Narendra Singh and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Under challenge in the instant criminal appeal is the judgment and order dated 15.09.2009 passed by Additional Sessions Judge, Court No. 14, Meerut, in Sessions Trial No. 528 of 2003 arising out of Case Crime No. 97 of 2003, under Section 304-B IPC, Police Station Partapur, District Meerut and Sessions Trial No. 529 of 2003 arising out of Case Crime No. 98 of 2003, under Section 25 of the Arms Act, Police Station Partapur, District Meerut, whereby appellants Narendra Singh, Raghubir Singh and Smt. Suman were convicted for the offence under Section 304-B IPC. Appellant Narendra Singh was sentenced with imprisonment for life and appellants Raghubir Singh and Smt. Suman were sentenced to undergo rigorous imprisonment for a period of seven years. Appellant Narendra Singh was acquitted of the charge under Section 25 of the Arms Act.

Abridged facts, necessary for the disposal of the instant criminal appeal, are that complainant Narendra Singh Bhati solemnized the marriage of his daughter Aditi with appellant Narendra Singh on 10.05.2002. The other two appellants Raghubir Singh and Smt. Suman happen to be the parents in law of Smt. Aditi (deceased). As per the allegations of the first information report, the appellants were the residents of House No. A-10, Raj Kamal Enclave, Police Station Partapur, District Meerut. In the marriage, Rs. 6,50,000/- were spent by the complainant. Out of the said amount, Rs. 2,20,000/- were given by the complainant for purchase of a Maruti car but the appellants were not satisfied with the dowry given in the marriage and therefore the deceased (Aditi) was treated with cruelty (physically and mentally) for pressing the demand of one Maruti car and Rs. 50,000/- cash as dowry because the appellants used to say that the money given for the purchase of Maruti car has been spent in their factory. The complainant, in order to ensure the peaceful family life of his daughter, made payment of Rs. 20,000/- at one time and thereafter again on the occasion of Holi, Rs. 18,000/- were given to the appellant Narendra Singh but only 10 days thereafter appellant Narendra Singh again started a demand of Rs. 50,000/-. This fact was told by the deceased to the complainant and she also expressed the apprehension that in case their demand is not fulfilled then she will be killed. In the intervening night of 17/18.04.2003 at about 1230 hours complainant Narendra Singh Bhati got information in Faridabad that his daughter has been shot dead. After getting this information, the complainant along with his family reached Meerut then he became certain that his daughter Aditi has been killed by the appellants only for the purpose of dowry. The complainant lodged the first information report of this case and case under Section 304-B IPC was registered against the appellants. It transpires from the perusal of the record that the first information report of this case was registered on 18.04.2003 at 07.15 AM but the information from some other source was received by the police in the same night at 1215 hours and the said information was registered in GD. On this information, SI Rajeev Kumar of Police Station Partapur went at the place of occurrence and completed inquest proceedings and found that Aditi has been murdered by firing on her head. The inquest proceedings were started from 01.00 AM and concluded at 03.40 AM in the same night and the dead body was sent for post-mortem. By the side of the dead body one country made pistol of 315 bore and one bullet was also recovered, which was also taken into custody and separate memos were prepared. The ornaments, which were found on the body of the deceased, were also taken into custody and were handed over to appellant Raghubir Singh and its Supurdaginama was also prepared. The post-mortem on the body of the deceased was conducted on 18.04.2003 at 03.30 PM. Regarding recovery of country made pistol from the place of occurrence, case Crime No. 98 of 2003 was registered against unknown person. This case was registered at 10.15 a.m. on 18.04.2003 after registration of the FIR of the case under Section 304-B IPC.

After completing the investigation, charge sheet was filed against all the three appellants.

The case of the defence was that at the time of incident appellant Narendra Singh was present at his factory. He got the information from his wife on phone that dacoity has taken place in the house. So, he immediately rushed to his house. When he reached the house, by that time she was killed by the miscreants. The miscreants tried to run away and in this process, miscreants also caused him injuries and these unknown persons caused the death of his wife.

Regarding the other two appellants namely Raghubir Singh and Smt. Suman, the defence of separate living was taken. They have taken the defence that they live separately in their other house and they have a separate ration card. It was also pleaded in defence that after this incident, with the consent of some of the family members of the deceased, marriage of real younger sister of the deceased was solemnized with appellant Narendra Singh which itself falsifies the demand of dowry and consequential ill treatment of the deceased by the appellants.

