Pramod Kumar Sharma & Others vs State
2018 Latest Caselaw 2572 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on : 01.08.2018
 
Delivered on :14.09.2018
 
Court No. - 50
 

 
Case :- CRIMINAL APPEAL No. - 444 of 1988
 

 
Appellant :- Pramod Kumar Sharma & Others
 
Respondent :- State
 
Counsel for Appellant :- C.P.Misra,Aseem Kumar Rai,Lav Srivastava
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Harsh Kumar,J.

1. This appeal has been filed against the judgment and order dated 17.02.1988 passed by Ist Additional Sessions Judge, Kanpur Nagar in Sessions Trial No. 501 of 1985, under Sections 302, 498-A read with Section 34 IPC, Police Station Chakeri, District Kanpur arising out of Case Crime No. 485 of 1985, by which the three accused persons were acquitted of the charges under Section 302 IPC and held guilty and convicted for the offences under Section 498-A/34 IPC and 304-B/34 IPC and sentenced with three years rigorous imprisonment under Section 498-A/34 IPC and with seven years' rigorous imprisonment under Section 304-B/34 IPC.

2. Feeling aggrieved, all the three convicts preferred this appeal.

3. The brief facts relating to the appeal are that Vinod Shankar Sharma, lodged a FIR at Police Station Chakeri District Kanpur at 00:30 p.m. on 10.05.1985 at Case Crime No. 485 of 1985 under Sections 498-A and 302 IPC against the appellants stating that "the complainant made marriage of his daughter Veena Sharma with Pramod Sharma, resident of 199-D/14 Bengali Colony, Harjinder Nagar, Police Station Chakeri, Kanpur, on 21.02.1985; that in marriage his son-in-law and samdhi had demanded 'Bajaj Super Scooter' and bride's jewellery; that he gave 'Vijai Super Scooter' instead of 'Bajaj Super Scooter' in marriage which caused annoyance to them; that Smt. Shakuntala Devi mother-in-law, Madan Mohan Lal Sharma father-in-law and Pramod Sharma son-in-law, husband, treated his daughter with cruelty for not bringing heavy jewellery and Bajaj Super Scooter in dowry; that sometime back when his daughter had come to his home on "Vida", she made complaints with his wife and other members of the family about the cruel treatment she met at the hands of her in-laws; that on 06.08.1985 birth day of Pramod Sharma was celebrated at their home which was attended by him alongwith his wife, brother Pramod Shankar and one friend Nawal Behari Agrawal resident of Shanti Nagar, Police Station Rail Bazar, Kanpur; that on birthday of Promod Sharma also mother-in-law, son-in-law and father-in-law all expressed their displeasure before everybody present there by saying that complainant was not keeping his words about dowry and in case the demand of dowry is not met and fulfilled within two days, they will not spare his daughter alive; that his daughter, also informed him that all these three persons were planning to kill her; that the complainant assured his son-in-law, Samdhi and Samdhan that he will try to fulfill their demands but he failed to fulfill within two days; that today on 09.08.1985 at 8:30 p.m. in night his son-in-law came to his house and informed that the condition of Veena is very serious and she has been taken to hospital by members of his family; that the complainant accompanied his son-in-law to Urshala hospital and on reaching Ursula Hospital Emergency Ward he found Veena lying dead and her nails and lips had turned blue as the accused had caused her death by administering poison.

4. Upon investigation charge-sheet was submitted against the appellants under Section 498-A and 302 IPC and case was committed to Sessions. The Additional Sessions Judge, Kanpur upon hearing the learned counsel for accused framed charges against them under Section 302/34 for committing murder of Smt. Veena Sharma and under Section 498-A/34 IPC for treating Smt. Veena Sharma (deceased) with cruelty for non-fulfilment of demand of dowry. The appellants denied the charges and demanded trial.

5. The prosecution in order to prove its case produced Rakesh Gupta, Syed Ramjan Ali, Rameshwar, Vinod Shankar Sharma, Naval Bihari Aggrawal, Virendar Kumar Sharma, Dr. S.N. Sharma, Dr. S.P. Harpalani, Bhagwant Singh and Surendar Kumar Bhagat as PW-1 to PW-10, whereafter the statements of accused persons were recorded under Section 313 Cr.P.C. and the accused-appellants produced Ram Asrey and D.S. Negi as defence witnesses Nos. 1 & 2. After completion of parties evidence the learned Trial court delivered impugned judgment of conviction giving rise to this appeal.

