IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S. B. CRIMINAL APPEAL No.228/2005. : : Shimbhu Dayal & Ors. Vs. State of Rajasthan. : : Date of Order : 3.8.2011 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. Rakesh Kumar ] Mr. Amit Choudhary ] Mr. Desh Raj Gosinha ] Mr. Rajendra Raghav ] for the appellants. Mr. Laxman Meena, P. P. for the State. BY THE COURT :
REPORTABLE Heard learned counsel for the parties.
2. The accused-appellants have preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 15.2.2005 passed by learned Special Judge (Women Atrocities & Dowry Cases), Jaipur City, Jaipur in Sessions Case No.103/2003 whereby each of the appellants has been convicted for the offences under Sections 498-A, 201 & 304-B IPC and has been sentenced to one year rigorous imprisonment with a fine of Rs.500/-, in default of payment of fine to further undergo one month rigorous imprisonment for the offence under Section 498-A IPC, sentenced to one year rigorous imprisonment with a fine of Rs.500/-, in default of payment of fine to further undergo one month rigorous imprisonment for the offence under Section 201 IPC and sentenced to ten years rigorous imprisonment with a fine of Rs.1,000/-, in default of payment of fine to further undergo two months rigorous imprisonment for the offence under Section 304-B IPC.
3. The brief relevant facts for the disposal of this appeal are that on 5.7.2003 the complainant Babulal Sharma submitted a written report (Ex.P/3) before Superintendent of Police, Jaipur District, Jaipur stating therein that his daughter Mintu @ Mohini was married to appellant Shimbhu Dayal on 22.2.2002 and at the time of marriage sufficient dowry was given, but in-laws of his daughter were not satisfied with the dowry given and since after her marriage they continuously harassed her in connection with demand of dowry and when her daughter, after some days of marriage, came to her parental house she told that her mother-in-law is complaining that the marriage was not performed according to their expectations. In the report, it was also stated that when her daughter was pregnant, her mother-in-law forced her to do heavy household work and when they complained about that, they assured that in future no such complaint would come. It was also stated in the report that the in-laws of her daughter were also not satisfied with the gifts given at the ceremony of ‘Kua Pujan’ of the newly born child and appellant Shimbhu Dayal demanded Rs.45,000/- by saying that they were expecting that at the time of marriage Rs.1,50,000/- would be given in cash but that expectation was not fulfilled. In the report, it was also stated that on 29.6.2003 he received an information about serious condition of his daughter and when he alongwith his some relatives reached at the matrimonial home of his daughter, by seeing her daughter’s body, they suspected that she has been poisoned. On the basis of written complaint lodged by the complainant, FIR No.126/2003 for the above offences was registered at Police Station Jamvaramgarh, Jaipur and after usual investigation charge-sheet was filed against the appellants. The learned trial Court framed necessary charges against the appellants and in support of charge, the prosecution produced oral as well as documentary evidence whereas in examination under Section 313 Cr.P.C. each of the appellants denied prosecution allegation and evidence. The appellants in their defence examined four witnesses. The learned trial Court after evaluating and appreciating the evidence available on record and hearing both the parties, convicted and sentenced the appellants by the impugned judgment and order dated 15.2.2005 in the manner as has been stated hereinabove. Hence, the instant appeal.
4. There is no dispute regarding the fact that marriage of deceased Smt. Mintu @ Mohini with appellant Shimbhu Dayal was solemnized on 22.2.2002 and she died on 29.6.2003 at her matrimonial home within 7 years of marriage. It is also to be noted that postmortem of the body of the deceased was not conducted.
5. Assailing the judgment and order passed by the learned trial Court, the learned counsel for the appellants have raised following grounds :
(1) Death of deceased occurred on 29.6.2003 and information about the same was immediately sent to the parents of the deceased and upon that, complainant alongwith his several relatives reached the matrimonial home of the deceased but even then report was lodged on 5.7.2003 and the prosecution has failed to give any sufficient reason for this inordinate delay. The evidence available on record indicates that complainant and his near relatives were present at the time of funeral and at that time they had no objection and no suspicion was made that the death of Smt. Mintu @ Mohini has occurred otherwise than in natural course. If any demand of dowry in connection with marriage would have been made and the death would have occurred in an unnatural manner then certainly the complainant and his relatives would have made objection for funeral and would have made demand for postmortem.