In order to prove its case, the prosecution has examined PW-1 Narendra Singh Bhati - the complainant of this case, PW-2 Ajitendra Singh - uncle of the deceased. PW-3 is Constable Deep Chandra, who has prepared Chik Report and GD of this case. PW-4 is Dr. J.P. Sharma, who has conducted post-mortem on the body of the deceased. PW-5 is Dharam Veer Singh Yadav, an Officer of Gurgaon Gramin Bank who has been examined to prove the bank drafts, which were given to the appellants at the time of marriage. PW-6 is SI Rajeev Kumar Yadav who, on the information received at the Police Station at midnight had gone to conduct the inquest proceedings. PW-7 is Saumitra Yadav, Additional Superintendent of Police, who has conducted the investigation of this case. PW-8 is S.I. Rajeev Kumar Yadav, who has proved as secondary evidence the documents prepared by Head Constable Suresh Chandra Gupta during the investigation of the case under Section 25 of the Arms Act. As CW-1, Durg Singh Bhati father of the complainant was examined.

In defence, on behalf of the appellants, DW-1 Smt. Abha, real younger sister of the deceased, was examined. DW-2 Sudhir Pal Singh, Head Clerk of District Supply Office has been examined to prove the Ration Card of the parents in law of the deceased. DW-3 is Dr. V.P. Gupta, who has medically examined appellant Narendra Singh in jail. DW-4 is Amrish Bajpayee and DW-5 Shiv Shanker Pandey, employees of B.S.N.L. have been examined. These two witnesses have been examined to show that appellant Narendra Singh received phone call from his wife regarding entry of miscreants in his house and also that he himself informed the complainant about this unfortunate incident.

Before proceeding further, we would like to mention the post-mortem report of the deceased Smt. Aditi. The post-mortem on the body of the deceased was conducted on 18.04.2003 at 03.30 PM. The duration of death was about 1/2 day old. The following injuries were found on her person:--

� "Gunshot wound of entry 2 cm x 0.8 cm x cavity deep left side head 4 cm above the left ear Pinna. Margins inverted. No blackening and tattooing present.

� Gunshot wound of exit in an area of 11 cm x 10 cm x brain cavity deep on right side forehead communicating to injury No. 1. Margins were averted and brain matter was coming out."

Cause of death was shock and haemorrhage as a result of ante-mortem injury

Appellant Narendra Singh was medically examined by DW-3 Dr. V.P. Gupta in District Jail and following injuries were found on his person:--

Multiple scabbed abrasions on right side of chest in an area of 6 cm x 2 cm.

Two scabbed abrasions on left elbow outer 2 cm x 1 cm and 1 x 1 cm in size.

Scabbed abrasions 2 cm x 1 1/2 cm on left scapula with scab.

Scabbed abrasion in an area of 2 x 1 x.7 x 4 cm.

Scabbed abrasions 2 x 1 cm on right elbow.

Multiple abrasions 1 x 1 1/2 cm on right knee front scabbed.

Multiple abrasions 1 x 1 cm on left upper posterior of left leg.

Multiple abrasions 3 x 2 cm four in number on back lower.

Abrasions with scab in an area 2 x 1/2 cm on left thigh upper and outer part.

All the injuries were simple and were caused by some hard and blunt object. These injuries were about three days old. Appellant Narendra Singh was medically examined on 20.04.2003 in District Jail Meerut. In defence several documents were also proved by defence witnesses which shall be considered in the relevant part of the judgment."

After appreciating the evidence on record, the learned trial court has convicted the appellants, as above, hence the instant appeal.

Submission of learned counsel for the appellants was that admittedly in this case some earlier information was received by the police regarding this incident and virtually it was the information given by the appellant Narendra Singh himself regarding the incident on the basis of which the police came to the house and proceeded with inquest proceedings. The complainant was also informed by appellant Narendra Singh and on his information, the complainant came in the early morning. Thereafter, he was pressurised by the complainant side to make payment of money. A long time was wasted in the said bargaining. Such bargaining was the reason of delay in the first information report and thereafter, this false case was concocted against him and his family members.

