Ashok Kumar Sharma vs State Of U.P.
2015 Latest Caselaw 2621 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									A.F.R.
 
						RESERVED ON  :20.08.2015
 
						DELIVERED ON :24.09.2015
 

 
1.	Case :- CRIMINAL APPEAL No. - 1610 of 2012
 
	Appellant :- Ashok Kumar Sharma
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- Anoop Trivedi,Lalit Kumar 	Mishra
 
	Counsel for Respondent :- Govt. Advocate
 

 
				CONNECTED WITH 
 

 
2.	Case :- CRIMINAL APPEAL No. - 876 of 2012
 
	Appellant :- Smt. Vishan Devi
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- Anoop Trivedi
 
	Counsel for Respondent :- Govt. Advocate
 

 
				CONNECTED WITH 
 

 
3.	Case :- CRIMINAL APPEAL No. - 1354 of 2012
 
	Appellant :- Sanjeev Kumar & Another
 
	Respondent :- State Of U.P.
 
	Counsel for Appellant :- Anoop Trivedi
 
	Counsel for Respondent :- Govt. Advocate
 
Hon'ble Om Prakash-VII,J.

1. All the above mentioned Appeals have been filed by the appellants against the common judgment and order dated 22.2.2012 passed by the Additional District & Sessions Judge, Court No. 6, Bareilly in Sessions Trial No. 393 of 2006 State Vs. Raja Ram Sharma (since deceased) and others pertaining to crime no. 175 of 1996, under Sections 498-A, 304-B IPC and Section 3/ 4 Dowry Prohibition Act, Police Station Subhash Nagar, Bareilly. All the accused appellants namely Ashok Kumar Sharma, Sanjeev Kumar, Manoj Kumar and Smt. Vishan Devi have been convicted and sentenced for the offence under Section 3 of the Dowry Prohibition Act for five years' simple imprisonment and fine of Rs. 15,000/-; for the offence under Section 4 of Dowry Prohibition Act for one year simple imprisonment and fine of Rs. 2,000/- each; for the offence under Section 498-A IPC to undergo two years' simple imprisonment and fine of Rs. 2,000/- each and for the offence under Section 304-B IPC to undergo seven years' simple imprisonment. All the sentences have been ordered to run concurrently and in default of payment of fine further to undergo additional imprisonment. Since all the aforesaid appeals arises out of the same/common judgment and order and they have been connected and heard together, therefore, they are being decided by a common judgment.

2. Prosecution story in nut shell are as follows :

3. Satish Sharma son of Narayan Das Sharma resident of Kunwar Pur, Police Station Kila, district Bareilly submitted an application at Police Station Subhash Nagar alleging therein that marriage of his niece Shashi Sharma took place on 26.6.1989 with Ashok Kumar Sharma (the appellant). After the marriage her in laws started maltreating with her asking her to bring Rs. 10,000/-. They have shunted her out of the house. In this connection an application was addressed by Smt. Shashi to the Senior Superintendent of Police, Bareilly. Thereafter Rs. 10,000/- was given to Smt. Shashi and was sent along with Ashok Kumar Sharma. But again the accused persons asked Smt. Shashi to demand her share in her father's immoveable property and on their demand being not fulfilled she was subjected to harassment and cruelty. On 15.4.1996 when he received information of death of Smt. Shashi reached at the residence of Ashok Kumar Sharma and saw marks of injuries on her body and neck. Information in this regard was given at Police Chowki Madinath to lodge the report. Deceased was done to death due to demand of dowry. It was prayed in the application that after lodging the report legal action may be taken against the culprits.

4. On the basis of written report Ext. Ka-1 chik F.I.R. Ext. Ka-6 was registered at crime no. 175 of 1996 under Section 304-B, 498A IPC and G.D. Entry was also made as Ext. Ka-7 at the same time.

5. Concerned police reached at the place of occurrence and prepared the inquest report Ext. Ka.-12. The dead body was taken into custody by the police and was kept in the sealed cloth. I.O. also prepared the sample seal and other police papers permissible under the law. Dead body was sent for post mortem examination along with relevant papers through the Constable 410 Sri Ram Yadav and Constable 1795 Anil Kumar.

6. Post mortem on the dead body of the deceased was conducted on 16.4.1996 at 4 P.M. As per post mortem deceased was aged about 28 years and was of average body built. Rigor mortis was absent in upper limb but present in lower limb. Eyes were closed, mouth opened, teeth clinched, nails blue.

