How to appreciate the Evidence - Sections 498-A, 304-B, 201 and 176 of the Indian Penal Code (for short 'IPC') read with Sections 3, 4 and 6 (2) of the Dowry Prohibition Act. - Trial court acquitted the accused - High court convicted the accused - Apex court held that The High Court is correct in its observation that it was not appropriate for the trial court to expect documentary evidence regarding acceptance of dowry as generally such a record would not be kept since it was not a commercial transaction. The High Court also appears to be justified in its observation that non production of the villagers to prove the dowry demand would not be fatal. and further held that Strangely, the High Court has discarded Mahazar drawn by PW-8 by giving a spacious reason viz. it was not an exhibited document before the Court, little realising that this was the document produced by the prosecution itself and even without formal proof thereto by the prosecution, it was always open for the defence to seek reliance on such an evidence to falsify the prosecution version. and further held that it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. We thus, find that there were no solid and weighty reasons to reverse the verdict of acquittal and to convict the appellant under the given circumstances. Accordingly, we allow this appeal and set aside the judgment of the High Court, holding that the appellant is not guilty of the
charges foisted against him. =
No doubt, the initial complaint by
Mariyappa (PW-1) was to the effect that the accused persons murdered Laxmi
and then threw her into the well and also led the evidence of such crime to
disappear by burning the dead body much prior to the approval of maternal
uncle and parents of the deceased.
However, after investigation, the
charge sheet was filed only for offences punishable under Sections 498-A,
304-B, 201 and 176 of the Indian Penal Code (for short 'IPC') read with
Sections 3, 4 and 6 (2) of the Dowry Prohibition Act. =
After re-appreciating the entire evidence on record,
the High
Court has come to the conclusion that the appellant was in fact guilty of
offence punishable under Sections 3 & 4 of Dowry Prohibition Act as well as
under Sections 498-A, 304-B, 201 and 176 IPC.
The judgment and order of
acquittal of trial court is, thereby, set aside by the High Court =
The trial court
analysed the testimony of PW-4, PW-5 and PW-6
“(27) After the marriage during the period of 6 months
it was not
mentioned in the complaint that the accused have assaulted Lakshmamma
physically and thrown out of the house nor stated the same before the
court.
Neither the villagers wherein the accused are residing nor their
neighbors have given any evidence before the court about pinpricks meted
out to her.
As against which
D.W.1 Ramakrishnappa, aged 56 years, said
that, from the beginning till the death of Lakshamma the accused persons
looked after here well and not given any pinpricks to her, he further told
that on that day she came to well for washing the cloth and due to slip of
her leg she fell in the well and he came to know about the same.
In his cross-examination no other statement was given on behalf of prosecution.
(28) It is an arranged marriage in the presence of elders, in the event of
giving
any pinpricks about dowry harassment, this matter would have been
brought to the notice of elders and convene a panchayath.
But it never
revealed anywhere about conveying the panchayath.
Hence it is hereby seen
that the accused or her husband had not given pinpricks either in the
matter of dowry or in any other matter.
It cannot be said that she has committed for the said reason.
Hence I answer both the questions
Negatively.”
The High Court has, however, given a different glance to the entire matter.
According to it, the aforesaid
approach of the trial court was erroneous in law as well as in appreciation
of the evidence on record.
After taking note of the fact that
Laxmi died
within six months of her marriage and it was an unnatural death,
the High
Court has lamented on the conduct of the appellant and has arrived at the
conclusion that it was the appellant who was responsible for the death of
Laxmi and found him guilty of offence under Section 304-B of IPC.
The High
Court
has also accepted the version of the prosecution that Laxmi was
harassed and humiliated on account of non fulfillment of the demand of
dowry made by the appellant and, therefore, presumption under Section 113-B
of the Evidence Act was attracted.
As per the High Court, the appellant
has not been able to lead any satisfactory evidence to dislodge this
presumption.
The infirmities found in the depositions of PW-1 to PW-5 by
the trial court have been brushed aside and discarded by the High Court as
irrelevant and perverse.
The High Court held that it would be impossible
to expect any party to the marriage talks to keep a record of demand and
payment of dowry as if it was a commercial transaction and, therefore, the
absence of documentary evidence in this regard should not have weighed with
the trial court.
The High Court also observed that there was no admission
made by PW-1 that even without the alleged demand of dowry, he would have
given customary articles like clothes and ornaments and no such customary
practice was indicated.
The finding of the trial court that the case of
the prosecution regarding demand and payment of dowry was not proved in the
absence of anyone from the village of the accused is also brushed aside by
observing that such a demand and payment would not be made public inasmuch
as such talks would be within closed doors and would be within the
knowledge of the parties to the marriage and kith and kin of the bride and
bridegroom.
Further, apart from PW-1 to PW-3, PW-4, who is the neighbour
of PW-1 and PW-2, supported the version of the demand of dowry and the
harassment of Laxmi at the hands of the appellant and his family members.
Apex court held that
The High Court is correct in its
observation that it was not appropriate for the trial court to expect
documentary evidence regarding acceptance of dowry as generally such a
record would not be kept since it was not a commercial transaction.
The
High Court also appears to be justified in its observation that non
production of the villagers to prove the dowry demand would not be fatal.
We have eschewed and discarded these reasons assigned by the trial court.
whether the evidence of
these witnesses (PW-1 to PW-3) is worthy of credence, on this aspect.
According to them, deceased was cremated before they reached
the village of the appellant. To falsify this position taken by the
prosecution through these witnesses, the learned counsel for the appellant
had taken us to the evidence of PW-8 who had drawn Mahazar near the well.