Learned counsel for the appellants has laid great stress on the point that in the instant case if the allegations of the complainant, his brother and his father regarding demand of dowry and ill treatment would have been correct then there would have been absolutely no occasion for the complainant side to solemnize marriage of real younger sister of the deceased with the appellant. After the marriage, she has been blessed with one daughter and still she is living in the house of appellant Narendra Singh. At the time of incident she was present in the house of the complainant as their family member but she has not made any allegation regarding demand of dowry and consequential ill treatment against the appellants. The submission is that learned trial court has not considered the defence story which stands substantiated by the fact that the police was informed prior to lodging of the first information report. Appellant Narendra Singh received considerable number of injuries which were the result of scuffling with the miscreants who were actually responsible for this incident. Learned trial court has also acquitted appellant Narendra Singh for the offence under Section 25 of the Arms Act. So the weapon of the offence also cannot be connected with him and virtually it was the weapon of the miscreants, which fell during incident, and was recovered at the time of inquest proceedings. It is also submitted that appellant Raghubir Singh, father of appellant Narendra Singh, himself was a witness in the inquest proceedings and the ornaments of the deceased which were recovered from the body of the deceased at the time of inquest proceedings were also handed over to appellant Raghubir Singh. It shows that by that time there was absolutely no iota of evidence or even suspicion that the appellants were, in any manner, responsible for this offence and it was only after arrival of the complainant that this false story has been concocted against the appellants.

In the alternative it is submitted that even if the defence evidence is not considered even then the evidence of the complainant and the witnesses was so contradictory that the same ought not to have been relied upon. The mother of the deceased and the other brothers of the deceased were also made witnesses but they have been withheld by the prosecution and appellant Narendra Singh''s marriage with the real younger sister of the deceased was solemnized with the consent of other family members of the deceased. It is submitted that other two appellants namely Raghubir Singh and Smt. Suman were residing in a different house and it has come in the evidence of the prosecution that the appellants have two houses. In one house, the deceased with her husband used to reside and the other house was the residence of other two appellants namely Raghubir Singh and Smt. Suman.

Submission of the learned counsel for the appellants was that the learned trial court has considered the defence evidence with a predetermined mind that it was an after thought and this approach of the learned trial court has rendered its judgment unsustainable under law.

Learned Additional Government Advocate has submitted that learned trial court, by a detailed and reasoned judgment, has considered all the aspects of the case and has rightly convicted the appellants, therefore, the impugned judgment needs no interference.

Before proceedings further we would like to discuss certain legal aspect of the matter which are involved in the instant case.

Ingredients to constitute an offence under Section 304-B IPC:--

SECTION 304-B IPC reads as under:--

"(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 purposes of this sub-section "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 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."

This point needs no detailed discussion because Hon''ble the Apex Court in several cases has considered this legal point and in a recent judgment in the case of Suresh Kumar Vs. State of Haryana, and Hon''ble Apex Court has observed in paras 22, 23, 24 and 25 which reads as under:--

"22. In a large number of decisions, this Court has indicated the ingredients of Section 304-B of the Indian Penal Code, which are now broadly accepted.

In Pawan Kumar and Others Vs. State of Haryana, the ingredients were identified as:

(a) When the death of a woman is caused by any burns or bodily injury, or

(b) occurs otherwise than under normal circumstances

(c) and the aforesaid two facts spring within 7 years of girl''s marriage

(d) and soon before her death, she was subjected to cruelty or harassment by her husband or his relative,

(e) this is in connection with the demand of dowry.

The ingredients of Section 304-B of the Indian Penal Code were rephrased in Kans Raj Vs. State of Punjab and Others, in the following words:

(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 years of her marriage;

(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected soon before her death.

The expression "otherwise than under normal circumstances" was explained to mean "death not in the usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury."

A somewhat recent exposition is to be found in Hira Lal and Others Vs. State (Govt. of NCT) Delhi, wherein this Court held that to attract the application of Section 304-B of the Indian Penal Code, the essential ingredients are as follows:

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

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

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

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

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

More recently the ingredients of Section 304-B of the Indian Penal Code have been abbreviated in Bakshish Ram and Another Vs. State of Punjab, in the following words:

(a) that a married woman had died otherwise than under normal circumstances;

(b) such death was within seven years of her marriage; and

(c) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death."

Section 113-B of the Indian Evidence Act reads as under:--

"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 of 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."

The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B Indian Penal Code and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption Under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:

"(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence Under Section 304-B Indian Penal Code.)

(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."

This point has been considered by Hon''ble the Apex Court in the case of Suresh Kumar (supra). Hon''ble Apex Court has observed in para 30 as under:

"30. That the presumption under Section 113B of the Act is mandatory may be contrasted with Section 113A of the Act which was introduced contemporaneously. Section 113A of the Act, dealing with abetment to suicide, uses the expression "may presume". This being the position, a two-stage process is required to be followed in respect of an offence punishable under Section 304B of the Indian Penal Code: it is necessary to first ascertain whether the ingredients of the Section have been made out against the accused; if the ingredients are made out, then the accused is deemed to have caused the death of the woman but is entitled to rebut the statutory presumption of having caused a dowry death."

