-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
JUDGMENT
Mahender Kumar & ORS.versus State of Rajasthan D.B.Criminal Appeal No.914/2004 against the judgment dated 2.9.2004 passed by Additional Sessions Judge (Fast Track).Anupgarh, District Sriganganagar, in Sessions Case No.24/2004.
Date of Judgment :: 18th February, 2014 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE ATUL KUMAR JAIN Mr.Vineet Jain, for the appellants.
Mr.K.R.Bishnoi, Public Prosecutor, for the State.
Mr.M.K.Garg, for the complainant...BY THE COURT : (PER HON'BLE MATHUR,J.) The Additional Sessions Judge (Fast Track).Anupgarh, District Sriganganagar, by judgment impugned dated 2.9.2004, convicted the accused appellants for the offences punishable under Sections 304-B and 498-A Indian Penal Code and sentenced them as under:- u/S.304-B IPC – Life imprisonment with fine of Rs.10,000/- and in default of payment of fine to further undergo one year's rigorous imprisonment.
-2- u/S.498-A IPC – Three years rigorous imprisonment with fine of Rs.1000/- and in default of payment of fine to further undergo two months rigorous imprisonment.
Aggrieved by the conviction recorded and sentence awarded this appeal is preferred.
As per the prosecution a written report (Ex.P/1) was submitted by Shri Balram on 5.1.2004 at Police Station Ramsinghpur with assertion that his daughter Kamlesh entered into a wedlock with Mahendra Kumar son of Sohanlal about four years earlier.
The in-laws of Kamlesh started demanding money just after a year of marriage, but they did not take any action being advised by the relatives.
About 20 days earlier Kamlesh came to Rawla, her parental house, and disclosed to her mother that her father-in-law, mother- in-law, husband Mahendra and younger brother-in-law Chandrabhan used to torture her for demand of money.
Chandrabhan also keep bad eye on her.
Complainant Balram and his wife consoled Kamlesh and advised to stay with in- laws being mother of a girl child of three years and also having pregnancy of seven months.
On 29.12.2003 Kamlesh went to her in-laws house.
The complainant also accompanied her and after leaving Kamlesh there returned to Rawla.
On 5.1.2004 at about 10:30 AM, a telephonic message was received at the house of Balraj Singh Barad, a neighbour of the complainant, about death of Kamlesh due to rupture in a artery of head.
The complainant alongwith Balraj Singh Barad, Deshraj and Sushil went to the house of the accused persons, where dead body of Kamlesh was lying on the floor.
-3- She was having a head injury, appeared us to be given by some sharp edged weapon.
On asking, her in-laws accepted their error.
Complainant Balram was having apprehension about killing of his daughter by father-in-law Sohanlal, mother-in-law Roshni Devi, husband Mahendra Kumar and brother-in-law Chandrabhan.
On basis of the written report (Ex.P/1) a case was registered and investigation commenced.
During the couRs.of investigation, site plan and inquest were prepared.
Blood stained soil and hairs of deceased were taken from the place of incident and the corpus of Smt.
Kamlesh was subjected to an autopsy, report of that is available on record as Ex.P/22.
After arrest of the accused persons a disclosure was made by accused Chandrabhan and on basis of that a 'kassi' was recovered, that was sent for its serological examination to the Forensic Science Laboratory alongwith several other articles including the shirt of accused Chandrabhan and the blood stained clothes of deceased Kamlesh.
The report of the Forensic Science Laboratory is available on record as Ex.P/34.
After completing the investigation, a police report was filed and the court after providing an opportunity of hearing to the accused persons framed a charge against the accused persons for commission of offences punishable under Sections 304-B and 498-A Indian Penal Code.
On denial fo the same, trial commenced as desired.
-4- The prosecution supported its case with the aid of 17 witnesses and by getting 34 documents exhibited.
Six articles were also produced in evidence.
Opportunity was also given to the accused persons to explain adveRs.circumstances appearing in prosecution evidence.
The accused pleaded innocence and termed the adveRs.circumstance as false and concocted.
Accused Chandrabhan while pleading his innocence stated that on 4.1.2004 he received an injury on his hand while doing some construction work.
As a consequent to the injury his shirt received some blood stains.
ON the day of incident he went for morning walk at about 06:00 AM.
His brother Mahendra, who resides at 12 GB, was there.
His father was in agriculture fields.
On basis of his information no recovery was made by the police.
