1 IN THE HIGH COURT 'OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Deen Dayal @ Deena Ram & Anr. Vs. State of Rajasthan S.B.CRIMINAL APPEAL N0.82712006 against the jud.gment dated 13.09.2006 passed by learned Sessions Judge, Jaisalmer in Sessions Case No.812004 Date of Judgment: 16~~ March, 2010 PRESENT HON'BLE MR.JUSTICE DEO NARAYAN-THANVI Mr.L.D.Khatri, for the appellants. Mr.Panney Singh, Public Prosecutor. Mr.B.N.Kalla, for the complainant. BY THE COURT: This appeal is directed against the judgment and order dated 13.9.2006 passed by learned Sessions Judge, Jaisalmer (for short 'the trial court" hereinafter) whereby he convicted the accused-appellant-Deen Dayal @ Deena Ram under Sections 304-8 and 2.01 of the IPC and accused- appellant Dwarka Ram under Section 304-B IPC while acquitting them for the charge under Sections 302, 498-A read with Section 34 of the IPC. Accused-Dwarka Ram was also 2 acquittkd under Sections 201 read with Section 120-8 of the IPC. Both the accused-appellants were sentenced as under: Accused Deen Dayal @ Deena Ram: Accused Dwarka Ram: IN DEFAULT Three month's S.I. Three month's S.I. However, the accused-Luna Ram was acquitted under Section 302, 304-8, 498-A read with Section 34 and Section 201 read with Section 120-B of the IPC. The accused appellants-Deen Dayal alias Deena Ram and Dwarka Ram have challenged their conviction and sentences by way of present appeal. FINE Rs. 1000/- Rs. 1000/- OFFENCE U/S 304 B IPC 201 IPC Brief facts leading to this appeal are that on 22.8.2003 at Jawahar Hospital, Jaisalmer, the complainant Dungar Ram made an application before the SHO, Police Station, Jaisalmer alleging therein that her daughter Kanta was married with Deena Ram one year back. Three to four months after the marriage, Deena Ram, his brother Dwarka Ram and his mother Smt.Nathi demanded Rs.50,000/- from him and threatened to kill her daughter on non-payment. He told many times to these persons that he has no money with him. Two months before, her daughter also told that they are demanding SENTENCE 10 Years' R.I. 3 Years' R.I. IN DEFAULT Three month's S.I. FINE Rs. 1000/- OFFENCE U/S 304 8 IPC SENTENCE 10 Years' R.I. 3 Rs. 50,000/-. It is also alleged that Deena Ram, Dwarka Ram and Smt.Nathi have taken the loan for digging tube-well at village Dabla and they had to repay the loan for which demand was made. According to the complainant, 4-5 days before, her daughter also telephoned about it. Upon this report, the police registered a case and commenced investigation. After investigation, the police filed challan against the accused- Deena Ram, Loona Ram and Dwarka Ram under Sections 498- A, 302 and 201 of the IPC. After hearing the arguments on charge, all the three accused were charged under Section 302, 304-B, 498-A read with Section 34 and 201 read with l20-B of the IPC to which they pleaded not guilty. The prosecution examined 24 witnesses in support of its case. The statements of the accused were recorded under Section 313 Cr.P.C. They produced three witnesses in defence. After hearing the arguments, learned Sessions Judge acquitted accused-Loona Ram for the charges levelled against him but convicted accused-Deen Dayal alias Deena Ram and Dwarka Ram as above. I have heard learned counsel for the parties and re-appreciated the evidence brought on record. Learned counsel for the accused-appellants does not want to challenge the conviction of the accused appellant- Deen Dayal alias Deena Ram but submits that his sentence of 10 years may be reduced to that of 7 years looking to the fact that accused-Deen Dayal was a young boy of about 20 years of age on the date of commission of crime and has a long career to settle his life. So far as accused-appellant Dwarka Ram is concerned, it is submitted by learned counsel that accused- Dwarka Ram has wrongly been convicted under Section 304-B of the IPC because the allegation regarding demand of dowry was initially levelled against accused appellant-Deen Dayal and Dwarka Ram along with Smt.Nathi, who is mother-in-law of the deceased but mother-in-law was not charge-sheeted by the police and a new name of Loona Ram was substituted as an accused of murder but he has been acquitted by the trial court. According to learned counsel for the appellants, the case of Dwarka Ram is at par with Smt.Nathi and there was no occasion to implicate Dwarka Ram in a case of murder and demand of dowry. It is further submitted by learned counsel for the accused-appellants that except the statement of Dungar Ram (PW-3), who is father of the deceased, there is no other evidence available on record to connect the accused- Dwarka Ram with the commission of crime like dowry death. According to learned counsel for the appellants, even if, for the sake of arguments, it is assumed that a demand of Rs.50,000/- was made by the accused for repayment of loan for digging tube-well at Dabla, as per the statement of Dungar Ram (PW-3), this is not a substantive evidence to connect the accused appellant-Dwarka Ram being the brother-in-law of the deceased with the dowry death. 