Judgement - Section 304B - Dowry Death

Court: Allahabad High Court

Bench: JUSTICE Dharnidhar Jha & Pankaj Naqvi

Madan Pal Sharma Vs. State Of U.P. & Ors. On 16 July 2013

Law Point:
Indian Penal Code, 1860 — Section 304B — Evidence Act, 1872 — Section 113B — Dowry death — Presumption — Acquittal of accused — Non-establishment of ingredients of offence — Facts alleged by prosecution not established — Demand of dowry not established — False story that deceased was expelled from matrimonial house on account of not bringing desired dowry falsified by fact that she remained in her matrimonial house peacefully for three continuous years — Merely because defence did not offer any explanation as to how deceased has incurred burn injuries, was of no consequence — Appeal against acquittal meritless.

JUDGEMENT

1. We heard Mr. Veer Singh, learned Counsel the appellant on admission of appellant under Section 372, I.P.C. The appeal directed against judgment of acquittal dated 23.2.2013 passed by the learned Additional Sessions Judge, Court No. 2, Muzaffarnagar in Sessions Trial No. 172 of 2006.

2. Some of the admitted facts were that the deceased Ravita was married to respondent Amit Kumar as per Hindu rites and rituals on 7th March, 2002 and that she was residing in her matrimonial house on 13.5.2005. It is also not disputed that she was burnt and the burn injuries were to the extent of 95% and she died of those injuries.

3. What was alleged and what was disputed was that just after the marriage, not being satisfied with the quantum of dowry given by the father of the deceased, the in-laws of the deceased placed addi­tional demand of Rs. 25,000 in cash and a scooter. It was stated that the lady had been beaten up and expelled from the matrimonial house one year prior to the occurrence and was told to be allowed to return only when she had brought the de­manded cash and the scooter. The inform­ant stated that there was some patch up between the parties and Rs. 10,000 in cash was given to the accused which facilitated the lady to return to her matrimo­nial house but the lady continued to be assaulted and beaten up daily and lastly, on 13.5.2005 at about 11:00 a.m. he learnt from some unknown persons that the lady had been burnt by her in-laws and husband.

4. The informant, examined as P.W. 1, claimed having rushed to the house of the accused and found that she had been admitted into the hospital. When he wanted to meet the deceased the doctors forbade him to do so.

5. During the course of the trial P.W.1, father of the deceased admitted that at the time of the marriage there had not been any demand of dowry and the marriage was dowryless. The father of the groom was unhappy on the poor hospitality extended to the baratis but that particular evidence does not indicate that there was any fur­ther annoyance and acrimony between the parties and the prosecution case that the deceased had been turned out after one year of the marriage from her matrimonial house appears hypothetical and as of no consequence as the prosecution evidence itself indicated that the lady remained at her matrimonial house continuously for three years and there was no complaint of any ill-treatment and torture.

6. Learned Counsel appearing for the appellant was critical of the judgment by submitting that once the death was under circumstances not natural and within seven years of marriage the defence had to dis­charge its burden under Section 113B by showing as to how the deceased happened to have those burn injuries.

7. We on scrutiny of the arguments wish to note that even in a case of statu­tory burden created on defence as may be in cases of Section 304B, I.P.C. or cases of misappropriation or embezzlement of properties where the burden is caused on the accused to indicate the discharge of entrustment of the property, the primal onus is on the prosecution of establishing the constitution of the offence which was allegedly committed by the accused by admissible and acceptable evidence this onus never shifts. Once the prosecution has discharged its primary onus of establishing the offence which was allegedly commit­ted by the accused, then only there would be some burden on the accused which could be required to be discharged. But, again there is difference between the dis­charge of the onus by the prosecution and showing the probabilities of the defence version by referring to the facts admitted by the witnesses or those brought on record by the cross-examination the prosecution witnesses. Yet another principle of crimi­nal jurisprudence which is applicable to all cases is that if there are four ingredients creating the offence and the prosecution had established all the four ingredients by acceptable evidence and the defence has set up any plea which is constituted by yet another five sets of facts which the defence attempted to establish by leading evidence, the Court has to adopt an approach that if the defence has failed in establishing the four ingredients of its defence case com­pletely and fully but if it had probabilised the truth of the fifth factual ingredient, then a doubt is created by such probability of one fact of the defence version whereby the foundation of the prosecution case is shaken and the accused gets acquitted. We want to refer in the above context some of the cases of Supreme Court rendered in K.M. Nanawati v. State of Maharashtra, reported in AIR 1962 SC 605 and Rabindra Kumar Dey v. State of Orissa, reported in AIR 1977 SC 170.

8. We have already noted that some of the facts which have been alleged by the prosecution were not established. There was no demand of dowry initially at the time of marriage and the Court below has rightly noted that there was no evidence to establish that there was any further demand while the deceased was residing in her matrimonial house. The further story that she was expelled from her matrimonial house on account of not bringing the desired dowry was falsified by the fact that she had remained in her matrimonial house peacefully for three continuous years. Merely because the defence did not offer no explanation as to how the deceased has incurred the burn injuries, was of his consequence. The non – establishment of the ingredients of the offence itself had entitled the accused to an acquittal.

9. In view of our findings just noted, we find that the appeal against acquittal filed by the appellant is meritless and the same is dismissed.

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