Shiv Kumar vs State
2018 Latest Caselaw 169 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case :- CRIMINAL APPEAL No. - 292 of 1989
 
Appellant :- Shiv Kumar
 
Respondent :- State
 
Counsel for Appellant :- S.K. Agarwal
 
Counsel for Respondent :- D.G.A.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Harsh Kumar,J.

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)

The appellant, Shiv Kumar, has assailed the judgment and order passed by the Vth Additional District & Sessions Judge, Saharanpur dated 24th January, 1989 in Session Trial No. 435 of 1986 (State v. Shiv Kumar and others), whereby the appellant has been convicted for commission of offence under Section 302 I.P.C. and sentenced for imprisonment of life and has been further sentenced under Section 498-A I.P.C. to undergo two years' rigorous imprisonment and six months' rigorous imprisonment under Section 4 of the Dowry Prohibition Act. By the same judgment and order the learned trial Court has acquitted mother and sister of the appellant who also faced the trial under the same sections of the Indian Penal Code and the Dowry Prohibition Act.

The prosecution story is that the accused-appellant was married with deceased Rajbala on 01st May, 1983. The house of the appellant and that of his in-laws are in the same locality. On 15th June, 1986 Rajbala was found alone in her house in severely burned condition. At that time no member of her family was present in the house. Neighbours tried to extinguish the fire and informed her parents. She was taken to hospital by the police where she succumbed to her injuries on the same day in the evening. One of the brothers of the deceased P.W.-4 Rajendra Kumar submitted a written complaint (Tehrir) in the Police Station Sadar Bazar, Saharanpur at 02.25 P.M., on the basis of which a first information report1 was registered as Case Crime No. 249 of 1986, under Sections 498-A & 307 I.P.C. read with Section 4 of the Dowry Prohibition Act. Accordingly, a chik FIR was prepared. After the death of Rajbala on the same day in the evening, the sections mentioned in the FIR were altered to Section 302 I.P.C. also.

In the FIR it was mentioned by P.W.-4 that his sister Rajbala was married about two years back with the appellant, Shiv Kumar Sharma. The appellant and his sister Manju were very greedy and they started pressurizing his sister to bring more dowry. It is stated that initially they as far as possible fulfilled the demands of the appellant and his family. About six months' back his sister was physically tortured and turned out from the house in respect of the demand of dowry and was pressurized to bring Rs.10,000/- in dowry, due to which she lived at her parents' house. About three months back, the appellant took back Rajbala and assured his family members that in future they would not make any demand for dowry and they would not misbehave with her. It was also stated that at the time of marriage they had already given sufficient dowry which amongst others includes T.V., refrigerator, scooter, etc. However, on the fateful day i.e. 15th June, 1986 at 2.15 P.M. Rajbala was set on fire by the appellant, his mother and sister Manju.

The investigation was entrusted to Circle Officer (City) Sri S.P. Sonkar. When he visited the spot, he found Rajbala in severely burned condition and she was not in a position to give any dying declaration. He had taken injured Rajbala to the Government Hospital. The first informant--P.W.-4 Rajendra Kumar was present on the spot and his statement was recorded and at his instance a rough site plan was prepared (Exh. Ka-11). He also collected some of the materials like burned clothes, heirs, skin, etc. of the deceased which were found on the spot. A fard was accordingly prepared (Exh.Ka-12). He had also recovered a can of kerosene oil, fard of which was prepared (Exh.Ka-13). The inquest of the dead body was conducted in S.B.D. Hospital, Saharanpur, where she succumbed to her injuries.

The dead body was sent for autopsy. P.W.-2 Dr. D.P. Jain conducted autopsy and issued the post-mortem report (Exh. Ka-5), wherein the cause of death has been shown to be ante-mortem injuries on the body; superficial to deep burn of whole body including sole, face, head, etc. front and back and smell of kerosene oil was coming from the body. On internal examination the Doctor found that there was 250 gram semi-digested food in her stomach. The cause of death has been shown to be shock as a result of extensive burns.

The appellant and her sister were arrested on the next day. After recording the statements of some of the witnesses the investigation was completed on 25th June, 1986. The Chief Judicial Magistrate, Saharanpur vide his order dated 30th June, 1986 committed the matter to the Court of Session for trial and Session Trial No. 435 of 1986 commenced. The appellant, his mother Kaushalya and sister Manju were charged under Sections 498-A and 302 I.P.C. and Section 4 of the Dowry Prohibition Act. The charges were framed by the learned Sessions Judge on 04th February, 1987.

