Garg, J.
1. This appeal has been filed by the accused appellants againstthe judgment and order dated 17.6.2000 passed by the learned Special Judge, SC andST (Prevention of Atrocities) Act Cases, Jodhpur in Sessions Case No. 70/99 by whichthe learned Special Judge has convicted the accused appellants for offences under Section304B and 498A l.P.C. and has sentenced them as follows:
---------------------------------------------------------------------------------------------------------Offence Sentence awarded---------------------------------------------------------------------------------------------------------304B I.P.C. - 10 years' R.I.498A I.P.C. - 2 years' R.I. and a fine of Rs. 1000/- in default to further undergo1 month's R.I.Both the sentences were ordered to run concurrently.---------------------------------------------------------------------------------------------------------
(2). It arises in the following circumstances:
i) That on 1.7.99, P.W. 3 Gaja Ram lodged a written report Ex.P/2 in the Police Station Shergarh before P.W. 17 Anwar Khan, Sub Inspector alleging inter alia that his daughter Meera aged 20 years (hereinafter referred to as the deceased) was married to accused appellant Bhaira Ram S/o Channa Ram one year back and since marriage, she was living in her in-laws' house along with her husband.
ii) That on 30.6.99 at 9 a.m., Inder Singh came to his house and told him that his daughter was ill and was admitted in Gandhi Hospital, Jodhpur, thereupon he and his brother Moola Ram P.W. 4 went to Gandhi Hospital, Jodhpur and found that Meera was admitted in the Burn Unit at Bed No. 3 of the Gandhi Hospital and her whole body was burnt and she was unconscious and he further stated that she died early in the morning of 1.7.99 at about 3- 4'O Clock. On being asked, her husband accused appellant Bhaira and father-in-law Channa Ram told him that on the previous night, when she was preparing roti, suddenly she caught fire and burnt and they had brought her for treatment in the Hospital. He has further stated in that report that all the accused appellants being father-in-law, mother-in-law and the husband used to torture her, therefore, investigation about her death be conducted.
iii) On this report, Marg FIR under Section 176 Cr.P.C. numbering 4/99 was registered at the Police Station Shergarh, Dist. Jodhpur and investigation was started.
iv) During the investigation, post mortem of the body of the deceased was got conducted by P.W. 20 Dr.M.P. Joshi on 1.7.99 and the postmortem report is Ex.P/17. The doctor P.W. 20 Dr.M.P. Joshi has opined the cause of death as shock due to extensive burn.
v) When investigation of Marg FIR No. 4/99 was going on, P.W. 3 Gaja Ram lodged another report on 5.7.99 Ex.P/11 before the SHO, Sher-garh alleging that he was resident of village Chordia and the deceased was married with the accused appellant Bhaira on 9.4.1998 and all the accused appellanls have murdered the deceased by pouring kerosene oil on her. After marriage the accused appellants used to torture her for demand of dowry and they did not allow her even to come to her Pihar and his son Ramu Ram P.W. 6 went to take her sister, but they never sent her with him. Before this incident near about 1 and 1/2 months back, he himself went to village Bhalu Kala, then all the accused appellants abused him and thereafter, he went to the house of Babu Ram, P.W. 9 as the marriage was arranged by P.W. 9 Babu Ram. Thereafter both P.W. 3 Gaja Ram and P.W. 9 Babu Ram went to the in-laws' house of the deceased and after threatening that Panchayat would be called and because of that fear they sent the deceased with them. After that incident within 15 to 20 days., the accused appellanls Channa Ram, father-in-law of the deceased came again to the house of father of the deceased and told him that in future there would be no complaint and Chena Ram, Kumbh Singh, Chain Singh P.W. 10, and Rana Ram P.W. 5 also advised the accused Channa Ram that in future she should not be harassed. Thereupon P.W. 3 Gaja Ram sent the deceased with him and also sent his Bhatija Rawal Ram P.W. 8 with the deceased. It is further stated in the report that as soon as the deceased reached the house of her in-laws, in presence of P.W.8 Rawal Ram, she was tortured for demand of dowry by mother-in-law of the deceased and on next day P.W. 8 Rawal Ram came back and P.W. 8 Rawal Ram told P.W. 3 Gaja Ram that the deceased was tortured there and he was called by her. Thereafter his brother Rana Rarn P.W. 5, Moola Ram P.W. 4 and Gaja Ram P.W. 3 himself went to the house of in-laws of the deceased in the village Bhalu and called Panchayat which was attended by 10 to 15 persons including Babu Ram S/o Megh Ram, Panna Ram P.W. 13, Luna Ram etc. and these persons scolded the accused appellants and they gave assurance that in future she would not be harassed and (hereafter he came back. He had full confidence that she was murdered by the accused appellants because of non-fulfilment of dowry demand.
vi) On this report, police chalked out a FIR Ex.P/12 for offences under Section 498A and 304B I.P.C. on 7.7.99 at 7 p.m. It may be stated here that though the report Ex.P/11 is dated 5.7.99, but in the police Station it was lodged on 7.7.99 at 7 p.m.
vii) Through Fard Ex.P/14, Ex.P/15 and Ex.P/16 accused appellants Channa Ram, Bhaira Ram and Smt. Samda respectively were got arrested on 22.7.99.
viii) After usual investigation, a challan was submitted against the accused appellants for offences under Sections 304B and 498A I.P.C.
