# State Of U.P. (State Appeal) v. Ramjiwan & Ors

- **Citation:** (2016) 7 ILRA 457
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-27
- **Bench:** Ajai Lamba, Ravindra Nath Mishra-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-state-appeal-v-ramjiwan-ors-44102
- **Pages:** 13

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7 All. State Of U.P. (State Appeal) Vs Ramjiwan & Ors.
457
49. For the foregoing reasons, in our view the appeals filed by the appellants deserve to be
allowed and are, accordingly, allowed. The judgment and order dated 28.1.2009 convicting and
sentencing the accused appellants are set aside and the accused appellants are acquitted for the
offence under Section 364A IPC. Accused appellants Baseem Akhtar @ Banti and Bhoora Khan @
Bhalu who are in jail be released, if not detained in any other case. Accused appellants Shamshad
and Alimuddin who are on bail, their bail bonds are cancelled and sureties stand discharged.
Compliance of the provisions of Section 437A Cr.P.C. be ensured.

50. Let a certified copy of the judgment and order be sent to the Chief Judicial Magistrate
concerned for compliance report. The lower court records be returned for compliance.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.07.2016

BEFORE

THE HON'BLE AJAI LAMBA, J.
THE HON'BLE RAVINDRA NATH MISHRA-II, J.

Criminal Appeal No.- 578 Of 2014

State Of U.P. (State Appeal) ...Appellant
Versus
Ramjiwan & Ors. ...Respondents

Counsel for Appellant:
Govt. Advocate

Counsel for Respondents:
R.K.Tripathi

Code of Criminal Procedure, 1973 - Appeal Against Acquittal - Scope of Appellate Jurisdiction -
Double Presumption in favour of accused after acquittal - Appellate Court has full power to
review, re-appreciate and reconsider evidence - Interference warranted only when judgment is
palpably wrong, manifestly erroneous or demonstrably unsustainable - If two reasonable
conclusions possible, acquittal not to be disturbed - Upon acquittal by a competent court of law, the
accused enjoys a double presumption of innocence - firstly, the general presumption available to every
accused under the fundamental principle of criminal jurisprudence, and secondly, the reinforcement of that
presumption by the order of acquittal itself. While the Code of Criminal Procedure places no restriction on the
power of an appellate court to review, re-appreciate and reconsider the entire evidence on record, such power
must be exercised with circumspection. The appellate court must first determine whether the findings of the
trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable; only if this threshold is
met may it proceed to re-appraise the evidence and arrive at its own conclusion. Interference with an
acquittal is warranted only for compelling and substantial reasons. If two reasonable conclusions are possible
on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal. Relied
458 INDIAN LAW REPORTS ALLAHABAD SERIES

upon: Chandrappa v. State of Karnataka, (2007) 4 SCC 415; Sidhartha Vashisht @ Manu Sharma v. State
(NCT of Delhi), (2010) 6 SCC 1; State of U.P. v. Ram Sajeevan, (2010) 1 SCC 529.

Indian Penal Code, 1860 - S. 304B - Dowry Death - Ingredients - Death within seven years of
marriage in unnatural circumstances - Cruelty or harassment soon before death in connection
with demand of dowry - All ingredients must be cumulatively proved - Mere unnatural death
within seven years insufficient without proof of demand of dowry and harassment - To establish
the offence of dowry death under Section 304B IPC, the prosecution must prove cumulatively: (i) the death of
the woman occurred within seven years of marriage; (ii) such death was caused by burns, bodily injury or
otherwise than under normal circumstances; (iii) soon before her death, she was subjected to cruelty or
harassment by her husband or any relative of her husband; and (iv) such cruelty or harassment was for, or in
connection with, any demand for dowry. In the present case, although the deceased died within two years of
her marriage in unnatural circumstances, the prosecution failed to prove either the demand of dowry or
cruelty or harassment of the deceased in connection with any such demand soon before her death. Held: In
the absence of proof of demand of dowry and harassment for dowry, no presumption under Section 113B of
the Indian Evidence Act could be raised, and the acquittal recorded by the trial court was not liable to be
interfered with.

