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2001 DIGILAW 1663 (RAJ)

SWAROOPA RAM v. STATE OF RAJASTHAN

2001-10-11

JAGAT SINGH

body2001
Judgment JAGAT SINGH, J. ( 1 ) SWAROOPA Ram, Sawai Ram and Mahadan Ram accused appellants have filed this appeal under Section 374 (2) Cr. P. C. assailing the judgment of conviction and order of sentence dated 25-1-2001 delivered by learned Sessions Judge, Jaisalmer in his Sessions Case No. 29/99. By the impugned order the learned Court below while acquitting ten co-accused has convicted these appellants. Under Sections 304-B, 498-A and 201 IPC and awarded each one of them 7 years" RI, 3 years" RI alongwith a fine of Rs. 500. 00 and 3 years" RI alongwith a fine of Rs. 500. 00 respectively. These appellants have also been acquitted under offence of 302 IPC. # ( 2 ) BRIEF facts for disposal of this appeal are that Smt. Poonam aged about 20 years was married to Swaroopa Ram more than a decade before the occurrence. However, her gauna was conducted a couple of years before the occurrence which took place at about 7. 00 P. M. on 7-7-1998 at her inlaws house situated in the dhani of Nagaram at the outskirts of village Hadda lying in police station Mohangarh District Jaisalmer. Per chance PW-5 Phusaram, a distant cousin of deceased, happened to be near the place of occurrence in connection with cultivating the fields through tractor of Kirtaram. He came to know that a lady has died in the dhani of Nagaram. Out of curiosity he went into the dhani of Nagaram and came to know that deceased was her cousin sister Poonam. The inlaws reported that she slipped into the water tank and died. When Phusaram removed the odna from the face of deceased he saw blood oozing from her chin and told the inlaws that she has been killed, upon which the inlaws confessed before Phusa-ram. Though Phusaram told them that her cremation be done only after informing her parents and went to his work. However, cremation of Poonam was done hurriedly without informing her parents or the police, therefore, no postmortem could be done on the dead body. # ( 3 ) PHUSARAM though a distant cousin has neither informed police nor the parents of Poonam immediately after the occurrence but after two days he went to Jaisalmer. There he per chance met PW-23 Manakaram who was also distantly related to the deceased and disclosed him the factum of Poonam"s death. # ( 3 ) PHUSARAM though a distant cousin has neither informed police nor the parents of Poonam immediately after the occurrence but after two days he went to Jaisalmer. There he per chance met PW-23 Manakaram who was also distantly related to the deceased and disclosed him the factum of Poonam"s death. Manakaram thereafter went to village Mandawa and informed PW-4 Hemaram, father of the girl, who lodged written FIR Ex. P/1 before Superintendent of Police, Jaisalmer on 10-7-1998 which was sent to police station Mohangarh and FIR was registered at 2. 30 P. M. on 11-7-1998 under Section 304-B IPC. Accused were apprehended and upon their disclosure statements given under Section 27 of the Evidence Act the cremation place was pointed out from where burnt ash and parts of burnt bones of deceased were seized and sealed and after usual investigation challan under Sections 302, 304-A, 498-A and 201 IPC was filed against 13 persons. # ( 4 ) UPON pleading not guilty and claiming trial by the accused persons prosecution examined 23 witnesses and exhibited as many documents. In statements given under Section 313 Cr. P. C. accused appellants denied all the incriminating evidence appearing against them and pleaded that they have been falsely roped in. In defence DW-1 Keshar, DW-2 Narain Singh and DW-3 Sagat Singh were examined. Thereafter the learned trial Court has given benefit of doubt to the remaining 10 co-accused and have convicted and sentenced the above three appellants as stated above. # ( 5 ) LEARNED counsel for the appellants took me through the evidence and submitted that there is not an iota of evidence connecting the accused persons in the crime. Most of the witnesses have been declared hostile and the witnesses from the family of the deceased have made significant and material improvements in the Court testimony, even then they have been believed. It is also submitted that there was never any demand of dowry nor the so has been specifically proved. Even immediately before the alleged occurrence, no cruel treatment given to the deceased has been stated by any of the prosecution witnesses and the Court below has convicted and sentenced the accused appellants on the conjectures and surmises simply because instead of burial the dead body was burnt and that too without informing the police or the parents of girl. Even immediately before the alleged occurrence, no cruel treatment given to the deceased has been stated by any of the prosecution witnesses and the Court below has convicted and sentenced the accused appellants on the conjectures and surmises simply because instead of burial the dead body was burnt and that too without informing the police or the parents of girl. # ( 6 ) ON the contrary the learned Public Prosecutor has supported the impugned judgment stating that had there been no foul play, the cremation should