CRLA/214/2004 of SHER SINGH AND OTHERS Vs STATE OF UTTARANCHAL

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No. 214 of 2004

Sher Singh and others

…........ Appellants

The State of Uttaranchal

…..... Respondent

With

Criminal Appeal No. 234 of 2004

Birendra Singh

…........ Appellant

The State of Uttaranchal

…..... Respondent

With

Criminal Appeal No. 236 of 2004

Deewan Singh

…........ Appellant

The State of Uttaranchal

…..... Respondent

Present : Mr. M.A. Khan, Advocate for the appellants.

Mr. Subhash Tyagi Bhardwaj, Deputy Advocate General for the State.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

Since common questions of law and facts are involved in the these appeals, they are decided by this common judgment.

2. Present appeals are preferred against the judgment and order dated 06.07.2004/07.07.2004 passed in Sessions Trial No. 167 of 2002, State v. Sher

Singh and others, and Sessions Trial No. 168 of 2002, State v. Diwan Singh, by the court of Sessions Judge, Nainital. By the impugned judgment and order;

(i) the appellants Sher Singh, Virendra Singh, Parvati Devi and Km. Geeta have been convicted for the offences punishable under Sections 304B, 498A IPC and Section 3/4 of the Dowry Prohibition Act, 1961 (“the Act”) and sentenced as hereunder:-

(i)Section 304B IPC - rigorous imprisonment for period of seven years. imprisonment for period of seven years.

(ii)Section 498A IPC - rigorous imprisonment for period of one year. imprisonment for period of one year.

(iii)Section 3/4 of the Act – rigorous imprisonment for period of six months. imprisonment for period of six months.

(ii) the appellant Deewan Singh has been convicted for the offences punishable under Sections 304B, 498A IPC and Section 3/4 of the Act and sentenced as hereunder:-

(i)Section 304B IPC - rigorous imprisonment for period of ten years. imprisonment for period of ten years.

(ii)Section 498A IPC - rigorous imprisonment for period of one year. imprisonment for period of one year.

(iii)Section 3/4 of the Act – rigorous imprisonment for period of six months. imprisonment for period of six months.

3. The prosecution case, briefly stated, is as follows. The appellant Deewan Singh and deceased Babita were married on 22.05.1997. According to the prosecution case, in the marriage, gifts to the value of Rs. 80,000/- were given, but the appellants were not happy with the gifts given in the marriage. The deceased was staying with all the appellants. The deceased was harassed and tortured by the appellants for the demand of additional dowry. In the year 1998, the deceased was compelled to bring Rs. 15,000/- so that the appellant Sher Singh may repay his loan, which he had taken from bank. The marriage of the sister-in-law of the deceased was scheduled for 05.05.1999. It is the case of the

prosecution that the deceased was further pressurized to bring Rs. 10,000/- for the marriage. The deceased wrote two letters, one to her elder brother Jagat Singh and another to her brother-in-law demanding the money. Unfortunately, on 21.04.1999, the deceased died of poisoning. The inquest was prepared and the postmortem was conducted. The cause of death could not be ascertained, therefore, viscera was preserved and sent for forensic examination. The viscera examination report subsequently confirmed that it had Aluminium Phosphite and Ethyle Alcohol poison. On 24.04.1999, PW 5 Pushpendra Singh Rawat, the brother of the deceased, filed an FIR. Investigation was carried out by the Investigating Officer (“the IO”). He prepared site plan. In fact, along with the FIR, two letters, which the deceased had written to her brother and the brother-in-law were also enclosed. After investigation, the chargesheet has been submitted against all the appellants. On 12.07.2002, charge under Section 498A, 304B IPC and Section 3/4 of the Act were framed against the appellants.4. In order to prove its case, the prosecution in all examined eight witnesses, namely, PW 1 Pushpendra Singh Rawat, the brother of the deceased and the

informant, PW 2 Jagat Singh, the brother of the deceased, PW 3 Dr. B.D. Naryal, who conducted the postmortem of the deceased, PW 4 Bishan Singh, who prepared the chik FIR, PW 5 Surendra Pal Singh, who prepared the inquest report, Ex. A-7, PW 6 Darshan Lal Chitran, who conducted the investigation of the case and submitted the chargesheet against the appellants Sher Singh, Parvati Devi, Birendra Singh and Km. Geeta, PW 7 Bimala Gunjial, who initially conducted the investigation and prepared the site plan of the case, Ex. A-12 and PW 8 Kaptan Singh, who proved the chargesheet submitted against the appellant Deewan Singh sent by the IO, Ex. A-19.

5. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to them, they have been falsely implicated. The appellants Birendra Singh, Km. Geeta, Smt. Parvati and Sher Singh have stated that they were staying separate to the family of the appellant Deewan Singh. According to the appellant Dewan Singh, the deceased was under treatment, as she was not conceiving.

6. Learned counsel for the appellants would submit that the prosecution utterly failed to prove the

case beyond reasonable doubt against the appellants. He would raise the following points in his submission.

(I)The appellant Deewan Singh was serving in the Indian Army. The deceased was staying all alone in her house. in the Indian Army. The deceased was staying all alone in her house.

(II)The appellants Birendra Singh, Sher Singh, Km. Geeta and Smt. Parvati Devi were residing separate to the deceased Babita. They had no connection whatsoever in the day to day life of the deceased and the appellant Deewan Singh. Singh, Km. Geeta and Smt. Parvati Devi were residing separate to the deceased Babita. They had no connection whatsoever in the day to day life of the deceased and the appellant Deewan Singh.

(III)The prosecution witnesses have proved that, in fact, it is the appellant Deewan Singh, who was maintaining his wife, the deceased Babita. that, in fact, it is the appellant Deewan Singh, who was maintaining his wife, the deceased Babita.

(IV)The parents of the deceased have not been examined. Had it been case of dowry death, the brother or parents of the deceased would have protested at the time of inquest or lodged the FIR at an earlier opportunity, which they did not. examined. Had it been case of dowry death, the brother or parents of the deceased would have protested at the time of inquest or lodged the FIR at an earlier opportunity, which they did not.

(V)The statements of the witnesses are not reliable. There are great contradictions in the statements of PW 1 Pushpendra Singh Rawat and PW 2 Jagat Singh with regard to the role of the appellants. reliable. There are great contradictions in the statements of PW 1 Pushpendra Singh Rawat and PW 2 Jagat Singh with regard to the role of the appellants.

(VI)The allegations of demand of dowry are wild and vague. It is not specific. It may not be basis for conviction. wild and vague. It is not specific. It may not be basis for conviction.

7. On the other hand, learned State Counsel would submit that the FIR in the instant case is quite detailed. It records that soon after marriage, the appellants were not happy with the gifts, which were given to the deceased at the time of her marriage. Learned State Counsel has also raised the following points in his submission:-

(I) Soon after the marriage, the

deceased was subjected to cruelty by the appellants for the demand of additional dowry. the appellants for the demand of additional dowry.

(II) In the year 1998, the deceased was pressurized to bring Rs. 15,000/- from her parents’ house so as to repay the loan, which was taken by pressurized to bring Rs. 15,000/- from her parents’ house so as to repay the loan, which was taken by

the appellant Sher Singh from bank. This amount was paid. bank. This amount was paid.

(III) On 05.05.1999, the marriage of appellant Geeta, who is sister-in-law of the deceased, was scheduled. The appellants had then also pressurized the deceased to bring Rs. 10,000/- from her parents’ house. The deceased demanded this money from her brother and the brother-in-law. She wrote two letters, which have been proved by PW 1 Pushpendra Singh Rawat, the brother of the deceased, as Ex. A-1 and A-2. reading of these two letters expressly makes it clear that dowry was demanded from the deceased. Since, this demand could not be met, she died other than under normal circumstances. appellant Geeta, who is sister-in-law of the deceased, was scheduled. The appellants had then also pressurized the deceased to bring Rs. 10,000/- from her parents’ house. The deceased demanded this money from her brother and the brother-in-law. She wrote two letters, which have been proved by PW 1 Pushpendra Singh Rawat, the brother of the deceased, as Ex. A-1 and A-2. reading of these two letters expressly makes it clear that dowry was demanded from the deceased. Since, this demand could not be met, she died other than under normal circumstances.

(IV) The FIR has been lodged based on the contents of the letter as well as the oral complaints, which the deceased had made to her brothers the contents of the letter as well as the oral complaints, which the deceased had made to her brothers

PW 1 Pushpendra Singh Rawat and PW 2 Jagat Singh.

(V) The deceased was in the custody of the appellants. In the instant case, the provision of Section 113-B of the Indian Evidence Act, 1872 (“the Evidence Act”) may be invoked to raise the presumption. the appellants. In the instant case, the provision of Section 113-B of the Indian Evidence Act, 1872 (“the Evidence Act”) may be invoked to raise the presumption.

(VI) In the instant case, all the essential ingredients of Section 304 IPC have been proved by the prosecution. ingredients of Section 304 IPC have been proved by the prosecution.

