1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT RAM NARAIN AND OTHERS VS. STATE OF RAJASTHAN. S.B.Cr. Appeal No. 868 of 2004 under Section 374 (2) Cr.P.C. against the judgment and order dated July 31, 2004 of Addl. Sessions Judge (Fast Track) No.1 Jaipur City Jaipur in Sessions Case No. 62 of 2001 whereby accused appellants were convicted and sentenced for sections 498A to suffer three years SI and fine of Rs. 500/- each, in default of payment of fine to further undergo SI for one month, for Section 304 B IPC to suffer 10 years SI and for Section 4 of Prohibtion of Dowry Act to suffer SI for one year with fine of Rs. 500 each, in default of payment of fine to further undergo SI for one month. Date of Order : May 26 , 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Anurag Sharma, for the appellants Mr. Piyush Kumar, Public Prosecutor. BY THE COURT : The accused appellants have filed this appeal against the judgment and order dated July 31, 2004 of Addl. Sessions Judge (Fast Track) No.1 Jaipur City Jaipur in Sessions Case No. 62 of 2001 whereby accused appellants were convicted and sentenced for sections 498A to 2 suffer three years SI and fine of Rs. 500/- each, in default of payment of fine to further undergo SI for one month, for Section 304 B IPC to suffer 10 years SI and for Section 4 of Prohibition of Dowry Act, SI to suffer one year SI with fine of Rs. 500 each, in default of payment of fine to further undergo SI for one month. 2. Brief facts of the case are that informant Chhaju Lal submitted a written report at Police Station Bajaj Nagar, Jaipur on July 17, 1994. In the report it was alleged that his younger sister namely Raja Devi was married in 1989 to one Hanuman Sahai, resident of Shiv Colony, Jaipur. The marriage was solemnized with ostentation and Raja Devi was sent away to her marital house with festivity. After the marriage, when informant's sister, use to visit her parental house, for a period of about two years, she used to complained that her in-laws were subjecting her to cruelty for want of dowry. She used to inform her parents' side that the demand was raised by her husband, father-in-law, mother-in-law and maternal uncle- in-law namely, Lal Chand. After two years the in-laws of Raja Devi, left her at her parents' 3 house and never took her back as also kept on making dowry demands. It was further revealed in the report that 8-9 months back, with the efforts of all the sundry, Raja Devi was sent back to her marital house. They used to often see her there. About 15 days back informant's father had visited Raja Devi's in laws' house, where Raja Devi had cried a lot before her father and had also divulged to him that she was being petered by her husband, father-in-law, mother-in-laws and maternal uncle- in – law namely Lal Chand. She further revealed to her father that she was being assaulted by them and they were also issuing threats to kill her. Thereafter father of the deceased consoled the latter and went away by stating that on 14.7.1994 her brother would come to fetch her as there was a function in their house. On 13.7.1994 another brother of the deceased namely Ghasi went to fetch her but in -laws of the deceased did not allow her to go. It was then stated in the report that on 16.7.1994 Raja devi died under suspicious circumstances. Information about it was sent across to her parents' side after about 12 hours. It was lastly stated in the report that informant had strong suspicioon that Raja Devi's mother-in- 4 law, father-in-law, husband and maternal uncle- in-law namely Lal Chand had conspired to kill Raja Devi. On the basis of the above mentioned report a formal case was registered as FIR No. 283 of 1994 at Police Station Bajaj Nagar, Jaipur for offence under sections 304 B and 498 A IPC. After investigation, the police filed challan under sections 498A, 304 B IPC and section 4 of Dowry Prohibition Act against the accused appellants before the concerned Magistrate. The case was committed to the court of Sessions from where it was transferred to the court of Additional Sessions Judge (Fast Track) No.1 Jaipur City Jaipur for trial. After hearing submissions of rival sides, charges came to be framed against the accused appellants for offences punishable under sections 498A, 304 B IPC and section 4 of Dowry Prohibition Act. The accused appellants denied the charge and claimed to be tried. The prosecution in support of its case examined 19 witnesses. Statements of accused appellants under section 313 Cr.P.C. were recorded. The accused appellants pleaded false implication and adopted the plea of denial. In defence five witnesses were examined. The trial court after hearing final submissions convicted and 5 sentenced the accused appellants vide judgment dated July 31, 2004 as mentioned above. 