Judgment:
Garg, J.
1. This appeal has been preferred by the accused appellants against the judgment and order dated 10.9.99 passed by learned Additional Sessions Judge, Phalodi in Sessions Case No. 1/99 whereby the learned Additional Sessions Judge convicted the accused appellants for offence under Sections 498-A and 304-B I.P.C. and sentenced each of them as under:
Name of accused
Offence
Sentence Awarded
Kishna Ram
498-A I.P.C.
2years' S.I. & a fine of Rs. 100/- in default to further undergo1 month's S.I.
Kishna Ram
304-B I.P.C.
7 years' S.I.
Smt. Anchi
498-A I.P.C.
2years' S.I. & a fine of Rs. 100/- in' default to further undergo1 month's S.I.
Smt. Anchi
304-B I.P.C.
7 years' S.I.
Chetan Ram
498-A I.P.C.
2years' S.I. & a fine of Rs. 100A in default to further undergo1 month's S.I.
Chetah Ram
304-B I.P.C.
7 years' S.I.
2. It arises in the following circumstances :
(i) On 19.11.98 at about 8.15 a.m., P.W. 4 Lala Ram lodged a written report Ex.P/8 before P.W. 7 Bhupendra Singh, SHO Police Station Bhojasar stating that Chuki (hereinafter referred to as the deceased) was daughter of his brother P.W. 3 Haruram and she was married with the accused appellant No. 1 in samvat year 2049 and P.W. 3 Haru Ram gave articles in dowry as per his capacity at the lime of marriage and for last three years, the accused appellant No. 1 was demanding Dora of gold, Ring of gold and Rs. 5000/-. This fact was brought to the knowledge by the deceased to her mother P.W. 9 Smt. Bhikhi, but since financial condition of P.W. 3 Haru Ram was not good, thus, this demand could not be fulfilled and for that all the accused appellants started harassing the deceased for not bringing sufficient dowry and also started beating. Upon this P.W. 13 Mula Ram and P.W. 3 Haru Ram went to the house of accused appellant No. 3 (father-in-law) and they were apprised also. The deceased had two sons. For last four months, the deceased was in her in-law's house and on 18.11.98, she came to Dhani of P.W. 3 Haru Ram where the accused appellant No. 1 asked the deceased as to why she had gone to the Dhani of her father and she should have gone to the Dhani of Likma Ram and when accused appellant No. 1 was threatening the deceased, P.W. 4 Lala Ram was also there and he also made the accused appellant No. 1 to understand as to why he was doing like that. Upon this the accused appellant No. 1 told that till Dora of Gold, ring of gold and Rs. 5000/-were not given to him, he would not come to his Dhani and took the deceased with him. At about 11 p.m. in the night, P.W. 5 Jasu Ram and P.W. 6 Shiv Lal came to Dhani of P.W.4 Lal Ram in a jonga and informed P.W. 3 Haru Ram through P.W. 13 Mula Ram that the deceased had been burnt. Upon this P.W. 4 Lala Ram, P.W. 13 Mula Ram and P.W. 11 Birrna Ram rushed towards her in-laws' house and at that time P.W. 3 Haru Ram told that she had not burnt but she had been forced to burn by her in-laws. P.W. 4 Lala Ram, P.W. 13 Mula Ram, P.W. 11 Birma Ram along with P.W. 15 Asu Ram reached the Dhani of accused appellant No. 3 and found that the deceased was burnt. It is further stated in the report Ex.P/8 that thereafter P.W.4 Lala Ram asked the deceased as to how it had happened, upon this the deceased in a very low voice told that all the accused appellants had burnt her after pouring kerosene oil on her and thereafter she died. It is further stated in the report that she had been put to death by her in-laws for not bringing sufficient dowry as per their demand.
3. On this report, police chalked out regular FIR Ex.P/9 and started investigation.
4. During investigation, post mortem of body of the deceased was got conducted by two doctors P.W. 6 Dr. Heera Lal Soni and P.W. H Dr. C.P. Mathur on 20.11.98 and post mortem report is Ex.P/15 where the cause of death of deceased has been assigned as asphyxia due to burning.