Accused Mahendra also stated that he was residing at 12 GB and came to his native placewith his wife to see his mother who was suffering from paralysis.
He also pleaded his alibi.
In defence testimony of Shri Omprakash (DW-1).Shrawan Kumar (DW-2) and Kishan Singh Chhabra (DW-3) was examined and eight documents (Ex.D/1 to Ex.D/8) were exhibited.
The trial court after examining the entire evidence available on record and considering the arguments advanced by learned Public Prosecutor and counsel for the defence, held the accused persons guilty for the charges levelled, accordingly, recorded conviction and awarded sentence.
-5- In appeal, the argument advanced by counsel for the appellants is that no evidence is available on record to arrive at a conclusion that accused Sohanlal and Mahendra Kumar were involved in commission of any offence punishable under Section 304-B Indian Penal Code.
So far as accused Chandrabhan is concerned, the evidence against him too is not definite and that in no manner indicates his involvement in the crime in question.
It is asserted that no evidence as a matter of fact is available on record to arrive at a conclusion that any demand was made by accused persons for dowry as interpreted under Section 2 of the Dowry Prohibition Act, 1961.
With regard to the conviction recorded for the offence punishable under Section 498-A Indian Penal Code, it is asserted that the prosecution failed to establish any cruelty on part of the accused persons with deceased Kamlesh to meet any unlawful demand for any property or valuable security or on account of failure by her to meet the demand.
Much emphasis is given by learned counsel that the 'kassi' recovered at the instance of accused Chandrabhan was sent for its serological examination, but determination of blood group on that remained inconclusive, as such, on basis of recovery of this weapon, accused Chandrabhan could have not been connected with the crime in question.
Per contra, as per learned Public Prosecutor, the trial court considered the entire evidence minutely and arrived at a definite conclusion with the aid of material available and that does not suffer from any error.
It is pointed out that death of Smt.
Kamlesh was homicidal one -6- and the accused persons failed to explain as to how that occurred.
It is also pointed out that the 'kassi' recovered at the instance of accused was having blood stains and those were found to be of human origin.
No explanation is given as to how that 'kassi' was having blood stains of human origin.
Heard learned counsel for the appellants, learned Public Prosecutor and examined the record in lucid.
As per the medical evidence available on record, the cause of death of Smt.
Kamlesh was haemorrhagic shock due to severe head injury.
The details of the injuries found on the corpus, as referred in the postmortem report, are as under:- 1.Incised wound on scalp 7”.
x 2”.
(Bony deep) direction horizontal 2-3 cm above hair line in parietal region extended upto middle of the occipital region.
2.Incised wound over scalp starting from right side of forehead extending towards left ear dividing part of left ear then extending upto right occipital region.
This is about 40 cm in length.
In this injury skin, scalp, bone all meningeal lagers completely divided and brain is lying in craineal cavity visible.
3.Some amount of clotted blood present in craineal cavity.
4.Lacerated wound present left side of face near chin and left side of mandible 8 x 1-3 cm with bony deep.
5.Lacerated wound 2 cm long on left side of neck subcutaneous deep.
-7- Before discussing the arguments advanced in light of the evidence available, it shall be appropriate to refer that Section 304-B Indian Penal Code can be attracted “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”.In other words, the ingredients to constitute an offence punishable under Section 304-B Indian Penal Code are as under:- 1.where the death of a woman is homicidal or suicidal; 2.the death is caused within a period of seven years of her marriage; 3.such woman should have been subjected to cruelty or harassment by her husband or any relative soon before the death; and 4.such cruelty or harassment should be or in connection with any demand of dowry.
While examining a case relating to offence under Section 304-B Indian Penal Code, the Court is also having assistance of Section 113-B of the Indian Evidence Act, 1872, that pertains to presumption as to dowry death and according to it “when the question is whether a person has committed the dowry death of a woman and it is shown that -8- 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”.The presumption is given with a view to extend an edge to consideration of the circumstances existing, as in the cases of dowry death its too difficult to have direct evidence.
The law by application of presumption is taking necessary care of the women in Indian matrimonial system, where the ailment of dowry plays a vital role in matrimony.
A very important expression used in Section 304-B Indian Penal Code and Section 113-B of the Indian Evidence Act is “soon before death”.The expression aforesaid has been explained by Hon'ble the Supreme Court in several cases including Kaliya Perumal v.
