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2009 DIGILAW 372 (RAJ)

Shiv Narain Sharma v. State of Rajasthan

2009-02-05

MAHESH CHANDRA SHARMA

body2009
Judgment Hon'ble SHARMA, J.—This revision petition has been filed by petitioner Shiv Narain, against the order dated September 18, 2007 of Additional Sessions Judge (Fast Track) No. 2, Jaipur City, Jaipur in Sessions Case No. 32 of 2007 whereby the accused respondents 2 and 3 were acquitted from the charges for the offence under Sections 498 A & 304 B IPC. 2. Brief facts of the case are that the marriage of the petitioner's daughter namely Vandana @ Gudiya was solemnized with Avdesh Mishra, who is accused respondent No. 2 on January 30, 2005. The petitioner had given dowry articles to the accused respondents to the best of his financial capacity but they were not satisfied with the same and they used to torture his daughter for not bringing more dowry i.e. Rs. 50,000 cash or motorcycle. The daughter of the petitioner was given beatings by the accused respondents and the they used to threat her that they would not keep her in the matrimonial home, until their demands were satisfied. After the marriage the daughter of the petitioner came to her parental house and told her father and other family members regarding the demand of dowry i.e. a motor cycle or Rs. 50,000 cash. On April 12, 2004 when Vandana, daughter of the petitioner came to her parental house on the occasion of her brother's marriage, the respondents 2 and 3 again demanded motorcycle. On April 27, 2006 when Vandana was about to proceed to her matrimonial home after the marriage ceremony of her brother, she told her parents that she would be subjected to torment and torture by her husband and mother in law if their demand of Rs. 50,000 cash or motorcycle was not satisfied. On May 2, 2005 Vandana telephonically informed the petitioner that her in laws were torturing her for not fulfilling their demand of dowry. Same day the complainant arranged a sum of Rs. 50,000/- from his relatives and proceeded to Jaipur along with his wife and relatives. They reached the matrimonial home of the deceased at about 6 p.m. when they came to know about her death. Thereafter the complainant petitioner submitted a written report at Police Station Shyam Nagar stating therein the details of the cruelties and the sequence of events leading to the death of his daughter. They reached the matrimonial home of the deceased at about 6 p.m. when they came to know about her death. Thereafter the complainant petitioner submitted a written report at Police Station Shyam Nagar stating therein the details of the cruelties and the sequence of events leading to the death of his daughter. On the basis of written report FIR bearing No. 150 of 2006 came to be registered at Police Station Shyam Nagar, Jaipur for offences under Sections 498-A and 304-B IPC. After concluding the investigation, the Police filed charge sheet against the accused respondents. The Judicial Magistrate took cognizance against the accused respondents under Sections 498-A and 304-B and 406 IPC and thereafter committed the case for trial to the Court of Sessions. Charges were framed by the trial Court against the accused respondents for offences under sections 304 B IPC/306 and 498-A IPC to which they pleaded not guilty and claimed trial. As many as 26 witnesses were examined by the prosecution and exhibited 38 documents. In defence five witnesses were examined and some documents were exhibited. Accused respondents were examined under Section 313 Cr.P.C. to which they stated that the prosecution witnesses had deposed against them falsely. The trial Court after hearing arguments advanced by the parties, acquitted the accused respondents vide judgment dated September 18, 2007. The complainant petitioner filed the instant revision petition against the order of acquittal. 3. The learned counsel for the petitioner argued that the deceased had died unnatural death due to cruelty, humiliation and harassment with regard to demand of dowry which was soon before her death. Soon before the death of Vandana, demand of Rs. 50,000 or motorcycle by way of dowry was raised by the accused respondents which is corroborated by the statements of Shiv Narain, PW.5, Mukesh Kumar Upadhyaya PW.11 and Gauri Shanker PW. 13. There was ample evidence to prove that the accused respondents had been ill-treating Vandana since after the marriage, which was established by the statement of Smt. Rameshwari Devi PW.3 and the other prosecution witnesses. There is no reason to disbelieve the statement of PW.3 and other prosecution witnesses, which could not be shattered after the cross examination. As such the trial court has acted illegally and with material irregularity in acquitting the accused respondents without having regard to the consistent and convincing positive evidence led by the prosecution at the trial. There is no reason to disbelieve the statement of PW.3 and other prosecution witnesses, which could not be shattered after the cross examination. As such the trial court has acted illegally and with material irregularity in acquitting the accused respondents without having regard to the consistent and convincing positive evidence led by the prosecution at the trial. The trial Court has given undue and misplaced weightage to the minor discrepancies in the prosecution evidence, which in view of the proposition laid down by the Apex Court cannot be made a basis of acquittal when the case is proved by convincing evidence. Mr. Anurag Sharma placed reliance on State of A.P. vs. Rajgopal Asawa and another ( 2004 4 SCC 470 . There is material against the accused respondents, but the trial Court failed to consider the material. 4. The learned counsel for the accused respondents and the learned Public Prosecutor on the other hand opposed the submissions of learned counsel for the petitioner and stated that the court below after considering all the evidence, documents and record passed the order of acquittal. There is no illegality or infirmity in the order passed by the Court below. Mr. A.K. Gupta, learned counsel for the accused respondents placed reliance on Jagnnath Choudahry and others vs. Ramayan Singh and another (MANU/SC044/2002. (2002 Cr.L.R. (SC 506), Kishan Swaroop vs. Govt. of NCT of Delhi (JT 1998 (4) SC 486) Akalu Ahir and others vs. Ramdeo Ram ( AIR 1973 SC 2145 , Chaganti Kotaiah and others vs. Gogineni Venkateshwara Rao and Another ( AIR 1973 (SC 1274 ) Pakalapati Narayana Gajapathi Raju and others vs. Bonapalli Peda Appadue and another (75 Cr.L.R. (SC) 467) D. Stephens vs. Nosibolla ( AIR 1951 SC 196 ) Logendra Nath Jha and other vs. Shri Polailal Biswas ( AIR 1951 SC 316 ) Harjit Singh vs. State of Punjab ( AIR 2006 SC 680 ) Satvir Singh and others vs. State of Punjab and another ( AIR 2001 SC 2828 Kan Singh and another vs. State of Harayana and Another (2008 Cr.L.R. (SC) 159). 