3. Mr. Anurag Sharma, learned counsel for the accused appellants contended that in a trial for offence under section 304 B IPC, the prosecution is required to prove the four necessary ingredients before the provisions of section 113 B of Evidence Act may be attracted. The ingredients are as under : (i) The death of a women should be caused by burns or fatal injury or otherwise than under normal circumstances. (ii) Such death should have occurred within 7 years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (iv) Such cruelty or harassment should be for or in connection with demand of dowry. The learned counsel argued that the evidence available on the record may be considered in the light of the above stated ingredients. There is no medical evidence available on the record to prove that the first ingredient that the death of Smt. Rajadevi occurred due to burns or fatal injury or 6 otherwise than under normal circumstances. The learned counsel drawn the attention of this court towards the statement of PW.17 Dr. Dharmendra Kumar Sharma Medical Jurist in order to prove that during postmortem it was found that Rajadevi was having a dead foetus of 6 months in the overy. On account of that Rajadevi died. Smt. Poonam, PW.11 stated in his cross examination that Rajadevi before a day of death was having pain in her abdomen. Smt. Poonam was not declared hostile nor any re-examiantion was done by the prosecution. The learned counsel argued that prosecution has failed to prove that the deceased Rajadevi died otherwise than under normal circumstances. The prosecution has not been able to prove the date of marriage and as such it cannot be presumed that Smt. Rajadevi had died within 7 years of her marriage. The prosecution has failed to prove the third ingredient as to whether Smt. Rajadevi was subjected to cruelty or harassment by her husband or any relative of her husband soon before her death. The prosecution has also not proved that Smt. Rajadevi was subjected to cruelty of harassment for or in connection with demand of dowry. The direct evidence as also 7 the circumstantial evidence clearly shows that the deceased was never subjected to any dowry demands nor was she subjected to harassment or cruelty in this regard. It appears that a misunderstanding had developed between the parties when the deceased had taken away Rs. 20,000 from the pocket of her father in law and the same was demanded back for a genuine necessity. i.e. purchasing sewing machine for accused Hanuman as he was willing to start his own stitching work. Such type of demand on account of financial stringency cannot be termed as a demand for dowry. 4. The learned Public Prosecutor on the other hand opposed the submissions of learned counsel for the appellants and stated that the court below after considering all the evidence, documents and record passed the order of conviction, and rightly sentenced the accused appellants. This impugned judgment of the trial court is just and proper and no interference is required to be called for in the impugned judgment. 5. I have heard the learned counsel for the parties and gone through the entire record and 8 judgment of the trial court. 6. Before proceeding further, I consider it proper to mention that with a view to curb the growing menace of dowry deaths, the Parliament amended the Indian Penal Code and the Evidence Act and inserted Section 304-B and 113-B respectively in the two statutes. This was done keeping in view the recommendations made by the Law Commission of India in its 21st Report. Section 304-B (1) IPC lays down that where the death of a woman is caused by 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. Explanation appearing below sub-section (1) of Section 304-B declares that for the purpose of this sub-section, #dowry# shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. Sub-section (2) of Section 304-B prescribes the minimum punishment for dowry death as seven years which 9 can be extended up to imprisonment for life. The ingredients necessary for the application of Section 304-B IPC are : 1. that the death of a woman has been caused by burns or bodily injury or occurs otherwise than under normal circumstances, 2. that such death has been caused or has occurred within seven years of her marriage and, 3. that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry. Section 