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Allahabad High Court · body

2019 DIGILAW 1158 (ALL)

Dharmendra v. State of U. P.

2019-05-02

PRADEEP KUMAR SRIVASTAVA

body2019
JUDGMENT : Pradeep Kumar Srivastava, J. The learned counsel to the accused appellants submitted that instead of arguing on bail application, he will argue on merits of appeal itself to which the learned A.G.A. has agreed. Hence, heard Sri Dinesh Kumar, learned counsel for the appellants and learned A.G.A. and perused the record. 2. Both the criminal appeals have been filed against the impugned judgment, hence, they are heard together and being disposed of by this common judgment. 3. The prosecution version is that a first information report was registered in respect of a criminal incident and it was stated in the F.I.R. that the deceased Manisha was married with Dharmendra according to Hindu Rights and Rituals. The husband and the other relatives were not happy with the dowry and they demanded Rs.2 Lakhs and a motorcycle as additional dowry. They used to harass Manisha and she was not given food and was being threatened by the accused persons that if the additional dowry is not given, they will kill her. On 09.09.2016, at about 04:00 PM, one neighbour of the deceased informed that the deceased has been hanged by the accused persons. When the informant reached there, he saw Manisha hanging on ceiling fan and the accused persons were absconding from the house. The dead body was taken into custody by the police and was sent for post-mortem and after investigation, the charge sheet was submitted against the accused-appellants for the offence under Section 498A, 304B I.P.C. and under Section 3/4 Dowry Prohibition Act. Accordingly, charges were framed by the learned trial court for the offence under section 304-B and in the alternative under section 302 I.P.C., 498-A I.P.C. and under Section 3/4 Dowry Prohibition Act. 4. The prosecution examined as many as five witnesses in support of its case. PW-1 is informant Satish who has proved his written report as Ext. Ka-1, photographs Ext. Ka-2&3, marriage card Ext. Ka-4 and has given statement regarding incident, PW-2 Smt. Golo is the mother and PW-3 Bana Singh is the father of the deceased who have turned hostile. PW-4 is Constable Reema Pal who has proved chick FIR Ext. Ka=5 and GD report Ext. Ka-6. Pw-5 is Dr. Anubhav Agarwal who has conducted the postmortem of the deceased and has proved postmortem report Ext. Ka-7 with other police papers Ext. Ka-7/1 to Ka-7/7. PW-4 is Constable Reema Pal who has proved chick FIR Ext. Ka=5 and GD report Ext. Ka-6. Pw-5 is Dr. Anubhav Agarwal who has conducted the postmortem of the deceased and has proved postmortem report Ext. Ka-7 with other police papers Ext. Ka-7/1 to Ka-7/7. The accused-appellants, thereafter admitted the genuineness of the police papers. 5. In their statements recorded under Section 313 Cr.P.C., the accused persons have stated that they have been falsely implicated in the present case. they have also stated that the deceased was mentally disturbed. She was arrogant and she used to threaten for committing suicide. She was never harassed on account of demand of additional dowry. The accused persons did not give any evidence in defense. 6. After hearing the prosecution and defense and perusing the evidence on record, the learned trial court held all the accused persons guilty for the offence under Sections 306, 498-A IPC and under Section 4 Dowry Prohibition Act. The accused persons were however acquitted under section 304-B, and alternative charge under section 302 IPC. 7. Aggrieved by the judgment, the accused-appellants have filed this appeal challenging the impugned judgment on the ground of being arbitrary, against law and evidence on record. The witnesses were hostile and they did not support prosecution case and the learned trial court wrongly invoked presumption under section 113-A of the Evidence Act. The impugned judgment is illegal and perverse and is liable to be set aside and the accused-appellants are entitled for acquittal. 8. Pw-1 Satish who is the informant in this case has proved has stated that when he reached the house of Manisha, he found her dead body was hanging tightened by a Saari from the ceiling fan. He informed the police and lodged FIR by submitting a written report which is Ext Ka-1. He stated that Manisha was his niece who lived with him. He took her to his place in her age of 5 years and she was brought up and nourished by him since then. He got her married with the accused Dharmendra and spent 4 lacs rupees in marriage. The accused persons were demanding motorcycle and 2 lacs cash. Whenever he went to her or she came to him, she said that she was being harassed by accused persons for non-fulfillment of dowry demand threatening to kill her. After five months of marriage, she was killed. The accused persons were demanding motorcycle and 2 lacs cash. Whenever he went to her or she came to him, she said that she was being harassed by accused persons for non-fulfillment of dowry demand threatening to kill her. After five months of marriage, she was killed. He went there and saw her hanging on ceiling fan and accused persons were absconding. He dialed 100 number and police came. 9. In the cross-examination, PW-1 has stated that the deceased used to live with her husband in a room constructed on the roof. The remaining accused-persons used to live in their separate rooms. He has stated that the deceased was very arrogant and on some very small issue, she tried to commit suicide and she used to threaten to commit suicide. He has also stated that the deceased also tried to commit suicide in his house also. On account