The prosecution in support of its case had examined P.W.-4 Rajendra Kumar, brother of deceased Rajbala, P.W-5 Nathi Ram, a witness of the locality, and P.W.-6 Ravindra Kumar, another brother of deceased Rajbala, as fact witnesses.

The formal witnesses were P.W.-1 Dharam Pal Singh, Sub-Inspector, a witness of the inquest report; P.W.-2 Dr. D.P. Jain, who was posted as a Surgeon in S.B.D. Hospital and conducted autopsy on the dead body of deceased Rajbala; P.W.-3 Dr. M. Rastogi, Medical Officer, who examined the injuries of Rajbala before her death; P.W.-7 Constable Jagdish Singh, who carried the dead body of deceased Rajbala for post-mortem; P.W.-8 Head Constable Beche Singh, writer of chik report and G.D.; and, P.W.-9 Sri S.P. Sonkar, Deputy Superintendent of Police, who conducted the Investigation.

The trial Court found that the charges against the appellant in respect of demand of dowry and murder under Sections 498-A and 302 I.P.C. were established, hence he has been sentenced accordingly, but it acquitted mother and sister of the appellant, namely, Kaushalya and Manju respectively.

We have heard learned counsel for the appellant and learned A.G.A.

Learned counsel for the appellant submitted that entire investigation is tainted and the findings of the trial Court are perverse and against the evidence on the record. The prosecution has failed to establish that: (a) there was any demand of dowry; and, (b) the appellant was present in his house at the time of occurrence of the incident. He submitted that in fact, the appellant was on his duty in Star Paper Mill at the time when the incident occurred. He further submitted that the trial Court has failed to consider the evidence of the tenant D.W.-1 and official of Star Paper Mill D.W.-2, whose testimonies established that the appellant was on the duty at the relevant time and the deceased has committed suicide by setting herself on fire. Father and mother of the deceased were not produced, who were the best witnesses in respect of the charge of demand of dowry. The prosecution has not produced any witness to establish that during his duty hours the appellant visited his house and after committing the offence he again resumed his duties in Star Paper Mill. Learned counsel for the appellant has pointed out several contradictions in the statements of P.W.-4 and P.W.-6, brothers of the deceased, in respect of demand of dowry and motive. He has placed reliance on a judgment of the Supreme Court in the case of Dudh Nath Pandey v. State of U.P., AIR 1981 SC 911.

Learned A.G.A. submitted that death of a married woman is unnatural, hence under Section 106 of the Evidence Act the appellant had to prove the circumstances of the death. He has pointed out that nature of the burn injury clearly demonstrates that it was not a case of suicide but she was set on fire. He further submitted that eye witnesses have established the charge against the appellant regarding the demand of dowry and commission of the offence.

We have heard learned counsel for the parties at length and carefully perused the record.

Indisputably, a married women died within seven years of her marriage and her death was unnatural. The death has taken place in the house of the appellant. Hence, initial burden was on the prosecution to establish the demand of dowry and the cause of death. In respect of demand of dowry two brothers of the deceased P.W.-4 Rajendra Kumar and P.W.-6 Ravindra Kumar have been examined.

P.W.-4 Rajendra Kumar in his deposition has stated that in the marriage of deceased Rajbala, they had given dowry, with which the appellant and his family were not satisfied, therefore, they used to demand dowry from deceased Rajbala, who had told their demand to her family members. Once his sister was thrown out from the house and was asked to bring Rs.10,000/-. Thereafter the appellant came to his house to take back deceased Rajbala and had assured his father and mother (father-in-law and mother-in-law of the appellant) in the presence of Mahendra Prakash Goyal and Subhash that in future he would not make any demand for dowry. It is stated that believing his statement Rajbala was sent to appellant's house. He has further deposed that the appellant breached the said assurance and continued to harass the deceased for more dowry. Deceased Rajbala had told this fact to the witness. He has further deposed that on the date of incident when he reached at his sister's house, there was huge crowd in front of house and Rajbala, who had suffered severe burn injuries, was lying in the verandah, but the people did not permit him to go inside and they pushed him out.