5 Per contra, learned Public Prosecutor has supported the judgment of the trial court. Having re-appreciated the evidence brought on record, I am of the view that the contention of the learned counsel for the accused-appellants with regard to Dwarka Ram finds substance. In this regard, star witness of the case is Dungar Ram (PW-3), who lodged the FIR, Ex.P/3. In this FIR, he has named Deena Ram, the husband of the deceased; Dwarka Ram, the brother-in-law of the deceased and Smt.Nathi, the mother-in-law of the deceased for demand of Rs.50,000/- and on non-payment, they have threatened to kill her daughter. In the said FIR, it is stated that he went to these three persons and told that he has no money to pay. Two months before, his daughter told that these three persons are demanding Rs.50,000/- and they have killed her daughter on 20.8.2003 in the evening. If this FIR is read with the statement of Dungar Ram (PW-3), it transpires that there is material contradiction in it. In the chief, he has first stated that Dwarka Ram told him that nothing has been given in dowry and when her daughter Kanta went to her inlaws' house, her mother-in- law and younger brother-in-law Dwarka Ram got angry that she has not brought anything in dowry. Kanta also told this fact to her uncle Shambhoo Ram and also told him about these three persons. According to the statement of this witness, he came two and half months prior to the date of incident at Devikot where he went along with his second wife Smt.Chandi 6 Devi. There also, the deceased-Kanta told the same thing but neither Shambhoo Ram nor his second wife Smt.Chandi Devi have been produced by the prosecution. In cross-examination, PW-3 has not given any date with regard to the demand of this money. He also does not know the date as to when he went to Jaisalmer and Dabla; specially when he was residing at Ganganagar which is about 500 kilometers away from village where the deceased was residing. If this solitary statement of Dungar Ram read with the statement of Devi Lal (PW-21), the maternal-uncle of deceased, it is uncorroborative in nature because he has sta'ted in the examination-in-chief that Kanta told her that his in-laws are harassing her for demand of dowry. According to Devilal (PW-21), he is residing at Devikot which is near to the village of the deceased and according to him, accused-Deena Ram came on Panchmi in the drunken state and forcibly took Kanta with him. According to this witness, Kanta told about demand of dowry to him alone and he told it to his brother-in-law Dungar Ram but his brother-in- law Dungar Ram told that he will come from Sri Ganganagar and will settle the matter but before arrival of Dungar Ram, Kanta died. In view of the statement of Devi Lal (PW-21), it seems that he is not corroborated the version of Dungar Ram (PW-3) specially when Dungar Ram is brother-in-law of Devi Lal (PW-21) and both are residing at distant places. In such a situation, if these statements are read together then the contention of learned counsel for the appellants finds substance that had it been a case of dowry death -then 7 Smt.Nathi, the mother-in-law of the deceased should also have been implicated in it. On the contrary, the police after investigation came to the conclusion that it is a case of murder and implicated a new person i.e Loona Ram as an accused. But in the absence of eye-witness, Luna Ram and both the present appellants were acquitted of the charge under Section 302 of the IPC, against which no appeal has been filed by the State. In these circumstances, whatever, the evidence remains reliable is only against the accused-appellant Deen Dayal alias Deena ram, who is the husband of the deceased, who came in a drunken state at his inlaws' house and took his wife forcibly. In this case, when the murder is not proved, the death of the deceased just after one year of the marriage clearly indicates that she had been subjected to cruelty by her husband for the demand of dowry in view of the presumption contained under Section 113-8 of the Indian Evidence Act. In the light of the above discussion, no case against the accused appellant-Dwarka Ram is made out but guilt against the accused-Deen Dayal alias Deena Ram stands proved. On the quantum of sentence, the contention of learned counsel for the appellants that accused-Deen Dayal alias Deena Ram was a young boy of about 20 years of age on the date of occurrence and he sbould be awarded minimum 8 sentence provided under the law finds substance. Accordingly, this appeal is allowed in part. While maintaining the conviction of the accused-appellant Deen Dayal alias Deena Ram under Sections 304-B and 201 of the IPC, he is sentenced to the period of 7 years rigorous imprisonment instead of 10 years for the offence under Section 304-8 of the IPC by maintaining fine of Rs.l000/- and in default to undergo 3 months simple imprisonment. His sentence under Section 201 of the IPC for 3 years rigorous imprisonment and fine of Rs.l000/-; in default of to undergo 3 months simple imprisonment is also maintained. Both the sentences shall run concurrently. However, the accused appellant-Dwarka Ram, who has been convicted under Section 304-B of the IPC and sentenced to 10 years rigorous imprisonment with fine of Rs.l000/- and in default to undergo 3 months simple imprisonment, is acquitted of the charge levelled against him. Accused-Dwarka Ram is on bail, his bail bonds stands cancelled. Accused-appellant Deen Dayal is in jail and he will serve out the remaining part of the. sentence as awarded above. (DEO NARAYAN THANVI), J.