JUDGMENT
V.S. Aggarwal, J.
1. Raj Kumar appellant was married to Manjit Kaur deceased. Ram Parkash is the father of Raj Kumar. Both the appellants have been held guilty of the offence punishable under Section 304-B of the Indian Penal Code. By the subsequent order of same date, the learned Additional Sessions Judge sentenced each of the appellant to undergo rigorous imprisonment for 10 years. Aggrieved by the said judgment and the order of sentence, the present appeal has been filed. The complainant has preferred the revision petition seeking enhancement of the sentence. By this common judgment the above said appeal and the revision petition can conveniently be disposed of together.
2. The facts of the prosecution case are that Gian Singh complainant is the father of deceased Manjit Kaur. In the year 1990 Manjit Kaur was married to Raj Kumar. On 13.7.1991 the wife of the complainant and his son had gone to meet Manjit Kaur in the house of the appellants. Raj Kumar was seen assaulting Manjit Kaur. The wife and the son of the complainant informed him about the said incident. He went to meet the appellants. Raj Kumar appellant told the complainant that he (complainant) had agreed to construct a house but has not done so. Till such time the house is constructed, Raj Kumar will behave in this fashion with the deceased. Ram Parkash appellant had told Raj Kumar to turn the deceased from his house. Thereafter, the complainant and his wife returned with their daughter Manjit Kaur to their own house.
3. Manjit Kaur was blessed with a child on 2.8.1991. The complainant had arranged for Akhand Path on 14.8.1991 at Nirmal Ashram, Fatehgarh Road, Hoshiarpur. The Bhog was to be performed on 16.8.1991. On 15.8.1991 appellant Raj Kumar with his mother Gurbans Kaur came and informed that they had to offer some “Degs” at the Mazar of some Pir and requested Manjit Kaur to accompany them. Complainant permitted his daughter Manjit Kaur to go with them and requested appellant Raj Kumar and his mother to send Manjit Kaur back on the nxtday.On the following day namely 16.8.1991 the complainant with his wife, his brothers and other members of the family were present at Nirmal Ashram, Hoshiarpur. At about 7.00 a.m. Raj Kumar and his mother came in the car. They were accompanied by another person. The dead body of Manjit Kaur was taken from the car. It was placed outside the outer gate of Nirmal Ashram. After doing so, they slipped away. An attempt was made to stop them but was not successful.
4. It was ASI Madan Lal who recorded the statement of complainant Gian Singh pertaining to the above said facts. He made his endorsement and sent the same for registration of the case. ASI Madan Lal had prepared the inquest report. The dead body of Manjit Kaur was sent for post-mortem. Dr. Vinay Kumar conducted the post-mortem on the person of the deceased. The viscera and the blood was sent for chemical examination. On basis of the report of the Chemical Examiner, Dr. Vinay Kumar gave the cause of death to be poisoning. It is on these broad facts that report under Section 173 Cr. P.C. was filed against the appellants and mother of Raj Kumar with respect to the offence punishable under Section 304-B read with Section 34 of the Indian Penal Code.
5. The learned Trial Court framed charges against the appellants and Gurbans Kaur for the offences punishable under Section 304-B read with Section 34 IPC. They pleaded not guilty.
6. The defence of the appellants was that they have falsely been implicated. It was denied that Manjit Kaur was maltreated or that there was any demand of a house to be constructed by complainant Gian Singh. It was even denied that they had taken Manjit Kaur with them on 15.8.1991. As per the appellants they had gone to Nirmal Ashram on 16.8.1991. At the time Manjit Kaur was alive but died after few hours. Raj Kumar further stated that Manjit Kaur was taken ill and was admitted in the hospital. Her father Gian Singh, the complainant, removed his daughter from the hospital against the medical advice. She probably consumed poison out of frustration.
7. In defence the appellants examined Narinder Singh Taxi driver. The witness stated that he had never taken Manjit Kaur with the appellants on 16.8.1991 and that Manjit Kaur had expired on 16.8.1991 at Hoshiarpur. Darshan Lal DW-2 is the Municipal Commissioner of the locality. He stated that the appellants had never maltreated the deceased. Krishan Kumar Sharma, Medical Officer appeared as DW-3 to depose that Manjit Kaur was admitted in his hospital on 7.8.1991. She was removed by her father on9.8.1991. Lastly, Makhan Singh Laboratory Assistant (DW-4) stated that appellant Raj Kumar wanted to give his blood to his wife and even had got his blood tested.