Section 113-B has used the word "shall presume" which has been defined in Section 4 of the Indian Evidence Act which reads as under:--

"shall presume:---- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."

Now point to be considered is whether such presumption is rebuttable or not. Law is settled on the point that while the prosecution is required to prove its case beyond reasonable doubt, the accused is required only to show the preponderance of probability of his defence version. In the case of M. Abbas Vs. State of Kerala, Hon''ble Apex Court in para 10 has considered the legal aspect on this point. Though that was a case under Prevention of Corruption Act but the legal principle involved was the same. In that background, Hon''ble Apex Court has observed in para 10 as under:--

"Where an accused sets up a defence or offers an explanation it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities."

After the reading of Section 4 of Indian Evidence Act (definition of shall presume) and the legal position stated above, we are of the considered view that the accused is still not required to prove its defence beyond reasonable doubt as is required by the prosecution, but he has to show that his defence was probable but keeping in view the definition of ''shall presume'' the burden to show the probability of his defence, shall be a bit higher. But in any case, such burden would not be as heavy as always lies on the prosecution.

Presumption under Section 113-B of the Indian Evidence Act is a rebuttable presumption. This point needs not a lengthy discussion. It is a settled principle of law that where the law prescribes that the Court that ''shall presume'' a particular fact then such a presumption shall be rebuttable. Even otherwise the accused has always a right to defend himself by showing that the defence taken by him was probable. In the case of State of Karnataka Vs. M.V. Manjunathegowda and Another, Hon''ble Apex Court has held in para 23 as under:--

"If the prosecution is able to prove the aforesaid circumstances then the presumption under Section 113-B of the Evidence Act will operate. It is the rebuttable presumption and the onus to rebut shifts on the accused."

(underlined by us)

Again in the case of Rammurti and Another V. State of Madhya Pradesh reported in (2012) 13 SCC 739 the Hon''ble Apex Court has quoted and para 17 of its earlier pronouncement in the case of Sanjeev Kumar Vs. State of Punjab and Another--> which reads as under:--

"17. If the accused successfully rebuts the presumption by pleading and proving a probable defence, the presumption under Section 113-B stands rebutted and the prosecution must prove its case without the aid of such presumption. It must logically follow that in a case where such presumption arises, the evidence, oral, circumstantial or documentary, adduced in defence must be examined by the court with a view to find whether the presumption stands rebutted. It is essentially a matter of appreciation of evidence."

(underlines by us)

In the case of Suresh Kumar Vs. State of Haryana, Hon''ble Apex Court has again considered this aspect and has observed in para 34 as under:--

"34. When the law says that the court may presume the fact, it is discretionary on the part of the court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the court to act on the presumption the accused can persuade the court against drawing a presumption adverse to him.

But the peculiar situation in respect of an offence under Section 304-B Indian Penal Code, as discernible from the distinction pointed out above in respect of the offence under Section 306 Indian Penal Code is this: Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it.

(underlined by us)

In the instant case, the appellants have come with a definite defence and it is not only a bald defence but they have also adduced documentary as well as oral evidence in support of their defence version.

So far as the appellant Narendra Singh is concerned he has also come with a specific defence that at the relevant time he was present in his factory and he received information on mobile phone from the deceased. He immediately rushed to his house by that time, the miscreants had caused the death of the deceased and he had scuffled with the miscreants due to which he received several injuries. Immediately after the incident he informed the police and also gave information to the complainant on his Land line phone. These facts have specifically been stated in the written statements filed under Section 313 Cr.P.C.

The defence taken by the appellants was not a bald defence but the appellant have made all the efforts to prove it by documentary and oral evidence. So far as the demand of dowry and consequential ill treatment is concerned there is evidence of the father of the deceased namely Narendra Singh Bhati, his uncle PW-2 Abhijendra Singh and CW-1 Durg Singh who happens to be grand father of the deceased. It is true that in this case the mother and brother of the deceased have not been examined by the prosecution. Learned trial court has discussed the evidence in detail. These witnesses have been cross examined at length regarding gifts and money given at the time of marriage whether in cash or by means of draft. But in our considered opinion, whatever took place at the time of marriage that was with the consent of the parties and there is no evidence that any of the appellants, at that stage created any pressure on the complainant side for dowry. So whatever was given at the time of marriage is not the least relevant for the purpose of the instant appeal.

Learned counsel for the appellants has also taken us through the statements of the witnesses to show that the complainant Narendra Singh Bhati was working as labour in the factory of Escort Tractor, Faridabad. His financial condition was not good enough to give the dowry as he claims to have given in the marriage. He had a meager gross monthly income of Rs. 12,000/- and his take home salary was only about Rs. 8000/-.

