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Judgment
Instant criminal appeal has been filed by the appellant Shanker lal against the judgment dated 07.12.2012 passed by District and Sessions Judge, Dungarpur in Sessions Case No. 84/2008 by which the learned Judge has convicted the present appellant as under :-
Under Section 302 IPC Life Imprisonment and a fine of Rs.5,000/- and in default of payment of fine to further undergo 15 days simple imprisonment.
Under Section 498A IPC Three years rigorous imprisonment alongwith fine of Rs. 500/- and in default of payment of fine to undergo
15 DAYS simple imprisonment.
Succinctly stated, the fact of the case are that the complainant Kanti lal lodged a written report with the Station House Officer, Police Station, Kotwali, Dungarpur on 22.06.2008 alleging inter alia that his daughter Anita was married to the accused-appellant Shanker Lal on 21.04.2008. It was stated in the FIR that after marriage, his daughter Anita had come to his house on three occasions and on the last occasion, i.e. on 15.06.2008, her mother-in-law and brother-in-law had taken her back to the marital home. It was further mentioned in the FIR that whenever Anita used to come to his house, she used to cry and complained that her husband Shanker lal, father-in-law Nathu and mother-in-law used to harass her and treated her with cruelty on account of demand of dowry. She also complained to her father that her silver ornaments were forcibly taken away by the accused and was mortgaged. She further told him that the accused were continuously harassing her for bringing money and other dowry articles despite the fact that the complainant had given dowry to best of his capacity at the time of the marriage. He further stated that the deceased was sent back with her mother-in-law and brother-in-law despite her protest. He stated that his daughter was done to death by the accused on 21.06.2008.
On the basis of this report, an FIR No. 178/2008 was registered for the offences under Sections 498-A and 304-B read with Section 34 IPC and investigation commenced.
After usual investigation, the police submitted chargesheet against the accused appellant for offence under Section 304-B and
498A IPC.
The prosecution in its support examined eight witnesses in all and exhibited 13 documents. The statement under Section 313 Cr.P.C. was recorded who denied the charges and claimed trial.
After conclusion of trial, the learned District and Sessions Judge, Dungarpur convicted the present appellant for offence under Section 304-B and 498A IPC vide judgment dated
17.12.2008. Against the said judgment, the present appellant preferred an appeal before this Court which was registered as S.B.
Criminal Appeal No. 23/2009. Learned Single Judge while allowing the appeal, set aside the judgment dated 17.12.2008 and the matter was remanded back to the learned trial court for holding a denovo trial of the appellant after framing a charge for offence under Sections 498-A and 304-B and in the alternative, under Section 302 IPC.
After remand by this Court, the learned Sessions Judge framed charge under Section 302 IPC and in the alternative for offence under Section 304-B and 498-A IPC. The prosecution examined nine witnesses and exhibited 13 documents. The accused was examined under Section 313 Cr.P.C who denied the charges but did not adduce any evidence in his defence.
After conclusion of the trial, the learned District and Sessions Judge, Dungarpur acquitted the accused appellant for the offence under Section 304-B IPC on the ground that since substantive offence under Section 302 IPC stands proved, the conviction for alternative charge under Section 304-B IPC is not required.
Accordingly, the learned trial court convicted the accused appellant for the offence under Section 302 and 498A IPC and passed the sentences as mentioned earlier.
Learned counsel for the appellant argued that there is no plausible evidence against the present appellant to convict him for offence under Section 302 IPC as there is no eye-witnesses of the occurrence. Learned counsel further submitted that there is no evidence on record to the effect that the accused treated the deceased Anita with cruelty in connection with demand of dowry soon before her death so as to raise a presumption under Section 304-B and Section 113-B of Evidence Act. He further argued that the case of the prosecution is totally based upon circumstantial evidence which is not complete and is apparent from the evidence of the prosecution witnesses. Learned counsel argued that the prosecution has failed to connect the accused appellant with the alleged offence and therefore, the impugned judgment is liable to be quashed and set aside.
