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2013 DIGILAW 142 (CHH)

DEEPAK RAJPUT v. STATE OF C. G.

2013-05-01

RADHE SHYAM SHARMA

body2013
JUDGMENT RADHE SHYAM SHARMA, J. 1. This appeal is directed against the judgment dated 18.02.2010 passed by Additional Sessions Judge, Durg in Sessions Trial No. 12 of 2009. By the impugned judgment, appellant Deepak Rajput has been convicted and sentenced in the following manner and co-accused Pawan Kumar and Smt. Rukmani Bai have been acquitted of the charges framed against them:– Appellant Deepak Rajput Conviction Sentence 498A IPC R.I. for 02 years and to pay fine of Rs. 1000/-, in default of payment of fine, to further undergo S.I. for 03 months. 304B IPC R.I. for 10 years. 2. The case of the prosecution, in brief, is as under:– Marriage of deceased Parmeshwari Bai was solemnized with appellant Deepak Rajput on 08.07-2008. Co-accused Pawan Kumar Singh is father-in-law and Smt. Rukmani Bai is mother of co-accused Pawan Kumar Singh (grand mother-in-law of the deceased). Bhagwan Singh (PW-3) is brother and Maheshwari Rajput (PW-4) is sister and Amrit Bai (PW-5) is mother of the deceased. At the time of marriage, Bhagwan Singh (PW-3) and his father gave sufficient dowry but the appellant and co-accused persons were not satisfied with the amount/articles given in the marriage. According to the prosecution, the deceased had gone to her parental house and she stated that accused persons demanded Rs. 50,000/- cooler, freez, almirah and sofa-set as dowry. The accused persons pressurized the deceased to pay Rs. 50,000/- and give above articles. On 11.08.2008 Bhagwan Singh (PW-3) received telephonic information that the deceased met with an accident. Bhagwan Singh (PW-3) and other family members went to the house of the appellant where the deceased was lying dead in burnt condition in toilet. Bhagwan Singh (PW-3) reported the matter to Police Station Mohan Nagar, Durg where merg intimation (Ex.-P/3) and regular merg intimation (Ex.P/7) were recorded. The investigating officer along with Tahsildar A.K. Shrivastava reached the place of occurrence, gave notice (Ex.-P/4) to the panchas and prepared inquest (Ex.-P/5) on the dead body of the decease. The dead body of the deceased was sent to District Hospital, Durg. The dead body of the deceased was referred to Department of Forensic, Medical College, Raipur for postmortem examination. The investigating officer along with Tahsildar A.K. Shrivastava reached the place of occurrence, gave notice (Ex.-P/4) to the panchas and prepared inquest (Ex.-P/5) on the dead body of the decease. The dead body of the deceased was sent to District Hospital, Durg. The dead body of the deceased was referred to Department of Forensic, Medical College, Raipur for postmortem examination. The post mortem was conducted by Doctor Shiv Narayan Manjhi (PW-7) along with Doctor R.K. Singh and Doctor Supriti Sharma and they gave their report (Ex.-P/16), in which they mentioned that the cause of death was cardio respiratory failure as a result of burn injuries. In further investigation, spot map (Ex.-P/2) was prepared by Patwari Prahlad Pandey (PW-2) and another spot map (Ex.-P/8) was prepared by the investigating officer. Regular First Information Report (FIR) (Ex.-P/9) was recorded in Police Station Mohan Nagar, Durg. After completion of the investigation, charge sheet was filed against the accused persons in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Session, Durg, from where it was received on transfer by the Additional Sessions Judge, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted co-accused Pawan Kumar Singh and Smt. Rukmani 8ai of the charges framed against them. In support of its case, the prosecution examined Ambika Singh (PW-1), Patwari Prahlad Pandey (PW-2), Bhagwan Singh (PW-3, brother of the deceased), Maheshwari Rajput (PW-4, sister of the deceased), Amrit Bai (PW-5, mother of the deceased), retired ASI R.N. Singh (PW-6) and Doctor Shiv Narayan Manjhi (PW-7). The appellant did not examine any witness in his defence. 3. Shri P.K. Verma, learned senior counsel for the appellant argued that the prosecution has utterly failed to prove the case against the appellant. Co-accused persons have been acquitted by the trial court, therefore, on the basis of same set of evidence, the appellant cannot be convicted. The prosecution has failed to prove that the deceased was subjected to cruelty or harassed by the appellant in connection with demand of dowry. It was not shown that any harassment or cruelty was subjected to the deceased in connection with the demand soon before her death. Learned senior counsel submitted that any harassment or cruelty would not meet out a case u/s 304B of the Indian Penal Code. It was not shown that any harassment or cruelty was subjected to the deceased in connection with the demand soon before her death. Learned senior counsel submitted that any harassment or cruelty would not meet out a case u/s 304B of the Indian Penal Code. Evidence in this respect is wholly insufficient to convict the appellant u/s 304B and 498A IPC. The prosecution has utterly failed to establish the ingredients of Sections 304B and 498A IPC against the appellant. 