigation
Officer).   In  defence,  three  witnesses  were  examined.    Incriminating
evidence was put to the accused persons under Section 313  of  the  Code  of
Criminal  Procedure,  in  which  they  submitted  that  they  were   falsely
implicated in the case.

7.    On appreciation of evidence and material placed on record,  the  trial
court held that the deceased did not commit suicide due  to  cruelty  caused
to her in connection with demand of dowry and acquitted  the  appellant  and
other co-accused of the offence punishable  under  Sections  498A/304B,  IPC
and Sections 3 & 4 of the Dowry Prohibition  Act.   However,  the  appellant
was held guilty  under  Section  306,  IPC  and  was  sentenced  to  undergo
imprisonment for three years and fine of Rs.5000/-.

8.    Aggrieved  by  the  decision  of  the  trial  court,  respondent-State
preferred appeal before the High Court against  the  judgment  of  acquittal
passed  by  the  trial  court.   Accused-appellant  also  preferred   appeal
challenging her conviction under Section 306, IPC.   After  hearing  learned
counsel appearing for the parties and appreciating the evidence  and  papers
placed before it, the  Division  Bench  of  the  High  Court  dismissed  the
appeals affirming judgment of the trial court.

9.    Hence this appeal by the mother-in-law of the deceased.

10.    Mr. Huzefa Ahmadi learned senior counsel appearing for the  appellant
at the very outset  submitted that the trial court  has  acquitted  all  the
accused persons except the appellant, who has already  undergone  about  six
months of custody as under trial and she  is  an  old  lady  aged  about  86
years.  It is further submitted  that  the  appellant  has  undergone  heart
surgery and is also suffering from various old age ailments and  practically
confined to bed.

11.   It has been contended on behalf of the appellant that  PW1  father  of
the deceased made only general allegation of demand  of  dowry  against  all
the family members  and  there  are  no  specific  allegations  against  the
present appellant.  The trial  court  while  convicting  the  appellant  has
relied upon the contents of the  diary  of  the  deceased.   However,  trial
court found contradiction in the statements of the witnesses  PW1,  PW2  and
PW3 in respect of demand of dowry by the accused persons  and  the  deceased
not writing anything about demand of dowry in her diary in respect of  these
accused persons including the appellant and therefore,  no  presumption  was
taken by the trial court in respect of dowry death under Section 113B,  IPC.


12.   Learned senior counsel drew our attention to  the  following  findings
and observations of the trial  court  in  its  decision  in  separate  trial
pertaining to deceased’s husband:
“…It appears from the perusal of diary that deceased was not happy from  the
behavior meted out to her by the accused persons  and  the  members  of  the
family and she was in  depression.   Her  sensitivity  towards  things  also
appears to be more.  PW-1 has stated in his cross-examination as  to  mental
condition  and  temperament  of  the  deceased  that  his  daughter  was  an
illiterate one and used to like cities much.   Her  temperament  right  from
childhood was such that she used to get perturbed  on  any  issue,  whereas,
there was nothing in scarce in her matrimonial  house  or  in  her  paternal
house.   It  was  her  nature  to  get  depressed;  she  was  a  patient  of
depression.  She was treated for  depression  much  earlier  also,  but  her
thinking and tendency remained unchanged.  PW-6, who is the brother  of  the
deceased, has also stated in his evidence  that  his  sister  Priti  was  in
depression.  PW-7, the Investigation Officer has stated in his  examination-
in-chief that one sealed bottle was recovered from  the  site,  whose  cover
was torn.  Its report was also prepared by him….  In cross-examination  this
witness has stated that Actomin 100E/C was written on the  bottle  recovered
from the site.  He has not got any chemical examination  done  with  respect
to  medicine  the  above  bottle  contained.   He  has  not  conducted   any
investigation in this regard that medicine kept in the bottle  is  used  for
which  purpose.   This  medicine  can  also  be  used  in  the  disease   of
depression.  In this way, the statements mentioned in  the  diary  available
on the record alleged to be written by the deceased in context of  evidences
given by PW-1, PW-6 and PW-7 makes it  clear  that  deceased  was  extremely
sensitive and she could easily fall prey of  depression  even  under  normal
circumstances.   In  this  situation,  special  care  of  the  deceased  and
sympathetic ambience was necessary for the deceased, but  inability  of  her
husband and other members of her family to understand her  mental  condition
or their inability to help the  deceased  properly  could  be  an  important
mistake on the part of the husband of the  deceased  and  her  other  family
members, but they cannot be held liable for any offence for it.
                                    xxxxx
In the instant case, it is quite clear from the findings of the  prosecution
evidence that deceased was found hanging inside a room locked  from  inside,
from where she was taken out after breaking glass and opening the door.”