Indian Penal Code, 1860 - S. 304B - Demand of Dowry - Proof - General and vague
allegations insufficient - No specific amount of cash demand disclosed - Contradictions
between prosecution witnesses - Mediator of marriage not produced by prosecution but
examined as defence witness who denied demand - Demand of dowry not proved - The
prosecution alleged that the respondents-accused demanded a double bed and cash for purchase of a
motorcycle in dowry. However, no specific amount of cash was mentioned in the F.I.R. or prosecution
evidence, making the allegations general and vague in nature. PW-1 (father of the deceased) admitted in
cross-examination that the respondents-accused never demanded any dowry when he visited their house, and
that no dowry was demanded at the time of marriage. The statement of PW-2 (brother of the deceased) was
in material contradiction to PW-1. The mediator of the marriage, Bal Govind, though cited by the prosecution,
was not produced by it; he was instead examined as DW-1 by the defence and categorically denied that any
demand of dowry was ever made or that the complainant had ever complained to him of such demand. Held:
In view of the general and contradictory nature of the allegations, the contradictions in the statements of
prosecution witnesses, and the non-production of the mediator by the prosecution, the demand of dowry was
not proved. Relied upon: Rajendra Singh v. State of U.P., Criminal Appeal No. 2321 of 2009 (SC).

Indian Evidence Act, 1872 - S. 113B - Expression 'Soon Before Death' - Proximity Test - Not
synonymous with 'immediately before' - Live and proximate link between cruelty based on
dowry demand and death must be established - Inquest report showing contusions on body of
deceased not supported by postmortem report - Doctor not confronted with inquest report -
Harassment soon before death not proved - The expression 'soon before death' appearing in Section
304B IPC and Section 113B of the Evidence Act is laden with the notion of a proximity test but is not
synonymous with 'immediately before'. There ought to be a proximate and live link between the impact of
cruelty based on dowry demand and the consequential death. The expression cannot be fixed in a straitjacket
formula so as to be limited to any fixed time period. In the present case, though the inquest report disclosed
contusions on the body of the deceased below both knees, this was not supported by the postmortem report,
which disclosed only a ligature mark and found cause of death to be asphyxia due to hanging. The doctor who
conducted the postmortem (PW-3) was not confronted with the inquest report on this point. No prosecution
witness was examined who could prove cruelty or harassment of the deceased soon before her death. Held:
Harassment or cruelty soon before the death of the deceased in connection with any demand of dowry was
not established. Relied upon: M. Narayan v. State of Karnataka, (2015) 6 SCC 465.
7 All. State Of U.P. (State Appeal) Vs Ramjiwan & Ors.
459
Code of Criminal Procedure, 1973 - S. 174 - Inquest Report - Not substantive evidence -
Limited purpose - May only be used for contradicting witnesses to inquest - Entries regarding
mode or cause of assault not within scope of S. 174 - Discrepancy between inquest report and
postmortem report - Inquest report alone not sufficient to prove cruelty - An inquest report
prepared under Section 174 Cr.P.C. is not a piece of substantive evidence and its purpose is limited to
ascertaining whether a person died under suspicious or unnatural circumstances and, if so, the apparent
cause of death. The question of the details as to how, by whom, or under what circumstances the deceased
was assaulted is foreign to the ambit and scope of proceedings under Section 174. The inquest report may
only be utilised for contradicting the witnesses mentioned therein. Any omission or discrepancy in the inquest
report is not fatal to the prosecution case. In the present case, the contusions noted in the inquest report
found no support in the postmortem report, and the inquest report, being in contradiction to the postmortem
report, was not sufficient to establish that the deceased was subjected to any cruelty soon before her death.
Relied upon: Pedda Narayana v. State of Andhra Pradesh, AIR 1975 SC 1252.