5. During investigation all the three, accused appellants were got arrested through Fard Ex.P/5, 6 and 7 on 20.11.98.
6. After usual investigation, the police filed challan against the accused appellants for offence under Sections 304B and 498A I.P.C. in the Court of Magistrate from where the case was committed to the Court of Additional Sessions Judge, Phalodi.
7. That on 27.1.99, the learned Additional Sessions Judge framed charges for offence under Sections 304B and 498A I.P.C. against the accused appellants who pleaded not guilty and claimed trial.
8. During trial, 18 witnesses were produced by the prosecution and thereafter statements of accused under Section 313 Cr.P.C. were recorded and no evidence was led in defence.
9. After conclusion of the trial, the learned Sessions Judge vide his judgment and order dated 10.9.99 convicted the accused appellants for offences under Sections 304B and 498A I.P.C. inter alia holding that:
(i) Marriage of deceased with accused appellant No. 1 took place within seven years from the date of occurrence.
(ii) The death of deceased occurred in suspicious circumstances i.e. otherwise than under normal circumstances (by burning).
(iii) For dowry demand, the learned Sessions Judge has placed reliance on the statements of P.W. 3 Haru Ram, P.W. 4 Lala Ram and P.W. 10 Smt. Dhapu and further more, statement given by the deceased before her death to P.W. 4 Lala Ram.
(iv) On fateful day, the accused appellant No. 1 demanded dowry and threatened the father of the deceased with dire consequence if dowry was not given. Thus, convicted and sentenced the accused appellants as stated above.
10. Aggrieved from the said judgment, this appeal has been filed by the accused appellants.
11. In this appeal, following submission has been made on behalf of the accused appellants :
(i) Since most of the witnesses of the prosecution have admitted that in their caste there is no dowry system and, therefore, by convicting the accused appellants for offence under Section 304B I.P.C., the learned Additional Sessions Judge has committed illegality.
(ii)The statements of P.W. 3 Haru Ram, P.W. 4 Lal Ram and P.W. 10 Smt. Dhapu are not reliable statement as they suffer from material contradictions.
(iii) The statements of P.W.3 Haru Ram, P.W.4 Lala Ram and P.W. 10 Smt. Dhapu should not have been relied oil specially when P.W.9 Smt. Bhikhi, mother of the deceased, P.W. 11 Birma Ram, brother of the deceased and P.W. 13 Mula Ram, uncle of the P.W. 3 Haru Ram and P.W. 4 Lala Ram have been declared hostile and they do not support the case of the prosecution.
(iv) The so called statement given by deceased before P.W.4 LalaRam cannot be regarded as statement made by deceased before herdeath as she was not in a position to speak as both the doctors P.W.6Dr. Heera Lal Soni and P.W.14 Dr. C.P. Mathur have slated thatcondition of the deceased was very critical and further more whenP.W. 4 Lala Ram was there along with him P.W. 13 Mula Ram andP.W. 11 Birma Ram were also with him, but they do not support thestatement of P.W, 4 Lala Ram on this point. Hence the learnedAdditional Sessions Judge has wrongly relied on the statement ofP.W. 4 Lala Ram. Thus, it has been argued that the accused appellantsbe acquitted.
12. On the contrary, the learned P.P. 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 are based on proper appreciation of evidence and do no call for interference. Hence, the appeal be dismissed.
13. 1 have heard both and perused the record of the case.
14. In Shanti v. State of Haryana (1), the Hon'ble Supreme Court had an occasion to explain the ingredients of Section 304B I.P.C. His Lordship 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 cruelty or harassment by her husband or any relative of her husband.
4. Such cruelty or harassment should be for or in connection with demand for dowry.'
15. What Section 304B I.P.C. requires is that death of the woman should be unnatural. In Shanti v. State of Haryana (supra), the Hon'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.
16. Section 304B raises a presumption of culpability against the husband or relative hitherto unknown to our jurisprudence.