5. I have heard the learned counsel for the parties and gone through the entire record. 5. I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it would be necessary to have a look at Sections 304 B and Section 498A, which read as follows: "304-B. Dowry Death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed t have caused her death. Explanation.-For the purpose of this sub section `dowry' shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) 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." "498-A : Husband or relative of husband of a woman subjecting her to cruelty - whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation-For the purpose of this section `cruelty' means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 6. The term "dowry" has been defined in Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act') as under:- "Section 2. The term "dowry" has been defined in Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act') as under:- "Section 2. Definition of `dowry' - In this Act, `dowry' means any property or valuable security given or agreed to be given either directly or indirectly.- (a) by one party to a marriage to the other party to the marriage; or (b) 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 any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies. Explanation I- For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties. Explanation II- The expression `valuable securit' has the same meaning in Section 30 of the Indian Penal Code (45 of 1860)." 7. Explanation to Section 304-B refers to dowry "as having the same meaning as in Section 2 of the Act", the question is : what is the periphery of the dowry as defined therein ? There has to be an agreement at the time of the marriage in view of the words "agreed to be given" occurring therein, and in the absence of any such evidence it would not constitute to be dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. 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 and 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. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly and 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. 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. Section 113-B of the Evidence Act is also relevant in this case. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B read as follows:- "113-B: Presumption as to dowry death- 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. Explanation.-For the purposes of this section dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)." 8. Explanation.-For the purposes of this section dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)." 8. The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on `Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of `dowry death' in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC). (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death. 9. 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. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances.' The expression `soon before' 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 the `death occurring otherwise than in normal circumstances.' The expression `soon before' 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 circumstances of each case and no strait-jacket 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 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. The expression `soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is not defined. A reference to expression `soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon 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 concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If 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. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If 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. In State of A.P. Raj Gopal Asawa and another (2004) 4 SCC 470 , it was held as under: Explanation to Section 304-B refers to dowry "as having the same meaning as in Section 2 of the Act," the question is: what is the periphery of the dowry as defined therein ? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be given" occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and Ors. vs. State of Haryana ( 1998(3) SCC 309 ). 11. The judgment of the trial Court is based only on conjectures. The trial Court held that there is no such evidence available on record to connect the accused respondents with cruelty or harassment with demand of dowry. I have read the judgment and the statements of the prosecution witnesses and the relevant documents placed on record, in my view the findings arrived at by the trial Court acquitting the accused respondents from the charges leveled against them are perverse and the law laid down by the Apex Court has not been considered in the judgment. There is enough material on record to connect the accused respondents with respect to death of Vandana. It is an admitted fact that the defence has not been able to produce a single witness evidencing that the death of Vandana was accidental. If no cruelty or harassment was made towards Vandana why she would commit suicide. The trial Court has not considered all these aspects of the matter in the instant case. Thus the order of the trial Court is liable to be set aside because it has failed to consider the position of law as mentioned above. 12. For the reasons mentioned above, the order of acquittal dated September 18, 2007 of Addl. The trial Court has not considered all these aspects of the matter in the instant case. Thus the order of the trial Court is liable to be set aside because it has failed to consider the position of law as mentioned above. 12. For the reasons mentioned above, the order of acquittal dated September 18, 2007 of Addl. Sessions Judge (Fast Track) No. 2 Jaipur City Jaipur in Sessions Case No. 32 of 2007 is set aside and the matter is remanded back to the trial Court and the trial Court is directed to consider the reasonings and the law on the subject mentioned above and after hearing both the parties pass a fresh order. The parties are directed to appear before the Addl. Sessions Judge (Fast Track) No. 2 Jaipur City Jaipur on March 5, 2009. The Trial Court is directed to expedite the matter as early as possible. The record of the case may be sent back to the trial Court. 13. The revision petition is disposed as indicated above.