Criminal Trial - Defence Witnesses - To be treated at par with prosecution witnesses -
Evidence not to be discarded merely because witness was produced by defence - Credibility and
trustworthiness to be assessed on same standard - The testimony of a witness does not become
tainted or unreliable merely by reason of such witness having been examined by the defence. Defence
witnesses are entitled to equal respect and equal treatment as prosecution witnesses, and the standard of
proof applicable to prosecution witnesses is equally applicable in assessing the credibility and trustworthiness
of defence witnesses. If the testimony of a defence witness does not fit in with the facts and circumstances of
the case, it may be rejected; but it cannot be rejected solely on the ground that the witness was produced by
the accused. In the present case, DW-1 Bal Govind, the mediator of marriage, who was cited as a prosecution
witness but not produced by the prosecution, was examined by the defence and his denial of any demand of
dowry or harassment was rightly taken into account by the trial court. Relied upon: Munshi Prasad v. State of
Bihar, (2002) 1 SCC 351; Alok Deb Roy v. State of Assam, 2003 (3) GLJ 592.

(Delivered by Hon'ble Ravindra Nath Mishra-II, J.)

1. This appeal has been preferred by appellant-State of U.P against judgment dated 18th
January, 2008 passed by Additional District and Sessions Judge, Sitapur in Sessions Trial No.
442/2006 'State Versus Ramjiwan and others' arising out of Crime No. 396 of 2005, under Sections
498A and 304B I.P.C. and Section 3/ 4 Dowry Prohibition Act, Police Station Hargaon, District
Sitapur whereby the respondent/accused have been acquitted of the charges levelled against them.

2. The brief facts, giving rise to this appeal, as deciphered from written complaint (Exhibit
Ka-1), are that deceased Asha Devi was married to respondent- accused Ramjiwan two years prior
to the date of occurrence. As per prosecution case the deceased used to complain of demand of
double bed and cash by her husband, father-in-law and mother-in-law in dowry whenever she came
to her parental house. Due to his poor economic condition, the complainant could not fulfill the
demand of her in-laws. His son-in-law Ramjiwan wanted some money to purchase motorcycle. Due
to harassment for dowry by her in-laws the deceased had come to her parental house. But
approximately 7-8 days before the date of occurrence, her husband, accused Ramjiwan came to her
and took her alongwith him. The deceased did not want to go to her matrimonial home, but the
complainant persuaded her to go. Thereafter, on 15.10.2005 the complainant received information
that she committed suicide. On inquiry from neighbours, it came to his knowledge that due to non-
460 INDIAN LAW REPORTS ALLAHABAD SERIES

fulfillment of demand of dowry, her husband Ramjiwan, father-in-law Mahesh and mother-in-law
Smt. Savitri harassed her and killed her. As per complainant's case the respondents-accused after
killing her, hanged her from ceiling. A written complaint (Exhibit Ka-1) was given by complainant
Sunder Lal in Police Station Hargaon on which first information report (Exhibit Ka-3) was lodged.
Corresponding entries were made in General Diary of police station, copy of which is Exhibit Ka-4.
Inquest report (Exhibit Ka-5) was also prepared by Naib Tehsildar, Hargaon, Sitapur. Thereafter,
autopsy was conducted on cadaver of the deceased and postmortem report was prepared by Dr. S.
P. Ojha, which is Exhibit Ka-2. During investigation, site-plan of place of occurrence was prepared
by the investigating officer, which is Exhibit Ka-12. Letter to Chief Medical Officer (Exhibit Ka6), Specimen of seal (Exhibit Ka-7), Photo of the dead body (Exhibit Ka-8), Challan of the dead
body (Exhibit Ka-9) and letter of R.I. (Exhibit Ka-10) are also on record. Prima-facie, case having
been found during investigation, charge-sheet against respondents-accused was prepared and filed
in the Court, which is Exhibit Ka-11. On the basis of charge-sheet, respondents-accused were
summoned and committed to the Court of Sessions where charges were framed against the
respondents-accused under Sections 498-A and 304-B Indian Penal Code and 3/4 Dowry
Prohibition Act. The charges were read-over and explained to the accused persons, which were
denied by them and they claimed to be tried.

