State v. Shravan Rustagi

CRL. L.P. 768/2015 Page 5 of18 e subjected to cruelty or harassment "for or in connection with the demandfor dowry". Presumption under Section 11SB is a presumption oflaw. Onproofofthe essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only onproofof thefollowing essentials: (1) The question before the court must be whether the accused has committed the dowry death of a woman, (This means that the presumption can be raised only if the accused is being triedfar the offence under Section 304B IPC.) ' (2) Tke^^Won^^ to cruelty or harassment,by her. husbarM ofMs relatives. (3) Such cruelty or harassment wasfpr, or in connection with any demand ofdowry. (4) Such.fruelty(b.y^ams^^^ soon before her death. -V % • '• ' " '' I 16^ Aconjoint readingo;^.Section 113B ofthe E^dence Act and Section 304B\ TPChshows that there must be material to show that soon'before her death th§ victim was subjected' to cruelty^ op harassment. The prosecution has to rule-out'the possibility ofa.riaturaUor accidental death so asyp Bring it within the.purview ofthe "death occurring oihhfwisejhan-informal circumstances". The expression "sooii-befd^W'^is very relevant where Section 113B of the Evidence -Act and Section 304B IPC are pressed into service. Theprosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate anyfixedperiod, and that brings in the importance ofa proximity test bothfor the CRL. L.P. 768/2015 Page 6 of18 proofofan offence ofdowry death as well asfor raising a presumption under Section 113B of the Evidence Act The expression "soon before her death" used in the substantive Section 304B IPC and Section 113B of the Evidence Act ispresent, with the idea ofproximity test No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court maypresume that a man who is in thepossession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can accountf&f Ms possession/ The determination ofthe period which S^n come wjthin the term- "soon before" is left tojbe determined"byJhe:6omts, dep^ending uponfacts and circumstances of eacli 'cdse. Suffice, however, to indicate that the expression "soon bef^' would normally imply that '•the,j,intern,al should not be much betyveen the cruelty or harassment concerned and the death in question. There,,must be existence! ^ proximate and live link' between the effect of cruelty based on dowry demand and the deathsconcerned. Ifthe alleged incident of cruelty, is'remote in time and has become /statenot to -disturb' the mental equilibrium qf^hewomameo^^edf^j0l^uld be ofno consequence:"

12. In Amar Singh v. State ofRafasthan: (2010) 9 SCC 64, the Hon'ble Supreme Court observed as under: "29... What is punishable Under Section 498-A or Section 304-B Indian Penal Code is the act of cruelty or harassment by the husband or the relative ofthe husband on the woman. It will be also clearfrom Section 113-B of the Evidence Act that only when it is shown that soon before her death a woman has been subjected by any person to cruelty or harassment for, or in connection with, any demandfor dowry, the court shall presume that CRL L.P.768/2015 Page 7of18 such person had caused the dowry death within the meaning of Section 304-B Indian Penal Code. The act of subjecting a woman to cruelty or harassment for, or in connection with, any demand for dowry by the accused, therefore, must be established by theprosecutionfor the court to presume that the accused has caused the dowry death."

13. The law above discussed cogently states that where the death of a woman is caused by any bums or bodily injury or occurs otherwise thanunder normal circumstancerwifhin 7- years of her marriage and it is shown that saon before her deMh%Me was subjected to cruelty or harassment by her husband.od,anyrelative fdBor m. connection with any demand ofdowry, suchydeag/^^^^^^ punishable under Section 304B oft|eIndian Penal Code..

14. To prove, the accusation againstiiai person for the offence of dowry death,the prosecution is oblige[4],tpVpr(3ve that: (a) the death ofa woni^n was caused by bums or bodily injury or had occurred btherwise tliah under normal circumstances; (b) such death should Mve occurred within 7 years of her marriage; *

(c) the deceased was subjected to cmelty or harassment by her husband or by any relative ofher husband;

(d) such cmelty or harassment should be for or in connection with the demand of dowry; and (e) the deceased should have been subjected to such cmelty or harassment soon before her death. CRL. L.P. 768/2015 Page 8 of18

15. Admittedly, the marriage of the respondent and the deceased was solemnized on 02.04.2008. The deceased was found hanging on 15.02.2012 whereas the death of the deceased took place on 16.02.2012 i.e. within seven years of marriage. Hence, two ingredients of Section 304B of the Indian Penal Code are satisfied as it is not in dispute that firstly the death of the deceased was within seven years of y- her marriage and secondly was otherwise than under normal circumstances. - —e t?

