Kamal Kishore vs State of Rajasthan

Deo Narayan Thanvi, J.—This appeal is directed against the judgment of the learned Additional Sessions Judge (Women Atrocities and Dowry Cases) Bhilwara, dt. 20.05.2004, whereby he convicted the accused Appellant Kamal Kishore u/s 304-B with life imprisonment and also u/s 498A Indian Penal Code with three years R.I. and a fine of Rs. 500/- and in default, to further undergo one month''s S.I. Both the substantive sentences were ordered to run concurrently.

Facts leading to this appeal are that on 08.12.2003, the written report Ex.P/6 was filed by one Girdhari Lal, father of deceased Sujata, that his daughter was married with Appellant Kamal Kishore on 27.04.2003. On 07.12.2003, he received a telephonic message that the condition of Sujata was serious but intact, she died at 11 am. In the report, it was alleged that his daughter was poisoned on account of family dispute, as his daughter Sujata was once kicked out from the in-laws house. It was also alleged that they tried to enquire about the cause of death of deceased Sujata but different versions were given out by the family member of the accused Appellant. He also prayed for returning the dowry articles and for taking legal action. It was also alleged that such incident had also taken place with first wife of the accused Appellant. This report was forwarded by the SDM, Bhilwara to SHO, Mahila Thana, Bhilwara where a case under Sections 304B and 498A Indian Penal Code was registered. The post mortem was conducted and then the dead body of deceased Sujata was handed over to the family members. The cause of death as per the post mortem report was poisoning. After investigation, the police filed charge-sheet against the accused Appellant Kamal Kishore as also against Smt. Maya Devi, mother-in-law of deceased Sujata. Both the accused were charged under Sections 498A, 120B and 304-B Indian Penal Code and in alternative u/s 302 Indian Penal Code to which they pleaded not guilty and claimed trial. The prosecution examined 22 witnesses. The statements of the accused were recorded u/s 313 Code of Criminal Procedure. They produced no witness in defence. After hearing arguments, the learned trial Judge acquitted accused Smt. Maya Devi of the charges levelled against her but convicted and sentenced the accused Appellant Kamal Kishore as above, while acquitting him under Sections 302 and 120-B Indian Penal Code against which this appeal has been preferred.

We have heard learned Counsel for the Appellant as well as the learned Public Prosecutor and appreciated the evidence on record.

It has been contended by the learned Counsel for the Appellant that there was no allegation with regard to demand of dowry at the initial stage when the written report Ex.P/6 was lodged by the father of deceased Sujata viz., Girdhari Lal, PW 5. On the contrary the cremation had taken place with his consent and no such allegation of dowry demand was levelled before the SDM, who conducted the enquiry u/s 174 Code of Criminal Procedure . According to the learned Counsel, all the expenses in the marriage were borne by the accused Appellant and two to three months prior to the incident, a building for running the school was purchased by the Appellant for deceased Sujata. He has further submitted that the FIR was lodged on account of not agreeing for returning the dowry articles by the family members of the Appellant. He has also drawn the attention of the Court towards the statement of Suman, PW 6, sister of deceased Sujata and Rajesh Kumar, PW 7, brother in law of deceased, who have categorically stated that one day prior to the incident i.e. 06.12.2003, accused Appellant with his wife deceased Sujata came to their house for lunch and had there been any demand of dowry, he could not have visited their house. Learned Counsel has further drawn our attention to the statement of Dr. Anil Lahoti, PW 14, who was member of the Medical Board conducting the post mortem in which he stated that the cause of death was peripheral circulatory failure which according to the doctor can happen, if the medicines are taken empty stomach.

Per contra, the learned Public Prosecutor has supported the judgment of the learned trial Court.

