Rahua vs State of Haryana

R.L. Anand,

This is a criminal appeal filed by Rahua, fatherinlaw, Shyambir, husband, and Ghosan, motherinlaw, of the deceased Smt. Shimla, and has been directed against the judgment and order dated 7.12.1998, passed by the court of Additional District and Sessions Judge, Faridabad, who by giving benefit of doubt to Dharamwati, sister of Shyambir, convicted the appellants u/s 304B read with section 201, IPC and sentenced. Ghosan was extended the benefit of probation while Rahua and Shyambir were sentenced to undergo R.I. for a period of 10 years each u/s 304B, IPC. They were further directed to undergo RI for one year each u/s 201, IPC and to pay a fine of Rs. 500/ each; in default of payment of fine, they were directed to undergo R.I. for two months each. Both the substantive sentences were ordered to run concurrently.

The brief facts of the case are that on 2.6.1994, PW3 Rato wife of Bhule Ram caste Gujjar, resident of Kushka, approached in the police station and submitted an application, Ex. PC, to the effect that he had seven children; four daughters and three sons. Eldest daughter is Kamla and younger to her is Shimla, deceased. She was married about 21/2 years back in village Phoolwari with the accused Shyambir, in accordance with Hindu rites and sufficient dowry was given to her according to the financial capacity but right from the very inception of the marriage, the appellants and Dharamwati, sister of Shyambir, started taunting the deceased on account of inadequate dowry and, thus, started harassing her. Her daughter Shimla also complained about the harassment meted out to her by the accused a number of times. Every time, the parents of the deceased used to make understand their daughter and used to send her to the house of her inlaws at Phoolwari. Near about the last festival of Holi, Shimla had come to her house and they refused to send her to the matrimonial home. Rahua, fatherinlaw and Dharamwati, daughterinlaw, approached her Jeth, PW9 Ram Prasad son of Tej Ram, resident of Karimpur and accompanied by Ram Prasad, they came to the house of the complainant. At that time, PW2 Hari Chand, her devar, was also present. Rahua and Dharamwati begged pardon and requested her to send Shimla with them. On the intervention of Ram Prasad and Hari Chand, they sent their daughter to her matrimonial home. At that time, Shimla was pregnant. She had already been blessed with a daughter, who was about 11/2 years old. The story of the prosecution further proceeds through the statement of Rato that on 1.6.1994, Man Singh and Shish Ram came from Phoolwari and informed her at her house that Shimla had committed suicide by hanging herself. At that time, she was not present at the house. However, this information was received by their son Ravinder Kumar, PW8, who was a young boy of 14/15 years. Ravinder went to village Phoolwari and found the dead body of his sister Shimla, who was having injuries on her body. Ravinder asked the accused that they should wait and let him call his parents. Ravinder came to call her and, then, both of them reached village Phoolwari and by that time, Shimla had already been cremated by the accused. On her being asked as to why Shimla had been cremated in their absence, the accused lost their temper. Rato further stated that her husband usually remains ill and, therefore, the report could not be lodged yesterday. On that day, she had accompanied her Devar Hari Chand to the police station in order to give information about the death of her daughter.

The case was investigated into by PW5 ASI Nand Lal, who inspected the place of occurrence and recorded the statements of the witnesses. From the pyre of Shimla, ashes and pieces of bones were lifted and were taken into police custody vide recovery memo. Thereafter, the case was investigated into by SI/SHO himself. The accused Rahua was apprehended on 3.6.1994 and Shyambir was arrested on 6.6.1994. The case was also investigated by SI Davinder Singh. Ghosan was arrested on 15.6.1994 and Dharamwati was arrested on 26.6.1994. On the completion of the investigation of the case, the accused were challaned in the court of the Illaqa Magistrate u/ss 304B/201/34 IPC. The learned Magistrate supplied the copies of the documents to the accused according to law free of cost and vide commitment order dated 19.8.1994, committed all three accused to the court of Sessions. Vide order dated 3.10.1994, the learned Additional Sessions Judge, Faridabad, framed charges u/ss 304B and 201, IPC, against all the accused. The charges were read over and explained to them to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined Babu Lal, Patwari, PW1, who simply prepared the scaled site plan, Ex. PA. PW2 Hari Chand is brother of Bhule, father of the deceased, in the brotherhood. According to this witness, the marriage of Shimla was performed and after the marriage Shimla started staying in her matrimonial home at Village Phoolwari and whenever he used to visit her parental home, she used to complain that her husband Shyambir and motherinlaw, Ghosan were harassing and taunting her for not bringing sufficient dowry. It has further come in the statement of this witness that one Ram Prasad is a friend of Bhule. Rahua went to his place and with Ram Prasad he came to village Kushak. They requested that Shimla be sent to her matrimonial home. On their request, Shimla was sent. On 1.6.1994, he came to know through Shish Ram that Shimla had died by hanging in the house of her inlaws. It has also come in the statement of this witness that he came to know that the accused party had made a demand of buffalo. PW3 Rato is the mother of the deceased. The material portion of her statement can be described in the following manner :