6. During the pendency of appeal appellant no. 3 Smt. Shakuntala Devi was reported to have died and the appeal in respect of her was abated vide order dated 08.05.2017.

7. Heard Sri V.P. Srivastava, Senior Advocate, assisted by Sri Luv Srivastava, learned counsel for the appellant and Sri L.D. Rajbhar, learned AGA for the State and perused the record.

8. Learned counsel for surviving appellant nos. 1 & 2 submitted that appellant no. 1 is the husband and appellant no. 2 is the father-in-law of Smt. Veena Sharma (deceased) and have been falsely implicated for committing her murder or treating her with cruelty for non-fulfilment of demand of dowry; that the appellants never made any demand of dowry from the deceased and never harassed her or treated her with cruelty for non-fulfilment of demand of dowry; that entire prosecution story is absolutely false, incorrect and concocted; that undisputedly, Smt. Veena Sharma died on 09.08.1985 within six months of marriage but since she died a natural death due to sudden abdominal disorder, the appellants may not be held guilty for causing her dowry death; that it is wrong to say that appellants administered some alcoholic or poisonous substance to the deceased; that when the deceased fell ill she was immediately taken to one of the best hospital i.e. Ursula Hospital, Kanpur and at the same time (without any delay) appellant no. 1, the husband of the deceased approached his father-in-law, the first informant and fetched him to the hospital; that it is wrong to say that the appellants taken the deceased to Ursula Hospital for treatment by a longer route so that she may die on way to hospital; that prosecution witnesses Rakesh Gupta, Ramjan Ali and Rameshwar PW-1, PW-2 & PW-3 have deposed falsely under influence of first informant; that the first informant Vinod Shankar Sharma, his friend Naval Bihari Aggrawal and brother of first informant Virendar Kumar Sharma respectively, father, father's friend and father's brother of deceased examined as PW-4, PW-5 and PW-6 are interested witnesses and have deposed wrongly to harm and harass the appellants; that PW-7 to PW-10 are formal witnesses as PW-7, Dr. S.N. Sharma is the Autopsy Surgeon PW-8, Dr. S.K. Harpalani is assistant director of Forensic Lab, Agra, PW-9 Head Constable Bhagwant Singh has proved the chik FIR and PW-10, S.K. Bhagat is Investigating Officer; that appellant no. 1 is a stenographer in Indian Air Force and nominated his wife Smt. Veena/Meena Sharma as nominee for his G.P.F. and other service funds; that had there been any demand of dowry from her or any differences with her, he would not have nominated his wife for funds in his service records; that the date of birth of appellant no. 1 is 25.09.1959 and the allegations about celebration of his birthday on 06.08.1985 and making of alleged complaints with first informant regarding dowry are absolutely false and baseless; that D.W.-1 Ram Asrey Upper Divisional Clerk in Central Servicing Development Organisation Air Force, Kanpur, has proved and produced true copies of the service records of appellant no. 1 along with that of his service book showing entry of his date of birth as 25.09.1959 as well as nomination of his wife Smt. Veena/Meena Sharma for funds in service records; that DW-2 has proved that Rameshwar son of Patilal PW-3 was on duty in the Air Force Office on 09.08.1985 from 8:00 a.m. to 5:06 p.m. and was neither on leave nor absent on above date; that the learned trial Court has acted wrongly in convicting the appellants for the offence under Section 304-B/34 IPC without there being any charge framed against them under above Section; that there is no iota of evidence to prove any demand of dowry was ever made by appellants or any of them from the deceased or first informant, or the deceased was ever harassed or treated with cruelty for non-fulfilment of alleged demand of dowry; that the incident in question with regard to death of Smt. Veena Sharma has taken place on 09.08.1985 on which date provisions of Section 304-B IPC were not in existence as Section 304-B IPC has inserted in the Indian Penal Code by Act 43 of 1986 with effect from 19.11.1986; that similarly the provisions of Section 113-B of Indian Evidence Act were also inserted by same Amendment Act 43 of 1983 with effect from same date 19.11.1986; that since the provisions of Sections 304-B IPC and 113-B Indian Evidence Act were not in existence as on 09.08.1985 the date of incident of alleged offence, the appellants may not be held guilty or convicted or punished for the offence under Section 304-B IPC; that there can be no presumption of dowry death against them in view of provisions of Section 113-B of Indian Evidence Act; that the learned trial Court disbelieving the prosecution evidence has rightly acquitted the appellants from the charges under Section 302/34 IPC but acted wrongly and illegally in convicting them by relying on the same evidence for the offence under Section 304-B IPC with the help of provisions of Section 106 and 113-B of Indian Evidence Act; that the impugned judmgment is based on surmises and conjectures and the findings of trial Court for convicting the appellants are wrong, incorrect, self contradictory and perverse also; that the prosecution failed to prove the charges against the appellants by any trustworthy, independent and cogent evidence; that the impugned judgment and order of conviction is liable to be set aside and appellants are liable to be acquitted.

