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Acquitted under sec. 302 and 306 IPC – convicted under sec.304 B on interpolated letter , without prove of demand of dowry soon before the death – Apex set aside the orders of lower court and high court and acquitted the accused who are nothing but sister in laws of deceased = = ASHA & ANR. … APPELLANTS VERSUS STATE OF UTTARAKHAND … RESPONDENT = http://judis.nic.in/supremecourt/imgst.aspx?filename=40955

Acquitted under sec. 302 and 306 IPC – convicted under sec.304 B on interpolated letter ,

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

without prove of demand of dowry soon before the death – Apex set aside the orders of lower court and high court and acquitted the accused who are nothing but sister in laws of deceased = 

 

 

 

The  High  Court,  after  careful

 

examination of the letter dated 28.06.1993,  has  found  that  it  has  been

 

interpolated and that some changes have been made in  the  letter  and  some

 

words were added to it. The courts below have erred  in  law  in  convicting

 

the appellants herein by erroneously placing  reliance  upon  the  above  so

 

called letter, wherein certain words were added with a view to  make  out  a

 

fabricated charge against them to  secure  the  conviction  of  the  accused

 

persons.

 

 

 

 On perusal of the evidence on  record,  we  are  of  the

 

view that the charge is not proved by the prosecution, particularly  as  the

 

courts below have failed to notice that the prosecution has failed to  prove

 

that the dowry demand was  made  by  the  accused  either  at  the  time  of

 

marriage or subsequently as  it  has  not  produced  convincing  and  cogent

 

evidence in this regard.

 

 

 

  whether the demand for [pic]30,000/- as alleged to have been  made  by

 

the accused is a demand for dowry with  the  deceased  that  can  constitute

 

cruelty or  harassment  by  the  accused.

 

 

 

 In our considered  view,  after  careful  analysis  of  the  aforesaid

 

aspects of the case and on careful perusal of the evidence  on  record,  the

 

finding of fact recorded by the High Court in  convicting  the  accused  for

 

the charge of Section 304B of the IPC is not  only  erroneous  in  fact  but

 

also suffers from error in law  and  therefore,  the  present  appeals  must

 

succeed.

 

 

 

IN THE SUPREME COURT OF INDIA CRIMINAL
APPELLATE JURISDICTION

 
CRIMINAL APPEAL NO. 1893 OF 2013
(Arising Out of SLP (Crl.) No. 2098 of 2011)

 

ASHA & ANR. … APPELLANTS

 

VERSUS

 

STATE OF UTTARAKHAND … RESPONDENT

 

WITH

 

CRIMINAL APPEAL NO. 1894 OF 2013
(Arising Out of SLP (Crl.) No. 2924 of 2011)

 
J U D G M E N T

 

V. Gopala Gowda, J.

 

These appeals have been filed by the appellants against the common
impugned judgment and order dated 07.01.2011 of the High Court of
Uttarakhand at Nainital in Criminal Appeal No. 1931 of 2001(Old no. 1060 of
1998), whereby the High Court dismissed the appeal of the appellants and
upheld their conviction and sentence of 10 years R.I. under Section 304B of
the Indian Penal Code (in short “the IPC”) awarded by the trial court. In
Criminal Appeal No. 1893 of 2013 the appellants are the sisters-in-law of
the deceased and in Criminal Appeal No. 1894 of 2013 the appellant is the
father-in-law of the deceased. During pendency of the appeal before the
High Court, the co-accused, Lilawati, the mother-in-law of the deceased had
died, therefore, the case abated against her.

 

2. The brief facts of the case are stated hereunder to appreciate the
correctness of the findings recorded by both the trial court and the High
Court on the charges framed against the accused persons under Sections
302/34, 304B and 306 of the IPC and also to find out as to whether the
appellants are entitled for the relief as prayed by them.

