State vs Anoop Singh and Others

G.P. Mittal, J.—Crl. M.A. No. 17481/2010 (under Section 5 of the Limitation Act.)

Delay condoned for the reasons as stated in the application.

Crl. L.P. No. 425/2010

This is a petition seeking leave to file an Appeal against the judgment dated 29.05.2010 whereby the accused were acquitted of the offence punishable u/s 304-B of the Indian Penal Code (for short ''Code'').

On 14.01.2008 deceased Poonam was removed to Babu Jagjivan Ram Memorial Hospital after receiving burn injuries. She was declared brought dead in the hospital. On the basis of statement of Yuvraj Singh, father of Poonam a case for the offence punishable u/s 304-B of the Code was registered. Yuvraj Singh informed the police that his daughter Poonam was married to Anoop Singh on 25.06.2005. After 2/21/2 months of the marriage her in-laws started beating her and were demanding money from time to time. On 17.02.2007 accused Anoop Singh burnt the leg and hand of his daughter Poonam with heated iron. Poonam informed him that Anoop Singh was demanding money to purchase motorcycle. Accused Roshani Devi and Roshan Lal, parents-in-law of Poonam were also party to the beatings.

During trial, the prosecution examined as many as 21 witnesses out of which PW-1 Sharda Devi and PW-2 Yuvraj Singh are the mother and father of Poonam whereas PW-6 Urmila, PW-9 Balak Ram and PW-4 Ashwani Kumar are other relatives of Poonam through whom the prosecution sought to prove that Poonam was being treated with cruelty before her death.

The learned Additional Sessions Judge while recording the finding of acquittal held that the prosecution had failed to establish that Poonam was treated with cruelty. We would like to extract para 28 of the impugned judgment hereunder:

Be that as it may, fact remains that testimony of Ashwani Kumar and his parents do not suggest anything which may show that accused persons were treating Poonam with cruelty. Testimony of her parents is also not potent enough. On the other hand, mother of Poonam does not seem to know anything. There is nothing on record which may show that any report regarding cruelty or harassment was ever lodged by the parents of Poonam when they learnt about the alleged cruelty merely two-three months after the marriage. Her mother even did not bother to visit her at any point of time. There are unspecific and vague allegations which do not take the case of prosecution anywhere.

In order to bring its case within the meaning of dowry death as envisaged u/s 304-B of the Code, apart from proving that the unnatural death of a woman has taken place within seven years of her marriage, the prosecution is under obligation to prove that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband in connection with the demand of dowry.

It is not in dispute that marriage of Poonam had taken place on 25.06.2005 and she met with an unfortunate death on 14.01.2008.

It has been urged by Mr. M.N. Dudeja learned Additional Public Prosecutor for the State that it is the quality and not quantity of evidence which is material in a criminal trial. The prosecution has produced the parents of Poonam who have testified regarding the demand of money for purchase of motorcycle and that Poonam used to be given beatings by her husband and parents-in-law. It is contended that the prosecution has also established the burn injuries given to Poonam by accused Anoop Singh with a heated iron. Thus, it is very strenuously argued before us that the Petitioner is entitled to grant of leave to file an Appeal.

The prosecution is mainly relying on the evidence of PW-1 Sharda Devi, mother of Poonam and PW-2 Yurvaj Singh, father of Poonam.

PW-1 Sharda Devi deposed that sometime after the marriage, accused Anoop Singh started beating her daughter in connection with the demand of dowry whereas other accused persons would also harass her daughter. She deposed that in the year 2007 Anoop Singh had given burn injuries to her daughter with the help of heated iron Press. During cross examination, the witness deposed that it was in September, 2005 that accused Anoop Singh had demanded dowry; the demand was conveyed by Poonam telephonically. However, during further cross examination, this witness deposed that her daughter had not told her anything about any demand by Anoop Singh. It was only her husband (Yuvraj Singh) who had been told of the demand by Poonam. She was cross examined on the aspect of any money being given by the parents in pursuance of the demand. She deposed that her husband had sent the money through money-order which was initially returned back; when the money-order was sent again, the same was received. She, however, could not tell as to how much money was sent by her husband and in which month or year. Admittedly, the prosecution has not collected any evidence regarding sending of any money by Yurvaj Singh.