of her anger and arrogance, she was mentally disturbed and, therefore, she was taken with him from her in-laws. He has stated that the deceased never made any complaint about her husband and other in-laws relatives including the accused persons. The behaviour of the husband and his relatives was very cordial with the deceased. There was no demand of additional dowry on their part and whatever was given in the marriage, the whole family was very much satisfied. After marriage neither the husband nor his parents or other relatives ever demanded additional dowry nor anything of that kind was ever reported by the deceased Manisha. She never said about any cruel and harassing treatment on account of demand of dowry. He has further stated that before he reached to Manisha's house, the police personnel and the Magistrate had already come there and her body was taken off from the ceiling fan and she was lying on the ground. All the family members including the accused persons were present there and they remained present throughout the police proceedings and postmortem and the funeral was also done by the husband side. With regards to the report given by him, he has stated that he is not an educated person and he just signed the report and was not read over to him and he does not know what was written in the report. He just simply signed the same. He has stated that Manisha, the deceased might have herself committed suicide for no reason. He just simply signed the same. He has stated that Manisha, the deceased might have herself committed suicide for no reason. She was never tortured by the accused persons and their family members. He denied that any statement was taken by the Investigating Officer. He has further stated that the accused-appellant and family members have no role in the death of Manisha. This witness has been declared hostile by the prosecution and nothing adverse has come in his cross-examination against the accused-appellants and in support of the prosecution. He has reiterated his statement what he had given earlier during cross-examination. He has further stated that the deceased was mentally disturbed. 10. Pw-2 Smt. Golo, the mother of the deceased has also been examined and she has stated that her daughter was very happy with her husband and in-laws. They never demanded any dowry nor harassed the deceased. Manisha used to praise her husband and in-laws. This witness has been also declared hostile. In her cross-examination, nothing has come against the accused persons and in support of prosecution. On the contrary, she has stated that Manisha was mentally retarded and lunatic girl and she was under treatment in Agra for which she was taken to the house of her maternal-uncle (Mama) at Agra. Her treatment was still continuing. She was very arrogant. She has also stated that her son-in-law and his family members always gave good treatment and never demanded any additional dowry. The same statement has also been given by the PW-3 who is father of the deceased Manisha. These are the three witnesses of fact, who have been examined and all have been declared hostile by the prosecution. 11. From the above discussion, it is clear that PW-1 supported the prosecution case in his examination-in-chief and in the beginning of his cross-examination, he turned hostile. Other fact witnesses turned hostile and they neither supported the prosecution version nor supported the examination-in-chief of PW-1. Therefore the only question is whether the conviction and sentence on the basis of hostile witness, only on the basis of statement given in examination-in-chief is appropriate and legal in the facts and circumstances of the case? 12. Section 306 incorporates the offence of abetment of suicide and the main ingredients of the offence is the suicidal death and abetment thereof. The suicide is an intentional killing of oneself. 12. Section 306 incorporates the offence of abetment of suicide and the main ingredients of the offence is the suicidal death and abetment thereof. The suicide is an intentional killing of oneself. Section 113-A of the Evidence Act provides presumption as to abetment of suicide by a married woman as below: "Abetment of suicide by a married woman: When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation- For the purpose of this section, "cruelty"shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860)." 13. Explanation to section 498-A IPC defines cruelty caused on wife by husband or his relatives as follows: (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 14. The proof of cruel treatment or harassment of wife by husband or his relative to force her to fulfill demand of dowry is a necessary condition to invoke the presumption under section 113-A of the Evidence Act. In State of Punjab Vs. Gurmit Singh, (2014) 9 SCC 632 , it has been held in the context of section 304- B of IPC that meaning of the words "any relative of her husband" occurring in Section 304-B IPC & meaning of the words "relative of the husband" occurring in Section 498-A IPC are identical and mean such person related by blood, marriage or adoption. There is no reason, in my view, that the expression "any relative of her husband" occurring in Section 113-A of the Evidence Act should not be given same meaning and it should be limited to persons related by blood, marriage or adoption. 15. In Anad Kumar v. State of Madhya Pradeh, (2009) 3 SCC 799 , it has been held that under section 113-A Evidence Act, invocation of the proposition that onus shifts exclusively and heavily on accused in case of offence under Sec. 306 is not correct. Presumption under Sec. 113-A and 113B is not similar in nature and burden to prove innocence is more on accused under sec. 113-B than under S. 113-A which placed a far lighter burden on the accused. 