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2008 DIGILAW 2342 (RAJ)

Ganpat Singh v. State of Rajasthan

2008-10-15

A.M.KAPADIA, DEO NARAYAN THANVI

body2008
JUDGMENT 1. - This criminal appeal is directed against the judgment dated 17.08.2002 passed by the learned Additional Sessions Judge, Nathdwara, whereby, he convicted accused appellants Ganpat Singh and Smt. Sunder Kanwar for offence under Secs. 498A, 201, 304B, 302 read with Section 120B and 34 I.P.C. and sentenced each of them as under :Under Sec. 498A I.P.C.Rigorous imprisonment for one year and a fine of Rs. 200/-, in default of payment of fine to further undergo one month's simple imprisonment.Under Sec. 201 I.P.C.Rigorous imprisonment for one year and a fine of Rs. 200/-, in default of payment of fine to further undergo one month's simple imprisonment.Under Sec. 304B I.P.C.Rigorous imprisonment for seven year and a fine of Rs. 500/-, in default of payment of fine to further undergo six month's simple imprisonment.Under Sec. 320B r/w Sections 120B and 34 I.P.C.Imprisonment for life and a fine of Rs. 1000/-, in default of payment of fine to further undergo one year's simple imprisonment. 2. All the sentences were ordered to run concurrently. However, the learned Addl. Sessions Judge, Nathdwara acquitted accused Smt. Nihal Kanwar and Smt. Saria Kanwar by the same judgment. 3. Facts leading to this appeal are that one Bhopal Singh PW-1 filed a written report Ex.P.l before SHO, Khamnor on 25.10.2001 to the effect that about 4-5 days back, one Lal Singh died and family of the neighbours were at his residence then at about 9 A.M., he heard- cry of ladies at the residence of his younger brother Daulat Singh. He and Mahendra Singh went there and saw that Mangu Kanwar wife of accused appellant Ganpat Singh committed suicide by strangulation, who was married two to three years back. It was staled in the FIR that he does not know that how Mangu Kanwar died. Upon this report, enquiry was made by the Magistrate under Sec. 176 Cr.P.C. and thereafter, a case was registered vide FIR No. 166/2001 under Sec. 304B IPC. After usual investigation, accused Ganpat Singh, Smt. Sunder Kanwar, Smt. Nihla Kanwar and Smt. Sariya Kanwar were charge sheeted under Secs. 302, 304B, 498A, 201, 120B read with Section 34 IPC and also under Sec. 4 of the Dowry Prohibition Act. The case was committed to the Court of Sessions, where charges were framed against above four accused under Secs. After usual investigation, accused Ganpat Singh, Smt. Sunder Kanwar, Smt. Nihla Kanwar and Smt. Sariya Kanwar were charge sheeted under Secs. 302, 304B, 498A, 201, 120B read with Section 34 IPC and also under Sec. 4 of the Dowry Prohibition Act. The case was committed to the Court of Sessions, where charges were framed against above four accused under Secs. 498 A, 304B, 302 read with Section 34, 120B and 201 IPC, to which they pleaded not guilty. Prosecution examined 30 witnesses. Statements of accused were recorded under Sec. 313 Cr.P.C. They produced one Gamhhir Singh DW 1 in defence After hearing the arguments, the learned trial Judge convicted and sentenced the accused appellants as above. 4. It has been contended by learned counsel for the accused appellants that firstly, the learned trial Judge has wrongly convicted the accused appellants both under Secs. 302 and 304B I.P.C. According to him when a person is convicted under Sec. 302 IPC, there is no need to record the conviction under Sec. 304B IPC. He has submitted that the only conclusion which can be drawn from the prosecution story is that it is a case of suicidan death and not of homicidal death. Learned counsel has further submitted that accused appellant Ganpat Singh took loan from various persons including his in-laws for doing business and he went at his in-laws house to bring his wife at his home. I here was no demand of dowry either by accused appellant Ganpat Singh himself or his mother accused appellant Smt. Sunder Kanwar. There is a positive medical evidence that it was the deceased who took some aluminum phosphate substance herself and thereafter committed suicide. In such a situation, the presumption under Sec. 120B IPC cannot be drawn. According to him, there is neither any evidence of conspiracy, common intention or of destroying the evidence of offence. 5. Per contra, the learned Public Prosecutor has supported the judgment of the learned trial Court. 6. We have re-appreciated the evidence on record and are of the view that it is not a case of homicidal death but of suicidal death for the reasons that firstly, in the written report Ex.P.1, there is no mention as to whether any poison was administered to deceased Mangu Kanwar, and on the contrary, the dead body was standing in the house with sari on the neck. Secondly, when the letter was sent to the Medical Officer by the Deputy Superintendent of Police, the Doctor opined in Ex.P. 33 that aluminum phosphate is of-course a poison and its fatal period is 100 minutes to 24 hours, and it can be found in fitcari, dying material, seafood, baking powder, purifying water before filtering water, milk, egg etc. In this report, it is also staled that in the FSL report Ex.P. 68, it is not clear as to how much quantity was of aluminum phosphate, therefore, it cannot be said that as to whether it was sufficient to cause death. Thirdly, no relative witness has said that aluminum phosphate was administered by the accused appellants to the deceased. The only evidence to this effect is of following witnesses namely Bheru Singh PW-10, who is the relative of both accused appellants and the deceased. He has stated in his examination-in-chief that accused i.e. the house of Talwar Singh PW-24, who is his uncle and told to send Mangu Kanwar with him, else either he will take poison or will administer poison to her, and if she will not send, he will die. When this witness was confronted with his previous statement Ex.D.3, he said that why it has not stated in the police statement, he cannot say. Bhanwar Kanwar PW-7, mother of the deceased has only stated that when Ganpat Singh came to her house for taking her daughter, he simply said that if Mangu is not send with him, he himself will take poison. Anchha