HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 11 of 2012 Appellant :- [ENTITY] Respondent :- [ENTITY] Counsel for Appellant :- Smt. [ENTITY],[ENTITY] Counsel for Respondent :- Govt. Advocate And Case :- CRIMINAL APPEAL No. - 10 of 2012 Appellant :- Smt. [ENTITY] Respondent :- [ENTITY] Counsel for Appellant :- Smt. [ENTITY] Counsel for Respondent :- Govt. Advocate Hon'ble [ENTITY],J.
1. Both the aforesaid appeals arise out of same sessions trial and as such, both the appeals are being disposed of by a common judgment.
2. Under challenge in both the appeals is the judgment and order dated 29.10.2011 passed by the learned Additional Sessions Judge, Court No. 35, Barabanki in [CASE NUMBER] arising out of [CASE NUMBER], Police Station Loni Katara, District Barabanki whereby the appellants were convicted for the offence under Sections 304-[SECTION] [ACT] and were sentenced to undergo rigorous imprisonment for a period of ten years. They were further convicted for the offence under [SECTION] of the [ACT] and were sentenced to undergo rigorous imprisonment for a period of six month and also with fine of Rs. 2,500/- each with default stipulation of one and half months rigorous imprisonment. Both the sentences were directed to run concurrently.
3. In brief the case of the prosecution was that deceased [ENTITY] was married with appellant [ENTITY] about five years prior of her death. Appellant [ENTITY] and his mother [ENTITY], after the marriage, were pressurizing the complainant to give a motorcycle in dowry. The daughter of the complainant had told them that the financial condition of her father is no so well as to give a motorcycle. In order to pressurize this demand of dowry, the victim was frequently harassed and treated with cruelty. On 10.9.2010 at about 7:00 a.m., the complainant received an information on phone that the condition of her daughter [ENTITY] is not well. When the complainant side came to the matrimonial home of the deceased, then they found that the deceased was lying dead and there was bleeding from her mouth and there was some spot on her neck. When they enquired then they were told that the victim had fallen on a "thali". The F.I.R. of this case was lodged on the same day at 13:30 hours. The distance from the police station to the place of occurrence was only one and half kilometer. After the aforesaid information, the inquest proceedings were conducted and the deceased was sent for postmortem. The postmortem was conducted by two doctors, namely, Dr. [ENTITY] and Dr. [ENTITY]. The postmortem of the deceased was conducted on 11.9.2010 at 2:45 p.m. and four injuries were found on the body of the deceased and injuries were also found on the neck. Hyde bone and other bones under the injury of neck were found fractured. In the opinion of the doctor, the cause of death was asphyxia as a result of ante-mortem strangulation. The Investigating Officer inspected the place of occurrence and prepared its site plan.
4. After completing the investigation, charge sheet was filed against the appellants.
5. The case of the defence was that they are innocent and the deceased had died because she slipped from the ladder and fell on the utensils, which were kept on the floor because of which she died. The case of the [ENTITY] was that after the family partition, she was living separtely from the co-accused.
6. In order to prove its case, the prosecution has examined, PW-1 complainant [ENTITY], father of the deceased, PW-2 Dr. [ENTITY], who has given evidence that he had conducted the postmortem on the body of the deceased. PW-3 Constable [ENTITY], who has prepared chik report and G.D. of this case. PW-4 [ENTITY], Naib Tehsildar, who has prepared the inquest report. PW-5 Circle Officer [ENTITY], who has investigated this case. PW-6 [ENTITY], brother of the deceased.
7. No evidence in defence was adduced on behalf of the appellants.
8. After appreciating the evidence on record, the trial court has convicted the appellants as above, hence the instant criminal appeals.
9. Submission of learned counsel for the appellants is that in this case there was absolutely no evidence that soon before her death, the victim was treated with cruelty in connection with the demand of dowry. It is further submitted that Dr. [ENTITY] and Dr. [ENTITY] had conducted postmortem on the body of the deceased but none of these doctors have been examined to prove the postmortem report and Dr. [ENTITY] has been examined, to prove the postmortem report. It has further been submitted that in the inquest proceedings, there is nothing to show that there was any demand of dowry and the victim was done to death in connection with the demand of dowry.