7. On examination following ante mortem injuries were found on the body of the deceased :

1. One abraded contusion 2cm x 1.5 cm on clavicle neck 4 cm. from the mid line.

2. Abraded contusion 1 cm x 1 cm on the right side of the neck.

3. Abraded contusion 2 cm x 2.5 cm on right side front of .5 cm away from mid line.

4. Abraded contusion 1.5 cm x 1 cm on right side front below mid line.

8. Cause of death was shown in the post mortem report Ext. Ka-5 as shock and hemorrhage due to strangulation.

9. Investigating Officer after recording the statement of the witnesses and fulfilling the formalities submitted charge sheet in the matter. But the case was re-investigated and the subsequent Investigating Officer submitted final report in the matter. The concerned magistrate rejecting the final report directed the Investigating Officer for further investigation. Again matter was investigated. The informant provided the letters said to have been written by the deceased and also to prove the hand writing of the deceased, the register which was said to have been written by the deceased. The relevant portion of the register proved by the prosecution is Ext. Ka-9. Letters and the other documents/register produced during investigation by the informant were also sent for expert opinion. The report submitted by the expert in the matter is Ex.Ka-10 on the lower court record. Investigating Officer has also placed reliance on the complaint said to have been moved by the deceased in the year 1995 and the enquiry report said to have been made on the basis of that complaint. The investigating officer again submitted charge sheet against the accused Raja Ram Sharma (died), Ashok Kumar Sharma, Sanjeev Kumar Sharma, Manoj Kumar and Vishan Devi, appellants for the offence under Section 498-A, 304-B IPC and Section 3/ 4 D. P. Act.

10. Concerned Magistrate took the cognizance in the matter and the case being exclusively triable by the court of Sessions was committed to the court of sessions.

11. Accused appellants appeared before the trial court concerned and charge against all the accused for the offence under Section 498-A, 304-B IPC and Section 3 and 4 D. P. Act were framed. Accused denied from the charges and pleaded themselves innocent and claimed their trial.

12. In order to prove its case the prosecution examined nine witnesses. P.W.-1 Satish Sharma, informant; P.W.-2 Amit Sharma, son of the infomant; P.W.-3 Smt. Mala Sharma, sister of the deceased; P.W.-4 Rajesh Parashar, brother in law of the deceased (sister's husband); P.W.-5 S. I. Surendra Dogra; P.W.-6 Dr. R. K. Rastogi; P.W.-7 S.I. Swami Dayal; P.W.-8 K. D. Chaudhary and P.W.-9 Mohd. Tahir.

13. After closer of the prosecution evidence statement of the accused person under Section 313 Cr. P.C. Were recorded in which they stated the prosecution evidence to be false. They have also specifically pleaded that the deceased Shashi Sharma used to demand her share in her father's property. She had already filed a complaint against the informant, therefore, she was murdered by the informant and his family members themselves. The F.I.R. was lodged on the basis of false facts and the Investigating Officer submitted charge sheet on the basis of insufficient evidence.

14. Accused appellants in their defence have examined D.W.-1 Daulatvan; D.W.-2 Km. Megha Sharma and D.W.-3 Subhash Chandra Rastogi.

15. Trial court after hearing the parties vide impugned judgment and order convicted and sentenced the accused appellants as above, hence this appeal.

16. Heard Sri Anoop Trivedi, learned Advocate for the appellants and Sri Brij Raj Verma, learned A.G.A.

17. Castigating the impugned judgment and order learned counsel for the appellants Sri Anoop Trivedi submitted that deceased was married in the year 1989. Till 1995 no complaint was made regarding demand of dowry. There was dispute between the deceased and the informant regarding the share in the ancestral property. Informant did not want to give the share to the deceased. The prosecution witnesses have not proved essential ingredients to constitute the offence under Section 498-A, 304-B IPC. There was also no any evidence to constitute the offence under Section 3/ 4 D. P. Act. Trial court findings on these offences are illegal and perverse. P.W.-1 and P.W.-2 both have made self contradictory statement in their examination in chief and cross examination. P.W.-3 and P.W.-4 both have not supported the prosecution case and they were declared hostile. Since there was rift between the deceased and informant themselves, therefore, there was no occasion to make any demand of dowry by the appellant from the deceased. The P.W.-1 and P.W.-2 both have admitted in the cross examination that no any demand was made. It was next submitted that deceased was living separately along with her husband from the other accused appellants. Trial court finding regarding the offence under Section 304-B IPC is incorrect, illegal as the finding is based on inadmissible evidence. Prosecution has not proved the said report on which trial court has placed reliance. It was also argued that ingredients to constitute the offence of abatement was also not established by the prosecution. Provisions of Section 106 of the Evidence Act cannot be applied in the present matter. Submissions of the appellant is also that there was no any dispute between the husband and wife. The daughter of the deceased was also examined as defence witness. She also categorically denied the prosecution version. Trial court has not considered the defence evidence in right perspective and passed the impugned judgment and order on the basis of surmises and speculation.

