Judgment:
Sunil Kumar Garg, J.
1. This appeal has been filed by the State of Rajasthan against the judgment and order of acquittal dated 23rd December, 1993 passed by the learned Sessions Judge, Jalore in Sessions Case No. 11/ 91, by which he acquitted all the accused-respondents of the charges for the offence under Sections 304-B, 498-A and 306, IPC.
2. The facts giving rise to this appeal, in short, are as follows :--
On 15-7-1989 at about 8.45 a.m., one Bhikha Ram lodged a report Ex. P/6 before the Police Station, Ahore, District Jalore stating inter alia that on 14-7-1989 in the noon Smt. Shanti wife of Tara Ram (hereinafter referred to as the deceased) went from her house to make nature's call, but she did not return back to her house up to 3.00 p.m. and, thereafter, she was being searched here and there, but she was not found. Thereafter, his father and uncle Kanaji also went to her parents' place Bhuti, but they also told them that she did not come to their house. It was further stated in the report that thereafter, a well, which was situated near the border of village Rohla, was seen and they found a dabla outside the well and inside the well, the dead body of the deceased was found floating. Thus, she had committed suicide by jumping into the well and on this point there was no dispute and her age was near about 25 years and she was married four years back and he could not say for what reasons she committed suicide.
On this report, police registered the murg FIR No. 19/89 under Section 174, Cr. P.C. and started investigation.
PW-6 Vimal Kumar Jain, S.D.O., Jalore also made enquiry in respect of the suspicious death of the deceased and after recording various statements, he submitted report Ex.P/3 to S.P., Jalore and he came to the conclusion that deceased committed suicide, but he found the case against the accused-respondents for the offence under Sections 306 and 498-A, IPC.
On the report Ex. P/3, which was submitted by PW-6 Vimal Kumar Jain, SDO to S.P., Jalore, police registered the case on.26-4-1990 against the accused-respondents for the offence under Sections 306 and 489-A, IPC.
During the proceedings of murg FIR, postmortem of the dead body of the deceased was got conducted and the post-mortem report is Ex.P/14, which was admitted by the learned Counsel for the accused-respondents during trial and according to that post-mortem report, the cause of death of the deceased was asphyxia due to drowning.
After usual investigation, police submitted challan for the offence under Sections 306, 498-A and 304-B, IPC against the accused-respondents in the Court of Magistrate, from where the case was committed to the Court of Session.
On 14-8-1991, the learned Sessions Judge, Jalore framed charges for the offence under Sections 304-B, 498-A and 306, IPC against the accused-respondents. The charges were read over and explained to the accused-respondents. They denied the charges and claimed trial.
During the course of trial, the prosecution in support of its case examined eight witnesses and got exhibited some documents. Thereafter, statements of the accused-respondents under Section 313, Cr. P.C. were recorded. In defence, two witnesses were produced by the accused-respondents.
After conclusion of trial, the learned Sessions Judge, Jalore, through his judgment and order of acquittal dated 23-12-1993 acquitted all the accused respondents of all charges framed against them holding inter alia :--
1. That death of the deceased took place within seven years of her marriage with her husband Tara Ram. (Her husband is not accused in the present case).
2. That death of the deceased was unnatural one and she committed suicide.
3. That prosecution has failed to prove that deceased had been subjected to cruelty or harassment by the accused respondents.
4. That no case of dowry demand is made out against the accused respondents.
That no case of abetment which resulted in commission of suicide by the deceased, is made out against the accused respondents.
Aggrieved from the said judgment and order of acquittal dated 23-12-1993 passed by the learned Sessions Judge, Jalore, the State of Rajasthan has preferred this appeal.
3. In this appeal, the following submissions have been raised by the learned Public Prosecutor for the State :--
1. That from the statements of PW-3 Maggi, PW-4 Wagaram, PW-7 Galbaji and PW-8 Pani, the case of dowry demand stands proved and the learned Sessions Judge has failed to appreciate the evidence of these prosecution witnesses in correct and right perspective.
2. That presumption either under Section 113-A or 113-B of the Indian Evidence Act should have been drawn against the accused respondents and by not drawing presumption, the learned Sessions Judge has committed illegality.
Hence, it was prayed that this appeal be allowed and the impugned judgment and order of acquittal passed by the learned Sessions Judge, Jalore be set aside and the accused respondents be convicted and sentenced for the offence under Sections 304-B, 498-A and 306, IPC.
4. On the other hand, the learned Counsel appearing for the accused respondents supported the impugned judgment and order of acquittal passed by the learned Sessions Judge, Jalore.
5. I have heard the learned Public Prosecutor and the learned Counsel for the accused respondents and perused the record of the case.
