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Judgment
HON’BLE SUBHASH VIDYARTHI, J.
Heard Sri Atulesh Kumar Singh and Sri Mahendra Pratap Singh, the learned counsel for the appellants and Sri Jai Prakash, learned A.G.A. for the State.
By means of the instant appeals, the appellants have challenged the validity of the judgment and order dated 01.10.2011 passed by Sri Jagdish Prasad, the learned Additional Sessions Judge, Court No. 35, Barabanki in Sessions Trial No. 1050 of 2010 arising out of Case Crime No. 1100 of 2010, under Sections 498-A, 304-B IPC and 3/4 of the Dowry Prohibition Act, Police Station Fatehpur District Barabanki, whereby all the appellants have been convicted for the offences under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act, whereas they have been acquitted of the charge under Section 3 of the Dowry Prohibition Act.
The appellants have also challenged the validity of an order dated 10.10.2011 passed in the aforesaid case, whereby all the appellants have been sentenced to undergo rigorous imprisonment for 10 years for the offence under Section 304-B IPC, rigorous imprisonment for 3 years and Rs.5,000/- each as fine for the offence under Section 498-A IPC, and rigorous imprisonment for 6 months and Rs.2,000/- each as fine for the offence under Section 4 of the Dowry Prohibition Act, along with stipulations for imprisonment for additional periods in case of default in payment of fine.
The aforesaid case was instituted on the basis of a written complaint dated 05.09.2010 (Exhibit A-1) given to the police stating that the complainant had got his daughter married to Ram Harsh (the appellant in Criminal Appeal No. 2023 of 2011). Maya Ram and Prema Devi (the appellants in Criminal Appeal No. 1777 of 2011) are the mother-in-law and the father-in-law and Chhotta (the appellant in Criminal Appeal No. 1811 of 2011) is the younger brother of the husband. All the accused persons used to harass her for the reason that a motorcycle was not given in dowry. The complainant had talked to his daughter at 8:30 a.m. on 05.09.2010 through the mobile phone of Chhotta. She appeared to be a bit troubled and suddenly the call was disconnected. The complainant got information at about 10:30 a.m. that his daughter had died. The complainant reached the house of the appellants and found swelling around the neck of the dead body. He alleged that the accused persons had killed her because he could not give a motorcycle as dowry. On the aforesaid written complaint, an FIR bearing Case Crime No. 1100 of 2010 was lodged on 05.09.2010 at 15:40, which has been marked as Exhibit A-2.
The postmortem examination report mentions: (i) A contusion of size 10 cm x 6 cm around the neck, (ii) A contusion of size 6 cm x 3 cm in the upper part of the back and (iii) A contusion of size 6 cm x 3 cm at the left side of the back. Hyoid bone was found fractured. The post-mortem examination report mentions the cause of death as “cause of death is strangulation asphyxia as a result of strangulation”.
After investigation, a charge sheet was submitted on 11.09.2010 against all the accused persons.
The complainant was examined as PW-1 on 28.01.2011. During his examination-in-chief, he stated that he had got his daughter married to Ram Harsh two years prior to the incident. The incident had taken place more than four months prior to the recording of his statement. He stated that the accused persons used to demand a motorcycle as dowry and they used to harass her for this reason. Whenever his daughter used to visit his home and whenever PW-1 used to visit the matrimonial home of his daughter, she used to tell that all the accused persons used to beat her for his failure to give a motorcycle as dowry and they used to ask her to bring a motorcycle from her father. PW-1 stated that he had assured his daughter that he would arrange a motorcycle.
PW-1 further stated that on the date of the incident, his daughter had made a phone call through the mobile phone of her brother-in-law Chhotta and told that all the accused persons were harassing her, but the phone call had got disconnected. He received another phone call at 10:30 a.m., whereby he was informed that his daughter had died. Upon reaching the house of the appellants, he found that the dead body of his daughter was lying there and all the appellants had gone missing.
PW-1 was cross-examined on 03.06.2011. He stated that he had only one daughter whom he had got married in village Mohari, which is situated at a distance of about 4 Km. from his village. Prior to settling the marriage of his daughter, he had satisfied himself by making inquiries that the appellants are good persons. No dowry was demanded during the wedding and the wedding ceremonies were performed happily, in an amicable atmosphere. Gauna ceremony was performed after the wedding and it was also performed happily and amicably and no demand was raised during any of the ceremonies.