(3). That the learned Special Judge framed charges against the accused appellants for offences under Section 498A and 304B I.P.C. who pleaded not guilty and claimed trial.
(4). During trial, 20 witnesses have been produced by the prosecution and many documents were got exhibited. Thereafter statements of accused under Section 313 Cr.P.C. were recorded and no evidence was led in defence by the accused appellants.
(5). After the conclusion of the trial, the learned Special Judge vide his judgment and order dated 17.6.2000 convicted and sentenced the accused appellants 45 stated above.
(6). Aggrieved from the said judgment and order, this appeal has been filed by the accused appellants.
(7). In this appeal, following submissions have been made on behalf of the accused appellants:
i) The learned trial Judge has ignored the evidence of prosecution witnesses, namely P.W. 1 Guma Ram, P.W. 2 Rana Ram, P.W. 9 Babu Ram P.W. 10 Chain Sirigh, P.W. 13 Panna Ram, P.W. 14 Shanti, and P.W. 16 Swaroop Singh who had categorically stated that they were the neighbours of the deceased and they never heard about any type of harassment of deceased by the appellants and there is no legal evidence on record to prove the charges framed against the accused appellants.
ii) The learned Special Judge placed reliance on the evidence of P.W. 3 Gaja Ram, P.W. 4 Moola Ram, P.W. 5 Rana Ram, P.W. 6 Ramu Ram, P.W. 7 Pappu Devi, P.W. 8 Rawal Ram and P.W. 11 Chaina Ram who are admittedly near relatives of the deceased and their evidence is based on hear-say and the accused appellants have been wrongly convicted.
iii) That the first report which was given by P.W. 3 Gaja Ram is Ex. P/2 which is silent about harassment for dowry demand but in subsequent report Ex.P/11 which was lodged by P.W. 3 Gaja Ram the story of dowry demand has been mentioned falsely.
iv) That in the hospital, relatives of deceased were there, thereafter the dead body was handed over to them and they did not make any complaint. Thus, a false case has been made against the accused appellants for dowry demand.
(8). On the contrary, the learned Public Prosecutor has opposed the submission made by the learned counsel for the appellants and submits that the judgment and order passed by the learned trial Judge do not call for any interference.
(9). I have heard both.
(10). In Shanti v. State of Haryana (I), the Hon'ble Supreme Court had an occasion to explain the ingredients of Section 304B I.P.C. His lordships K. Jayachandra Reddy (as he then was) said 'A careful analysis of Section 304B I.P.C. shows that this section has the following essentials:
1. The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances.
2. Such death should have occurred within seven years of her marriage.
3. She must have been subjected to cruelly or harassment by her husband or any relative of her husband.
4. Such cruelly or harassment should be for or in connection wiih demand for dowry.'
(11). What Section 30'1B I.P.C. requires is that death of the woman should be unnatural. In Shanti v. State of Haryana (supra), the Hobn'ble Supreme Court has Clearly held that for applicability of Section 304B I.P.C., question whether unnatural death of a woman was homicidal or suicidal is irrelevant.
(12). Section 304B raises a presumption of culpability against the husband or relative hitherto unknown to our jurisprudence.
(13). The prosecution must prove with some positive evidence that there must be material to show that soon before her death, the victim was subjected to-cruelly or harassment.
(14). In the cases of dowry death and suicide, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence, that could be direct or indirect. In this respect, conduct of the husband and other relatives also plays a very vital role in coming to the conclusion of guilt. In this respect, the decision of the Hon'ble Supreme Court in Guru Bachan Singh v. Satpal Singh (2) may be seen.
(15). Motive for a murder may or may not be. But in dowry deaths, it is inherent. And hence what is required of the court to examine is as to who translated it into action as motive for it is not individual, but of family. (See Ashok Kumar v. State of Rajasthan (3).
(16). Before proceeding further, I would like first to discuss the medical evidence in this case. The post mortem report of the deceased is Ex.P/17 and the concerned doctor for this is P.W. 20 Dr. M.P Joshi who states that on 1.7.99 being medical jurist in Gandhi Hospital, Jodh'pur, at the request of SDM, Jodhpur he conducted the post mortem of the body of the deceased and found that superficial burns were present all over her body. He has further slated that the deceased was admitted in burn Unit on 30.6.99 her body was having 95% and she died on 1.7.99 at 3.30 p.m. From the statement of doctor, it is well proved that the death of deceased was not a natural one.