6. The post-mortem report of the deceased is Ex. P/14 and according to that post-mortem report, the cause of death of the deceased was asphyxia due to drowning. There is also no dispute that deceased committed suicide.
7. The Hon'ble Supreme Court in Shanti v. State of Haryana AIR 1991 SC 1226 : 1991 Cri LJ 1713 has clearly held that for applicability of Section 304-B, IPC, the question whether unnatural death was homicidal or suicidal is irrelevant.
8. Thus, in the present case, two aspects, which are essential for proving the offence under Section 304-B, IPC, namely, (i) death of the deceased occurred within seven years of her marriage; and (ii) death of the deceased was otherwise than under normal circumstances, are well proved and the findings of the learned Sessions Judge, Jalore on this count are liable to be confirmed.
9. In Shanti v. State of Haryana (1991 Cri LJ 1713) (supra), the Hon'ble Supreme Court had an occasion to explain the ingredients of Section 304-B, IPC. His Lordship K. Jayachandra Reddy (as he then was) said 'A careful analysis of Section 304-B, IPC shows that this section has the following essentials :--
1. The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances.
2. Such death should have occurred within seven years of her marriage.
3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
4. Such cruelty or harassment should be for or in connection with demand for dowry.
10. So far as the point Nos. 1 and 2 are concerned, they stand well proved, as discussed above.
11. Now, points No. 3 and 4 are to be discussed and for that oral evidence has to be seen.
12. Before discussing the point Nos. 3 and 4, it may be stated here that the prosecution must prove with some positive evidence that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment.
13. In the cases of dowry death and suicide, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence, that could be direct or indirect. In this respect, conduct of the husband and other relatives also plays a very vital role in coming to the conclusion of the guilt.
14. In the present case, the striking feature is that no report was lodged by the parents of the deceased, though they appeared as witnesses before PW-6 Vimal Kumar Jain, SDO, Jalore when he was enquiring the suspicious death of the deceased. The report Ex. P/6 was lodged by one Bhika Ram, who is one of the relatives of the accused respondents. Since no report was lodged by the parents of the deceased, the case was registered by the police on the basis of the report submitted by PW-6 Vimal Kumar Jain, SDO, Jalore to S.P., Jalore. However, the earlier version which could have been placed before the police by the parents of the deceased, namely, PW-7 Galbaji and PW- 8 Pani, is missing in this case.
15. PW-1 Rajkumar is independent witness. He has been declared hostile.
16. PW-2 Thana is one of the relatives of the deceased. He has stated that when deceased used to come to her parents house, she used to tell that she did not have any complaint against her husband, but present accused appellants used to torture her. The relationship of the present accused appellants with the deceased is as follows :--
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Name of accused appellants Relationship with deceased
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1. Kesa Father-in-law
2. Dalla Elder father-in-law
3. Smt. Hudli Mother-in-law
4. Smt. Sakku Sister-in-law
He has further stated that deceased used to tell that rest of the family members used to eat chapati of wheat, while she was given bread of barley. In cross-examination, he has admitted the following facts :--
1. That PW-7 Galba, who is father of the deceased, is his relative.
2. That his statement was recorded by the police after 6-7 months.
3. That in his caste, women used to perform the duties of labourers.
4. That what was told by deceased to him, he has narrated to PW-6 Vimal Kumar Jain, SDO, but in his statement Ex. D/1, all such things are missing.
17. Since the statement of PW-2 Thana is based on the version given by the deceased to him and the same version is not found in the statement D/1, which was given by him before PW-6 Vimal Kumar Jain, while PW-6 Vimal Kumar Jain, SDO was conducting enquiry, therefore, in my opinion, this is a major contradiction and the oral evidence given by this witness in Court suffers from material contradictions and thus, his oral statement was rightly not believed by the learned Sessions Judge.
18. PW-3 Maggi is another witness, who is also relative of the deceased. She has stated that before one or two days of her death, PW-4 Waga came and told her that deceased was being beaten by the accused respondents and she was saved by PW-4 Waga. In cross-examination, she has stated that whatever told by PW-4 Waga to her, she did not tell to her husband. She has further stated that in their caste, women do the labour work. She has further stated that when PW-4 Waga rescued deceased from the clutches of the accused respondents, PW-1 Rajkumar was also there. As already stated above, PW-1 Rajkumar has been declared hostile.
19. PW-4 Wagaram states that accused respondents used to torture deceased. He further states that he told the whole thing to PW-3 Maggi. In cross-examination, he admits the following facts :--
1. That the incident, which was seen by him i.e. beating of deceased by accused respondents, was not told by him to anybody except PW-3 Maggi and PW-8 Pani.