16. Now, the questions we need toponder upon afe asto:

1. Whether the deceased was subjected to hkassment or cruelty at the instance ofher,husband or,any relative ofher husband? %

2. If answer to the first question appears to be in affirmative, whether that harassment ^or cruelty was in connection with the i • f pj..t fciUVi;., demand of dowry? f j • if

3. Such cruelty or harassment'shlj|ld"h|v^^^ subjected to soon before death.,. - 1 "i.

17. The answer to the first two questions api|ears'tb be inextricably linked with the third question. Undoubtedly, there is no eye witness to the occurrence. The entire case of the prosecution rests upon the testimonies of PW[6] Dr. R. Bhanumurthy (who conducted MLC of the deceased), PWIO Om Prakash Gupta (father of the deceased), PWll Sudha Gupta (maternal aunt of the deceased) and PW12 SumitRustagi (cousin ofthe deceased). CEL. L.P. 768/2015 Page 9 of18 f[3]

18. In order to prove that the deceased was subjected to harassment and cruelty in connection with the demand of dowry "soon before her death" the testimony of PW-10 (father of the deceased) assumes importance. In his initial statement recorded by a police official on 16.02.2012, he did not level any allegations against the accused. Thereafter, on the morning of 17.02.2012, SDM recorded his y statement wherein, again no allegations were raised against the respondent or his parents.. However,,on 18.02.2012, the SDM at the request of PW-10 again recorded his -statement. PW-10 stated that he gave thefirst statement under the'influence offather oftherespondent, onthepretext thatthelast rites ofherdaughter had tobeperformed by her husband (respondent), otherwise^-her soul would notrest in peace. Accordingly, he did not make- any allegations of doww against the I'l ' respondent and his parents.. Later,Ihe;came to know thaffather of the /, ''-i,[1] respondent misled them aboutfthe medical condition of her daughter. PW-10 gave his written statement in his handwriting to the SDM and clarified that the previous statement' was under the influence of Dr. Suresh (father of the respondent).-PW-14-(mother of the deceased) supported the same statement and signed the same.

19. PWIO Om Prakash Gupta (father of the deceased) in his testimony before the trial court deposed as under: "In the month of March 2011 accused Sharvan demanded Rs Five lacs from me as dowry as demanded earlier. I paid Rs. 1,30,000/- to accused Sharvan. Accused Sharvan again harassed Chhavi but Chhavi told him that I (witness) was going to make complaint against him so he did not makefurther demand. He also returned CRL. L.P. 768/2015 Page 10 of18 c y Rs. 1,32,500/- to me and he demanded Rs.2,500/- from me and I paid the same. Accused Sharvan continuously demanding Rs. FiveLacsand carfrom me as dowry. "

20. PW-10 Om Prakash Gupta in his cross-examination stated as under: "It is correct that after the marriage Sharvan and Chhavi had gone to Mauritius for their honeymoon. I do not know whether accusedSharvan had taken a package of Rs. 65,000/- each. xxxxx It iscorrect thatChawi^andrShMi^an hadoften travelled Nationally and Internationally. xxxxx ' - *• ' At the time when the marriage of the accused with my daughter took place) w^e told thai accused Sharvan was droMnng apackage ofRs. 18tacsper annum. " \. I

21. PW-10 further admitted that at the'^time of marriage, tie respondent I I owned a Santro Car but showed.his ignorance whether he had a motorcycl| in Delhi as well,as,inBangalore. He showed?his ignorance whether the respondent.purcli'ased Alto car in the year 2008 for the deceased. He admitted that the respondenV^irrfased a Beat car. PWIO admitted that despite the fact that the deceased was hospitalized neither he nor his wife ever visited Bangalore.

22. After perusal ofthe record, we find it surprising to see the shift in the stand of PW-10 fi-om no demand of any kind at all to the exact opposite without giving any particular proof of the demand of the Honda City car. Further, PWIO showed his ignorance towards the National and International trips after marriage or any expensive gift given by the respondent to the deceased. Hence, we can draw an C[5] CRL. L.P. 768/2015 Page 11 of18 ir inference by the material placed on record that the respondent was financially stable earning a handsome salary and he, along with the deceased, was leading a lavish life. They both took many trips within India and abroad and had sufficient number ofvehicles.