18. Sri Brij Raj Verma, learned A.G.A. Argued that ante mortem injuries were found on the body of the deceased. Deceased died in the house of the accused appellant within seven year of her marriage and the death is otherwise than under normal circumstances. Prosecution was able to establish the demand of dowry made by the accused appellants and also other essential ingredients to constitute the offence under Section 304-B IPC. Trial court finding on the point of holding guilty to the accused appellants is based on the evidence available on record. There is no any mistake or illegality in the finding of the trial court. Since on the complaint of the deceased an enquiry had been made by the competent authority and the same was proved by the prosecution before the trial court. Therefore, trial court has rightly placed reliance on that document. Accused appellants have not rebutted the charge proved by the prosecution as is required for the offence under Section 304-B IPC.

19. I have considered the submissions raised by the learned counsel for the parties and have gone through the entire record.

DISCUSSIONS

20. In the present matter it is admitted case of the parties that deceased was married with the appellant Ashok Kumar on 26.6.1989 according to Hindu Rites and Ceremonies. It is also admitted case of the parties that deceased and P.W.-3 Smt. Mala Sharma (real sisters) were only successors of the their parental property. It is also admitted case of the parties that till the date of offence no any share in the ancestral property had been given to the deceased and P.W.-3 Mala Sharma. Death of the deceased Smt. Shashi Sharma is within seven years of her marriage at his matrimonial house. Ante mortem injuries were also found on her body. Letters said to have been written by the deceased produced during trial were not taken into consideration by the trial court. Writing and signature in the register said to have been prepared in the writing of the deceased was not the admitted signatures of the deceased. No any complaint was ever made before 21.6.1995 regarding demand of dowry. The enquiry report said to have been made on the basis of complaint dated 21.6.1995 is the photo copy. P.W.-4 Rajesh Parasar is the husband of the P.W.-3 Mala Sharma. They have not supported the prosecution case. Even they have denied furnishing of the letters to the Investigating Officer. The Doctor conducting the post mortem has clearly opined that the death of the deceased was the result of strangulation. Trial court finding for the offence under Section 304-B IPC is based on the enquiry report (photo copy) said to have been made by the Circle Officer (City)-II, Bareilly on the basis of the complaint dated 21.6.1995. Finding regarding demand of dowry causing harassment and cruelty in connection with the demand of dowry soon before the death of the deceased is based on the same complaint.

21. Now the question is whether the findings recorded by the trial court is legally sustainable.

22. Before proceeding to deal with the matter I would quote the essential ingredients required to be proved for the offence under Section 304-B IPC. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:

(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

(ii) Such a death should have occurred within seven years of her marriage.

(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

23. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:

"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, 1 Page 15 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 304-B of the Indian Penal Code (45 of 1860)."

24. The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:

(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death.

25. In Sultan Singh Vs. State of Haryana reported in (2014) 14 SCC 664 the Apex Court in para no. 9 held as follows "

"9. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the 1 Page 16 possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence 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 114 Illustration (a) of the Evidence 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."

26. In Baljinder Kaur Versus State of Punjab (2015) 2 Supreme Court Cases 629, in para 23 held as under.

"23. There is no evidence showing any persistent dowry demand or the conduct of the appellant subjecting Sharanjit Kaur to cruelty or harassment for or in connection with dowry. About twenty days prior to the occurrence, when Sharanjit Kaur went to her father's house, she only generally stated about the dowry demand. She had not specifically stated about the demand of dowry by the appellant. In their evidence PWs 4 and 5 have stated that on 25.8.1997, they went to the house of Pritam Singh in village Burj Naklian, all the accused except appellant-Baljinder Kaur were in the house. After the alleged demand of gold karra two months after the marriage, Sharanjit Kaur went to her house, again came back to the marital house and again went to her father's house and again came back to the marital house. In our considered view, the alleged demand of gold karra about two months after the marriage cannot be said to constitute a proximate live link with the death of deceased Sharanjit Kaur and the conviction of the appellant under Section 304-B IPC cannot be sustained."

27. In the instant matter first and foremost question is that whether prosecution was able to prove the persistent demand of dowry and the other ingredients to constitute the offence under Section 498-A and 304-B IPC.