4. Shri Anand Verma, learned Panel Lawyer for the State/Respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 12 of 2009. 6. The conviction of the appellant under Sections 304B and 498A IPC is based on the evidence of Bhagwan Singh (PW-3), Maheshwari Rajput (PW-4) and Amrit Bai (PW-5). 7. It is not disputed that the deceased died due to burn injuries. It is also not disputed that she died within 7 years of her marriage and her death was otherwise than in normal circumstances. 8. Bhagwan Singh (PW-3), Maheshwari Rajput (PW-4) and Amrit Bai (PW-5) deposed that deceased Parmeshwari Bai was sister of Bhagwan Singh (PW-3) and Maheshwari Rajput (PW-4) and daughter of Amrit Bai (PW-5). They further deposed that the marriage of the deceased was solemnized with the appellant on 08.07.2008 in collective marriage function organized by caste's society. They further deposed that the deceased had gone to her matrimonial house after 8 to 10 days of the marriage. Bhagwan Singh (PW-3), his elder brother Satyanarayan Singh and one Baldau Singh had gone to the matrimonial house of the deceased to bring the deceased to her parental house. They further deposed that deceased came to her parental house and stayed there for 2 days. At that time, the deceased remained quite silent. Bhagwan Singh (PW-3) further deposed that after 2 to 3 days, the appellant came his house and he took the deceased to her matrimonial house from paternal house. After few days, the deceased telephonically told him that the appellant demanded T.V., freeze, cooler as dowry. On this, he told the deceased that they will give above articles after few days. 9. After few days, the deceased telephonically told him that the appellant demanded T.V., freeze, cooler as dowry. On this, he told the deceased that they will give above articles after few days. 9. Bhagwan Singh (PW-3) deposed that on 09.08.2008 acquitted accused Pawan Singh rung him through mobile no. 9301245160. Pawan Singh and appellant Deepak demanded a sum of Rs. 50,000/- T.V., freeze and cooler and they threatened him that if above articles will not be provided then her sister (deceased) would suffer dire consequences. He further deposed that the deceased told him weeping that unless he will pay a sum of Rs. 50,000/- and give T.V., freeze, cooler, she would not remain alive and it would be the end of her life. Maheshwari Rajput (PW-4) and Amrit Bai (PW-5) also deposed in similar fashion. 10. Bhagwan Singh (PW-3), Maheshwari Rajput (PW-4) and Amrit Bai (PW-5) deposed that on 11.08.2008, at about 10.00 to 11.00 am, he received telephonic massage from third person that her sister (deceased) and Deepak (appellant) met with an accident. Then he rung Deepak (appellant) but he did not reply. They further deposed that they went to the house of the appellant and saw that deceased lying dead in burnt condition in toilet. 11. Bhagwan Singh (PW-3) deposed that he lodged report before police and merg intimation (Ex.P/3) was recorded. He further deposed that inquest (Ex.-P/5) was prepared on the dead body of the deceased. In inquest (Ex.-P/5), it is mentioned that:– ^^e`rdk ds HkkbZ Jh Hkxoku flag iapukek ds nkSjku ifjokj ds vke lnL;ksa lfgr mifLFkrA iwNrkN fd;k x;kA Jhefr ijes’ojh dh vpkud e`R;q ij ifjokj ds lHkh lnL; vkdzksf’kr gks x;sA e`rdk ds HkkbZ us crk;k fd fnukad 9-8-2008 dks yxHkx 11 cts ds vklikl cgu ¼e`rdk½ us ‘olqj ds Qksu ls Qksu fd;k Fkk rc cgu ckr djrs djrs jksbZ Fkh rFkk ^^eSa ftank ugha jgwaxh** dFku dh Fkh i’pkr~ e`rdk ds ‘olqj u eksckbZy ys fy;kA e`R;q lansgkLin gS ,d ekg ds oSokfgd thou i’pkr~ e`rdk dh ?kVuk esa e`R;q gqbZ gSA** 12. Section 304B IPC runs as under:– "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 to have caused her death. Explanation–For the purpose of sub-section 'dowry' shall have the 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." 13. Section 498A IPC reads as under:– Section 498A. Husband or relative of husband of a woman subjecting her to cruelly. 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. (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. 14. 113B of the Evidence Act reads as under:– "113B. Presumption as to dowry death–When the question is whether a person has committed 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 dowry death. Explanation–For the purpose of this section 'dowry death' shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)." 15. Explanation–For the purpose of this section 'dowry death' shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)." 15. In Kashmir Kaur & another vs. State of Punjab, 2013 AIR SCW 200, the Hon'ble Supreme Court observed thus:– 11. In K. Prema S. Rao (supra) it has been held as under in paragraph 16:– "To attract the provisions of Section 304-B, IPC, one of the main ingredients of the offence which is required to be established is that soon before her death she was subjected to cruelty and harassment 'in connection with the demand for dowry." 