Submission of the learned counsel for the appellants was that the complainant Narendra Singh Bhati after coming to Meerut made an effort to extract money from the complainant and his family members and during this negotiation a period of 2-3 hours was consumed and only thereafter the FIR was lodged when they declined to make payment of any money. Submission of the learned counsel for the appellants was that in this case appellant Narendra Singh has come with a specific defence and it is submitted that initially even the police was satisfied with his defence but it was only after arrival of the complainant, under the influence of the complainant and his family members, this false case was concocted against him and accordingly the FIR was ante-timed and false case under Section 25 of the Arms Act was also concocted to create an additional evidence against the appellant Narendra Singh.

Learned counsel for the appellants has drawn our attention towards the fact that according to the documentary evidence the FIR of this case was lodged by Narendra Singh Bhati at 7.15 a.m. on 18.04.2003 but PW-1 Narendra Singh Bhati (complainant) in his evidence has admitted that he reached the police station at 7.30 a.m. in the morning. Thereafter he narrated the entire incident to the Police Officer and thereafter the FIR was scribed. He could not disclose the time gap after which the FIR was lodged. He must have consumed considerable time in narrating the story and thereafter to get the FIR scribed by his father Durg Singh CW-1 so the FIR could not have been registered at 7.15 a.m. as is the case of the prosecution.

Though it would not have assumed much importance but where the appellants have come with a specific defence that a false case has been cooked up against them and apart from it there is documentary evidence supporting the defence version then this fact assumes importance and also lends supports to the defence version.

Learned counsel for the appellants has also taken us through the allegation of the FIR and on the basis of the same he has argued that there was no allegation that any phone call was made by the deceased few days prior to her death asking for Rs. 50,000/- and expressing apprehension that in case of failure to pay the said amount she shall be killed. PW-1 in his evidence has stated that on 09.04.2003 his daughter made a phone call to him and he told him that he will come on 16.04.2003 with the money as demanded but as the money could not be managed so he could not come on 16.04.2003 and thereafter on 17.04.2003 he received information of death of his daughter. It was very important and recent fact that ought to have been mentioned in the FIR but it does not find place in the FIR. PW-1 has nowhere mentioned in FIR that any such phone call was received from the victim by him. PW-2 who happens to be the real brother of the complainant has come with a different story. He says that he had come to Meerut on 28.03.2003 from Agra. He had gone to the house of the appellant then the deceased Aditi told her to make payment of Rs. 50,000/- at the earliest failing which she expressed apprehension that she shall be killed. But is it strange enough that no such fact was mentioned in the FIR. It is unbelievable that if the real brother of the complainant had encountered such a situation then the complainant would have been the first person who must have been informed about this incident by PW-2. But neither any such fact was mentioned in the FIR nor any such statement has been given by PW-1 (the complainant) in his evidence before the Court. We are aware of the fact that all the facts are not necessary to be mentioned in the FIR but at least such facts must have been stated by witnesses in their evidence. Both of them are real brothers and it is the admitted case of the prosecution that they live as a joint family. So if anything adverse to the life of the deceased would have come to the notice of PW-2, uncle of the deceased, then the same must have been told by him immediately to the complainant and in that circumstances it ought to have been mentioned in the FIR and even if it was not mentioned in the FIR then this fact must have been stated by PW-1 in his evidence. But the absence of this fact in the statements before the court shows that deliberate improvement was made in the prosecution case to establish the necessary ingredients to constitute an offence under Section 304-B IPC that soon before her death she was subjected to cruelty for or in connection with the demand of dowry. Here it is pertinent to mention that according to the admitted case of the prosecution, the complainant was working only as a labourer in the Escort Tractor Factory, Faridabad, at a gross salary of Rs. 12,000/- per month and his take home salary was about Rs. 8000/- per month. PW-1 has also admitted that the appellants had three factories of bed sheet printing in Meerut and owns two houses. Though the complainant has stated that only 10 to 15 labourers worked in the said factories. However, DW-1 Abha Singh, who happens to be real daughter of the complainant, has stated that 80-85 labourers work in these three factories. So there was huge difference in the financial conditions of the two families and it gives rise to the inference that marriage was not solemnized for the purpose of dowry. A family which may be in greed of dowry would not have settled the marriage with the daughter of a labour. Therefore, the allegation regarding demand of dowry were after thought which was apparent from the evidence of prosecution witnesses.