Per contra, learned Public Prosecutor argued that previously the conviction against the accused appellant for offence 304-B IPC was set aside and matter was remanded back to the trial court for holding a denovo trial after framing the charge for offence under Section 498-A and 304-B or in the alternative for offence under Section 302 IPC, which is based on facts and evidence on record and therefore, the impugned judgment does not call any interference.
We have considered the arguments advanced by both the parties before us and thoroughly scrutinized the record of the case.
Admittedly, in the present case, the prosecution case rests entirely on circumstantial evidence to prove the offence under Section 302 IPC. PW/2 Kanti who lodged the First Information Report has stated that his daughter got married with appellant Shanker lal on 21.04.2008 and on 21.06.2008, he received telephone call from Khapeda informing him that his daughter was serious. When he reached Khaperda in the night at 11:00 PM, he found the house of inlaws of his daughter was locked and nobody was present. On inquiry, he was told that they have gone to other house, however, one person came and told him that his daughter has committed suicide. The complainant Kanti lal came back and next morning when he went back to the house of his daughter's inlaws, the police had already reached and he saw that Anita was hanging from a Balli and her feet were touching the ground. He found broken bangles and her hair. When this witness was examined as PW/2, he mentioned that her daughter told him that her inlaws were demanding money and said that her father gave less dowry. However, in his cross-examination this witness mentioned that appellant Shanker lal visited his village in a jolly mood and previously no quarrel had taken place. He further mentioned in the cross-examination that her daughter Anita resided with Shanker lal happily.
PW/1 Nana lal in his statement stated that he knows Kanti lal very well. He alongwith Kanti lal went to the house of his daughter's in-laws and saw that the house was locked. The neighbour informed them that they had gone to another house and that Anita had committed suicide. It is stated that they came back and on the next day, they again went there and saw the dead body of Anita. This witness does not say anything regarding demand of dowry or cruelty meted out by the inlaws of deceased Anita.
PW/3 Jeevraj stated that he had also gone with PW/2 Kanti lal and saw the dead body of Anita. He stated that Anita told him that Shankar used to beat her and demand dowry from her. In his cross-examination he mentioned that relatives informed him about beating Anita and demand of dowry.
PW/4 Savji in his statement has mentioned that Anita used to complain about harassment by the appellant and her father-in-
law. He alongwith complainant went to the house of inlaws of Anita and saw her dead body. In his cross-examination, he admitted that previously they never heard about beating by accused Shankar lal and he further admitted that this fact was narrated by complainant Kanti lal.
PW/5 Smt. Mani in her statement stated that Anita told her that she was ill-treated by her in-laws. In her cross-examination she admitted that she never saw the inlaws of Anita beating her.
PW/7 Dr. B.P. Verma is the doctor who conducted the postmortem of deceased Anita and prepared postmortem report (Ex.P/8) and found following injuries upon the body of the deceased :-
"Face congested, both hands and nails cyanosed, leg 1/3" front also cyanosed; tongue bitten in between teeth and blackish in colour, distended. Blisters present on the gluteal region. Foul smell with undigested food was coming out from both the nostrils. Pus-like discharge was coming out from the vulva and facial discharge was coming from the anus.
The following injuries were found on the body of the deceased:- (1) Ligature mark around neck 1/3 transversely and continuously 30x1/2cm.
(2) Ligature mark 1/3rd on neck obliquely (this ligature mark has been found to be postmortem).
(3) Contusion violet in colour on left breast laterally 3x1/?.
(4) Contusion violet in colour on right breast laterally transversely placed 4x1/? cm.
(5) Prick injury left side vulva and clotted blood with swelling of vulva.
Ligature mark was situated on 1/3rd portion of the neck below the thyroid cartilage continuous transverse measuring 30x2/? cm. It was deep blackish in colour with hard base. There were marks of abrasions on the margin of ligature marks and both the cornua of the hyoid bone were found broken.