Kanwar PW-22 is the sister of the deceased and she has also not said about administering poison and the only allegation is that Mangu Kanwar was killed by the accused appellants on account of dowry, which Mangu Kanwar apprehended earlier. Talwar Singh PW-24 is the father of the deceased. He has stated that when Ganpat Singh came to his house to take his daughter, he told to send Mangu Kanwar, else he will die or he will kill her. When on administering aluminum phosphate, Dr. Talwar Singh PW-24 is the father of the deceased. He has stated that when Ganpat Singh came to his house to take his daughter, he told to send Mangu Kanwar, else he will die or he will kill her. When on administering aluminum phosphate, Dr. Jagdish Sharma PW-14 was examined, in the Post Mortem Report Ex.P.22, he deposed that a person who takes aluminum phosphate and dies, his nails of hands and legs as well as lips normally becomes blue, but these facts are not shown on the outer parts of the dead body, and no such signs are available in the Post Mortem Report Ex.P.22. In the absence of positive medical report and evidence of administering poison as discussed above, it is difficult to arrive at a conclusion that it is a case of homicidal death. When the death is not homicidal, conviction under Sec. 302 IPC cannot be sustained. The totality of the evidence including the testimony of the Doctor reveals that it is a case of suicidal death. 7. When the death is suicidal and if it is caused within seven years of the marriage, presumption under Sec. 113B of the Evidence Act is that, it is a dowry death provided if it is shown that soon before her death, such woman had been subjected to cruelty or harassment or was in connection with any demand for dowry. In this regard, it is amply proved from the evidence of Pawan Kanwar PW-6, who is the friend of deceased, Bhanwar Kanwar PW-7, mother of the deceased, Anchha Kanwar PW-22, sister of the deceased and Talwar Singh PW-24, father of the deceased that soon before the death of Mangu Kanwar, Ganpat Singh consistently demanded money in cash as well as buffaloes from his in-laws. Not only this, Talwar Singh PW-24, who is the father of the deceased has stated that when his nephew Bhanwar Singh bring Mangu Kanwar to his house, Mangu Kanwar told that Saria Kanwar and Nihal Kanwar are saying that on account of small quantity of dowry, they will marry Ganpat Singh again, and she was also thrown down by her mother-in-law accused appellant Smt. Sunder Kanwar. Thereafter, Smt. Sunder Kanwar, Ganpat Singh and Daulat Singh demanded money for the purchase of bus for Ganpat Singh, upon which, he arranged fifty thousand rupees. Then, seventy thousand rupees were further given to him on demand. Thereafter, Smt. Sunder Kanwar, Ganpat Singh and Daulat Singh demanded money for the purchase of bus for Ganpat Singh, upon which, he arranged fifty thousand rupees. Then, seventy thousand rupees were further given to him on demand. Thereafter, the ornaments were sold by accused appellants Ganpat Singh and Smt. Sunder Kanwar and again fifty thousand rupees were further given through Daulat Singh, retired ASI. This evidence shows that there was a constant demand by accused appellant Ganpat Singh for dowry. 8. So far as accused appellant Smt. Sunder Kanwar, mother-in-law of the deceased is concerned, there is no substantive evidence that she made any demand for dowry, except omnibus statements of the relative witnesses. On the contrary, Bhanwar Kanwar PW-7, who is the mother of the deceased has stated that after marriage, no demand was made of the ornaments except two lakh rupees for the purchase of bus for Ganpat Singh. Even in the cross examination, she has stated that she did not tell anything to his relatives and neighbours that in-laws of Mangu Kanwar are demanding money. Pawan Kanwar PW-6, who is the friend of the deceased has also not stated any role of accused appellant Smt. Sunder Kanwar, who is the mother-in-law of the deceased in the matter of demand of dowry. On the contrary, she has staled that Sariya Kanwar and the wife of one Devi Singh who used to remain at the house of deceased Mangu Kanwar were instigating Ganpat Singh and his mother. There is no any specific role said to have been played by accused appellant Smt. Sunder Kanwar in the matter of demand of dowry, therefore, in our view, the conviction of accused appellant Ganpat Singh recorded under Secs. 304B and 498A IPC is liable to be confirmed but, so far as accused appellant Smt. Sunder Kanwar is concerned, her conviction in these Sections cannot be sustained. 9. Coming to the offence under Sec. 201 IPC, there is no evidence to the effect that accused appellants committed any act with regard to the disappearance of evidence of offence. Further, when the offence under Sec. 302 IPC is not made out, then, it cannot be said that body of Mangu Kanwar was hanged on the iron hook with the help of sari to destroy the evidence. 10. Consequently, we allow this appeal in part. Further, when the offence under Sec. 302 IPC is not made out, then, it cannot be said that body of Mangu Kanwar was hanged on the iron hook with the help of sari to destroy the evidence. 10. Consequently, we allow this appeal in part. While maintaining the conviction of accused appellant Ganpat Singh for offence under Secs. 304B and 498A IPC, his sentence of seven years' rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo six months' simple imprisonment for offence under Sec. 304B IPC and one years' rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine to further undergo one month's simple imprisonment for offence under Sec. 498A IPC is confirmed. Accused appellant Ganpat Singh is in jail, he will serve out the remaining part of the sentence. However, accused appellant Ganpat Singh is acquitted for offence under Sec. 302 read with Sections 120B and 34 IPC and also for offence under Sec. 201 IPC. The conviction and sentences of accused appellant Smt. Sunder Kanwar for offence under Secs. 498A, 201, 304B, 302 read with Sections 120B and 34 IPC are set aside. She is acquitted from the charges levelled against her. She is on bail, her bail bonds stands cancelled.Appeal Partly Allowed. *******