G H GIRISH SINGH versus THE STATE OF UTTARAKHAND on 23 July 2019

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[2019] 9 S.C.R. 668

SUPREME COURT REPORTS

[2019] 9 S.C.R.

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GIRISH SINGH

v.

THE STATE OF UTTARAKHAND

(Criminal Appeal No. 1475 of 2009)

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JULY 23, 2019

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]

Penal Code, 1860: s.304B r/w s.34 – Dowry death –Appellants-accused were father and son – Victim deceased was wifeof accused no.1 – Case against the appellants was that the deceasedCwas treated with cruelty on account of dowry demand – The victim-deceased committed suicide by burning – Trial court held thatprosecution failed to prove case against both the appellants-accusedand ordered acquittal – Before High Court, appellants producedletters to show that there was no cruelty, however, High Court heldDthat actual letters written by the deceased showing cruelty couldnot be produced as they were misplaced due to shifting of the house– High Court accepted the deposition given by prosecution witnessesas reliable and trustworthy and convicted the appellants unders.304B r/w s.34 – On appeal, held: The evidence of the mother ofthe deceased did not reflect that deceased ever complained aboutEaccused having harassed or beaten on account of dowry – Also,there were serious contradictions in the evidence of the father ofthe deceased – The two letters alleged to have been written bydeceased were not produced by the prosecution on the plea thatthey were misplaced during shifting of the house – Even, if it isFaccepted that those letters were misplaced, the letters admittedlysent by the father of the deceased to his deceased daughter withinfew days of the receipt of the letters did not disclose anything aboutthe harassment or cruelty or dowry demand – Even, in the letterwritten by father of the deceased to his son, there was no mentionabout any harassment or cruelty on account of dowry demand –GHigh Court, however, still took the view that dowry relatedharassment was mentioned in the letters sent by the deceased whichwere not even produced – This approach, particularly, in an appealagainst acquittal was clearly unacceptable – Case under s.304B,thus, not made out – Conviction set aside.

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Penal Code, 1860: s.304B – Scope of trial under –Appellants-accused were father and son – Victim deceased was wifeof accused no.1 – Allegation that accused-father wanted to fulfilhis lust with his daughter-in-law and as she did not agree he usedto torture her and give her beating – The victim-deceased committedsuicide by burning – High Court convicted the appellants unders.304B r/w s.34, however found that offence under s.306 was notmade out – On appeal, held: The case of abetting suicide unders.306 r/w s.34 was found unacceptable both by the trial court andHigh Court and appellants were acquitted of said offence – A perusalof the impugned judgment showed that accepting the version of theprosecution witnesses, the High Court was persuaded to hold interalia that the second accused also harassed her by asking her toprovide liquor in the glass, and after taking liquor, in the state ofintoxication, he used to ask her to sleep with him and on her refusal,subjected her to mental cruelty – High Court was in clear error intaking into consideration the evidence relating to harassment bythe second accused on the basis that he, in the state of intoxication,asked her to sleep with him, and on that basis, she was subjected tomental cruelty – The said evidence is totally irrelevant and foreignto the scope of a trial for the offence under s.304B – It did notrelate, at all, to the demand for dowry – High Court overstepped itslimits in dealing with an appeal against acquittal – The view takenby the trial court was a possible one and did not merit interferenceby the Appellate Court – Evidence Act, 1872 – s.113B.

Appeal: Appeal against acquittal – Scope of interference –Discussed.

Conclusion

Appeal: Appeal against acquittal – Scope of interference –Discussed.

Criminal trial: Evidence – Chief examination and cross-examination of witnesses – Held: Truth in a criminal trial isdiscovered by not merely going through the cross-examination ofthe witnesses – There must be an analysis of the chief-examinationof the witnesses in conjunction with the cross-examination and there-examination, if any – The effect of what other witnesses havedeposed must also enter into consideration of the matter – Evidence.

Allowing the appeals, the Court

HELD: 1.1 Section 304B is applicable if within 7 years ofthe marriage, death of a woman (the wife) takes place. The death AB

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670SUPREME COURT REPORTS

Amust be caused by any burns or bodily injury or the death occursotherwise than under normal circumstances. It must beestablished that soon before her death, she was subjected tocruelty or harassment. The cruelty or harassment may be by herhusband or any relative of her husband. The cruelty orharassment must be for, or in connection with, any demand forBdowry. Section 304B treats this as a dowry death. Therefore, insuch circumstances, it further provides that husband or relativeshall be deemed to have caused her death. Section 113B ofEvidence Act, 1872 provides for presumption as to dowry death.It is no doubt a rebuttable presumption and it is open to theChusband and his relatives to show the absence of the elements ofSection 304B. [Paras 33, 34] [688-B-H]

1.2 The testimony of PW-1-sister of the deceased was tothe effect that the deceased was influenced by spirit (devta) andthe religious ceremony/prayers were held. The deceased becameDnormal after doing it. Still further, there was evidence thatwhatever madness the deceased used to do, it was taken care ofby her in-law’s house. PW4-father of the deceased completelycontradicted himself, when in cross-examination, he stated that5-6 days after marriage, when the first accused and the deceasedcame, he was on duty. PW2/wife of PW4, deposed that her husbandEwas working in Bombay. Earlier in cross-examination, PW4deposed that when he was going back after 5-6 days of marriage,the first accused came to take the deceased and then the firstaccused said that television and VCR was not given. PW4 furtherstated that on this, the first accused said that deceased was havingFflat nose. Thereafter, he stated that he went back to Bombay onhis duty. This aspect was not considered at all by the High Court.This contradiction in evidence goes to the root of the matter.This proved that the prosecution case sought to be provedthrough PW4, was unacceptable. PW2 (wife of PW4) stated that the deceased was an illiterate. She did not know how to read andGwrite. On the other hand, PW4 deposed that the deceased couldread and write letters. [Paras 36, 37, 38 and 39] [689-C, E-H;690-A]1.3 The two letters written by the deceased were notproduced by the prosecution. The reason for non-production wasH

that they were misplaced during shifting of the house. Even,accepting that those letters were misplaced, the question whetherthey contained allegation of harassment due to dowry, should havebeen resolved with reference to the letters admittedly sent byPW4 to the deceased within a few days of the receipt of the letters.Even, in the letter written by PW4 to his son, there is no mentionabout any harassment or cruelty on account of dowry demand.He only says to ask the deceased not to worry and not to sendher even if anybody comes to call her. The High Court, however,still took the view that dowry related harassment was mentionedin letters sent by the deceased which are not even produced.This approach, particularly, in an appeal against acquittal is clearlyunacceptable and cannot be approved. PW2-mother of thedeceased, gave her statement that deceased never complainedabout accused regarding harassment or beatings or fact of givingless dowry. [Paras 42, 43, 46] [690-E-H; 691-A-B, E]

