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Rajasthan High Court · body

2005 DIGILAW 317 (RAJ)

Nand Kishore v. State

2005-02-03

B.PRASAD, SATYA PRAKASH PATHAK

body2005
Judgment 1. Heard the learned Counsel for the parties. 2. The present appeal has been filed by accused Nand Kishore who is married to Smt. Kiran according to Hindu rites. Smt. Kiran died within three years of marriage under suspicious circumstances. The prosecution case is that her death was within seven years of marriage and in suspicious circumstances, wherein she had died having received numerous ante-mortem injuries including fracture of hybrid bone. It was found that she was hanging when her body was recovered. The prosecution was initiated after lodging of Ex.P/1, a written first information report alleging maltreatment to Smt. Kiran and death within seven years of marriage i.e. after three years of marriage. There were various injuries on her person which were ante-mortem and there was a demand of dowry. After the challan was presented against the accused appellant, charge under Sec. 304-B IPC was framed against the accused appellant. The prosecution case examined as many as 18 witnesses and tendered 20 documents in defence. The accused in his statement under Sec. 313 CrPC submitted that he is innocent. He used to keep her wife with utmost affection and love and he had never demanded dowry. She used to be a sick lady. How she died, he cannot explain. Thus, denial of the accused is plain and simple with no specific defence except that he used to keep her with love and affection. 3. In the first information report, the first information incorporated an allegation against the accused appellant that the accused had demanded dowry. Specifying, the demand of Maruti car is incorporated in the first information report. The trial Court after considering the prosecution case has come to the conclusion that except few contradictions, the prosecution has come out consistently that it was a case of un-natural death within seven years of marriage and there was contemporaneous demand of dowry and ultimately convicted the accused appellant under Sec. 304-B IPC. On the question sentence, the appellant was heard and after that life sentence was imposed on the accused appellant. 4. Learned Counsel for the appellant asserted that it is not a case which can be covered under Sec. 304-B IPC because the prosecution has miserably failed to set up demand of dowry soon before the occurrence as is provided under Sec. 304-B IPC. 4. Learned Counsel for the appellant asserted that it is not a case which can be covered under Sec. 304-B IPC because the prosecution has miserably failed to set up demand of dowry soon before the occurrence as is provided under Sec. 304-B IPC. In absence of establishment of factum of demand of dowry soon before the incident, allegation of prosecution cannot be said to be made out and therefore, the conviction of the appellant under Sec. 304-B IPC is not maintainable. According to the learned Counsel for the appellant PW. 1 Balchand, the first informant, in his examination-in-chief has not specifically stated that there was any demand of dowry and in cross-examination, he has admitted that the accused used to beat the deceased but never used to complain anything due to inboard shyness. Learned Counsel for the appellant further stated that PW. 2 Sohan lal who is the uncle of the deceased has spoken not a word about the incident. He also submitted that when the dead body was handed over to the father of the accused, there was no whisper raised by the parents of the girl because had there been any element of foul play, the father would not have permitted the dead body to be taken by in laws. He would have himself taken the body and performed the last rites. But in this case, the last rites were performed by the in-laws. Their conduct therefore, is of rightcousness and nothing foul can be seen from this kind of conduct of the in-laws of the deceased. 5. Learned Counsel for the appellant has further criticised the statement of PW. 6 Rajendra Suwalka. It is urged that PW. 6 Rajendra should have been examined as PW. 7 because he was the sixth witness in stratum. Be that as it may, the statement of Rajendra Suwalka is treated by us as PW. 6 because he has been marked as PW. 6 by the trial Court and any amendment at this stage would not be proper. Learned Counsel for the appellant criticizing the statement of PW. 6 has stated that this witness has in fact stated the real reason of dispute between husband and wife that the accused never used to talk to the deceased and he used to mal-treat the deceased. Learned Counsel for the appellant criticizing the statement of PW. 6 has stated that this witness has in fact stated the real reason of dispute between husband and wife that the accused never used to talk to the deceased and he used to mal-treat the deceased. Thus, may be that due to indifferent attitude of the accused or for that matter, mal-treatment of the accused, the deceased committed suicide but then there was no element of dowry established by this witness. Here we may note that this witness specifically states that there was demand of Maruti Car by the accused and such has been stated in the statement of this witness. 6. Learned Counsel for the appellant has further criticised the statement of PW. 7 Bhagwati who is alleged to be friend of the deceased by stating that she had spokon certain such facts which have not been deposed by any other witness. PW. 8 Madan lal is the father of the deceased. He was confronted with the police statement. Some portion of the statement has been marked which have been dis-owned by this witness but they are of no consequence so far as demand of dowry is concerned. He has also in his statement said that there was persistent demand of dowry by the accused appellant. The statement of mother of the accused PW. 9 is also criticised. The statement of PW. 9 paras is relief upon by the defence who has stated that she has never been made any demand of Maruti car by the accused appellant but she states that the car was demanded from the girl. Other witnesses who have supported the prosecution have also been criticised by the learned Counsel for the appellant for the inconsistencies being there in their statement. 7. The principal attack of the learned Counsel for the appellant against the prosecution is that the part of the prosecution story wherein the demand of dowry has been made is a suspicious circumstance and unless this circumstance is establilshed , it is not possible to convict the accused appellant under Sec. 304-B IPC. 7. The principal attack of the learned Counsel for the appellant against the prosecution is that the part of the prosecution story wherein the demand of dowry has been made is a suspicious circumstance and unless this circumstance is establilshed , it is not possible to convict the accused appellant under Sec. 304-B IPC. May be that there were ante-mortem injuries measuring around ten on the person of the deceased but that could not by itself established the cruelty or assault made on the deceased which resulted into these injuries and that being the position, a presumption as available under Sec. 304-B IPC cannot be drawn and in absence of presumption, no conviction could have been recorded and lastly, it was not possible to record any sentence against the accused appellant. 