This Mahazar coupled with the statement of PW-8 is a very significant piece
of evidence which has considerable effect in denting the creditworthiness
of the testimony of these witnesses. As per PW-8 himself, when he had
reached the spot, it was the mother of the deceased who pointed out the
place where the dead body was lying. This assertion amply demonstrates
that mother of the deceased had known where the body was kept and she along
with PW-1 and PW-2 had reached the place of occurrence before the dead body
was cremated. Relying upon this evidence,
the trial court has disbelieved
the story of the prosecution that Laxmi was cremated even before these
persons had reached the village of the appellant. Strangely, the High
Court has discarded Mahazar drawn by PW-8 by giving a spacious reason viz.
it was not an exhibited document before the Court, little realising that
this was the document produced by the prosecution itself and even without
formal proof thereto by the prosecution, it was always open for the defence
to seek reliance on such an evidence to falsify the prosecution version.
Moreover, PW-8 has specifically referred to this document in his evidence.
It is also a matter of record that a specific suggestion was made to PW-3
(mother of the deceased)
in the cross-examination to the effect that it is
she who had pointed out the place of the dead body lying near the well to
the Police personnel. The version of PW-1 to PW-3 that they reached the
village of the appellant after Laxmi had already been cremated, does not
inspire confidence and appears to be mendacious.
If the body was cremated thereafter, and not
buried, it can clearly be inferred that same was done with consent, express
or implied, of the complainant namely maternal uncle and the mother of the
deceased. It can also be inferred that parties had decided at that time
that matter be not reported to the Police and body be cremated. To say it
otherwise, by accepting the version of the prosecution, would lead to some
absurdities. It would mean that when maternal uncle or aunt as well as
mother of Laxmi were present and had seen the dead body lying at the spot,
they objected to the body being cremated. They also wanted Police to be
informed. If it was so, why they did not put up any resistance? We have to
keep in mind that these family members of Laxmi have come out with the
allegation that Laxmi was harassed as well as mentally and physically
tortured because of non fulfillment of dowry demand. In such a scenario,
they would not have remained silent and mute spectators to the events that
followed even when they were not to their liking. Not only this conduct
belies their version, another weighty factor is that the complainant
remained silent about these happenings for a period of 4 days and lodged
the report with the Police only on 26.05.1993 when they came out with the
allegations of demand of dowry and harassment.
in Chandrappa and Ors. v. State of Karnataka, (2007) 4
SCC 415.”
31. In Chandrappa (supra), which was followed in the aforesaid case, the
Court had observed:
“44. In our view, if in the light of above circumstances, the trial court
felt that the accused could get benefit of doubt, the said view cannot be
held to be illegal, improper or contrary to law. Hence, even though we are
of the opinion that in an appeal against acquittal, powers of the appellate
court are as wide as that of the trial court and it can review,
reappreciate and reconsider the entire evidence brought on record by the
parties and can come to its own conclusion on fact as well as on law, in
the present case, the view taken by the trial court for acquitting the
accused was possible and plausible. On the basis of evidence, therefore,
at the most, it can be said that the other view was equally possible. But
it is well established that if two views are possible on the basis of
evidence on record and one favourable to the accused has been taken by the
trial court, it ought not to be disturbed by the appellate court. In this
case, a possible view on the evidence of prosecution had been taken by the
trial court which ought not to have been disturbed by the appellate court.
The decision of the appellate court (the High Court), therefore, is liable
to be set aside.”
32. We thus, find that there were no solid and weighty reasons to reverse
the verdict of acquittal and to convict the appellant under the given
circumstances. Accordingly, we allow this appeal and set aside the
judgment of the High Court, holding that the appellant is not guilty of the
charges foisted against him.
33. During the pendency of this appeal, the appellant was enlarged on
bail vide order dated 31.03.2014. The bail bonds and sureties given by the
appellant are hereby discharged.
2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41816
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1671 OF 2011
|RAMAIAH @ RAMA |…..APPELLANT(S) |
| | |
|VERSUS | |
|STATE OF KARNATAKA |…..RESPONDENT(S) |
J U D G M E N T
A.K. SIKRI, J.
Laxmi, since deceased, was 14 years of age when she was
married to the appellant on 18.11.1992.
Within six months of her marriage
i.e. on 22.05.1993, she died an unfortunate unnatural death. Her body was
recovered on 22.05.1993 at 4 p.m. from a well. It was cremated on that
day. However, four days thereafter i.e. on 26.05.1993, at 8 p.m., Mr.
Mariyappa (PW-1), maternal uncle of the deceased, lodged the complaint with
the Police Station and the case was registered as Cr. No.160/93.
2. As per his statement, it is he and his wife (PW-2) who brought up
Laxmi. At the age of 14, appellant's father asked for the hand of Laxmi in
marriage with the appellant which resulted in solemnization of marriage
between deceased Laxmi and the appellant on 18.11.1992. PW-1 also stated
in his complaint that at the time of her marriage, there were negotiations
wherein the appellant and her parents had demanded a cash of Rs.5,000/- and
certain gold ornaments. PW-1 could arrange Rs.2,000/- cash only at that
time which was given by him in dowry at the time of marriage alongwith
certain gold ornaments, clothes and other articles. However, since they
were not able to pay the balance of Rs.3,000/-, Laxmi was harassed and
tortured, mentally and physically, because of non-fulfillment of dowry
demand and was asked repeatedly to bring the balance of Rs.3,000/- which
was due towards dowry amount. Laxmi had intimated about this demand and
harassment to her to PW-1 and PW-2 whenever she visited her parental house.
In spite of their best efforts, they could not comply with the said
demand. Few days before the fateful day, when she had come to her parents
house, PW-1 and PW-2 sent her back to her matrimonial home by convincing
her that they would pay the requisite amount soon after harvest of the
crops. It was further alleged that five days before her death, Laxmi had
complained about ill-treatment and harassment to her at the hands of the
appellant and his parents. However, on 22.05.1993 between 10.00 a.m. to
12.30 p.m., the maternal uncle was informed of the death of the deceased
due to drowning in a well belonging to one Bylappa. Her parents were also
informed of the said unnatural death of the deceased. According to the
informant, they did not accept the theory of accidental fall into the well
when deceased went to wash the clothes, as set up by the appellant and that
the accused persons after doing away with her life, had thrown her into the
well. It was also alleged that before they could reach the village of
accused, the dead body of deceased Laxmi was cremated and they did not have
an opportunity of seeing her face before she was cremated.
