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Rajasthan High Court · body

2015 DIGILAW 940 (RAJ)

Baboo Khan v. State of Raj.

2015-04-27

BANWARI LAL SHARMA

body2015
JUDGMENT The appellant has preferred this appeal assailing the judgment of conviction and order of sentence dated 01.08.1990 passed by the learned Additional Sessions Judge, Nagaur in Sessions Case No.3/1989, whereby the appellant-accused was convicted for the offences under Sections 498A and 304B IPC and was sentenced as under:- U/s.498A IPC: One year's rigorous imprisonment with fine of Rs.100/-, in default of payment thereof, to further undergo 15 days' simple imprisonment. U/s.304B IPC: Seven years' rigorous imprisonment The brief facts of the case are that the appellant-accused and deceased got married in November, 1986 and the deceased became pregnant after about 1¼ years of the marriage and as per the customs she was taken to the paternal house for delivery and after delivery, when the deceased was being sent to the in-laws house, called ^^NwNd** in the local language, the appellant-accused with his family members and the parents of the deceased gave gifts on the said occasion but the appellant-accused asked to give golden ring and gold chain but when the same was not given, he became annoyed and while taking the deceased with him, he stated that in future he will not sent her to the paternal house. Thereafter, she was being tortured and beaten. On 23.11.1988, the father of the deceased was informed that his daughter was being tortured on which the father of the deceased sent his another daughter Batul and also called the uncle of the appellant-accused, Bajju Khan and asked him to send her daughter back if she was not being kept in good condition. Thereafter, on 24.11.1988, Bajju Khan asked the father of the deceased as to whether deceased came to his house with the child but as she did not reach there she was searched. Thereafter, a body of child was found in the well of Haji Sardar Sitva then it came to the knowledge of the father of the deceased that his daughter Khatoon has committed suicide. The father of the deceased Ummed Khan submitted a report (Ex.P/1) on 25.11.1988 at P.S. Nagaur on which a case was registered for the offences under Sections 498A and 304B IPC and investigation commenced. The father of the deceased Ummed Khan submitted a report (Ex.P/1) on 25.11.1988 at P.S. Nagaur on which a case was registered for the offences under Sections 498A and 304B IPC and investigation commenced. After completion of investigation, the police filed charge-sheet against the appellant-accused and co-accused Patasi in the court of learned Chief Judicial Magistrate, Nagaur and since the case was exclusively triable by the court of Sessions, the case was committed to the court of learned Additional Sessions Judge, Nagaur for trial where the charges for the aforesaid offences were framed To substantiate the charges, the prosecution examined as many as 15 witnesses and exhibited documents. Thereafter, the appellant-accused and co-accused were examined under Section 313 Cr.P.C. in which they denied the prosecution evidence and stated that the deceased was being kept in good condition and that they have been implicated falsely. In defence, the accused examined Mubarak Khan (DW-1), Bajju Khan (DW- 2), Banne Khan (DW-3) and Sawai Khan (DW-4). The learned trial court, after hearing, vide impugned judgment of conviction and order of sentence dated 01.08.1990, while acquitting the co-accused Patasi, convicted and sentenced the appellant-accused as aforesaid. Heard learned counsel for the petitioner and learned Public Prosecutor. Learned counsel for the appellant submitted that house of accused and parental house of deceased is in the same vicinity and the distance between both the houses is only 200 meters and there is no previous report against the appellant regarding demand of dowry or cruelty. He submitted that there is not a single witness who said that the appellant ever committed cruelty with the deceased. The allegation against the appellant is that at the time of ^^NwNd** some demand was made by him, which cannot be termed as demand of dowry. It was also submitted that for the offences under Section 304B IPC, prosecution has to establish that soon before death, the deceased was subjected to cruelty by the accused in relation to demand of dowry and this important evidence is missing in this case and the learned trial court, without considering this aspect of the matter, wrongly convicted and sentenced the appellant-accused. He has placed reliance upon the judgments