"Smt. Shimla was born out of my wedlock with my husband Bhule. She was married with accused Shambir about 31/2 years ago. After the marriage she started residing in her matrimonial house at Village Phulwari. She used to come on visits to Kushak. She complained that her husband, her motherin law Smt. Ghoshan, her Nanad and her fatherinlaw, who are the accused and are present in court, were harassing her on the ground that sufficient dowry was not given by us. My daughter requested us that she should be not sent to Phulwari. The fatherinlaw, motherinlaw and sisterinlaw of Shimla came to our place and asked us to send Shimla to Phulwari but we did not send her. After that Rahua accused came along with Ram Parsad of Karimpur. On asking of Ram Parsad, we sent Shimla to her matrimonial house. Shimla was treated with cruelty in her matrimonial house by the accused after being sent there. She was given beatings also. Accused were always taunting her that her parents had not given anything in dowry and they were demanding buffalo."

In the crossexamination, she stated that clothes, utensils and customary articles of dowry were given by her of her own and were not demanded by the accused. However, she stated that the accused used to taunt Shimla that even after long stay at her parental home, she was not bringing sufficient clothes, etc. Many clothes were wanted by the accused. It cannot be lost sight of the fact that Rato is an illiterate lady as deposed by her in the cross examination.

PW4 is Constable Randhir Singh, who gave his statement on affidavit, Ex. PD. PW5 is ASI Nand Lal, who simply deposed that on 2.6.1994 Rato produced the application, Ex. PC, before him on the basis of which formal FIR, Ex. PC/1, was lodged. He partly investigated this case and prepared rough site plan, Ex. PF. He went to the cremation ground and took into possession ashes and bones vide recovery memo, Ex. PB. PW6 is SI Devender Singh, who simply arrested Ghoshan on 15.6.1994. Bhule Ram, father of the deceased appeared as PW7, and the material portion of his statement can be described in the following words :

"I have seven children. The eldest is Kamla, next is Shimla who was married to Shambir s/o Rahuwa r/o Phulwari accused on 16.5.1991 according to Hindu rites. I presented sufficient dowry as per my status in the marriage. After three months of the marriage, accused started harassing my daughter Shimla for inadequate dowry. They some time used to demand cash, some time they raised demand of a buffalo and some time they raised demand of ceiling fan, and some time they raised demand of bricks. I have installed a brick kiln in my field. My daughter Shimla used to complain to me about the demand of dowry of above articles by the accused. My daughter used to tell me that her sisterinlaw Dharamwati, motherinlaw Ghoshan, fatherinlaw Raghuwa and husband Shambir accused used to harass her for demand of dowry. My daughter once delivered a child. I presented clothes and eatables to my daughter after the child was born. When I went there with these articles, my daughter started weeping. My daughter then told me that she was not provided any food or eatables by the accused. Therefore, I brought Smt. Shimla to my home with me. After 2 or 3 months thereafter, my Jija Daya Ram and accused Shambir came to my house and tendered apology and on their asking, after making Shimla understand, I sent Shimla with them to the matrimonial home. After few days thereof, accused again started harassing my daughter for demand of dowry. Around Holi festival, my daughter returned to my home and told about the demand of dowry by the accused. I sent Shimla after 5 to 6 months after Holi festival in the year 1993 with Shambir and Lila. The accused again started harassing my daughter."

This witness categorically stated that on 31.5.1994 his daughter Shimla was killed by the accused in relation to the demand of dowry. He was not present in the home as he had gone in the house of Kamla, along with his wife. On 1.6.1994, his son Ravinder reached in village Lohatki at about noon time and told that all the accused had killed his daughter for want of dowry. Ravinder also told him that he saw some injury marks on the person of Shimla.