2. In an appeal from acquittal, the High Court has exceededits jurisdiction in the appreciation of evidence as well as itsapproach to how the reliability of the witness is to be evaluated.A right of appeal is the creature of statute. Unless appellate poweris expressly limited by additional conditionalities, the AppellateCourt has power or rather is duty bound in the case of an appealby the accused to reappraise the evidence. Even in an appealagainst acquittal, the appellate court has power of reappraisal ofevidence though subject to the limitation that interference wouldbe in a case where the Trial Court’s verdict is against the weightof evidence which is the same thing as a perverse verdict. In thiscase, the High Court referred to the contents of the chiefexamination of the witnesses. Thereafter, it was stated that thewitnesses were cross-examined at length but nothing came outin evidence which created any doubt in his evidence. Thewitnesses were declared as being found reliable and believable.[Paras 47, 48 and 49] [691-F-H; 692-A-B]

3. Truth in a criminal trial is discovered by not merely goingthrough the cross-examination of the witnesses. There must bean analysis of the chief examination of the witnesses in conjunctionwith the cross examination and the re-examination, if any. The ABC

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Aeffect of what other witnesses have deposed must also enter intoconsideration of the matter. On the one hand, the laudable objectunderlying Section 304B of the IPC is not to be lost sight of. Onthe other hand, the Appellate Court must not be oblivious to thefact that it is duty bound to find whether an offence is committedor not and such a pursuit also would embrace the duty of theBcourt to apply its mind to the evidence as a whole and arrive atconclusions as to facts and inferences therefrom as well. Afterall, at stake for the accused are, priceless rights to liberty,reputation and the right to life, not only of himself but also hisfamily members. The Law Giver, has contemplated that the HighCCourt will be the final arbiter of facts and even of law. Thejurisdiction of the Apex Court was deliberately limited to the extraordinary powers it enjoys under Article 136 of the Constitutionof India unless it be exercised under other provisions. The causeof justice and the interest of litigants would be better subservedif the Appellate Court takes a closer look, in particular of theDcross-examination of the witnesses and analyse the same.[Para 50] [692-C-F]

4. It is true that the deceased died within seven years ofmarriage. Her death was due to burning and she committedsuicide. It is not a case where the accused stood charged underEany provision except Section 304B read with Section 34 of theIPC and Section 306 read with Section 34 of the IPC. The case ofabetting suicide under Section 306 read with Section 34 of theIPC was found unacceptable both by the Trial court and the HighCourt and the appellants stood acquitted. The High Court wasFin clear error in taking into consideration the evidence relatingto harassment by the second accused on the basis that he, in thestate of intoxication, asked her to sleep with him, and on thatbasis, she was subjected to mental cruelty. The said evidence istotally irrelevant and foreign to the scope of a trial for the offenceunder Section 304B of the IPC. It does not relate, at all, to theGdemand for dowry. [Paras 51-53] [692-G-H; 693-A, D]

Upendra Pradhan v. State of Orissa (2015) 11 SCC124 : [2015] 5 SCR 214 ; Dilawar Singh and others v.State of Haryana (2015) 1 SCC 737 : [2014] 7 SCR844 ; Gamini Bala Koteswara Rao and others v. StateH

of Andhra Pradesh Through Secretary AIR 2010 SC589 : [2009] 14 SCR 1 ; K. Prakashan v. P.K.Surenderan (2008) 1 SCC 258 : [2007] 10 SCR 1010– relied on.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1475 of 2009.

From the Judgment and Order dated 12.11.2008 of the High Courtof Uttarakhand at Nainital in Criminal Appeal No. 1254 of 2001 (OldNo. 1988 of 1993).

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Criminal Appeal No. 1476 of 2009.

Sanjay Jain, Sudarshan Singh Rawat, Advs. for the Appellant.

Jatinder Kumar Bhatia, Krishnan Mishra, Advs. for theRespondent.

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The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. The appellant in Criminal Appeal No. 1475 of 2009 is the firstaccused and the appellant in Criminal Appeal No. 1476 of 2009 is thesecond accused. They were charged under Sections 306 read withSection 34 and Section 304B read with Section 34 of the Indian PenalCode, 1860 (hereinafter referred to as ‘the IPC’ for short). The firstaccused is the son of the second accused.

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2. It Is the case of the prosecution in brief that the first accusedused to treat his wife with cruelty on account of dowry demand. Thesame allegation was made against his father-second accused. It is alsoalleged that his father wanted to fulfil his lust with his daughter-in-law.She did not agree. The accused tortured her and gave her beating. The H

Adaughter-in-law committed suicide by burning herself on 05.06.1991.After complying with the formalities, the charge-sheet was filed againstthe accused. Prosecution examined nine witnesses and produced 17documents. The Trial Court came to the conclusion that the prosecutionfailed to prove the case against both the accused. They were accordinglyacquitted. Reliance is in particular placed on certain letters.B

3. The appeal carried against their acquittal by the State wasallowed by the High Court by the impugned order. The appellants wereconvicted under Section 304B read with Section 34 of the IPC. It was,however, found that offence under Section 306 read with Section 34 ofthe IPC was not made out against the appellants. The appellants wereCsentenced to seven years rigorous imprisonment.4. We have heard learned counsel for the appellants and learnedcounsel for the State.