3. On the basis of the aforesaid complaint, a case was registered
against the husband (appellant herein), father-in-law, mother-in-law and
brother-in-law of the deceased Laxmi.
No doubt, the initial complaint by
Mariyappa (PW-1) was to the effect that the accused persons murdered Laxmi
and then threw her into the well and also led the evidence of such crime to
disappear by burning the dead body much prior to the approval of maternal
uncle and parents of the deceased. However, after investigation, the
chargesheet was filed only for offences punishable under Sections 498-A,
304-B, 201 and 176 of the Indian Penal Code (for short 'IPC') read with
Sections 3, 4 and 6 (2) of the Dowry Prohibition Act. During trial, mother-
in-law and father-in-law of the deceased passed away. Brother-in-law of
the deceased, being a minor, was sent to Juvenile Offenders' Court. Thus,
only the appellant was tried for the aforesaid change.
4. The prosecution examined 9 witnesses and 4 exhibits were marked. The
appellant gave his statement under Section 313 of the Code of Criminal
Procedure (for short 'Cr.P.C.') and thereafter one Ramakrishnappa was
examined as DW-1. After the conclusion of trial, arguments were heard by
the learned Additional Sessions Judge who returned his verdict vide
judgment dated 24.08.2001 acquitting the appellant of the charges with the
findings that prosecution was not able to prove the guilt of the appellant
beyond reasonable doubt. The State challenged the judgment of acquittal by
filing the appeal under Section 378 of Cr.P.C. in the High Court of
Karnataka.
After re-appreciating the entire evidence on record, the High
Court has come to the conclusion that the appellant was in fact guilty of
offence punishable under Sections 3 & 4 of Dowry Prohibition Act as well as
under Sections 498-A, 304-B, 201 and 176 IPC. The judgment and order of
acquittal of trial court is, thereby, set aside by the High Court
pronouncing the following sentences on the appellant under the aforesaid
provisions:
“Having regarding to the facts and circumstances of this case, we
impose a sentence of five year of rigorous imprisonment and also minimum
fine of Rs.15,000/- for the offence punishable u/s 3 of the Dowry
Prohibition Act, in default, to undergo rigorous imprisonment for a period
of six months.
So far as offence u/s 4 of the Dowry Prohibition Act is concerned,
the accused is sentenced to undergo rigorous imprisonment for a period of 6
months and fine of Rs.5000/-, in default to undergo rigorous imprisonment
for a period of three months.
So far as offence u/s 498-A IPC is concerned, the accused is
sentenced to undergo two years rigorous imprisonment and fine of Rs.2000/-,
in default, to undergo rigorous imprisonment for a period of two months.
So far as Sec.304-B IPC, the accused shall undergo minimum sentence
of seven years rigorous imprisonment.
As far as offence under Section 201 IPC is concerned, the accused
shall undergo sentence for a period of one year.
So far as offence under Section 176 IPC, the accused shall pay a fine
of Rs.1000/-.
As the substantive sentence is imposed for the offence punishable u/s
304-B of IPC, all other sentences shall run concurrently.
The accused shall have the benefit of Sec. 428 Cr.P.C.”
5. Before we proceed to discuss the tenability of the merits of this
appeal preferred by the accused, we would like to state certain admitted
facts appearing in the case and
would also like to discuss the approach of
the trial court as well as the High Court in giving conflicting verdicts.
6. As mentioned above, deceased Laxmi was 14 years of age at the time of
marriage and was hardly 15 years old when she met an unnatural death.
Marriage between the appellant and Laxmi was solemnized on 18.11.1992 and
within six months of the marriage, she died on 22.05.1993. As per the
prosecution, Shri Mariyappa (PW-1) learnt about the unnatural death of
Laxmi through the message sent from the village of the appellant between
10.00 a.m. and 12.30 p.m. on 22.05.1993. It is not in dispute that the
unnatural death of Laxmi was not intimated to the Police by her in-laws.
Though the parents of the deceased were informed, it is also not in dispute
that no postmortem was sought on the dead body of the deceased. The
appellant has also accepted the fact that as per the prevalent custom in
the community of the appellant as well as the complainant, dead bodies are
buried. However, in the present case, deceased Laxmi was cremated.
7.
There is, however, some dispute about the presence of the parents of
the deceased at the time of cremation. As per the prosecution, Laxmi was
cremated before the parents or maternal uncle/aunt of the deceased could
reach the place of the appellant. On the other hand, the appellant
maintains that they had reached well in time and she was not only cremated
in their presence but it was with their concurrence that the body was
cremated and not buried.
8. The persistent and consistent defence put up by the appellant was
that it was an accidental death which occurred when Laxmi had gone to the
well to wash the clothes at about 8.00 a.m. on 22.05.1993 as she fell into
the well accidentally. As per the defence due to this fall, the cause of
death was asphyxia as a result of drowning. It was also the defence of
the appellant that though, as per the customs in their community the dead
bodies are buried, it was decided to cremate Laxmi because of unnatural
death and this decision was taken on the persuasion of the parents of the
deceased themselves. The defence had also taken a stand that the
appellant and his family even wanted to inform the Police about the
incident but her parents did not agree to the same. In so far as
allegations of demand of dowry by the appellant and his family are
concerned, there was a complete denial on the part of the accused persons.
9. A perusal of the judgment of the learned trial court would reflect
that it framed the following questions which had arisen for consideration:
“(1) Whether the prosecutor has proved that, the accused No.1 while
marrying with deceased Lakshmamma has demanded dowry from her parents for a
sum of Rupees Five Thousand and the ornaments and accordingly they had
given ornaments and cash of Rupees Two thousand as dowry, but he has not
summoned the same either to Lakshmamma or to her parents and thus committed
an offence punishable under section 3, 4 and 6 of Dowry Prevention Act ?