13.   Mr. Ahmadi contended that the finding of the trial court  holding  the
petitioner guilty under Section 306, IPC is on the  basis  of  surmises  and
conjectures.  The trial court in its judgment pertaining  to  the  appellant
has reproduced a line from the diary of the deceased, which reads as  “Still
she wants me to work till late.”  It  is  contended  that  the  trial  court
erred in presuming that when the deceased  writes  the  above  line  in  her
diary she is referring to the appellant.    It  is  further  contended  that
conviction of the appellant deserves to be set  aside  as  both  the  courts
below failed to appreciate that the prosecution did not led any evidence  on
record to show that there was direct reasonable nexus  between  suicide  and
alleged cruelty.  As both the courts below gave findings that there  was  no
demand of dowry or any cruelty committed with  the  deceased  in  connection
with demand of dowry and acquitted the appellant from charge under  Sections
304B, 498A IPC and under sections 3 & 4 of the Dowry  Prohibition  Act,  the
courts below could not have come to a contradictory view that  the  deceased
committed suicide due to cruelty committed by the appellant.   Even  in  the
diary, deceased has not written even a single word  against  the  appellant.
Perusal of the diary only shows, as also observed by the trial court in  its
decision  in  the  trial  of  other  accused  persons  including  deceased’s
husband, that the deceased was depressed and has left no interest  in  life.


14.   Learned  counsel  appearing  for  the  State  has  not  disputed  that
although against the  judgment  of  acquittal  passed  by  the  trial  court
acquitting the husband, father-in-law, brother-in-law  and  two  sisters-in-
law,  the State preferred appeal but the same  was  dismissed  by  the  High
Court.  However, no further appeal has been filed by the State  before  this
Court. Learned counsel submitted that the conviction of the appellant  under
Section 306 IPC is fully justified.

15.   We have perused the judgment passed by the trial court as also by  the
High Court.  We have also gone through the judgments by which  the  husband,
father-in-law, brother-in-law and two sisters-in-law have been acquitted  by
the trial court and affirmed by the High Court.  So far  this  appellant  is
concerned, she  has  also  been  acquitted  against  the  charges  of  dowry
harassment but she has been convicted under Section 306 IPC.
16.    A perusal of trial court judgment pertaining  to  deceased’s  husband
would show that PW1, father  of  the  deceased,  in  his  cross  examination
stated that no dowry was demanded by the accused persons  from  the  day  of
alliance till solemnization of marriage.  Whatever stridhan  was  given  was
as per the custom and as per his will in the form of gift to  his  daughter.
He further stated that his daughter had not told him that in the absence  of
Upkar Singh she remained dejected in her matrimonial house  because  of  her
mother-in-law, father-in-law, sister-in-law and husband and  elder  brother-
in-law on the issue of dowry.  Witness himself stated that  only  God  knows
why her daughter committed suicide without any  reason.   This  witness  has
stated that it is true to say that neither the accused persons  abetted  his
daughter to commit suicide nor they harassed her.

17.   We have given our anxious consideration in  the  matter  and  analysed
the evidence of the prosecution witnesses.  In our considered  opinion,  the
evidence adduced as against the appellant does not establish the case  under
Section 306 of the Code.  On  the  basis  of  evidence  of  the  prosecution
witnesses, conviction of the appellant only  cannot  be  sustained.   Having
regard to the  fact  of  the  case  and  the  evidence  of  the  prosecution
witnesses, the trial court acquitted all  the  accused  persons  except  the
present appellant and the said judgment was affirmed by the High Court.   We
do not find any strong reason to  agree  with  the  judgment  of  conviction
passed by the trial court and affirmed by the  High  Court  as  against  the
appellant.

18.   For the reasons aforesaid, this appeal is allowed and the judgment  of
conviction of the appellant under Section 306 IPC is set aside.
                                                            ….…………………………….J.
                                                              [ M.Y. Eqbal ]


                                                              …………………………….J.
                                                      [Pinaki Chandra Ghose]
New Delhi
October 17, 2014









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