Lila Ram Vs. State of Rajasthan - Court Judgment

V.S. Dave, J.

1. Brief facts giving rise to this appeal are that a First Information Report Ex. P. 3 was lodged at police station Kotwali, Alwar on llth August, 1989 by one Jivatram, PW 4, at 12.30 p.m. wherein it was alleged that be was staying in Jaipur, his sister Smt. Gopi was married six years before with Lila Ram (accused) son of Vishan Dass of Kherthal. Ever since after the marriage Lila Ram, his mother, father, brother Lalchand, cousin Sattu and his sister all used to harass her for not bringing dowry and used to pass sarcastic remarks. They also used to treat her with physical cruelty. Fifteen months before Gopi and her husband Lila Ram both came to Jaipur and settled down there. There also he used to beat Gopi and asked her to bring money from his place. Four months before Lila Ram alongwith his cousin Sattu overnight shifted his goods and children to Kherthal leaving behind Gopi. After the pursuation of the relations a couple of months before Gopi was dropped at Lilaram's place at Kherthal. On 10th August, 1989 at 2.00 in the noon he received a message by Wireless that Gopi is admitted in Alwar hospital with burns, hearing which he rushed with his relations. At 6.25 p.m there he learnt that sister had died at 3.30. She has been burnt to death by her in-laws. On receipt of this report at 12.30 a.m. at police station Kotwali, Alwar a case was registered for offences under Sections 498A 'and 304B IPC and investigation started. It is pertinent to mention here that Incharge police station Kotwali, Alwar was informed that Smt. Kanta, Hindu, famale, 40 years, wife of Lilawati (sic) (Lila Ram) resident of Kherthal who was admitted as a case of extensive burn had died at 3.30 p.m. This information was given by PW I, Dr. Raj Kumar Mishra the In-charge of police station Kotwali, Alwar who appeared in the hospital and prepared an inquest report under Section 174 Cr. P.C. He was informed by one Gangaram that Vishnu Sindhi informed that his daughter-in-law got burns and so was admitted to the hospital. Other document had also been prepared showing .the condition of the deceased etc. Postmortem of the dead body was got conducted on the same day and rest of the investigation was completed after the case was registered, as mentioned aforesaid on the report by Jivatram. It would further be pertient to mention here that one Ramesh chand had informed police station, Kherthal about burning on which police-wanted to record the statement of the deceased, but the Doctor informed at 12 45 p.m. (hat she was not in a position to give the statement and she should be removed to Alwar. Police was informed .and the Sub Divisional Officer also reached the spot for doing inquiry as required by law but she bad expired; therefore, the information was sent to her brother by wireless on which when became and lodged the F.I R. During investigation when the site-plan was prepared various goods were recovered such as kerosene oil cane. Stove, cane containing 5 It. of kerosene oil, match-box and another things. After completion of investigation a charge-sheet was submitted in the Court of Addl. Munsiff & Judicial Magistrate, Kishangarhbas who committed the accused to the Court of Addl. Sessions Judge, Kishangarhbas for trial.

2. It may be pertinent to mention here that charge-sheet was submitted against six persons, namely, Lila Ram, Vishan Das, Bhagwati, Indra, Satu and Lalchand. All the accused persons were read over the charges for offence under Sections 498A and 304B IPC to which they pleaded not guilty. The prosecution examined 16 witnesses in support of its case. Accused staled that marriage had taken place more than seven years before. They denied the allegations of beating and did not offer any explanation. No evidence was led in defence. Learned Addl. Sessions Judge acquitted five accused persons but convicted and sentenced the accused-appellant as indicated above, aggrieved by which this appeal has been preferred.