(2) Whether the Prosecutor has proved that, after the marriage Lakshmamma
started marital life with 1st accused, the first accused demanding his wife
Lakshmamma to bring the remaining dowry amount of Rupees Three Thousand
from her parents and started giving pinpricks and thus committed an offence
punishable under section 498 (A) of Indian Penal Code?
(3) Whether the prosecutor has proved that, the 1st accused was giving
more pinpricks to his deceased wife and on that reason on 22.05.1993 she
has committed suicide. Hence he has committed an offence punishable under
section 304 (B) of Indian Penal Code?
(4) Whether the Prosecutor has proved that, the 1st accused with an
intention to destroy the evidence has removed the dead body of Lakshmamma
from the well and burn her body and thus committed an offence punishable
under section 201 of the Indian Penal Code?
(5) Whether the Prosecutor has proved that, the 1st accused intentionally
has not informed the matter to the concerned officers about the suicide
committed by his wife Lakshmamma and thus committed an offence punishable
under section 176 of the Indian Penal Code?
(6) What order?
10. Dealing with question No.1, which pertains to the allegation
regarding demand of dowry, the trial court concluded that allegation of
demand of dowry was not true and in arriving on this conclusion, it was
swayed by the following factors:
(1) No elders or seniors had come forward and given evidence even when it
was stated that dowry was given in their presence.
(2) Further, there was no written documents before the Court in this
regard.
(3) None of the villagers had led their evidence before the Court with
regard to demand and receiving of dowry.
(4) PW-1 in his complaint had stated that prior to the marriage,
discussions were held wherein accused No.1 (father of the appellant) had
demanded a sum of Rs.5,000/- cash and ornaments. However, PW-8, Police Sub-
Inspector who received the complaint, admitted in his cross-examination
that this fact was not mentioned in the complaint (Ex.P/1). He also
admitted that in the complaint, it was also not mentioned that PW-1 would
pay the remaining dowry after few days. He also admitted that the averment
of PW-1 that two days before the marriage he had given Rs.2,000/- and had
told that he would give remaining Rs.3,000/- at the time of Shivratri
festival was also not mentioned in Ex.P/1.
(5) The trial court disbelieved the statement of PW-1 regarding payment of
Rs.2,000/- and ornaments etc. because of the reason that he had stated in
his cross-examination that he had got 3 acres of land which is dry land and
he has to maintain his family from his income with no other source of
income. Therefore, he was not capable of giving the aforesaid money and
ornaments.
(6) The trial court further noted that as per PW-1 and PW-3, Laxmi was
very beautiful girl and that was the reason the appellant married Laxmi as
he got attracted by her beauty. PW-1 and PW-3 also admitted that the
accused persons had incurred the marriage expenses and the marriage was
also performed at the residence of the accused/appellant.
(7) The P.W.1 Mariyappa in his cross-examination stated that, he had given
cash and ornaments to the bride and bride groom as per the customs in their
community. In his examination-in-chief he stated that, the 2nd accused
Venkatappa demanded the dowry. The 2nd accused had died. He in his
examination-in-chief had not stated about dowry demand by the appellant.
To the same effect is the testimony of PW-2, wife of PW-1 who categorically
stated that there was a custom of giving silver and gold ornaments and
clothes; the ornaments given were got prepared much prior to the marriage
of Laxmi; the alleged demand of dowry was made by the parents of groom and
his brother i.e. accused Nos. 2 to 4 and did not state about the demand of
dowry by the appellant. Even, PW-3, natural mother of Laxmi deposed on the
identical lines in respect of the dowry demand.
11. On that basis, the trial court arrived at the conclusion that in the
absence of any evidence, oral or documentary, the chances are that whatever
cash, clothes or ornaments were given at the time of marriage, was as per
the prevailing customs in the community and it was not the result of any
demand made by the appellant.
12. In so far as question Nos.2 and 3 are concerned, they were taken up
together by the trial court. In the first instance, the trial court
pointed out that though the complainant got the information about the death
of Laxmi on 22nd May, 1993, he lodged delayed complaint on 26th May, 1993
i.e. four days thereafter. From the statement of PW-1 in the cross-
examination that Laxmi was staying in her matrimonial house and visited her
parental house 5-6 times alongwith her husband and even stayed there with
her husband for some days and also from the admission of PW-1 that even
they were visiting matrimonial house of Laxmi and had visited her house for
5-6 times within a span of six months, the trial court observed that it was
an indication that the relationship of husband and wife was cordial and
with mutual love towards each other. Even, PW-2 and PW-3 had admitted
these facts in their cross-examination. The trial court further observed
that when the giving of dowry on the demand of the accused persons was not
established, it was not possible to believe that they were demanding the
alleged remaining dowry amount of Rs.3,000/- and giving pinpricks to her
for not fulfilling the said demand. According to the trial court, it was
significant that PW-3 who is the natural mother of the deceased did not
even state that Laxmi was being harassed for not bringing the balance dowry
amount. She had rather admitted that her daughter was happy for the first
three months and also accepted in her cross-examination that she had not
told the Police about living peaceful life only for three months. She also
admitted that she never told the Police about giving of dowry of Rs.2,000/-
and demand of balance amount which remained unpaid.
The trial court
analysed the testimony of PW-4, PW-5 and PW-6 on this aspect and pointed
out that the allegation of demand of dowry could not be proved from their
testimony either. The discussion on this aspect is concluded in the
following manner:
“(27) After the marriage during the period of 6 months it was not
mentioned in the complaint that the accused have assaulted Lakshmamma
physically and thrown out of the house nor stated the same before the
court. Neither the villagers wherein the accused are residing nor their
neighbors have given any evidence before the court about pinpricks meted
out to her. As against which D.W.1 Ramakrishnappa, aged 56 years, said
that, from the beginning till the death of Lakshamma the accused persons
looked after here well and not given any pinpricks to her, he further told
that on that day she came to well for washing the cloth and due to slip of
her leg she fell in the well and he came to know about the same. In his
cross-examination no other statement was given on behalf of prosecution.