16. From the above decisions the following principles can be culled out:– (a) To attract the provisions of Section 304-B, IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry. (b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal. (c) Such death occurs within seven years from the date of her marriage. (d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband. (e) Such cruelty or harassment should be for or in connection with demand of dowry. (f) It should be established that such cruelty and harassment was made soon before her death. (g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence. (h) 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. (i) Therefore, 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 or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one. There must be existence of a proximate or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one. (j) However, the expression soon before should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results. (k) Section 304-B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304-B. (l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304-B were not satisfied. (m) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence. 16. In the instant case, the dead body of the deceased was found lying dead in burnt condition in toilet. Doctor Shiv Narayan Manjhi (PW-7) deposed that he conducted the postmortem examination on the dead body of the deceased along with Doctor R.K. Singh and Doctor Supriti Sharma and they gave their report (Ex.-P/16), in which they mentioned that the cause of death was cardio respiratory failure as a result of burn injuries. He further deposed that smell of kerosene was present on the dead body of the deceased. 17. When the appellant was examined u/s 313 Cr. P.C. and asked about his defence, he simply replied that he has been falsely implicated. The appellant has not thrown any light as to how the deceased sustained burn injuries and in what circumstances the incident took place. 18. 17. When the appellant was examined u/s 313 Cr. P.C. and asked about his defence, he simply replied that he has been falsely implicated. The appellant has not thrown any light as to how the deceased sustained burn injuries and in what circumstances the incident took place. 18. Bhagwan Singh (PW-3), Maheshwari Rajput (PW-4) and Amrit Bai (PW-5) specifically deposed that the deceased, just 2 to 3 days prior to her death, told them that unless a sum of Rs. 50,000/- will be paid or T.V., freeze, cooler will be provided, she would not remain alive. Deceased (Parmeshwari Bai) died due to burn injuries within 1 month and 3 days of her marriage with the appellant. It is also established that soon before her death, she was subjected to cruelty or harassment by the appellant in connection with the demand of dowry of a sum of Rs. 50,000/- T.V., cooler, freeze etc. All the three facts and circumstances put together clearly attracts the provision of Section 113-B of the Evidence Act and the burden lay upon the appellant to prove the defence. 19. Looking to the facts and circumstances of the instance case and the evidence available on record, the offences under Sections 304B and 498A IPC are proved against the appellant and the learned trial Court rightly convicted the appellant under Sections 304B and 498A IPC. 20. So far as the sentence part is concerned, learned senior counsel for the appellant submits that the appellant has been sentenced with R.I. for 10 years for the offence under Section 304B IPC. Minimum sentence of seven years has been prescribed thereunder and, therefore, he prays for imposing minimum prescribed sentence of seven years to the appellant. 21. For the offence under Section 304B IPC, minimum sentence of 7 years is prescribed. Looking to the facts and circumstances of the case, I feel that the sentence of 10 years awarded to the appellant is somewhat excessive. Ends of justice would be met if the appellant is awarded minimum prescribed sentence of 7 years. 22. Therefore, the appeal is partly allowed. The conviction awarded to the appellant under Sections 304B and 498A IPC is upheld. The sentence awarded to the appellant for the offence under Section 498A IPC is also upheld. Ends of justice would be met if the appellant is awarded minimum prescribed sentence of 7 years. 22. Therefore, the appeal is partly allowed. The conviction awarded to the appellant under Sections 304B and 498A IPC is upheld. The sentence awarded to the appellant for the offence under Section 498A IPC is also upheld. So far as the jail sentence awarded to the appellant for the offence under Section 304B IPC is concerned, it is reduced from 10 years to 7 years rigorous imprisonment. The appellant is entitled to set off under Section 428 of Cr. P.C. Appeal Dismissed.