9. Per contra, learned AGA supported the impugned judgment and order of conviction. He contended that the appeal has been filed with absolutely false and baseless allegation which is liable to be dismissed.

10. Upon hearing learned counsel for the parties and perusal of record as well as paperbook and lower court record summoned in the appeal I find that the appellants were charged for the offences punishable under Sections 302/34 and 498-A I.P.C. for causing death of Smt. Veena Sharma, wife of Pramod Sharma, appellant no. 1 and daughter-in-law of Madan Mohan Lal Verma, appellant no. 2, on 09.08.1985 for non-fulfilment of demand of dowry. It is not disputed that marriage of Veena Sharma and appellant no. 1, Pramod Sharma was solemnized on 21.02.1985 and her death did take place within six months of marriage. Upon postmortem of the body of deceased, the cause of death could not be ascertained and viscera was preserved and according to the viscera report of Forensic Lab, Agra upon analysis of part 1 to 6 of viscera, alcoholic poison was found.

11. The prosecution produced as many as ten witnesses out of which PW-1, Rakesh Gupta, is a tempo driver, who has stated that the deceased was taken by him to Ursula Hospital, Kanpur in his Vikram (tempo) and when the girl boarded in his tempo alongwith two to three persons including a lady, she was crying and saying "gekjs eEeh ikik dks cqyk nks bu yksxks us eq>s ekj Mkyk gSA" He further stated that he was asked not to go by Harjinder Nagar Road rather was asked to go to Hospital by longer route via Rama Devi Circle, G.T. Road for which he was pain additional amount of Rs.5/-.

12. PW-2, Syed Ramzan Ali, has stated that on way to his home when he reached near Mehboob Market he also reached at a place where 20-25 persons were assembled and three persons were getting a girl boarded in Vikram tempo and she was crying "gekjs ikik vkSj eEeh dks cqyk nks gesa tgj fiyk fn;k gS] ges dksbZ cpk yksA"

13. PW-3, Rameshwar, who is also a witness of same fact, when deceased was being taken to Hospital and has stated that about 7.30 to 8.00 p.m. when he was going to home, he also joined the crowed near Meboob Market and saw that a girl was weeping and saying that "eEeh] ikik] bu rhu yksxksa us tgj fn;k gSA He further stated that the girl was known to him, whose name was Veena Sharma and vikram (tempo) was fetched by some relatives of Pramod Kumar Sharma and alongwith the girl, her mother-in-law, father-in-law and two other persons, also boarded and some relative of Pramod Sharma asked tempo driver to not to go via Harjinder Nagar and suggested him to go via Rama Devi Circle, G.T. Road.

14. PW-4 is the first informant, father of the deceased, who has stated that he solemnized marriage of his daughter Veena Sharma with Pramod Sharma and gold ornaments of about three tolas and 'Vijay Super Scooter', against the demand of 'Bajaj Super Scooter', were given in the marriage. He further stated that the accused-appellants used to treat his daughter with cruelty for non-fulfillment of demand of dowry and bringing Vijay Super Scooter in place of 'Bajaj Super Scooter' as well as for bringing very light weight jewellery. He also stated that on 06.08.1985, he had gone to the matrimonial house of his daughter to attend the function of birthday of his son-in-law Pramod Kumar Sharma alongwith his wife, his brother Pramod Shankar Sharma and friend Nawal Bihari Aggarwal with a Tericott-suit for his son-in-law and complaints regarding dowry were made to them with a warning that if their demands are not fulfilled within two days, they will not spare his daughter. He further stated that on 09.08.1985 at about 8.30 to 9.15 p.m. Pramod Kumar Sharma came to his home and reported that the condition of his daughter (Veena Sharma) is serious and his family members have taken her to Ursala Hospital, Kanpur and upon asking, PW-5 accompanied his son-in-law Pramod Sharma to the Ursala Hospital and there found his daughter dead.