17. 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 cruelty or harassment.
18. In the cases of dowry death and suicide, circumstantial evidence plays an important role and inference can be drawn on the basis of such evidence that could be direct for indirect. In this respect, conduct of the husband and other relatives also plays a very vital role in coming to the conclusion of the guilt. In this respect, the decision of the Hon'ble Supreme Court in Guru Bachan Singh v. Satpal Singh (2), may be seen.
19. 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).
Point No. 1
20. So far as point No. 1 is concerned the evidence of P.W. 6 Dr. Heera Lal Soni and P.W. 14 Dr. C.P. Mathur has to be looked into.
21. P.W.6 Dr. Heera Lal Soni states that on 20.11.98 he was Medical Officer in the Hospital of Phalodi and on police requisition, a Board for conducting post mortem of the deceased was constituted in which apart from him P.W. 14 Dr. C.P. Mathur and Dr. R.C. Bohra were also members and after conducting post mortem, P.W. 6 Dr. Heera Lal Soni and P.W. 14 Dr. C.P. Mathur both opined that the cause of death of the deceased was asphyxia due to burning and he further stated that he did not find any injury on her body and her body was completely burnt near about 100% and they further stated that looking to her condition, she was not in a position to speak. Both the doctors have proved post mortem report Ex.P/15. Thus from the statements of P.W. 6 Dr. Heera Lal Soni and P.W. 14 Dr. C.P. Mathur it is well proved that death of the deceased was caused by asphyxia due to burning or in any other words, otherwise than in normal circumstances. Hence point No. 1 as one of the ingredients of Section 304B I.P.C. stands proved.
Point No. 2
22. So far as point No. 2 is concerned, it is not in dispute that the marriage of the deceased with accused appellant No. 1 took place within seven years from her death. Hence point No. 2 is well proved by the prosecution.
Point No. 3 and 4
23. Since points No. 3 and 4 are interconnected, they are being decided together and for this evidence has to be looked into and in this case, the evidence consists of many persons of different nature and variety.
First Set of Evidence
24. The first set of evidence is found in the statements of P.W. 3 Haru Ram, father of the deceased, P.W. 4 Lala Ram brother of P.W. 3 Haru Ram and one P.W. 10 Smt. Dhapu.
25. In this case report Ex.P/8 was lodged by P.W. 4 Lala Ram on the next day of the fateful day i.e. on 19.11.98 at 8.15 p.m. The salient features of report Ex.P/8 are as under:
(i) The accused appellant No. 1 (husband) was demanding Dora of Gold, Ring of gold and Rs. 5000/- for last three years.
(ii) This fact was also told by deceased to her mother P.W. 9 Smt. Bhikhi.
(iii) Thereafter they started harassing the deceased for not bringing sufficient dowry.
(iv) P.W. 13 Mula Ram and P.W. 3 Haru Ram also went to the house of her in-laws to make them understand.
(v) On the fateful day i.e. on 18.11.98, the deceased came to dhani of her father P.W. 3 Haru Ram and upon this the accused appellant No. 1 asked her as to why she had gone to the Dhani of her father and threatened the deceased at the dhani of her father, upon which P.W. 4 Lala Ram asked him not to do so, upon this the accused appellant Kishna Ram told that till Dora of gold, ring of gold and Rs. 5000/- were not g4ven, he would not come to their Dhani and then he left the place along with the deceased.
(vi) In the night, P.W. 15 Asuram and P.W. 16 Shiv Lal informed P.W. 3 Haru Ram that the deceased had died because of burning upon which P.W. 4 Lala Ram, P.W. 13 Mula Ram and P.W. 11 Birma Ram went to her in-laws' house where according to P.W. 4 Lala Ram; the deceased in burnt condition stated him that she was burnt by accused appellants and thereafter she died.
