Shiv Kumar Sharma, J.
1. Young bride Santosh was found murdered under abnormal circumstances in the morning of Holi Festival. Incidentally it was her first festival of the colours in her in-laws house. The appellants three in number, were placed on trial for having committed dowry death of Santosh before the learned Additional Sessions Judge No. 2. Alwar in Sessions Case No. 32/98. Learned Judge vide judgment dated December 8, 1998 convicted and sentenced each of them as under:-
Under Section 304B IPC to suffer Imprisonment for life and fine of Rs. 5.000/-, in default to further suffer six MonthsSimple Imprisonment.Under Section 498A IPC to suffer Three Years Rigorous Imprisonmentand fine of Rs. 1000/- in default to further sufferThree Months Simple Imprisonment.The sentences were ordered to run concurrently.
2. Santosh was married to appellant Amar Singh on May 5, 1992 and was found murdered only after 10 months of her marriage i.e. on March 8, 1993 in her Sasural i.e. the house of the appellants. A written report was lodged on March 8 itself by Ganga Sahay Saini with the Police Station Shivaji Park Alwar to the effect that his nephew's wife in the process of boiling the water got engulfed in flames and died. On the same day another written report was submitted by the father of deceased Babu Lal that her daughter Santosh was used to be harassed and humiliated in connection with demand of dowry. Around 11.00 AM Raju and Ganga Sahay came to him and informed that Santosh accidently received electric current and died. He then immediately rushed to the spot and found the body of Santosh in chased condition. Police Station Shivaji Park registered a case under Sections 304B and 498A IPC and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2 Alwar. Charges under Sections 147, 304B and 498A IPC were framed against the appellants who denied the charges and claimed trial. The prosecution examined as many as 16 witnesses in support of its case and got exhibited 31 documents. In their explanation under Section 313 Cr.P.C., the appellants claimed innocence and stated that at the time of incident they were away from their house No witness in defence was however examined. The learned Trial Judge on hearing final submissions convicted and sentenced the appellants Amar Singh, Jagdish and Gordhani as indicated herein above.
3. Medical Board was constituted to conduct the post mortem on the dead body of Santosh. As per post mortem report Ex.P-21 dead body was 100% burnt having the characteristics of post mortem burn. No external injuries could be detected due to burns. However fracture of larynx was present and trachea and larynx were found congested and contained fine forth. Probable cause of death was asphyxia. Viscera was preserved and sent for chemical examination. According to FSL report Ex.P-30 viscera gave negative tests for metallic poisons methyle and methyle alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides.
4. Dr. Mahendra Kumar Gupta (PW.9) who performed autopsy, in his deposition categorically stated that Santosh got burnt after her death therefore sign of burns could not be possibly resulted from suicide or accident. Dr. Mahendra Kumar Gupta denied this suggestion that asphyxia could be caused by burns but stated that asphyxia was caused by throattling.
5. Mr. A.K. Gupta, learned counsel for the appellants criticised the impugned judgment of conviction on various grounds. The first contention of learned counsel was that the room where the dead body was lying, was bolted from inside. In order to take the dead body out of the room, the door of the room was broken as was evident from the site plan Ex.P.3 that 'broken kunda' was lying near the door. Mr. Gupta read over the testimony of Bhagwan Sahay (PW.13) Rajendra (PW.14) and Kan Singh Rathore (PW.16) in support of his contention. Learned counsel next contended that there was no evidence on record to establish that Santosh was subjected to cruelty soon before her death, on the contrary Ganga Sahay (PW.8), Bhagwan Sahay (PW13) and Rajendra (PW14) deposed that relations of Santosh with the appellants were cordial. It was further urged that there was contradictory evidence with regard to demand of dowry and presumption under Section 113B of the Evidence Act could not be drawn. Two views in regard to death of Santosh were possible therefore the benefit of doubt be given to the appellants. Reliance was placed on Shyam Lal v. State of Haryana (1), Smt. Chandra Devi v. State of Rajasthan (2), K. Purena S. Rao v. State of A.P. (3), S. Gopal Reddy v. State of A.P. (4), State of U.P. v. Mahesh Chandra (5), State of Haryana v. Inder Singh (6), Gurditta Singh v. State (7), Lal Mandi v. State of W.B. (8), Harendra N. Singh v. State of Bihar (9), and Hardip Singh v. State (10).