10. Learned A.G.A. has submitted that in this case there was ample evidence of PW-1 and PW-6, who happens to be the father and brother of the deceased that there was demand of dowry and in connection therewith she was subjected to cruelty. It has further been submitted that Dr. [ENTITY] has been examined in court to prove the postmortem report. It is only a mistake that the reader of the court has written the name as [ENTITY] in place of [ENTITY] but the signature of Dr. [ENTITY] is identical with the signature, which have been put by him on the postmortem report. It has further been submitted that the officer conducting the inquest proceedings was not supposed to investigate the case and the object of the inquest proceedings is absolutely limited. Therefore, the judgment of the trial court needs no interference as the victim has been done to death by strangulation, which cannot be caused by a fall on the utensils.
11. It is a case of dowry death. Before proceeding further with the case, it is pertinent to mention the necessary ingredients of [SECTION] and also presumption of [SECTION] of the [ACT]. In the case of [PRECEDENT] Hon'ble the Apex Court has described the ingredients of [SECTION] [ACT] in paragraph no. 8, which reads as under:-
"8. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under [SECTION] In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:
(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(b) such death should have occurred within 7 years for her marriage;
(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(d) such cruelty or harassment should be for or in connection with the demand of dowry; and
(e) to such cruelty or harassment the deceased should have been subjected to soon before her death."
In the case of [PRECEDENT], Hon'ble the Apex Court in paragraph no. 10 has observed as under:-
"10. A legal fiction has been created in the said provision to the effect that in the event it is established that soon before the death, the deceased was subjected to cruelty or harassment by her husband or any of his relative; for or in connection with any demand of dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. The Parliament has also inserted Section of the [ACT] by [ACT] with effect from 1.5.1986 which reads as under :
"113.B- 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.
Explanation.- For the purposes of this section, "dowry death", shall have the same meaning as in [SECTION] of the [ACT]."
11. From a conjoint reading of [SECTION] of the [ACT] and [SECTION] of the [ACT], it will be apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in [SECTION] of the [ACT].
The ingredients of the aforementioned provisions are :
(1) That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal; (2) Such death occurs within 7 years from the date of her marriage (3) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) Such cruelty or harassment should be for or in connection with demand of dowry; and (5) is established that such cruelty and harassment was made soon before her death.
12. There is no dispute to the fact situation that the deceased died an unnatural death, which is established by her postmortem report and the fact that the victim died only after five years has also not been challenged. So she died an unnatural death within seven years of her marriage. It is nowhere the case of the defence that the marriage was solemnized more than seven years before her death. So the point to be considered is whether there was any demand of dowry and she was ill treated in connection with the demand of dowry and whether she was treated with cruelty soon before her death by the accused persons.
13. Appellant [ENTITY] happens to be the husband of the deceased and [ENTITY] is the mother in law of the deceased. Though [ENTITY] had taken a defence that she was living separately but there is absolutely no evidence on record to support this submission. There is no dispute to the fact situation that the deceased died inside the house of the appellants. Therefore, [SECTION] of the [ACT] shall come into play. The victim died an unnatural death. The distance of police station from the place of occurrence was only one and a half kilometer but no information of this incident was given by any of the appellant to the police regarding such an unnatural death. Nor any effort was made to inform the police.
14. The first point to be considered is the effect of contradiction in the inquest proceedings. PW-4 [ENTITY], Naib Tehsildar has conducted inquest proceedings. In his cross-examination he has stated that during inquest proceedings, none of the witnesses or any person, who was present there told him that death has been caused in connection with the demand of dowry and learned counsel for the appellants has laid great stress on this statement.
15. Law is settled on the point that every document has to be considered keeping in view the purpose with which it is prepared. Hon'ble the Apex Court in the case of [PRECEDENT] has observed in paragraph no. 4 as under:-
"4. Preparation of an inquest report is a part of the investigtion within the meaning of the [ACT] and neither the inquest report nor the postmortem report can be termed to be a basic evidence or substantive evidence and discrepancy occurring therein can neither be termed to be fatal nor even a suspicious circumstance, which would warrant a benefit to the accused and the resultant dismissal of the prosecution case. "
16. The provision for holding of inquest is contained in [SECTION] [ACT] Heading of Section is, 'Police to enquire and report on suicide etc.' Sub-Sections (1) and (2) thereof read as under:-
174. Police to enquire and report on suicide, etc. (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate.
17. The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation under [SECTION] [ACT] is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal and homicidal or caused by animal. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined under [SECTION] [ACT] The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings under [SECTION] [ACT] Neither in practice nor in law it is necessary for the person holding the inquest to mention all these details.
