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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.