26. Before proceeding further, it may be stated here that from the statements of P.W. 3 Haru Ram, P.W. 4 Lala Ram, P.W. 10 Smt. Dhapu, P.W. 13 Mula Ram, P.W. 15 Asu Ram and P.W. 16 Shiv Lal, one thing has come out that in the cast to which the complainant party as well as accused party belongs, there is no custom of dowry.
27. P.W. 3 Haru Ram who is the father of the deceased has supported the statement of P.W. 4 Lala Ram on the point of demand and also supported the statement of P.W. 4 Lala Ram on the point that threats were given by the accused appellant No. 1 Kishna Ram (husband) on the fate ful day. He has also supported the statement of P.W. 4 Lala Ram on the point that in the night P.W. 15 Asu Ram and P.W. 16 Shiv Lal came and they also brought P.W. 13 Mula Ram along with them and informed that the deceased had been burnt and thereafter P.W. 13 Mula Ram, P.W. 4 Lala Ram, P.W. 11 Birma Ram went to her in-laws' house and after returning from the in-laws' house of the deceased that she was burnt by accused appellants.
The Incident which has Happened on Fateful Day
28. From the report Ex.P/8 and from the statement of P.W. 4 Lala Ram, it is very much clear that on the fateful day, the accused appellant No. 1 threatened that in case dora of Gold, ring of gold and Rs. 5000/- cash were not given him, he would not come back and thereafter he took the deceased with him in his house and after some hours, the deceased died in suspicious circumstances. This incident has been fully corroborated by the statement of P.W. 3 Haru Ram and on this point, there is cross- examination, but their statements have not shattered. This incident has also been narrated by P.W. 4 Lala Ram in his report Ex.P/8. Therefore, it cannot be said that this is an after thought incident. This version further gets corroboration from the statement of P.W. 10 Smt. Dhapu who is an independent witness. Here, it is clarified that this circumstance relates exclusively to the. husband i.e. appellant No. 1 and not to other two accused appellants i.e. mother-in-law and father-in-law. This incident was also relied on by the learned Additional Sessions Judge as one of the circumstance against the accused appellant No. 1 and others.
29. So far as version as stated by P.W. 4 Lala Ram that he was informed by the deceased about the cause of her death that the accused appellants had burnt her is concerned, in my opinion, this part of statement is not to be relied on because of the following reasons :
(i) P.W. 6 Dr. Heera Lal Soni and P.W. 14 Dr. C.P. Mathur have clearly stated that the deceased was not in a fit condition to give statement.
(ii) When P.W. 4 Lala Ram was in her in-laws' house, P.W. 11 Birma Ram and P.W. 13 Mula Ram were also with him and P.W. 11 Birma Ram and P.W. 13 Mula Ram have been declared hostile and do not support the statement of P.W. 4 Lala Ram on this point.
(iii) In this case, there is no medical evidence of the doctors P.W. 6 Dr. Heera Lal Soni and P.W. 14 Dr. C.P. Mathur to the effect that the deceased was in fit state of mind at the time of making said declaration, but on the contrary, both the doctors P.W. 6 Dr. Heera Lal Soni and P.W. 14 Dr. C.P. Mathur have stated that the deceased was not in a position to speak. Therefore, so called dying declaration given by the deceased to P.W. 4 Lala Ram which is not supported by other two witnesses P.W. 13 Mula Ram and P.W. 11 Birma Ram cannot be said to have been made by the deceased before P.W. 4 Lala Ram. Hence, no reliance can be placed on this circumstance.
30. Hence for the aforesaid reasons, the version which is alleged to have been given by the deceased to P.W, 4 Lala Ram about the cause of her death that the accused appellants had burnt her is not being accepted though this circumstance was relied on by the learned Additional Sessions Judge and in my opinion, it should not have been relied on for the reasons just discussed above.
Second Set of Evidence
31. The second set of evidence is found in the statements of P.W.9 Smt. Bhikhi, mother of the deceased, P.W. 11 Birma Ram, brother of father of the deceased and P.W. 12 Rewat Ram, brother of the deceased and all of them have been declared hostile and they do not support the case of prosecution.