The complainant has come with a definite case that he received an information from some unknown person but he has not disclosed the phone number from which he got the information. While on the contrary the appellants have come with a definite defence that the appellant Narendra Singh himself made a phone call and informed about the incident to the complainant. PW-1 Narendra Singh Bhati in his evidence has admitted that his landline telephone number is 2210650 and the landline number of the appellant Narendra Singh is 2401254. The complainant has denied the fact that information was given to him by the land line phone of the appellant. Appellant Narendra Singh, in his defence evidence has proved this fact. DW-5 Shiv Shanker Pandey, has proved this fact and has stated that on telephone number 2210650 a phone call was made on 18.04.2003 from telephone number 2401254. This phone call was made in the night from 12.15.59 and the call continued for 157 seconds. The relevant phone call record has also been proved on behalf of the defence which substantiates this defence. Therefore, the complainant is deliberately hiding this important fact, because it lend supports to the defence version. On behalf of the defence, as Exhibit Kha-7 and Kha-8 a copy of the complaint filed by DW-1 Abha Singh against her father PW-1 Narendra Singh and his uncle PW-2 Ajitendra Singh has been filed wherein she has stated that she has married out of her own free will with appellant Narendra Singh and his own family members are threatening to kill her husband (appellant Narendra Singh). Though this complaint was filed on 20.01.2006 i.e. subsequent to the incident and also the statements of Abha Singh DW-1 recorded subsequently under Section 202 Cr.P.C. has also been filed. In her statement under Section 202 Cr.P.C. she has also supported the allegation of the complaint. But learned trial court has discarded the entire defence evidence on the ground that it is false and fabricated. After perusal of the impugned judgment we are of the considered view that the learned trial court has appreciated the defence evidence with the preconceived notion that defence evidence is false. While the law is settled on the point that the defence evidence has to be given the same weight and has to be appreciated in the same manner as the evidence of the prosecution witnesses has to be appreciated and looked into. On this point reference may be made to the pronouncement of Hon''ble Apex Court in the following cases.

So far as the parents-in-law of the deceased namely Raghubir Singh and Smt. Suman are concerned they have taken a definite defence that they were living separately from their son appellant Narendra Singh. This specific defence has been taken by appellant Raghubir Singh and Smt. Suman in their written statements filed under Section 313 Cr.P.C. In para 8 of the said statement they have stated that on the fateful day Raghubir Singh and Smt. Suman were residing in their house situated in Sai Puram. In para 2 a specific defence has been taken that after the marriage of his son Narendra they started living in their old house in Sai Puram and the appellant Narendra Singh was living in Rajkamal Enclave in their house. This is an admitted fact that the appellants have two houses one is situated in Sai Puram, Meerut and the other in Rajkamal Enclave, where the incident has taken place. Admittedly, the appellants have three factories of bed sheets printing in the said area of Sai Puram and have also their another residential house in that area. In support of their defence, DW-2 Sudhir Pal Singh has been examined who happens to be a Senior Clerk in the office of District Supply Officer who has stated that on 10.09.2002 an application was moved by appellant Raghubir Singh for separating the name of his son Narendra Pal Singh from his ration card. His ration card was issued on the address of his house situated in Sai Puram. This application was moved much prior to the present incident which is alleged to have taken place on 17/18.04.2003 i.e. after about 7 months when this application was moved.

Perusal of the impugned judgment shows that the learned trial court has discarded the entire defence evidence on the ground that it is a pre-planned defence. He has also based his conclusion on the fact that Raghubir Singh appellant was a witness in the inquest report wherein he has disclosed his address of Rajkamal Enclave where the incident has taken place.

In the facts of this case there was no dispute to the fact situation that the appellant Raghubir Singh was owner of both the houses. So if at the time of preparation of the inquest report he has disclosed his address of Rajkamal Enclave even the same, by itself, would not negative his defence and aforementioned documentary evidence.

As stated earlier, accused persons are required only to show that their defence is probable. It is not a case where the appellants are coming with a bald defence not supported by any evidence but they have come with a specific defence that has been supported by documentary evidence and also by the oral evidence of the concerned government official. The presence of appellant Raghubir at the scene of occurrence at the time when the police reached there and prepared inquest report also gives rise to the inference that he was innocent and was not involved in the offence. Appellant Raghubir Singh was also a witness in inquest. Even at that point of time there was absolutely no suspicion against him because the police itself handed over the ornaments which were found on the body of the deceased to appellant Raghubir Singh. He was also a witness in the other recovery memos like memos of Bullet and bed sheet. Testimony of DW-2 Sudhir Pal and also by documentary evidence of Exhibit Kha-1 (application dated 10.09.2002 and also by extract dated 10.09.2002 (kha-2) wherein it was mentioned that Plea of separate living stands substantiated. This entry shows that name of Narendra Singh was separated from the ration card of Raghubir Singh because of his separate living after his marriage.