2. That his statement was recorded by SDO, but the above version that he saw the incident of beating of deceased by accused respondents, is not found in the statement Ex. D/2, which was given by him before SDO, PW-6 Vimal Kumar Jain.
3. That PW-1 Rajkumar was also there and he helped in saving deceased.
4. That he did not make any report of this incident to anybody and his statement was recorded by police after ten months of the incident.
20. Thus, the statement of PW-3 Maggi, which is based on the statement of PW-4 Wagaram, is not reliable because the statement of PW-4 Wagaram himself is not worth reliable as the version about this incident has not been found in his statement Ex. D/2, which was given before PW-6 Vimal Kumar Jain, SDO. This is a major contradiction and furthermore, the statement of PW-4 Wagaram does not get corroboration from the statement of PW-1 Rajkumar, whose presence he states and thus, the version given by PW-3 Maggi and PW-4 Wagaram has been rightly rejected by the learned Sessions Judge.
21. Now, remains two witnesses, namely, PW-7 Galbaji and PW-8 Pana, who are father and mother of the deceased respectively.
22. PW-7 Galbaji, who used to live at Ahmedabad, states that whenever deceased used to come to his house, she used to tell that nothing was given in dowry and rest of the family members used to take bread of wheat, while she was given the bread of barley. He further states that he received information about the death of the deceased at Ahmedabad and, therefore, he came to village Rodla and found PW-6 Vimal Kumar Jain and S.H.O. and dead body of the deceased was given to him and thereafter, dead body of the deceased was cremated. In cross-examination, he admits the following facts :--
1. That he has not lodged any report about beating of the deceased by the accused respondents.
2. That police recorded his statement after 3-4 months of death of the deceased.
3'. That he has been contradicted with his police statement Ex. D/3 on the point that fact of giving of bread of barley to deceased by accused respondents is not mentioned in his statement Ex. D/3. This fact is also not mentioned in his statement Ex. D/4, which was recorded by PW-6 Vimal Kumar Jain, SDO.
23. The learned Sessions Judge, Jalore, after discussing all aspects of the case, has not found proved this fact and apart from this, he has also come to the conclusion that this is not such a fact from which conclusion of either abetment or torture can be inferred.
24. Similar is the statement of PW-8 Pani, who is mother of the deceased.
25. Thus, from the evidence available on record, no case of dowry demand or harassment or torture is proved and so far as the case of abetment is concerned, it also does not appear to be proved.
26. The intention to aid the commission of the crime, is the gist of the offence of abetment by aid. In case of demand of dowry or ill-treatment and beating, the case would be covered in first category i.e. instigating any person to do that thing.
27. In order to constitute abetment, the abettor must be shown to have 'intentionally' aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor, is not enough compliance with the requirements of Section 107, IPC.
28. On plain reading of Section 113-A of the Indian Evidence Act, it is obvious that if a wife is shown to have committed suicide within a period of seven years from the date of marriage and there is evidence that she was subjected to cruelty by her husband or his relative, it would be permissible for the Court to presume that such suicide was abetted by her husband or by such relative of her husband.
29. In the present case, looking to the evidence available on record, the learned Sessions Judge has rightly observed that no case of dowry demand or abetment is made and he has given cogent reasons in acquitting the accused respondents of the charges for the offence under Sections 304-B, 498-A and 306, IPC. The most important fact, which was discussed by the learned Sessions Judge, is that no report was lodged by the parents of the deceased, though they were present and this circumstance goes against the prosecution and rather shows that there was no dowry demand or torture by accused respondents and that is why they did not lodge any report. Had there been any case of dowry demand or torture by accused respondents, certainly PW-7 Galbaji, who is father of the deceased,/would have lodged the report with the police when he has admitted that when he came, SHO and PW-6 Vimal Kumar Jain, SDO were there and they recorded his statement. In these circumstances, this Court does not want to interfere with the impugned judgment and order of acquittal passed by the learned Sessions Judge, Jalore, as they are based on correct appreciation of evidence and especially keeping in mind the powers of the High Court while dealing with the appeal against acquittal.
30. It may be stated here that although in an appeal from an order of acquittal the powers of the High Court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet, as a rule of prudence, it should always give proper weight and consideration to such matters as (i) the views of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (iii) the right of the accused to the benefit of any doubt; and (iv) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. Where two reasonable conclusions can be drawn on the evidence on record the High Court should as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal.
31. From this point of view also; the order of acquittal passed by the learned Sessions Judge, Jalore, which is based on correct appreciation of evidence, does not call for interference by this Court and this appeal is liable to be dismissed.
Accordingly, the appeal filed by the State of Rajasthan is dismissed, after confirming the judgment and order of acquittal dated 23rd December, 1963 passed by the learned Sessions Judge Jalore.