18. In [PRECEDENT], it was held by the Hon'ble Apex Court that the proceedings under [SECTION] [ACT] have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under [SECTION]. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court.
19. In [PRECEDENT], the contention raised that non-mention of a person's name in the inquest report would show that he was not a eye-witness of the incident was repelled on the ground that an inquest under [SECTION] [ACT] is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in [PRECEDENT] that the non-mention of name of an eye-witness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence, as the inquest report is not the statement of a person wherein all the names (accused and also the eye-witnesses) ought to have been mentioned.
20. The view taken in [PRECEDENT] (supra) was approved by a three-judge Bench in [PRECEDENT] and it was held that the testimony of eye-witnesses could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and purpose of inquest held under [SECTION] [ACT] was also explained in the case of [PRECEDENT].
21. Thus it is well settled by a catena of decisions of the Hon'ble Apex Court that the purpose of holding an inquest is very limited, viz., to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eyewitnesses.
22. In view of the aforesaid legal position, any discrepancy in the inquest report, would not adversely affect the case of the prosecution.
23. Now coming to the point whether there was any evidence on record to show that there was any demand of dowry or not. PW-1 and PW-6, who happens to be the father and brother of the deceased respectively, have categorically stated that there was demand of dowry and the deceased was ill treated in connection with the demand of dowry. This demand started after the marriage and continued throughout.
24. Learned counsel for the appellants has drawn the attention of this Court towards certain contradictions and has stated that these contradictions would result in disbelieving their evidence but this Court is not the least impressed with the said argument. In the case of dowry death, demand of dowry is made not only at a particular time but it is made during the entire period after the marriage.
25. In the instant case, the period of five years had elapsed after the marriage so the demand of dowry, at different point of time in a period of five years was made. During such a long period of five years, the victim must have narrated the torture which she was facing in connection with the demand of dowry at different points of time. Therefore the witnesses have reproduced it as their memory served them. Such cases are not like a normal crime, which is committed in the presence of a witness within a short span of time because such normal offences creates a deep dent on the mental canvass of the person witnessing it. But where any conversation with the deceased, as in the case in hand, is to be recollected and reproduced by the witness, then every witness would depose the same as he recollects it and will try to reproduce him in his own words. Every person has a different capacity to explain any circumstance in his own words and this capacity differs from man to man. So minor contradictions on this point are bound to occur.
26. Law is settled on the point that every contradiction is not fatal to the prosecution but only those contradictions are fatal which goes to the root of the case. Reference may be made to the pronouncement of Hon'ble the Apex Court in the case of [PRECEDENT]. In the aforesaid judgment Hon'ble the Apex Court has quoted its earlier judgment in the case of [PRECEDENT] and has held in paragraph no. 42 of the said judgment, which reads as under:-
"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person."
27. So such minor contradictions, in the considered opinion of this Court, do not go to the root of the case or adversely affect the prosecution case. Now the sole point to be considered is whether there was any evidence that soon before her death, she was subjected to cruelty. Words "soon before her death" has nowhere been defined in the statute book.
28. Law is settled on this point that no straitjacket formulae can be framed to bring a case within the purview of "soon before her death". It depends upon the facts of each case. Hon'ble the Apex Court in the case of [PRECEDENT] considered this aspect of the matter and has observed in paragraph no. 16, which reads as under:-
16. The words "soon before" found in [SECTION] [ACT] have come up for consideration before this Court in large number of cases. This Court has consistently held that it is neither possible nor desirable to lay down any straitjacket formula to determine what would constitute "soon before" in the context of [SECTION] [ACT]. It all depends on the facts and circumstances of the case. Learned counsel for the appellant relied upon a decision of this Court rendered by two Learned Judges reported in [ENTITY] v. State of Haryana MANU/SC/0438/1997 and submitted that as in that case, so in the present case, there was no evidence to suggest that after the deceased went to her matrimonial home, she had been subjected to cruelty and harassment before her death. The facts of [ENTITY]'s case are clearly distinguishable and they have been so distinguished in the case of [PRECEDENT] a Bench of 3 Learned Judges of this Court. This Court observed :-
"It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in [SECTION] of the [ACT]. These words Would imply that the internal should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It (does not however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough".
