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2011 DIGILAW 1479 (RAJ)

Rajesh v. State of Rajasthan

2011-07-25

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—Heard the learned counsel for the parties. 2. The accused-appellants have preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 1.4.2006 passed by Additional District & Sessions Judge (Fast Track), Kishangarhbas, Alwar in Sessions Case No. 42/2004 whereby the appellants have been convicted for the offences under Sections 498-A and 304-B IPC and each has been sentenced to three years rigorous imprisonment with a fine of Rs. 5,000/-, in default of payment of fine to further undergo simple imprisonment for three months for the offence under Section 498-A IPC and seven years rigorous imprisonment for the offence under Section 304-B IPC. 3. The brief relevant facts for the disposal of this appeal are that on 20.2.2004 the complainant Shri Radheshyam, who is father of deceased, lodged a report at Police Station Kotkasim stating therein that his daughter Rajni was married to appellant Rajesh on 26.2.2001 in accordance with Hindu rites and at the time of marriage sufficient dowry and gifts were given, but in-laws of his daughter were not satisfied with the dowry given and since after her marriage they including the present appellants continuously harassed her in connection with demand of dowry. It was also stated in the report that on the birth of second son the accused demanded motorcycle as a gift and on 6.2.2004 the accused quarreled with her daughter in connection with dowry and in the intervening night of 19.2.2004 and 20.2.2004 the accused killed her daughter by administering poison to her. On the basis of written complainant lodged by the complainant, an FIR No. 23/2004 for the offences under Section 498-A and 304-B IPC was registered, apart from present appellants, against Shri Satish and Shri Dhanna, who are father-in-law and uncle-in-law of deceased respectively. After usual investigation charge-sheet was filed against all four accused. The learned trial Court framed charges for the offences punishable under Section 498-A and 304-B and in the alternative for the offence under Section 302 IPC and in support of charge the prosecution produced oral as well as documentary evidence whereas in his examination under Section 313 Cr.P.C. each of the accused denied the allegations and evidence of the prosecution and specifically stated that they have not committed any offence. Opportunity to produce defence evidence was afforded but they did not produce any evidence in defence. Opportunity to produce defence evidence was afforded but they did not produce any evidence in defence. The learned trial Court after evaluating and appreciating the evidence available on record and hearing both the parties convicted and sentenced the appellants by the impugned judgment and order dated 1.4.2006 in the manner as has been stated hereinabove. Hence, the instance appeal. The learned trial Court acquitted Shri Satish and Dhanna of the charges levelled. 4. From the evidence available on record now the following facts cannot said to be in dispute: (1) Marriage of deceased Smt. Rajni was solemnized with accused-appellant Shri Rajesh on 26.2.2001 according to Hindu usages and rites and out of their wedlock two sons were born. (2) On 6.2.2004 `Kua Pujan' ceremony of second son of appellant Rajesh was celebrated and on that occasion the gifts offered by the parents of the deceased were not accepted by the in-laws of the deceased as they were not of their liking and expectations more particularly, motorcycle was not given. (3) In the intervening night of 19.2.2004 and 20.2.2004 deceased Rajni suffered a unnatural death and on postmortem being conducted the cause of death was found to be consumption of organo-phosphorous poison. 5. Assailing the judgment and order passed by the learned trial Court, the learned counsel for the accused-appellants has raised following grounds: (1) There is no iota of evidence on record revealing that deceased Smt. Rajni at any time after marriage was harassed and treated with cruelty by the appellants or any other in-law of her in connection with demand of dowry or by any other reason. No report or complaint regarding any harassment or cruel treatment was ever lodged prior to present report lodged on 20.2.2004 after the death of Smt. Rajni. If since the time of marriage the appellants and other members of their family have ever harassed her in connection with demand of dowry or by any other reason some report or complaint might have certainly lodged and in absence of it, it cannot be held that the deceased was harassed or subjected with cruelty in connection with demand of dowry. (2) On the basis of evidence available on record at the most it can be said that on the occasion of `Kua Pujan' ceremony of the second son of the appellant Shri Rajesh some gifts were demanded but that demand was not honored. (2) On the basis of evidence available on record at the most it can be said that on the occasion of `Kua Pujan' ceremony of the second son of the appellant Shri Rajesh some gifts were demanded but that demand was not honored. According to the learned counsel such demand cannot be said to be a demand in connection with marriage and it cannot come within the purview of "dowry" as defined in Section 2 of the Dowry Prohibition Act. Offence under Section 304-B can be made out only when