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2008 DIGILAW 190 (RAJ)

Daulat Ram v. State of Rajasthan

2008-01-22

R.S.CHAUHAN, SHIV KUMAR SHARMA

body2008
Honble SHARMA, J.–Daulat Ram, appellant herein, was put to trial on the allegations of committing `dowry death of his wife before learned Additional Sessions Judge (Fast Track) Tonk, who vide judgment dated November 7, 2003 convicted and sentenced him as under:- U/s. 304-B IPC: To suffer rigorous imprisonment for life and fine of Rs.100/-, in default to further suffer simple imprisonment for three months. U/s. 498-A IPC: To suffer rigorous imprisonment for two years and fine of Rs.100/- in default to further suffer simple imprisonment for three months. The substantive sentences were ordered to run concurrently. (2). It is the prosecution case that on March 7, 2003 at 1.30 PM informant Prakash Khatri (Pw.9) submitted a written report (Ex.P- 14) at police station Deoli District Tonk to the effect that his sister Parmeshwari, who married to Daulat Kumar on June 29, 2001, was subjected to harassment in connection with demand of dowry by her husband and in-laws. In the morning of said day (March 7, 2003) the informant was telephonically informed by father-in-law of Parmeshwary that she had heart attack and died. Informant and his family members rushed to Deoli and saw the dead body of Parmeshwary. There were ligature marks over her neck. The informant suspected that Parmeshwari was killed by her husband and in-laws. On that report a case was registered under sections 304B and 498-A IPC and investigation commenced. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Tonk. Charges under sections 304-B and 498-A IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 13 witnesses. In the explanation under Sec.313 Cr.P.C., the appellant claimed innocence. One witness in support of defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. (3). In order to establish that death of Parmeshwari occurred under abnormal circumstances the prosecution examined Dr. Subhash Kholia (Pw.1) who conducted autopsy on the dead body. As per post mortem report (Ex.P-1) the cause of death was asphyxia as a result of strangulation. Ligature mark of 18cm long and 1cm in width extending from Rt. (3). In order to establish that death of Parmeshwari occurred under abnormal circumstances the prosecution examined Dr. Subhash Kholia (Pw.1) who conducted autopsy on the dead body. As per post mortem report (Ex.P-1) the cause of death was asphyxia as a result of strangulation. Ligature mark of 18cm long and 1cm in width extending from Rt. angle of Mandible encircling the neck low down thyroid cartilage upto mid line of left back of neck, was present. According to Dr. Subhash Kholia, the death could not be the result of hanging. In regard to demand of dowry soon before the death of Parmeshwari, the prosecution adduced the evidence of Lal Chand (Pw.7), Thawardas (Pw.8) and Prakash Chandra (Pw.9). Lal Chand (Pw.7) in his deposition stated that he saw brother-in-law (Behnoi) of Parmeshwari just before 5-6 months of her death, he received her phone call wherein she stated that her husband wanted to go to Dubai and for that purpose she needed a sum of Rs.20,000/-. Again prior to 3-4 days of her death he received her phone wherein she repeated the same demand and stated that she was being harassed by Daulat Ram. Prakash Chandra (Pw.9), brother of deceased, deposed that Parmeshwari visited his house prior to her death and told him that her husband used to torture her for the demand of money. Thawar Das (Pw.8) deposed that Prakash received telephonic call of Daulat, in his presence wherein Daulat Ram demanded a sum of Rs.20,000/- from Prakash Chandra. (4). It is contended by learned counsel that custom of dowry was not prevailed in Sindhi community. The deceased and the appellant entered into marriage in `Samuhik Vivah Sammelan (Group Marriage Programme) and no dowry was paid. According to learned counsel, demand of sum of Rs.20,000/- for going to Dubai did not come under the definition of `Dowry. We have pondered over the submissions. (5). The expression `dowry is defined by Section 2 of the Dowry Prohibition Act,1961 (for short `the Act), as meaning anything which is given either directly or indirectly, by one party to a marriage to the other party to the marriage or by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person" at or before or after the marriage as consideration for the marriage of the said parties. The act has been amended by Act 63 of 1984 and Act 43 of 1986. Formerly dowry was defined as property given as consideration for the marriage but the words "as consideration for the marriage" have been omitted and substituted by the words "in connection with the marriage". Now dowry means any property given or agreed to be given by the parents of a party to the marriage at marriage or before marriage or at any time after marriage in connection with the marriage. (6). Considering the definition of dowry their Lordships