IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CRIMINAL APPEAL No. 1055 of 2002 HARI RAM V/S STATE Date of Judgment : 22nd Jan. 2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI C.M.TOTLA,J. Mr. VINIT JAIN, for the appellant / petitioner Mr. LR UPADHYAY, PP & Mr. PRADEEP CHOUDHARY, for the complainant. BY THE COURT : (PER HON'BLE GUPTA,J.) The appellant, by this appeal seeks to challenge the judgment of the learned Addl. Sessions Judge (F.T.), Jodhpur dt. 16.10.2002, passed in Sessions Case No. 64/2002, convicting him for the offence under Section 498A and 304B IPC, and sentencing him to three years R.I. with a fine of Rs. 1,000/-, in default to undergo one month's R.I., and imprisonment for life respectively. Both the substantive sentences were ordered to run concurrently. The necessary facts are, that on 7.2.2002 Pukhraj submitted a written report at Police Station Luni, to the effect, that his daughter Manju was married with the 2 appellant some 7-8 months ago. Since after one month of the marriage the accused started harassing her for dowry, and started treating her with cruelty, while sufficient dowry was already given, looking to the informant's capacity. It was alleged that some 15 days ago his daughter came to the house, and told, that her husband is harassing her, and gives physical beating. However, informant advanced good counselling, and sent her back to in laws house, assuring her that he will talk to them. It is further alleged that in the morning (on the day of information) at 8.30 one Omji s/o Mohanlal and Mishrilal s/o Kaluram of Village Salavas came to his village Guda, and informed, that his daughter has died, thereupon he telephoned to his brothers at Jodhpur to reach there, and he also went to Salavas. By the time he reached his brother also reached, and on asking to the villagers it was told that she has died by drowning in the water tank, while on his asking the appellant as to how she died, no satisfactory answer was given. However, on further enquiries by him and the villagers, the appellant informed, that in the night there was some dialogue about divorce, and there was scuffle between the two. It was thus apprehended, that she has been killed and thrown in the water tank. It was also alleged that earlier also beating was given any number of times to her, for which she was complaining to the parents. On this report a case was registered under Section 498A and 304B, and after investigation charge-sheet was submitted. The case was committed, and then was transferred to the learned trial 3 court. The learned trial court framed charges for the aforesaid offences. Which were denied by the appellant. During trial the prosecution examined 19 witnesses, and tendered in evidence some 26 documents, and 16 articles. Then, statements of the accused were recorded under Section 313 Cr.P.C. who took the stand of denial, and ignorance. However, he examined two witnesses in defence. On completion of the trial, the learned trial court convicted and sentenced the appellant as above. Assailing the impugned judgment it is contended by the learned counsel for the appellant, that in order to make out the two offences, the basic ingredient is that there should be demand of dowry, and that there should be harassment and cruelty soon before death, while perusal of the prosecution material would show that the evidence is thoroughly discrepant, and at every stage the prosecution has made improvements, inasmuch as a very vague allegation of demand of dowry was made in the first information report. During trial it has been improved to a demand of motor cycle, T.V., and cash, and in that regard also the evidence of different prosecution witnesses from the parental family is discrepant. It was also submitted that apart from this, the over all conduct of the witnesses does clearly show, that the theory of demand of dowry does not at all inspire confidence, inasmuch as there is contradiction as to, to whom did she narrate about her 4 being meted with harassment on account of dowry, what was the demand of dowry, and what steps were taken by the parental persons, admittedly no Panchayat was ever convened to patch up the things, nor any complaint was lodged to the police, about any beating etc. said to have been given, and the evidence is discrepant about the occasions and frequency of the deceased visiting to her parental house. It is also contended that even according to the prosecution, as deposed by some of the witnesses, that the relations of the parties were sweet, and cordial till death of the deceased, as such it cannot be said that there was any demand of dowry, much less continued demand of dowry, and when she was amicably and peacefully coming and going to the parental house, and in laws house, and in that process she was brought to parental house on the occasion of Sakranti and lived for about 11 days, and had returned 15 days ago, and there is nothing to show that she was brought to the parental house on account of any dispute regarding dowry, thus the story of demand of dowry does not inspire confidence. It was then contended, that even regarding cause of death also, things have been improved by the prosecution, inasmuch as during investigation the story was about her having been killed by throwing into the water tank in connection with the demand of dowry, while during trial, stand was changed, to the effect, that she was killed by administering poison, and then was thrown in the water tank, dead. This improvement has been made after receipt of the post mortem report, and Forensic Science 5 Laboratory report, where-from it became clear about presence of aluminium phosphide