State Of Uttarakhand vs Deepa Devi & Another
2023 Latest Caselaw 1556 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL
      Government Appeal No. 80 of 2013

State of Uttarakhand                            ... Appellant

                            Versus

Deepa Devi & Another                        ... Respondents

     Mr. J.S. Virk, Deputy Advocate General, for the
     State/appellant.
     Mr. Sandeep Tiwari, Advocate, for the
     respondents.

                               Judgment reserved on: 22.5.2023
                            Judgment pronounced on: 07.6.2023


Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

(Per: Hon'ble Manoj Kumar Tiwari, J.)

State has filed this appeal challenging the judgment and order dated 11.4.2013, passed by Sessions Judge, Chamoli (Gopeshwar) in Sessions Trial No. 26 of 2010, whereby respondents have been acquitted of the charges punishable under Sections 498-A, 304-B and 302 IPC.

2. Prosecution story, in brief, is that PW1 Devendra Prasad Thapliyal lodged an FIR on 4.12.2009 stating that he received information at 6 o'clock in the evening of the previous day that his daughter has passed away. Informant further stated in the FIR that he believed that accused persons have killed his daughter.

3. On these facts, FIR was registered against three persons, namely, Matrika Prasad (husband of the deceased), Smt. Deepa Devi (mother-in-law of the deceased) and Durga Prasad (younger brother-in-law of the deceased) and investigations were carried out. After investigation, chargesheet was filed against Matrika Prasad and Smt. Deepa Devi (respondents herein). Charges were framed against the accused for the offences under Sections 498-A, 304-B and 302 IPC, to which accused pleaded not guilty and claimed trial and took the plea of alibi.

4. Prosecution, in order to prove its case, examined as many as seven witnesses. PW1 Devendra Prasad is complainant and father of the deceased; PW2 Manish Kumar is brother of the deceased and witness of inquest; PW3 Smt. Anju Dimri is younger sister of deceased; PW4 Smt. Asha Devi is neighbour of deceased and accused; PW5 is Dr. Shailendra Kumar, who conducted post mortem and prepared the report along with another fellow doctor; PW6 Kanta Prasad is cousin brother of deceased and witness of inquest; and PW7 is Nayab Tehsildar Govind Prasad, who conducted the investigation and filed the chargesheet.

5. After conclusion of the prosecution evidence, statements of the accused respondents were recorded under Section 313

CrPC wherein they stated that they were not at their home at the time of occurrence.

6. Learned State Counsel argued that it is a case of dowry death and there is sufficient evidence on record to prove it and the presumption under Section 113-B of Indian Evidence Act also operates against the accused, however, Trial Court erred in recording the finding of acquittal.

7. Learned Counsel appearing for the respondents contended that the ingredients of Section 304-B IPC are not satisfied in the present case and prosecution miserably failed to prove its case and as such Trial Court has rightly acquitted the respondents.

8. Section 304-B IPC provides that if the death of any woman is caused within seven years of her marriage by burn or bodily injury or otherwise than under normal circumstances and it is shown that if soon before the death of such woman, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry and if the prosecution succeeds to prove the above ingredient, such death shall be called as dowry death. Further, Section 113- B of Indian Evidence Act provides that in such cases, if it is shown that such woman was subjected, soon before her death by the accused, to cruelty or harassment for or in connection with any demand for dowry, the

Court shall presume that such accused had caused the dowry death.

9. In the instant case, deceased died on account of ante mortem burn injuries. It is undisputed that the deceased died within seven years of her marriage in her matrimonial house and the death took place otherwise than in normal circumstances. Now, in order to prove the offence under Section 304-B IPC against the accused respondents, it was thus necessary for the prosecution to establish that soon before her death, the deceased must have been subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, which the prosecution has failed to establish before the Trial Court, as we gather from the evidence on record that except for certain bald statements, there is practically no evidence to show that there was any cruelty or harassment for, or in connection with, the demand of dowry. There is no allegation in the FIR regarding demand of dowry. None of the witnesses has alleged that the accused respondents ever made any demand for dowry. Although for trial of accused under Section 304-B IPC, trial of accused under Section 4 of Dowry Prohibition Act is not mandatory, however, we cannot lose sight of the fact that even no charge was framed against the accused respondents under the provisions of the Dowry Prohibition Act. Further, there is no

evidence regarding any physical and mental torture of the deceased.