15. PW-5, Sri Nawal Bihari Agarwal had made similar statement that he accompanied PW-4 at the time of birthday of his son-in-law and that complaints about dowry with warning of two days were also given by the accused-appellants in his presence.

16. PW-6, Virendra Kumar Sharma, brother of first informant had stated that upon getting the information of death of his niece, he also went to the Hospital where Rameshwar told him about the incident when she was being taken to the Hospital and crying that poison has been administered to her.

17. PW-7 Dr. S.N. Sharma, Autopsy Surgeon has stated that alcohol may be found in the body due to fermentation of carbohydrates. He has stated that no sample of blood or urine of the deceased was taken and in case of oral consumption of alcohol or administration of alcohol orally, the traces of alcohol will come in the sample of blood and urine.

18. PW-8, Dr. S.P. Harpalani, the Assistant Director, Forensic Science Lab, Agra has stated that after consumption of alcohol generally from half to two hours, the concentration of alcohol in blood reaches to maximum. Since in this case there is nothing to show that the blood and urine sample of the deceased also had traces of alcohol, then it may not be stated with certainty that alcohol was administered orally, and in absence of any test or blood sample or urine sample, no definite opinion of consumption or administering of oral alcohol may be given.

19. PW-9 is the Head Constable, Bhagwat Singh, who has proved the chick FIR, GD etc. and PW-10, Surendra Kumar Bhagat is the Investigating Officer, who has proved the investigation done by him as well as various documents of formal nature.

20. In defence evidence, accused-appellants produced DW-1, the Upper Division Clerk/Officiating Office Superintendent, Central Servicing Development Organization, Air Force, Kanpur with original service records of Pramod Kumar Sharma, a Grade-III Stenographer in Air Force and filing copies thereof, proved that accused-appellant no. 1, Pramod Kumar Sharma had nominated his wife Smt. Veena Sharma, deceased in his service records with regard to provident fund and other funds and that the date of birth of Pramod Kumar Sharma mentioned in his service book is 25.09.1959. DW-2, also U.D.C. in Central Office of Quality Assurance General Stores, Kanpur brought the original attendance register with him and filing the copy thereof, proved that PW-3 Rameshwar was working in his office and was on duty on the date of incident i.e. 09.08.1985 from 8.00 a.m. to 5.06 p.m.

21. In the impugned judgment, the learned trial court has held that:

1. "the motive to the crime of murder when pleaded has got to be proved consistently by positive and cogent evidence but the mother and chacha of the deceased, who allegedly accompanied first informant to the house of accused on the occasion of birthday celebrations, where non-fulfilment of dowry promise was complained with threatening in the alternative, have not been produced by the prosecution."

2. "There is sufficient material of medical evidence on record that presence of Ethyl Alcohol can be found in the body due to fermentation of carbohydrates and merely because the accused-persons were having an opportunity of administering alcohol and same was found in the body of deceased, it cannot be said that the accused had administered alcohol." The presence of alcohol in the body as such cannot give a clear cut indication that the administration of alcohol to Smt. Veena was from outside and by the accused, unless the quantitative tests had been conducted and it would have been brought on record that as calculations of the quantitative results, the death would have been caused as a result of that quantity of alcohol administered. Since this all has not been proved it cannot be said that the accused had actually administered alcohol to Smt. Veena which resulted into her death."

22. The trial court has disbelieved PW-1, 2 and 3,the witnesses about dying declaration of deceased on way to hospital because each of them gave different verbatim version of her statement which is altogether different in the statements of each PW-1, PW-2 and PW-3 and also because PW-2, Rameshwar S/o Putti Lal was found to be on duty on the date of incident, as proved by DW-2 with official record of Central Office of Quality Assurance General Stores, Kanpur, as against his claim that he was on leave. Disbelieving the alleged road side dying declaration of the deceased, in tempo (which was allegedly over heard by all PW-1, 2 and 3). The trial court has further held that:

3."The alleged dying declaration does not appear to have been made in at all and in such circumstances where the doubts are caused, the benefit goes in favour of accused."

4.The prosecution has pinpointedly failed in this case to prove that the death of Smt. Veena, deceased, was caused due to administration of alcohol and that they were the accused who actually caused the death of Smt. Veena Sharma by administering her alcoholic poison. No case under Section 302 IPC has been made out as such."