5. Learned counsel for the appellants would submit that no caseis made out under Section 304B read with Section 34 of the IPC. HeDwould submit that the High Court has reversed the verdict of acquittaland convicted the appellants ignoring the fact that the prosecutionwitnesses were unreliable. Prosecution witnesses, it is complained, haveimproved their version while they gave evidence in the witness box.Contradictions emerging from their previous statements under SectionE161 of the Code of Criminal Procedure, 1973 (hereinafter referred to as‘the Cr.PC’ for short), demonstrated that their testimony in court, whichis relied upon by the High Court, could not be the basis for reversal ofacquittal. Reliance is placed on certain letters as well.

6. We have also heard the learned counsel for the State whoFsupported the judgment by pointing out that there was evidence to justifythe conviction.

7. Before we consider the evidence, it is apposite that we set outthe following findings rendered by the High Court:

“22. … Just before her death and after 5-6 months of herGmarriage, respondents-accused Girish Singh and Jodh Singhharassed the deceased Ishwari Devi for getting T.V. and V.C.R.in dowry and by non-fulfilling the demand of dowry, they werecontinuously beating her. Respondent – Jodh Singh also harassedher by saying her to provide him liquor in the glass and after takingHliquor in the state of intoxication, he was asking her to sleep with

him. On her refusal, she was subjected to mental cruelty. P.W. 4Ganesh Singh has specifically stated that after coming back fromMumbai, he came to know that respondent-accused Jodh Singhafter taking the liquor was trying to commit rape with Ishwari andalso used to harass her for T.V. and V.C.R., due to which hisdaughter Parvati Devi, P.W. 2 Smt. Laxmi Devi, P.W. 3 Smt.Anandi Devi, P.W. 4 Ganesh Singh, and P.W. 5 Yasodh Singh, it isproved beyond reasonable doubt by the prosecution that IshwariDevi was harassed for the demand of T.V. and V.C.R. in dowryby the respondents after 5-6 months of marriage and they werecontinuously making demand of dowry just before her death ….Therefore, in view of the aforesaid discussion, it is proved thatdeceased Ishwari Devi died an unnatural death within 1 ½ yearsof her marriage in the house of respondents where she was residingalong with her husband- Girish Singh and father in law Jodh Singh.Deceased Ishwari Devi has died due to the burn injuries and herbody was found to be 100% burnt by the Medical Officer P.W. 9Dr. P.K. Karnatak. As such, it has been proved by the prosecutionbeyond reasonable doubt that the deceased was subjected to mentalcruelty by the respondents for the demand of T.V. and V.C.R. indowry and due to non-fulfilment of this demand and due to theharassment and Marpit by the respondents, Ishwari Devicommitted suicide by burning herself in the house of her husband.Hence, in view of the above-said facts and circumstances of thecase, offence punishable u/s 304-B/34 of IPC is fully made outagainst the respondents beyond reasonable doubt and learnedSessions Judge has erred in law by acquitting the respondents’ u/s 304-B r/w Section 34 IPC.”

8. Thereafter, the High Court proceeds to hold that the SessionsJudge erred in holding that the oral evidence is not supported by thedocumentary evidence. After referring to Section 113B of The EvidenceAct, 1872, it is found that a presumption is to be drawn under the saidprovision that dowry death has been caused. The finding by the TrialCourt that the cruelty to his wife by the first accused is not proved, wasfound to be incorrect. Still further, it is found that the Trial Court erred infinding that the deceased ran away to her father’s house where shecommitted suicide. The deceased committed suicide in the house of theappellants. In regard to the letters produced by the appellants to showthat there was no cruelty, it is found that the actual letters, which show AB

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Athe cruelty, written by the deceased could not be produced due to thereason that as submitted by PW4 as they were misplaced due to theshifting of the house. The contradictions in the statements made by theprosecution witnesses also did not appeal to the High Court. It wasfound that the deposition given by the prosecution witnesses was reliableand trustworthy.B

9. Now, the time is ripe for us to consider what prosecutionwitnesses have deposed. PW1 is the sister of the deceased. She is shownas 14 years old on the date of deposition. She states that whenever thedeceased sister used to come to her house, she used to tell her thatfather-in-law of the deceased and her husband complained about bringingCno dowry and used to say that colour television was not given. Father-in-law would consume liquor and ask her to stand in front of her andsleep with him. When sister did not act like that, he used to beat her up.The mother of the witness used to pacify her and sent her to hermatrimonial home. She had gone 7-8 times to see her sister to theDmatrimonial home. They used to ask her sister how she has come withoutdowry. In the cross-examination she would, inter alia, state as follows:

The witness went to leave her sister last time to her matrimonialhouse about three months back. Her grandmother was also withher. No report was given anywhere regarding beating tograndmother by the accused. It is further stated that her sisterwas influenced by devta (religious spirit). Then her matrimonialhome conducted religious ceremony for her. Her sister becamenormal after conducting it. Whatever madness her sister used to-do; it was taken care of by her inlaws house. Only prayers wereoffered.

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First accused did not have a good opinion about her sister. Hersister held him good but he did not respond. Sister used to tellabout aforesaid facts of consuming liquor to stand in front of himand to sleep with him. Yashodh Singh is her uncle. These factswere not told to her uncle by them. She was examined by Kanungo(Officer). In regard to her statement under Section 161 of the-Cr.PC that deceased was alright till 56 months after her marriagein the matrimonial home, she denied making that statement. Shedenies making the statement that the deceased used to run awayto their house. She says she has stated to Kanungo that the second G

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accused used to beat her sister. She states that if the Officer hasnot written it, she cannot give the reason. About the sister weepingwhile complaining and such statement not being found, the witnesssays that she has told the Kanungo.The witness stated that shecannot say the reason why it is not written. Again, statement thather mother used to send back the deceased after pacifying her, itis stated that regarding the omission, it is her version that it wasstated to Kanungo.