3. To prove charges of demand of dowry and harassment of the deceased against the
accused, prosecution examined complainant Sunder Lal as PW-1 and Virendra Kumar as PW-2.
PW-1 has stated that the deceased Asha Devi was married to respondent-accused Ramjiwan two
years before the occurrence of the incident. Two months after the marriage when she came to her
parental home, she complained that her husband Ramjiwan, father-in-law Mahesh and mother-inlaw Smt. Savitri started putting pressure on her to bring double bed and cash for purchase of
motorcycle. He has also stated that the accused also stopped food and clothes to her. They
threatened to kill her in case demand is not fulfilled. He has also stated on oath that last time when
her husband Ramjiwan came to take her with him to her matrimonial house, she was not willing to
go as she had apprehension that they would kill her. Thereafter, he received information from one
Shri Shahnoor that respondent-accused killed her. When the complainant reached her house, the
respondent-accused were not present on the scene of occurrence and door of their house was also
closed. Then with the help of villagers the complainant entered the house and found his daughter
hanging from ceiling. There upon he dictated the complaint to Shri Ram Chander and went to
police station Hargaon to lodge first information report.

4. PW-2 Virendra Kumar, brother of the deceased, has also endorsed the statement of PW1 that the deceased got married to accused Ramjiwan two years before the incident, that
respondent-accused were demanding double bed and cash for purchase of motorcycle. He has also
stated that 7-8 days before the occurrence, when her husband Ramjiwan came to take her with him
to her matrimonial house, She was not willing to go, but he and family members persuaded her to
go to her matrimonial home, thereafter he received information about her death. He has also gone
to the house of accused persons, but the respondent-accused were not present there and the room
was closed from outside.
7 All. State Of U.P. (State Appeal) Vs Ramjiwan & Ors.
461
5. PW-3 Dr. S.P. Ojha has proved Exhibit Ka-2. According to him cause of death was
hanging. She had died on 15.10.2005 between 8 to 12 a.m due to asphyxia.

6. PW-4 is Constable 162 Shri Jyoti Narain Tiwari. He has proved Chik F.I.R. (Exhibit Ka3) and corresponding entries on General Diary (Exhibit Ka-4).

7. PW-5 Constable 272 CP Dipty Singh is witness of inquest report.

8. PW-6 Shri Satish Kumar Verma, Naib Tehsildar, who has prepared inquest report
(Exhibit Ka-5). He has also proved letter to Chief Medical Officer (Exhibit Ka-6), Specimen Seal
(Exhibit Ka-7), Photo of dead body (Exhibit Ka-8), Challan of dead body (Ehibit Ka-9) and letter
of R.I. Exhibit Ka-10.

9. PW-7 Rahul Kumar, Circle Officer and PW-8 Ram Charan. Circle Officer are
investigating officers, who after recording statement of the witnesses under Section 161 Cr.P.C.
prepared charge-sheet against respondent-accused, which is Exhibit Ka-11.

10. Statement of accused were recorded under Section 313 Cr.P.C. Wherein respondentaccused denied allegations made by the prosecution and has stated that his relations with the
deceased was always sweet and cordial. On request of the deceased itself he had taken her to her
parental home 6-7 days before the date of occurrence where she intended to go back to her
matrimonial home with accused Ramjiwan, turning down the request of her father to stay back till
'Karwachauth'. She has told her father that someone from her parental home must come to her
matrimonial home to take her to her parental house on 'Karwachauth' then only she would come
with 'Karwa'. It is also stated in the statement of Ramjiwan recorded under Section 313 Cr.P.C. that
her father has told her if she did not want to stay back then she should leave parental house and
should not show her face again. The deceased, therefore, was very much perturbed over this
episode and committed suicide by hanging herself. It is also stated in the statement that it was upon
his information that the complainant and his family members came to house of accused persons
where they demanded Rs.15,000/- to enter into compromise. A compromise was also written, but
on inability of respondent-accused to pay Rs.15,000/- this F.I.R. was lodged by the complainant.

11. In defence, DW-1 Bal Govind, DW-2 Gaffar Ali alias Pappu and DW-3 Roj Ali have
been examined from respondent-accused side.

12. On appreciation of evidence adduced by the prosecution as well as the respondentaccused, the trial Court found the charges not proved, holding, inter-alia, that prosecution has failed
to prove:-

a- demand of double bed and cash in dowry;

cruelty for non-fulfillment of dowry; and
462 INDIAN LAW REPORTS ALLAHABAD SERIES

c- cruel treatment of deceased in connection with dowry soon before her death.