23. Furthermore, PW-10 was absolutely silent about the fact that the quarrel took place due to the demand of a Honda City car, he again Y" an improvement in his statement to that effect. Furthermore, the fact that he made four statemenfei.e. on 16.02.2012 to the police, on 17.02.2012 to the SDM, on 1-8.02.2012-again to the SDM and on 23.02.2012 another statement-iunder Section 161 of the Code of Criminal Procedure, raises seri6us||b]^ts as to thl^reliability and credibility' of PW10 as a witness.J t j r**' c

24. It is in evidence that in March'201V the respondent had Five lacs as dowry from the'parerits ofthe deceased, hov^ver he could only pay Rs 1,30,000/-. Biit.it has been proved that the respondent returned Rs 1,32,500/- after a'few^months. There is no material that r proves that it was demanded as dowry. Moreover, an extra amount of f 7 ' Rs. 2,500/- was paid along^vilh the principal amount, which appears to be towards interest. Hence, we cannot hold that such amount was paid as dowry to the respondent.

25. It is also to be noted that PWIO, PWl 1, PW12, PW14 and PW19, all being the near and dear ones of the deceased, in spite of being aware of all the cruelties and atrocities which the deceased went through, never filed a police complaint to that effect. There is no evidence on record to prove that any complaint to the police against the respondent CEL. L.P. 768/2015 Page 12 of18 lemanded Rs. or his parents was ever filed by them. It is highly improbable that either of the family members did not even bother to disclose the said acts to the police before the death of the deceased but only immediately after the death ofthe deceased.

26. Reliance has been placed on the letter dated 25.10.2008 which the deceased had written, which reveals that the attitude of the deceased was rude and non cooperative towards the respondent and his family members. It also reveals that sherwas hot tempered and admitted that she would control her adamant and aggressive-nature and would not use vulgar and abusive language' againstthe respondent andhis family members. She stated that" she would stop consuming'liquor in future. She also stated that she had an affair in the past and promised to mend her wayi^l She specifically. meritMied that there was no demand of dowry fir^kn the respondent and his'parent at any stage. JLlthough, it is the case ctPW-lO that signatures'of the deceased were obtained by the parents of the respondent, it is hard-to believe that a qualified person like the deceased would sign. a document without going through its contents, that too in the presence of the PW-IO himself and another mediator. There is no material on record which shows that the parent of the deceased protested against the deceased signing the said letter, especially when he was aware of the atrocities faced by the deceased. Hence, we are inclined to infer that the letter was signed voluntarily and in presence ofwitnesses. €i CRL L.P. 768/2015 Page 13 of18

27. Further, DW[4] Dr. Swam Singhla, a Gynecologist deposed before the court that the deceased visited her on many occasions for counseling to getjrid of her drinking habit.

28. Another pointto be noted hereis that according PW-12 Sumit Rastogi, one day he received a call from the deceased who informed him that her husband had beaten her and he immediately took her to a private medical practitioner for treatment where he saw bruises on her neck and cheek. In his cross-examination, he deposed as under: "/ had also told to the^police that initially I took Chhavi to a private practitioner whose name I do not remember and from there I had taken, her to Women Cell, Bangalore. I had dlsoiold'4o thepolice that Women Cell officiak^d asked us'Jo bryig a.wound certif^i&Jrom a GoverriMent Hospital do I 'todlc Chhavi to a Gov^nment 1 P. 1 a ho0ital.. ' I ' P xx£cx ' \ ' I i I 1 h%d told to the official ofDelhi Police about the office of %pngalore-where"We:'haddodged, the above said complaint..., xxxxx ' ' Chhavi had called on my- mobile phorfe on 07.02.2009. On the next day i.e. on''d[8].02.2009 I had taken her to a Private Practitioner. We'had visited Women Cell on the same day but we had gone to Government Hospitalon 10.02.2009"

29. Firstly, no reason has been assigned for getting the treatment done at the Government Hospital after a delay of 3 days, which was only at a distance of 8-10 kms from her residence. Secondly, no record of any complaint to the CAW, Bangalore or notice served upon the Lady Curzon Hospital Bangalore has CRL. L.P. 768/2015 Page 14 of18 been placed on record before this Court. The prosecution has not been able to prove that any complaint was ever made to CAW, Bangalore for the alleged beating on 07.02.2009. Onthe basis of the above, we are, therefore, inclined to draw an adverse inference from the above circumstances.