(17). The next point which is to be considered is whether the deceased has been subjected to cruelty or harassment by her husband or her in-laws and further to see whether such cruelty or harassment should be in connection with demand of dowry or not.
(18). In this case there are two sets of evidence, one consisting of those persons who say that the deceased was never tortured and harassed by the accused appellants and other evidence is found in the statements of relatives of the deceased that she was tortured arid harassed for demand of dowry.
(19)..... be stated here that the first report Ex.P/2 was lodged by P.W. 3 Gaja Ramfather of the deceased on 1.7.99 in the Police Station Shergarh in which nowhere it is mentioned that the deceased was tortured for dowry demand by the accused appellants. Thus in the first version which was given by P.W. 3 Gaja Ram just after the death of the deceased with the Police Station, Shergarh in the shape of report Ex.P/2, there is no mention of the fact that the deceased was being tortured by the accused appellants for dowry demand.
(20). On this report, P.W. 18 Shri Dhiraj Kumar Srivastava who was SDO, started investigation and he has been produced as P.W. 18. He has stated thai on 1.7.99 he was SDM, Jodhpur and on the Marg FIR he started investigation on 4.7.99 and he inspected the place of occurrence and found that the deceased was not burnt while preparing food. He had further admitted the following facts in his examination.
i) When he reached the Hospital, relatives of the deceased, namely, P.W. 3 Gaja Ram and other were there, but no body made any complaint to him either orally or in writing.
ii) The dead body of the deceased was handed over to P.W. 3 Gaja Ram and P.W. 4 Moola Ram and they took it with their own consent.
iii) He did not prepare any report, but recorded statements of both the sides which are not on the file.
(21). P.W. 1 Guma Ram is the witness, who is the neighbour of the accused appellants and he has stated that the accused appellants never harassed the deceased for demand of dowry. This witness has not been declared hostile.
(22). P.W. 2 Rana Ram who has also been declared hostile has stated that thedeceased was never tortured by the appellants in connection with demand of dowry.The other witness is P.W. 10 Chain Singh who states that he never heard that thedeceased was tortured by the accused appellants. Similar is the statement of P.W. 12Babu Ram who has been declared hostile. P.W. 13 Panna Ram has also been declaredhostile. Another witness in this respect is P.W. 14 Smt. Shanti and she has also been declared hostile and this witness is lady and also in relation of the deceased and she states that she never heard that the deceased was tortured by the accused appellants and further more she admits in cross- examination that the deceased used to remain ill and they used to take her for treatment. Similar is the statement of P.W. 16 Swaroop Singh. He also stated that he never heard that the deceased was tortured by the accused appellants.
(23). Thus, there is one set of evidence which is found in the statements of P.W. 1 Guma Ram, P.W. 2 Rana Ram, P.W. 10 chain Singh, P.W. 12 Babu Ram, P.W. 13 Pana Ram, P.W. 14 Smt. Shanti and P.W. 16 Swaroop Singh that the deceased was never tortured by the accused appellants in respect of demand of dowry.
(24). Now the evidence of relatives of the deceased has to be looked into. In this respect P.W. 3 Gaja Ram who lodged report Ex.P/2 and also lodged report Ex.P/11 has stated that the accused appellants used to torture her daughter and to take her back, he sent P.W. 6 Ramu Ram and thereafter along with Babu Lal he also went there and she took her daughter and when he went again, to take her, Moola Ram P.W. 4 and P.W. 5 Rana Ram were also with him and the accused were advised not to repeat such incident and he came back and after 15 days, he was informed by Inder Singh that his daughter has been burnt. When he reached Hospital, she was unconscious and he lodged report Ex.P/2 and submitted another report which is Ex.P/11.
(25). The following facts have been admitted by P.W. 3 Gaja Ram in the cross-examination:
i) That the report Ex.P/11 was got written by him from a Master on 4.7.99 and he went to the Police Station along with that report, but it was not taken by the Police, but this fact is not found In the report Ex.P/11.
ii) That the report Ex.P/2 was given by him on the same day on 1.7.99 in the hospital.
iii) That after his report Ex.P/11, SDM recorded his statement and other statements. It is correct to say that in the report Ex.P/2 it is not mentioned that the accused appellants have burnt the deceased.
iv) It is also correct to say that in the report Ex.P/2 there is no mention of the fact that the deceased was tortured by the accused appellants for demand for dowry.
v) It is also correct that when the dead body of the deceased was given, he gave report Ex.P/2 to the SHO.
vi) That P.W. 4 Moola Ram, and P.W. 5 Rana Ram are his real brothers.
vii) That before this incident, he did not lodge any report of the fact that her daughter was tortured by the accused appellant either in the Police Station or in the Panchayat.
viii) That he collected Pana Ram, Babu Lal, Luna Ram and Chola Ram for the first time before 15 days of the incident.