23. Thereafter, in contradiction to the above specific findings, learned trial court in view of ill treatment with deceased for non-fulfillment of demand of dowry, has held that:

A. Since death of Smt. Veena has taken place in mysterious circumstances at the house of the accused persons, most presumably within the knowledge of accused and since she died after short time from marriage and no case of suicide has been set up by the prosecution or defence, in view of provisions of Section 106 of Evidence Act, since the evidence were specially within the knowledge of accused persons, the burden of proving those evidence lies on them.

B. Since the presumption of Section 106 Evidence Act having not been rebutted by the defence, the presumption as to dowry death provided under Section 113B of Indian Evidence Act will also consequently and resultantly come into motion.

C.In view of the presumption under Section 113B of Indian Evidence Act, the accused-appellants are guilty for committing "Dowry Death" of deceased and are liable to be convicted for the offence punishable under Section 304B IPC.

D.that since presumption is there that the death of Veena Sharma was a 'Dowry Death' the three accused persons are also guilty for offence under Section 498A IPC as well.

24. It is pertinent to mention that against the acquittal part of the impugned judgment acquitting the accused appellants from the charges of offence under Section 302 IPC neither Government Appeal nor any Criminal Appeal by first informant is reported to have been filed and the findings in respect of acquittal of accused appellants under Section 302 IPC have not been challenged or disputed.

25. Upon careful consideration of evidence on record and arguments advanced, I find that admittedly, the marriage between the deceased and accused-appellant, Pramod Kumar Sharma was solemnized on 21.2.1985. As per prosecution case at the time of marriage some jewellery and 'Vijay Super Scooter' were given by the first informant. It is also contended that 'Bajaj Super Scooter' was demanded in marriage and the accused persons had made complaint about it as well as of light weight gold jewellery.

26. In times around 1985, four wheelers were afforded only by rich people, and middle class used to afford only two wheelers. Amongst two wheelers 'Bajaj Super Scooter' used to be a status symbol at that time, which required a long waiting after booking. At that times 'Vijay Super Scooter' had also come into market at a lesser price and was widely liked for lower price and no botheration of booking with long waiting. At those times, after marriage generally the mother-in-law or members of the family of husband used to be in habit of searching for the defects or short-comings in bride or in the gifts brought by her at the time of marriage and they used to pass unpleasant comments, for bringing light weight jewellery, for not giving good reception/food to marriage party and also for bringing articles of inferior quality, even if everything would have been of super and best quality. The prosecution has not specified in the FIR or in statements of the first informant or his friend, PW-4 & PW-5 that apart from the complaint of giving 'Vijay Super Scooter' in place of 'Bajaj Super Scooter' and giving light weight jewellery, the accused-appellants made demand for any other item/article or cash after marriage or even asked the first informant or mother of the deceased to give 'Bajaj Super Scooter' by taking back 'Vijay Super Scooter'.

27. In the circumstances, even if during short stay of deceased at her matrimonial house, her mother-in-law, father-in-law or husband or any of the accused-appellants ever passed any such unpleasant comments for bringing light weight jewellery or 'Vijay Super Scooter' in place of 'Bajaj Super Scooter', it will not be correct to say that there was any demand of dowry for non-fulfillment of which she was being treated with cruelty. There is no whisper in the FIR or in the statements of PW-1 and his friend PW-4 and PW-5 or any other witness that for above reasons the deceased was ever harassed, ill-treated or tortured in any manner whatsoever or was beaten or was deprived from meals or any other thing. In the short span of married life of deceased there is no whisper that during this period she was ever ousted from her matrimonial house or any Panchayat or reconciliation talks ever taken place. According to prosecution case, there was single incident of demand of dowry dated 6.8.1985 as mentioned in the FIR as well as statements of first informant, PW-4. It is stated that on 06.08.1985, the celebrations of birthday of Pramod Sharma at the matrimonial house of deceased were attended by first informant alongwith his wife, brother-Pramod Shankar and friend-Naval Bihari Agarwal and during function,the accused-appellants expressed their displeasure, in presence of all the guests, for not complying with the demand of dowry as per promise and also threatened them with two days ultimation for compliance of above demands and that the deceased also told him that accused are planning for her murder.