delivered in the cases of Satvir Singh & Ors. Vs. State of Punjab & Anr. [ (2001) 8 SCC 633 ], K. Prema S. Rao & Anr. Vs. Yadla Srinivas Rao & Ors. He has placed reliance upon the judgments delivered in the cases of Satvir Singh & Ors. Vs. State of Punjab & Anr. [ (2001) 8 SCC 633 ], K. Prema S. Rao & Anr. Vs. Yadla Srinivas Rao & Ors. [ (2003) 1 SCC 217 ], Vikram Singh Vs. State of Rajasthan through PP [(2007) 1 Cr.L.R. (Raj.) 643], Basanti Lal & Ors. Vs. State of Rajasthan [2009(1) Cr.L.R. (Raj. 592] and Sher Singh @ Partapa Vs. State of Haryana [ (2015) 3 SCC 724 ]. Per contra, the learned Public Prosecutor, while supporting the impugned judgment of conviction and order of sentence submitted that the prosecution witnesses clearly stated in their respective statements that the deceased was subjected to cruelty. It was also submitted that this type of offences are committed within the boundaries of house, therefore, it is not possible to be any eye-witness of the incident. He submitted that from the prosecution evidence, it is clear that for the last 5 months from the date of incident, the deceased was not allowed to meet her parents, brother, sister etc. though her in-laws house was only 200 meters away from her parental house. The cruelty was of such extent that when sister of deceased was returning after grazing goats and met with the deceased and tried to give some ^^csj** she refused to have the same and told that she will be beaten. This was the extreme limit of cruelty. He submitted that soon after two years of marriage, the deceased was died in an unnatural death and as per the provisions of Section 113B for the Indian Evidence Act, it was dowry death. It was thus submitted that the learned trial court, while considering all these aspects of the matter, has rightly convicted and sentenced the appellant-accused and therefore, the appeal may be dismissed. I have considered the rival submissions made at the Bar and perused the material available on record. Before parting with this judgment, I deem it proper to scan the evidence led before the learned trial court during trial. Ummaid Khan (PW-1), father of deceased, in his statement stated that his daughter Khatoon (deceased) got married about two years prior to the date of incident with the appellant-accused and spent about Rs.40,000/- in the marriage. Before parting with this judgment, I deem it proper to scan the evidence led before the learned trial court during trial. Ummaid Khan (PW-1), father of deceased, in his statement stated that his daughter Khatoon (deceased) got married about two years prior to the date of incident with the appellant-accused and spent about Rs.40,000/- in the marriage. Thereafter, after giving birth to a child, the appellant-accused with some relatives came to his house for taking his daughter back to the in-laws house, which is called ^^NwNd** in local language, and he gave gifts for the in-laws of his daughter but the appellant-accused demanded golden ring and golden chain but since he was not able to give the same, he told the same to his son-in-law, on which he got annoyed and told that he will not sent the deceased to her paternal house in future and thereafter his daughter was started being tortured. His son used to go to meet with his daughter and his son also stated that the deceased was being tortured. It was also stated that a day prior to the death of his daughter, he was informed that his daughter was being tortured on which he sent his another daughter Batul and also called the uncle of the appellant-accused Bajju Khan and asked him to send her daughter back if she was not being kept in good condition. Thereafter, Bajju Khan asked the father of the deceased as to whether deceased came to his house with the child but as she did not reach there she was searched. Thereafter, a body of child was found in the well of Haji Sardar Sitva then it came to the knowledge of the father of the deceased that his daughter Khatoon has committed suicide. The father of the deceased Ummed Khan submitted a report (Ex.P/1) on 25.11.1988 at P.S. Nagaur. Jamal Khan (PW-2) proved naksha mauka (Ex.P/2), site inspection memo (Ex.P/3), panchama of dead body of child Wahid (Ex.P/6) and panchnama of dead body of Khatoon (Ex.P/7). Jawri Lal (PW-3) proved naksha mauka (Ex.P/2), site inspection memo (Ex.P/3), inquest report of dead body of Wahid (Ex.P/4), panchnama of dead body of child Wahid (Ex.P/6) and supardginama of dead body of Wahid (Ex.P/8). Hajra (PW-4), mother of deceased Khatoon, also corroborated the statement of Ummaid Khan (PW-1). Jawri Lal (PW-3) proved naksha