113-B of the Evidence Act lays down that if soon before her death a woman is subjected to cruelty or harassment for, or in connection with any demand for dowry by the person who is accused of causing her death then the court shall presume that such person has caused the dowry death. The presumption under Section 113-B is a presumption of law and once the prosecution establishes the essentials ingredients mentioned therein it becomes the duty of the court to raise a presumption that the accused caused the dowry death. A conjoint reading of Section 304-B IPC and Section 113-B Evidence Act shows that in order to prove the charge of dowry death, prosecution has to establish that the victim died within 7 years of marriage and she was subjected to cruelty or harassment soon before 10 her death and such cruelty or harassment was for dowry. The expression “soon before her death” has not been defined in either of the statutes. Therefore, in each case the court has to analyse the facts and circumstances leading to the death of the victim and decide whether there is any proximate connection between the demand of dowry, the act of cruelty or harassment and the death State of A.P. v. Raj Gopal Asawa & Anr. [2004 (4) SCC 470], Arun Garg v. State of Punjab & Anr. [2004 (8) SCC 251], Kaliyaperumal & Anr. v. State of Tamil Nadu [2004 (9) SCC 157], Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar [2005 (2) SCC 388], Ram Badan Sharma v. State of Bihar [2006 (10) SCC 115]. 7. At this stage evidence adduced before the trial court is necessary to be looked into. Ramnarain father of Smt. Rajadevi in clear terms stated that the accused appellants harassed Rajadevi for demand of dowry and she was done to death as the lust was not satisfied. He has given the example that accused appellants told him that his daughter is not doing the day to day work and she has stolen sum of Rs. 20,000/- from the pocket of 11 her father in law Ramnarain (accused appellant). After 15 days accused appellants Lalchand and Hanuman came at their residence and they have given Rs. 10,000/- and thereafter further Rs. 10,000/- was given to them and further they took away her daughter also. Threafter after some time they received the information that Rajadevi died. Ramnarain was cross examined at great length but he has given the full description about the demand of dowry by the appellants. PW.2 Chhajulal, brother of Rajadevi also stated about the demand of dowry by the accused appellants and how his sister died. PW. 3 Kailash Chand Sharma, also stated about the demand of dowry and the circumstances in which Rajadevi died. PW.4 Anandi lal, who is neighbour of Ramnarain PW.1 also stated about the demand of dowry and the circumstances in which Rajadevi died. PW.5 Jagdish Narain was declared hostile, he has not supported the prosecution case. PW.6 Narendra was also declared hostile. He has also not supported the prosecution case. PW.7 Ghashiram was also declared hostile. PW.8 Hanuman Sahai, was also declared hostile. PW.9 Baghsingh proved Ex. P.1 report submitted by the complainant. PW.10 Chunilal, Constable 12 proved that the sealed articles were carried by him to FSL in sealed condition. PW.11 Poonam Mishra, not supported the prosecution case but even then she was not declared hostile. She has only stated that Rajadevi complaint about the stomach pain to her. PW.12 Gorishanker proved Ex. P.3 Naksa Moka. PW.13 Himatsingh, SHO Bajanagar proved that he has submitted challan before the Magistrate. PW.14 Nemichand Gupta, investigating officer fully supported the prosecution case. PW.15, Chhagani mother of Rajadevi stated about the demand of dowry by the accused appellants and thereafter death of his daughter when they have not fulfilled the demand of dowry. PW.16 Sushma Arora, prepared the panchanama of the body of Rajadevi on information received by her. PW.17 Dr. Dharmendra Kumar proved the post mortem report of Rajadevi PW.19 Sitaram was declared hostile. 8. It is an admitted fact that Smt. Rajadevi died in suspicious condition at her inlaws house. In these circumstance it is a fit case for invoking Section 106 of the Evidence Act, which lays down that when any fact is especially within the knowledge of the 13 any person, the burden of proving that fact is upon him. In Ram Gulam Chaudhary vs. State of Bihar [2001 (8) SCC 311] the Apex Court considered the applicability of Section 106 of the Evidence Act in a case somewhat similar to the present one. The Apex Court noted that the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference. 