28. Even a person who demands and accepts dowry, publicly claims himself to be strongly against the dowry but also claims that he has performed marriage of his son without taking any dowry for keeping his image of an ideal person in society, even such dowry hungry people usually supposed to make complaints/demands with the parents of the bride in isolation. All the shortcomings in marriage, dowry as well as in bride, are usually reported to mother of bride. It is highly improbable that any person would show such displeasure publicly during the alleged birthday function in presence of his guests to diminish his reputation in the society and so prosecution story with regard to demands dated 6.8.1985 does not appear correct. Moreover, the mother of deceased would have been the best witness to give evidence regarding the displeasure, complaint or threat allegedly made by the accused-appellants on 06.08.1985 at the time of celebrations of birthday of her son-in-law, but prosecution has failed to assign any reason for not producing her or even Pramod Shankar, the uncle of deceased. It is settled principle of law that if a party in possession of best evidence, fails to produce such evidence or witness, adverse inference must be drawn against him/her holding that had the witness been produced, would not have supported the prosecution case. There is sufficient ground for drawing adverse inference against prosecution for non-production of mother and uncle of deceased in evidence. It is also pertinent to mention that accused-appellants have stated the date of birth of Pramod Sharma to be 25.09.1959 and proved the same by producing his service records through DW-1 and since his birthday did not fall on 06.08.1985, there can be no birthday celebrations at the house of accused persons on 6.8.1985 and the question of attending alleged function by the first informant, his wife, brother- Pramod Shankar or friend-Naval Bihari Agarwal with presentation of tericott suit to accused-appellant no.1, Pramod and making of any demand of dowry or giving of any threat with two days ultimation does not arise and entire prosecution story about demand of dowry shatters and fails.

29. In view of the discussions made above, I find that the prosecution has utterly failed to prove that there was any demand of dowry or that the deceased was subjected to harassment or cruelty for non-fulfilment of alleged demand of dowry and utterly failed to prove the charges of offence under Section 498-A IPC against the accused-appellants or any of them.

30. Certain facts and undisputed legal provisions relevant for disposal of this appeal are as under:-

1.The death of Smt. Veena @ Meena Sharma did take place on 09.08.1985.

2. The provisions of Chapter XX-A of 'CRUELITY BY HUSBAND OR RELATIVES OF HUSBAND' with addition of Section 498-A in the Indian Penal Code were inserted by Act 46 of 1983 and enforced w.e.f. 25.12.1983.

3. The provisions of Section 113-A of Indian Evidence Act with regard to 'PRESUMPTION AS TO ABETMENT OF SUICIDE BY A MARRIED WOMEN' were also inserted by same Act 46 of 1983 and enforced w.e.f 25.12.1983.

4. The provisions of Section 304-B IPC regarding 'DOWRY DEATH' were inserted by Act 43 of 1986 and enforced w.e.f. 19.11.1986; and

5. Similarly the provisions of Section 113-B of Indian Evidence Act with regard to 'PRESEUMPTION AS TO DOWRY DEATH' were also inserted by same Act 43 of 1986 and enforced w.e.f. 19.11.1986.

31. The newly added provisions of Section 304-B of IPC and Section 113-B of Indian Evidence Act are being reproduced as under:

Section 304-B of Indian Penal Code:-

Dowry Death.--

1. Where the death of a 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 purpose 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 a term which shall not be less than seven years but which may extend to imprisonment for life.

1. Section-113-B of Indian Evidence Act:-

1. 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 has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. 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)

32. Provisions of Article-20 of Constitution of India are as under:

"Art. 20.(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself."

33. From the bare perusal of above provisions of Article-20 of Constitution of India, it is crystal clear that

(i) no person shall be convicted for any offence except for violation of law in force at the time of commission of the act charged as offence;

(ii) nor shall be subjected to penalty greater than that, which might have been inflicted under the law in force at the time of commission of offence.