In his cross-examination the P.W.-4 has stated that the appellant is working in Star Paper Mill as operator and both the sisters of the appellant are married and living in their in-laws house. He has stated that he has five sisters and one of his sisters is married to a police official, who at the time of incident was posted in district Bijnor. In his cross-examination he was confused regarding the directions. He has stated that the appellant was working in the Stock Preparation Department. He enters the factory from the labour gate. The Stock Preparation Department is situated at a considerable distance from labour gate and it takes about 10-15 minutes to reach the labour gate, which is entrance of the mill. Thereafter it takes another 10-15 minutes to collect bicycle from the cycle stand. The distance from the labour gate to appellant's house is generally covered in 10-15 minutes by bicycle. On the date of incident the duty of the witness was in the second shift i.e. from 2.00 P.M. to 10.00 P.M. On the said date within 5-7 minutes of his entry into the mill, he was informed that his sister was burned. He immediately rushed to her house on bicycle and reached there within 5 minutes. Thereafter he went to the police station, who took his injured sister to the hospital. Thereafter he had lodged the FIR. He has admitted that on the date of occurrence the appellant's duty was till 02.00 P.M. in the evening. His sister was issueless.

He has further deposed that his sister was turned out from her matrimonial house about 5-6 months back and she remained at her parental house for 2-3 months. When he was confronted with the contents of FIR, wherein he had alleged that she remained at his house for about six months, he could not explain the inconsistency.

He was also confronted in respect of other contradictions in his statement under Section 161 Cr.P.C. regarding timing of his knowledge about the incident. He denied his statement that he came to know first time regarding incident while he was on his way to Star Paper Mill to join his duty and when he reached near Star Tailor, then he heard noise emanating from her sister's house and then he rushed to her sister's house.

Curiously, he denied his alternative version also regarding the information of the incident. At one place of his statement he had deposed that while he was on duty in the Mill, his one of colleagues informed him regarding the incident on the basis of telephone message received in the mill.

P.W.-5 Nathi Ram has deposed that on 15th June, 1987 at about 2.15 P.M. when he was going from paper mill to kutchery and reached near the house of the appellant, which is on the way, he heard the noise in the house of the appellant and on reaching there, he saw that Rajbala was lying in the verandah in burned condition and at that time the appellant, his mother and sister were present along with several other persons.

Learned amicus curiae has highlighted these contradictions in his statement and submitted that it is not safe to rely on his evidence. He has also drawn our attention to the statement of the I.O., P.W.-9.

P.W.-6 Ravindra Kumar in his statement has stated that after the marriage the appellant and his family members were satisfied with the dowry, which was given to them at the time of marriage. This witness has clearly contradicted the statement of P.W.-4, his own brother, who had said that from very beginning the appellant and his family members were dissatisfied with the dowry given to them. He has stated that after one and half year demand for dowry was raised. This witness has disclosed the fact, which was not mentioned by his brother, that on 31st May, 1985 his father, who was also an employee of Star Paper Mill, was superannuated and he received Rs.70,000/- against the fund and gratuity. Out of the said amount, his father paid Rs.5,000/- to one of his elder sisters, namely, Pramila Devi, who is widow. It is stated that when his father was withdrawing the said amount from the Bank of Baroda, the appellant was standing near him and it is thereafter that he started raising demand for Rs.10,000/- dowry from his father-in-law. When the said demand was not met, he started harassing his sister. It was stated by him that after harassing Rajbala, they had turned out her from the house and she lived at her parents' house, but the appellant along with his father came to his house and assured them that in future they will not make any demand for dowry. It is stated that the said assurance was given in the presence of Prakash Goyal. On their assurance Rajbala was permitted to go with them. He further deposed that about 8-9 days prior to the incident Rajbala had informed him that she was being harassed by her in-laws and if their demand for Rs.10,000/- is not met, they might kill her. It is further deposed that on the date of occurrence of the incident he was at his home when two children informed him at about 2.15 P.M. that Rajbala was burned and when they reached the spot, he was informed that P.W.-4 , his brother, had gone to the police station to give information regarding the incident. He had seen that the appellant, his sister Manju and mother Kaushalya were standing there and all of them were smiling. This witness was re-called again for further examination.

P.W.-6 in his cross-examination has stated that in his statement under Section 161 Cr.P.C. to the police he had told the fact regarding withdrawal of fund by his father and payment of Rs.5,000/- to one of his sisters. He had also told the I.O that when the accused persons had turned out deceased Rajbala, she had requested them to permit her to enter in the house but the accused refused to allow her until she would brought Rs.10,000/- dowry. Thereafter she came to her parental home and there was a mark of injury on her forehead. He had also told the I.O. that father of Shiv Kumar had come to his house and had assured that they will not further harass Rajbala and also will not raise the demand of dowry. On his assurance they had permitted Rajbala to return to her in-laws house. He had also stated that about 8-9 days before the incident, she had come to their house in the night and narrated the harassment met out to her by her in-laws.