10. PW-2 is the mother of the deceased. She states, inter alia,that the appellants used to tell the deceased that television and VCRwere not given in dowry. The accused appellant used to say to thedeceased that she is chipri (flattened nose) and not of their choice.They used to threaten her that they will burn her by pouring kerosene oilif she did not bring television and VCR. These facts were disclosed toher by the deceased. The second accused, in the presence of the witness,said that if television and VCR were not brought, she would be finishedeven before coming of her father to house.

11. Her daughter had told her that in the absence of the firstaccused, the second accused would ask her to serve liquor and to sleepwith him after being drunk. When she refused, he used to beat her upand show her khukri (knife). Accused had seen the deceased beforemarriage. Thereafter, marriage was solemnized. They had not promisedto give television and VCR. In the cross-examination, she would, interalia, state that:

-Her daughter lived happily for 56 months of marriage.Thereafter, disturbances started. About one year disturbancesremained. For about 5-6 months, deceased did not make complaintof her in-laws. The first accused used to roam in search of job.When deceased came to their house before her death, she wastalked badly and was beaten up. Her statement was taken threetimes. She is an illiterate. She had told all the facts to Patwari ina statement. She cannot state the reason if the fact of televisionand VCR is not being written. She further says that deceased-used to run away to their house after 56 months and they used toask her not to run away. Her daughter loved her husband but hedid not love her. She was confronted with the statement recorded A

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by Patwari (Patwari performs the function of Police in certainparts of State of Uttarakhand) that she had never stated aboutharassment or beatings or bringing less dowry by her husband.She denied having made the statement. She is unable to tell thereason how the statement is written. She is again confronted withthe statement that she had no suspicion about abetment or killingor about any harassment by her husband. She would say that thestatement has been wrongly written by the Patwari/Kanungo.Her husband has never come during vacations after marriage ofthe deceased before her death. He has visited twice after herdeath. She says deceased has written about her grief in one yearof her marriage to her father. She deposed that the deceased wasan illiterate and she did not know how to read or write. Deceasedhad come a week before her death to their house. She had informedYasodh Singh about the grief of the deceased and all the facts ongetting an information about the death. She has stated about thedeceased being called chipri and not being liked and about notbringing television and VCR to the Kanungo. She says, if he hasnot written, she has no reason to offer. Even the statement thatsecond accused had stated in her presence that if the deceaseddid not bring television and VCR, then, she and her parents wouldbe killed, was found missing in the statement and she has no reasonfor the same. She claims to have made the statement. Showingof khukri by the second accused is found missing for which shehad no reason except saying that she has no reason for the samenot being written. No doubt she claims to have stated no. Shewould say about the second accused consuming liquor and askingthe deceased to sleep with him, she was told this by the deceasedand PW1 has not told these facts to her (be it noted that PW1 hascategorically stated that she has told these things to her mother,viz., PW2). Suggestion is made that the deceased became restlessdue to influence of evil spirit which is no doubt denied by thewitness.

12. PW-3 is the grandmother of the deceased. She repeated whatis stated by PWs 1 and 2, namely, that accused after marriage, askedthe deceased to bring television and she would say that they told her thatshe was chipri. They used to beat her up when she was sent back and

when she came home, she used to pacify her and sent back to hermatrimonial home. Once when she went to leave the deceased, then,the second accused beat her 2-3 times on the chest of the granddaughter.Deceased used to tell her mother and sister that the second accusedconsumed liquor, asked her to serve liquor and thereafter to sleep withher. She would be beaten up when she refused to sleep. She was askedto bring television. In the cross-examination, it is stated that deceasedwas chipri since beginning. In-laws of the deceased had good behaviourwith her till two months. The deceased lived properly till six months. Sheused to do all household works and she used to run away from matrimonialhome after 6-7 months. Her daughter-in-law/PW2 did not go to the houseof the second accused for patch up.Deceased had told the fact of demandof television 6-7 months before her death to her mother. In regard tothere being no statement by her to the Patwari that second accusedused to beat the deceased, she would say that she had told him. Shesays that the deceased has not told her that her father-in-law, with anintent to rape her, used to scold her. She had given statement to thePatwari that the deceased used to tell her mother about the father-in-law scolding her with an intent to rape her. Regarding the omission aboutthe statement that in her presence, the second accused used to beat thedeceased badly and that he was inclined to beat her up, she is unable totell the reason. Upon her statement that the second accused beat thedeceased three times on her chest and was inclined to beat her also, notbeing found on the statement, she is unable to give any reason.Butaccording to her, she had told the Patwari this.

13. PW-4 is the father of the deceased. He would state, interalia, that the first accused had asked to give television and VCR inmarriage but he told that he could give only to the extent of his ability.Marriage was solemnized in his presence when he came during his yearlyvacations. After 5-6 days of marriage, when he was going back and thefirst accused came to take the deceased, then, he told him about televisionand VCR not being given. After five months of normal behaviour, accusedstarted misbehaving. His daughter could read and write a little and shehad written about the television and VCR, bad language and abuse, inthose letters (PW-2-mother of the deceased, on the other hand, be itnoted, stated that the deceased was illiterate and could not read andwrite). On receiving information about the murder of his daughter, hewas told about the complete incident by his family members. On this, hecame to know about the second accused being drunk, trying to rape the AB

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Adeceased and harassing for television and VCR and for that reason, hisdaughter committed suicide. Regarding letters written by his daughter,they were lost during shifting of house. Prior to the marriage of hisdaughter, the first accused has not seen the deceased. He has also notseen the first accused/his son-in-law before marriage. The first accusedcame on the second day after the barat returned (marriage gathering).BHe came in the evening and returned next day morning. The first accusedand the deceased came after 5-6 days after marriage. When they cameafter 5-6 days after marriage, he was on duty (in chief examination, itmay be remembered that the witness says that when he was going backafter 5-6 days of marriage, the first accused came to take his daughterCand then the first accused had complained that the television and VCRhad not being given and the he stated that he had given according to hisability and if everything goes fine, it will also be done). He admits tohave received only letter K3 from second accused. He states that thereis no mention of harassment for dowry but they used bad language andharassment.He admits to have written and signing two letters markedDas Kha1 and Kha2 and is unable to explain why any fact of dowryharassment has not been written in these letters. He admits that theseletters were written in response to letters by deceased.Confronted withthe omission to mention about the demand for VCR, the coming of theson-in-law after 5-6 days after marriage and demand of dowry, he isEunable to state the reason why they are not written. According to him,he has told the Kanungo.