Thus, trial Court acquitted respondent-accused of the charges levelled against
them. Feeling aggrieved by the judgment and order of acquittal passed by the trial Court the State
has preferred this appeal, which has come up before us for hearing.

13. Challenging the judgment and order of acquittal the learned Additional Government
Advocate Smt Smiti Sahay, appearing on behalf of the State, has argued that the trial Court has
failed to appreciate the evidence available on record. There is sufficient evidence on record to hold
respondent-accused guilty of the charges. It has also been argued that an appellate Court, hearing
appeal against acquittal, has full power to review, re-appreciate and reconsider the evidence
available on record. The learned trial Court has wrongly held that evidence to prove the demand of
dowry or cruelty in connection with dowry soon before her death available on record is insufficient.

14. Per contra, learned counsel appearing for the respondent-accused has argued that if the
conclusion reached by the trial Court is also possible on the basis of evidence available on record,
then the same cannot be categorized as unreasonable or perverse to justify interference by the
appellate Court. The trial Court has rightly reached the conclusion that the evidence to prove
demand of dowry and cruelty in connection with dowry soon before her death is absolutely lacking.

15. Before examining the spectrum of the prosecution case, we are required to deal with
argument of learned counsel for the respondents-accused regarding the scope and ambit of an
appeal against acquittal.

 Appeal against acquittal

1. It is settled principle of criminal jurisprudence that every person having been
presumed to be innocent unless he is proved to be guilty by a competent Court of law. After
acquittal by the trial Court this presumption of innocence is further strengthened and reaffirmed.
Thus, an accused enjoys double presumption in criminal jurisprudence after acquittal by a
competent court of Law as there is double presumption in favour of accused. It has been argument
of respondents-accused that judgment of acquittal can be interfered in appeal only if the judgment
is either perverse or not supported by reasons. This Court can not reverse the judgment of the Trial
Court as the view taken by the Trial Court was plausible view based on the evidence on record,
hence the finding of the Trial Court can not be overturned.

2. In State of U.P. Vs. Ram Sajeevan and others (2010) 1, SCC 529, Hon'ble
Apex Court is of the opinion that ordinarily a Court would be slow in interfering in the order of
acquittal. There is plethora of cases on the power of appellate Court to interfere in judgment of
acquittal, however, broader principles on the point was laid down by Hon'ble Apex Court in
Chandrappa and others v. State of Karnakata 2007 (4) SCC 415 in which having considered
almost all leading decisions on the point, following principles were culled out:
7 All. State Of U.P. (State Appeal) Vs Ramjiwan & Ors.
463

"(1) An appellate Court has full power to review, reappreciate and reconsider
the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate Court on the evidence before it may reach its
own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good
and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc.
are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal.
Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance
of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the
evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal,
there is double presumption in favour of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal jurisprudence that every person shall
be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on
record, the appellate court should not disturb the finding of acquittal recorded by the trial
court."

(Emphasis is given by us)

16. Similarly, in the case of Sidhartha Vashisht @ Manu Sharma vs State (Nct Of
Delhi), (2010) 6 SCC, Page 1, Hon'ble Apex Court taking similar view, has laid down following
guidelines:-

"(i) There is no limitation on the part of the Appellate Court to review the
evidence upon which the order of acquittal is found.

(ii) The Appellate Court in an appeal against acquittal can review the entire
evidence and come to its own conclusions.

(iii) The Appellate Court can also review the Trial Court's conclusion with
respect to both facts and law.

(iv) While dealing with the appeal preferred by the State, it is the duty of the
Appellate Court to marshal the entire evidence on record and by giving cogent and adequate
reasons set aside the judgment of acquittal.
464 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) An order of acquittal is to be interfered only when there are "compelling
and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling
reason for interference.

(vi) While sitting in judgment over an acquittal the Appellate Court is first
required to seek an answer to the question whether finding of the Trial Court are palpably wrong,
manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above
question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate
Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in
view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.

