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2009 Supreme(SC) 13
2009(1) Supreme 45
SUPREME COURT OF INDIA
Lokeshwar Singh Panta and Aftab Alam, JJ.
Deen Dayal & Ors. — Appellants
versus
State of U.P. — Respondent
Criminal Appeal No. 67 of 2006
Decided on : 07-01-2009
For the Appellant :Dr. J.N. Dubey, Sr. Adv., Anurag Dubey, Meenesh Dubey, Ms. Anu Sawhney, S.K. Diwakar, D.P. Pandey and S.R. Setia, Advocates.
For the Respondent:Pramod Swarup, Sahdev Singh and Anuvrat Sharma, Advocate.
IMPORTANT POINT
Whether or not the cruelty or harassment meted out to the victim for or in connection with the demand of dowry was soon before her death and the proximate cause of her death, under abnormal circumstances, would depend upon the facts of each case. There can be no fixed period of time in this regard.
Headnote:Indian Penal Code, 1860 – Sections 302, 498-A and 304-B – Dowry death – Prosecution of appellants husband and in laws of deceased for killing her and thereafter throwing her in a well – Acquittal by Trial Court – State appeal – Allowed by High Court, setting aside Judgment of acquittal passed by trial court and convicting all three appellants – Appeal – Evidence on record, that there was an unrelenting demand for dowry and deceased was persistently subjected to cruelty and harassment for and in connection with the demand – Both her parents and her brother PW 1, PW 5 and PW 2 deposed before court that appellant no.1 had once again raised his demand when he had gone to their house in July 1998 to bring deceased to his place – Their inability to meet his demand had caused him annoyance and anger – Deceased was naturally apprehensive and was very reluctant to go with him – There was thus direct and positive evidence of her being subjected to harassment – Nothing to show that after she was brought to appellants’ place and till her death on September 6, 1998 merely about two months later situation had radically changed, demand of dowry had ceased and relations had become cordial between deceased and three appellants- Facts and circumstances of case, showed that in connection with appellants’ demand for dowry deceased was subjected to cruelty and that was proximate cause of her homicidal death – All the ingredients of Section 304-B of Penal code being fully satisfied on evidence on record no other view possible but to hold that three appellants were guilty of committing dowry death- View taken by trial court held completely untenable – High Court held fully justified in reversing its verdict in appeal preferred by State – Appeal dismissed. (Paras 14 to 16)
Indian Penal Code, 1860 – Section 304-B – Evidence Act – Section 113-A – The words ‘soon before her death’ occurring in section 304 B of Penal Code are to be understood in a relative and flexible sense-Those words cannot be construed as laying down a rigid period of time to be mechanically applied in each case – Whether or not the cruelty or harassment meted out to the victim for or in connection with the demand of dowry was soon before her death and the proximate cause of her death, under abnormal circumstances, would depend upon the facts of each case – There can be no fixed period of time in this regard. (Para 14)
Facts of the Case :
1. Appellants husband and in laws of deceased were prosecuted herein in the instant case for killing her and thereafter throwing her in a well. Trial Court acquitted appellants. State appeal there against was allowed by High Court, setting aside Judgment of acquittal passed by trial court and convicting all three appellants.
2. Present Appeal has been filed against said order of High Court.Plea of appellants that on evidence on record several ingredients of offence of dowry death remained unproved and since prosecution failed to establish all necessary conditions no presumption would arise against appellants under Section 304-B of Penal Code and Sec. 113-A of Indian Evidence Act.