The testimony of Yuvraj Singh, shows that he did not make any mention of sending any money to Poonam by money-order at any point of time. In his examination in chief, he made a general statement that all the accused persons had started beating Poonam in connection with demand of dowry just after 2/21/2 months of the marriage. It was only during the cross examination of this witness that he deposed that his daughter had informed him that the demand was regarding the motorcycle and a TV. There is absolutely no mention of any demand of any TV or any money for purchase of TV in the statement Ex.PW-2/A made by Yuvraj Singh on the basis of which this case was registered. Yurvraj Singh admitted that he did not hold any Panchayat nor made any report to the police regarding the demand. Thus, in view of the contrary statement of these two witnesses it is difficult to believe that any demand of dowry was made.

Assuming that the demand of dowry was made in July, 2005 as stated by PW-2 Yuvraj Singh, he had visited the accused persons in October, 2005 to reconcile the matter. It is nowhere stated by either of these witnesses that any dowry was demanded after the matter had been reconciled or that there was any harassment or cruelty with regard to the demand of dowry.

Regarding burn injuries alleged to have been given in February, 2007 from heated iron by accused Anoop Singh to Poonam, no complaint was made to the police. One can understand that sometimes small matters are not reported to the police to maintain matrimonial harmony. As per PW-2 Yuvraj Singh, Poonam was treated for the burn injuries through a doctor having Clinic in the village. But, at the same time, the witness deposed that the doctor had not prepared any prescription with regard to the treatment. It is totally unbelievable that a doctor would not prepare even an OPD slip/prescription in respect of the treatment given to a patient, particularly, like the burn injuries with a heated iron. If these allegations would have been true at least the name of the doctor would have been given and his statement recorded during investigation. We are, therefore, not inclined to place implicit reliance on this part of the testimony of PW-1 Sharda Devi and PW-2 Yuvraj Singh, particularly, in view of indifference of these witnesses to the disappearance of Poonam on 17.11.2007 to which we would advert to a little later. As per the evidence adduced, the demand for money for purchase of a motorcycle was made in the year 2005 and the alleged burn injuries with a heated iron were given in February, 2007. As per PW-2 Yuvraj Singh, the matter regarding demand of dowry was reconciled during his visit to the place of accused persons in October, 2005 when he had also stayed overnight in the matrimonial house of his daughter.

For bringing a case within four corners of Section 304-B of the Code the cruelty or harassment has to be meted out to a woman soon before her death. The expression "soon before death" has not been defined in Section 304 IPC or Section 113-B of the Evidence Act. The expression is a relative term which requires to be considered under facts and circumstances of each case and no straight jacket formula can be laid down by fixing any time limit. In some cases it can be a few days, a few weeks and in some cases may a couple of months. Yet there must be proximity between death and the cruelty in connection with the demand for dowry.

In Satvir Singh and Others Vs. State of Punjab and Another, , the Supreme Court examined this question. We would like to extract Para 22 of the report hereunder:

It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened "soon before her death". The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasis the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities (sic cruelty) the death would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon before her death"

We would not like to multiply authorities on the subject. If needed reference can fruitfully be made to Thakkan Jha and Ors. v. State of Bihar 2004 (13) SCC 348; Baldev Singh Vs. State of Punjab, ; Kamesh Panjiyar @ Kamlesh Panjiyar Vs. State of Bihar, ; and Ram Badan Sharma Vs. State of Bihar,

There is absolutely no evidence regarding any cruelty as envisaged u/s 304-B of the Code after February, 2007 even if the incident of burning the hand or leg of Poonam is taken as a gospel truth. Poonam had gone to matrimonial home after the aforesaid incident and had then come back to her parents'' house sometime near Karvachauth in the year 2007. It is not the prosecution''s case that she complained of any cruelty or harassment with regard to any dowry demand during that visit. Poonam met with an unfortunate death on 14.01.2008. This gap of eleven months under the circumstances of the case cannot be said to be "soon before her death" particularly, when Poonam had disappeared herself on 17.11.2007 and had reached the matrimonial home only on 13.01.2008. It is not the case of the prosecution that the accused persons were responsible for her disappearance. Rather, the evidence adduced points out that when Poonam did not reach the matrimonial home on 17.11.2007 as she had been made to board bus from Nangloi by PW-4 Ashwani Kumar the husband was very much worried, had informed PW-4 Ashwani Kumar cousin of Poonam and Smt. Urmila, Poonam''s father''s cousin about this and had ultimately lodged DD No. 23-A in the Police Station Nangloi.