3. It is submitted by Shri Mathur, learned counsel for the appellant, that there is no evidence to connect the accused with the crime. His submission is that there is no positive evidence of marriage of the deceased having taken place with the accused within a period of seven year from the date of death so as to draws presumption under Section 113B of the Indian Evidence Act and presuming it to be a dowry death. It is submitted. that there is not an iota of evidence to suggest that the accused-appellant had demanded any dowry and for that purpose subjected the deceased for harassment or treated her with cruelty soon before the death. It is submitted that Jivatram has admitted in his cross examination that whenever she used to come to his place she never used to complain against her in-laws. He admitted that when she came from Kherthal the ornaments remained with him for which the letters were received. It has also been admitted that Lilaram's family was not a joint family and the charge of subjecting her with cruelty has already been found false, as a result of which all other accused persons in this case have been acquitted. It is submitted that this was not a case of bifurcating the offence in as much as the offence against all the six accused was identical and the witnesses have been disbelieved qua five of the accused persons, the sixth one has also been released on bail, it is contended that the prosecution examined PW 4 Jivatram, PW 5 Ishwari Devi, PW 6 Aasha, PW 8 Lakshman Das, PW 9 Ramesh Kumar and PW 10 Murlidhar. None of these witnesses could give consistent evidence in as much as they have contradicted on all material aspects of the case and otherwise their testimony is not worthy of reliance because they all are close relatives and are highly interested in the deceased. It is then contended that the learned trial court has placed reliance on some certain documents which have not been legally proved. Prosecution had moved an application under Section 311 Cr. P.C. for examining certain witnesses but the same has not been produced despite the fact that the learned trial court placed reliance on those documents. It is then submitted that in this case there is no evidence worth the name that the deceased was treated with cruelty soon before her death. It is submitted that before holding the accused guilty under Section 304B IPC and drawing presumption as to dowry death, under Section 113B of the Evidence Act it is -essential to establish two things that the death has been caused firstly-

(a) by any burns of bodily injury,

(b) occurs otherwise than in normal circumstances,

(c) within seven years of her marriage and, secondly, she was subjected to cruelty or harassment by her husband or any relative of her husband soon before her death (underlining is mine) and therefore, these two ingredients not having been satisfied, these two ingredients not having been satisfied, conviction under Section 304B IPC is. bad in law. He placed reliance on a decision reported in Gurditta Singh v. Stale of Rajasthan, 1 (1992) CCR 471.

4. On behalf of the State it is contended that in this case there is overwhelming evidence about the demand of dowry and the conduct of the accused has been such that he has been continuously treating the deceased with cruelty. It is a case where the husband and several vices and for fulfilling his needs regarding nefarious activity he regularly pressed for money from his in-laws. It is submitted that there is documentary evidence besides the oral evidencc to substantiate the prosecution case and the trial court has not committed any error in convicting the accused-appellant. It is submitted that the sentence imposed is also not excessive so as to call for in this case.

5. It have given my thoughtful consideration to the rival contention and have perused the entire record carefully.

6. It is not disputed in his appeal that Smt Gopi alias Kavita died because of burns and her death was unnatural. Her death whether was suicidal, or homicidal is not a question in dispute, as the accused has been convicted for offence under Section 304B IPC for which the presumption has been raised under Section 113B of the Evidence Act, could be drawn in this case in face of the evidence produced by the prosecution, P.W. 1 Dr. Raj Kumar Mishra has testified about her death by burns, P.W. 2 Gulab chand son of Daulatram is the neighbour who rushed to the spot where Smt. Kavita was burning who was the wife of Lila. He further stated that he had never seen any dispute between husband and wife, P.W. 3 Gulab son of Heeranand has corroborated his statement of P.W. 2. P.W. 4 is Jivatram, author of the first information report and the brother of the deceased. According to him the marriage had taken place six years before. She used to go to her in-laws' house. Prior to 6-7 months before her death Lila Ram was living at Jaipur where be was lend assistance for earning his bread. He used to ill-treat Kavita, Lila Ram suddenly left Jaipur and for Kherthal leaving behind his wife who was later on sent to Kherthal. According to him by the time he was informed of the incident his sister had expired and he had lodged the report Ex. P. 3. He has also produced a letter Ex. P. 5 written by his sister before her death wherein she had written that she left some ornaments at Jaipur for which her husband was harassing her. He has given instances. He has admitted in his cross examination that Lila Ram was living separate from his parents in Kherthal and his sister had delivered two children. He admitted that his sister had not written letters regarding mal-treating her and he had only heard about it. He has not given any date or month. P.W. 5 Ishwari Devi was related as an aunt of the deceased Smt. Kavita who has also stated that Kavita was married with Lila Ram six years before and when she used to come to her parent's place she used to complain that she was being ill-treated. Her grievance was that Lilaram used to drink and thereafter beat her. She has also corroborated the statement of P.W. 4 Jivatram. P.W. 6 Isbwardas is maternal uncle of the deceased who has also given the statements that her husband used to harass his wife. P-W. 7 Mst. Aasha is Kavita's brother's wife who has also given identical statement and so also P.W. 8 Lakshinandas who happened to be cousin of Kavita deceased. All these witnesses who are relations, have give a vague statement about the marriage having been performed six years before without giving any definite date or month of the marriage to come to a conclusion that the incident took place 6-7 years of marriage. This assumption is important in the light of statement of P.W. 13 Lalchand who has stated that the marriage took place 8 or 9 years before, which is also the case of the accused. Thus, there is no convincing evidence to establish that the death had taken place within seven years of her marriage. For holding the accused guilty under Section 304B IPC, it is essential that two important factors have to be established, one is that the death of Mst. Kavita had taken place within 7 years of the marriage and secondly she was treated with cruelty soon before her death. Section 304B IPC and Section 113B of the Evidence Act are reproduced hereunder:

'Section 304B IPC (1)-Where the death of a woman is caused by any burns or bodily injury of 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.'

'Section 113B. Evidence Act-Presumption as to dowry death :- When the question is whether a person has committed the dowry death of a woman and it is shown whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had 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 causes the dowry death.'

A bare perusal of these sections make it absolutely clear that the following ingredients are required to be proved by the prosecution :-

(a) that it is a death of a woman,

(b) that death is caused by burns or bodily injury or occurs otherwise than under normal circumstances,

(c) that it is within seven years of her marriage.

(d) that it is shown that soon before her death she was subjected to cruelty or harassment,

(e) that it was by her husband or any relatives or husband,

(f) that it was in connection with any demand of dowry.

Unless all the above ingredients are established it is not possible to hold the accused guilty of offence under Section 304B IPC.

7. This court in Gurditta Singh v. Stale of Rajasthan, 1 (1992) CCR 471 has laid down as under :

'Keeping in mind the principles enunciated and the guidelines laid down in the various pronouncements by the courts referred to above and the aims and objects of the remedical Legislation under the Dowry Act and making demand of dowry punishable under the penal law, we' would now discuss the facts and circumstances of the case to make out as to whether the ingredients of Section 304B have been established and it is a fit case in which presumption under Section 113B of the Evidence Act has rightly been drawn.'

'The main ingredients to be proved for establishing a case under Section 304B IPC are (i) unnatural death of woman within seven years of her marriage and (ii) she being subjected to cruelty or harassment by her husband or any relative of her husband, in connection with any demand of dowry,'

The evidence therefore, in the instant case is to be scanned in light of the aforesaid law. I have already held above that there is no convincing evidence that unnatural death of the deceased Kavita took place within seven years of her marriage. Regarding another ingredient also there is not the least evidence that soon before her death she had shown to have been treated with cruelty. The evidence of cruelty brought in the case is about the past actions for which there is overwhelming evidence, but that would not bring the case within ambit of Section 304B IPC under any circumstances. I am in agreement with the finding of the learned Judge the extent that there is evidence to bring home the offence within the ambit of Section 498A IPC. I need not repeat the evidence in that respect because all the witnesses are unanimous in their statements that whenever Kavita used to come she used to complain about her husband treating her with cruelty and that is also established other circumstances which have been brought on record and one of the important circumstance was that the accused was sometimes doing work in Kherthal and sometimes in Jaipur where he bad come at the behest of his in-laws who felt that he may behave properly with Kavita if he gets employment in Jaipur. He was self employed by the efforts of his brother-in-law but be again left for Kherthal leaving behind his wife who had to be left subsequently at Kherthal, are the circumstances which lend support to the statements of the witnesses. In this view of the matter his conviction under Section 498A IPC is wholly justified but his conviction under Section 304B IPC cannot be sustained as there is neither convincing evidence about her marriage being within seven years of her death nor is evidence to show that soon before her death she was treated with cruelty for want of dowry.

8. As a result of the aforesaid discussion this appeal is partly allowed. The conviction and sentence of the accused-appellant for offence under Section 304B IPC is set aside, but his conviction and sentence awarded to him by the trial court for offence under Section 498A IPC is maintained. He is in jail, amended warrant shall be sent to the jail mentioning that he will be entitled to the benefit of Section 428 Cr.P.C.