PW8 Ravinder is the real brother of Shimla, deceased, and he stated that whenever his sister used to come to the house of her parents, she used to make a complaint about the harassment given to her by the accused in connection with the demand of dowry. He further deposed that on 31.5.1994, he was all alone in the house when he was informed about the death of his sister. He went to village Phoolwari and saw some marks on the neck, stomach and legs of the deceased, he asked the accused not to cremate the dead body till his parents come. On the next day, he along with his mother went to Phoolwari but the dead body of Shimla had already been cremated. Ram Parsad, aforesaid, appeared as PW9. According to this witness, Rahua''s daughter Dharamwati and one of their relatives Hardev Singh came to his village and they told him that Bhule Ram, father of the deceased, was not sending his daughter to the matrimonial home. He told to the aforesaid persons that since they were harassing Shimla with the intention to demand more dowry, therefore, the fault lies with them. He further stated that he once visited the house of the accused where the accused raised the demand of dowry. It has further come in the statement of this witness that he persuaded the parents of the deceased to send their daughter to her matrimonial home. It was assured by the accused that they would not torture and harass the deceased. Lastly, it has come in the statement of this witness that on his intervention, Shimla went to the house of her inlaws but after 2/3 months thereafter, she died. In the crossexamination, it has come in the statement of this witness that he is not related to either of the parties and he even attended the marriage of Shimla. He had good relations with Bhule Ram as he was his class fellow. He denied the suggestion of the accused that Shimla was never harassed or that her last rites were performed in the presence of her parents.

SI Daya Nand appeared as PW10 and he partly investigated the case. He simply arrested accused Dharamwati. PW11 HC Ramesh Chand gave his statement on affidavit.

In this case no postmortem examination on the dead body of Shimla took place. Though the ashes and pieces of bones were sent to the office of the chemical examiner, but there is no report determining the cause of her death. Thus, we are only left with the oral evidence of Ravinder Kumar, who allegedly went to the house of accused on coming to know about the death of his sister and according to this witness, he saw some cut marks, etc. on the body of the deceased. Whether the provisions of section 304B, IPC, in the present case are attracted or not will be the moot point which I will discuss in the subsequent portion of this judgment.

On the closure of the prosecution evidence, the statements of the accused were recorded u/s 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances. The plea of Rahua was as follows :

"Smt. Shimla had died a natural death and the parents and other relatives of deceased had come to our village and had satisfied themselves regarding the cause of her death and had participated in the last rites of deceased. Thereafter, in order to harass us the false case was registered against us."

The defence of Shyambir and Ghoshan was similar as that of Rahua.

When called upon to enter into their defence, the accused examined Shish Ram, DW1, and according to this witness, the village Panchayat was present at the time of the last rites of Shimla and she was cremated in the presence of respectables and relatives of both the villages. There was no complaint from the side of the complainantparty and the accused had never demanded dowry or harassed or tortured the deceased in any manner. In fact, the deceased was residing happily in the house of her inlaws. In the crossexamination, this witness admitted that Shimla had died due to illness and she remained ill for seven days and she was got treated from Bamni Khera. She suffered from fever. There is no satisfactory evidence in this regard that Shimla was suffering from any fever, etc. or that she was treated from Bamni Khera. Nathi appeared as DW2 and according to this witness, about 25/30 persons from the parental village of the deceased were present at the time of cremation. In the cross examination, this witness admitted that he did not make any complaint to the police or even at the time when the police came to the village to arrest the accused. None of the accused had ever approached him to intervene into the matter on the plea that they have been falsely implicated by the police. DW3 Bir Singh is Sarpanch of village Phulwari and he supported the case of the accused, he also stated that the parents of Shimla Devi were present at the time of funeral of the deceased. Kishan appeared as DW4 and he also toed the line of DW3.

The learned trial court acquitted Dharamwati. However, the trial court disbelieved the defence of the present appellants that the deceased was having fever, etc. and convicted them u/ss 304B, 201, IPC. Ghoshan was given the benefit of probation and Rahua and Shyambir were sentenced in the manner as stated above. No appeal has been filed by the State against Ghoshan though this court is convinced that the reasons advanced by the trial court on extending probation of Ghosan were not adequate.

Be that as it may, I have heard Pt. Chander Singh, Advocate, on behalf of the appellants and Mr. J.S. Ahlawat, on behalf of the respondent and with their assistance have gone through the record of this case.

The first point for determination in this case would be whether the trial court was justified in recording conviction u/ss 304B/201, IPC, against the appellants or not. In the opinion of this court, the prosecution has not been able to bring sufficient evidence on the record so as to bring the case of the prosecution u/s 304B, IPC, even with the aid of section 113B, Indian Evidence Act.

Section 304B IPC lays down that when the death of a woman is caused by any burns or bodily injury or 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. In order to attract the provisions of section 304B, IPC, the prosecution has to prove the following facts :

"(1) That the death of the woman took place due to burns or bodily injury or otherwise than under normal circumstances;

(2) That such death had occurred within 7 years of her marriage;

(3) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband; and

(4) That such cruelty or harassment should be for or in connection with demand of dowry."