mauka (Ex.P/2), site inspection memo (Ex.P/3), inquest report of dead body of Wahid (Ex.P/4), panchnama of dead body of child Wahid (Ex.P/6) and supardginama of dead body of Wahid (Ex.P/8). Hajra (PW-4), mother of deceased Khatoon, also corroborated the statement of Ummaid Khan (PW-1). Nainu Khan (PW-5), who is the neighbour of the appellant-accused, stated in his statement that previously there was no difference between the appellant-accused and deceased but after ^^NwNd** some differences arose and the deceased was started beaten. It was also stated that for 3-4 days prior to the death of deceased, he heard the voice of weeping of the deceased. Dhokal Khan (PW-6), in his statement deposed that the deceased gave birth to a child before 5-6 months of the death and on the occasion of ^^NwNd** when golden chain and golden right was not given, the appellant-accused did not send the deceased Khatoon to her paternal house. It was also stated that the father of Khatoon told him that Khatoon has gone out with the child on which he and son of Ummaid Khan went in search of Khatoon at her maternal home but she was not found there and they were returning to the village, they saw dead bodies of a woman and child, which he informed to the father of Khatoon. It was also stated that the deceased was being tortured by his mother-in-law, husband and sister-in-law. Fatima (PW-7), grand-mother of deceased, corroborated the statement of Ummaid Khan (PW-1) and Dhokal Khan (PW-8). Jamal Khan (PW-8), real uncle of deceased, also corroborated the statement of Ummaid Khan (PW-1). Batool (PW-9), sister of deceased, in her statement, also corroborated the incident occurred on the occasion of ^^NwNd** . She also deposed that 2-3 days prior to the death of Khatoon, Nainu Khan came to her house and told her father that her sister Khatoon is being tortured on which her father asked her to call Bajju Khan, who is uncle of the appellant-accused, which she did and she also went to the in-law's house of her sister. It was also deposed by her that on one day when she was returning to her house after grazing goats, she met with her sister Khatoon to whom she asked to have some ^^csj** on which Khatoon told that if she will take the same, she will be beaten. It was also deposed by her that on one day when she was returning to her house after grazing goats, she met with her sister Khatoon to whom she asked to have some ^^csj** on which Khatoon told that if she will take the same, she will be beaten. Ibu @ Ibrahim (PW-10), brother of deceased Khatoon, deposed in his statement that after one month of ^^NwNd** when he went to meet his sister, she asked him not to come and that her in-law's will tell that she is being taught by him and she also stated that she is fed up ¼/kki xbZ gaw½ Darab Khan (PW-11) was declared hostile. However, he stated that he delivered one paper at the house of Ummaid Khan after receiving from postman. Bholu Khan @ Bhopu Khan (PW-12) deposed that 15-20 days prior to the death of Khatoon, one letter came at the house of Ummaid Khan which was delivered by Darab Khan. The letter was sent by Babu Khan. The said letter was read by him by the wife of Ummaid Khan. Thereafter, after 15-20 days, Khatoon died. Munir Khan (PW-13), neighbour of appellant-accused, in his statement deposed that Khatoon was not being kept in good condition and she was used to be abused. It was also stated by him that 4-5 days prior to the death of Khatoon, she was beaten. Dr. Jaikaran (PW-14), in his statement, deposed that on 25.11.1988 he was posted as Medical Officer, Government Hospital, Nagaur and he conducted postmortem and prepared postmortem report (Ex.P/12) and opined the cause of death as drowning. Birbal Bishnoi (PW-15), Investigating Officer, stated about the investigation of the case. Mukarab Khan (DW-1), brother-in-law of the appellant-accused, stated that on the occasion of ^^NwNd** they went to the in-laws' house of the appellant-accused. The appellant-accused Babu Khan did not use to torture his wife. Bajju Khan (DW-2), uncle of the appellant-accused, in his statement, deposed that the appellant-accused Babu Khan was not got annoyed on the occasion of ^^NwNd** . Banne Khan (DW-3) and Sawai Khan (DW-4) also corroborated the statement of Bajju Khan (DW-2). Section 304B IPC reads as under:- “304B. The appellant-accused Babu Khan did not use to torture his wife. Bajju Khan (DW-2), uncle of the appellant-accused, in his statement, deposed that the appellant-accused Babu Khan was not got annoyed on the occasion of ^^NwNd** . Banne Khan (DW-3) and Sawai Khan (DW-4) also corroborated the statement of Bajju Khan (DW-2). Section 304B IPC reads as under:- “304B. 