(2) There is no evidence on record showing that deceased at any time after marriage was harassed and treated with cruelty by the appellants or any of them in connection with demand of dowry or for any other reason. No report or complaint regarding any harassment or cruel treatment was ever lodged prior to present report after the death of Smt. Mohini. If since the time of marriage the appellants have ever harassed her in connection with demand of dowry, some complaint or report might have certainly lodged and in absence of it, it cannot be held that the deceased was harassed or subjected with cruelty in connection with demand of dowry.
(3) On the basis of evidence available on record at the most, it can be said that deceased complained that even during her pregnancy her mother-in-law asked her to do some heavy household works. Even if it is admitted that she was asked to do some household work, it can never amount to harassment or ill-treatment by the reason that parties belong to rural area and performance of household work is a natural phenomena. On the basis of evidence available on record, even if it be held that on the occasion of ‘Kua Pujan’ ceremony of son of appellant Shimbhu Dayal, appellants were not satisfied with the quality of gifts given on that occasion and thereafter appellant Shimbhu Dayal demanded Rs.45,000/-, such demand cannot be said to be a demand in connection with marriage and it cannot come within the purview of dowry as defined in Section 2 of the Dowry Prohibition Act.
(4) For an offence punishable under Section 304-B IPC to be made out, it is also essential that cruelty or harassment is inflicted soon before death to the woman concerned, but in the present case as per the prosecution itself the last demand in the form of Rs.45,000/- was made about one and half month before death of deceased, so it cannot be held that soon before death demand of dowry was made and the death is the result of cruelty or harassment.
(5) According to the prosecution, when complainant and his relatives came to matrimonial home of the deceased by seeing the condition of the body of deceased, they suspected that the cause of death may be administration of poison. Although, during trial FSL report was not produced, but the FSL report available on record shows the ash and bones sent for analysis gave negative test for metallic poison. This clearly shows that the suspicion of complainant was without any basis.
6. The learned counsel for the accused-appellants in support of his submissions relied upon several cases.
7. On the other hand, learned Public Prosecutor by supporting the impugned judgment and order has submitted that evidence available on record clearly establishes that soon after marriage the deceased was continuously harassed and subjected to cruelty in connection with demand of dowry and on the last occasion appellant Shimbhu Dayal, who is the husband of the deceased, demanded Rs.45,000/- as dowry by complaining that they were expecting that Rs.1,50,000/- would be given in cash at the time of marriage but that was not done. It was also submitted that the evidence available on record reveals that complainant and his near relatives on 29.6.2003 itself immediately went to concerned police station for lodging report, but the SHO did not receive the report and he sent them back saying firstly they attend funeral of the deceased. It was also submitted that written report shows that it was submitted on 30.6.2003 before Superintendent of Police but it reached in the concerned police station on 5.7.2003 upon which formal FIR was registered. It was also contended that looking to the fact that the death occurred within seven years of marriage at matrimonial home, it was for the appellants to explain in what circumstances death of Smt. Mohini was caused but they have failed to show any plausible cause.
8. I have considered the submissions made on behalf of learned counsel for the respective parties, gone through the record made available to me, relevant legal provision and the case law cited before me.
9. The offence of dowry death has been described in Section 304-B IPC and for an offence to be made out under this provision, following ingredients are essential :
(i) Death of some woman must have caused;
(ii) The cause of death must be by any burns or bodily injury or otherwise than under normal circumstances;
(iii) The death must have caused within seven years of marriage of such woman;
(iv) It must be shown that soon before her death she was subjected to cruelty or harassment and
(v) Such cruelty or harassment was for or in connection with any demand of dowry.
According to the explanation appended to this provision, the word dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act.
10. The Hon’ble Supreme Court in the case of Satvir Singh Vs. State of Punjab reported in AIR 2001 SC 2828, has held that :
Prosecution in case of offence under Section 304-B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word ‘dowry’ in Section 304-B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage, and the third occasion may appear to be an unending period. But the crucial words are in connection with the marriage of the said parties. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There may be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of ‘dowry’. Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage.