not have been done hurriedly without informing the police or the parents. It was also submitted that in the inlaws family the custom is to burry the dead body and not to burn them. In the matter at hand to cause disapperance of the evidence of murder the dead body was given burning instead of burial. # ( 7 ) I have carefully considered the rival submissions made at the Bar. # ( 8 ) THE Apex Court in a separate of judgments has held that nobody be convicted on surmises and conjectures. Similarly, nobody be convicted on suspicion howsoever strong it may be. Similarly, it has been held that the evidence can be rejected if it suffers from any serious infirmities or if there is any inherent inconsistency in the testimony. If there is intrinsic merit in the evidence of the witnesses the same cannot be rejected. The Court should adopt a rational approach and realities of the life has to be kept in mind while appreciating evidence for arriving at the truth. Discrepancies and contradictions in the testimony unless material and substantial and are in respect of vitally relevant aspects of facts deposed, their entire testimony cannot be discarded. # ( 9 ) IN the matter at hand there is no eye witness of the occurrence nor there is any circumstantial evidence of recovery of any articles incriminating the accused persons. Strong suspicion can be raised against the husband of the deceased that without informing the parents of the girl or the police the cremation of the dead body has been done hurriedly but that suspicion howsoever strong by itself is not sufficient to hold him guilty. # ( 10 ) SO far as homicidal death of Poonam is concerned, there is no dispute about that because the accused appellants are also not disputing the unnatural homicidal death of Poonam. # ( 10 ) SO far as homicidal death of Poonam is concerned, there is no dispute about that because the accused appellants are also not disputing the unnatural homicidal death of Poonam. Their version is that she slipped and fell into the water tank and died. On the contrary the version of the prosecution is that due to non-fulfilment of demand of dowry she was subjected to cruelty and was murdered before being thrown into the water tank. The trial Court has misread the evidence of the prosecution witnesses and have held the appellants guilty on the conjectures and surmises. # ( 11 ) THE foundation of the prosecution case is that there was demand of dowry which has not been fulfilled and, therefore, Poonam was subjected to cruelty and was killed. Unless and until demand of dowry is specifically mentioned in the FIR and so proved by cogent and convincing evidence, it cannot be made the basis of conviction. In Ex. P/1 the written FIR though lodged belatedly, it has not been mentioned that after the marriage at what time what article or amount was demanded and by whom as a dowry from the parental side. In the FIR only this much is mentioned that at the time of marriage Hemaram father of the girl gave dowry according to his financial position for which there was resentment in the in-laws house because they were not satisfied with the dowry which she brought in the marriage. Admittedly the marriage took place more than a decade before the date of occurrence. Had there been some dissatisfaction to the dowry she brought in the marriage there must have been some cruel treatment meted out and specifically mentioned in the FIR Ex. P/1 or in the testimony of any of the prosecution witnesses. Consequently there must have been some panchayat of the samaj in this connection and so proved by the prosecution evidence. # ( 12 ) HAD there been any demand of dowry after the marriage there must have been specifically mention of the same in the FIR or the Court testimony of the prosecution witnesses, sans it the demand of dowry or meeting out of cruel treatment cannot be presumed. # ( 13 ) PW-4 Hemaram, father of the girl, has stated that about 16-17 years ago Poonam was married. # ( 13 ) PW-4 Hemaram, father of the girl, has stated that about 16-17 years ago Poonam was married. At that time dowry was given which was not to the satisfaction of the in-laws. About 31/2 years prior to the occurrence gauna alias muklawa of Poonam was done. At that time also some dowry was given in the form of ornaments and clothes for which the in-laws were not happy and started taunting Poonam that she has not brought much dowry. Such type of omnibus statement cannot be given credence unless and until specific date, time and the place as also the new demand of dowry is mentioned and proved by cogent and convincing evidence. # ( 14 ) SIMILAR is the situation with PW-2 Vishnaram who is cousin brother of Hemaram. Though in the main examination he stated that the in-laws were dissatisfied by the dowry which Poonam brought in the marriage and has stated that as and when Poonam used to come from in-laws house she used to deisclose that her in-laws were harassing her for not bringing sufficient dowry. In the cross examination this witness admitted that about 12 months prior to the death Poonam told him once that the in-laws were harassing her due to less dowry. This witness has also not specifically stated that in what form dowry was demanded, whether it was cash or