8. The learned Trial Court believed the prosecution and held that it is established that there was a demand that complainant should construct the house and on that count Manjit Kaur was being harassed. As a result of the persistent harassment, poison had been consumed. The appellants were held guilty of the offence punishable under Section 304-B of the Indian Penal Code but the mother of Raj Kumar appellant was acquitted. These facts resulted in filing of the present appeal by the appellants and the revision petition by the complainant.
9. There is no dispute raised that the cause of death was poisoning. The sole controversy was and has been as to if it was a case of dowry death contemplated under the Indian Penal Code. Section 304-B of the Indian Penal Code was inserted and a new offence added in the Penal Code with the Amended Act No. 43 of 1986 with effect from 19.11.1986. It reads :
“304-B. Dowry death.-(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 (28 of 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.”
Even the Indian Evidence Act, 1872 was amended and Section 113-B was added raising a presumption as to dowry death. Once it is shown that soon before her death such woman had been subjected to cruelty or harassment in connection with the demand of dowry, the Court shall presume that such person has caused the dowry death. Section 113-B of the Indian Evidence Act reads :
“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 purpose of this section, “dowry death” shall have the same meaning as in Section 304-B of Indian Penal Code (45 of 1860).”
Reading of both the provisions together would show that the death must be caused by any bodily injury or other than under normal circumstances within seven years of the marriage. It has also to be established that soon before her death, she was subjected to cruelty or harassment. The said cruelty or harassment has to be in connection with demand of dowry. Despite the said presumption contemplated under the Indian Evidence Act, the prosecution has to prove its case and stand on its own legs. In this connection the Court’s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged. It has to be borne in mind that there is absolutely no standard of proof in a criminal trial. The question if charges are proved depends on the facts and circumstances and quality of evidence. Lord Denning in Bater v. Bater, 1950 (2) All England Reports 458, observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable man.
10. With this backdrop conveniently the evidence on the record pertaining to the necessary ingredients can be referred. Gian Singh PW-3 is the father of the deceased. He deposed and testified in Court that at the time of the marriage, he had given sufficient dowry according to his capacity to his daughter. When his daughter was visiting him,she had been telling about the maltreatment by the appellants on the ground that less dowry had been given to her at the time of marriage. Raj Kumar appellant even had been protesting that a promise had been made by Gian Singh to build a house for him and even had threatened that he would maltreat her even in future also. He had been consoling his daughter and told her that he will visit the appellants. He had even told her to live with her husband. On 13.7.1991 the wife of Gian Singh and his son had gone to meet the deceased in village Hariana. Kamaljit Singh son of the witness informed that Raj Kumar was beating Manjit Kaur deceased. Thereafter Gian Singh had visited the said village and met appellant Raj Kumar. Raj Kumar informed him that Gian Singh, the witness had not kept his promise and has not built the house. He had threatened to maltreat and continued to do so. He was turned out of the house at the instance of appellant Ram Parkash. He continued to depose that he brought his daughter with him. She was blessed with a child on2.8.1991. An Akhand Path was arranged on 14.8.1991 at Nirmal Ashram. On 15.8.1991 appellant Raj Kumar and his mother came and told them that they had to offer some ‘Degs’ at the Mazar of some Pir and that they would bring Manjit Kaur on the next day. On the next day at about 7.00 a.m. appellant Raj Kumar, his mother and one more person came in a car. They placed the dead body outside the gate and went away. The body in fact was thrown out of the car. During cross-examination he stated that he had told the police that accused had started maltreating his daughter for bringing insufficient dowry in the first year of the marriage itself. He was confronted with his earlier recorded statement where this fact was not recorded. He was further confronted with his earlier recorded statement that his daughter had been telling him that she was being taunted for bringing insufficient dowry. His further statement during cross-examination reads :
“I had not taken Manjit Kaur from her in-laws house on 7.7.1991. It is correct that on 22.7.1991, Ram Parkash accused and one Thakar Dass came to our village Bhaguwal to see Manjit Kaur. It is incorrect that accused Raj Kumar and his mother had brought customary gift after the birth of a child to Manjit Kaur but they had merely visited the child. It is correct that on 8.8.1991 Raj Kumar, Ram Prakash and their relation had visited Civil Hospital, Hoshiarpur where Manjit Kaur was admitted as a patient. It is correct that at that time Manjit Kaur was admitted in General Ward and the accused had shifted her to Special Ward in the hospital. It is correct that I had moved my daughter out of the hospital on 9.8.1991 as my daughter had told me that she was all right. It is correct that I had given in writing that I was moving out my daughter from the hospital of my own accord. It is incorrect that I had moved out of my daughter against the medical advice. It is incorrect that the accused had also pressed me not to move Manjit Kaur out of the hospital as she was not well, but I had quarrelled with the accused and sent them away of their misbehaviour.”