Findings of the Court :
Evidence on record showed that there was an unrelenting demand for dowry and deceased was persistently subjected to cruelty and harassment for and in connection with the demand. Both her parents and her brother PW 1, PW 5 and PW 2 deposed before court that appellant no.1 had once again raised his demand when he had gone to their house in July 1998 to bring deceased to his place. Their inability to meet his demand had caused him annoyance and anger. Deceased was naturally apprehensive and was very reluctant to go with him. There was thus direct and positive evidence of deceased being subjected to harassment. Nothing to show that after she was brought to appellants’ place and till her death on September 6, 1998 merely about two months later situation had radically changed, demand of dowry had ceased and relations had become cordial between deceased and three appellants. Facts and circumstances of case, showed that in connection with appellants’ demand for dowry deceased was subjected to cruelty and that was proximate cause of her homicidal death. All the ingredients of Section 304-B of Penal code being fully satisfied on evidence on record no other view was possible but to hold that three appellants were guilty of committing dowry death. View taken by trial court was held completely untenable. High Court was held fully justified in reversing its verdict in appeal preferred by State.
Result : Appeal dismissed.
JUDGMENT
Aftab Alam, J. —
1. This appeal under Section 379 of Code of Criminal Procedure, 1973 read with Section 2(A) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 is at the instance of three appellants. Amar Singh, appellant no.3, is the son of Deen Dayal, appellant no.1 and Smt. Sukhrani, appellant no.2. They were tried for killing Asha Devi, wife of appellant no.3 for non fulfilment of their demand for dowry and were charged under sections 498-A and 304-B, alternatively section 302 of the Penal Code. At the conclusion of the trial they were acquitted of the charges by the 4th Additional Session Judge, vide judgment and order dated April 30, 2001 in Sessions Trial no.740 of 1998. Against the judgment of acquittal passed by the trial court the State of U.P. preferred an appeal before the High Court that was registered as Govt. Appeal no.2998 of 2001. A Division Bench of the High Court found and held that in the face of prosecution evidence the conclusion arrived at by the trial court was wholly untenable. Accordingly, the High Court allowed the appeal, set aside the Judgment of acquittal passed by the trial court and by judgment and order dated September 21, 2005 convicted all the three appellants under sections 498-A and 304-B of the Penal Code and sentenced them to undergo rigorous imprisonment for three years and ten years respectively for the two offences subject to the direction that the two sentences would run concurrently. The judgment and order passed by the High Court is brought under appeal to this court by the three appellants.
2. Dr. J. N. Dubey learned senior counsel made long and elaborate submissions in support of the appeal. Learned counsel first contended that in a criminal case the scope of an appeal against acquittal is quite different from an appeal against conviction and sentence. In the former case, if the trial court has taken one of the two possible views the judgment of acquittal would not warrant any interference in appeal. Counsel further submitted that the present case fell under that category and the High Court was in error in interfering with the judgment of the trial court and substituting its own view in place of the view taken by trial court. Next, passing over to the merits of the case, Dr. Dubey submitted that on the evidence on record several ingredients of the offence of dowry death remained unproved and since the prosecution failed to establish all the necessary conditions no presumption would arise against the appellants under Section 304-B of the Penal Code and Sec. 113-A of the Indian Evidence Act.
3. Before examining the submissions made on behalf of the appellants in any detail it would be useful and proper to state certain facts of the case that are admitted or are in any event undeniable. Asha Devi, the deceased was married with appellant no.3 in June 1997. Fifteen months later she died on September 6, 1998. At the time of her death she was living with the appellants. Her dead body was taken out of a well situate at a distance of about four hundred paces from the house of the appellants. Here it must be stated that her death was not caused by drowning. According to the prosecution, Asha Devi was killed by the appellants and her dead body was thrown into the well. The appellants, however, have a different story. Their case is that she had gone to fetch water and while pulling up the pail of water she accidently slipped and fell down into the well and died.
4. At this stage we may take a look at the medical evidence. P. W.3, the doctor holding post-mortem on the dead body of Asha Devi found the following two injuries
1: Swelling 3 x 3 cm in front upper part of nose.
2: Swelling mark 5 x 5 cm on top and middle of head.
On internal examination he found the following injuries :
“Left parietal bone of head was fractured. Membrane was soiled in blood. There was blood in brain. Bone of nose was fractured. There was 2 ounce clotted blood in nose. There was