(26). P.W. 4 Moola Ram is the brother of P.W. 3 Gaja Ram and he had also stated that the accused appellants used to torture the deceased for demand of dowry and the Panchayat was attended by Gaja Ram P.W. 3, Luna Ram and Babu Ram P.W. 9. He has also admitted that before this incident, no report was lodged in Panchayat by them.
(27). Similar is the statement of PW 5 Rana Ram who is also brother of PW 3 Gaja Ram. P.W. 6 Ramu Ram is brother of the deceased and he has stated that he went to take his sister to the house of her in-laws. He admits in his cross-examination that when his brother P.W. 8 Rawal Ram went to the house of her in-laws, he did notaccompany him. He has stated that he did not make enquiry from anybody except Babu Ram PW 9. P.W. 9 Babu Ram has stated that whatever he has stated has stated on hearsay. PW 7 Papu Devi is mother of the deceased and she has also admitted that no complaint was ever made in the police station or Panchayat before this incident.
(28). P.W. 8 Rawal Ram is cousin of the deceased and he has stated that when he went to her in-laws' house, then he was told by the deceased that his father P.W. 3 Gaja Ram be informed that they tortured her.
(29). In the present case looking to all the evidence and specially looking to the earlier version which was given by P.W. 3 Gaja Ram in his report Ex.P/2 and later version in report Ex.P/11 on 7.7.99 and looking to the fact that no complaint about the dowry demand was ever made by P.W. 3 Gaja Ram before any police station or Panchayat, it cannot be held beyond reasonable doubt that the accused appellants used to torture her in connection with dowry demand. If the fact of demand of dowry would have really occurred earlier, some sort of complaint must have been filed by P.W. 3 Gaja Ram. Thus in the present case, there is no clinching evidence of harassment or cruelty for dowry demand prior to the death of the deceased. In other words, in the present case, there is no evidence on the record to establish that the appellants soon before the death of the deceased, subjected the deceased to cruelty or harassment in connection with any demand of dowry. P.W. 3 Gaja Ram has developed the case of dowry demand in his another report Ex.P/11. Since the report Ex.P/2 which was lodged on 1.7.99 does not bear any mention of the fact that the deceased was being tortured by the accused appellants for dowry demand and therefore, subsequent version of demand of dowry which is found in report Ex. P/11 becomes doubtful whether such dowry demand existed or not.
From the statement of P.W. 8 Rawal Ram, it is also clear that the deceased told him that she was being tortured by the accused appellants and in her version which was given by her to P.W. 8 Rawal Ram, there is no mention of dowry demand. This also substantiate the above discussion.
(30). Apart from this, in the present case as stated above, there is another set of witnesses who have categorically stated that they never heard of dowry demand. If the case of the prosecution for dowry demand is being examined in this light, then a doubt certainly comes in the picture whether such dowry demand was made by the accused appellant before death of the deceased or not. In this back ground, findings recorded by the learned Special Judge that the deceased was subjected to cruelly by the accused appellants soon before her death for dowry demand cannot be sustained and thus, the same are liable to be set aside and the accused appellants are entitled to acquittal for offence under Section 304B I.P.C. by giving them benefit of doubt.
(31). Now conviction of the accused appellants for offence under Section 498A I.P.C. is to be examined. In the report Ex.P/2, there is mention of the fact that the accused appellants used lo torture her. This aspect is found in the statement of P.W. 3 Gaja Ram, P.W. 7 Papu Devi and even in the statement of P.W. 8 Rawal Ram. The statement of P.W. 8 Rawal Ram is very much material on the point as he was told by the deceased that she was being tortured. Thus, the case of prosecution that the deceased was subjected to cruelly or harassment by the accused appellants is well proved and the findings of the learned Special Judge by which the accused appellants were convicted for offence under Section 498A I.P.C. are liable to be affirmed.
The result of the above discussion is that this appeal is disposed of in the following manner:
i) The appeal of the accused appellants Channa Ram, Bhaira Ram and Mrs. Samda against their conviction and sentence for offence under Section 304B I.P.C. is allowed after setting aside the judgment and order dated 17.6.2000 passed by the learned Special Judge, SC and ST (Prevention of Atrocities) Act cases, Jodhpur.
ii) The appeal of the accused appellants Channa Ram, Bhaira Ram and Mrs. Samda against their conviction and sentence for offence under Section 498A1.P.C. is dismissed after affirming the judgment and order dated 17.6.2000 passed by the learned Special Judge, SC and ST (Prevention of Atrocities) Act Cases, Jodhpur.