(emphasis supplied) In the case of [PRECEDENT], Hon'ble the Apex Court has again on an occasion to consider this aspect and has observed in paragraph nos. 13 and 14 as under:-
13. The prosecution, therefore, has been able to show that soon before her death the deceased has been subjected by the appellant to taunt in connection with demand for dowry. This Court has held in [PRECEDENT] that a girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride and such acts of taunting by the husband would constitute cruelty both within the meaning of [SECTION] and [SECTION] [ACT].
14. Once it is established by the prosecution that soon before her death the deceased was subjected by the appellant to harassment or cruelty in connection with demand for dowry, the Court has to presume that the appellant has committed the offence under [SECTION] [ACT]. This will be clear from [SECTION] of the [ACT] which states that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. The prosecution in this case had led sufficient evidence before the Court to raise a presumption that the appellant had caused the dowry death of the deceased and it was, therefore, for the appellant to rebut this presumption."
In the case of [PRECEDENT], Hon'ble the Apex Court has observed that "The expression "soon before her death" used in the substantive [SECTION] [ACT] and [SECTION] of the [ACT] is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in [SECTION] of the [ACT] is relevant. It lays down that a court may presume that a man who is in the possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession". The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
29. Now coming to the instant case, PW-1, in his evidence, has narrated the sequence how the victim was treated with cruelty and in order to pressurize the demand of motorcycle, they had declined to send the deceased to her parental home while PW-6 [ENTITY] had gone for her Vida. The presence of injuries on the body of the deceased also substantiate that soon before her death, she was treated with cruelty. The cause of death was asphyxia as a result of ante-mortem strangulation. In this case the victim was strangulated which by itself shows that soon before her death she was treated with cruelty. It is not a case of suicide. Perusal of evidence shows that demand of dowry and consequential ill treatment started just after marriage and it persisted till last.
30. Learned counsel for the appellants has drawn the attention of this Court towards the statement of PW-2, whose name has wrongly been mentioned as Dr. [ENTITY]. Virtually he is Dr. [ENTITY] who himself had conducted the postmortem. Perusal of his signature, by naked eye, suggest that he was the person, who had prepared the postmortem report. He has stated the injuries, which he noted during postmortem of the deceased. In his cross-examination, he has stated that abrasions and contusions may be simple if underlying bone or cartilage are not fractured. He has stated that if a person falls from a pretty good height and if he receives any injury on his neck then the windpipe may break. He has also stated that if part of omits are found in the windpipe then the same may cause choking and cause asphyxia. But learned defence counsel could not even dare to put a suggestion to the witness that by a simple fall from the ladder on the utensils, such death could have been caused. So hypothetical questions were put to the witness and no specific defence version was put to the doctor and the doctor has specifically stated that cause of death was asphyxia, which was caused due to ante-mortem strangulation. The injuries sustained by the deceased on her body also suggest that she was strangulated to death by using mammoth force, which resulted in the other injuries on the back of her elbow and hip. There is one other aspect of the matter that the Investigating Officer has inspected the place of occurrence but not even a single ladder or stairs were found in the house. No such ladder or stairs has been shown in the site plan by the Investigating Officer nor any such question was put on behalf of the defence that any ladder was lying in the house nor any such place was shown where from the deceased had fallen. The absence of these facts are suggestive of only one conclusion that the defence taken by the accused had absolutely no legs to stand, therefore, the same was not put to the witnesses.
31. In view of the discussion made above, this appeal deserves to be dismissed and is hereby dismissed. Appellant [ENTITY] is in jail and appellant Smt. [ENTITY] is on bail. Her bail is cancelled. She shall be taken into custody forthwith to serve out the remaining sentence inflicted by the trial court.
32. Office is directed to communicate this order to the court concerned forthwith for compliance. Lower court record be sent back.
Order Date :- 28th, November, 2014 Virendra