On the dissection of ligature mark being done, the soft tissue muscles were found congested. Tracheal ring and thyroid cartilage found fractured. Anterior valve of esophagus was also lacerated and through the laceration, undigested food was coming from the laceration, undigested food was coming from the stomach to the trachea. The vessels were severely contused.
All these injuries, except injury No.2, were found to be ante-mortem in nature. The specific finding of the Medical Officer is that the injury No.2 was postmortem in nature. The death was opined to be due to cardio
respiratory failure caused by the ligature marks around neck.
After examining the entire set of evidence of prosecution, it appears that there is no direct evidence against the accused appellant so as to convict him for the offence under Section 302
IPC. Admittedly, the accused was not present at the time of occurrence so also there is no direct evidence with regard to demand of dowry by the accused appellant but we find that in a case where the wife has died due to homicide, it is must for the husband to explain as to how the death has taken place. There is an omnibus allegation that all the members of in-laws demanded dowry from her and therefore, presumption under under Section 113B of the Evidence Act is required to be drawn to hold that husband is responsible for committing dowry death under Section 304B IPC. Hon'ble Supreme Court in the case of G.V.
Siddaramesh vs. State of Karnataka (2010) 3 SCC 152 has held as under :-
"A reading of Section 113B of the Evidence Act shows that there must be material to show that soon before the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption can be drawn that a person has committed the dowry death of a women. It is then up to the appellant to discharge this presumption. The appellant however has not brought on record anything substantial to dispel the theory of the prosecution. In fact, while filing application for grant of bail, the appellant had stated that the deceased was having an
affair with another person before her marriage and since she could not marry him, she was in distress and, therefore, committed suicide. However there was no evidence brought on record to prove this theory. Further in his statement under Section 313 of Cr.P.C. he has stated that the deceased was not happy with the house of the appellant and stated that the house of her sister and father were bigger and better. Further his theory of intimating the police and lodging a complaint before the Sub-Inspector of the Police Station at 12.30 AM fails as he had closed his shop at around 10.30 PM. After that by his own admission, he went and informed the sister of the deceased and then went outside the town to bring his father before lodging the complaint. Therefore, it is very much likely that the accused after witnessing the dead body of the deceased tried to hush up the matter and went to the Police Station much later. If this theory is to be true, this brings the suspicious behaviour of the appellant more to light, as the natural reaction to seeing the dead body of a wife who had come to her matrimonial home only 2 days earlier would be that of disbelief or shock. Instead by his own admission, he went and informed the sister of the deceased. The prosecution witnesses have also testified that the appellant came to the paternal house of the deceased and made a statement to the effect that it would be detrimental to both the families if a complaint was to be lodged and to bury the past. The appellant has also not produced anything on record to dispel the theory of the prosecution that there was a further demand of Rs. 50,000/- on his part. He has also failed to prove that there were demands for dowry immediately before the marriage and there were negotiations which took place involving both the families. All these circumstances point to the fact that the appellant has not rebutted or discharged the presumption. Therefore we have no doubt in holding that the appellant is guilty for the offence punishable under Section 304B of the IPC, for being responsible for the death of his wife."
In view of above, the case does not travel beyond Section 304-B IPC and no offence under Section 302 IPC is made out against the accused appellant.
Further there is evidence against the accused appellant that the accused appellant used to harass the deceased for demand of dowry, therefore, the conviction of the accused appellant under Section 498-a is proved beyond reasonable doubt.
In view of the above discussion, the appeal is partly allowed.
The conviction and sentence passed against the accused appellant under Section 302 IPC is set aside and the conviction is altered from Section 302 IPC to the offence under Section 304-B IPC and sentence of ten years rigorous imprisonment with fine of Rs. 20,000/- is hereby imposed against him. In default of payment of fine, the accused shall further undergo one year's rigorous imprisonment. The conviction and sentence awarded by the learned trial court for offence under Section 498-A IPC is hereby maintained. Upon depositing the amount of Rs. 20,000/- the same may be disbursed to the legal heirs of deceased.