commonly known as celphos, while in the site inspection note and site plan Ex. 2, nothing was found to show that any such poison was administered, or consumed. It was also contended, that P.W. 10 Pista, who is none else than the real sister of deceased, has also not supported the prosecution story, of course the prosecution has declared her hostile. Then, it was contended that the linking evidence about preservation of viscera, and parts of the body, sent for forensic examination were sealed, and remained intact till reaching the Forensic Science Laboratory, has not been produced by the prosecution. The evidence of P.W. 14, 15, 16, and 19 does not complete the chain, as Heer Singh has not been examined, and it has come on record, that when the samples were sent to the Laboratory, objection about seal of sample was made, and therefore, they were brought back and re- sealed, and thus it cannot be said with certainty, that the samples examined were the same as were taken into possession by the medical board conducting post mortem examination. Learned counsel for the appellant placed reliance on the judgment of the Hon’ble Supreme Court in Satpal Vs. State of Haryana, reported in 1998 SCC(Cr.)- 1372, wherein even the charges under Section 306 IPC was quashed by the Hon’ble Supreme Court. Reliance was next placed on the judgment in the case of Bhagwan Das Vs. Kartar Singh, reported in 2007 R.Cr.D.-603(SC), where it was held that mere harassment is not enough. Then reliance 6 was placed on the judgment of the Hon’ble Supreme Court in Shyam Lal Vs. State of Haryana, reported in 1997 SCC (Cri.)-759 (para-11). Then, learned counsel pressed into service the conduct of the accused, to the effect, that the accused did not try to conceal anything, rather immediately on death, on his own, sent information to the parental relations, by sending two people to call them, and accordingly parental people did come, and with their association post mortem examination was conducted, and in their presence dead body was cremated, which conduct negatives existence of any guilty conscious, on the part of the appellant, and in this regard placed reliance on the judgment of the Hon’ble Supreme Court, in Lekh Ram & Brij Lal Vs. State of Punjab, reported in 1992 Cr.L.R. (SC)-394. In the last it was also submitted that in any case, if the Court finds the accused guilty, then in that event, sentences awarded be substantially reduced, as the accused is in custody since the date of arrest being 7th Feb. 2002, and he may be released on sentence already undergone. Learned counsel appearing for the complainant, on the other hand, supported the impugned judgment, and relied upon the judgment of the Hon'ble Supreme Court in Devi Lal Vs. State of Rajasthan, reported in AIR 2008 SC-332, Kans Raj Vs. State of Punjab, reported in 2000 SCC(Cri.)-935, head note-C, and submitted, that the material available on record does sufficiently establish the guilt. It was submitted that harassment or cruelty for demand of dowry is 7 sufficient to attract the offence, and it is not necessary that what precise item of dowry has been claimed or demanded should be meticulously established. Then, learned counsel invited our attention to Ex.-2 site plan, and submitted, that therein it is clear that bedding was found lying unfolded, and thereon various articles were lying helter-skelter, which included one Tabiz in the red thread, two golden rings, and 3-4 pieces of one red bangle etc., and the circumstances show, that in the night there was some scuffle between the couple, for which no explanation is coming forward from the accused side, and relying upon the judgment of the Hon'ble Supreme Court in Trimukh Maroti Kirkan Vs. State of Maharashtra, reported 2007 Cr.L.R.(SC)- 9, and State of Rajasthan Vs. Parthu, reported in 2007 Cri.L.J.-4722, it was contended, that when it is shown that in the room, being the bed room, there were only two persons being the accused and the deceased, and the deceased is found dead in the morning, the burden lay on the accused to explain as to under what circumstances she died, and there being no explanation whatever, rather the stand of the accused is of complete denial, no fault can be found in the conviction recorded by the learned trial court. Learned counsel also invited our attention to a latest judgment of the Hon'ble Supreme Court, being dt. 7.1.2009, in Cr. Appeal No. 58 of 2002 Prem Kanwar Vs. State of Rajasthan. We have heard learned counsel, and have gone 8 through the entire record over again, with the assistance of both the learned counsel, and the learned Public Prosecutor. To start with we may look at the F.I.R. Ex.P-10. It is a written report submitted on the spot on 7.2.2002 at 1.30 P.M. by Pukhraj, the father of the deceased, alleging that informant's daughter Manju was married with the accused some 7-8 months ago, and since after one month of the marriage only the accused started harassing her for dowry, and gave physical beating also, while he had given sufficient dowry, according to his capacity. It is then alleged, that 15 days ago, the deceased came to his house, and told that the husband harassed perhaps treated her with cruelty for dowry. However, he gave good counselling, and sent her back to in-laws place. Then, it is alleged that this morning at 8.30 Omji and Mishrilal of Salavas came to his village, and informed about death of his daughter, whereupon he telephoned his brothers, and called them at Salavas, and all of them reached at Salavas, and asked villagers about the cause of death, who gave out that she died of drowning, and when they asked the accused as to what happened, he could not give any