8. Per contra, learned Public Prosecutor submitted that demand of dowry in the shape of Maruti Car has been deposed by almost all the witnesses. It was incorporated in the First Information Report. The first informant has stated that the appellant had made a demand at the time of “Sehra’. That being the position, there was a demand raised by the accused which was persistent and injuries on the person of the deceased are indicative of the fact that she was dealt with roughly before death and there are various contusions present on the person. The injuries of the deceased are reproduced herein below for ready reference:- "1. Ligature mark around the neck 5-6 mm. wide. Above the level of thyroid cartilage with a gap of 2 ½” from the back of Rt. ear (1 ¾” behind) to the nope of neck, ligature mark splitting with two-slightly less marked lower one extruing for 1½” from a point 2” behind the lobole of Rt. ear. 2. 1” and 1 ¼” long transusse abrasions (o 1/3” width) over the nope of neck 3. 3 transverse abrasions 1”, 1” and ¼” correspondingly 1½”, 1½” and above the ligature mark on the part of neck under the chin. 4. Semilinear abraded contusions 2”x1” with convexity to the right of shin of Rt. Leg 6” below the Rt. knee. 5. 1/3” ora circular abrasion over the part of left knee. 6. Contusion 1” x ¾” oval oblique over the Rt. side of forehead just above the laternal end of Rt. eyebrow. 7. Contusion 2¾” ora circular Rt. Parital region of the scalp. 8. Leg 6” below the Rt. knee. 5. 1/3” ora circular abrasion over the part of left knee. 6. Contusion 1” x ¾” oval oblique over the Rt. side of forehead just above the laternal end of Rt. eyebrow. 7. Contusion 2¾” ora circular Rt. Parital region of the scalp. 8. Contusion ½” x ¼” oblosbrainevsse over the helix of Rt. ear ½ above lobula. 9. Abraded contusion 1 ½” x ¾” ovalvertical on the back of left forearm below the elbow.” 9. Learned Public Prosecutor emphasizes that the deceased committing suicide was dealt with roughly which is supported by ocular testimony as well as medical testimony which shows various ante-mortem injuries on the person of the deceased. A case under Sec. 304-B IPC is rightly made out because demand of dowry has been deposed by the prosecution witnesses and minor contradictions and omissions would not obviate the factum of demand of dowry altogether. Thus, learned Public Prosecutor has supported the Judgment of the learned trial Court and has submitted that there is no force in the appeal and appeal deserves to be dismissed. 10. We have given our thoughtful consideration and have perused the record. From the record, we find that within seven years of marriage, the deceased Smt. Kiran had died an un-natural death. For bringing the case under Sec. 304-B IPC only ingredient which is further required to be established is the demand of dowry soon before the death. The fact of demand of Maruti car is incorporated in Ex. P/1 the first information report. The same fact has been deposed by PW. 1 scribe of the First Information Report. Thus, it cannot be said that the prosecution in the first instance has not come with the demand of dowry. The demand of dowry having been incorporated in the first information report and further in the statement of PW. 1, it cannot be said that it was an after thought. 1 scribe of the First Information Report. Thus, it cannot be said that the prosecution in the first instance has not come with the demand of dowry. The demand of dowry having been incorporated in the first information report and further in the statement of PW. 1, it cannot be said that it was an after thought. The statement of other witnesses also make out a case wherein demand of dowry is prominently spoken though minor variations are available in the statement of the witnesses but such variations are natural because when the witness is examined in the Court, he is not always as consistent as one can esxpect him to be but so far as demand of dowry is concerned, almost all the prosecution witnesses have supported the case except 2-3 witnesses who have turned hostile. The case of demand of dowry having been incorporated in the first information report and in the statement of PW . 1 and also in the statement of father, mother of the deceased, it cannot be said that there was no demand of dowry. The demand of dowry being present, we are left with no alternative but to draw a case under Sec. 304-B IPC. 11. The fact of hanging is another aspect which requires a little consideration because in the post-mortem report we find that there are as many as ten injuries on the person of the deceased and few of them being contusions, that speaks of violent assault on her. The hybrid bone is also fractured. The cause of death is cerebral eschaemia which takes place in throatling but the incident of death having occurred without there being anyone who could depose against the accused person, a case otherwise than the present one cannot be considered to be proved against the accused appellant and the prosecution rested its case under the cover of such enabling provision which provide for taking presumption to bring the case under Sec. 304-B IPC. Where a presumption is drawn of un-natural death within seven years of marriage associated with demand of dowry and the case is found to be established by the trial Court, we do not think any illegality has been committed by the trial Court in drawing such presumption. That being the position, we do not consider that the conviction as recorded by the prosecution is liable to be interfered. 12. That being the position, we do not consider that the conviction as recorded by the prosecution is liable to be interfered. 12. Learned Counsel for the appellant further urged that the sentence awarded is excessive. The conviction is with the help of presumption and no direct evidence of foul play the accused appellant has been made the subject matter of the prosecution. 13. We have considered this aspect and we are of the opinion that instead of life sentence, ten years rigorous imprisonment with a fine of Rs. 1000/-would meet the ends of justice. The appeal is rejected so far as it relates to conviction of the accused appellant however, we modify the sentence to the extent of allowing the accused to undergo 10 years rigorous imprisonment instead of life sentence. 14. In the result, the appeal is partly allowed. The conviction awarded against the accused appellant is maintained, however, the sentence awarded is modified and accused appellant is ordered to undergo 10 years rigorous imprisonment instead of life sentence alongwith fine of Rs. 1,000/-and in default of payment of fine accused appellant will undergo six months simple imprisonment.