When the above mentioned statements were put to the I.O., P.W-9, he categorically stated that no such statements were made by P.W.-6 in his statement under Section 161 Cr.P.C.

From a perusal of statement of P.W.-9 it appears that the fact regarding withdrawal of fund of Rs.5000/- was first time stated in the Court. These facts, which P.W.-6 has stated in the Court, were not stated by his real brother P.W.-4 Rajendra Kumar. A perusal of the statement of P.W.-4, elder brother of the deceased, clearly demonstrates that the fact that on the date when the father of the deceased had withdrawn his fund, the appellant was standing at that time in the Bank of Baroda, does not appear to be correct.

We are of the opinion that prosecution has failed to establish that at the time of the incident the appellant was present in his house and he was not in Star Paper Mill. The trial Court has ignored the material evidence of D.W.-2 Virendra Jha, who was an Assistant Labour Officer in Star Paper Mill. He had produced the attendance register of the mill, which indicates that on the date of incident the appellant was present in Star Paper Mill and his duty hours were from 06.00 A.M. to 02.00 P.M. There was no evidence that the appellant had gone out of the mill during his working hour. D.W.-2 has further stated that an employee is permitted to go outside the mill premises only for half an hour. It is unbelievable that the appellant during that period would come out from the mill, set his wife on fire and immediately thereafter return to the mill premises. From the statement of P.W.-4 it is evident that the appellant was working in the Store Department of the Mill and it takes 10-15 minutes to reach to Labour Gate from his department and thereafter the distance from mill to his house is covered in 10-15 minutes. Thus, it is improbable that a person within half an hour will come out from the department, will reach to his house and after setting his wife on fire will come back and join his duty.

Pertinently, there is no eye witness to establish that during this period the appellant was seen either leaving the premises of Star Paper Mill or coming back from his house. As discussed above, the house of the appellant is near the road. P.W.-4 in his statement has admitted that duty of the appellant was till 02.00 P.M. in the paper mill.

The prosecution to create the evidence of last seen has produced P.W.-5 Nathi Ram, who owns a tea shop near Kutchery. He has stated that while he was going to his shop on his bicycle, he saw a large number of people near the house of the appellant. When he reached there, he saw appellant, his mother and sister. The statement of this witness has been disbelieved by the trial Court regarding presence of two accused Kaushalya and sister on the spot. The trial Court has acquitted both of them and has recorded a finding that both were out of station and they were not present in the house.

D.W.-1 Smt. Prabha is a tenant in the house of the appellant. Her statement has not been appreciated by the trial Court in correct perspective. She has stated that brother-in-laws of the appellant used to visit his house frequently, which the appellant did not like. He had expressed his displeasure to his wife, deceased Rajbala, in this regard. He had also asked her not to permit them to visit his house as they used to remain there unnecessarily for long time. On the date of the incident at about 01.00 P.M. one of the brothers of the deceased had come and on that day sister and mother of the appellant were not at the home as his mother Kaushalya had gone to her parental house at Jamuna Nagar and sister Manju was in her in-laws house. When the brother of deceased Rajbala came, there took some altercation between the deceased and her brother and thereafter her brother left the place by murmuring. After sometime she heard screaming of deceased Rajbala, who was crying for help. When D.W.-1 reached the spot, she found that in the verandah, which is adjoining to the kitchen, Rajbala was on fire. D.W.-1 with the help of other neighbours extinguished the fire and telephoned the police. At that time and when the police came, the appellant was on his duty and the police carried Rajbala to the hospital for her treatment. When the appellant came to home, D.W.-1 informed him about the incident, whereafter he immediately rushed to the hospital and on the next date appellant's sister Manju and mother in-law came. In her cross-examination she has also stated that she had never heard any issue regarding dowry.

The prosecution could not elicit any important contradiction or inconsistency from her statement. The trial Court has thoroughly believed the statement of this witness insofar as the presence of mother and sister of appellant, namely, Kaushalya and Manju is concerned and the trial Court after confronting the evidence has recorded a finding that both Kaushalya and Manju were not in the house when the incident occurred. Kaushalya had gone to her parental house to attend some function and Manju was at her in-laws house. The trial Court has acquitted both of them from the charge of commission of the offence regarding demand of dowry and murder.

From the statements of P.W.-4, P.W.-6 and P.W.-5 and the defence witnesses, we are satisfied that at the time of incident the appellant was on his duty, which was from 06.00 A.M. to 02.00 P.M. in Star Paper Mill. The incident had taken place in the noon before 02.00 P.M.. There is no evidence on the record to indicate the presence of the appellant on the scene of occurrence.

