Md. Nasrul Haque vs Rafique Khan & Ors.

“In this present case, during cross-examination, the learned defence counsel has not elicited whether such gifts had been given voluntarily or affectionately manner. So, in my opinion, all the gifts and presents cannot be considered as dowry. When gifts and presents have been given out of social and personal compulsion, the said gifts and presents shall be considered as dowry. In our society, the problem of dowry is so deep-rooted that if anybody does not take sufficient dowry, she becomes the victim of cruelty, underestimation and neglect by the family members in her in-laws'

house. So, whenever gifts have been given under social compulsion, they are to be considered as dowry under the Act. So, the decision relied by the learned defence counsel cannot be used in the present case. The offence under Sections 4 and 6 of the D.P. Act is purely a social offence. If we shall approach this law in a doctrinaire fashion and in a rigid manner there will be dis-illusionment and disrespect towards law entailing other harmful consequence. So the evidence under this Act is not to be appreciated like any other offence under the general law. The object of the legislation behind the statute of Dowry Prohibition Act only to curbed the deep rooted evil in this society. So it is the duty of the Court to mould the spirit of law accordingly to the changing value and mores of society by giving new meaning and new cast to the letter of law. So as to protest, the weak, poor and destitute to seek them protected from exploitation, injustice and tyranny.

The learned defence advocate further contended that there is no allegation u/s 4 and 6 of the Dowry Prohibition Act against the present accused persons. However, all the allegations were made against the accused Gulab Khan who is now dead. On the perusal of the evidence of P.W.5, it reveals that P.W.1 stated in his evidence that the accused persons demanded Rs.10,000/- as dowry besides other articles. She has also stated in her evidence that on 18.1.88 the accused persons 2, 3, 4, 5 and 6 came to her father's house and demanded Rs.15,000/- as Additional Dowry. She also further stated in her evidence that as they could not able to pay Rs.15,000/- as dowry to the accused persons so the accused No.1 divorced her. P.W.5 stated in her evidence that accused No.1, her husband, has demanded dowry from her for several times till his departure to Tata. P.W.5 further stated in her evidence that now the accused person had not returned back the said dowry articles to her or her brother P.W.2. Even she had not brought the said articles to her house on her final departure from in law's house. However on perusal I found from the evidence that the accused No.1 had kept all the dowry articles which had been given to P.W.5 during her marriage. P.W.4 stated in his evidence that he had seen P.W.5. had not brought any dowry articles from her house (from the house of the accused persons).

From the evidence I found there are some exaggerated and inconsistent versions and other defects in the prosecution case. It is observed in a case reported in 1991 (4) O.C.R. page 357 Ashok Kumar Barik vrs. State of Orissa that:

“It is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. It is also experienced that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But if there is a ring of truth, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence”.

In an epoch making judgment Lord Krishna Iyer observed in a case reported in A.I.R. 1978 S.C. at page 1542 Nirottam Singh Vrs. State of Punjab and another that:-

“Discrepancies do not necessarily demolish testimony, delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did, proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative short falls. The 'Sacred Cows' of shadowy doubts and marginal mistakes, procedural or other, cannot deter the court from punishing crime where it has been sensibly and substantially brought home”.

On the re-appraisal of the evidence I found from the lengthy evidence that the inconsistent and exaggerated versions are not so glaring that it will destroy the confidence of the witnesses and the defence lawyer has not substantially brought anything in the cross examination to disbelieve the evidence of the prosecution witness.

As such I hold all the accused persons are guilty of the offence U/s 4 of the Dowry Prohibition Act and the offence U/s 6 as well made out against the accused Rafique Khan, the husband of P.W.5 who is presume to received the dowry articles. The other accused persons are not found to be guilty of offence U/s 6 of the Dowry Prohibition Act.”

“11.

Adverting to the veracity of the witnesses in regard to the demand made by the accused persons on 18.1.88, the learned lower court has observed in paragraph-8 of its judgment that just because P.W.1 has got no house at village Routraypur, he cannot be disbelieved. But I am unable to agree with the finding of the lower court for the reason that P.W.1 has stated in paragraphs 19 and 20 that he is not staying at village Routraypur from his childhood and when at the time deposing in favour of the complainant, he was staying at Jholasahi with the complainant. Therefore, the possibility of going to village Routraypur on a particular day to witness the demand made by the accused persons on 18.1.88 is remote. The other feature appearing in his evidence in paragraph 13 that he asked accused Golab Khan and others as to why they they are not taking back Chhara Khatoon to their house, to which the accused persons replied that unless they are paid Rs.15,000/-, they will not take back Chhara Khatoon (P.W.5) to their house. Surprisingly, P.W.1's testimony in the second line of chief showing his acquaintance with accused-appellant No.1 Rafique Khan only. All other accused persons were not known to him by name, for which chief was deferred. It is admitted by P.W.5 and also P.W.2 that accused Rafique Khan did not come on the date of demand i.e., 18.1.88. But all other accused persons had come. So all the accused persons were not known to P.W.1 and it is not believable at all that they will answer to the question of an unknown man regarding their demand, which is certainly their family affairs.

12.