28. P.W.-1 Satish Sharma in the examination in chief has supported the prosecution case. But in the cross examination he has admitted that accused appellant never made any demand of additional dowry before him. As per this witness, if any demand had made that would have been made from his wife. He has also admitted that no any quarrel took place between the appellant Ashok Sharma and deceased. Deceased when used to go to his house she used to demand her share in the house property from her aunty and grand mother. He also admitted that deceased was living separately along with her husband. At one point of time he has also admitted that deceased was living in a rental house in Babbanpuri Mohalla. He received the information from his wife about the death of the deceased and reached at the place of occurrence and the in laws of the deceased were present there.

29. Next witness P.W.-2 Amit Sharma has also supported the prosecution story in the examination in chief but he specifically stated in the cross examination that deceased never said to him about the demand of dowry. He heard this fact from his mother and grand mother who were talking about this fact. He had visited the house of the deceased once or twice. He has also specifically stated that his sister was of very loose tamper.

30. Thus from the analysis of the statement of P.W.-1 and P.W.-2 it emerges that there are self contradictory statement of these two witnesses themselves on the point of demand of dowry, cruelty, separate living and harassment. Trial court has connected the demand of dowry with the complaint dated 21.6.1995 said to have been moved by the deceased to the Superintendent of Police, Bareilly which is in the form of photo copy on the record. Trial court has also raised presumption on the basis of enquiry report which is also in the form of photo copy. Close analysis of the finding on the said document relied upon by the trial court and also the legal provisions for relying upon a document it emerges that trial court has committed error in relying upon the photo copy which was not admissible in evidence. The said document is not proved by the prosecution during trial in accordance with law. There was no any complaint till 21.6.1995. The relation between the informant and the deceased regarding the share in the ancestral property was not cordial. It appears improbable and unbelievable that deceased was being pressurised by the accused appellants for bringing Rs. 10,000/- in lieu of additional demand of dowry from the informant though there was dispute between the parties regarding share in ancestral property. There is general allegation without disclosing any date and time of the incident of demand of dowry. Statement of Satish Kumar on the point of demand of dowry is also not consistent. He himself made contradictory statement in the examination. Statement of the P.W-2 Amit Sharma could also not be relied upon because whatever facts were stated by him before the court is not based on the direct conversation between him and the deceased. He also heard this fact while his mother and grand mother were talking on this fact but this witness could not make the exact date and time of occurrence. To deal with such type of cases legislature has inserted the provision of Section 113-B of the Evidence Act to presume the dowry death. On close scrutiny of the entire evidence, this Court is of the view that prosecution was not able to discharge its initial burden to prove and establish the necessary ingredients to constitute the offence under Section 304-B IPC. There is no evidence to establish the persistent demand of dowry.

31. Trial court has convicted Ashok Kumar Sharma, Sanjeev Kumar, Manoj Kumar and Smt. Vishan Devi for the offence under Section 498-A and 304-B IPC. Letters said to have been written by the deceased to her sister P.W.-3 Mala Sharma were not proved by the prosecution in accordance with law. Similarly the register which was also said to be in the hand writing of the deceased was also not proved in accordance with law. P.W.-1 Satish Sharma, P.W.-2 Amit Sharma have made general allegations in the examination in chief against the accused appellants. Composite reading of the whole statement of P.W.-1 and P.W.-2 it emerges that there is absolutely no material to connect the appellants Ashok Kumar Sharma, Sanjeev Kumar, Manoj Kumar and Smt. Vishan Devi with the demand of dowry, cruelty, harassment to constitute the offence under Section 498-A, 304-B IPC. Letters said to have been moved by the deceased in the year 1995 is the photo copy. Enquiry report relied upon by the trial court said to have been prepared on the basis of the complaint moved by the deceased is also photo copy and was not proved in accordance with law. The factum of demand of dowry and cruelty were not established. P.W.-1 Satish Sharma is the uncle of the deceased who had mutated his name over the entire ancestral property and the deceased used to make demand for her share in the property. Therefore, in the opinion of the court accused appellants Ashok Kumar Sharma, Sanjeev Kumar, Manoj Kumar and Smt. Vishan Devi could not be held responsible for committing the offence under Section 498-A, 304-B IPC and 3/ 4 D.P. Act. It has also come in the evidence that when deceased was sent to her matrimonial house P.W.-1 Satish Sharma paid her Rs. 10,000/-. At the same time P.W.-1 has admitted that nothing was stated about demand of dowry by Ashok Kumar Sharma.