(VII) The appellants did not explain the circumstances appearing against them in evidence. In the examination under Section 313 of the Code, they did not explain as to why did the deceased died and what were the circumstances under which she died? circumstances appearing against them in evidence. In the examination under Section 313 of the Code, they did not explain as to why did the deceased died and what were the circumstances under which she died?

8. Learned State Counsel would submit that the impugned judgment and order is in accordance with law and it does not warrant any interference.

9. The appellants have been convicted for the offence punishable under Section 304B, 498A IPC and Section 3/4 of the Act. In the matters of offence under Section 304B IPC, there are certain presumptions, which may be raised under Section 113-B of the Evidence Act. Section 304B IPC is as hereunder:-

“304B. Dowry death.—(1) Where the death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purposes of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for term which shall not be less than seven years but which may extend to imprisonment for life.”

10. bare reading of this Section reveals that in

order to prove case under Section 304B IPC, the followings are required to be proved and established by the prosecution:

(i) death of woman is caused by burn or bodily injury or occurs otherwise than normal circumstances;

(ii) such death occurs within seven years of her marriage;

(iii) it is shown that soon before her death, she was subjected to cruelty by her husband or any relative of her husband; death, she was subjected to cruelty by her husband or any relative of her husband;

(iv)such cruelty and harassment has been done for or in connection with, any demand for dowry. been done for or in connection with, any demand for dowry.

11. Section 113B of the Evidence Act is another provision with regard to the dowry death. It is as hereunder:-

“113B. Presumption as to dowry death. ––When the question is whether person has committed the dowry death of 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 304B of the Indian Penal Code (45 of 1860).”

The Court need not trace the history behind

enacting Section 304B IPC and the presumption clause as incorporated in the Evidence Act. Undoubtedly, the dowry and the death related to it has been menace in the society. In order to curb this wrong, stringent provisions have been made with presumptions under law. In such

cases, it is always prudent to carefully examine the evidence.

13. In the case of Preeti Gupta and another v. State of Jharkhand and another, (2010) 7 SCC 667, the Hon’ble Supreme Court observed “…a serious relook of the entire provision is warranted by the legislature. It is also matter of common knowledge that exaggerated versions of the incident are reflected in large number of complaints. The tendency of over implication is also reflected in very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy.”

14. In the case of Geeta Mehrotra and another v. State of Uttar Pradesh and another, (2012) 10 SCC 741 also, the Hon’ble Supreme Court referred to the judgment in the case of Ramesh v. State of Tamil Nadu, (2005) 3 SCC 507, and observed that “...the bald allegations made against the sister-in-law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband's relatives as

possible”. The Court further observed “Merely by making general allegation that they were also involved in physical and mental torture of Respondent 2 complainant without mentioning even single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant's husband, we are pleased to quash and set aside the criminal proceedings…”

15. This aspect has further been examined by the Hon’ble Supreme Court in the case of K. Subba Rao and others v. State of Telangana, (2018) 14 SCC 452. In this case, the Hon’ble Supreme Court quashed the criminal proceedings, which also involved the offence under Section 498A IPC. The Hon’ble Supreme Court observed that “Except the bald statement that they supported the third respondent who was harassing the second respondent for dowry and that they conspired with the third respondent for taking away his child to the U.S.A., nothing else indicating their involvement in the crime was mentioned.”

16. Recently in the case of Kahkashan Kaushar @ Sonam and others v. State of Bihar and others, 2022 SCC OnLine SC 162, the Hon’ble Supreme Court discussed the law and observed “Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes.”

17. These are the principles, which the Hon’ble Supreme Court has laid down while dealing with the offences relating to matrimonial discord. “Demand of dowry” or “seeking financial assistance”, these are two separate aspects. It has also come up for consideration before the Hon’ble Supreme Court on more than one occasion.

18. Earlier in the case of Appasaheb and another v. State of Maharashtra, (2007) 9 SCC 721, the Hon’ble Supreme Court discussed the aspect of demand of financial assistance and observed “A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as demand for dowry as the said word is normally understood”. But, the principles of law as laid down in the case of Appasaheb (supra) were further discussed by the Hon’ble Supreme Court in the case of Rajinder Singh v. State of Punjab, (2015) 6 SCC 477, and the Hon’ble Supreme Court observed “We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of given case clearly and unequivocally point otherwise”.