 

3. The deceased, Bhagwati Devi was married to Satish Chandra (the brother
of the appellants in Criminal Appeal No. 1893 of 2013) on 13.06.1991. The
deceased died due to burn injuries in her matrimonial house on
18.07.1993, around two years after marriage. The co-accused, the father-
in-law of the deceased, Nitya Nand (the appellant in Criminal Appeal No.
1894 of 2013) lodged a report (Ex.Ka.1) on 18.07.1993 with the patwari
stating that his daughter-in-law committed suicide by burning herself at
about 10.00 a.m. He alleged in the aforesaid report that the deceased
burnt herself to death while he had gone to the market and his wife and
their daughters were away in the jungle for cutting grass. On 19.07.1993,
the complainant, Mahesh Chandra (P.W. 5), the brother of the deceased
lodged another report to the patwari making allegations against the
appellants herein and the mother-in-law of the deceased, upon which FIR
No.1/93 dated 19.07.1993 was registered against them. The accused persons
were arrested and sent to judicial custody on 22.07.1993. On 16.10.1993,
the police, after investigation, submitted the charge sheet before the
Chief Judicial Magistrate, Almora. The case was committed to the Court of
the Sessions Judge on 23.03.1994 and the accused were charged under
Sections 302/34 and 304B of the IPC and in the alternative, Section 306
of the IPC. Both the prosecution and the defence witnesses were examined
to prove the charges against the accused persons and to show that they
are not guilty of the offences alleged against them. The trial court, on
appreciation of evidence on record, vide its judgment and order dated
01.06.1998, found the appellants guilty of offence under Section 304B of
the IPC and they were sentenced to 10 years R.I. The appellants were
acquitted for offences under Sections 302 and 306 of the IPC. The
appellants filed Criminal Appeal No. 1931/2001 (Old no.1060/1998) before
the High Court. The High Court dismissed the appeal and upheld the
judgment and order of the Sessions Court vide its common judgment and
order dated 07.01.2011. Aggrieved by the same they preferred these
appeals, urging certain grounds and legal contentions.

 

4. The learned Sessions Judge relied upon the evidence of the prosecution
witnesses to convict the appellants. The prosecution examined 9 witnesses
in support of the case. P.W 3, Bhuvan Chandra and P.W 5, Mahesh Chandra
are the brothers of the deceased. According to P.W. 3, his brother Deepak
Chandra-the P.W.7 had gone to the matrimonial house of the deceased, when
the four accused persons demanded [pic]30,000/- stating that the
deceased had brought less dowry and threatened to send her back to their
house if they did not pay the amount demanded. P.W.3 had written a letter
(Ex. Ka.3) on 28.6.1993 to his parents informing them about the demand of
the in-laws of the deceased for [pic]30,000/- and that due to this he
withdrew [pic]4,000/- and sent it to his father through a villager to
give it to his sister, the deceased herein. He also stated that the
deceased-Bhagwati had told his wife and his father that she was being
harassed at her in-laws house because she had brought less dowry. P.W.4,
Nanda Devi, the mother of the deceased also alleged that the deceased was
harassed by the accused persons for bringing less dowry. She deposed that
the accused persons gave her less food and did not allow her to wear the
clothes which were given to her at the time of the marriage. P.W.5, the
brother of the deceased deposed that his sister had told him that her in-
laws taunted her about being from a poor family and for having brought
less dowry. P.Ws.3, 4 and 5 alleged that the accused burnt Bhagwati to
death. P.W.6, Dr. Naval Kishore Pandey, the doctor who conducted the post
mortem of the deceased deposed before the trial court that she had died
due to 90% of burn injuries. P.W.7, Deepak Chandra, another brother of
the deceased deposed before the court that he had gone to his sister’s
matrimonial house in May, 1993 when the accused persons demanded
[pic]30,000/- and said that dowry was not fulfilled by the parents of the
deceased and they had simply given a sewing machine. He also stated that
the accused persons had misbehaved with his sister Bhagwati in his
presence.