32. In this case it has also come in evidence that one of the sisters of thedeceased was also married to another brother of the accused appellant No. 1 (husband). In these circumstances, if some of the witnesses supports the accused appellants rather than the case of prosecution, it is plausible and it may be due to keepharmony in the two families. Therefore, if the abovementioned witnesses have beendeclared hostile and do not support the case of the prosecution it would not affect thecase of prosecution in totality as the case of prosecution is going to be accepted onlyagainst the accused appellant No. 1 (husband) and it may affect to some extent so faras other two accused appellants No. 2 and 3 are concerned who are mother-in-law andfather-in-law respectively.
Case of Mother-in-law And Father-in-law (accused Appellants No. 2 and 3 Respectively)
33. Before discussing the case of accused appellants No. 2 and 3, the observations made by the Hon'ble Supreme Court in Kans Raj v. State of Punjab and Ors. (3), may be quoted here :
'For the fault of the husband, the in-laws of the other relations cannot, in all cases, be held to be involved in the demand of dowry. In case where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws' of the deceased wives in the matters of dowry deaths, which if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused.'
34. Keeping in mind the above observations of the Hon'ble Supreme Court, the case of these two accused appellants are being examined.
35. In this case, the circumstance that the deceased stated before P.W. 4 Lala Ram that all the accused appellants burnt her, has not been accepted. Minusing that circumstance, there is no much reliable evidence against these two accused appellants Smt. Anchi and Chetan Ram, who are mother-in-law and father-in-law of the deceased respectively, on the point that dowry demand was ever made by these two accused appellants. Thus the circumstance which has taken place on the fateful day when the accused appellant No. 1 threatened father of the deceased with dire consequences if his demands were not fulfilled exclusively relates to conduct of accused appellant No. 1 who is husband and not to accused appellants No. 2 and 3 and therefore, the prosecution evidence in this case so far as accused appellants No. 2 and 3 are concerned, is insufficient to connect them with dowry demand etc. Therefore, the prosecution has failed to prove its case beyond reasonable doubt against the accused appellants No. 2 and 3 for offence under Sections 498A and 304B I.P.C. Hence, these two accused appellants No. 2 and 3 are entitled to acquittal and findings of conviction recorded by the learned trial Judge against accused appellants No. 2 and 3 are liable to be set aside.
Case of Accused Appellant No. 1
36. In the present case, the deceased died in abnormal circumstances. If it was suicidal death there must have been very pressing motive or strong compelling reasons for the deceased to commit suicide and for that the main person responsible is the husband i.e. appellant No. 1.
37. In dowry death, the main accused is husband and in such cases, after death of the deceased, there is general tendency amongst relatives of the victim to implicate as many as persons in the case. In the present case, this argument has been considered and that is why other two accused appellants No. 2 and 3 are going to be acquitted, but so far as accused appellant No. 1 Kishna Ram who is husband of the deceased is concerned, in my opinion the evidence which has been produced by the prosecution is sufficient to prove the charge for offence under Sections 498 A and 304B I.P.C. against accused appellant No. 1 (husband) and thus, findings of conviction recorded by the learned trial Judge against the accused appellant No. 1 are liable to be confirmed one and the appeal of accused appellant No. 1 against him conviction and sentences is liable to be dismissed.
38. The result of above discussion is that:
The appeal of the accused appellant Kishna Ram against his conviction and sentence for offence under Sections 304B and 498A I.P.C. recorded by the learned Additional Sessions Judge, Phalodi is dismissed after confirming the judgment and order dated 10.9.99 passedby the learned Additional Sessions Judge, Phalodi so far as they relate to accused appellant Kishna Ram.
The appeal of the accused appellants Smt. Anchi and Chetan Ram is allowed and judgment and order dated 10.9.99 passed by the learned Additional Sessions Judge, Phalodi are set aside so far as they relate to them and they are acquitted of the charges for offences under Sections 304B and 498-A I.P.C.
Since, the accused appellant Smt. Anchi and Chelan Ram are in jail, they be released forthwith if not wanted in any other case.