Reversing the decision of Badaun District Court, the Allahabad High Court has ordered acquittal of the petitioner, setting aside his conviction on the charge of killing his wife.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Ajai Tyagi passed this order while hearing a Criminal Appeal filed by Anil.
The appeal has been preferred against the order dated 08.11.2016 passed by Additional Sessions Judge/Special Judge, E.C Act, Budaun in Session Trial, arising out of Case, Police Station- Ughaiti, District- Budaun, whereby the appellant was convicted and sentenced under Section 302 IPC for life imprisonment along with fine of Rs 20,000/-, in default of the payment of fine to further undergo one year simple imprisonment.
The facts of the case are that a written report is filed at Police Station- Ughaiti, District- Budaun with the averment that the marriage of sister of the informant was solemnised with appellant Anil, in which dowry was given as per his financial condition but the in-laws of his sister started demanding Rs 50,000/- as additional dowry.
On 24.06.2013 at about 4:00 pm he received a call from the neighbour of his sister that his sister had been beaten to death by her in-laws for want of dowry. On hearing the news, he reached the matrimonial home of his sister along with other family members and saw that his sister was beaten to death by her in-laws by way of administering the poison.
On the basis of aforesaid written report, a first information report was registered as Case u/s 498A, 304B of IPC and under Section 3/4 Dowry Prohibition Act.
Investigation was taken up by the IO. He visited the spot and prepared the site-plan. The statements of witnesses were recorded u/s 161 Cr.P.C by the investigating officer. Inquest proceedings had taken place and an inquest report was prepared.
The post mortem of the dead body was conducted and a post mortem report was prepared.
The cause of death was not ascertained in post mortem and, hence, Viscera was preserved and sent to the Forensic Science Laboratory for chemical examination. From where the report was received, in which organophosphorus insecticides poison was found in Viscera.
After completion of investigation, the FIR culminated into a charge sheet against accused Anil, Lalu Prasad and Jaleshwari.
The trial court framed charges against all the accused persons u/s 304B IPC with alternative charge u/s 302 IPC and u/s 498A IPC and 3/4 Dowry Prohibition Act. Accused persons denied the charges and claimed to be tried.
Counsel for the appellant submitted that appellant has been falsely implicated in the case.
This is a case of no evidence. Prosecution has examined seven witnesses of fact in this case, but nobody has supported the prosecution case and they have been declared hostile, even after cross-examining by the State, no evidence has emerged, which could go against the appellant.
All the witnesses of fact have stated that there was no demand of dowry on the part of the appellant.
It is submitted by the counsel for the appellant that in fact the deceased consumed insecticide, which was taken by her mistakenly in the place of medicine. This stand is taken by the appellant in his statement u/s 313 CrPC also.
It is next submitted by the counsel for the appellant that the trial court has also opined that no case of dowry death is made out against the appellant, but he was convicted with the aid of Section 106 of Indian Evidence Act and circumstantial evidence, which is not applicable in this case.
Counsel further submitted that prosecution has not proved that at the time when the deceased consumed insecticide, he was in the house. It is not sufficient to establish that the accused and deceased used to reside in the same house.
Moreover, when the learned trial court has opined that this is not the case of dowry death and no demand of additional dowry is proved, then the motive is also not proved, which is essential circumstance in the case of circumstantial evidence.
There is no eye-witness in this case and prosecution has not brought any evidence with regard to the fact that poison was administered to the deceased by the appellant. Hence, the trial court has committed a grave error in convicting the appellant for the offence u/s 302 IPC and appeal is liable to be allowed.
AGA opposed the submissions made by the counsel for the appellant and contended that it is not denied by the appellant that he was not living with the deceased.
Hence, the trial court has not committed any error in convicting the accused by way of provision of Section 106 of Indian Evidence Act because, in case when the deceased and appellant were residing together, the burden was on the appellant to explain and prove that he did not administer the poison, which he could not prove.
With regard to the fact of demand of additional dowry, the AGA submitted that the witnesses of fact were won over by the accused. Hence, they did not support the prosecution case. Hence, there is no illegality or infirmity in the impugned judgement, which may call for any interference by the Court.
“In our case, it is an established fact that the appellant and his deceased wife used to reside in the same house. Hence, the burden to prove factum of the death of the deceased cannot be shifted on the shoulders of the appellant unless the prosecution first of all discharges its burden by proving the fact that at the time of alleged occurrence or at the time when the deceased consumed the poison, the appellant was also inside the house.
“The AGA, in this regard, has contended that appellant has not taken the plea that he was not in the house when the poison was consumed by the deceased or administered to her forcibly but this was the negative burden on the appellant accused.
“The prosecution has not brought forward any evidence which could at least establish the fact that at the time of occurrence, the appellant was inside the house. Hence, there is no applicability of Section 106 of Indian Evidence Act in this case.
“In view of aforesaid discussion, we are of the considered view that prosecution has not discharged its burden to prove the case beyond reasonable doubt and no reverse burden could be placed on the accused with the aid of Section 106 of Indian Evidence Act when the prosecution has not discharged its burden first.
“Hence, the trial Judge has not appreciated the evidence in right perspective and wrongly convicted and sentenced the appellant. We are unable to concur with the findings recorded in impugned judgement and benefit of doubt is given to the appellant. Consequently, the appeal is liable to be allowed,” the Court observed while allowing the appeal.
“Conviction and sentence of appellant u/s 302 of IPC is hereby set aside. The appellant be set free forthwith, if not wanted in any other case. Fine be refunded if already deposited,” the Court ordered.