satisfactory answer, and on being again asked by the informant and villagers, he gave out that in the night there was some dialogue on the aspect of divorce, and there was some scuffle, and it is alleged that thus his daughter has been killed, and thrown in the water tank. He also alleged that in the past also 9 she was given physical beating many a times, and about which she complained to him, and thus she has been killed. From reading of this report it is clear, that firstly there is no allegation about any killing by poisoning, and there is no allegation about specific items of dowry having been demanded, like motor cycle, colour T.V., etc. However, it is clearly alleged that since after one month of marriage, the appellant started harassing her, and treating her with cruelty, for demand of dowry, he used to give physical beating also, and that she used to complain about it to her parental persons, and that she has died an unnatural death. It is not in dispute that marriage took place some 7-8 months ago. However, we find Ex.P-11, available on record, being the card of marriage, which shows that the marriage was solemnised on 29.6.2001, and the death took place on 7.2.2002, which is less than 8 months from the date of marriage, what to speak of 7 years. Then, we come to Ex.P-2 the site plan and the site inspection note, which was prepared on that day itself at 3.00 P.M., and records, that in the water tank one Choti Button of yellow colour with white beads was floating, then in the room being the bed room, immediately after entering, in the left side, i.e. towards the north unfolded bed is lying, and near the cot sputum of Gutkha is lying on the floor, and on the cot one silver Choki with red thread is lying, and two golden rings, and one Choti button, and two pieces of one red bangle, and two empty pouches of Gutkha are lying on the bed helter-skelter. 10 Then, we come to the oral evidence led on the side of the prosecution; firstly we may deal with the statement of P.W. 4 Pukhraj, who is father of the deceased, and is the first informant. He has deposed that Manju was his youngest daughter, who was married with the accused some 7- 8 months ago, in her marriage he gave sufficient dowry, comprising of clothes, utensils, gold and silver ornaments etc. For one month, the behaviour of the accused with the deceased was cordial, but thereafter he started harassing her, and treating her with cruelty for the demand of dowry, which she used to tell him, however, every time he was giving good counselling and sent back. She used to narrate all these things to her mother, her brother, brother's wife, sister etc. He has also deposed that he expressed his displeasure in this regard to the parents of the accused, who gave out that he is only acting, and they will make him understand. With this, he has deposed, that on the date of Sakranti he brought her from in laws house, she lived with him for about 10-15 days, and during this stay she gave out that the harassment is continuing for demand of dowry, and that the deponent should give the articles otherwise she would be killed. However, some 5-10 days ago she was sent back to in-laws place with her brother Manoj, then on 7.2.2002 Om Prakash and Mishrilal of Salavas came to his village, and informed, that his daughter is dead, then he informed his brothers, and all of them reached Salavas at about 11. There they saw that the dead body was kept lying 11 in the shed outside kitchen, and he saw that there were injuries, extending from left eye to left elbow, which were contused injury, and injury was on the forehead, some yellow fluid was flowing from the nostril, and in one nostril there was white froth, and from mouth some red substance like sputum was flowing, and froth was also flowing. He has also deposed, that they asked the accused as to what happened, but he did not give any satisfactory answer, and simply avoided. Then, he and Om Prakash took the accused aside, and again asked him, who gave out that in the night there was some altercation between them, on the aspect of T.V., and motor cycle, he gave beating to the deceased, and when deceased firmly denied to be able to get any further dowry, then he administered poison to her, and after her death she was thrown in the water tank. She was carrying pregnancy of about 4 to 5 months. Then, he lodged the report Ex.P-10. He has proved the documents like site plan, inquest report, Surat Haal Lash, and the like. He has also deposed, that near the cot it appeared, that there was some vomiting which was cleaned, and then covered by earth. He has been cross examined, and therein he has deposed that first time after marriage the deceased came to the parental house second or third day, and she remained there for one day and night, and then returned to in laws house. He expressed inability to give precise number of occasions when the deceased came to parental house. However, she was alleged to have come 3-4 times, she did not come on Deepawali, and the accused is alleged to have come about 12 one or two times during one month of marriage, and did not come thereafter. Then, he has admitted that when he went to bring Manju, except accused, all where happy to send her, while the accused was objecting. It was admitted that his daughter Pista is married to the son of the elder brother of the father of the accused, who was married some 10 years ago, and that, Pista and deceased were having good relations. It was admitted that no Panchayati was convened regarding dowry, nor any report was made to the police. It was maintained, that displeasure was expressed to the accused and his father. He denied to have heard anything adverse