19. In fact, in the case of Rajinder Singh (supra), the Hon’ble Supreme Court has further clarified the

words “soon” and “immediate” occurring in Section 304

IPC and in para 24 held as hereunder:-

“24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word “soon” does not mean “immediate”. fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B.”

20. In the light of the settled principle of law, the instant matter needs examination.

21. Out of eight witnesses examined by the

prosecution, there are two witnesses of facts, who have stated about the demand made from the deceased. They are PW 1 Pushpendra Singh Rawat, the informant and the brother of the deceased and PW 2 Jagat Singh, the brother of the deceased.

22. PW 1 Pushpendra Singh Rawat has supported

the FIR in his statement given before the court. According to him, in the marriage of his sister Babita with the appellant Deewan Singh Rawat, gifts to the tune of Rs. 80,000/- were given, but the appellants were not satisfied with these gifts. They tortured the deceased for additional

dowry. According to PW 1 Pushpendra Singh Rawat, in the year 1998, the deceased was pressurized to bring money from her parents’ house so that appellant Sher Singh may repay his loan, therefore, Rs. 15,000/- was given to the deceased. The marriage of appellant Geeta was scheduled for 05.05.1999. According to this witness, for the purposes of this marriage also, the deceased was pressurized to bring money. This witness has proved two letters written by the deceased to her brother-in-law Surendra Singh Rawat, Ex. A-1, and to her brother Jagat Singh Rawat, Ex. A-2 (In fact, Ex. A-1 is letter written to brother & bhabhi and Ex. A-2 is letter written to brother-in-law & sister; wrong marking of exhibits does not make any difference). According to this witness, the deceased had demanded money from her brother-in-law and her brother. This witness has proved FIR, Ex. A-1.

23. PW 2 Jagat Singh is the brother of the deceased. He has also broadly corroborated the statement of PW 1 Pushpendra Singh Rawat, in his examination-in-chief.

24. PW 3 Dr. B.D. Naryal conducted postmortem of the deceased on 21.04.1999. He has proved the

postmortem report, Ex. A-3. According to him, the viscera was preserved as the cause of death could not be ascertained. Observing the features of the dead body, according to this witness, the death could have occurred on 21.04.1999.

25. PW 4 BIshan Singh has recorded chik FIR and made entries in the general diary. He has proved those records.

26. PW 5 Surendra Pal Singh was working as Sub Inspector, Police. When he received the information about the death of the deceased, he prepared the inquest. He has proved the inquest report, Ex. A-7.

27. PW 6 Darshan Lal Chitran conducted investigation and submitted chargesheet against all the appellants except the appellant Deewan Singh, which is Ex. A-11. In fact, the investigation was earlier conducted by PW 7 Bimala Kunjial, who had prepared site plan. PW 7 Bimala Kunjial has proved the site plan, Ex. A-12, which was prepared by her.

28. In fact, in this case, chargesheet against the appellant Deewean Singh was separately filed. The chargesheet submitted against the appellant Deewan Singh has been proved by PW 8 Kaptan Singh.

29. The marriage of the deceased with the appellant Deewan Singh, according to the prosecution, was held on 22.05.1997. It is not disputed. The death of the deceased took place on 21.04.1999. It is also undisputed. The death took place other than under normal circumstances. Now the question is as to whether the deceased was subjected to harassment or cruelty for or in connection with the demand of dowry? This is what is required to be examined. Related to it is another question as to what was the role assigned to each of the appellants?

30. This is undoubtedly an unfortunate incident. young girl died within two years of her marriage. But, then it per se cannot lead the Court to any presumption, unless it is established that she was subjected to harassment or cruelty for or in connection with the demand of dowry soon before her death. “Soon before” has its interpretation. It should not be immediate but

there should be proximate connectivity with the harassment or torture and death. This is what falls for consideration of this Court.

31. In the FIR, there are allegations at three stages. According to it, at the time of marriage gifts were given, but the appellants were not happy with it. They tortured and harassed the deceased. The second stage is in the month of July, 1998, when, according to the FIR, the deceased was pressurized to bring money from her parents’ house so that the appellant Sher Singh may repay his loan, which he had taken from some bank. The third stage is marriage of appellant Geeta Devi, which was scheduled on 05.05.1999. According to the FIR, for this purpose also the deceased was pressurized to bring money and, in fact, it is the prosecution case that the deceased wrote letters to her brother-in-law Surendra Singh Rawat (Ex. A-1) and her brother Jagat Singh (Ex. A-2).