14. PW-5 is relative of the deceased. He says that deceased wouldtell all the facts to her mother about the harassment regarding televisionand VCR in dowry. He was also told; he says. He has deposed onFsimilar terms in regard to the second accused asking the deceased tosleep with her after being drunk and allegation regarding chipri (flatnose). He, however, in cross examination says that he had told the Officerabout less dowry being given and about the demand of television andVCR. He says further that if it is not written, he cannot tell the reason.Similar is the position with regard to harassment by the first accused.G

15. PW-6 is Patwari. He has referred to the various steps takenby him in the investigation. He states in cross-examination that nocomplaint was received by him from the side of the family of the deceased.

16. PW-7 is Kanungo. He states that he took the statements ofHthe witnesses PWs 1, 2 and 5. Between 05.06.1991 to 08.06.1991 nobody from the side had come and told him about the facts of harassment ofdeceased, demand of dowry and attempt to commit rape by the secondaccused. No evidence was given against the first accused before19.06.1991. he says as follows:

“11. I have taken the statement of Km. Parvati and she hadstated that “My sister was ……………. hold good” she had alsogiven the statement that “she use to ran away to our house” Iproduce all the three aforesaid true copy of statements in myhandwriting and signatures. These have been marked as Exh.Kha- 3 to 5.

12. Witness Laxmi had given the statement that “Henever…………. Said anything” She had also stated that “I havesuspicion ……. regarding him”, Both these marked true copy ofthese statements are in my handwriting and signatures. I submitthe same. These are been marked as Kha-6 and Kha-7.

13. Witness Anadi had stated to me, “I also went ………. notgone”. The true copy of the statement is being submitted, whichis in my handwriting and signatures. This has been marked asExh. Kha-8.”

17. The statement which was got marked in regard to PW1 readsas follows:

“Deceased had never complained about her husband/firstaccused and she was happy always with him and the first accusedalso held her good.”

18. In regard to the statement proved in regard to Laxmi-PW2/mother of the deceased, the actual statement is “she (apparently the deceased) had never complained abouthim regarding harassment or beating or any fact about giving lessdowry.”

19. The further statement which is proved through PW7-Kanungoand attributed to PW2, reads as follows:

“I have no suspicionabout the killing or getting killed thedeceased or any harassment by him.”

(Emphasis supplied)

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A20. PW-5, the uncle of the deceased is proved to have made thestatement “The husband of the deceased/Girish Singh is at his residencesince one month and I have no knowledge about any harassmentof deceased.”

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21. Now, much reliance is placed by the learned counsel for theappellants on two letters which have been sent by none other than PW2-father of the deceased. These letters were sent admittedly by the fatherof the deceased to her as they were put to him in his examination and headmits the same. They read as follows:

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Letter dated 29.02.1991

“Dated: 29.02.1991

Om Ganeshay Namah:

Jai Bhagwati Mata

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Dear daughter, accept my hugs and blessings and love to boththe son in laws and regards to Samadhi ji and love to all others athome. I am fine by grace of God and prays to supreme being forthe same for your family. You may live happy always, then I mayalso felt the same. The reason for writing letter today is that howis the crop this year and if it is sown or not and what otherprofessional things are going on? I received your letter and cameto know about the well being and felt happy for the same. Docommunicate in the same manner by writing letters. Blessingsfrom younger brother Trilok and love from Ganesh. Pay my regardsto elders and love to children. And daughter, you concentrate onyour work and also pray daily to God. You will go during Holi. Iam sending Rs. 100/- for you. I will bring something for you inbox during vacations. Ask your mother to take medicines. I havesent money and to have treatment properly by going to Chamvatand do not do any heavy work and ask children to concentrate onstudies and hygiene. I will come in vacations during May-June byGod’s grace. Inform complete news in letters and reply as soonas you receive this letter.

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Yours father

Sd/- (illegible)”

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Letter dated 20.03.1991

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“Dated: 20.03.1991

Om Ganeshay Namah:

Jai Bhagwati Mata

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Dear daughter, say my love to son in law and blessings to him.Love to younger son in law and regards to friend Samdhi ji. Alsosay my regards in neighbourhood accordingly and also love tochildren. I am fine here by grace of God and also prays to God foryour happiness. Also say regards and blessing from Trilok andGanesh.

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I received your letter for well being. I came to know about thesame after reading your letter. My heart felt very happy and hopethat in future also you would be writing letters. How the agricultureis going on. Dear daughter, take care of your mother and alsokeep going there and also ask her to take some medicines. Askson in law to pass his X class. It is hard time and he has to be selfdependent. It is the duty of every person to do progress and youare wiser enough. Ask him to be more responsible. I am finishingoff this letter and forgive for any mistake.

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Reply soon.

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Yours father

Sd/-”

Address: G.S. BishtState Bank of HyderabadS.V. Road, Andheri WestBombay”F

22. There is further documentary evidence, namely, letter dated02.05.1991, sent by the second accused to PW4-father of the deceased.It reads as follows:

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To,Sh. Ganesh Singh BishtState Bank of HyderabadS.V. Road, Andheri WestBombay.

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02.05.1991(overwrited)

Dear friend Samdhi ji, accept regards on behalf of your SamdhiJodh Singh Mehta. Regards to younger Samdhi also and hello toall other friends.