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 this subsection, “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.” Thus, to bring home the guilt for the offence under section 304B IPC, the prosecution has to prove the following preliminary facts by preponderance of probability:- “(i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured, (ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for dowry, and (v) that the cruelty or harassment meted out to her was 'soon before her death'.” From the perusal of the record, it is clear that the deceased died after two years of the marriage and the cause of death was drowning. Thus, the death occurred within seven years of the marriage and the same was an unnatural death. From the perusal of the prosecution evidence, it also reveals that the appellant-accused got annoyed on the occasion of ^^NwNd** when golden ring and gold chain were not given and thereafter, he started torturing the deceased Khatoon. Thus, the death occurred within seven years of the marriage and the same was an unnatural death. From the perusal of the prosecution evidence, it also reveals that the appellant-accused got annoyed on the occasion of ^^NwNd** when golden ring and gold chain were not given and thereafter, he started torturing the deceased Khatoon. The prosecution witnesses Nainu Khan (PW-5) and Munir Khan (PW-13), who are the neighbours of the appellant-accused, clearly stated that 3-4 days prior to death of the deceased Khatoon, they heard the voice of weeping in the night. Thus, the deceased was being tortured soon before her death. Ummaid Khan (PW-1), Hajra (PW-4), Fatima (PW-7), Jamal Khan (PW-9) and Ibu @ Ibrahim (PW-10), stated in clear terms that on the occasion of ^^NwNd** the appellant-accused demanded golden ring and gold chain, which can be termed as demand of dowry, as defined in Section 2 of Dowry Prohibition Act, 1961, and when the said demand was not fulfilled, he became annoyed and did not send the deceased Khatoon to her parental house and also started torturing her due to which she committed suicide. Section 2 of the Dowry Prohibition Act, 1961 defines “dowry” as under:- “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 parent 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 mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.” Thus, the “dowry” means any property or valuable given to the party to the marriage at or before or any time after the marriage. From the record, it is clear that the appellant-accused demanded golden ring and gold chain at the time of ^^NwNd** and when the same was not fulfilled, he started torturing the deceased Khatoon and also did not send her to her parental house, which is also a cruelty, and thus she committed suicide. From the record, it is also clear that the deceased died due to unnatural death within two years of marriage. From the record, it is also clear that the deceased died due to unnatural death within two years of marriage. Thus, there could be a presumption that the said death was dowry death as per the provisions of Section 113B of the Indian Evidence Act, which reads as under:- “113B. 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 304B, of the Indian Penal Code.” Thus, the prosecution was successful in bringing home the guilt of the appellant-accused for the offence under Section 304B IPC and was successful in proving the facts as aforequoted. In the case of Satveer Singh (supra), the Hon'ble Supreme court has held as under:- “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 is 'at any time' after the marriage. 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 can be many other instances for payment of money or giving property as between the spouces. 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.” In the present case, it is not the case of the defence that there was any custom to give payment of money or giving property in relation to birth of a child. It is the case of the prosecution that at the time of ^^NwNd** the appellant-accused demanded golden ring and gold chain, but whether the same is custom, is not the case of the defence. It is the case of the prosecution that at the time of ^^NwNd** the appellant-accused demanded golden ring and gold chain, but whether the same is custom, is not the case of the defence. Thus, it cannot be said that the said demand was not a 'dowry demand' as prescribed under Section 304B IPC. Hence, this case law does not help the appellant-accused. In the case of K. Prema S. Rao (supra), there