PW-1 stated that his daughter used to live in her matrimonial home happily and she used to praise the appellants. He kept on visiting the matrimonial home of his daughter. None of the accused persons demanded any dowry from him and his deceased daughter did not make any complaint at any point of time regarding any demand of dowry or harassment by the accused persons. PW-1 further stated that two days prior to the incident, his son-in-law Ram Harsh had made a phone call and had told that he and his family members were going away and the complainant’s daughter would be alone in the house. Ram Harsh had asked the complainant to come to his house and stay with the latter’s daughter during the absence of the appellants. PW-1 stated that thereafter, he had talked to his daughter also and she also told that she was alone in her matrimonial home and asked him to come over to her home and stay with her. However, PW-1 or any other member of his family could not go there. He went there upon receiving information of the incident and found his daughter lying dead. He stated that he was grieving after the death of his daughter and he had lodged the FIR as per information given by the villagers.
PW-1 stated that he was not educated and he could only make his signatures. The person who had written the FIR had not read it over to him. PW-1 also stated that the investigating officer had not recorded his statement and he had given the earlier part of statement before the trial court as per suggestions given by the villagers.
The doctor who had conducted the postmortem examination of the dead body, was examined as PW-3 and he proved the postmortem examination report, which was marked as Exhibit A-4. He stated that that the deceased died due to strangulation.
Ram Kumar and Dharam Raj, brothers of the deceased, were examined as PW-4 and PW-5 respectively. They did not support the prosecution case and they were declared hostile. Satya Narayan, an uncle of the deceased, was examined as PW-6, and this witness was also declared hostile. All the hostile witnesses were cross-examined by the Additional District Government Counsel (Criminal) and nothing came to light even during their cross-examination by the prosecution counsel, which might support the prosecution case.
The trial court has held that the deceased died in her matrimonial home within seven years of her marriage. The statement of PW-3 proves that she died due to strangulation. The complainant (PW-1) had supported the prosecution case during his examination-in-chief. Thereafter, this witness was won over by the accused persons and he did not support the prosecution case during his cross-examination.
The trial court further held that in the statements recorded under Section 313 CrPC, all the accused persons stated that at the time of the incident, they had gone away to the house of some relative, but they did not disclose any more particulars regarding the object with which they had gone away two days prior to the incident and they did not produce any evidence to this effect.
The trial court also noted the fact that the accused persons did not reach their home even after the death of the deceased, although the complainant and his family members had reached there. The trial court concluded that the accused persons have failed to establish that they were not present near the deceased at the time of the incident.
It is settled law that the prosecution has to prove the allegations against the accused persons beyond reasonable doubt. Brothers of the deceased (PW-4 and PW-5) and her uncle (PW-6) have not supported the prosecution case. Father of the deceased (PW-1) has supported the prosecution case during his examination-in-chief, but he retracted from the allegations during his cross-examination and he stated that he had given the statement during his examination-in-chief on the suggestions of some villagers. No other witness of fact was examined. In these circumstances, the mere statement of the complainant given during his examination-in-chief as PW-1, which statement had been retracted by him during his cross-examination, cannot form the basis of conviction of the accused persons.
So far as drawing of inference against the accused persons because the deceased died inside her matrimonial home within seven years of her marriage is concerned, Section 113-B of the Evidence Act provides as follows: -
“113-B. 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 had 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 304-B of the Indian Penal Code, 1860.”
For attracting the presumption under Section 113-B of the Evidence Act 1872, the prosecution has to prove that the woman had been subjected to cruelty soon before her death by the accused person in connection with any demand for dowry. All the prosecution witnesses have denied that any demand of dowry was made by any accused person. Even during examination-in-chief, PW-1 stated that the deceased used to tell that accused persons were demanding dowry but he has not stated that any accused person made any demand of dowry from him. Even this allegation was retracted by PW-1 during his cross-examination when he stated that he had given the earlier statement on the suggestion of some villagers. Besides the statement of PW-1 given during his examination-in-chief, which he had retracted during his cross-examination, there is absolutely no material to establish any demand of dowry.
So far as injuries of the deceased are concerned, PW-1 himself has stated that the accused persons had gone away to the house of some relative and his daughter was alone in her matrimonial home since two days prior to the incident. He told that his daughter had also telephonically informed him that she was alone in her house and had requested him to come to her matrimonial home and stay with her but he could not do so. The prosecution has not led any other evidence to establish that the injuries found on the dead body had been caused by the accused persons or any one or more of them.
Regarding the observation of the trial court that the accused persons have not specified the object with which they had gone away from their home two days prior to the incident, suffice it to say that the prosecution is required to prove its case beyond reasonable doubt and the accused persons are not required to establish their defense beyond reasonable doubt. The accused persons are merely required to create a doubt in the prosecution case.
In Anand Ramachandra Chougule v. Sidarai Laxman Chougala: (2019) 8 SCC 50, the Hon’ble Supreme Court held that: -
“10.The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.”
When PW-1 himself stated that the accused persons were not present at the time of the incident and the accused persons also stated the same thing during their statements recorded under Section 313 CrPC, they were not required to prove beyond reasonable doubt their absence at the place and time of the incident by proving their presence at any other place, when the prosecution has failed to establish their presence at the time and place of the incident.