I am fine here with the small child and hope the same for you.The main reason to write the letter is because the daughter-in-law (Bahu) had ran away to her mother’s house on 02.04.1991and had not returned even when I went to take her. Since I beingfather in law and like her father is duty bound to frighten her tokeep away from all bad deeds. But she wants to be an independentkinds therefore I am writing this letter to you for the first and thelast time. I have not written any letter in good times, therefore,writing now. If you would have been in my place, you wouldhave felt bad only what I have been hearing of her. I am an armyman and have habit to command and control but the fact is notlike this. If I say anything once to her, she reciprocates fourtimes. The son is not at home. What can I say? I have sold thebuffaloes and had given up the agricultural land. Nobody listensto me but alright. You write a letter to your daughter from thereonly. Nothing is spoiled yet. If she wants to come, it is her house.I have nothing remain. She may live, cook and so, the way shewants. I will remain a spectator and not say anything. What elsecan I write?

You are also having all females in your house. Few things can besaid there only. I cannot write all things in the letter. Please forgiveme forever from today. We have not done good by marrying ourchildren. We have done bad only. Forgive me and do reply thislast letter of mine. I will be waiting for it.

Yours Samdhi

(illegible)

Jodh Singh Mehta

Friend, I have written this letter one month before but did notsend it because I thought if good sense prevails, it would be better.But she wants to live separately. Wish to bring grocery from her GIRISH SINGH v. THE STATE OF UTTARAKHAND[K. M. JOSEPH, J.]

mother’s place. We have been disgraced from all sides. I am inyour hands. The letter you find here was written on 05.04.1991.

Yours

Jodh Singh (Sd/-)”

23. The last letter is dated 28.05.1991. This is sent by PW4-fatherof the deceased in envelope addressed to his son-Kishore Kumar and itreads as follows:

Dated: 28.05.1991

My regards with folded hands to respected mother and conveymy hugs, love and blessings to children. Also convey regards toelders and love and blessings to children on behalf of youngerbrother Ganesh. Blessings to dear daughter Ishwari.

By the Grace of God, we are fine here and pray to God for youand family regarding the well being of everybody so that all ofyou may live peacefully and happily and then I may also feelhappy. How was rain this year? How was wheat crop this year?I received your letter of well being and came to know about thestate of affairs. Grandson is getting employment. I felt happy topray to God that our family shall live happily. You cooperate withthe grandson in his work and get prayers done on behalf of me. Iam sending Rupees one thousand. I will come in month of Julyduring vacations and for the reason that I may be present at homeduring autumn season. I would be coming late for vacations. AskIshwari not to worry and don’t send her, even if anybody comesto call her. Send the address of Jamai ji (son-in-law) to meet me.Had examinations of children held? Ask them to concentrate onstudies. Give news of home and village. How is the health ofmother of Ishwari? When the buffalo is going to deliver the calf?Convey my regards to elder brother and love to children. Brother,you fulfil all religious obligations (Devta Pujan) with respect andpride. Do write the complete news of the family in the letter. Youare intelligent enough and I really feel that brother you are wise.I am bothering you due to difficult circumstances.

Reply soon.

Yours younger brotherSd/- illegible”

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A24. It is relevant to remember that the father of the deceased hasadmitted that the letters were written dated 28.02.1991 and 20.03.1991in reply to letters written by the deceased. The letters do not discloseabout any harassment or cruelty or the dowry demand. In his deposition,PW4-father of the deceased would say that he is unable to say why anyfact of dowry harassment has not been written in these letters. TheBletters written by the deceased have been misplaced according to PW4-father of the deceased.

25. The significance of the letters, admittedly written by PW4 toher deceased daughter and the absence of any complaint about dowryharassment, lies in the following categoric statement made by PW4-Cfather of deceased, as follows:

“Accused behaved normally with the deceased for five monthsand thereafter, they started misbehaving. My daughter could readand write a little and she had written two letters to me in this”regard.

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26. The aforesaid letters written by the deceased are not madeavailable on the ground that they had been misplaced. Certainly, if theseletters, which are admittedly written by PW4-father of the deceased areEin response to the letters written by his deceased daughter, the contentsof letters written by the father do not bear out the case of conduct by theaccused as is sought to be made out.

27. We have referred to the entire evidence. The Trial Courtacquitted the accused. The jurisdiction of the Appellate Court, when itdeals with such an order, is no longer res integra and is subject matterFof catena of decisions of this Court.

28. In Upendra Pradhanv. State of Orissa1, this Court took theview that if there is benefit of doubt, it must go to the accused, and incase of two views, the view that favours the accused, should be taken,which was more so where the Trial Court’s decision was not manifestlyGillegal, perverse and did not cause miscarriage of justice.

29. In Dilawar Singh and othersv. State of Haryana2, this Courttook the view that court will not interfere with the verdict of acquittal 1 (2015) 11 SCC 124

H2 (2015) 1 SCC 737

merely because on evaluation of evidence, a different plausible viewmay arise. Very substantial and compelling reasons must exist with theAppellate Court to interfere with an acquittal.

30. In Gamini Bala Koteswara Rao and othersv. State of AndhraPradesh Through Secretary3, this Court accepted the contention of theappellant that interference in an appeal against acquittal should be rareand in exceptional circumstance. It was further held that it is open to theHigh Court to reappraise the evidence and conclusions arrived at by theTrial Court. However, it is limited to those cases where the judgment ofTrial Court was perverse. This Court went on to declare that the word“perverse”, as understood in law, has been understood to mean, “againstthe weight of evidence”. If there are two views and the Trial Court hastaken one of the views merely because another view is plausible, theAppellate Court will not be justified in interfering with the verdict ofacquittal (See K. Prakashanv. P.K. Surenderan4).

31. Section 304B of the Indian Penal Code reads as follows:

“304B. Dowry death.— (1) Where the death of a woman is causedby any burns or bodily injury or occurs otherwise than undernormal circumstances within seven years of her marriage and itis shown that soon before her death she was subjected to crueltyor har-assment by her husband or any relative of her husband for,or in connection with, any demand for dowry, such death shall becalled “dowry death”, and such husband or relative shall be deemedto have caused her death.

