In CRA-S-1744-SB-2003(O&M)-PUNJ HC-Merely because of silence of accused in his statement u/s 313 CrPC, execution of sale deeds proved by additional evidence cannot be disbelieved: P&H HC Justice Vivek Puri [18-05-2022]

Read Order: Rakesh Kumar v. State of Punjab

Monika Rahar

Chandigarh, May 20, 2022: The Punjab and Haryana High Court has recently held that merely because the accused (appellant) remained silent in his statement recorded under Section 313 of the CrPC, it cannot be a ground to disbelieve the execution of the sale deeds, which were proved by way of additional evidence, particularly because, it cannot be said that the duly registered documents could have been manufactured at a subsequent stage to create false evidence. 

The Bench of Justice Vivek Puri added, “Moreover, the standard of proof required to establish a defence version is the preponderance of probability.”

Here, the case of the prosecution, in a nutshell, was that the marriage between the appellant and the complainant’s daughter was solemnized in 1994 and in 2000 (after six years) she became a victim of dowry death. The complainant (father of deceased) claimed that the appellant along with other family members was raising demand of dowry including Rs. 1 lakh in cash and a motorcycle. A sum of Rs. 50,000/- was paid and a request was made to the appellant and other family members not to mal-treat the deceased. However, the mal-treatment continued and it resulted in the death of the deceased. 

Initially, the appellant and his brother along with their wives were brought into the sweeps of this case, but the charge sheet was presented only against the appellant and one of his brothers. Since the offence under Section 304-B IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions by the Judicial Magistrate First Class.

A prima facie case under Section 304-B IPC and in the alternative under Section 302 IPC was made out against the accused. The charge was accordingly framed. In order to substantiate its case, the prosecution examined seven witnesses while the defence examined five. The Trial Court eventually acquitted the appellant’s brother by extending the benefit of the doubt, whereas the appellant was held guilty and convicted under Section 304-B IPC and was sentenced to undergo rigorous imprisonment for a period of 8 years and to pay a fine to the tune of Rs. 5,000/-. 

During prosecution evidence, the complainant and his son reiterated the above-stated facts while Dr Sushil Gupta, a member of the Medical Board which conducted the post mortem examination on the body of the deceased examined the cause of the death to be Organo Phosphorous group of Insecticide poisoning. The accused on the other hand deposed that he did not make any demand for dowry and that he came from a well to do family. 

The case of the Counsel for the petitioner was that no reliable evidence was placed to indicate the date of marriage be it in the form of any document with regard to the booking of the venue of the marriage or examination of any witness. Also, the Counsel argued that the complainant was making vague accusations of dowry demand without examining the relative from whom he borrowed the sum of Rs. 50,000/- for the purpose of giving dowry. 

Also, reflecting upon the appellant’s background, the Counsel argued that the appellant was the owner of a car and a two-wheeler at the time of the occurrence. He was having a flourishing business and was an income tax assessee, whereas the father of the deceased was running a radio/TV mechanic shop and was not even assessed to income tax or sale tax and the personal merit of the deceased was the primary consideration for marriage. The appellant belongs to a well-off family and there was no occasion to raise any demand for dowry. 

Also, the Court submitted that the petitioner and his family were purchasing property in the name of the daughters-in-law of the family to indicate that cordial relations existed among family members. 

The question that arose for the Court’s consideration was as to whether the case under Section 304-B IPC was made out against the appellant or not. 

After perusing the provisions of Section 304-B IPC, the Court observed that in the event of proof of the fact that soon before death, the deceased was subjected to cruelty or harassment by her husband or any of the relatives for or in connection with any demand of dowry and the death has occurred otherwise than under normal circumstances, within a period of seven years of marriage, such death shall be called “dowry death”. 

At this stage, the Court mentioned that presumption has to be raised with regard to the dowry death as per the provisions of Section 113-B of the Indian Evidence Act. 

On a conjoint reading of Section 304-B IPC and Section 113-B of the Indian Evidence Act, the Court identified the following as the essential ingredients pertaining to the offence enumerated above, the first ingredient being that the death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances; such death should have occurred within seven years of her marriage; she must have been subjected to cruelty or harassment by her husband or any relative of her husband soon before her death, and such cruelty or harassment should be for or in connection with demand of dowry.  

On the controversy surrounding the date of marriage, the Court, in view of the statements of the complainant and his son (brother of the deceased) clubbed with the copy of the wedding invitation card and silence on the part of the appellant with regard to the date of marriage, concluded that the marriage was solemnized on December 13, 1994.  

Under these circumstances the Court added that death occurred on September 16, 2000, i.e. within a period of seven years from the date of marriage and that too due to organo phosphorous poisoning indicating the death to be otherwise than under normal circumstances. 

On the question of whether the deceased was harassed or not, the Court observed that prior to the lodging of the present FIR, no complaint was made at any forum or the matter with regard to the demand of dowry and subjecting the deceased to cruelty was reported at any forum. Also, the Court was of the view that the allegations by the complainant on demand of dowry of Rs. 10,000/- was a result of an afterthought and the same cannot be accepted to be true and correct being an improved version. Similarly, the Court also did not find substance in the allegation of dowry demand of Rs. 1 lac and the subsequent payment of Rs. 50,000/-.

Additionally, while negating the allegation of the complainant governing demand for a motorcycle, the Court opined that the appellant was adequately well-off and it sounded unnatural and improbable that he would have raised a demand for a motorcycle particularly when he was already having a car and two-wheeler with him.  

Against this backdrop, the Court added that had the deceased been harassed or subjected to cruelty either by the appellant or his relatives, either the deceased or the relatives from her parental side would have shared about such a state of affairs with the brother of the deceased. 

Also, the Court observed that the said two sale deeds (duly registered) indicated that the properties were purchased in the name of three daughters-in-law of the family including the deceased. Thus, the Court held that merely because the appellant remained silent in his statement recorded under Section 313 of the Code cannot be a ground to disbelieve the execution of the sale deeds, which have been proved by way of additional evidence, particularly because, it cannot be said that the duly registered documents could have been manufactured at a subsequent stage to create false evidence. 

Moreover, it was asserted that the standard of proof required to establish a defence version is a preponderance of probability. “Although the death has occurred otherwise than under normal circumstances within a period of seven years, there is lack of satisfactory and reliable material to indicate that the deceased was subjected to cruelty or harassment by the appellant at any point of time in connection with the demand of dowry. As such, the presumption under Section 113-B of the Indian Evidence Act cannot be raised”, the Court held while allowing the appeal.