1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Bhanwar lal vs. State S.B. CRIMINAL APPEAL NO. 354/1988 Against the judgment & order dt. 12.08.1988 passed by Additional District and Sessions Judge, Nagaur Camp Deedwana in Sessions Case No. 30/1987. Date of Order : 28 th April, 2009 PRESENT HON'BLE MR. JUSTICE C.M. TOTLA Mr. R.K. Charan for the appellant. Mr. A.R. Nikub, Public Prosecutor. Mr. Suresh Kumbhat for the complainant Mr. B.L. Dudi ] BY THE COURT: Appellant Bhanwar lal convicted for the offence of Section 498A, 306 IPC and sentenced respectively to three year R.I and fine of Rs. 100/-, one year R.I. and fine Rs.100/-, preferring this appeal challenged his conviction and sentence, requests acquittal. Prosecution case is that deceased Smt. Santosh was married to appellant Bhanwar lal in year 1985 and about 15-16 months of marriage on 02.10.86, allegedly found dead in a water tank of her matrimonial house at Jaswantgarh was cremated on the same day by in laws. Her father Hulasmal PW/1 next morning at about 10 AM of 2 03.10.06 submitted a written report Ex.P/1 at P.S. Jaswantgarh and alleging that he lives at Sujangarh and daughter Santosh 19 years was married to appellant Bhanwar lal for about a year was living with in laws at Jaswantgarh who (Santosh) and day before yesterday on 01.10.86 morning coming to Sunjangarh desired and asked him Rs. 1000/- for expenses and as money was not available with him he could pay only Rs. 50/- and Santosh went away. Last night of 02.10.86 at about 9 PM, Suresh Kumar R/o Jaswantgarh came in a tanga to him at Sujangarh and told him that Hulasmal himself, Girraj and Kishan lal are urgently called by Kishan lal (II) at Jaswantgarh so they all went in same tanga to Jaswantgarh where Kishan lal asked him if he had said anything to daughter when she came, to which he replied that he did not and Santosh was asking for money then Kishan lal told them that Santosh is no more who died felling in “kund: (house hold water tank) who is cremated – when asked for early cremation without information said that it was late evening so cremated. Also averred in this report that to his information when Santosh taken out of tank was bluish and are doubts over her death. The report was taken in Roznamcha Ex.P/18 and SHO making endorsement registered inquiry Ex.P/19 under Section 174 Cr.P.C. On 04.10.86 FIR No. 4/86 registered for the offence of Section 306, 498A, 201 and 176 IPC. Dy. SP PW/14 on 04.10.86 (i) inspected the place of occurrence (ii) seized petticoat of deceased (iii) seized letter presented by father PW/1 allegedly written by Santosh (iv) from the place 3 of cremation ash and bones taken and (v) seized letters as many as 18 presented by appellant of which some written by appellant and some by deceased - preparing memos Ex. 2,8,12,13 & 14. Of the articles seized were forwarded to laboratory for examination handwriting comparison alongwith specimen of appellant taken before Executive Magistrate. Appellant arrested and after usual investigation, charge- sheet submitted against appellant for the offences under Ss 304, 498A, 176 and 201 IPC. It appears that for other six was presented separate charge-sheet for the offences of Ss 201 and 176 IPC and all of them tried together. Appellant charged for the offences of Section 306, 498A, 176 and 201 IPC that he on 02.10.86 and prior coerced and harrased his wife Santosh for getting money from her parents, consequent to which (because of cruelty) Santosh committed suicide by drowning herself in kund and appellant alongwith other accused conceitly taking the body out of tank cremated without postmortem or informing authorities. Other persons charged for the offence under Section 176 and 201 IPC that they conceitly taking the body out of kund cremated without postmortem or informing the parents or police. All claimed trial. Among the prosecution witnesses examined are Hulasmal PW/1 father and smt. Bidami PW/2 mother of deceased, Nathmal PW/3 a is neighbour of PW/1 who gave Rs. 50/- to PW/1 as PW/1 asked for money, Mst. Sita, Gigraj, Durga Das PW/12 are witnesses relating to circumstances who all are declared hostile. Other witnesses are motbirs 4 or like who have also not supported prosecution. PW/14 SHO initially inspected site and PW/15 Dy. S.P is investigating officer. Appellant explained that he had no differences with his wife and never was any demand or dispute of money. According to appellant, he came from Parbatsar and wife Santosh died because of stomach pain. Laboratory and handwriting expert reports received are Ex.P/3, 4, 5, 6, the bones and ashes gave negative test for metallic poison and no blood found on petticoat of deceased. For letter report is that the letter compared is in the writing purported to be of deceased. Learned Judge convicted appellant for the offence of Section 306 and 498A IPC and appellant with other six is acquitted for offence of Section 176 IPC, 201 IPC. Learned Sessions Judge vide impugned judgment arrived at conclusions that (i) no natural death and she committed suicide (ii) appellant husband used to coerce his wife to procure money from her parents (iii) parents could fulfill payment of money only to a little extent (iv) due to harassment, demand and thus cruelty she committed suicide (v) not clear how why and by who was cremated and on these findings, is