34. In view of above Constitutional provisions, for a wrongful act which is not an offence in violation of a law in force at the date of its commission, the person who had committed the said act cannot be held guilty or punished and the same may not be termed as offence if subsequently the legislature by way of amendment in existing legislation or by enactment of new legislation, declares it a punishable offence, because it was not an offence at the time of its commission. Similarly, if an act in violation of law in force falls in category of punishable offence and is punishable with imprisonment for certain years or fine and enactment by way of amendment increases the punishment/sentence provided for the same offence, the offender may not be sentenced with higher punishment under amended provisions, greater than the punishment which was earlier provided under unamended provisions in force at the time of commission of offence. By Act 46 of 1983, amendments were made in Indian Penal Code and Indian Evidence Act as mentioned above and the provisions of Section 498-A and Section 113-A of Indian Evidence Act were enforced w.e.f. 25.12.1983 i.e. prior to the commission of offence in question dated 09.08.1985, however the provisions of Section 304-B IPC regarding the 'Dowry Death' and Section 113-B of Indian Evidence Act regarding the 'Presumption as to Dowry Death' were inserted and enforced w.e.f. 19.11.1986 by amending Act 43 of 1986 i.e. subsequent to the date of commission of offence in question dated 09.08.1985.

35. In view of the protection provided under Article 20 of Constitution of India, even in case of death of a bride by any burns or bodily injuries or otherwise than under normal circumstances within seven years of her marriage, even if she is shown to have been subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with demand of dowry, prior to 19.11.1986, her husband and his relatives may not be held guilty of offence of Dowry Death under Section 304B, by pressuring commission of such offence in view of presumption of dowry death as provided under Section 113-B of Indian Evidence Act. Hence, the conviction of appellants under Section 304-B IPC may not be considered correct and in accordance of law.

36. In view of the provisions of Dowry Death under Section 304-B IPC and presumption of such death under Section 113-B of Indian Evidence Act, a person will be held guilty or convicted for committing Dowry Death, subject to following conditions or requirements;

1. The death of a women is caused by any burns or bodily injuries or occurred other than under normal circumstances, and

2. Her death has occurred within seven years of marriage, and

3. She is shown to have been subjected to cruelty or harassment by her husband or any relative of her husband, and

4. Such harassment or cruelty was in connection with any demand of dowry; and

5. She was subjected to such harassment or cruelty, soon before her death (as provided under Section 113B of Indian Evidence Act), only then

6. and there will be presumption of Dowry Death against the husband of deceased or his relatives.

37. So in view of above provisions, demand of dowry and subjecting the deceased with cruelty or harassment for non-fulfillment of demand of dowry by husband or his relative are necessary ingredients to be proved by prosecution and in case the prosecution succeeds in proving such harassment and offence under Section 498-A IPC, only then the presumption under Section 113-B will arise against the accused for holding him guilty for dowry death and convicting him under Section 304-B IPC.

38. In the impugned judgment learned trial court on one hand has held that the accused cannot be held guilty for administering alcohol or poison to the deceased but on the other hand in contradiction to the same, by taking into consideration the provisions of section 106 and Section 113-B of Indian Evidence Act, has held the accused-appellants guilty for committing Dowry Death of Smt. Veena Sharma, deceased, which are self contradictory findings. Learned trial court at one place has held that the prosecution has failed to prove that there was any demand of dowry or deceased was subjected to cruelty or harassment for non-fulfillment of demand of dowry but at the same time in contradiction to above findings acted wrongly in drawing presumption of offence under Section 498-A IPC in view of the presumption under provision of Section 113-B of Indian Evidence Act against the appellants, which was not available to the prosecution because Istly the provisions of Section 113-B of Evidence Act were not in existence at the time of commission of the crime in question as on 9.8.1985 when the death of Smt. Veena Sharma did take place and IIndly because presumption of Dowry Death arises only upon proof of harassment or cruelty in connection with demand of dowry and not vice-versa. In absence of proof of harassment or cruelty to deceased bride in connection with demand of dowry, no presumption of Dowry Death may arise under provisions of Section 113-B of Indian Evidence Act. The learned trial court has put the cart before the horse and by holding the accused persons guilty of offence under Section 304-B IPC has also held them guilty of offence under Section 498-A IPC, in view of provisions of presumption under Section 113-B of Indian Evidence Act (which both were not in existence on date of occurrence). Such findings of court below in the judgment at page 205 of the paper book that "since presumption is there that death was a dowry death the three accused persons are held guilty under Section 498-A IPC as well," are absolutely wrong, illegal and perverse also.

39. In view of the discussions made above, the findings given by learned trial court with regard to conviction of appellants under non-existing provisions of offence under Section 304-B IPC are in contradiction to its own findings with regard to acquittal of accused persons under Section 302 IPC which are perverse also and if allowed to stand may cause miscarriage of justice.