The Hon’ble Supreme Court in the above case has also observed that :
It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304-B is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. Her death should in all probabilities have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the Court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the Court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept soon before her death.
The Hon’ble Apex Court in the above case has clearly held that customary payments in connection with birth of a child or other ceremonies prevalent in different societies do not come within the purview of dowry and if on such an occasion demand of some money, gifts is made it cannot be a demand for dowry and if cruelty or harassment is inflicted on the woman by the reason that the demand remained unfulfilled, it cannot be said that cruelty or harassment is related to dowry within the meaning of Section 304-B IPC.
11. In the present case from the evidence available on record, it cannot be convincingly held that any demand of dowry in connection with marriage was ever made by the appellants or any of them. There is only general allegation that when after marriage deceased Smt. Mohini came to her parental house she complained that her mother-in-law was not satisfied with the dowry given at the time of marriage. According to prosecution itself, the deceased complained that even during her pregnancy her mother-in-law forced her to do some heavy household work. I am in agreement with the contention of learned counsel for the appellants that even if it is admitted that the deceased was asked or forced to do heavy household works, it cannot amount to harassment or cruelty by the reason that it is a natural phenomena in families belonging to rural areas. The evidence available on record shows that both parties belong to agricultural families and it is very usual in such families that female members perform works like cutting of grass in fields, bringing water from well etc etc. On the basis of evidence on record at the most, it can be held that on the occasion of birth of son, demand of gifts was made and appellants were not fully satisfied with the quality of gifts given at the ceremony of ‘Kua Pujan’. I am of the view that even if such demand was made and appellants were not satisfied with the gifts given, it does not amount to demand of dowry in connection with marriage as held by Hon’ble Apex Court in the above case. From the evidence available on record, it cannot be convincingly accepted that appellant Shimbhu Dayal demanded Rs.45,000/- or any other amount by saying that they were expecting that Rs.1,50,000/- would be given in cash at the time of marriage, but that expectation was not fulfilled at that time. It is not clear when such demand was made and from whom. Even the witnesses produced by the prosecution in their cross-examination, have admitted that the appellant Shimbhu Dayal after satisfying himself returned back with deceased. It is to be noted that even according to the prosecution itself, the alleged demand of Rs.45,000/- was made one and half month before the death of the deceased. From the evidence available on record, it is not clear when ‘Kua Pujan’ ceremony was performed, therefore, in absence of clear evidence it cannot be said any demand of dowry was made soon before death of Smt. Mohini and when such demand was not fulfilled, she was harassed or treated with cruelty. It is not the case of the prosecution that when demand of Rs.45,000/- was not fulfilled the deceased was thereafter continuously harassed or treated with cruelty. Only by the reason that the death occurred within seven years of marriage at the matrimonial home, it cannot be held that the deceased was subjected to cruelty or harassment in connection with any demand of dowry. The presumption under Section 113-B of the Indian Evidence Act can arise only when prosecution is able to show that soon before death there was cruelty or harassment, only in that case presumption under Section 113-B can operate.