The complainant (P.W.2) cannot be believed for the reasons that he along with his sister had tried to hide the actual matters from the court. It has been mentioned clearly in paragraph-6 of the complaint petition that no information was lodged before any authority, but in cross-examination P.W.2 and also P.W.5 have stated that the complainant lodged information before the Dowry Prohibition Cell stating the present occurrence prior to the lodging of the complaint before the court and as they did not investigate the case, he also reported the matter to the Superintendent of Police in writing. The complainant has failed to produce the copy of his report, nor it has been proved. It is not known as to what sort of complaint was lodged at the first instance and what was its fate in the investigation. So the witnesses, who have not come with clean hands, can never be believed. P.W.3, who claims to have gone as a gentleman to effect compromise, in the year 1988, has not stated anywhere in the chief that the accused persons demanded Rs.15,000/- at any point of time. It is in his testimony that he along with P.Ws.1, 4 and another had been to the house of the accused persons in the year 1988. But evidence of P.W.4 in paragraph 2 of chief is that P.Ws.1, 3 and himself had gone to the house of the accused persons in December, 1987 to effect the compromise. At that time, the accused persons demanded Rs.15,000/- for bringing P.W.5 back to their house. Therefore, the story advanced by the complainant that the demand was made by the accused persons at their house at Routraypur in the year 1988, cannot be true. Further P.W.4's sworn testimony in paragraph 3 of cross-examination is that the wife of accused No.2 came to take the sister of the complainant twice or thrice, but the sister of the complainant did not go. In view of this evidence, the demand of Rs.15,000/- was never a condition precedent to take P.W.5 back to their house. P.W.5, the complainant's sister herself was not a witness to the demand as per her evidence that she was not present at the time of settlement of marriage and dowry demand. In view of the above evidence, the claim of P.W.5 that accused Nos. 2 to 5 came to their house and demanded Rs.15,000/- on 18.1.88 cannot be believed.

13.

In regard to the burden saddled on the accused u/s 8(a) of the Dowry Prohibition Act is not that onerous as it is on the prosecution. In this regard, I may take notice of the decision A.I.R. 1987 S.C. at page 2080, wherein their Lordships have held:-

“The approach of a court has to be an objective approach taking into account all the relevant circumstances and considerations in order to strike a balance between the need to preserve the community on the one hand and the need to preserve the liberty of a citizen on the other.”

14.

For the above analysis, I hold that the prosecution has failed to prove its case. The conviction and sentences awarded by the lower court is hereby set aside.”

“6.

It is to be noted that prior to the amendment of corresponding old section 417 by Act 26 of 1955, no one other than the State Government could prefer an appeal against an order of acquittal in any case. When the accused has been improperly acquitted in a prosecution for a grave crime, it is beyond controversy that State should be primarily concerned, for the fact that a guilty person escapes the retribution of justice even where materials warranting his conviction are adequate is one which affects public interest and welfare of the State. Law has taken precaution that no frivolous or vexatious appeal is filed at the instance of a private prosecutor.

7.

In view of analysis made above, the inevitable conclusion is that the application for grant of leave under section 378(4) of the Code is maintainable.”

“29.

From the aforesaid decisions rendered by this Court, it can be said that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the findings of acquittal recorded by the Trial Court. Further, if the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible. The following principles have to be kept in mind by the Appellate Court while dealing with the appeals against an order of acquittal:

(a)

whether the judgment of acquittal suffers from patent perversity;

(b)

whether the judgment is based on misreading/omission to consider the material evidence on record;

(c)

an order of acquittal is to be interfered with only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.

(d)

the appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

(e)

if the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

(f)

the appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

“12.

It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt.

13.

Apart from that, it is to be noted that the present case is a case of reversal of acquittal. The law with regard to interference by the appellate court is very well crystallised. Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Though, there are a catena of judgments on the issue, we will only refer to two judgments which the High Court itself has reproduced in the impugned judgment [State of M.P. v. Ballu, 2018 SCC OnLine MP 1924] , which are as reproduced below: (Ballu case [State of M.P. v. Ballu, 2018 SCC OnLine MP 1924] , SCC OnLine MP paras 13-14)

“13.

In Sadhu Saran Singh v. State of U.P. [Sadhu Saran Singh v. State of U.P., (2016) 4 SCC 357 : (2016) 2 SCC (Cri) 275] , the Supreme Court has held that: (SCC pp. 365-66, paras 20-21)

‘20. … In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. This Court, while enunciating the principles with regard to the scope of powers of the appellate court in an appeal against acquittal, …

21.

… has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded.’

14.

Similarly, in Harijan Bhala Teja v. State of Gujarat [Harijan Bhala Teja v. State of Gujarat, (2016) 12 SCC 665 : (2016) 4 SCC (Cri) 84] , the Supreme Court has held that: (SCC p. 668, para 12)

‘12. No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open for the appellate court to express the right conclusion after reappreciating the evidence if the charge is proved beyond reasonable doubt on record, and convict the accused.’ ”

xxx xxx xxx

34.

The High Court could have interfered in the criminal appeal only if it came to the conclusion that the findings of the trial Judge were either perverse or impossible. As already discussed hereinbefore, no perversity or impossibility could be found in the approach adopted by the learned trial Judge.

35.

In any case, even if two views are possible and the trial Judge found the other view to be more probable, an interference would not have been warranted by the High Court, unless the view taken by the learned trial Judge was a perverse or impossible view.”

“7.

In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: -

(a)

The acquittal of the accused further strengthens the presumption of innocence;

(b)

The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;

(c)

The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record;

(d)

If the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and

(e)

The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

“24.

We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.”