As noticed by the Trial Court it is quite intriguing that the parents of Poonam had preferred not to talk to her during this period of about two months. It is very strange that a father whose married young daughter goes missing on way from the parents'' house to the matrimonial home would be content to attend to his normal work without bothering to contact the husband and parents-in-law. If we accept the prosecution version that there was harassment of Poonam in connection with the demand of dowry at the hands of the accused persons, it was all the more expected of a reasonably prudent father to immediately contact the husband and find out the whereabouts of his daughter.

We have also perused statements of PW-4 Ashwani Kumar, PW-6 Urmila and PW-9 Balak Ram on the conduct of Poonam after she surfaced after her disappearance. PW-6 Urmila has simply stated that she tried to talk to Poonam but she (Poonam) did not enter into any conversation. She was looking towards all the three accused persons and started weeping. She did not say anything. A Court question was put to PW-4 Ashwani Kumar if he or his mother wanted to know the reason as to why Poonam was weeping; the curt reply was that they did not try to find out the same as they were not willing to talk to her as she had gone missing earlier also and they wanted that everything should be discussed in presence of her father (PW-2 Yuvraj Singh). If a wife / daughter-in-law goes missing, the husband/parents-in-law would naturally question the reason and the place where she had gone. Ex.PW-15/C and PW-15/C-1 are the statements made by Poonam before the police when she was recovered. She categorically stated that she had gone to her parents'' house in Punjab which admittedly is totally false.

It is thus crystal clear that neither (was any cruelty nor) any demand of dowry nor any cruelty with regards to the same after February, 2007. Poonam stayed at the place of her choice away from her husband and parents-in-law i.e. the accused persons for about two months before her unnatural death. The alleged cruelty before February, 2007, though not proved, otherwise will not come in the proximity test laid down in the authorities cited above.

The principle which governs and regulate the hearing of Appeal by the High Court, against an order of acquittal passed by the Trial Court are well settled by catena of judgments of the Apex Court. Of course, High Court has power to reconsider the whole issue and reappraise the evidence and come to its own conclusion and finding in place of the findings recorded by the Trial Court, if the said findings are against the weight of record or are perverse. However, the High Court would be slow to interfere with the view taken by the Trial Court where two views are possible and one view has been taken by the Trial Court. A reference may be made to Madan Lal Vs. State of Jammu & Kashmir, where the Apex Court held:

8... The different expressions used in different judgments of this Court to the effect that there must be "sufficient and compelling reasons" or "good and sufficiently cogent reasons" for the appellate court to alter an order of acquittal to one of conviction, by no manner curtail the power of an appellate court in an appeal against acquittal to review the entire evidence and come to its conclusion. But in doing so the appellate court should consider every matter on record and the reasons given by the trial court in support of the order of acquittal. The essence of several decisions of this Court is the rule that in deciding appeals against acquittal the court of appeal must examine the evidence in a particular case; must also examine the reasons on which the order of acquittal was based; and should interfere on being satisfied that the view taken by the acquitting Judge is unreasonable. It two views are possible on a set of evidence then the appellate court need not substitute its own view in preference to the view of the trial court who has recorded an order of acquittal. In other words, if an order of acquittal is based on proper appreciation of evidence then the same cannot be reversed.

The view taken by the learned Additional Sessions Judge was the most plausible view on the basis of evidence produced during trial.

The Petitioner State has failed to make out any ground for grant of leave to file the Appeal. The Leave Petition is without any merit; it is accordingly dismissed.