 

5. The trial court examined the evidence on record and held that the charge
under Sections 302/34 of the IPC against the accused persons is not made
out, but instead the accused created the circumstances and compelled the
deceased to commit suicide. Further, it has held that the prosecution has
been able to prove the case i.e. the charge under Section 304B of the IPC
beyond reasonable doubt that the demand for dowry that was made by the
accused persons subsequent to the marriage and soon before the death of
the deceased amounts to ‘dowry death’. As regards Section 306 of the IPC,
the trial court held that there is no direct evidence regarding abetment
to suicide by the deceased and instead reiterated that the accused
created the circumstances for committing suicide and since evidence was
not led under Section 306, the trial court held that the accused were
liable to be acquitted for offence under Section 306. Therefore, the
trial court convicted and sentenced the accused persons for offence
punishable under Section 304B of the IPC and also cancelled their bail
bonds, pursuant to this conviction.

 

6. The High Court, in the impugned judgment has stated that in dowry death
cases, direct evidence is hardly available and such cases are usually
proved by circumstantial evidence. Further, the High Court has stated
that the death of the deceased cannot be said to be under normal
circumstances for the reason that at the place of occurrence the
investigating officer found a matchbox, a plastic jeri-can of five
litres, half filled with kerosene oil and there was cot and bed towards
the feet of the deceased but these articles were intact. It was felt by
the High Court that it is surprising that the deceased was burnt to 90%
and she might have moved around writhing in pain and during this process
the articles kept inside the room might have caught fire but these
circumstances were not found. Further, it has come in the prosecution
evidence that the deceased was making complaints about the torture meted
out to her by her in-laws at her matrimonial house in lieu of dowry
demands and it has further held that the appellants-accused persons also
could not explain the reason for the deceased having committed suicide at
her matrimonial house. Thus, the High Court came to the conclusion that
the death of the deceased cannot be said to be in normal circumstances.
Therefore, the High Court held that it can be safely presumed that this
is a case of dowry death against the accused persons in whose house the
deceased had died due to burn injuries. The High Court further stated
that another circumstance which goes against the accused persons is that
they did not inform the parents/brothers of the deceased on coming to
know of her death. The High Court has held in its judgment, on the basis
of the evidence of the witnesses, that the prosecution case of ill-
treatment of the deceased at the hands of the accused was found to be
fully established. Therefore, the High Court has upheld the conviction
and sentence awarded by the trial court in its judgment and dismissed the
appeal of the appellants.

 

7. The learned counsel for the appellants have contended that there was no
evidence on record to show that the deceased had been subjected to any
cruelty or harassment by the appellants in connection with demand of
dowry soon before her death and the conditions set forth for conviction
under Section 304B of the IPC were not satisfied by the prosecution. It
was further contended by the learned counsel that there were no demands
for dowry either at the time of marriage or subsequently and the courts
below have erred in law in convicting and sentencing the appellants by
relying upon the letter of P.W.3 marked as Ex.Ka.3, even though the trial
court had come to the conclusion that the letter has been interpolated.
The trial court has observed that in the letter, the word ‘Sasur’
(father-in-law) has been added after the word ‘Sas’ (mother-in-law)and
many other words have been added or struck off here and there in the
letter. Thus, the reliance placed by the trial court upon such evidence
to convict the appellants of the charge was erroneous in law. Further, it
is contended by the learned counsel that the courts below have picked one
line from one place and another from another place from the evidence of
the prosecution witnesses to arrive at the conclusion and held that there
was demand for dowry by the appellants.

 

8. The learned counsel for the respondent-the State of Uttarakhand has
contended that the evidence on record adduced by the prosecution
witnesses would clearly show that the deceased was regularly subjected to
cruelty and harassment by the appellants as she was poor and brought less
dowry to the family of the appellants. The letter, Ex.Ka.3 written by
P.W.3, one of the brothers of the deceased to his parents informing them
about the demand of the accused persons for [pic]30,000/- with the
brother of the deceased would clearly show that the demand for dowry is
proved and the same is accepted by the trial court and the trial court
rightly convicted and sentenced the accused persons for the offence under
Section 304B of the IPC. It is further contended by the learned counsel
for the respondent-State that the conviction of the accused persons under
Section 304B of the IPC on the basis of the evidence on record was
legally correct and the same need not be interfered with by this Court
and must be upheld.