(28) It is an arranged marriage in the presence of elders, in the event of
giving any pinpricks about dowry harassment, this matter would have been
brought to the notice of elders and convene a panchayath. But it never
revealed anywhere about conveying the panchayath. Hence it is hereby seen
that the accused or her husband had not given pinpricks either in the
matter of dowry or in any other matter. It cannot be said that she has
committed for the said reason. Hence I answer both the questions
Negatively.”
13. The aforesaid was the raison d'etre which led to the acquittal of the
appellant by the trial court.
The High Court has, however, given a
different glance to the entire matter. According to it, the aforesaid
approach of the trial court was erroneous in law as well as in appreciation
of the evidence on record. After taking note of the fact that Laxmi died
within six months of her marriage and it was an unnatural death, the High
Court has lamented on the conduct of the appellant and has arrived at the
conclusion that it was the appellant who was responsible for the death of
Laxmi and found him guilty of offence under Section 304-B of IPC. The High
Court has also accepted the version of the prosecution that Laxmi was
harassed and humiliated on account of non fulfillment of the demand of
dowry made by the appellant and, therefore, presumption under Section 113-B
of the Evidence Act was attracted. As per the High Court, the appellant
has not been able to lead any satisfactory evidence to dislodge this
presumption. The infirmities found in the depositions of PW-1 to PW-5 by
the trial court have been brushed aside and discarded by the High Court as
irrelevant and perverse. The High Court held that it would be impossible
to expect any party to the marriage talks to keep a record of demand and
payment of dowry as if it was a commercial transaction and, therefore, the
absence of documentary evidence in this regard should not have weighed with
the trial court. The High Court also observed that there was no admission
made by PW-1 that even without the alleged demand of dowry, he would have
given customary articles like clothes and ornaments and no such customary
practice was indicated. The finding of the trial court that the case of
the prosecution regarding demand and payment of dowry was not proved in the
absence of anyone from the village of the accused is also brushed aside by
observing that such a demand and payment would not be made public inasmuch
as such talks would be within closed doors and would be within the
knowledge of the parties to the marriage and kith and kin of the bride and
bridegroom. Further, apart from PW-1 to PW-3, PW-4, who is the neighbour
of PW-1 and PW-2, supported the version of the demand of dowry and the
harassment of Laxmi at the hands of the appellant and his family members.
14. Due to the aforesaid divergent and conflicting outcome of the
proceedings in the two courts below, we have gone through the testimony of
these witnesses. After examining the record and going through the reasons
recorded by both the courts below, we are inclined to accept conclusions
reached by the trial court as
we are of the view that the High Court
committed grave error in ignoring and glossing over various contradictions
in the testimonies of PW-1 to PW-5 which were pointed out by the trial
court.
15.
At the outset, we may record that some of the comments of the High
Court deprecating few of the reasons recorded by the trial court in support
of its findings are fully justified. The High Court is correct in its
observation that it was not appropriate for the trial court to expect
documentary evidence regarding acceptance of dowry as generally such a
record would not be kept since it was not a commercial transaction. The
High Court also appears to be justified in its observation that non
production of the villagers to prove the dowry demand would not be fatal.
We have eschewed and discarded these reasons assigned by the trial court.
At the same time, it is necessary to find out as to whether the evidence of
these witnesses (PW-1 to PW-3) is worthy of credence, on this aspect. We
find that there are certain very glaring and weighty factors which compel
us to disbelieve the prosecution version on this account.
16. In the present case, it would be prudent to start the discussion by
taking note of the conduct of the maternal uncle (PW-1), his wife (PW-2)
and natural mother (PW-3) of the deceased. They accept that information
about the death of Laxmi was received by them between 10.00 a.m. to 12.30
p.m. on 22.05.1993. They also accept the fact that they had reached the
place of occurrence. Body of the deceased was cremated on 22.05.1993.
There is some dispute as to whether these persons were present at the time
of cremation. According to them, deceased was cremated before they reached
the village of the appellant. To falsify this position taken by the
prosecution through these witnesses, the learned counsel for the appellant
had taken us to the evidence of PW-8 who had drawn Mahazar near the well.
This Mahazar coupled with the statement of PW-8 is a very significant piece
of evidence which has considerable effect in denting the creditworthiness
of the testimony of these witnesses. As per PW-8 himself, when he had
reached the spot, it was the mother of the deceased who pointed out the
place where the dead body was lying. This assertion amply demonstrates
that mother of the deceased had known where the body was kept and she along
with PW-1 and PW-2 had reached the place of occurrence before the dead body
was cremated. Relying upon this evidence,
the trial court has disbelieved
the story of the prosecution that Laxmi was cremated even before these
persons had reached the village of the appellant. Strangely, the High
Court has discarded Mahazar drawn by PW-8 by giving a spacious reason viz.
it was not an exhibited document before the Court, little realising that
this was the document produced by the prosecution itself and even without
formal proof thereto by the prosecution, it was always open for the defence
to seek reliance on such an evidence to falsify the prosecution version.
Moreover, PW-8 has specifically referred to this document in his evidence.
It is also a matter of record that a specific suggestion was made to PW-3
(mother of the deceased)
in the cross-examination to the effect that it is
she who had pointed out the place of the dead body lying near the well to
the Police personnel. The version of PW-1 to PW-3 that they reached the
village of the appellant after Laxmi had already been cremated, does not
inspire confidence and appears to be mendacious.
17. In the aforesaid circumstances, we have to proceed on the basis that
PW-1 to PW-3, on coming to know of the death of Laxmi, had reached the
village of the appellant when the dead body was still lying near the well
from where it was extracted.