Explanation. —For the purpose of this sub-section, “dowry” shallhave the same meaning as in section 2 of the Dowry ProhibitionAct, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished withimprison-ment for a term which shall not be less than seven yearsbut which may extend to imprisonment for life.”

32. Section 113B of The Indian Evidence Act, 1872 reads as follows:

“113B. Presumption as to dowry death.— When the question iswhether a person has committed the dowry death of a womanand it is shown that soon before her death such woman has been 3 AIR 2010 SC 589

4 (2008) 1 SCC 258

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Asubjected by such person to cruelty or harassment for, or inconnection with, any demand for dowry, the Court shall presumethat such person had caused the dowry death.

Explanation.—For the purposes of this section, “dowry death”shall have the same meaning as in section 304B, of the IndianBPenal Code, (45 of 1860).”

33. Thus, it can be seen that the offence created by Section304B requires the following elements to be present in order that it mayapply:

I.Within 7 years of the marriage, there must happen the deathCof a woman (the wife).

II.The death must be caused by any burns or bodily injury.

OR

The death must occur otherwise than under normalDcircumstances.

III. It must be established that soon before her death, she wassubjected to cruelty or harassment.

IV. The cruelty or harassment may be by her husband or anyrelative of her husband.E

V.The cruelty or harassment by the husband or relative of thehusband must be for, or in connection with, any demand fordowry.

34. Section 304B treats this as a dowry death. Therefore, in suchFcircumstances, it further provides that husband or relative shall be deemedto have caused her death. Section 113B of The Indian Evidence Act,1872 provides for presumption as to dowry death. It provides that whenthe question is whether the dowry death, namely, the death contemplatedunder Section 304B of the IPC, has been committed by a person, if it isshown that soon before her death, the woman was subjected by suchGperson to cruelty or harassment, for in connection with, any demand fordowry, the Court shall presume that such person had caused the dowrydeath. It is no doubt a rebuttable presumption and it is open to the husbandand his relatives to show the absence of the elements of Section 304B.

35. The foremost aspect to be established by the prosecution isthat there was reliable evidence to show that the woman was subjectedto cruelty or harassment by her husband or his relatives which must befor or in connection with any demand for dowry, soon before her death.Before the presumption is raised, it must be established that the womanwas subjected by such person to cruelty or harassment and it is not anycruelty that becomes the subject matter of the provision but it is thecruelty or harassment for or in connection with, demand for dowry.

36. Admittedly, the deceased was influenced by spirit (devta).Religious ceremony/prayers were held. The deceased became normalafter doing it. Still further, there is evidence that whatever madness thedeceased used to do, it was taken care of by her in-law’s house. Theabove facts emerge from the testimony of PW1-sister of the deceasedherself. It is relevant to remember that it is a case of suicide. In thestatement under Section 313 of the Code, the 1[st] accused in fact statesas follows:

“The deceased was under influence of evil spirit. We conductedprayers two times but she could not be cured. Her mind wasrestless and she committed suicide and her family falsely implicatedus.”

37. PW4-father of the deceased completely contradicts himself,when in cross-examination, he states that 5-6 days after marriage, thefirst accused and the deceased came, he was on duty. There is evidencewhen PW4 was working in Bombay (See the evidence of PW2/wife ofPW4, who has deposed that her husband was working in Bombay).Earlier in cross-examination, PW4 has deposed that when he was goingback after 5-6 days of marriage, the first accused came to take thedeceased and then the first accused has said that television and VCRhas not been given. PW4 says in chief examination that he had told thefirst accused that he has given according to his ability and if everythinggoes fine, it will also be done. PW4 further stated that on this, the firstaccused said that deceased was having flat nose. Thereafter, he statesthat he went back to Bombay on his duty.

38. We noticed that this aspect has not been considered at all bythe High Court. This contradiction in evidence goes to the root of thematter. This proves that the prosecution case sought to be proved throughPW4, is unacceptable.

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A39. PW2 would say that the deceased was an illiterate. She didnot know how to read and write. On the other hand, PW4 would deposethat the deceased could read and write letters. In fact, PW2 herselfstated that her husband-PW4 reached home after hearing about thedeath of the deceased and told PW2 that he has received two letters ofthe deceased regarding harassment by the accused about dowry andBone letter of Jodh Singh-the second accused. It is here that two letterswhich have been written admittedly by PW4-father of the deceased,assumes critical significance.

40. PW2-wife of the PW4, as we have noticed, has deposed thatPW4 has told her that he received two letters from the deceased whereCthere is reference to harassment about dowry by the accused.

41. PW4, when questioned about the letters, admits having sentthe letters by way of reply to such letters written by the deceased.

42. We have already extracted the letters. It is amply clear thatDthere is no reference about any harassment or cruelty on account ofdowry in those letters. PW4, in fact, deposes that he cannot tell thereason that why any fact of dowry harassment has not been written inthose letters. He admits that those letters were written in reply to theletters written by the deceased. Significantly, the two letters written bythe deceased are not produced by the prosecution. The reason for non-Eproduction is, they were misplaced during shifting of the house. Even,accepting that those letters were misplaced, the question whether theycontained allegation of harassment due to dowry, should have beenresolved with reference to the letters admittedly sent by PW4 to thedeceased within a few days of the receipt of the letters. In other words,Fa reasonable view would be that as reference to any harassmentregarding dowry is conspicuous by its absence in the letters written bythe PW4 to the deceased. There were no allegations of harassment onaccount of dowry in the letters written by the deceased to her father-PW4. In this regard, the High Court, in the impugned judgment, hasproceeded to ignore this vital aspect and proceeded on the basis that theGaverments made by the deceased of the cruelty caused by the appellantswere mentioned in the letters sent by the deceased and letters writtenby PW4, are not helpful to resolve this issue. The last of the two letterswritten by PW4-father of the accused is dated 20.03.1991. The deathtook place on 05.06.1991. Even, in the letter written by PW4, letterHdated 28.05.1991, in an envelope addressed to his son, there is no mention about any harassment or cruelty on account of dowry demand. He onlysays to ask the deceased not to worry and not to send her even if anybodycomes to call her. The High Court, however, still takes the view thatdowry related harassment was mentioned in letters sent by the deceasedwhich are not even produced.