6. To attract the provisions of Section 304B IPC one of the main ingredients of the offence which is required to be established is that 'soon before her death' the victim was subjected to cruelty and harassment' in connection with the demand of dowry'. In order to find out whether the said main ingredient has been established or not, a close look at the material on record appears necessary. From perusal of site plan (Ex.P.3) it is revealed that independent Kitchen existed in the house of the appellants and dead body of Santosh was not found in the Kitchen. There existed a big room adjacent to the kitchen which is shown as mark 'A' in the .site plan. Ex.P.4 is the recovery memo of articles allegedly found near the dead body in Room 'A'. A piece of electric wire was also found near the dead body. Ganga Sahay Saini submitted a written report (Ex.P. 18) at 1.15 p.m. on March 8, 1993 with the averments that Santosh the wife of his nephew Amar Singh was boiling water in her room around 11.30 a.m. On finding smoke coming out of the room when he was, he found her dead. Around 2.40 p.m. Babulal, the father of Santosh lodged another written report Ex.P.6 on March 8, 1993 with the Police Station Shivaji Park stating therein that after he marriage with Amar @ Pappu on May 5, 1992 Santosh was subjected to cruelty and harassment in connection with demand of dowry by Amar and his relatives. At about 11 a.m. on the said day Ganga Sahay and Raju came to him and informed that Santosh died as a result of electric current. He then rushed to the house of appellants and saw Santosh bodily burnt. It thus appears from both the written reports that Ganga Sahay and Babu Lal had seen the dead body of Santosh before lodging the reports at the Police Station.
7. Ramavtar (PW.1) in his deposition stated that when he reached to the house of the appellants he saw the dead body of Santosh lying in the room and the doors of the room were opened and crowd was there. Police arrived there after 15-20 minutes. Thereafter Magistrate also reached. Babulal (PW.2) deposed that the appellant used to demand dowry from Santosh. He further stated that appellant Gordhani was alone in the house and she took him to the room where Santosh was lying dead. He denied this fact that before he reached the house of the appellants, the door of the room got broken. Smt. Chhoti (PW.4) brother of Santosh stated that as and when Santosh visited his house she used to say that she was subjected to cruelty and harassment in connection with demand of dowry. Ganga Sahay (PW.8) deposed that when he came back after playing Holi around quarter of ten A.M. he found Santosh burnt. He did not inform about this incident to anybody. This witness was declared hostile. He however admitted to have lodged the report and stated that he could neither see boiling water nor did see Santosh falling on the water, he could only see her dead after receiving burns. Dev Karan (PW.12) who conducted investigation deposed in his cross examination that he did not recollect as to whether the room where the dead body was lying got broken or not. As all necessary proceedings got drawn by ADM, he did not initiate any proceeding or drew site plan. He further deposed that the witnesses told him that Santosh was subjected to cruelty in connection with demand of dowry of scooter by her in- laws. Bhagwan Sahay (PW.13) deposed that he is next door neighbours of appellant Amar Singh. After playing Holi when he was sitting on the well, he saw smoke spreading out of the room of Amar Singh. He then immediately entered the house of Amar Singh, broke open the door and found Santosh lying on the floor. At that time no family member of Santosh was in the house. Rajendra (PW.14) stated that Ganga Sahay informed him that Santosh received electric current. He along with Ganga Sahay had then gone to the house of Babulal and informed him accordingly. Kan Singh Rathore (PW.16) the Additional District Magistrate deposed that he initiated proceedings under Section 174 Cr.P.C. and drew necessary memos. In his cross examination he stated that when he reached at the spot, Babulal and SHO were already there. He also stated that there were fresh signs of broken door near the room in question.