32. Demand of share in the ancestral property could not come under the purview of demand of dowry. Marriage between the deceased and Ashok Kumar Sharma took place in the year 1989. If the prosecution evidence for the sake of argument is taken into consideration then also till 21.6.1995 what sort of demand was made is not clear. It is surprising fact that there was dispute between the deceased and the informant regarding share of the ancestral property but demand of dowry was being made by the accused appellants from the informant. After close scrutiny of entire evidence this court is of the view that prosecution could not prove the essential ingredients to constitute the offence under Section 498-A and 304-B IPC.

33. It is pertinent to mention here that to connect the death of the deceased there must be some proximate live link with the death and the demand of dowry. In the present matter, on analysis of the entire evidence it can easily be inferred that payment of Rs. 10,000/- to the deceased by the P.W.-1 could not be taken as fulfillment of demand of dowry. Demanding of her share in the ancestral property also does not come under the purview of demand of dowry as it was her legitimate right. It has also come in the evidence that deceased and her husband were living separately from the other appellants. Some injuries as found on the neck of the deceased in the post mortem report. Trial court has framed charge only under Section 498-A, 304-B IPC. There is no evidence to establish that appellants ever made any additional demand of dowry. Thus trial court findings on the basis of inadmissible evidence is not sustainable.

34. As far as the offence under Section 306 IPC is concerned the provisions of Section 306 IPC runs as follows :

"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

35. Offence under Section 306 IPC could only be attributed to the appellants if prosecution was able to establish the element of abetment. The word abetment is defined in Section 107 IPC, which runs as follows :

"107. Abetment of a thing.--A person abets the doing of a thing, who--

First -- Instigates any person to do that thing; or

Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly -- Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to dis­close, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."

36. Section 113-A of the Evidence Act is also quoted for ready reference :

"113A. Presumption as to abetment of suicide by a married woman.--When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."

37. In the factual matrix of the present case if the ingredients of abetment is traced it is clear that abetment involves the mental process of instigating person or intentional aiding that person in doing of a thing in matrimonial cases before invoking the provision of Section 306 IPC. In such type of cases, it is necessary to establish that first deceased committed suicide and second was subjected to cruelty within the meaning of Section 498-A IPC. Only in the event these facts are established a presumption can be drawn.

38. In the instant matter prosecution could not prove that deceased was ever subjected to cruelty or harassment by the accused appellant. In the absence of proof of such ingredients presumption for committing the offence under Section 306 IPC could also not be raised in the present matter.

39. As far fas applicability of Section 106 of the Evidence Act is concerned the burden of proving the fact specially within the knowledge of a person lies upon him. Since no presumption could be raised taking recourse of provision of Section 113-A and 113-B of the Evidence Act and there is no charge against the accused appellant for the offence under Section 302 IPC, therefore, no question arises for the accused appellants to discharge the burden as required under Section 106 of the Evidence Act. Certainly, injuries were found on the body of the deceased but this fact alone is not sufficient to raise presumption taking recourse of provisions of Section 106, 113-A and 113-B of the Evidence Act specially when it has come in the evidence that there was no dispute between the husband and wife (deceased). No quarrel took place between them. Other appellants were living separately from the deceased and her husband. On the day of the incident accused appellant Ashok Kumar Sharma was also not present in the house as is clear from the evidence itself.

40. Thus on the basis of analysis made herein above, this Court is of the opinion that trial court finding on the point of holding guilty to the accused appellants for the offence under Section 498-A, 304-B IPC and Section 3/ 4 D.P. Act is not in accordance with the evidence and law and the same is not sustainable and the appeals filed by the appellants are liable to be allowed.

41. Thus the judgment and order dated 22.2.2012 passed by the Additional District Judge, Court No. 6, Bareilly is liable to set aside and is hereby set aside. Appellants Ashok Kumar Sharma, Sanjeev Kumar, Manoj Kumar and Smt. Vishan Devi are acquitted from the charges under Section 3 and 4 of Dowry Prohibition Act and Section 498-A and 304-B IPC. Accused appellants Sanjeev Kumar, Manoj Kumar and Smt. Vishan Devi are on bail and need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability. Appellant Ashok Kumar Sharma is in jail. He is also acquitted of the charges under Section 498-A, 304-B IPC and Section 3 and 4 Dowry Prohibition Act. If he is not wanted in any other case he be released from jail forthwith.

42. Record of the trial court along with copy of this judgment be sent to the Court concerned and Chief Judicial Magistrate concerned for immediate compliance. Compliance report be also submitted to this Court.

43. Copy of this order be also placed on the record of Criminal Appeal No. 876 of 2012 (Smt. Vishan Devi Vs. State of U. P.) and Criminal Appeal No. 1354 of 2012 (Sanjeev Kumar and another Vs. State of U. P.).

24.09.2015

Sachdeva