First, we take the cause of death which according to the Dr. Anil Lahoti was peripheral circulatory failure, which could be caused by poisoning. According to him, when the post mortem was conducted on 07.12.2003 vide Ex.P/14, there was no external injury on the dead body. However, in the cross-examination, he has stated that such failure can occur, if the medicines are taken empty stomach. Since the accused Appellant Kamal Kishore has been acquitted u/s 302 Indian Penal Code, this question is not required to be much stressed as to whether the poison was administered or the deceased Sujata voluntarily took it. For attracting the guilt u/s 304B Indian Penal Code, the only point which the Court is required to look into is as to whether the death has been caused under the abnormal circumstances on account of demand of dowry or not. In this regard, the material evidence starts from the testimony of Ramniwas Mehta, PW 19, who was SDM, Bhilwara on 08.12.2003 and prepared the memo of dead body vide Ex.P/1 and other related documents Ex.P/3 and Ex.P/4 in the presence of motbirs Babu and Mohan, PW 8 and PW 9 respectively. He has of course stated in the cross-examination that the dead body was handed over to the accused with the consent of father of deceased Sujata viz. Girdhari Lal and no complaint was made to him about the demand of dowry. In this regard, when Girdhari Lal PW 5 was examined, who lodged the FIR Ex.P/6, he has stated in examination in chief that his daughter came to him at Beawar three to four times after marriage and told about harassment for dowry by her husband and other in-laws. She also told the same facts about demand of dowry by her husband to her sister Suman. According to him, deceased Sujata was beaten for dowry and once, she was also kicked out from her in-law''s house. He has also stated that on 6th December, accused went to his another daughter Suman''s house, where accused Kamal Kishore was asked to drop deceased Sujata but accused forcibly took her. The contention of the learned Counsel that the report Ex.P/6 was lodged on account of not returning the dowry articles of course finds favour in the cross examination of this witness but he has stated that he was not in a condition to mention this fact regarding demand of dowry in the report Ex.P/6. In the latter part of the cross examination, he has also admitted about purchase of a building for his daughter Sujata two to three months prior to her death but the demand was also made for purchase of plot. According to him, whenever her daughter used to visit Beawar, she often told about demand of dowry and harassment.

Next witnesses are Suman, PW 6 and Rajesh Kumar, PW 7, sister and brother in law of deceased Sujata respectively, who have stated that one day prior to the incident, accused Appellant Kamal Kishore and deceased Sujata came to their house. Suman, PW 6 has also stated that on 06.12.2003 i.e. one day prior to the incident when deceased Sujata came to her house, she told her in the kitchen about the demand of dowry. On that day, she wanted that deceased Sujata should stay with her but accused Kamal Kishore forcibly took her. The statement of Suman, PW 6 has also been supported by her husband Rajesh Kumar, PW 7. Of course, the neighbours Harish Kumar PW 12 and Smt. Sushila Joshi, PW 13 have not supported the prosecution story and have turned hostile but the evidence of above three witnesses coupled with the evidence of the Dr. Anil Lahoti clearly shows that deceased Sujata took the poison on account of harassment and demand of dowry. Learned trial Judge has rightly appreciated the evidence by holding that the death of Sujata occurred under the abnormal circumstances within one year of the marriage with accused Kamal Kishore, whose first wife also died under the suspicious circumstances. The contention of the learned Counsel about the non-disclosure of facts regarding the demand of dowry and voluntarily handing over the dead body of Sujata to the accused Appellant before the SDM, is of no consequence in the light of the above discussion. We are, therefore, in complete agreement with the finding of guilt arrived at by the learned trial Judge that deceased Sujata was harassed for demand of dowry soon before her death.

On the quantum of sentence, the learned Counsel for the Appellant has submitted that the accused is a young boy of 25 years of age and is the only male member to look after her mother, therefore, the sentence of life imprisonment may be reduced.

We have considered the submission of the learned Counsel for the Appellant and keeping in view the over all circumstances under which the death has been caused, especially the young age of the accused, we deem it proper to reduce the sentence from life imprisonment to a minimum sentence of seven years.

Accordingly, we allow this appeal in part. While maintaining the conviction of the accused Appellant Kamal Kishore under Sections 498A and 304-B Indian Penal Code recorded by Additional Sessions Judge (Women Atrocities and Dowry Cases), Bhilwara vide his judgment dt. 20.05.2004, his sentence u/s 304-B Indian Penal Code with life imprisonment is reduced to seven year''s R.I. and so far as the offence u/s 498-A Indian Penal Code is maintained. Both the substantive sentences shall run concurrently. Accused Kamal Kishore is in jail, he will serve out the remaining part of the sentence.