There is another aspect of the matter. If prosecution's version is accepted to be true that the appellant set the victim on fire, she would have sounded alarm for help. The tenant D.W.-1 was present in the house. She has deposed that on the day of the incident one of the brothers of the victim had come at 01.00 P.M. in the noon. There was some altercation between them just before incident and then she heard the cry of victim, who was badly burnt. Upon hearing her alarm for help, some neighbours had also rushed and they extinguished the fire. There is no reason to disbelieve this witness.

The finding recorded by the trial Court in respect of presence of the appellant on the scene is based on no evidence and in fact, the finding of the trial Court is based on purely surmises and conjectures. Hence, we set aside the findings of the trial Court in respect of presence of the appellant on the place of occurrence. We are of the view that the evidences of P.W.-4 and P.W.-6, real brothers of deceased Rajbala, do not inspire confidence as their statements are not truthful. Both of them had deposed that both mother and sister of the appellant were present in the house when the incident had taken place and they were smiling. As found by the trial Court, they were not present in the house on the date of occurrence, hence it has rightly disbelieved their statements in respect of presence of two accused Manju and Kaushalya.

On meticulous examination of prosecution case we do not find any reliable evidence which could prove that the appellant had poured kerosene oil on the victim or he has attempted to commit murder of the victim by putting her on fire. Therefore, we are of the opinion that prosecution has failed to establish charge under Section 302 I.P.C. against the appellant.

As regards the demand of dowry, the only evidence on the record is the statement of P.W.-4 and P.W.-6, brothers of the deceased, alleging the demand of dowry. It is significant to mention that house of father of the deceased is in the same locality of the appellant. Father and mother of the deceased have not been produced to support the case of the prosecution in respect of demand of dowry. They were best witnesses to prove this charge.

The victim must have informed her parents about harassment made to her. The dowry amount of Rs.10,000/- was to be paid by her father and not by brothers. One of her brothers P.W.-6 Ravindra Kumar was unemployed and was doing some petty work. Both the brothers were not in financially sound position to meet the demand of dowry. In his statement Ravindra Kumar has also deposed that the appellant had assured father and mother of the victim that in future he will not cause any harassment to victim. The said assurance was given by the appellant in the presence of Mahendra Prakash Goel, Subhash and others, but none of those persons have given evidence. In respect of demand of dowry the best evidence was of father and mother of the victim but they have not entered witness box for the reasons best known to them.

There is no letter or any material to indicate demand of dowry. One of the brothers of the deceased P.W.-6 has deposed that the appellant and his family were satisfied with the dowry and they started demanding dowry only after father of the deceased had retired and he had withdrawn the amount of Rs.5000/- to give it to one of the sisters of the deceased. It is stated that at that point of time when he was withdrawing the money in the Bank of Baroda, the appellant was standing nearby and he had seen the papers regarding withdrawal of the amount but the witness failed to recall the date or month of the said fact. As noticed above, P.W.-6 did not state this fact in his statement under Section 161 Cr.P.C. to the I.O. He had stated that he had mentioned these facts to the I.O. but the I.O. failed to record these facts in his statement under Section 161 Cr.P.C. When the I.O., P.W.-9, was confronted with the deposition of P.W.-6, he had stated that no such fact was mentioned by P.W.-6 at the time of recording his statement under Section 161 Cr.P.C.. Moreover, these facts have not been mentioned in his deposition by P.W.-4, his brother, in his statement. Thus, in our view, the statement of P.W.-6 regarding withdrawal of money and demand of dowry thereafter appears to be improvement by P.W.-6 in his statement. We have carefully gone through the statement of P.W.-4. He has not even whispered about the story that the appellant started demand of dowry only after retirement of their father and when fund of G.P.F. and gratuity was released to him. These material contradictions raise reasonable doubt in our mind regarding truthfulness of these two witnesses (P.W.-4 and P.W.-6), therefore, we find that conduct of P.W.-4 and P.W.-6 was clearly unnatural, which makes their evidence extremely suspicious.