(vii) When the Trial Court has ignored the evidence or misread the material
evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc.,
the Appellate Court is competent to reverse the decision of the Trial Court depending on the
materials placed."

17. Thus, if the judgment of trial Court is found to be erroneous and against the settled
principle of law then appellate Court can interfere in it. Keeping in view the above broad principles
laid down by Hon'ble Apex Court, this Court is expected to examine the impugned judgment with
reference to the evidence adduced by the prosecution and defence.

 Case set up by the prosecution

18. As per prosecution case, the deceased was married to respondent-accused Ramjiwan
two years before her death. After her marriage, her husband, father-in-law and mother-in-law
demanded double bed and some cash to purchase motorcycle. When this demand was not fulfilled,
they started harassing her and on 15th October, 2005 the informant, father of the deceased, received
information that she was killed and hanged with ceiling.

19. In our society, dowry system is a big menace. In order to curb this social menace,
Section 304-B Indian Penal Code was enacted. Section 304-B Indian Penal Code and Section 113B Indian Evidence Act read as under:-

304B Indian Penal Code:

"(1) Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years of her marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by her husband or any relative of
her husband for, or in connection with, any demand for dowry, such death shall be called "dowry
death", and such husband or relative shall be deemed to have caused her death.

Explanation. For the purposes of this sub-section, "dowry" shall have the same
meaning as in section 2 of the Dowry Prohibition Act, 1961(28 of 1961).
7 All. State Of U.P. (State Appeal) Vs Ramjiwan & Ors.
465
(2) Whoever commits dowry death shall be punished with imprisonment for a term
which shall not be less than seven years but which may extend to imprisonment for life."

113B Indian Evidence Act:

Presumption as to dowry death.--When the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death such woman has
been subjected by such person to cruelty or harassment for, or in connection with, any demand for
dowry, the Court shall presume that 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 Indian Penal Code (45 of 1860)."

20. The ingredients of the offence under Section 304B Indian Penal Code may be stated as
under:-

"a. death of a woman must have occurred within seven years of her marriage;

b. such death must have been caused by any burn or bodily injury or her death
must have occurred otherwise than under normal circumstances;

c. soon before her death, she must have been subjected to cruelty or harassment by
her husband or any relative of her husband; and

d. such cruelty or harassment must be in connection with the demand for dowry.

 Death within seven years of marriage

21. Now coming to the facts of the present case, it is not disputed that the deceased was
married to accused Ramjiwan before two years of her death. F.I.R. (Exhibit Ka-1) also states that
two years before her death she was married to Ramjiwan. Accused Ramjiwan has admitted this fact
in his statement under section 313 Cr PC. It is also not disputed that her death has occurred
otherwise than under normal circumstances. Now questions, which remain to be seen are whether
there was any demand of dowry; and whether she was subjected to cruelty or harassment for dowry
or in connection with any demand of dowry.

 Demand of Dowry

22. According to prosecution case, respondents-accused started demanding double bed and
cash for purchase of motorcycle in dowry, after her marriage with respondent-accused Ramjiwan.
Prosecution has examined informant Sunder Lal, who is father of the deceased and PW-2 Virendra
Kumar, who is brother of the deceased.
466 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Though PW-1 Sunder Lal has stated in his examination-in-chief about demand of
dowry, but in his cross-examination he has admitted that the respondents-accused never demanded
any dowry from him when he visited their house. He has also admitted that at the time of marriage
also, there was no demand of dowry. The statement of PW-2 Virendra Kumar is in contradiction to
PW-1. PW-2 has stated in his examination-in-chief itself that when his father Sunder Lal came to
know about demand of dowry, he went to matrimonial house of the deceased and inquired about
the demand. Respondents-accused again demanded double bed and cash to purchase motorcycle
from his father Sunder Lal. His father requested many times, but the respondents-accused did not
pay any heed, then his father came back. PW-1 has stated that he complained it to Shri Bal Govind,
who was mediator in marriage. But Shri Bal Govind has not come in the witness box to substantiate
the case of prosecution. He has been produced by respondents-accused in their defence wherein he
has denied this fact that respondents-accused ever demanded any dowry or the informant ever
complained him in respect of demand of dowry.