16. In Pinakin Mahipatray Rawal Vs State of Gujarat, (2014) 84 AllCriC 348 (SC), it has been held that a presumption u/s 113-A, Evidence Act as to offence of abetment of suicide u/s 306 IPC can be drawn when it is established that the person has committed suicide and the suicide was abetted by the accused. Where woman committed suicide within 7 years of her marriage and her husband or his near relative subjected her to cruelty in term of Section 498-A of IPC, the Court may presume that such suicide was abetted by the husband or such person. 17. In Ghulam Mustafa vs State of Uttarakhand, (2015) AIR SC 3101, the Court held that a casual remark or something said in a routine way or in usual conversation should not be construed or misunderstood to mean 'abetment'. A conviction on mere allegation of harassment without any positive action in proximity to the time of occurrence on the part of accused that led a person to commit suicide is not sustainable under section 306 IPC. Again, in Gurucharan vs State of Punjab, (2017) AIR SC 74, it has been held that to constitute the offence under section 306 IPC, there should be a live link between abetment and suicide and the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Again, in Gurucharan vs State of Punjab, (2017) AIR SC 74, it has been held that to constitute the offence under section 306 IPC, there should be a live link between abetment and suicide and the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. So far as the grievance of dowry demand and consequential harassment is concerned, it should not be general in nature and there should be some specific incident and should have provocative capability to drive the deceased to such distressed state, mental and physical that she could elect to end her life. 18. The learned trial court has assigned the reason for conviction stating that PW-1 Satish has supported the version of the first information report in his examination-in-chief, thereafter he was declared hostile. Believing on his examination-in-chief, the learned trial court has convicted the accused-appellants. It is pertinent to mention that subsequently, the parents of the deceased who are PW-2 and PW-3 were also examined and they have also not supported the statement of PW-1 which he has given in his examination-in-chief. PW-1 was declared hostile by the prosecution. Other two witnesses of fact have not supported the prosecution version and they have also been declared hostile. 19. The learned trial court appears to have relied upon the the settled proposition of law that the testimony of the hostile witness cannot be rejected totally as his evidence is not washed off from the record and the parties can take support of such evidence to the extent it is favourable to them. Judgment in Prithi vs State of Haryana, 2011 72 AllCriC 398 is often referred in which it was reiterated that the testimony of hostile witness cannot be rejected totally and his evidence is not washed off the record. The evidence is acceptable to the extent it is found to be dependable on careful scrutiny thereof and supports the version of prosecution. It is pertinent to mention that it was a case of murder under section 302 IPC and one of the eyewitness (informant) who was injured also, did not name the assailant but supported prosecution version. Other eyewitness who was a related witness named and supported the prosecution version and gave full account of the incident. It is pertinent to mention that it was a case of murder under section 302 IPC and one of the eyewitness (informant) who was injured also, did not name the assailant but supported prosecution version. Other eyewitness who was a related witness named and supported the prosecution version and gave full account of the incident. In this instant case, PW-2 and PW-3 who were parents of the deceased turned hostile and did not support the prosecution case or what was stated by PW-1 in his examination-in-chief, and as such on fact it can be distinguished. 20. In a recent judgement, Ramesh vs State of Haryana, (2017) 1 SCC 529 , the Supreme Court expressed concern on witnesses turning hostile, particularly in high profile cases. In the instant case even the injured witness who was present on spot, turned hostile and the trial court disbelieved the dying declaration of the deceased on the basis of the statement of a hostile witness whose testimony was found false on the basis of evidence on record. The Supreme Court after analysis of various cases underlined the reasons of hostility to be (1) threat/intimidation (2) Inducement by various means (3) Use of muscle and money power by the accused (4) Use of stock witness (5) Protracted trial (6) Hassles faced by the witnesses during investigation or trial (7) Non-existence of any clear-cut legislation to check hostility of witness. (8) Culture of compromise which results from various factors like village and family solidarity, compensation, false case, false statement recorded by police, subsequent good relationship developed between the parties and the like. This view has been further reiterated in Mahender Chawla vs Union of India, 2018 SCCOnline 2679. 