The trial court has drawn an inference that the accused persons have influenced and won over the prosecution witnesses from the fact that PW-1 was cross-examined after some delay, only after he was won over. This is a circumstance which may give rise to a suspicion or to say it more accurately, a strong suspicion against the accused persons. But suspicion, howsoever strong, is not sufficient for convicting and sentencing an accused person, as has been held by the Hon’ble Supreme Court in Jose v. Sub-Inspector of Police: (2016) 10 SCC 519, in the following words: -
“56.It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of “may be true” but has to essentially elevate it to the grade of “must be true”. In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touchstone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.”
In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Hon’ble Supreme Court referred to various precedents and culled out the following golden principles to be kept in mind before a case against an accused can be said to be fully established: -
“153.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the observations were made: “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
(2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3)the circumstances should be of a conclusive nature and tendency,
(4)they should exclude every possible hypothesis except the one to be proved, and
(5)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ***
179.We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. (emphasis added)
Regarding the testimony of hostile witnesses, in a recent judgment in the case of Talari Naresh v. State of Telangana: 2026 SCC OnLine SC 852, the Hon’ble Supreme Court has held that: -
“9.Therefore, when the testimony of a hostile witness is admissible subject to be feeded by corroboration and the conviction on that basis could be arrived at, the reverse is also true as a canon of appreciation of evidence. What necessarily implies is that as the evidence of a hostile witness can be used for convicting the accused, such evidence could indeed be applied and utilised also for the purpose of acquitting the accused, when what is testified by the hostile witness inspires credibility, when read with the other evidence on record, either ocular or documentary. The dictum would be that the testimony of a hostile witness or statement in the deposition of hostile witness could be properly employed to discredit the prosecution case and a conclusion of acquittal could well be supported through it and could be founded therein.” (emphasis added)
when we examine the facts of the present case in light of the law laid down in Talari Naresh (supra), it appears that although PW-1 had supported the prosecution during his examination-in-chief, he resiled from it during his cross-examination and he had made those statements on the suggestion of certain villagers and not from his own knowledge. Even in his examination in chief, PW-1 had merely stated that his daughter, i.e. the deceased, used to tell him that the appellants were harassing her for demanding a motorcycle as dowry, but he also stated that no demand of dowry was ever made directly from him. It is also relevant to notice that as per the statement of PW-1, the deceased used to visit her father’s home and her father also used to visit her matrimonial home without any objection or restraint. PW-4, PW-5 and PW-6 have all turned hostile and they have stated that none of the accused persons demanded dowry during the wedding or at any time thereafter and they praised the accused persons. The statements of the aforesaid prosecution witnesses when read together discredit the prosecution case.
The deceased died an unnatural death by strangulation, within her matrimonial home, which is very unfortunate, but mere proof that an offence has occurred does not establish that it was committed by the appellants. The chain connecting the appellants to the death is missing and mere suspicion, howsoever strong, cannot fill that gap. The prosecution has failed to connect the appellants with the death of the deceased as per the standards laid down in Sharad Birdhichand Sarda v. State of Maharashtra (supra).
Keeping in view the fact that even during examination-in-chief of PW-1, he did not allege that any of the accused persons had made any demand of dowry from him directly and he merely alleged that they used to demand dowry from his deceased daughter, which allegation was retracted by him during his cross-examination and that all the other prosecution witnesses have turned hostile, I am of the view that the prosecution has failed to prove the charges of demand of dowry and harassment of his daughter, for the aforesaid reason, beyond reasonable doubt. The trial court has convicted and sentenced the appellants without adverting to the aforesaid aspects of the matter, which vitiates the findings of the trial court.
Accordingly, all the three appeals are allowed. The impugned judgment and order dated 01.10.2011 and the order dated 10.10.2011 passed by Sri Jagdish Prasad, the learned Additional Sessions Judge, Court No. 35, Barabanki in Sessions Trial No. 1050 of 2010 arising out of Case Crime No. 1100 of 2010, under Sections 498-A, 304-B IPC and Sections 3/4 of the Dowry Prohibition Act, Police Station Fatehpur District Barabanki convicting and sentencing the appellants for the offences under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act, is set aside. The appellants are acquitted of the charges, giving them a benefit of doubt. Let the amount of fine deposited by the appellants in furtherance of the impugned orders, be refunded to them.
The appellants are directed to furnish personal bonds and two sureties as per the provision contained in Section 437-A Cr.P.C., for their appearance before the Hon’ble Supreme Court in case any appeal is filed against this order and the Hon’ble Supreme Court issues notice of the appeal, and the bonds shall hold good for a period of six months from today.
Before parting with the case, I put on record my appreciation for the assistance rendered by my Research Associate, Ms. Divyanshi Srivastava by providing relevant case laws mentioned in the aforesaid judgment.