32. reading of FIR makes it explicitly clear that there is no specific role assigned to any of the appellants. The allegations are joint and collective. The allegations are that the appellants demanded the money. The allegations

are that the appellants harassed and tortured the deceased. How and in what manner and who did what? In fact, very detailed, meticulous explanation may not be expected in such cases, but then mere bald allegations may also not substantiate the allegations. There should be something more than bald or omnibus allegations. Is it there in the instant case?

33. PW 1 Pushpendra Singh Rawat, in his examination-in-chief was questioned by the court. The court asked this witness as to whether the money was demanded by all the appellants or by any one of them? In answer to it, in page 2 of the statement, PW 1 Pushpendra Singh Rawat has expressed his ignorance as to who demanded what. According to this witness, the deceased had told it to him that her in-laws had demanded money.

34. PW 2 Jagat Singh Rawat, in his examination-in-chief, in paragraph 1, has stated that the appellants harassed and tortured the deceased for demand of dowry, but in page 3, paragraph 2, this witness is categorical that from the date of her marriage till she died, the deceased never complained of against her husband. It

somehow contradicts the statement of PW 2 Jagat Singh from his statement given in the examination-in-chief.

35. It is the prosecution case that the appellant Deewan Singh was serving in the Indian Army. He was not at home. The deceased was not staying with any of her in-laws. She was staying alone. Their houses were adjoining. Their kitchens were separate. What was the occasion to the other appellants to demand dowry, when they had nothing to do in day to day business of the deceased? There is no specific role of any one of them.

36. Two letters have been read over extensively by the learned State Counsel, which are Ex. A-1 and A-2. Ex. A-1 is letter, which was written by the deceased to her brother. She had demanded Rs. 8 to 10 thousand. In this letter, she writes that they are in need of money. She also writes in the letter that when she would meet, she would explain the things. The letter is quite in detail. It nowhere indicates that she was under pressure. She writes in the letter that her sister-in-law is to marry on 05.05.1999. She also writes that she would visit them in the month of April. She invites them for the marriage also. She repeats

that she needs money, but she does not write that she is writing under any compulsion.

37. The another letter, Ex. A-2, was written by the deceased to her brother-in-law. In it also, she invites her brother-in-law for marriage. bare reading of this letter, Ex. A-2, also does not indicate that it had any indication of compulsion. The bare reading though reveals that the deceased wanted Rs. 10,000/-. She requested her brother-in-law to prepare draft of Rs. 10,000/- and send it across to her.

38. Why was the deceased in need of money? Can the Court make any presumption? If the deceased was tortured and harassed for demand of dowry, did not she complain it to her father, who was alive? He has not been examined. Did the deceased speak to her brother or brother-in-law, whom she wrote the letters Ex. A-1 and A-2, respectively? Both Jagat Singh, her brother and Surendra Singh, her brother-in-law have not been examined. Reading of Ex. A-1 though also reflects that the deceased was concerned about her sister-in-law (wife of her brother, to whom the letter was sent). But, she has not stated anything about any torture, any harassment or

any demand that was made by the appellants or any of them from her.

39. Mere demand of money may not be construed as demand of dowry unless it has connection with the death of the deceased. If in connection with the marriage of the appellant Geeta, money was being demanded from the deceased and she demanded it from her brother and the brother-in-law, why she should have committed suicide on 21.04.1999? The marriage was scheduled for 05.05.1999. She would have waited for few more days. As stated, the father of the deceased has not been examined.

40. It is true that the death was result of poisoning. It is true that the appellant Deewan Singh has stated that due to reaction of medicine, the deceased died. It is true that categorically the appellants have not stated as to why and under which circumstances, the deceased died, but the burden was not on the appellants. It was the prosecution to prove at the first instance all the ingredients of the offences, of which the appellants were charged.

41. Having considered the entirety of facts and circumstances of the case, this Court is of the view that, in fact, the prosecution has not been able to prove that soon before her death, the deceased was subjected to harassment or cruelty for or in connection with the demand of dowry. Therefore, this Court is of the view that the prosecution has not been able to prove the case against the appellants. The appellants deserve to be acquitted of the charges. Accordingly, the appeals deserve to be allowed.

42. The appeals are allowed. The impugned judgment and order dated 06.07.2004/07.07.2004 is set aside. The appellants are acquitted of the charge levelled against them.

43. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and the sureties are discharged. Each of the appellants shall furnish personal bond and two reliable sureties, each of the like amount to the satisfaction of the court concerned, under Section 437A of the Code, within period of four weeks from today.

44. Let copy of this judgment along with the lower court record be sent to the court concerned for onward compliance.

Avneet/

(Ravindra Maithani, J.)

19.04.2022