11. Kamaljit Singh PW-4 was the other witness examined. He is the brother of the deceased and made an identical statement about his sister being harassed for bringing insufficient dowry and the incident of 13.7.1991 when he had gone to meet his sister. She was being assaulted. The appellant (Raj Kumar) was stating that the father of the deceased had not built a house. His statement was identical with respect to appellant taking the deceased on 15.8.1991 and leaving the dead body on 16.8.1991.
12. The first and foremost question as is obvious from the nature of the evidence that has to be determined is as to if after the marriage there was any demand of dowry or harassment of the deceased on that count. In the complaining statement Ex. PG, there is no mention of such a harassment. The father of the deceased was specifically confronted in this regard when he appeared as a witness. His statement in Court was a positive improvement on the first information report that had been given. It appears that it is an after-thought. This conclusion gets fortification from the fact that there was no earlier complaint ever made. There is no history of any earlier dispute. Darshan Lal DW-2 who is the Municipal Commissioner of the town also states that there is no dispute between deceased and Raj Kumar. His evidence has also to be considered like any other testimony. Co-related with the above facts and lending support to the defence that no love was lost between Raj Kumar and the deceased is the other evidence on the record. It is in evidence that when deceased was in the house of her parents, Raj Kumar appellantvisited her. When she was unwell, he even was ready to donate his blood for her well-being. This is a pointer that he wanted the deceased to live. The evidence of the initial demand so set up is shaky and untrustworthy.
13. A specific incident has been mentioned when Raj Kumar had assaulted the deceased on 13.7.1991 in presence of wife of Gian Singh and Kamaljit Singh PW-4. It is alleged by the prosecution that he was assaulting her because her father Gian Singh had not built a house for them. This isolated incident is not at all convincing so as to show that there has been such a demand from appellant Raj Kumar. The mother of the deceased who is an eye witness had not appeared. Pertaining to the said incident, the brother of the deceased makes a statement as PW-4 and that he had informed his father Gian Singh. Gian Singh recites that he had visited the house of the appellants but the threat was reiterated by Raj Kumar. The improbability of the said version is writ large which makes it unbelievable. It has already been noted above that there was no such earlier demand or physical assault on the deceased for bringing insufficient dowry or a house to be built by Gian Singh. There was no occasion for Raj Kumar to assault the deceased. For more than one year of the marriage such a demand was not shown to have been made. The said plea has simply been offered to attract the rigours of Section 304-B of the Indian Penal Code.
14. It has further been contended that the deceased was taken a day before her death by the appellants and her dead body was thrown outside Nirmal Ashram where Akhand Path was being performed. The said dead body is alleged to have been brought in the taxi of Narinder Singh DW-1. Narinder Singh was not produced by the prosecution but he appeared as a defence witness. He denies this fact. Not only Narinder Singh disproves the said fact, the prosecution felt shy of examining the saint of Nirmal Ashram. It is in his presence that the said incident is alleged to have taken place. Withholding of a better witness leads the Court to draw the inference that had he been produced as a witness, he may well have not supported the prosecution version. Otherwise also a few days earlier, the deceased had given birth to a child. The child is with the family of Gian Singh. If appellants had thrown the body of the deceased from the taxi, it is not clear as to how the child came back to the family of Gian Singh. The reality has certainly been suppressed by the prosecution. The said evidence of the prosecution, therefore, does not inspire confidence.
15. Certain other silent facts makes the version improbable. It is in evidence that after the child birth, the deceased was not feeling well. She was admitted in a hospital. Despite her bad health, her father removed her from the hospital on 9.8.1991. He had given in writing in the hospital that he was taking his daughter from the hospital at his own accord. Thereafter she was taken to Manju Hospital for treatment. One would not be surprised that the deceased could be of a sensitive nature and because of her bad health, rather than persistent demand of dowry put an end of her life. In any case it is not established that it was as a result of persistent demand of dowry by the appellants. The prosecution, therefore, cannot be held to have proved its case beyond’ all reasonable doubt. The appellants are entitled to the benefit of doubt.
16. As a result of the reasons given above, the appeal is accepted. The judgment and the order of sentence passed by the learned Trial Court are set aside. The appellants are acquitted giving them the benefit of doubt. As a corollary from above, the criminal revision fails and is dismissed. Appeal allowed.