40. As per evidence on record, upon autopsy of the body of Smt. Veena, the cause of death could not be ascertained and her viscera was preserved and according to the chemical analysis report of Forensic Lab, Agra duly proved by Dr. Harpalani, PW-8 alcoholic person was found in the viscera.

41. The postmortem report of deceased shows that she was empty stomach and only one ounce semi digested food was found in her abdomen while her small intestine was half filled with gases and in large intestine there was faecal matter with gases. The deceased alleged to have been taken to hospital around 8.00 p.m. by which time she appears to have not taken dinner and possibility of administering alcoholic poison to her may not be ruled out. However, mere on such possibilities only finger of suspicion may be raised on appellants and in absence of any truthful, reliable and cogent evidence mere on the basis of suspicion, how high so ever strong it may be they may not be held guilty or convicted.

42. In view of the statements of prosecution witnesses 7 and 8 Dr. S.N. Sharma and Dr. S.P. Harpalani, alcohol may be found in body due to fermentation of carbohydrates and for ascertaining as if alcohol was administered from outside, test reports of blood and urine sample were necessary. Admittedly, blood and urine samples of deceased were not taken and in absence of taking of such samples of blood and urine and obtaining test reports and getting positive results, it cannot be said that the poisonous alcohol was administered to deceased from outside. It is noteworthy that since the prosecution failed to corroborate administering of poisonous alcohol from outside by the blood and urine tests reports, the learned trial court has held accused-appellants not guilty for causing her death by poisoning under section 302/34 I.P.C.

43. I find that once the appellants were found not guilty for committing the death of Smt. Veena Sharma by poisoning on 09.08.1985 and acquitted of the charges under Section 302/34 IPC, they may not be held guilty for causing her dowry death by poisoning, with the help of provisions under section 113-B of Indian Evidence Act which were not in existence as on 9.8.1985 and section 106 Evidence Act. Once the trial court has given a specific finding at page 36 of impugned judgement (at page 198 of paper book), as also reproduced in sub-para 1, 2, 3 and 4 of para 21 ibid that "in view of evidence on record it cannot be said that the accused had actually administered alcohol to Smt. Veena Sharma which resulted into her death" and held the accused appellants not guilty for the offence under section 302/34 I.P.C, they cannot be held guilty for administering alcohol or poison and committing her dowry death and convicted for the offence under section 304-B/34 I.P.C.

44. In view of the discussions made above, I am of the considered view that the learned trial court after holding that prosecution has failed to prove any demand of dowry by the accused appellant and causing of death of Smt. Veena Sharma by administering alcohol or poison by them as well as holding them not guilty for offence under Section 302/34 IPC for committing death of Smt. Veena Sharma has acted wrongly, illegally and perversely in holding them guilty for causing dowry death of Veena Sharma on 09.08.1985 and convicting them for the offence under Section 304-B IPC without there being any charge under Section 304-B/34 IPC, as well as consequently also holding them guilty of subjecting the deceased to harassment and cruelty in connection with non-fulfillment of demand of dowry and also convicting them for the offence under Section 498-A/34 IPC. The prosecution has utterly failed to prove the charges under Section 498A/34 IPC against the accused-appellants or any of them by any reliable, independent and cogent evidence beyond reasonable doubt. The provisions of Section 113-B of Indian Evidence Act and Section 304-B IPC were neither in existence nor in force at the time of incident in question dated 09.08.1985 as above provisions came into force with effect from 19.11.1986 and the trial court had no reason or justification to hold accused-appellants guilty for committing of dowry death of Mrs. Veena Sharma in view of presumption under Section 113-B of Indian Penal Code, which were not available against them, inspite of there being to charge framed under Section 304-B/34 IPC at the time of framing of charges on 27.07.1986 or even after 19.11.1986.

45. The appeal is liable to be allowed. The impugned judgment and order of conviction under Section 304-B/34 and 498-A/34 IPC are liable to be set aside and appellants are liable to be acquitted.

46. The appeal is allowed. The impugned judgment and order of conviction is set aside and accused-appellants stands acquitted of charges of offences under Section 304-B/34 as well as Section 498-A/34 IPC also.

47. The appellants are on bail. Their bail bonds and surety bonds are cancelled and sureties are discharged. They need not surrender unless wanted in some other case.

48. The material exhibits, if any, will be disposed of in accordance with rules.

49. Office is directed to send back the lower court record forthwith alongwith copy of judgment in this appeal, for necessary action, if any, by court below.

Order Date: 14.9.2018

Deepika