If the body was cremated thereafter, and not
buried, it can clearly be inferred that same was done with consent, express
or implied, of the complainant namely maternal uncle and the mother of the
deceased. It can also be inferred that parties had decided at that time
that matter be not reported to the Police and body be cremated. To say it
otherwise, by accepting the version of the prosecution, would lead to some
absurdities. It would mean that when maternal uncle or aunt as well as
mother of Laxmi were present and had seen the dead body lying at the spot,
they objected to the body being cremated. They also wanted Police to be
informed. If it was so, why they did not put up any resistance? We have to
keep in mind that these family members of Laxmi have come out with the
allegation that Laxmi was harassed as well as mentally and physically
tortured because of non fulfillment of dowry demand. In such a scenario,
they would not have remained silent and mute spectators to the events that
followed even when they were not to their liking. Not only this conduct
belies their version, another weighty factor is that the complainant
remained silent about these happenings for a period of 4 days and lodged
the report with the Police only on 26.05.1993 when they came out with the
allegations of demand of dowry and harassment.
18. We are conscious of the fact that in such cases, sometimes there may
be delay in lodging the FIR for various valid reasons. However, it is
important that those reasons come on record. There is no explanation worth
the name given by the complainant as to why the complainant maintained
stoic silence. In this backdrop, the testimony of these witnesses alleging
dowry demand has to be tested more stringently and with some caution. On
that touchstone, when we analyse the statements, we find the contradictions
therein, as pointed out by the learned trial court, become very appealing
and meaningful.
19. With the aforesaid observations, we proceed to discuss the first
specific charge under Section 498-A of the IPC relating to the demand of
dowry. We have already stated the reasons which prevailed with the trial
court in not accepting the prosecution version of demand of dowry by the
appellant herein, as well as the reasons which influenced the High Court to
take a contrary view. After going through the evidence of PW-1 to PW-3 as
well as PW-4 to PW-6, we find that the trial court correctly appreciated
and analysed the evidence of these witnesses. In the first instance, it
needs to be recorded with due emphasis that none of the witnesses had made
any specific allegation for the demand of the dowry in so far as the
appellant is concerned. The prosecution also could not establish that any
dowry articles were given at the time of marriage. On the contrary, it is
accepted by these witnesses that the appellant had asked for the hand of
Laxmi because of her beauty by which he was attracted. We are not
suggesting that this reason, by itself, is sufficient to rule out the
possibility of demand of dowry. At the same time, this circumstance when
seen with all other attendant factors surfacing on the record of this case,
makes it somewhat difficult to swallow the prosecution version that there
would be a demand of dowry as a precondition for marriage. Other attendant
circumstances also negate the theory of demand. PW-1 and PW-3 have
themselves admitted that it is the accused persons who had incurred all the
marriage expenses and also admitted that marriage was performed at the
residence of the appellant. This would be because of the reason, as
pleaded by the appellant in support of which the appellant led evidence as
well, that the family members of Laxmi were poor persons and had not
sufficient means to even incur the expenditure on the wedding of Laxmi.
Even in respect of alleged demand of dowry, PW-1 Mariyappa stated that the
so-called demand was by the father of the appellant and did not at all
accuse the appellant in this behalf. To the same effect is the testimony
of PW-2.
20. When the demand of dowry and giving of dowry at the time of marriage
has not been proved, further version of the prosecution witnesses that
there was a demand for payment of remaining amount of Rs.3,000/- and
harassment of Laxmi on that account, also becomes doubtful. It has come on
record, and can be clearly discerned from the reading of the statements of
the material witnesses viz. the family members of Laxmi, that during this
short period of 6 months of the marriage, she had visited her matrimonial
house 5-6 times. Pertinently, her visits were alongwith her husband. The
couple had even stayed in the parental house of Laxmi for some days on few
occasions. This indicates that the relationship of husband and wife was
cordial. In this backdrop, evidence of PW-3, mother of the deceased Laxmi,
assumes great significance, who has not even stated that her daughter was
harassed for not bringing the alleged balance dowry amount. On the
contrary, she accepted that her daughter was happy for first 3 months. So
much so in her statement to the Police, she had not told the Police about
living peaceful life only for 3 months. She did not tell the Police about
giving of dowry of Rs.2,000/- and demand of balance amount coupled with
harassment because of death.
21. In addition to the aforesaid material aspects which are highlighted
from the evidence of the prosecution witnesses, most important feature
which is accepted by these witnesses is that in so far as the appellant
individually is concerned, there was no demand of dowry by him. In the
absence of any particular allegation against the appellant in this behalf,
would be improper to convict the appellant under Section 498-A IPC.
22. We find that the High Court has ignored the aforesaid features which
are elaborately discussed in the judgment of the trial court, culling from
the depositions of the prosecution witnesses. The High Court, while
accepting the version of the prosecution on this aspect, namely, Laxmi was
harassed and humiliated because of demand of dowry made by the appellant,
has embarked on the discussion which is general and non-specific in
nature. Even if there is little evidence, that is too infinitesimal to
convict the appellant, more so when that is not only self contradictory but
also surrounded by other weighty circumstances that go in favour of the
accused. Once we find that the demand of dowry and harassment on that
account is not proved beyond reasonable doubt, question of invocation of
Section 113 Evidence Act would not arise. We feel that the High Court has
been totally influenced by the fact that Laxmi had died within 6 months of
her marriage and it was an unnatural death.
23. No doubt, it was so. But only for this reason, the High Court could
not have convicted the appellant by finding him guilty of offence under
Section 304-B of IPC as well by primarily relying upon the provisions of
Section 113-B of the Evidence Act.
24. We are conscious of the fact that it was an unfortunate demise of
Laxmi who died within 6 months of the marriage. However, at the same time,
whether her death was accidental as claimed by the defence or it was a
suicide committed by Laxmi, is not clearly established. Had the
allegations of demand of dowry and harassment of Laxmi were established
thereby making it an offence under Section 498-A of IPC, things would not
have been different. However, when we do not find dowry demand and
harassment of Laxmi to be established, the inferences drawn by the High
Court taking the aid of Section 113-B of the Evidence Act also deserve to
be discarded. Section 113-B of the Evidence Act reads as under:
“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 had 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.”