in form of some articles or ornaments and how many times and what action the relatives of the deceased took upon the complaint of deceased Poonam. It is not uncommon that when a young lady dies in the in-laws house such allegations are imputed in the FIR and in such a situation it has been held by the Apex Court as also some High Courts that cruelty so meted out to the lady for non-fulfilment of the demand of dowry shall be immediately before the occurrence. In the matter at hand on such eventuality has been either stated or proved from the prosecution side. # ( 15 ) PW-8 Mst. Chukdi is also related to Hemaram but was married in the family of accused persons. She has not supported the prosecution case and has been declared hostile. Even the Public Prosecutor has not suggested her that ever any demand of dowry was made and for its non-fulfilment Poonam was subjected to cruelty. # ( 15 ) PW-8 Mst. Chukdi is also related to Hemaram but was married in the family of accused persons. She has not supported the prosecution case and has been declared hostile. Even the Public Prosecutor has not suggested her that ever any demand of dowry was made and for its non-fulfilment Poonam was subjected to cruelty. # ( 16 ) PW-9 Dhapu is real sister of Hemaram and has been married in the family of the accused persons. She too has been declared hostile and has not supported the prosecution case. The Public Prosecutor has also not given any suggestion to her that ever any demand of dowry was made by the in-laws and due to that Poonam was subjected to cruel treatment. # ( 17 ) SIMILAR is the situation with PW-17 Khinyaram who was also related to deceased through maternal side. He too has been declared hostile yet the Public Prosecutor has not suggested him that even any demand of dowry was made and due to that Poonam was subjected to cruel treatment. # ( 18 ) PW-20 Indra was another real sister of Hemaram. She too has been declared hostile and has not supported the prosecution case. This witness has also not been suggested that ever any demand of dowry was made to Poonam and due to that she was subjected to cruel treatment. # ( 19 ) PW-18 Magh Singh was the Circle Officer, Jaisalmer and who conducted investigation of the case has admitted in cross examination that Chhaganaram and Sawairam have stated in their police statement that Poonam was never subjected to cruel treatment due to demand of dowry. # ( 20 ) IN the face of above evidence the trial Court came to the conclusion to the contrary that there was demand of dowry from the in-laws side and due to its non-fulfilment Poonam was subjected to cruel treatment. The above finding seems to have been based on conjectures and surmises only having no bearing and basis which I set aside. # ( 21 ) WITH regard to causing murder of Poonam there was no eye witness to the occurrence. PW-5 Phusaram happened to be present nearabout and saw the dead body lying in the dhani. Had there been foul play, being a close relative it was his duty to have informed the police or the parents immediately after the occurrence. # ( 21 ) WITH regard to causing murder of Poonam there was no eye witness to the occurrence. PW-5 Phusaram happened to be present nearabout and saw the dead body lying in the dhani. Had there been foul play, being a close relative it was his duty to have informed the police or the parents immediately after the occurrence. He took the matter very casually, went to his work and on third day of occurrence when he was at Jaisalmer he per chance met PW-23 Manakaram whom he disclosed the death of Poonam and one day thereafter Ex. P/1 FIR was lodged by Hemaram. PW-23 Manakaram has also been declared hostile. He too has not supported the prosecution case. According to this witness Phusaram met him at Jaisalmer and told that Poonam died due to fall in the water tank, therefore, inform Hemaram. He has further stated that upon this he went to Hemaram and informed him accordingly. # ( 22 ) PW-4 Hemaram has also made significant and material improvement in the Court testimony. He has been confronted with the FIR Ex. P/1 as also his police statement Ex. D/2 with regard to the improvements he made in the Court testimony which renders him not of sterling worth. Similarly, PW-5 Phusaram has also made significant improvement and contradictory statements and has been confronted by his police statement Ex. D/3 portion "a" to "b", "c" to "d", "e" to "f" and "g" to "h" resulting which he has lost his credibility. He has also made significant improvements in the Court testimony which were found missing in his police statement. Therefore, the testimony of these witnesses cannot be held to be of sterling worth. # ( 23 ) THE trial Court has not analysed and assessed the testimonial value of the prosecution witnesses in correct perspective and fell into the quagmire of conjectures and surmises. # ( 24 ) CONSEQUENTLY, I do not find any merit in the impugned judgment. The accused appellants are also given benefit of doubt as no offence beyond reasonable doubt is proved. Therefore, this appeal is accepted and the conviction and sentence is set aside. Accused appellants are in custody. They be set at liberty forthwith, if not required in any other matter. Appeal allowed. .