12. The fact of delay in lodging the report also makes the prosecution case doubtful. The formal FIR was registered at Police Station Jamvaramgarh on 5.7.2003 on the basis of written report (Ex.P/3) which was submitted before Superintendent of Police, Jaipur District, Jaipur. This report is type written and it runs in six pages. Although, it bears date 30.6.2003, but it does not have any such endorsement that it was submitted before Superintendent of Police on 30.6.2003 itself. The endorsement of Police Station Jamvaramgarh on this report is to the effect that report was received by post from Superintendent of Police, Jaipur District, Jaipur vide letter No.FIR D/27 dated 5.7.2003. None of the prosecution witness has stated that the report was submitted on 30.6.2003 itself before the Superintendent of Police and it was sent by him on 5.7.2003. The explanation given for delay in lodging the report is also not satisfactory. The prosecution witnesses including complainant in this regard have deposed that when they suspected that the death of Smt. Mohini has been caused otherwise than in normal circumstances they complained about it to the appellants and objected immediate funeral of her and they went to lodge report to the police station concerned but the SHO did not register their report. It is an admitted fact that when report was not registered, complainant and his relatives came at the site of funeral. Evidence on record shows that at least four persons from the side of parents of the deceased went for the funeral of the deceased. It cannot be believed that upon suspicious being made about the cause of death, all four persons went to the police station for lodging report and none of them stayed back to prevent funeral. In criminal cases FIR plays a very important role and if there is undue delay in lodging report about the incident and the delay remains satisfactorily unexplained, the prosecution case becomes doubtful. In the present case, the explanation given by the prosecution cannot be said to be satisfactory even if it is admitted that on 29.6.2003, the concerned police station refused to register report and the SHO asked the complainant and his relatives to first attend the funeral of the deceased, even then it has not been explained how the further delay of five days was caused in submitting the report before the Superintendent of Police. Only by the reason that the report (Ex.P/3) bears date 30.6.2003, it cannot be presumed that it was submitted on that day itself, but it was sent to the concerned police station on 5.7.2003.
13. So far as offence under Section 498-A IPC is concerned, I am of the firm view that on consideration of the evidence available on record, it cannot be held that offence punishable under this provision is made out. Section 498-A IPC is as follows :
498A. Husband or relative of husband of a woman subjecting her to cruelty- 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.
Explanation-For the purpose of this section, cruelty means –
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related 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.
14. For an offence under Section 498-A to be made out, it is essential that cruelty as defined in the explanation is inflicted on a woman. According to this definition cruelty means any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or harassment of the woman where such harassment is with a view to coercing her or any person related 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.
15. On the basis of evidence, at the most it can be held that the demand of Rs.45,000/- was made by the appellant Shimbhu Dayal himself. There is no evidence on record that the appellant compelled or coerced his wife Smt. Mohini to ask her parents to fulfill that demand. According to the prosecution witnesses after the birth of child appellant Shimbhu Dayal and deceased came together to the parental house of the deceased and the appellant Shimbhu Dayal demanded Rs.45,000/- by saying that at the time of marriage they were expecting Rs.1,50,000/- in cash would be given, but their expectation was not fulfilled, so now Rs.45,000/- must be paid. According to the prosecution witnesses at that time Rs.10,000/- were given and after satisfying himself the appellant Shimbhu Dayal together with his wife returned back to the matrimonial home of the deceased. There is no evidence on record so as to show that even after that the appellant was not satisfied and he harassed or compelled her to demand remaining amount from her parents. Therefore, in absence of such evidence the offence punishable under Section 498-A IPC cannot be said to be made out.
16. So far as offence under Section 201 IPC is concerned, for such an offence to be made out it has to be proved by the prosecution that evidence of commission of an offence got disappeared with the intention of screening the offender from the legal punishment. In the present case, as prosecution has failed to prove that the death of deceased Smt. Mohini was caused otherwise then in natural circumstances, it cannot be said that the funeral was performed without efforts being made to conduct postmortem in order to destroy evidence of some offence committed by the appellants or any other person.
17. The learned trial Court without considering the requirements of relevant legal provisions in a proper perspective wrongly came to a conclusion that appellants are guilty of the offences. I am of the considered view that from the evidence available on record, the appellants cannot be held guilty of offences levelled against them.
18. Consequently, the appeal filed on behalf of the appellants is allowed and the judgment of conviction and order of sentence dated 15.2.2005 passed by learned Special Judge (Women Atrocities & Dowry Cases), Jaipur City, Jaipur in Sessions Case No.103/2003 is set aside and the appellants are acquitted of the charges levelled against them. The appellants Narain Lal S/o Shri Bhagwan Sahai and Smt. Omi W/o Shri Narain Lal are on bail, their bail bonds are cancelled. If the appellant Shimbhu Dayal S/o Shri Narain Lal is still in custody, he shall be immediately set free, if not required in any other case.
(PRASHANT KUMAR AGARWAL),J.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
AMIT ARORA JUNIOR PERSONAL ASSISTANT.