A plain reading of the aforesaid provision would demonstrate that to
attract the presumption as to dowry death stated in the aforesaid
provision, it is necessary to show that soon before her death, she had been
subjected by such persons to cruelty or harassment for, or in connection
with, any demand for dowry. When this essential ingredient has not been
established in the present case, the question of drawing any presumption by
invoking of the aforesaid provision would not arise.
25. In this backdrop, we revert back to the conduct of the mother of
Laxmi, as well as her maternal uncle and his wife (i.e. PW-1 and PW-2),
which becomes very crucial. As per our discussion above, it is clear that
they had reached the place of death, after receiving the information, much
before Laxmi was cremated. Once that is accepted, as it is established
from record and particularly Mahazar drawn by PW-8, further events happen
thereafter are to be analysed keeping in mind this fundamental aspect. In
fact, the entire time of thinking of the High Court proceeds on the premise
that Laxmi was cremated even before her parents and uncle/aunt reached the
appellant's village. Entire edifice based on thereupon crumbles once this
finding is found to be erroneous. As we are of the opinion that the
finding of the trial court is correct thay they had reached the village
well in time and body was cremated in their presence, further sequence of
events has to seen in that hue. It was told by the accused persons that
Laxmi had died accidentally falling into the well with the active or
passive consent of PW-1 to PW-3, Laxmi was cremated. Her last rites were
performed in which these persons participated. They accepted the version
of the accused persons, at that time. It is only after a period of 3 days
that the complaint is filed with the allegations of demand of dowry by the
accused persons; harassment of Laxmi on account of alleged non-payment of
the balance dowry; and her unnatural death. We state at the cost of the
repetition that once it is established that the body of Laxmi was cremated
in the presence of these persons, it lends credence to the defence version
that there was an acceptance by them at that time that Laxmi had died due
to accidental slip in the well and all of them decided to cremate Laxmi and
not to report the matter to the Police. Otherwise it would baffle any
right minded person as to why they did not inform the Police or did not put
up any resistance.
26. Let us test the veracity of the version of these persons from another
angle. If there was harassment and cruel treatment given to Laxmi by her
in-laws, on reaching the place of the accused persons after receiving the
unnatural demise of Laxmi, they would have perceived the same to have
happen in mysterious circumstances. In such a situation, they would not
have kept quite and inform the Police immediately. They would have also
insisted on the postmortem of the body of Laxmi to find out the cause of
death. That would be the natural reaction of any such persons who believe
that their daughter had faced harassment on account of non-fulfillment of
the dowry demand and it would be fresh in their mind, if their version is
to be believed that just 5 days before the death, Laxmi had complained of
the cruel behaviour of her in-laws. No such thing happened, on the
contrary, body of Laxmi was cremated in their presence and after performing
the last rites, they turned back to their home quietly. It is 4 days
thereafter that they thought of lodging the complaint to the Police.
27. In the case of
State of Andhra Pradesh v. M. Madhusudhan Rao, 2008
(14) SCALE 118, in similar circumstances, the Court termed such a delay as
'embellishment and exaggeration' though in that case, it was an abnormal
delay of 1 month. The principle stated therein was equally applied herein
as well which would be clear from the following observation herein:
“18. Having gone through the depositions of PW-1 and PW-3, to which
out attention was invited by learned Counsel for the State, we are
convinced that in the light of the overall evidence, analysed by the High
Court, the order of acquittal of the respondent is well merited and does
not call for interference, particularly when the First Information Report
was lodged by the complainant more than one month after the alleged
incident of forcible poisoning. Time and again, the object and importance
of prompt lodging of the First Information Report has been highlighted.
Delay in lodging the First Information Report, more often than not, results
in embellishment and exaggeration, which is a creature of an afterthought.
A delayed report not only gets bereft of the advantage of spontaneity, the
danger of the introduction of coloured version, exaggerated account of the
incident or a concocted story as a result of deliberations and
consultations, also creeps in, casting a serious doubt on its veracity.
Therefore, it is essential that the delay in lodging the report should be
satisfactorily explained.
19. In the present case, as noted supra, First Information Report in
regard to the alleged occurrence on 19th April, 1996 was lodged on 22nd
May, 1996. Admittedly after her discharge from the hospital on 22nd April,
1996, the complainant went to her parents' house and resided there. In her
testimony, the complainant has deposed that since no one from the family of
the accused came to enquire about her welfare, she decided to lodge the
First Information Report. No explanation worth the name for delay in
filing the complaint with the police has come on record. We are of the
opinion that this circumstance raises considerable doubt regarding the
genuineness of the complaint and the veracity of the evidence of the
complainant (PW-1) and her father (PW-3), rendering it unsafe to base the
conviction of the respondent upon it. Resultantly, when the substratum of
the evidence given by the complainant (PW-1) is found to be unreliable, the
prosecution case has to be rejected in its entirety.
28. We may hasten to add here that many times in such type of cases,
there can be reasons for keeping quite at the given time and not reporting
the matter immediately. Therefore, we are conscious of the legal position
that delay per se may not render prosecution case doubtful as there may be
various reasons for lodging the FIR with some delay
(see Sahebrao and
another v. State of Maharashtra, (2006) 9 SCC 794. Thus, there is no hard
and fast rule that any delay in lodging the FIR would automatically render
the prosecution case doubtful. However, what is emphasised is that if that
was so, it was necessary for the prosecution to at least come forward with
the explanation as to why the complainant kept quite and why he did not
report the matter to the Police immediately. No such explanation is coming
forward in the present case. Moreover, in the instant case, the delay is
seen as fatal when examined in juxtaposition with other material that has
come on record and discussed above, which shakes the veracity of
prosecution case, bringing it within the four corners of doubtful
prosecution story.