30. As far as the medical evidence is concerned, PW[6] Dr. R. ^ Bhanumurthy, who prepared MLC ofthe deceased in his crossexamination stated as under;.; ''None of the above said exhibited documents were prepared in mypresence. It is correct.that abrasions can be caused by nail; Jt. is\ correct that the injuries elaborated in the wound certificate were^ notfresh and were old. It is correct that the multiple nailmqrks^ can be earned by self inflicted wounds. It is wrong to 'suggest thd^ I have never worked:with,Dr. S.T. Sridhar or. thatI 11 4:?. i.e. ham never seen him.while 'writing and signing and therefore I cannot recognized his signatures and handwriting or.thatI am^deposihgfalsely." '

31. After carefully,examining the impugnedjudgment,the testimonies of material witnesses and the documents placed^on record along with the arguments advanced by the counsel for the parties, we are ofthe view that as per the^estimonies of PW-10, PW-14 (parents of the deceased) and PW-12 (cousin of the deceased) and their conduct, it is not probable to rely on their statements without any corroboration. The fact that no police complaint was ever made by any of the person aware of the cruelties faced by the deceasedpoints towards conduct of the interested witnesses and raises serious doubts asto the genuineness of the case. As per the statement of PW-6 Dr. R. Bhanumurthy, it is CRL L.P.768/2015 Page15of18 )1 made clear that the injuries found on the body of the deceased could have also been self inflicted wounds. Furthermore, the letter dated 25.10.2008 and the deposition of DW[4] Dr. Swam Singhla establishes the fact that deceased was hot tempered and that her behaviortowards the respondent and his parents was aggressive and not appropriate.

32. In TotaSingh and Am, Vs. State ofPunjab reported inAIR 1987SC ^ 108, the Hon'ble Supreme Court made the following observation: gal Whereare possible on an appraisal of the evidence 'adduced in Jhe case and the Court below has taken 'a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even it isiofthe opinion tliat^Jhe view taken by the Court below on its consideration of the evidence.is erroneous."^ ^ -A

33. In arecent case of Upendrq Prddhav Vs. State ofOr^a:(2015) 5 SCALE ^4, the Apex Court has observed that: I

CRL. L.P.768/2015 Page 16 of18 benefit thereofmust go to the Appellants as in the event of there being two possible views, the one supporting the accused should be upheld. (Emphasis Supplied)"

11. The decision taken by this Court in the aforementioned case, has beenfurther reiterated in State ofRajasthan v. Raja Ram: (2003) 8 SCC180, wherein this Court observed thus: ''Generally the order ofacquittal shall,not be interfered with because the presumption of innocence of the ( accused isfurther strengthened by acquittal. The golden C thread which rms iKfougjh'the web ofadministration of justice in criAal ca^^i!§ lhat iftwo views are possible on the evidence adduced, in the case, one pointingto the guilt of the accused and thesother to his innocence, the view >which is favourable to the accused hpuld be adopted The paramount consideration ofthe Court is to ensure that miscarriage 'of justice is prevei^d. A mi^arriage ofjustice,^ which,imay arisefrom acqikttal of the^ guilty is no lesh:thd^.f}j^^^^ the convictior^of an innocent. In a case where evidence is ^nored, a duty is castmpon the{ appellate cgu^t to rea^eciate the evidence} iin n hnv hppn the evidence, in a 'caie where the,accused has been acquitted, or. the purpose of ascertaimng;as to whether followed by the appellate,'[court considering the appeal against the judgment of acquittal is. to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. (Emphasis supplied)."

34. Therefore, it is well settled that where two views are reasonably possible on the basis of the evidence on record, the one that favours the accused mustbe accepted. In any eventin a case of acquittal, if the CRL. L.P. 768/2015 Page 17of18 view of tiie trial court is a possible reasonable view as per the evidence on record, interference by the High Court may not be justified.

35. Keeping in view the aforesaid settled law as discussed above, we are of the view that in the instant case, the ingredients of Section 304- B/498-A/302 of the Indian Penal Code are not established beyond all reasonable doubts against the respondent. We hold that two views are possible onappraisal oftl|e.evideneecadduced inthe case and the trial court below has taken a view whi|ih' is a plausible one. Hence, interference with the findings of the trial court is not warranted. r - ", '.. •% Accordingly, present leave petition stands dismis§e|[. MAY 4,2016 gr// CRL. L.P.768/2015 'SANGI'^ V VGR/A SEHGAL, J. G. S. SISTANI, J. Page 18 of18