In this background, we do not agree with the finding of the learned trial court so far as the appellants Raghubir Singh and Smt. Suman are concerned and they deserve to be granted the benefit of doubt.

Learned counsel for the appellants has also drawn our attention to the fact that the prosecution was not sure upto the last as to whether the country made pistol was recovered from personal search of the appellant Narendra Singh or it was recovered from the bed on which the dead body of the deceased was lying. At the police station some information regarding death of the deceased was received from the police control room which was entered in G.D. No. 2 on 18.04.2003 and thereafter PW-6 Rajiv Kumar Yadav went to the place of occurrence and conducted the inquest proceedings which concluded at 3.40 a.m. The country made pistol is alleged to have been recovered from the bed and it finds mention in the inquest report also. Thereafter the dead body was sent for postmortem. After conclusion of the inquest report at 3.40 a.m. PW-6 Rajiv Kumar Yadav might have consumed some more time in preparing recovery memos. But it is strange to note that he came back to police station at 10.15 a.m. by that time the FIR of this case under Section 304-B IPC has been lodged. But the case under Section 25 of the Arms Act was registered against unknown person and it was registered on the basis of the recovery of the weapon of offence alleged to have been recovered from the double bed on which the dead body was found. The case under Section 25 of the Arms Act was investigated by one Suresh Chandra Yadav, Head Constable, but he has not been examined by the prosecution.

Here it is pertinent to mention that G.D. No. 2 dated 18.04.2003 has been withheld by the prosecution. What was the first information regarding this incident that was received by the Police, on the basis of which PW-6 Rajiv Kumar Yadav was sent to place of occurrence has been withheld. It was an important piece of evidence in the facts of this case. This G.D. was made an annexure of the inquest report but inspite of that the prosecution has withheld the said G.D. and has not proved it. Where the appellants are coming with a definite defence then the withholding of this G.D. entry, in the peculiar facts and circumstances of this case, gives rise to an adverse inference against the prosecution that the said G.D. would have supported the defence case hence the same has been deliberately withheld.

The sanction to prosecute appellant Narendra was given by the District Magistrate, Meerut, on 05.05.2003 and the relevant part of Exhibit Ka-19 (sanction order) reads as under:--

Since the Investigating Officer of the case under Section 25 of the Arms Act was not examined and the relevant documents relating to offence under Section 25 of Arms Act were proved by PW-8 Rajiv Kumar Yadav as secondary evidence and he has admitted in his evidence that in Exhibit Kha-19 it is mentioned that the accused Narendra Singh was arrested on 17.4.2003 before 12.30 in the night from Rajkamal Enclave and on his reach this recovery was made. This sanction was granted by an Officer of the level of District Magistrate and that too after perusal of the documents. After perusal of the documents the District Magistrate was satisfied that the appellant Narendra Singh was arrested before 12.30 on 17.04.2003 and country made pistol was recovered from his personal search. Though learned trial court has acquitted the appellants for the offence under Section 25 of the Arms Act. But learned trial court has failed to notice one very important aspect of this sanction order. It shows that the documents which were produced before District Magistrate were some other documents according to the said document the country made pistol was recovered on 17.04.2003 from the personal search of appellant Narendra Singh. It appears to be the reason as to why the Investigating Officer of the case under Section 25 Arms Act, namely Head Constable Suresh Chandra Yadav was withheld by the prosecution. The sanction was granted by District Magistrate in discharge of his official duty, so it cannot be presumed that the District Magistrate, without perusal of the documents before him accorded the sanction to prosecute the appellant Narendra Singh for the offence under Section 25 of the Arms Act. It shows that at the time of obtaining sanction some other papers were produced before the District Magistrate. As to how such facts were mentioned in the sanction order is still a mystery. During course of arguments learned Additional Government Advocate could not explain this fact. He only submitted that it has lost its value because the appellant Narendra Singh has been acquitted for the offence under Section 25 of the Arms Act. But we are not convinced with this submission of learned A.G.A. because it gives rise to the only inference that investigating agency was playing hide and seek to implicate the appellants in this case and this is the reason due to which such mistakes occurred and FIR was ante-timed.

Reference may be made to the pronouncement of Hon''ble Apex Court in the case of Banti @ Guddu Vs. State of Madhya Pradesh, and in the case of Jummi v. State of Haryana reported in (2014) 11 SCC 355 (para 23).