8. Fact situation emerges from the material on record maybe summarised thus-
(i) Death of Santosh was homicidal. After strangulating her, the culprit poured kerosene on her dead body and got it burnt.
(ii) Santosh got married to appellant Amar Singh on May 5, 1992 and died on March 8, 1993.
(iii) Before police and Magistrate arrived Babulal, the father of Santosh reached at the spot and saw the dead body of Santosh lying in badly burnt condition.
(iv) Independent Kitchen existed adjacent to the room where dead body was lying.
(v) Informant Ganga Sahay saw the dead body before lodging the written report.
(vi) Dev Karan the Investigating Officer did not independently conduct the investigation and mainly relied on the proceedings initiated by Kan Singh Rathore ADM (PW.16).
(vii) Bhagwan Sahay (PW.13) a next door neighbour deposed that when he saw smoke coming out of the house of Amar Singh he entered the house and got broken the room where he saw Santosh lying. There was no family member in the house and he did not inform about the incident to anybody.
(viii) Father, mother and brother of deceased Santosh stated that she was subjected to cruelty in connection with demand of dowry and Dev Karan, the I.O. also stated that the witnesses told him that Santosh was subjected to cruelty in connection with demand of scooter.
(ix) Santosh died within seven years of her marriage.
9. The arguments advanced by Mr. A.K. Gupta, learned counsel on the above material appeared at the first blush, formidable but on a closer scrutiny the said contentions turned out to be very feeble. Undeniable it was first Holi of young bride Santosh in her in laws house. Strangely instead of celebrating the first festival of colours the appellants left young bride Santosh alone in the house. Appellant Amar Singh, the husband of Santosh, alone knew what happened to Santosh until she was with him. it is no doubt true that Kan Singh Rathore (PW.16) found 'broken kunda' lying near the door and Bhagwan Sahay (PW.13) deposed that he got the door broken but in view of two written reports Ex.P-18 and Ex.P-6 we find that Ganga Sahay and Babu Lal had seen the dead body much before the police and Magistrate arrived at the scene. At that time Bhagwan Sahay was also not seen near the vicinity of the dead body. Although Bhagwan Sahay was not declared hostile by the prosecution but we find ourselves unable to place any reliance on his testimony. It is inexplicable that when no family member of Santosh was in the house how Bhagwan Sahay could enter into it? Why Bhagwan Sahay did not inform about the incident to any body? Why did he not lodge the report at the Police Station? Where was he, when the police and Magistrate arrived
10. Was it not the duty of Investigating Officer to conduct the investigation independently? Why did he act on the memos drawn by the Additional District Magistrate? When the post mortem report revealed that death of Santosh was homicidal, then why did attempt was not made to investigate the matter as to who poured Kerosene after committing murder of Santosh. Was it possible for Santosh to get herself strangulated by her hands then poured kerosene on her dead body and got herself burnt. A dead body could not possibly bolt the door from inside. We see no reason to disbelieve the testimony of Babu Lal (PW.2) and Mangtu Ram Saini (PW.5). Testimony of Ganga Sahai (PW.8), Bhagwan Sahai (PW.13) and Rajendra (PW.14) does not discard the testimony of Babu Lal and Mangtu Ram Saini. Neighbours of a bride who hardly spent time in her in-laws house, could not possibly adjudge her mental stage. If she was seen unintrupted in the company of her in-laws by the neighbours, it does not show that she was not subjected to any cruelty in connection with demand of dowry.
11. The object of enacting Section 304B by the Amending Act was to combat the menace of dowry-deaths. In order to curb the evil of bride burning the Parliament enacted that where the death of woman is caused by any burns or bodily injury or 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 relative for or in connection with demand of dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death. It may be noticed that the Legislature has used the expression 'deemed to' with a view to create legal fiction. Its effect is that a position which otherwise could not obtain is deemed to obtain under the given circumstances. By Section ...... of the Evidence Act the Court has to raise a presumption of dowry death if the same has taken place within seven years of marriage and there is evidence of the woman having been subjected to cruelty and/or harassment. Since such crimes are generally committed in the privacy of residential houses and in secrecy, independent and direct evidence is not easy to get where a wife dies in the house of husband within the short span of seven years of her marriage, it is considerable difficulty to assess the precise circumstances in which the incident occurred because ordinarily independent witnesses are not available as the torture and harassment is confirmed in the four walls of the house.