10. We gather from the evidence on record that PW1 in his testimony has stated that once he had visited matrimonial house of his daughter and at that time, accused Smt. Deepa Devi (mother-in-law of deceased) told him as to what he has given to her (in the marriage). PW3 (younger sister of deceased) has also made similar statement in her testimony. PW2 (brother of deceased) has stated that mother-in-law of the deceased used to harass the deceased and taunt her as to what his father has given.

11. The aforesaid statements cannot be termed as dowry demand. Thus, in our view, the prosecution in this case has failed to fully satisfy the requirements of Section 304-B IPC and since the ingredients of Section 304-B of IPC are not satisfied, the presumption under 113-B of the Indian Evidence Act also does not operate against the accused.

12. In the case of Suresh Kumar v. State of Haryana, reported in (2013) 16 SCC 353, the Hon'ble Supreme Court has held as under-

27. Importantly, Section 304-B IPC does not categorize death as homicidal or suicidal or accidental. This is because death caused by burns can, in a given case, be homicidal or suicidal or accidental. Similarly, death caused by bodily injury can, in a given case, be homicidal or suicidal or accidental.

          Finally,   any    death   occurring
          "otherwise   than   under    normal

circumstances" can, in a given case, be homicidal or suicidal or accidental. Therefore, if all the other ingredients of Section 304-B IPC are fulfilled, any death (whether homicidal or suicidal or accidental) and whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances shall, as per the legislative mandate, be called a "dowry death" and the woman's husband or his relative "shall be deemed to have caused her death". The section clearly specifies what constitutes the offence of a dowry death and also identifies the single offender or multiple offenders who has or have caused the dowry death

28. The evidentiary value of the identification is stated in Section 113-B of the Evidence Act, 1872 (the Act). The key words in this section are "shall presume" leaving no option with a court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable. Section 113-B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him or her."

13. In the instant case, accused respondents have taken the plea of alibi. It is their case that they were not present in the house on the date and time of alleged incident. On that day, Smt. Deepa Devi had gone to work under Employment Guarantee Scheme and to corroborate this fact, she has produced her identity card/job card as well as the certificate of attendance. Accused Matrika Prasad has produced the taxi bill, issued in his

name by Sachin Tour and Travels, to show that he travelled from Kotdwar to Gauchar on 3.12.2009.

14. PW4 Smt. Asha Devi, who is an independent witness and a next-door neighbour of the deceased and accused, has also stated that at about 10 o'clock in the morning on the date of incident, when she was going to work under the Employment Guarantee Scheme, she asked the deceased whether Smt. Deepa Devi has left for job or not, then the deceased replied that Deepa Devi has already left. This witness has further stated that on that day, Smt. Deepa Devi returned with her at about 4 o'clock in the evening and then she found the dead body of the deceased in burnt condition. PW4 has also deposed that accused Matrika Prasad was not present in the house as he had gone to Rishikesh in the morning of 2.12.2009 to attend the marriage and from Rishkesh, he went to Kotdwar and returned home in the night of 3/4.12.2009 by taxi. PW4 has also stated that deceased had good relations with her husband, mother-in-law and brother-in-law and she never saw them quarreling and the deceased never complained to her about her husband and mother-in-law whenever she visited house of this witness.

15. Thus, it is well established that accused respondents were not at home on the date of incident and the prosecution has not

produced even an iota of evidence to prove it otherwise.

16. The upshot of the above discussion and the only possible conclusion is that the deceased committed suicide. What motivated or compelled her to take this extreme step will remain a mystery, as we are not satisfied that the prosecution has proved or even shown that she was treated with such cruelty, connected with dowry demands, which led her to commit suicide.

17. In the above analysis, we see no reason to disagree with the view taken by the Trial Court. The impugned judgment and order does not suffer with any illegality or infirmity and the same is affirmed. Resultantly, this appeal fails and is accordingly dismissed.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)

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