In the present case, the first ingredient is missing for want of evidence. I have stated above that there was no postmortem examination on the dead body of the deceased. The police took into possession the ashes/bones from the pyre of the deceased. Those were sent to the office of the chemical examiner and there is no opinion of the expert from which it can be inferred that the death of Shimla had taken under abnormal circumstances. We have only oral evidence of Ravinder Kumar, a small boy of 14 years, who received the information about the death of his sister and went to village Phulwari in order to see the dead body of his sister. According to this witness when he went there, he saw some injuries on the body of his sister. As against this, the stand of the accused is that the deceased was suffering from fever and she died a natural death. Apart from that, there is no evidence at all about the cause of death of Shimla. The testimony of Ravinder cannot be accepted. It is not even clear what type of injuries had been suffered by Shimla and whether Ravinder at that time would be more interested to see the injuries of his sister, being a small boy of 14 years. He must not have gone near the dead body. He was simply informed about the death of his sister that she had died on account of hanging. Even the I.O. has not been able to collect any evidence about the cause of death of the deceased. In these circumstances, the first ingredient of section 304B, IPC, is missing even with the aid of section 113B, Indian Evidence Act.

The counsel for the Statement submitted that readily inference can be drawn u/s 304B, IPC, once it is established that the deceased was subjected to cruelty or harassment in connection with the demand of dowry and that when the deceased had died within seven years of her marriage.

The argument cannot be accepted. Presumption will arise only once the ingredients of the section are proved. In this case the first ingredient of section 304B, IPC, is missing and, in this view of the matter, section 113A, Indian Evidence Act, cannot come to the help of the prosecution. Once, section 304B, IPC, is deleted from this case, section 201, IPC, automatically falls.

Now, it is to be seen whether the appellants can be convicted for any other offence though not charged.

I have considered the evidence of this case and I am of the opinion that the accused have committed the offence u/s 498A, IPC. As per this section whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. ExplanationB of section 498A, IPC, is very relevant for our purposes, which lays down as follows :

"(b) harassment of the woman where such harassment is with a view of coercing her or any person relating to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

I have already reproduced above the statements of the relevant witness from which an irresistible conclusion can be drawn that the deceased Shimla was treated with cruelty within the meaning of Explanation B to section 498A, IPC. In matrimonial cases, the relations of the deceased are the best witnesses. In this case, Hari Chand is uncle (Chacha), from brotherhood of Shimla, Rato is mother, Bhule is father, Ravinder Kumar is brother and so much so even Ram Parsad, an independent persons have deposed with one voice that the deceased was subjected to cruelty in connection with the demand of dowry. At one point of time, they made a demand of buffalo. The deceased was not happy in the house of her inlaws. She had been complaining to her parents from time to time that the accused had been making demand of dowry, clothes, etc. Even the evidence has come that at one point of time, the deceased started residing in the house of her father and she was not inclined to go to her matrimonial home. Due to persuasions made by Ram Parsad, she went to the house of her inlaws but, again, the attitude of the accused did not improve and, finally, after two/three months she died in the house of her inlaws.

Counsel for the appellants made efforts to show that even the offence u/s 498A, IPC, is not made out in view of the shaky stand taken up by Smt. Rato. In support of his contention, counsel for the appellants has drawn my attention to the crossexamination of Smt. Rato and submitted that as per her statement, the articles of dowry were given of their own by the parents of the deceased and those articles were never demanded by the inlaws.

I have been the statement of Rato, who is an old and illiterate lady. She is a rustic lady and if her entire statement is read, she was categorical that the accused had been making demands from time to time; some times of clothes and sometimes of buffalo, etc. Bhule Ram is very categorical. He is the incharge of the affairs of the house. His information must be better than that of his wife. He even took into confidence PWs 2 and 9 and with their persuasion the matter was patched up for a while but, unfortunately, for the deceased the things did not improve. In view of the overwhelming evidence, this court is of the considered opinion that the appellants were responsible for the commission of the offence u/s 498A, IPC, and they can be convicted under this section because section 498A, IPC, is a lesser offence as compared to section 304B, IPC.

Resultantly, I modify the conviction of the appellants and they are, now, convicted u/s 498A, IPC. The trial court has already extended the benefit of probation to Ghoshan. Therefore, I do not want to enhance her sentence into a substantive sentence. She will be deemed to have been released on probation as ordered by the trial court. So far as Rahua and Shyambir are concerned, they are hereby sentenced to undergo RI for 3 years each and they shall pay a fine of Rs. 5,000/ each; in default of payment of fine, each one of them shall further undergo RI for six months. The conviction and sentence of the appellants u/s 304B, IPC, is however, set aside. The intimation in this regard be sent to the jail authorities.

The appeal stands disposed of.