was no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in a marriage rituals as pasupukumkuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was not in connection with any demand for dowry. As such, the Hon'ble Supreme Court that one of the main ingredients of the offence of 'demand of dowry' was absent and thus acquitted the accused for the offence under Section 304B IPC. In the present case, the prosecution has been able to prove beyond reasonable doubt that there was demand of dowry. Thus, this case law also does not help the appellant-accused. In the case of Vikram Singh (supra), a Coordinate Bench of this court found that the prosecution failed to examine any neighbour to show that the accused persons ever demanded dowry from the deceased and given beating to her and thus acquitted the accused from the offence under Section 304B IPC. Whereas, in the present case, the prosecution examined two neighbours Nainu Khan (PW-5) and Munir Khan (PW-13), who clearly stated that they heard the voice of weeping of the deceased and that she was not being kept in good condition. The prosecution has also established the fact that there was demand of dowry. Hence, this case law also does not help the appellant-accused. In the case of Basanti Lal (supra), the deceased, in her parcha bayan, did not level any allegation, therefore, a Coordinate Bench of this court, finding that there was sufficient evidence showing that because of harassment, beating and torture by accused person, the deceased committed suicide, upheld the conviction under Section 498A IPC but conviction under Section 304B IPC was converted to offence under Section 306 IPC. In the present case, the prosecution has been able to prove the ingredients for proving the offence under Section 304B IPC and thus this case law also does not help the appellant-accused. In the matter of Sher Singh @ Partapa (supra), the Hon'ble Supreme Court has observed as under:- “We have not lost sight of the fact that the deceased was pregnant at the time of her suicide and that only extraordinary and overwhelming factors would have driven her to take her life along with that of her unborn child. The fact remains that she did so. What motivated or compelled her to take this extreme and horrific step will remain a mystry as we are not satisfied that the prosecution has proved or even shown that she was treated with such cruelty, connected with dowry demands, as led her to commit suicide. In the normal course dowry demands are articulated when the marriage is agreed upon and is certainly reiterated at the time when it is performed and such demands continue into a couple of years of matrimony. In normal course, if a woman is being tortured and harassed, she would not remain reticent of this state of affairs and would certainly repeatedly inform her family. This is specially so before she takes the extreme step of taking her own life. Added to this are the inconsistencies and contradictions between the statements of PW4 and PW7 with regard to the panchayat and the presence of and knowledge of Gurdip Singh. It is for these reasons that we are of the prosecution has not shown/presented and/or proved even by preponderance of probabilities that the deceased had been treated with cruelty emanating from or founded on dowry demands. It is in the realm of a possibility that the ingestion of aluminium phosphate may have been accidental.” In the present case, the prosecution has proved the fact that there was demand of golden ring and gold chain at the time of ^^NwNd** and when the same was not fulfilled, the appellant-accused started torturing the deceased and she was not even sent to her parental house and was also not even permitted to meet them. Nainu Khan (PW-5) and Munir Khan (PW-13) also stated that she was not being kept in a good condition and they heard the voice of weeping of the deceased in the night. Nainu Khan (PW-5) and Munir Khan (PW-13) also stated that she was not being kept in a good condition and they heard the voice of weeping of the deceased in the night. Thus, this case law also does not help the appellant-accused. In view of the above, I do not find any ground to interfere with the impugned judgment of conviction and order of sentence. The appeal has got no merit and the same is hereby dismissed. The appellant-accused is on bail. He is directed to surrender before the learned trial court for serving remaining sentence, failing which, the learned trial court is directed to take steps to send him in State custody. Record of the court below be sent back with a copy of this judgment forthwith.