24. It has been argued by the learned counsel for the respondents that the allegations made
in the F.I.R. are also very general in nature. No amount of cash has been disclosed, which was
demanded by the respondents-accused in dowry. He has cited Criminal Appeal No. 2321 of 2009
Rajendra Singh Vs. State of U.P. where Hon'ble Apex Court has held that any demand for money
on account of some financial exigency or for purchasing manure cannot be termed as a demand of
dowry. Thus, keeping in view the general and contradictory nature of demand, contradictions in
statement of witnesses on the point of demand and non-production of any independent witness
though the mediator could have been produced by the prosecution, it is difficult to hold that the
respondents-accused demanded double bed and cash to purchase motorcycle in dowry.

 Witnesses produced by the prosecution and defence stand on the same footing.

25. The learned Additional Government Advocate has argued that the trial Court has
wrongly drawn adverse inference against the prosecution for not producing material witness Sri Bal
Govind and relying upon the testimony of Shri Bal Govind DW-1 who has been examined as DW1 on behalf of the respondents-accused. Appellant-State has argued that Bal Govind has been won
over by the accused. Hence his statement can not be given same weight as that to prosecution
witness. The trial Court has expressed the view that the testimony of DW-1 Bal Govind cannot be
discarded only because he has been produced by the respondents-accused. In this regard
Hon'bleHigh Court of Gauhati in Alok Deb Roy and others Vs. State of Assam reported in 2003
(3) GLJ 592, has observed:-

"Evidence of defence witnesses has to be treated at par with that of prosecution
witnesses. Court should not proceed in premises that it is a tainted one. Standard of proof
prescribed for prosecution is not applicable in assessing defence evidence. If testimony of defence
witness does not appear to fit in with facts and circumstances of case, the same has to be rejected."
26. The above view of Gauhati High Court finds approval of Apex Court in Munshi
Prasad and others Vs. State of Bihar, (2002) 1 SCC 351, which can be extracted as below:-
7 All. State Of U.P. (State Appeal) Vs Ramjiwan & Ors.
467

"The evidence tendered by the defence witnesses cannot always be termed to be a
tainted one by reason of the factum of the witnesses being examined by the defence. The defence
witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of
credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with
that of the prosecution. Lapse on the part of the defence witnesses cannot be differentiated and be
treated differently than that of the prosecutor's witnesses."

 Soon before her death

27. The learned Additional Government Advocate Ms. Smiti Sahay has argued vehemently
that soon before her death the deceased was subjected to harassment in connection with demand of
dowry. M. Narayan Vs. State of Karnataka (2015) 6 SCC 465 is relied on by the Learned
Additional Government Advocate in which explaining the word "soon before" Hon'ble Apex Court
has observed:

"33. Qua the words "soon before" appearing in Section 113B of the Evidence Act,
1872 and Section 304B IPC, it is no longer res integra that the same is laden with the notion of
proximity test, but not synonymous with the term "immediately before". It has been inter alia stated
also in Surinder Singh v. State of Haryana that though the applicability of this expression would
obviously depend on the facts and circumstances of each case, it ought to mean that the time
interval cannot be stretched to any period. This Court in Kans Raj v. State of Punjab, while
dwelling upon the import of the words "soon before death" observed that there ought to be a
proximate and live link between the impact of cruelty based on dowry demand and the
consequential death. That these words, however, should receive a fair and pragmatic construction
keeping in mind the great social evil that has led to the enactment of Section 304B was highlighted
by this Court in Sher Singh v. State of Haryana. In Dinesh v. State of Haryana, it was underscored
that the expression "soon before" cannot be lodged in a straitjacket formula so as to fix any time
for its relevance and applicability."

28. Thus, the Hon'ble Apex Court has distinguished word "soon before" and "immediately
before" and proximity test has been held to be applied in such cases.

29. The learned Additional Government Advocate has pointed out towards some
contusions below both the knees of deceased appearing in inquest report (Exhibit Ka-5) and has
argued that it is sufficient to indicate that soon before her death the deceased was subjected to
harassment.