conviction of appellant. On behalf of appellant argued that no case of subjecting to cruelty not even of mis-behaviour (ii) no demand ever made and she never asked or told to get money from the parents – no fact or circumstance is disclosing any payment or anything (iii) every possibility that she died accidentally – if cause of death not clear every benefit to go to appellant (iv) with parent of Santosh was some money given by 5 Santosh herself (v) FIR only afterthought and even in FIR no allegation of improper conduct by appellant or in laws (vi) because unfortunate incident occurred, no adverse inference ought to be (vii) no presumption can be because of early cremation particularly when acquittal for offence under Section 201 and 176 IPC. Learned Public Prosecutor submitted that Santosh taken out of tank around 4 PM and cremated, on the same evening, without informing the parents who resided at village about 3-4 km distant and even without informing the police, is an important circumstance and proved by evidence of PW/1, 2,3 is that continuous demand of cash was made and parents had to fulfill to the extent could be possible for them. Learned Public Prosecutor submitted that two days prior to the incident, parents asked by decesed to pay Rs. 1500/- but they could manage only Rs. 50/- and then within two days living with husband committed suicide. Considered the arguments, carefully perused record and impugned judgment. The material and relevant evidence is that of statements of PW/1, PW/2, PW/3 and I.O. PW/4, PW/5, PW/6, PW/9, PW/10, PW/11, PW/12, PW/13 are hostile but PW/9 and PW/13 have admitted their signatures on memos Ex.P/13 to Ex.P/14 - Thus, evidence remains for consideration only of PW/1, 2, 9, 13, 14, 15. No postmortem could be performed. Collected ash and bones not proved to have contained any metallic poison. Thus as no postmortem conducted, no medical evidence regarding death is available 6 and inference is to be taken on oral evidence based on natural course of events and normal conduct. As observed, the appellant stands acquitted for offences of Section 201 and 176 IPC. Hulasmal PW/1 deposes that on next day morning he lodged report Ex.P/1 at P.S. S.H.O PW/14 state that report Ex.P/1 was presented before him and making report of same in Roznamcha and FIR registered on next day. Witnesses PW/14 the then SHO in cross-examination stated that place of occurrence is at a distance of 150-200 mtr from the police station and he visited place of occurrence on the day report Ex.-P/1 was presented but no memo prepared and memo prepared only on next day by Dy.S.P. Parental place of deceased Sujangarh and marital home Jaswantgarh are at distance of 3-4 km as is stated by PW/1 and also observed by learned trial judge. Hulasmal PW/1 father states that after marriage for about a year, Santosh was living with her inlaws and she coming to him on 2-3 times asked money for expenses and also stated that Bhanwar lal has asks to get money. PW/1 deposes that he once gave Rs.300/- and then second time, when daughter asked for Rs.1500/- and he paid Rs. 50/-. According to PW/1 Santosh desired and asked him to pay Rs. 1500/- and as he paid only Rs. 50/- she weeping told that she is asked to bring Rs. 1500/- whereas, Rs.50 are given and then returned around 3-3:30 PM and on the same day in night at about 10 PM, Suresh came and told him of being urgently called by Kishan lal (uncle of appellant) for some work so he went by the same tanga by which Suresh came and Kishan lal 7 informed of Santosh being no more as dead drowning in tank. When he asked told that she coming fell in the tank. As per PW/1 when he went to house of Santosh, no one except grandmother was there who said of death because of drowning and 2 ft deep water was in the tank. Report Ex.P/1 bears signature of PW/1 and he also deposes that Bhanwar lal, the appellant sent him a letter which was (got) written by Santosh and the letter was submitted by him to police and memo Ex.P/2 bears his signature. From the evidence of PW/1 it clearly transpires that after a month or two of marriage, appellant went to Assam from where returned after 9-10 months and till that time i.e. till return of Bhanwar lal every thing was normal. PW/1 deposes that on the very same day Santosh came and asked Rs. 1500/- in night at 10 PM he was called and came to know of death. Thus, he stated asking of money and death on the same day but in cross-examination states that Santosh came on a day and asked money then on the next day afternoon returned and same day died. However, this dilutes as in FIR Ex.P/1 clearly is mentioned that Santosh coming on 08.10-.86 asked for money and taking Rs.50/- returned on the same day. In FIR Ex.P/1 clearly is the word used “Parsson” meaning thereby day before yesterday. Thus, as per FIR coming on 01.10.86 returned next day, but here again a little difference is that as per PW/1 came on a day then returned next day whereas in Ex.P/1 mention is that of returning same day “parsson”. In FIR Ex.P/1 lodged next morning and signed by PW/1 is mentioned that Santosh coming at Sujangarh asked for payment of Rs.1000/- as required for 8 expenses whereas in his statement PW/1 is very positive that he asked for payment of Rs.1500/-. FIR Ex.P/1 do not mention of any demand other than this Rs.1000/-. In statement of PW/1 also