Relevant it would be to mention that the houses of the appellant and his in-laws are in the same locality and are at the distance of hardly 100 yards. If the appellant or his family members were harassing deceased Rajbala in respect of demand of dowry, this fact would have been in the knowledge of some of the neighbours of the victim, but no independent witness of the locality was produced by the prosecution in support of allegation regarding demand of dowry. Therefore, in absence of any documentary evidence or any independent witness, the charge of demand of dowry against the appellant or his family members is not established. The only evidence of P.W.-4 and P.W.-6 in respect of demand of dowry is not credible and trustworthy for the inconsistencies and contradictions pointed out in their depositions in the forgoing paragraphs. Moreover, P.W.-4 and P.W.-6 were not on good terms with the appellant, who resented their presence in his house. The appellant did not like their frequent visits with their friends to his house. The trial Court has not believed their statements regarding presence of Kaushalya and Manju at the time of incident and has acquitted both of them. This is an additional ground which requires to consider the evidence of P.W.-4 and P.W.-6 carefully.

Pertinently, P.W.-4, the elder brother of the deceased, in his deposition has said that although they had given sufficient dowry to the appellant but his family was never satisfied with the dowry given to them. On the contrary, P.W.-6, younger brother of the deceased, had deposed that initially the appellant and his family were satisfied with the dowry, but only after retirement of his father and withdrawal of fund for giving Rs.5000/- to one of the sisters of deceased Rajbala they started making demand of dowry. P.W.-4 in his statement has not mentioned the fact regarding presence of the appellant in the Bank when his father was withdrawing the amount. P.W.-6 had not told the police about this fact while his statement was recorded by the police under Section 161 Cr.P.C.. He stated the said fact first time in the Court.

On the basis of analysis of the aforesaid evidences, we are of the view that the prosecution has completely failed to establish the demand of dowry by the appellant or his family members.

The post-mortem report of the deceased shows following ante-mortem injuries on her body:

"1. Superficial to deep burns on whole body including soles, face head etc. front and back and a smell of kerosene oil was coming from the body."

P.W.-2 Dr. D.P. Jain, who had conducted autopsy on the body of deceased Rajbala, in his statement has stated that he had found superficial to deep burn on whole body including sole, face, head, etc. in front and back. On the internal examination, 250 grams semi-digested food was found to be present in her stomach. In the opinion of P.W.-2, the cause of death was shock and result of extensive burns. He had issued the post-mortem report (Exh.Ka-5), which he has proved. In his statement he had not stated that if sole of the victim is also found burned, it indicates that it was a case of homicide. No such suggestion was put to the Doctor. From a careful reading of statement of P.W.-2 it is evident that no definite opinion was expressed in regard to homicide or suicide.

P.W.-3 Dr. M. Rastogi had attended Rajbala when she was admitted in the hospital after the incident. He had found that there was superficial to deep burn on her face, neck, chest, back, thigh, hand and soles of the feet. Her hairs, skin, forehead were found to be burned and smell of kerosene oil was emanating from her body. She was admitted in a critical condition on 15th June, 1986 at 02.50 P.M. She died on 15th June, 1986 at 6.30-07.00 P.M. The Doctor has also stated that at the time of her admission, she was conscious but was in confused state of mind and was not in a position to give dying-declaration.

From the post-mortem report and the evidence of P.W.-2 and P.W.-3, it cannot be demonstrated that the Doctors who have attended the deceased at the time of admission in the hospital and who has conducted autopsy have established that it was a case of homicide and not suicide. P.W.-3 Dr. M. Rastogi attended the victim when she was admitted in the hospital. He found that there was superficial to deep burn on her face, chest, neck, back, thigh, feet, hand and sole. Her hairs on the front of skull were also found to be burnt. A strong smell of kerosene oil was emanating from her body.

Both the Doctors i.e. P.W.-2 and P.W.-3 have not expressed their definite opinion regarding the possibility of homicide. The trial Court has misread their evidence and only on the basis that sole of the victim was also found to be burnt, reached on the conclusion that it was homicide.

Modi in his 'A Textbook of Medical Jurisprudence and Toxicology (24th Edition, Reprint 2012)' has written a separate chapter, which deals with burns, scalds, lightening and electricity. According to him, people commit suicide by soaking their cloths with kerosene oil and then setting fire to them. The fire usually produces diffused superficial ballac with smell of kerosene. In the aforesaid book there is no clear distinction between homicidal and suicidal symptoms.

In another book Jhala and Raju's Medical Jurisprudence, Fifth Edition, the authors say that it is not always easy to come to a correct conclusion on the basis of nature of burns. The situation of burns is the determinative factor in differentiating suicide from homicide. The area of skin unaffected also indicates to some extent the possibility of resistance by victim or occluding or victim may try to cover her face so she may not call for help. Such clear areas by severe burns and degree should lead to a strong presumption of homicide.