43. We are of the view that this approach, particularly, in an appealagainst acquittal is clearly unacceptable and cannot be approved.

44. Still further, through the Officer, statements actually made bythe prosecution witnesses, have been proved. PW1-sister of the deceased,in her statement, stated as follows:

“The deceased had never complained about the first accusedand she was happy always with him and brother-in-law also heldher good.” This statement made by her to the Officer was alsoput to her. She merely says that she does not know how this factwas written in her statement. She says she has not given such astatement. She is unable to give the reason.

45. The High Court, in regard to the said statement, gets overprevious statement proved though Officer by stating that the statementwas not given by the witness and that she was a girl of 13 years andfurther stated that her deposition in court inspires confidence.

46. Likewise, PW2-mother of the deceased, has given herstatement that deceased has never complained about him regardingharassment or beatings or fact of giving less dowry. Still further, she isalso proved to have given the statement that she had no suspicion ofkilling or getting killed by the accused or any harassment by him. Similarfindings are rendered by the High Court in regard to the said statements.

47. We would think that particularly in an appeal from acquittal,the High Court has exceeded its jurisdiction in the appreciation of evidenceas well as its approach to how the reliability of the witness is to beevaluated.

48. We are troubled with another aspect highlighted by the factsof this case. A right of appeal is the creature of statue. Unless appellatepower is expressly limited by additional conditionalities, the AppellateCourt has power or rather is duty bound in the case of an appeal by theaccused to reappraise the evidence. Even in an appeal against acquittal,the appellate court has power of reappraisal of evidence though subject A

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Ato the limitation that interference would be in a case where the TrialCourt’s verdict is against the weight of evidence which is the same thingas a perverse verdict. We need not catalogue the circumstances whichare well-settled.

49. In this case, we notice that the High Court has referred to theBcontents of the chief examination of the witnesses. Thereafter, it hasbeen stated that the witnesses have been cross-examined at length butnothing has come out in evidence which would create any doubt in hisevidence. The witnesses are declared as being found reliable andbelievable. We have noted the facts in this case.

C50. Truth in a criminal trial is discovered by not merely goingthrough the cross-examination of the witnesses. There must be an analysisof the chief examination of the witnesses in conjunction with the crossexamination and the re-examination, if any. The effect of what otherwitnesses have deposed must also enter into consideration of the matter.On the one hand, the laudable object underlying Section 304B of theDIPC is not to be lost sight of. On the other hand, it is equally importantthat the Appellate Court must not be oblivious to the fact what it is dutybound to find is whether an offence is committed or not and such apursuit also would embrace the duty of the court to apply its mind to theevidence as a whole and arrive at conclusions as to facts and inferencesEtherefrom as well. After all, at stake for the accused are, pricelessrights to liberty, reputation and the right to life, not only of himself butalso his family members. The Law Giver, has contemplated that theHigh Court will be the final arbiter of facts and even of law. Thejurisdiction of the Apex Court was deliberately limited to the extra ordinarypowers it enjoys under Article 136 of the Constitution of India unless itFbe exercised under other provisions. What we wish to emphasise is thatthe cause of justice and the interest of litigants would be better subservedif the Appellate Court takes a closer look, in particular of the cross-examination of the witnesses and analyse the same.

51. There is yet another important aspect in this matter. It is trueGthat the deceased died on 05.06.1991 which was within seven years ofmarriage. It is equally true that her death was due to burning and shecommitted suicide. It is not a case where the accused stood chargedunder any provision except Section 304B read with Section 34 of theIPC and Section 306 read with Section 34 of the IPC. The case ofHabetting suicide under Section 306 read with Section 34 of the IPC has been found unacceptable both by the Trial court and the High Court andthe appellants stand acquitted.

52. A perusal of the impugned judgment of the High Court wouldshow, that accepting the version of the prosecution witnesses, the HighCourt has been persuaded to hold inter alia that the second accusedalso harassed her by asking her to provide liquor in the glass, and aftertaking liquor, in the state of intoxication, he used to ask her to sleep withhim. On her refusal, it was found that she was subjected to mental cruelty.Reference was made to evidence of PW4-father of the deceased thatafter he came back from Mumbai, he came to know that the secondaccused was taking liquor and trying to commit rape and also used toharass her for television and VCR due to which she committed suicide.

53. The High Court was in clear error in taking into considerationthe evidence relating to harassment by the second accused on the basisthat he, in the state of intoxication, asked her to sleep with him, and onthat basis, she was subjected to mental cruelty. The said evidence istotally irrelevant and foreign to the scope of a trial for the offence underSection 304B of the IPC. It does not relate, at all, to the demand fordowry.

54. As regards the demand for dowry, having regard to the stateof the evidence, which we have elaborated, we would think that therewas no occasion for the High Court to even raise a presumption that thedeceased in this case has been subjected to cruelty or harassment inconnection with any demand for dowry. It may be true and it is notdisputed by appellants that as found by the High Court, the deceaseddied in the house of the accused. The fact that the High Court proceededto arrive at finding of guilt in an appeal against acquittal by the TrialCourt in the state of the evidence, which we have referred to, does notcommend itself to us for acceptance.

55. In such circumstances, we would think that the High Courtoverstepped its limits in dealing with an appeal against acquittal and theview taken by the Trial Court appears to have arrived at, having regardto the state of evidence, to be a possible one, which did not meritinterference by the Appellate Court.

56. The upshot of the above discussion is that the appeals areonly to be allowed and we allow the appeals and set aside the judgmentof the High Court to the extent it convicts the appellants for the offence A

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[2019] 9 S.C.R.

Aunder Section 304B read with Section 34 of the IPC and the judgment ofthe Trial Court is restored. Since, during the course of the appeals, theappellants have been released on bail, the appellants need not surrenderand their bail bonds stand discharged.

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Devika Gujral

Appeals allowed.

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