no earlier payment except that once Rs.300/- appears. The statement of PW/1 regarding his going to house can hardly be accepted because as per him no one else was with him or at home whereas, he was called in village at night within hours so this do not seem to be plausible. If PW/1 visited at any time prior to investigation, it is improbable that no one will be with him or at house, so his statement that tank was about 2 ft deep water seems to have no basis. I.O Dy.S.P. PW/15 states that when he inspected site on 04.10.86, water was about 6 ft or so deep, so is also written in memo Ex.P/12. As is observed, PS. is very nearby at a distance of 200 mtr. Nathmal PW/3 is neighbour of PW/1 and deposes that Hulasmal coming to him asked for money as required because daughter going to marital house and harassed by inlaws. According to Nathmal PW/3, that as at that time he did not had any money, he asked Hulasmal that after some time, shall give Rs.50/- and after one and half hour, gave Rs. 50/- to wife of PW/1. Nathmal PW/3 states that he do not know about behaviour to Santosh as he mostly live in Bombay and gave money only because of being neighbour. Thus, it appears that Nathmal PW/3 did pay Rs. 50/- to parents but for what and why cannot be gathered from this evidence. Bidami PW/3 mother states that Santosh was married for 9 about 15 months and till 12 months after marriage everything was normal. PW/2 stated that after marriage husband went to Assam who returned only two months before the death of Santosh and began to trouble Santosh telling her to get money from mother and Santosh 2-3 times came to her and told that money is being sought and asked but she (PW/2) could not give because of poverty and then on festival of rakshabandhan desired for Rs.1500/- as asked for but she arranging could give only Rs. 300/-. PW/2 the mother states that a day prior to Santosh died she came in night at 10 PM and asked for payment of Rs. 1500/- and when PW/2 expressed non-availability Santosh began weeping and told that she threatened by appellant to kill, if money not brought, so he procuring (from PW/3) Rs. 50/- gave to Santosh who returned next day after noon 3 PM bus and on the same night at 10 PM, Suresh a relative of deceased came and asked PW/1 before this witness PW/2 that PW/1 is called urgently. According to PW/2 Hulasmal returned weeping and told him of death and cremation of Santosh. In cross-examination PW/2 admits that Santosh had earlier given her Rs. 12-1300/- of her “Paga lagni”. (Paga lagni is a ceremony soon after marriage when bride offering regards to elders get, may be cash, as blessing). Hulasmal PW/1 squarely denies of any such money. Considering this admission of PW/2, it can hardly be denied that Santosh had paid her amount of “Paga lagni” Rs.12- 1300/- to parents. Taking the statements of PW/1 and PW/2 regarding payments on its face value, it seems that only Rs. 300 plus 50 i.e. Rs. 350/- was paid. As above contradictions and inconsistencies are as to 10 when the money was asked. In FIR, allegation is of Rs. 1000/- whereas evidence is for that of Rs. 1500/-. The difference is also for that of yesterday or day before yesterday and as per Bidami PW/12, Rs. 1500/- was asked on festival of Raksha bandhan but PW/1 says differently. Again it is to be noted that this is stated to be solitary occasion of asking or demand of money, therefore, significance of above difference inconsistency and contradictions anamoly increases. Regarding letter alleged to be submitted by PW/1 said to be of Santosh – same is not even exhibited by prosecution. Hulasmal PW/1 states that he cannot identfy the paper and in cross-examination also says that he do not know signature of daughter or son-in-law. The expert is not examined. The letter though as per prosecution is examined by handwriting expert at laboratory but same as above has not even been exhibited. Thus, as above the alleged demand appears to be solitary one – in FIR it is narrated to be for Rs. 1000/- whereas, evidence is for Rs. 1500/- and for that also version as given by PW/1 and PW/2 are not similar. Inconsistencies are also as to when the demand made. Also appears that Rs. 12-1300/- were also paid by deceased to her mother PW/2 and do appear that not more than Rs. 350/- repaid. Everything was normal till a year after marriage and disharmony if any only for last two months but nonetheless alleged demand only as above. Thus, assuming for the sake, in the opinion of the Court, no reliable evidence or circumstances disclosing demand or cruelty is. Given the circumstances, no question of abetement or any occasion likely to drive the woman to 11 commit suicide arises. Though deceased alleged to have been found in tank at about 4 PM cremated on same day, without informing her parents and authorities. Though unfortunate is the incident and perhaps mystifying death but the Court is not to be swayed, guided by emotions, sentiments like feeling, there have to be some evidence and as above no incrementing evidence or circumstance is. It is to be noted that appellant and other stand acquitted for offence of Section 176 and 201 IPC. For the above reason, appeal is to be allowed. Allowing the appeal, the appellant is acquitted for the offence under Section 306 and 498A IPC. He is on bail, his bail bonds are discharged. (C.M. TOTLA), J.