State of Tamilnadu (AIR2003SC3828 and Yashoda v.
State of Madhya Pradesh (2004 (3) SCC98.
As per Hon'ble the Apex Court the words “soon before death”.
cannot be limited by fixing time limit.
It is left to be determined by the Courts depending upon the facts and circumstances of the case.
However, the time interval between the concerned cruelty, harassment and the death in question should not be too long.
There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death.
If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
-9- In the case in hand the two ingredients i.e.the death of woman is for unnatural reasons and that was caused within a period of seven years of her marriage are admitted, hence the issues require further determination are of subjecting the deceased with cruelty or harassment by the accused persons soon before the death and extension of such cruelty or harassment for or in connection with any demand of dowry.
The prosecution supported the charge relating to cruelty and harassment by producing Shri Balram (PW-1).father of deceased; Shri Balraj Singh (PW-2).a neighbour of Balram; Shri Ranjeet Ram (PW-3).other son-in-law of of Balram; Shri Sushil Kumar (PW-4).brother of deceased Smt.
Kamlesh; Shri Jagjeet Singh (PW-6).a neighbour of accused persons; Smt.
Savitri Devi (PW-8).mother-in-law of deceased Smt.
Kamlesh and Shri Ganpat Ram (PW-9).a neighbour of the accused persons.
Shri Ganpat Ram(PW-9) and Shri Jagjeet Singh (PW-6) did not support the prosecution case, thus, they were declared hostile.
As per Shri Balram (PW-1).his daughter Kamlesh entered into a wedlock with Mahendra Kumar son of Sohanlal.
At the time of marriage adequate dowry was given.
Kamlesh was having a daughter of three years and she was pregnant at the time of her death.
Attitude of her in-laws for a period of about a year after marriage was reasonable, however, subsequent thereto Mahendra Kumar, Sohanlal, Roshni Devi and Chandrabhan used to taunt her for not giving adequate dowry.
Whenever Kamlesh was coming to her -10- parental house, she used to convey the attitude of her in- laws.
This witness made his efforts to pacify the in-laws of his daughter but of no consequence.
About 20 days earlier to the date of incident Kamlesh came to her maternal house and conveyed that her mother-in-law, father- in-law, husband and brother-in-law have threatened her to return to her in-laws house only after satisfying their demand.
This witness then went with deceased Kamlesh to her in-laws house on 28.12.2003.
He stayed there in night and made his efforts to settle the circumstances.
As per this witness, accused persons made demand for dowry and also abused him.
On 5.1.2004 a telephonic information was received at the house of Balraj Singh about the death of Kamlesh.
Suffice to mention that the weapon of offence 'kassi' was also recovered by the investigating agency in presence of this witness.
Shri Balraj Singh (PW-2).a neighbour of Balram (PW-1).stated that about 20 days earlier to the date of incident in question, Kamlesh came to her parental house and disclosed to his wife about the ill-treatment exstended by her in-laws for demand of dowry.
Shri Ranjeet Ram (PW-3).other son-in-law of Balram (PW-1).stated that his sister Kamlesh once or twice stated him that her in-laws used to harass her for demand of dowry.
Shri Sushil Kumar (PW-4).brother of deceased Kamlesh, stated that the attitude of the in-laws of Kamlesh -11- was reasonable for a period of about one year from the date of her marriage, but subsequent thereto they were harassing her for the demand of dowry.
About 20 days earlier to her death Kamlesh came to her parental house and conveyed that her in-laws have threatened her to kill in the event of not satisfying the demand of dowry.
After few days Kamlesh was sent to her in-laws house with Shri Balram who made his best efforts to pacify the in-laws.
About eight days later to sending of Kamlesh, a telephonic message was received at the residence of Balraj Singh about death of Kamlesh.
At this juncture it shall be relevant to mention that PW-4 as well as PW-1 accepted that for a year after marriage Kamlesh resided with her husband separately at 12 GB.
Smt.
Savitri Devi (PW-8) stated that the in-laws of her daughter used to harass her for the demand of dowry.
About 15-20 days earlier to her death, Kamlesh came to the parental house and conveyed about demand of dowry made by her in-laws.
Shri Balram then went her in-laws and tried to pacify them.
As per this witness she went to the house of Kamlesh and the accused persons after receiving information about the death of Kamlesh where Baby Poonam, daughter of Kamlesh, informed that her mother was killed by uncle Chandrabhan and at that time her grand parents and father were standing there.