29. We find that when going by all these considerations, the trial court
gave benefit of doubt to the appellant and acquitted him, in the case of
reversal of such a verdict of acquittal, the High Court should have
specifically dealt with the aforesaid circumstances weighing in favour of
the appellant and should have given suitable justification for overturning
the verdict of acquittal. The approach of the High Court, as the appellate
court, while dealing with the case of acquittal is stated by this Court in
the case of
Harbans Singh v. State of Punjab, (1962) Supp. 1 SCR 104, in
the following manner:
“8. The question as regards the correct principles to be applied by a
Court hearing an appeal against acquittal of a person has engaged the
attention of this Court from the very beginning. In many cases, especially
the earlier ones, the Court has in laying down such principles emphasised
the necessity of interference with an order of acquittal being based only
on “compelling and substantial reasons” and has expressed the view that
unless such reasons are present an Appeal Court should not interfere with
an order of acquittal.
(Vide Suraj Pal Singh v. The State (1952) SCR 194;
Ajmer Singh v. State of Punjab MANU/SC/0042/1952 : 1953CriLJ 521; Puran v.
State of Punjab MANU/SC/0090/1952 : AIR 1953 SC 459). The use of the words
“compelling reasons” embarrassed some of the High Courts in exercising
their jurisdiction in appeals against acquittals and difficulties
occasionally arose as to what this Court had meant by the words “compelling
reasons”. In later years the Court has often avoided emphasis on
“compelling reasons” but nonetheless adhered to the view expressed earlier
that before interfering in appeal with an order of acquittal a Court must
examine not only questions of law and fact in all their aspects but must
also closely and carefully examine the reasons which impelled the lower
courts to acquit the accused and should interfere only if satisfied after
such examination that the conclusion reached by the lower court that the
guilt of the person has not been proved is unreasonable.
(Vide Chinta v.
The State of Madhya Pradesh (Criminal Appeal No. 178 of 1959 decided on 18-
11-60); Ashrafkha Haibatkha Pathan v. The State of Bombay (Criminal Appeal
No. 38 of 1960 decided on 14-12-60).
9. It is clear that it emphasising in many cases the necessity of
“compelling reasons” to justify an interference with an order of acquittal
the Court did not in any way try to curtail the power bestowed on appellate
courts under s. 423 of the Code of Criminal Procedure when hearing appeals
against acquittal; but conscious of the intense dislike in our
jurisprudence of the conviction of innocent persons and of the facts that
in many systems of jurisprudence the law does not provide at all for any
appeal against an order of acquittal the Court was anxious to impress on
the appellate courts the importance of bestowing special care in the
sifting of evidence in appeal against acquittals. As has already been
pointed out less emphasis is being given in the more recent pronouncements
of this Court on “compelling reasons”. But, on close analysis, it is clear
that the principles laid down by the Court in this matter have remained the
same. What may be called the golden thread running through all these
decisions is the rule that in deciding appeals against acquittal the Court
of Appeal must examine the evidence with particular care, must examine also
the reasons on which the order of acquittal was based and should interfere
with the order only when satisfied that the view taken by the acquitting
Judge is clearly unreasonable. Once the appellate court comes to the
conclusion that the view taken by the lower court is clearly an
unreasonable one that itself is a “compelling reason” for interference.
For, it is a court's duty to convict a guilty person when the guilt is
established beyond reasonable doubt, no less than it is its duty to acquit
the accused when such guilt is not so established.”
30. This very principle of law was formulated by the Court in M.
Madhusudhan Rao (supra) in the following manner:
“13. There is no embargo on the appellate court to review, reappreciate or
reconsider the evidence upon which the order of acquittal is founded. Yet,
generally, the order of acquittal is not interfered with because the
presumption of innocence, which is otherwise available to an accused under
the fundamental principles of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a court of
law, gets further reinforced and strengthened by his acquittal. It is also
trite that if two views are possible on the evidence adduced in the case
and the one favourable to the accused has been taken by the trial court, it
should not be disturbed. Nevertheless, where the approach of the lower
court in considering the evidence in the case is vitiated by some manifest
illegality or the conclusion recorded by the court below is such which by
some manifest illegality or the conclusion recorded by the court below is
such which could not have been possibly arrived at by any court acting
reasonably and judiciously and is, therefore, liable to the characterised
as perverse, then, to prevent miscarriage of justice, the appellate court
is obliged to interfere.
14. All these principles have been succinctly culled out by one of us
(C.K. Thakker, J.)
in Chandrappa and Ors. v. State of Karnataka, (2007) 4
SCC 415.”
31. In Chandrappa (supra), which was followed in the aforesaid case, the
Court had observed:
“44. In our view, if in the light of above circumstances, the trial court
felt that the accused could get benefit of doubt, the said view cannot be
held to be illegal, improper or contrary to law. Hence, even though we are
of the opinion that in an appeal against acquittal, powers of the appellate
court are as wide as that of the trial court and it can review,
reappreciate and reconsider the entire evidence brought on record by the
parties and can come to its own conclusion on fact as well as on law, in
the present case, the view taken by the trial court for acquitting the
accused was possible and plausible. On the basis of evidence, therefore,
at the most, it can be said that the other view was equally possible. But
it is well established that if two views are possible on the basis of
evidence on record and one favourable to the accused has been taken by the
trial court, it ought not to be disturbed by the appellate court. In this
case, a possible view on the evidence of prosecution had been taken by the
trial court which ought not to have been disturbed by the appellate court.
The decision of the appellate court (the High Court), therefore, is liable
to be set aside.”
32.
We thus, find that there were no solid and weighty reasons to reverse
the verdict of acquittal and to convict the appellant under the given
circumstances. Accordingly, we allow this appeal and set aside the
judgment of the High Court, holding that the appellant is not guilty of the
charges foisted against him.
33. During the pendency of this appeal, the appellant was enlarged on
bail vide order dated 31.03.2014. The bail bonds and sureties given by the
appellant are hereby discharged.
…......................................J.
(J. Chelameswar)
…......................................J.
(A.K. Sikri)
New Delhi;
August 7, 2014.