In the present case, the Doctors have not reported any clear or the burns have been found uniformly on all parts of body including sole. The nature of burns injuries, in our opinion, shows that there was no resistance by the victim. When D.W.-1 reached at the spot, she was alone and was severely burnt. We see absolutely no reason to discard the evidence of D.W.-1, who is the eye witness and whose presence cannot be doubted.

The trial Court has convicted the appellant under Section 302 I.P.C. and has taken the aid of Section 113B of the Evidence Act also. The incident has taken place on 15th June, 1986. Section 304B has been inserted in the Indian Penal Code by Section 10 of Act 43 of 1986 (w.e.f. 19th November, 1986). By the same Act i.e. Act 43 of 1986 by Section 12 thereof Section 113B has been inserted in the Indian Evidence Act, 1972 with effect from the same date viz. 19th November, 1986. The appellant was charged under Section 302 I.P.C. and 498A I.P.C. Since Section 304B I.P.C., which is also brought on the statute with Section 113B of the Evidence Act by the same Act 43 of 1986, is not retrospective, he was not charged under Section 304B I.P.C..

This issue has been considered by the Supreme Court in the case of Lakhjit Singh and another v. State of Punjab2 and Lokendra Singh v. State of M.P.3. In Lakhjit Singh (supra) the Supreme Court held as under:

"7. The next question is whether an offence under Section 304-B or 306 is made out. It is true that the accused was tried only under Section 302 Indian Penal Code and it is submitted that question of drawing a presumption attracted under Section 113-A or 113-B does not arise. Section 113-B deals with the presumption of dowry death. In the instant case, taking the medical evidence as such, it can only be held that at the most the prosecution has proved that the death could be suicide and Section 304-B or the presumption under Section 113-B Evidence Act cannot be invoked because Section 304-B came into effect only on November 19, 1986 i.e. much later than when this offence took place. Therefore, we are left with the other offences punishable under Section 306 Indian Penal Code."

In Lokendra Singh (supra) also the Supreme Court has held in the following terms:

"7. Before we part with this record, we would like to mention that we have been compelled to exonerate the appellants from accusations levelled against them relating to the death of Lalita on the above grounds as Section 304-B IPC, which squarely applies to the facts of the instant case, was brought into the statute-book in 1986, while the death in question took place in 1985."

As regards invoking of Section 498A I.P.C., it is necessary for the prosecution to prove that woman was subjected to cruelty, which is likely to drive a woman to commit suicide. The explanation to Section 498A I.P.C. has defined the word 'cruelty'.

In Devi Lal v. State of Rajasthan4 the Supreme Court has held that Section 113A of the Evidence Act relates to offences under Section 498A I.P.C. and Section 113B of the Evidence Act relates to Section 304B I.P.C. There is a clear distinction between Sections 113A and 113B of the Evidence Act. Even under Section 113B the prosecution is obliged to produce the material/ evidence that soon before the incident the woman was subjected to harassment or cruelty. The time of "soon before" has not been determined. It depends on facts and circumstances of each case. No definite period has been indicated. But there must be a proximity between effect of cruelty and the death of women.

The trial Court in its impugned judgment has raised presumption against the appellant under Section 113B of the Evidence Act. In our opinion, the trial Court has failed to distinguish the difference between Section 113A and 113B as pointed out by the Supreme Court in Devi Lal (supra). Following passage is apposite in this regard:

"19. Section 113-A of the Act relates to offences under Sections 498-A and 306 of the Code, whereas Section 113-B relates to Section 304-B thereof. Whereas in terms of Section 113-A of the Act, the prosecution is required to prove that the deceased was subjected to cruelty, in terms of Section 113-B, the prosecution must prove that the deceased was "subject by such person to cruelty or harassment for, or in connection with, any demand of dowry"."

Regard may be had to the fact that both Section 304B I.P.C. and Section 113B of the Evidence Act were inserted in the Indian Penal Code and the Evidence Act by the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986) (w.e.f. 19th November, 1986). The legislative intention behind these amendments were to curb the growing evil of dowry deaths with iron hand. Section 113B is presumptive. The common and essential ingredient in both the sections enjoin the prosecution to prove that the woman concerned was subjected to cruelty 'soon before her death' for, or in connection with, the demand of dowry. Therefore, presumption under Section 113B can be raised only if prosecution proves the essential ingredients.

In Rajindar Kumar v. State of Haryana5 the Supreme Court has culled out following ingredients:

"15. ....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."

What emerges from the above law is that presumption under Section 113B can only be raised if prosecution successfully proves that women was subjected to cruelty soon before death. If there is no evidence to show that husband or his family members has harassed the woman or she was subjected to cruelty for or in connection with demand for dowry, no presumption under Section 113B can be raised.