14 In Trimukh Maroti Kirkan vs. State of Maharashtra [2006 (1) SCC 681], a two judge- bench of Apex Court considered the applicability of Section 106 of the Evidence Act and observed: #The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed incomplete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the houses should go unpunished. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a 15 guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315] quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [2003 (11) SCC 271]. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: #(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.# Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.# Similar view was expressed in State of Punjab vs. Karnail Singh [2003 (11) SCC 16 271], State of Rajasthan vs. Kashi Ram [2006 (12) SCC 254], Raj Kumar Prasad Tamakar vs. State of Bihar [2007 (1) SCR 13]. 8. The prosecution evidence and the defence evidence in regard to see who was present in the house where death of Rajadevi ocurred. PW.2 Chhajuram, complainant admitted in his examination in chief that when he has gone to inlaws house of Smt. Rajadevi to invite in his brother's marriage, Ram Narain father in law of Smt. Rajadevi, Smt. Manbhar, mother -in-law of Smt. Rajadevi and Smt. Rajadevi were not at the plot in Shiv Colony but they were available in their fields at Mansarover. In defence the accused appellants made attempt to produce five witnesses, namely, DW.1 Guddi, DW.2 Om Prakash Sharma, dW.3 Fateh Singh Dhakad, DW.4 Mahesh Chand Jain, and DW.5 Ramratan. From reading the statements of these witnesses it has come on record that the accused appellants Ram Narain and Smt. Manbhar father and mother of accused appellant Hanuman were residing at their field in Mansarovar. Accused appellant Lal chand was residing at village Bawadi in , Police Station Fagi, but not residing at the 17 place where Smt. Rajadevi died. The prosecution witnesses have not been able to say a single word about the accused appellants Ramratan, Smt. Manbhar and Lal Chand maternal- in-law present at Shiv Colony when death of Rajadevi occurred. It is true that Smt. Rajadevi died at A-99 Shiv Colony, Jaipur. Accused – appellant Hanuman was available at A-99 Shiv Colony. It was a corresponding burden on the inmates of the house i.e. Hanuman to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.The accused appellants Ramratan, Smt. Manbhar and Lal Chand can be doubted to be there at Shiv Colony. Even the complainant Chhaju in his statement admitted that accused appellants Ramratan and Smt. Manbhar resided at their field in Mansarover. At the most accused appellant Hanuman as per the provisions of Section 106 Evidence Act can at best be responsible for the death of Smt. Rajadevi. It was Hanuman who has to say that 18 how Smt. Rajadevi died in suspicion condition. The FSL report dated October 3, 1996 of the packets 1-5 portions of Viscera gave negative tests for metallic poisons, ehyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides. As per the decisions of the Apex Court, and Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him, the accused appellant Hanuman can be held guilty for offence under section 304 B IPC, besides sections 498A and section 4 of the Prohibition of Dowry Act. The other accused appellants namely, Ramnarain, Smt. Manbhar and Lalchand are given the benefit of doubt for the charge of section 304 B IPC. As per the evidence available on record, the accused appellants are found guilty of section 498A and section 4 of the Prohibition of Dowry Act. The accused appellant Ramnarain remained in judicial custody for about 220 days, appellant Lal Chand remained in judicial custody for about 52 days and appellant Smt. Manbhar remained in judicial custody for about 205 days. Ends of justice would be met, if the accused appellants are 19 sentenced for the period already undergone by them in judicial confinement instead of sending them back to judicial custody. Looking to the facts and circumstances of the case, the sentence of the accused appellant Hanuman for section 304 B IPC, can be reduced to 7 years SI, instead of 10 years SI. Further the State Government is requested to give the accused appellants benefit of the provisions of Section 432 Cr.P.C. and his case may be sent for consideration as he has already remained in judicial custody for about 5 years and 3 months and 12 days. 9. In the result the appeal is partly allowed as indicated below : (i) The conviction of the accused appellant Hanuman for section 304 B IPC, is maintained, but his sentence