30. The argument of learned Additional Government Advocate is not supported by postmortem
report and statement of doctor, who conducted the postmortem examination as except one ligature mark no
external injury has been found at the postmortem.
 Inquest Report
468 INDIAN LAW REPORTS ALLAHABAD SERIES

31. Inquest report is not a piece of substantive evidence and it has been a constant view of Hon'ble
Apex Court that it can only be utilized for contradicting witnesses to inquest examined during trial. The
question regarding details as to how the deceased was assaulted or who assaulted him or under what
circumstance he was assaulted is matter not falling within the ambit and scope of the provisions of Section
174 Cr.P.C. The purpose of preparing the inquest report is only for making a note in regard to identification
marks of the deceased. In Pedda Narayana and others Vs. State of Andhra Pradesh AIR 1975 Supreme
Court, Page 1252, discussing the provisions contained in Section 174 Cr.P.C. the Hon'ble Apex Court has
observed:-

"A perusal of this provision would clearly show that the object or the proceedings under s.
174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death
and if so what is the apparent cause of the death. The question regarding the details as to how the deceased
was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be
foreign to the ambit and scope of the proceedings under s. 174. In these circumstances, therefore, neither in
practice nor in law was it necessary for the police to have mentioned these details in the inquest report. The
High Court has adverted to this point and has rightly pointed out as follows: "The learned Sessions Judge
had also stated that the details regarding the weapons armed by each of the accused and which accused had
attacked on which part of the body of the deceased are not found in the inquest report and from this he
sought to draw the inference that the statements of the witness now, found recorded under section 161 Cr.
P.C. could not have been the statements then read over to the panchayatdars. Column 9 of the inquest report
shows that the injuries on the deceased were caused by knives and daggers. Column 11 (a) shows that A1 to
A3, A4 and A5 with 3 strangers came in the jeep driven by A4, got down the jeep, stabbed the deceased with
daggers and knives, pushed P.W. 1, lifted the deceased, put him in the jeep, and drove' away the jeep and
death was the result of the injuries inflicted. The object of holding any inquest as can be seen from Section
174 Cr.P.C. is to find whether a person died a natural death, or a homicidal death or due to suicide. It was
therefore not necessary to enter all the details of the overt-acts in the inquest report. From the mere fact that
these details were not noted in the inquest report it cannot be concluded that the statements given by the
witnesses and read over at the inquest did not contain those overt-acts and the statements now produced are
those of the witnesses which were taken later."

32. From the above, it is clear that any entry made in inquest report prepared under Section 174
Cr.P.C. has no evidentiary value as such. The object of the proceeding is merely to ascertain whether a
person has died in a suspicious circumstance or unnatural death, if so what is apparent cause of death and the
inquest report may be utilized for contradicting the witnesses mentioned in inquest report. Any omission or
discrepancy in the inquest is not fatal to the prosecution's case.

33. In the instant case, though in the inquest report contusions have been shown on the body of the
deceased below her knees, but it does not find support from postmortem report. Even the doctor, who had
conducted postmortem has not been confronted with inquest report on this point. The statement of doctor
(PW-3) and postmortem report show only suicidal death of Smt. Asha Devi, the deceased. In these
circumstances, inquest report in contradiction to the postmortem report is not sufficient to indicate that the
deceased was subjected to any kind of cruelty soon before her death.
7 All. Smt. Shyama Devi & Ors. Vs Smt. Chanda Devi
469
 Harassment

34. Harassment or cruelty is a question of fact which is to be proved by examination of witnesses,
but the prosecution had made no effort to examine any witness, who can prove harassment of deceased by
accused persons, contradictory to it the statement of PW-1 Sunder Lal and PW-2 Virendra Kumar , father
and brother of the deceased respectively, so that the deceased was happy in her matrimonial house. She used
to come to her parental house by herself along with her husband and after staying there overnight returned to
her home. PW-1 in his examination-in-chief himself has stated that the deceased came to him along with her
husband and left with him in the next morning. No occasion has been quoted by PW-1 where her husband or
her inlaws had refused to send her.