 

9. We have heard the rival factual and legal contentions urged on behalf
of both the parties and very carefully perused the evidence on record to
examine the correctness of the finding recorded against the accused
persons in the impugned judgment. The following points would arise for
our consideration:

 

i) Whether the trial court and the appellate court were correct in
recording the finding that the accused are guilty of offence
under S.304B of the IPC and in convicting and sentencing them
under this Section?

 

ii) What order to be passed?

 

10. On considering the evidence of the prosecution witnesses as deposed by
them which is on record, we are of the view that the charges of cruelty
or harassment against the accused are not supported by legal evidence on
record. The courts below have erroneously placed reliance on the letter
(Ex. Ka.3) written by P.W.3 to his parents which is on record to
establish the charge u/s 304B of the IPC, wherein he has stated in his
letter that P.W.7 had gone to the matrimonial house of the deceased and
was met with demand for [pic]30,000/-. There is no evidence of demand for
dowry by the accused persons prior to the alleged demand of [pic]30,000/-
. To satisfy the ingredients of the provision of Section 304B of the IPC,
the death of a woman must be caused due to burns or bodily injuries, and
must be within 7 years of her marriage. Further, it must be proved that
soon before her death, she was subjected to cruelty or harassment by her
husband or her relatives “in connection with the demand for dowry”.

 

11. The said charge has not been proved by the prosecution by adducing
evidence to attract the ingredients of the offence under Section 304B of
the IPC. The trial court and the appellate court have not taken great care
in analysing and appreciating the evidence on record, keeping in view the
gravity of the offence of dowry death and the punishment prescribed for it
u/s 304B of the IPC. They were required to scrutinise the evidence very
cautiously and carefully in order to arrive at the conclusion as to whether
all the ingredients of the offence with reference to the conditions
enumerated u/s 304B of the IPC to convict the accused have been satisfied
by the prosecution. On perusal of the evidence on record, we are of the
view that the charge is not proved by the prosecution, particularly as the
courts below have failed to notice that the prosecution has failed to prove
that the dowry demand was made by the accused either at the time of
marriage or subsequently as it has not produced convincing and cogent
evidence in this regard. In this case, the evidence on record is not clear
as to whether the demand for [pic]30,000/- as alleged to have been made by
the accused is a demand for dowry with the deceased that can constitute
cruelty or harassment by the accused. The High Court, after careful
examination of the letter dated 28.06.1993, has found that it has been
interpolated and that some changes have been made in the letter and some
words were added to it. The courts below have erred in law in convicting
the appellants herein by erroneously placing reliance upon the above so
called letter, wherein certain words were added with a view to make out a
fabricated charge against them to secure the conviction of the accused
persons. We are of the view that the document Ex.Ka.3 was created for the
purpose of falsely implicating the accused to secure their conviction for
the charge under Section 304B of the IPC. The said letter has been
erroneously relied upon by the courts below to establish the allegation
that there was cruelty or harassment by the accused persons on the deceased
which has resulted in setting up of the circumstances for her death. The
courts below have not noticed the important aspect of the case, namely,
that the charge of dowry death, that there was demand on the deceased
either before the marriage or soon before the death of the deceased made
against the accused persons, should have been proved beyond reasonable
doubt. The courts below have also failed to consider the relevant fact
namely, the appellants herein were not in the house at the time of the
incident.

 

12. In our considered view, after careful analysis of the aforesaid
aspects of the case and on careful perusal of the evidence on record, the
finding of fact recorded by the High Court in convicting the accused for
the charge of Section 304B of the IPC is not only erroneous in fact but
also suffers from error in law and therefore, the present appeals must
succeed.

 

13. In view of the aforesaid reasons, i.e. the lack of compelling evidence,
we have to reverse the judgment and order of the High Court by setting
aside the conviction of the accused persons under Section 304B of the IPC.
The impugned judgment of the High Court cannot be sustained and the same is
accordingly set aside. The appellants are acquitted of all the charges. The
appellants are on bail, their bail bonds stand discharged.

 

14. The appeals are allowed accordingly.

 
………………………………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,

 

November 1, 2013
———————–
17

 

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