Applying the above principle, which is well established law, in case at hand, we find that Section 113B of the Evidence Act has no application to the present case. The appellant was charged under Section 302, 498A I.P.C. and Section 4 of the Dowry Prohibition Act. The incident has taken place prior to insertion of Section 304B, hence the trial Court has wrongly raised the presumption under Section 113B.

This brings us to next question whether appellant can be held guilty under Section 498A I.P.C. and whether presumption can be raised against him under Section 113A of the Evidence Act. The only question left to consider is whether prosecution has successfully established charge under Section 498A against the appellant.

Section 498A I.P.C. and Section 113A of the Evidence Act have been inserted by the Criminal Law (Second Amendment) Act, 1983 in I.P.C. and the Evidence Act respectively. The Explanation to Section 498A defines the word "cruelty". To establish the charge under Section 498A, there must be evidence to establish the fact that a married woman was treated with cruelty in respect of unlawful demand for any property or valuable security. Section 498A I.P.C. reads as under:

"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.--For the purpose of this section, "cruelty" means--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

Section 113A of the Evidence Act raises a presumption if certain foundational facts are established. One of the objects of putting a period of seven year is that the legislation assumes that the couple would have settled down in life.

The presumption can be raised only if prosecution proves that married woman was subjected to cruelty which drove the married woman to commit suicide or to cause grave injury or she was harassed by the husband or his relative to meet unlawful demand for any property or valuable security. In such facts, Section 498A would be attracted and in case such harassment was caused in connection with any demand for dowry "soon before death", then ingredient of Section 304B are attracted. (Reference may be made to the judgments of the Supreme Court in Vijay Pal Singh and others v. State of Uttarakhand6, Smt. Shanti and another v. State of Haryana7 and State of Punjab v. Iqbal Singh and others8.

As discussed above, the incident has taken place before insertion of Sections 304B and 113B in I.P.C. and the Evidence Act respectively. There is no evidence regarding harassment of the victim except the testimonies of P.W.-4 and P.W.-6, whose evidence cannot be relied upon for the reason discussed above. The appellant has been charged under Section 302 I.P.C.

The finding of the trial Court regarding presence of the accused-appellant is totally based on conjectures. Similarly, the trial Court's finding regarding demand of dowry is also perverse. The trial Court has relied on the statements of P.W.-4 and P.W.-6 despite their material contradictions. Their testimonies are not beyond suspicion. The trial Court has ignored the written statement of accused-appellant as well as his statement under Section 313 Cr.P.C. and the statements of D.W.-1, who was present in the house when the incident had occurred. The trial Court has not given any cogent reason for brushing aside the evidence of D.W.-1 and D.W.-2. D.W.-1 was cross-examined by the prosecution at length but nothing material contradiction was pointed out by the trial Court in her statement. The trial Court has not appreciated the evidence of D.W.-1 and D.W.-2 in correct perspective.

The Supreme Court in the case of Dudh Nath Pandey v. State of U.P., AIR 1981 SC 911, has considered the issue regarding appreciation of evidence of the defence witness. The Court has held as under:

"19. .... Defence witnesses are entitled to equal treatment with those of the prosecution. And Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses...."

From the evaluation of the prosecution materials discussed above, it is abundantly clear that evidence brought on record fails to establish charges against the appellant. Hence, the appellant is not found guilty of charges under Sections 302 and 498-A I.P.C. and Section 4 of the Dowry Prohibition Act. The trial Court has chosen to side step the evidence produced by the defence. As a matter of fact, the evidence of defence is both cogent and inspire confidence.

In view of the foregoing discussions, we are of the opinion that the impugned judgment and order of the trial Court dated 24th January, 1989 holding the appellant guilty for the offence punishable under Sections 302 & 498-A I.P.C. and Section 4 of the Dowry Prohibition Act and consequently sentencing him under the said sections is liable to be set aside. Accordingly, it is set aside. The appellant is acquitted from the charges under Section 302/34, 498-A I.P.C. and 4 of the Dowry Prohibition Act. The appellant is on bail. He need not to surrender. His bail bonds and sureties are discharged, if he is not wanted in any other case.

Accordingly, the appeal is allowed.

Judgement be certified and placed on the record.

Let the record of the trial Court along with a certified copy of this order be sent to the concerned Court below for ensuring compliance of the order.

Material exhibits, if any, be disposed of after statutory period in accordance with rules.

Order Date :- 24th April, 2018.

SKT/-