of Supreme Court in Reema Aggarwal vs. Anupam (2004)3 SCC 199 , indicated thus:- (Para 14) "The definition of the term "dowry" under Section 2 of the Dowry Act shows that any property or valuable security given or "agreed to be given" either directly or indirectly by one party to the marriage to the other party to the marriage "at or before or after the marriage" as a "consideration for the marriage of the said parties" would become "dowry" punishable under the Dowry Act. Property or valuable security so as to constitute "dowry" within the meaning of the Dowry Act must, therefore, be given or demanded "as consideration for the marriage". (7). It is contended by learned counsel for the appellant that since it could not be established that there was agreement for dowry, the appellant could not be convicted under Sec. 304-B IPC. We find no merit in this submission. In State of Andhra Pradesh vs. Raj Gopal Asawa [JT 2004(3) SC 560] the Apex Court indicated thus:- (Para 8) "The offence alleged against the respondents is under section 304-B IPC which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the respondents seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including section 3, which refers to giving or taking dowry and section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry." (8). Section 113-B of the Evidence Act provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. (9). Analysing the words `soon before her death their Lordships of the Supreme Court in Kamesh Panjiyar vs. State of Bihar (2005)2 SCC 388 , held as under:- "A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that "soon before her death", the victim was subjected to cruelty or harassment "for or in connection with the demand of dowry". Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before her death" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before her death" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test as indicated by the said expression both for the proof of an offence of dowry death as well as for raising a presumption under section 113-B of the Evidence Act. A reference to the expression "soon before" used in Section 114 illustration (a) of the Evidence Act is relevant. The determination of the period which can come within the term "soon before" under section 114 illustration (a) is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence." (10). As already noticed that the harassment or cruelty meted to the deceased was in connection with demand of money. The medical evidence adduced by the prosecution proved beyond reasonable doubt that the death of Parmeshwary was homicidal in nature since it could not be caused by hanging. Thus possibility of committing suicide by her is ruled out. Existence of a proximate and live link between the effects of cruelty based on demand of money is not missing. The medical evidence adduced by the prosecution proved beyond reasonable doubt that the death of Parmeshwary was homicidal in nature since it could not be caused by hanging. Thus possibility of committing suicide by her is ruled out. Existence of a proximate and live link between the effects of cruelty based on demand of money is not missing. Circumstantial evidence adduced by the prosecution in the instant case establishes the guilt of appellant beyond a reasonable doubt. (11). In this appeal we find from the medical evidence that it is a case of strangulation. However, for the purpose of this case it should be accepted that it was an unnatural death. The plea set up by the appellant that the dead body was found hanging and it could be a case of suicide committed by the deceased for unknown reasons, in the circumstances, wholly unacceptable. Though the case rests on circumstantial evidence, presumption under section 113B Evidence Act has rightly been drawn and the appellant is convicted under section 304B IPC. Having given our careful consideration, we agree with the findings of learned trial court. (12). Now coming to the question of sentence it can be seen that section 304B IPC provides thus:- "Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." (13). In Hem Chand vs. State of Haryana (1994)6 SCC 727 , Three Judge Bench of Honble Apex Court indicated that Section 304B IPC only raises presumption and lays down that minimum sentence should be seven years, but it may extend to imprisonment for life, therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case. (14). These days bride killing cases are in increase, but in our opinion this case does not come within the ambit of rare case. Hence, we are of the view that a sentence of imprisonment of ten years would meet the ends of justice. (15). We, accordingly, while confirming conviction of the appellant under section 304B IPC reduce the sentence imprisonment for life to ten years rigorous imprisonment. Conviction and sentence under section 498A IPC passed against the appellant are however confirmed. (16). Resultantly, the appeal is dismissed subject to the above modification of sentence.