According to the sanction Exhibit Ka-19 appellant Narendra Singh was arrested in the night of 17.4.2003 at 12.30 but it was not mentioned in the sanction order that this arrest took place in the intervening night of 17/18-04-2003. Even if it is assumed that as per sanction order he was arrested in the intervening night of 17/18-04-2003 even then this fact does not find support from the other prosecution documents. Exhibit Ka-6 is the G.D. entry of the return of SHO which has been proved by prosecution. This G.D. entry was made on 18.04.2003 at 14.30 hours wherein it has been mentioned that the appellants Narendra Singh and Raghubir Singh were arrested on 18.04.2003 at 13.45 hours and by the said G.D. Exhibit Ka-6 they were kept in the lockup of the police station. All these facts goes on to show that even the prosecution was not sure as to what case they have to build up. What was the actual case of the prosecution when appellant Narendra Singh was arrested, whether any weapon was recovered from his personal search or not and this failure of the prosecution evidence appears to be the result of the fact that appellants were coming up with a definite defence that too supported by documentary evidence and prosecution was creating evidence in support of a false case.

In order to constitute an offence under Section 304-B IPC necessary ingredients to be proved against the appellant have been discussed in the earlier part of the judgment. It is an admitted case of the prosecution that the death has occurred within one year of the marriage. CW-1 Durg Singh has also supported the story of demand of dowry and consequential ill treatment. Learned counsel for the appellants has submitted that the allegation of demand of dowry and consequential ill treatment was absolutely false. After the death of the deceased Smt. Aditi, his marriage was solemnized in the year 2005 with one Anuradha but the said marriage could not succeed and has ended in divorce after few months. Thereafter he solemnized marriage with younger sister of the deceased namely Abha Singh. Abha Singh has been examined as DW-1 and she has supported the case of the defence and has not made any allegation of demand of dowry and consequential ill treatment of her elder sister. The complainant in his evidence has admitted this fact that the appellant Narendra Singh has solemnized marriage with his daughter Abha Singh. But he has stated that the marriage with younger sister of the deceased was solemnized against the will of the family members. He has stated that appellant Narendra Singh anyhow persuaded to marry her. On the contrary, the submission of the learned counsel for the appellants was that if the allegation of the complainant and his family members would have been true then in such background the appellant Narendra Singh had absolutely no occasion to go to their house or to contact younger sister of the deceased. No girl of ordinary prudence would have preferred to marry a person who has committed dowry death of her own elder sister. If she had the least suspicion against the appellant that he has treated her sister with cruelty and also caused her death then there was absolutely no occasion for her to marry appellant Narendra Singh. But the learned trial court has ignored the evidence of this witness on the ground that since she has married with appellant Narendra Singh so she is giving false evidence in his favour. But the learned trial court has failed to note that DW-1 Abha Singh has married with appellant Narendra Singh. This fact itself gives rise to the inference that there was nothing in the mind of Smt. Abha Singh that the appellant Narendra Singh was a man of cruel nature or he would treat her with cruelty in future. Such an apprehension must have prevailed in the mind of Smt. Abha Singh if the allegations of the FIR regarding demand of dowry and consequential ill treatment of her elder sister would have been true to her mind. But the learned trial court has not considered this aspect of the matter and has rejected her evidence on the ground that she is wife of appellant Narendra Singh.

In view of the discussion made above, we are of the considered view that by the defence evidence and by the other facts which emerged in the evidence, the appellants were successful in rebutting the presumption which was raised against them under Section 113-B of the Indian Evidence Act. Therefore, under law, it shall become the duty of the prosecution to prove its case exclusively on the basis of the evidence without getting the aid of the presumption under Section 113-B of the Indian Evidence Act. With the aforesaid point of view when the evidence of the prosecution is considered then it is clear that the FIR of this case was ante-timed. Statements of witnesses regarding demand of dowry were not correct and improvements were made and there were inconsistencies in the inter-se statements of the witnesses. Therefore, it cannot be held, in absence of the presumption under Section 113-B of the Indian Evidence Act, that prosecution was successful in proving its case beyond reasonable doubt against the appellants. On the contrary, the appellants were successful in showing probability of their defence case and also in rebutting the presumption raised against them under Section 113-B of the Indian Evidence Act. Accordingly, this appeal deserves to be allowed and is hereby allowed. Appellant Narendra Singh is in custody. He is acquitted of the charge levelled against him. He be set at liberty. He shall be released forthwith, if not, wanted in any other case.

Appellants Raghubir Singh and Smt. Suman are on bail. Their bail is cancelled and sureties discharged. They are acquitted of the charges levelled against them.

Office is directed to communicate this order to the court concerned for immediate compliance and also to send back the lower court record.