Suffice to mention that Baby Poonam was also produced before the court to get her testimony examined, but being a girl of about four years she was not found in position to understand anything, hence was not examined.
-12- From discussions of the evidence adduced by the prosecution to support the charges, the apparent conclusions are that - 1.Deceased Kamlesh was residing at her matrimonial home after marriage and for a period of about one year she led a happy married life; 2.No demand of dowry or otherwise made at least for a period of about a year from the date of marriage; 3.Deceased Smt.
Kamlesh was living separately with her husband in a village other than the matrimonial one for a period of about a year; 4.In the prosecution evidence nothing is said about demand of any specific amount of money, goods, ornaments or other articles from the deceased or from her maternal relatives; 5.The in-laws of deceased Smt.
Kamlesh used to make comparison with the quantum of dowry given by them to their daughter in her marriage and received by them from the family of Smt.
Kamlesh; 6.Deceased Smt.
Kamlesh came to her maternal house about 20 days earlier from the date of her death and then her father Shri Balram (PW-1) went to her matrimonial house to send her off.
At that time her in-laws complained him about not giving adequate dowry.
He was also abused by -13- the accused persons.
The evidence noticed clearly indicates that the deceased was subjected to harassment for certain unlawful demands, though not for specific iteMs.The harassment was recurring and even at least upto 4-5 days earlier from the date of death.
Such recurring harassment for unlawful demand is nothing but cruelty as explained under clause(b) of the explanation given under Section 498-A Indian Penal Code.
In view of the discussions made above, we are having no doubt about commission of an offence punishable under Section 498-A Indian Penal Code by the accused persons.
The finding recorded in this regard by the trial court, thus, is correct and does not suffer from any wrong.
The issue now deserves consideration is relating to the conviction of the accused persons for the offence punishable under Section 304-B Indian Penal Code.
True it is, that we have arrived at a conclusion about commission of an offence punishable under Section 498-A Indian Penal Code by the accused persons, but that ipse-facto cannot be a reason to record a finding about causing 'dowry death' by them.
A specific finding is required to be given about bodily injury that caused death of Smt.
Kamlesh.
In the instant matter, a blood stained 'kassi' was recovered at the instance of accused Chandrabhan.
The blood group of that has not been determined by the Forensic -14- Science Laboratory, but that was having blood stains of human origin.
No explanation is given by the accused as to how the 'kassi' was having blood stains of human origin.
It is further pertinent to note that the shirt of accused was having blood stains of group 'B' matching with the blood group of deceased Kamlesh.
Accused Chandrabhan made an effort to explain the same by stating that such stains were of his own blood occurred due to an injury received on 4.1.2004, but the same is not acceptable.
The explanation given does not bear any confidence in view of the fact that in the arrest memo no injury in the hand of this accused is shown.
If he would have received any injury on 4.1.2004, then reference of that would have been given in his arrest memo.
Beside that, accused Chandrabhan was arrested on 5.1.2004 and at that time he was wearing the shirt having blood stains.
If the blood stains were of 4.1.2004 then adequate time was available for him to change that shirt.
It is quite unusual that he did not choose to alter the shirt for a day despite having blood stains.
The circumstance noticed above clearly indicates involvement of accused Chandrabhan in killing Smt.
Kamlesh.
However, the killing was not a 'dowry death', but certainly a 'murder' as interpreted under Section 300 Indian Penal Code.
For the reasons given above, this appeal deserves acceptance in part.
Accordingly, the same is partly allowed.
The conviction of accused persons for the offence punishable under Section 498-A Indian Penal Code is maintained.
The sentence awarded to them for this offence is reduced for the period already undergone by them in -15- prison.
The accused persons are acquitted from the charge relating to commission of offence punishable under Section 304-B Indian Penal Code.
Accordingly, the sentence awarded to accused persons for that is set aside.
Accused Chandrabhan is convicted for an offence punishable under Section 302 Indian Penal Code and is sentenced to undergo life term imprisonment with a fine of Rs.10,000/-.
The execution of sentence awarded by the trial court to accused Mahendra Kumar and Sohanlal was suspended by this Court, hence in view of the orders passed in appeal, the bail bonds furnished by them are discharged.
(ATUL KUMAR JAIN),J.
(GOVIND MATHUR),J.
Mathuria KK/PS.