about the character of the deceased. He has denied that before he reached Salavas, police had already come, rather police is said to have come at 12 in the noon. Then, some questions were put, as to who scribed the report. Then, he was cross examined about the villagers to have informed him that Manju was killed by administration of poison, then he was confronted with Ex.P-10 on the aspect of absence of mention of any motor cycle, colour T.V. etc., so also about expressing displeasure to the accused, so also about Manju having been killed by administering poison. Then, he was confronted with Ex.P-2, that it is not mentioned therein, that there was anything to show any vomiting, or its having been cleared out. He was suggested that the accused had given out in presence of the villagers that the accused returned from Jodhpur at about 9 in the night, and after taking dinner the couple slept down at about 11 in the night, and thereafter he does not know as 13 to where the deceased went. This suggestion was denied by the witness. He has admitted to have not seen any pills of poison or bottle. The body was cremated at about 8 in the evening. Then, he was confronted with certain portion in his police statement Ex.D-2, being A to B, about the omission therein regarding killing of Manju by administering poison, demand of colour T.V., motor cycle, and cash, his having expressed displeasure to the parents of the accused, the accused having made any extra judicial confession etc. Then, he has admitted that colour T.V. is already there in the house of the accused, having been purchased by the accused, two months before death of Manju, which was purchased on instalments, and the accused was demanding money for payment of instalments. He has deposed that dowry was given to his elder daughter on the occasion of her bearing first child. He has denied the suggestion, about his having disclosed about having been killed for dowry, for the first time in the Court, rather it was also disclosed in the police as well. Then, he has denied the suggestion, about having come to know of killing by poison, for the first time after looking in the papers in the Court, and rather he has maintained that he came to know on his going to Salavas itself. He has admitted to be not having the capacity, either earlier, or now, to give motor cycle, or colour T.V., and this fact was within the knowledge of the father of the accused. He has denied the suggestion, that he and his wife did not want to get any case registered, and it was on the asking of his brothers, 14 that as the father of the accused denied to give amount of Rs. 50,000/-, therefore, this false case has been got registered. Thus from a reading of evidence of this witness it is clear, that though he has not specified the articles demanded by way of dowry, and has introduced the factum of extra judicial confession also, which things are not there in the police statement, or in the first report, but then, the basic substance of the case, about the demand of dowry being started to be raised after one month of the marriage, off and on, deceased informing about it to the parental family members, they having advanced good counselling, and even on the last occasion when she was sent back to in laws house she expressed apprehensions on the basis of dowry, and her death, otherwise then in normal circumstances, within seven years of marriage, remained unshaken. Then, we take up the evidence of P.W. 6 Jasoda, who is the mother of the deceased. She has deposed to be having two sons, and three daughters, the deceased being youngest daughter. She has deposed that Manju was married some 13 months ago happily, necessary dowry, according to their capacity, was given, which included gold and silver articles, after marriage the deceased was peacefully coming and going from in laws place, at the time of death she was carrying some 3 to 4 months pregnancy. Then, she has deposed, that after one month of marriage, the accused started treating her with cruelty and harassing her, and whenever she used to come to parental house she used to narrate these things. She advanced good counselling that the things would be 15 alright in course of time. Then she has deposed that about 25 days before death her husband brought her on the occasion of Sakranti, and she remained there for about 10- 15 days, and she narrated the cruelty by accused on the demand of dowry, he gives beating after consuming alcohol, and that some 15 days before death her son Manoj left the deceased to her in-laws place. Then on the day she died, at about 8 in the morning Omji and Mishrilal of Salavas came, and informed, that Manju has been killed, and come to Salavas, thereupon she and her husband, and brothers of the husband went to Salavas, brothers of the husband were called on telephone. There accused gave out to the husband, on asking, that in the night on the demand of dowry she was killed by administering the poison, and thrown in the water tank, and that, when they went the body was kept lying in Chhapra of kitchen after having been taken out from the water tank, deceased was having injuries, including contused injury on the forehead, shoulder, hand etc., and blood was coming out of the mouth. In cross-examination she has deposed, that she, her husband, and her mother in law had gone to Salavas in the same vehicle in which Omji and Mishrilal had come, they left Guda at about 9 in the morning, and when they reached Salavas they found, accused and his father to be there. She was confronted with A to B of police statement Ex.D-3, which she affirmed. She has admitted that it is not mentioned in Ex.D-3 that Manju was killed by