12. The case on hand rests on circumstantial evidence and it is well settled that while appreciating circumstantial evidence the Court must be cautious and should record conviction only when all the links in the chain are completely pointing to the guilt of the accused. But it would not be correct to say that prosecution must meet each and every hypothesis put forward by the accused. Their Lordships of the Supreme Court in State of West Bengal v. Mir Mohammad Umar (11), indicated that 'the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should be taken as a fossilised doctrine as through it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be major beneficiaries and the society would be the casualty.'
13. Section 106 of the Evidence Act provides that when any fact is specially within the knowledge of any person, the burden of proving the fact is upon him, Section 106 was taken into consideration by the Apex Court in Shambhu Nath Mehra v. State of Ajmer (12), and it was held as under:-
'This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish fact which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that it means facts that are pre-eminently or exceptionally within his knowledge.'
The legal principle that may be deduced, is that Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But this section would apply to cases where the prosecution has succeeded in proving facts from which reasonable inference can be drawn regarding the existence of certain other facts, unless the accused failed to offer any explanation which might drive the court to draw a different inference. Section 114 of the Evidence Act empowers the Court to presume the existence of any fact which it thinks likely to have happened. Having regard to the common courses of natural events and human conduct in relation to the facts of the instant case we find that appellant Amar Singh, the husband of deceased bride Santosh, was required to explain following questions:-
(i) Why the independent Kitchen was not utilized by Santosh for the purpose of boiling water?
(ii) Till what time on the fateful day Amar Singh was with Santosh?
(iii) Why first festival of colours of young bride Santosh in her in-laws house was not celebrated? Instead of celebrating 'Holi' with her, why Amar Singh left her alone in the house?
(iv) Why written report was lodged by a distant relative Ganga Sahay? What was Amar Singh doing after knowing this fact that his wife Santosh was burnt badly? why did he himself not go to the Police Station?
(v) With whom Amar Singh was at the time of incident and at what time did he reach his house?
In the explanation under Section 313 Cr.P.C. Amar Singh stated that he would also submit his written explanation but he did not choose to file any written explanation. The conduct of appellant Amar Singh has been abnormal throughout. We find ourselves unable to agree with the contentions raised by learned counsel for the appellant Amar Singh. There is ample evidence on record to raise presumption against him under Sections 113B and 114 of Evidence Act. The case law cited by the learned counsel is not applicable to the facts of the instant case.
14. The prosecution is in our opinion able to establish beyond reasonable doubt that Santosh was murdered within seven years of her marriage and soon before her death she was subjected to cruelty in connection with the demand of dowry by the appellant Amar Singh, As regard the charges against appellants Jagdish and Gordhani are concerned we find that they have been implicated as being the members of Amar Singh's family and charges against them are not established beyond reasonable doubt. Their case is distinguishable with that of the case of Amar Singh, They have been convicted merely because of their relation with Amar Singh. In Vithal Tukaram More v. Stale of Maharashtra (13), the Apex Court propounded that in a sound criminal justice system, the offences against women should not escape unpunished but it is equally desirable in social interest that other members of the family are not made to suffer punishment merely because of their relation with the accused. It is the duty of the Courts to see that the penal provisions intended to curb such crimes by bringing the offenders to book do not cause injustice to innocent people.
15. As a result of the above discussion we dispose of the instant appeal in the following terms:-
(1) Appeal of appellants Jagdish and Smt. Gordhani stands allowed and they are acquitted of the charges under Sections 304B and 498A IPC. They are on bail, they need not surrender and their bail bonds stand cancelled.
(ii) Appeal of appellant Amar Singh stands dismissed and his conviction under Sections 304B and 498A IPC stands confirmed.
(iii) The impugned judgment of the learned trial Judge stands modified as indicated above.