some woman is subjected to harassment or cruelty for, or in connection with any demand for dowry. Some customary payments made in connection with birth of a child or other ceremony prevalent in different societies do not come within the purview of dowry. In the present case, even if it is held that on the occasion of `Kua Pujan,' demand of motorcycle or other gifts were made even then it cannot be said that dowry in connection with marriage was demanded. (3) For an offence punishable under Section 304-B IPC to be made out, it is also essential that cruelty or harassment is inflicted "soon before death" to the woman concerned, but in the present case as per the prosecution itself the demand was made on 6.2.2004 whereas the death occurred in the intervening night of 19.2.2004 and 20.2.2004 so, it cannot be held that "soon before death" demand of dowry was made and the death is the result of cruelty or harassment. (4) Although, the death of Smt. Rajni was occurred otherwise than under normal circumstances, but there is no evidence on record as to show the death was result of suicide or appellants in any way caused her death by administering poison. In absence of evidence accidental consumption of poison cannot be ruled out. Burden was on the prosecution to prove beyond reasonable doubt that either appellants administered poison to the deceased or to commit suicide the deceased herself consumed poison but the prosecution has utterly failed to discharge this burden. Offence under Section 304-B cannot be held to be made out only by the reason that the deceased suffered an unnatural death within seven years of marriage and the appellants have failed to explain in what circumstances the death occurred. Offence under Section 304-B cannot be held to be made out only by the reason that the deceased suffered an unnatural death within seven years of marriage and the appellants have failed to explain in what circumstances the death occurred. (5) It is an admitted fact that information about the death of the deceased was promptly given to her parents and other relatives and some of them were present at the time of funeral and no whisper was made at that time that the appellants or any other member of their family are in any way responsible for the unnatural death of the deceased. The learned counsel for the appellants in support of his submissions relied upon the cases of Satvir Singh & Ors. vs. State of Punjab & Anr. : AIR 2001 SC 2828 , Appasaheb & Anr. vs. State of Maharashtra : AIR 2007 SC 763 = RLW 2007(3) SC 1770, S. Gopal Reddy vs. State of Andhra Pradesh: 1996(3) Crimes 35 (SC) = RLW 1996(3) SC 6. 6. On the other hand, learned Public Prosecutor by supporting the impugned judgment and other has submitted that evidence available on record clearly establishes that soon after the marriage the deceased was harassed and subjected to cruelty in connection with demand of dowry and more particularly on the occasion of ceremony of `Kua Pujan' on 6.2.2004 when demand of dowry and more specifically demand of motorcycle was not fulfilled, the appellants, who are husband and mother-in-law of deceased, ill treated the family members of the deceased, who on that occasion were present and the gifts brought by them were not accepted and this sole incident is a clear example of harassment and cruel treatment of the deceased. It was also submitted that the harassment of the deceased on such a occasion compelled her to commit suicide by consuming poison. Although, there is intervening period of 15 days, but it is not essential that death should cause immediately after incident of harassment. A married woman having two sons to look after would not commit suicide unless there is some special reason and in the present case harassment caused on the occasion of `Kua Pujan' ceremony is the only reason compelling her to commit suicide. It was for the appellants to explain in what circumstances unnatural death of Smt. Rajni was caused but they have failed to show any cause. 7. It was for the appellants to explain in what circumstances unnatural death of Smt. Rajni was caused but they have failed to show any cause. 7. I have considered the submissions made on behalf of learned counsel for the respective parties, gone through the record made available to me, relevant legal provision and the case law cited before me. 8. The Hon'ble Supreme Court in the case of Satvir Singh (supra) has held that: "Prosecution in case of offence under Sec.304-B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word 'dowry' in Section 304-B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage, and the third occasion may appear to be an unending period. But the crucial words are in connection with the marriage of the said parties. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There may be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of `dowry'. Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage." The Hon'ble Supreme Court in the above case has also observed that: "It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304-B is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. Her death should in all probabilities have been the aftermath of such cruelty or harassment. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. Her death should in all probabilities have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the Court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the Court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its card from the concept soon before her death." The Hon'ble Apex Court in the above case has clearly held that customary payments in connection with birth of a child or other ceremonies prevalent in different societies do not come within the purview of dowry and if on such an occasion demand of some money, gifts is made it cannot be a demand for dowry and if cruelty or harassment is inflicted on the woman by the reason that the demand remained unfulfilled, it cannot be said that cruelty or harassment is related to dowry within the meaning of Section 304-B IPC. 8. In the present case, from the evidence available on record at the most it can be held that on the occasion of ceremony of `Kua Pujan' on the birth of second son, some demand (more particularly demand of a motorcycle) was made and appellants were not satisfied with the gifts brought by the relatives of the deceased and they were ill-treated and gifts were not accepted. In this facts situation, it cannot be said that any demand for dowry in connection with marriage was made. Thus, the prosecution has failed to prove one of the most important ingredients of Section 304-B IPC. In this facts situation, it cannot be said that any demand for dowry in connection with marriage was made. Thus, the prosecution has failed to prove one of the most important ingredients of Section 304-B IPC. Apart from this, on the basis of evidence available on record it cannot be held that any harassment or cruelty was caused to the deceased "soon before her death." In the present case the only incident of the alleged harassment or cruelty is of the occasion of `Kua Pujan' ceremony of 6.2.2004 whereas the death is caused in the intervening night of 19.2.2004 and 20.2.2004. This interval of about 15 days is sufficient enough to come to a conclusion that the alleged harassment or cruelty is not the direct cause of death. It is not the case of prosecution that even after 6.2.2004, the appellants or any other member of their family continuously harassed or inflicted cruel treatment on the deceased and that compelled her to commit suicide. Only by the reason that the death occurred otherwise than under normal circumstances it cannot be presumed that the deceased was subjected to cruelty for, or in connection with any demand of dowry. The presumption under Section 113-B of the Indian Evidence Act can arise only when prosecution is able to show that soon before death there was cruelty or harassment, only in that case presumption under Section 113-B can operate. It is also for the prosecution to rule out the possibility of accidental death so as to bring it within the purview of death occurred otherwise than in normal circumstances. 9. So far as offence under Section 498-A IPC is concerned, I am of the firm view that on consideration of the evidence available on record, it cannot be held that offence punishable under this provision is mad out. Section 498-A IPC is as follows: "498A. 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. Section 498-A IPC is as follows: "498A. 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 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." 10. For an offence under Section 498-A to be made out, it is essential that "cruelty" as defined in the explanation is inflicted on a woman. According to this definition "cruelty" means 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 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. 11. As discussed hereinbefore, no demand of any kind except on the occasion of `Kua Pujan' of second son on 6.2.2004 cannot be said to be made out from the evidence available on record. Although, the evidence available on record shows that appellants were not satisfied with the gifts brought by the relatives of the deceased as the gifts were not of their liking and motorcycle was also said to be demanded, but there is no evidence available on record to show that the deceased or any of her relative was coerced to fulfill the demand made by the appellants. There is also no evidence on record as to show that by the reason that the gifts of the liking of the appellants were not offered by the relatives of the deceased, she in any manner on that day or on any subsequent day was harassed by the reason that she or her relatives failed to meet the demands made by the appellants. The demand made by the appellants on 6.2.2004 cannot be said to be such a nature as is likely to drive the deceased to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical. 12. The learned trial Court without considering the requirements of the Section 304-B and 498-A IPC in a proper perspective came to a conclusion that appellants are guilty of these offences. I am of the considered view that from the evidence available on record, the appellants cannot be held guilty of these offences. 13. Consequently, the appeal filed on behalf of the appellants is allowed and the judgment of conviction and order of sentence dated 1.4.2006 passed by learned Additional District & Sessions Judge (Fast Track), Kishangarhbas, Alwar in Sessions Case No. 42/2004 is set aside and the appellants are acquitted of the charges levelled against them. The appellant Smt. Saroj Devi W/o Satish Kumar is on bail, her bail bonds are cancelled. If the appellant Rajesh S/o Satish Kumar is still in custody, he shall be immediately set free, if not required in any other case.