21. The purpose of the above discussion is to point out that there may be various reasons for hostility and while appreciating the evidentiary value of a hostile witness, the trial courts should not be mechanical and should consider the evidence in the light of factual matrix in each case. In case the witness has turned hostile during cross-examination, the statement in examination-in-chief may be taken in support of other reliable and trustworthy evidence available on record. In case the witness has turned hostile during cross-examination, the statement in examination-in-chief may be taken in support of other reliable and trustworthy evidence available on record. It should be always kept in mind that right of cross-examination is available to the accused as part of his right to fair trial and unless there is evidence of threat, fear or pressure or the like to procure hostility, the trial courts should be very cautious in placing reliance on it, otherwise, the valuable right of the accused of cross-examination and fair trial will become futile and nugatory. 22. The principle of law as laid down by different judgments of the Supreme Court that the testimony of hostile witnesses shall not be completely discarded and the part of the statement which supports the prosecution version can always be taken into consideration cannot be disputed, but the way it has been applied in the facts and circumstances of this case, that was totally uncalled for and unwarranted. It has been held in Ram Swaroop v. State of Rajasthan, 2004 AIR SC 2243 ; 2005 SCC (Cri) 61, that the credibility of a hostile witness cannot be discarded altogether. But this puts the court on guard and cautions the court against acceptance of such evidence without satisfactory corroboration. Thus, it appears that the aforesaid principle of law was misread and misunderstood by the learned trial court to mean that a conviction can be recorded on solitary statement of a witness who has disowned his testimony of examination-in-chief and has turned hostile during the beginning of the cross-examination. No doubt, where other reliable and trustworthy evidence is available on record, the same can be used in support thereof. 23. Otherwise also, the learned trial court should have tested and scrutinize the evidence of PW-1 Satish carefully before deposing confidence on him, particularly when father and mother of the deceased were examined and they did not support the prosecution version. PW-1 has claimed that since the deceased was only five years in age, she was taken by the accused to his place where she was brought up and nourished by him since then. The learned trial court without testing its correctness has placed reliance on it and has observed that since the deceased lived with him, therefore, he was in a better position to tell about the dowry harassment and factual situation. The learned trial court without testing its correctness has placed reliance on it and has observed that since the deceased lived with him, therefore, he was in a better position to tell about the dowry harassment and factual situation. But, this appears to be incorrect from the statement of PW-1 himself. He has been examined before the trial court on 28.3.2017 and he has stated his age to be 24 years. The deceased committed suicide on 9.9.2016 and as per postmortem report she was aged about 23 years. It means that both were equal in age. Therefore, it cannot be believed that the deceased was taken to his place when she was only five years in age and the witness also must have been of same age. Then, subsequently he disowned his statement in the beginning of cross-examination and contradicted his own statement. Parents of the deceased also did not support the case. In such circumstances, it was not proper and safe to place reliance on his statement given in examination-in-chief, so as to hold the accused persons guilty, particularly when there was no specific mention of any incident of dowry demand and harassment or any cruelty of such nature which could drive the deceased to end her life. On the contrary, all the three fact witnesses have stated that she was in depression and not mentally fit and was under treatment. 24. The trial court has missed the basic principles of criminal jurisprudence that there is always a presumption of innocence in favour of the accused persons. Virtually, there was no evidence on record, on the basis of which the accused appellants could have been convicted for the said offences. The presumptive clause of Section 113A of the Indian Evidence Act, 1872 is only attractive when the prosecution has discharged its initial burden of proving the case. I find that the prosecution has not been able to discharge the burden of proving the case against the accused persons and unless the burden was discharged by the prosecution, there was no question of raising presumptive clause of the Evidence Act. Only with the help of presumptive clause, no accused person can be convicted unless there is trustworthy evidence supporting the prosecution case. 25. Only with the help of presumptive clause, no accused person can be convicted unless there is trustworthy evidence supporting the prosecution case. 25. On the basis of above discussion, I find that by convicting accused-appellant, the learned trial Court has committed illegality and the finding of conviction on the basis of no reliable evidence on record is apparently perverse. Consequently, the impugned judgment is illegal and is not sustainable under law. Therefore, the impugned judgment is liable to be set aside and consequently the accused-appellant is entitled to be acquitted from the said charges. 26. Accordingly the appeal is allowed. The judgment of conviction and sentence dated 31.10.2019 is hereby set aside and consequently, the accused-appellants Dharmendra, Smt. Ishwari Devi and Satto @ Satish Chand are acquitted under section 498-A, 306 IPC and section 4 of the Dowry Prohibition Act. 27. Let a certified copy of this judgment as well as original record of this case be returned back to the court concerned for information and necessary compliance.