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2018 DIGILAW 1930 (RAJ)

Jagdish Khatik v. State of Rajasthan

2018-09-14

NIRMALJIT KAUR, VINIT KUMAR MATHUR

body2018
JUDGMENT Vinit Kumar Mathur, J. - The instant criminal appeal has been preferred by the accused-appellants against the judgment dated 04.02.2011 passed by learned Additional Sessions Judge (Fast Track) No.2 Hanumangarh (Headquarter) Nohar in Sessions Case No.20/08(17/08) by which the appellants have been convicted for offence under Section 304B IPC sentenced for life imprisonment with a fine of Rs. 3,000/-, in default thereof to further undergo six months' rigorous imprisonment and in Section 498A IPC sentenced for three year's rigorous imprisonment with a fine of Rs. 1,000/-, in default thereof to further undergo one month's rigorous imprisonment. 2. In nutshell, the case of the prosecution is that a complaint was filed on 27.01.2008 by Sadhu Ram to Station House Officer, Police Station, Rawatsar stating therein that applicant is the resident of ward no. 11 of Suratgarh. His daughter Sita Devi was married to Jagdish resident of Chak 16 DWD. The marriage was solemnized ten months ago. Sita Devi was harassed for demand of dowry by her husband, brother-in-law, mother-in-law, sister-in-law (Manju) and sister-in-law (Sarita) and was also given beatings by them. Today i.e. on 27.01.2008 at around 9 a.m. Noranglal son of his son-in-law was informed by the son of the Jagish's uncle that his daughter Sita Devi had passed away at the night of 26.01.2008. When he reached the house of Sita Devi at Chak 16 DWD, he saw Sita Devi was lying dead in the courtyard of the house. There were several injuries on the body of Sita Devi and there were burn marks on her private parts. Sita Devi was killed by her husband Jagdish, brother-in-law Hanuman, sister-in-law Manju, mother-in-law Sohani Devi and sister-in-law Sarita for not bringing adequate dowry. 3. On this complaint, a formal FIR was registered, the matter was investigated and challan was filed under Sections 304B and 498A against the accused appellants. Sister-in-law Sarita was let off by police. 4. During trial, mother-in-law of the deceased Sohani Devi died and, therefore, Jagdish, Hanuman, and Manju were convicted for the offence under Sections 304B and 498A vide order dated 04.02.2011. 5. Learned Trial Court framed charges against the accusedappellants for the offence under Sections 304B and 498A IPC and the same were read over and explained to them but they denied the charges and sought for trial in the matter. 6. 5. Learned Trial Court framed charges against the accusedappellants for the offence under Sections 304B and 498A IPC and the same were read over and explained to them but they denied the charges and sought for trial in the matter. 6. During the trial, the prosecution examined as many as 11 witnesses and exhibited 30 documents and statement of DW-1 Sant Ram was recorded and 16 documents were exhibited from the defense side. 7. The accused appellants were examined under Section 313 Cr.P.C., 1973 and they were confronted with the evidence adduced during the course of trial to which they denied and stated that Jagdish was married to Sita in August, 1992 and whatever articles given at the time of marriage were entered in the register and register has already been produced. They never demanded dowry. Sita had a respiratory problem. The case is falsely registered against them and they are innocent. 8. After recording evidence of both the parties, final arguments were heard by the learned Additional Sessions Judge and ultimately convicted the accused appellants for offence under Sections 304B and 498A IPC and passed sentence as mentioned above. 9. We were informed that Jagdish was on bail during trial, Hanuman and Manju were on bail during trial and during the pendency of the appeal their sentence has also been suspended. 10. For appreciating the facts in detail, we have gone through the statements recorded during the trial along with documents produced and exhibited before the trial Court. 11. PW-1 Sadhu Ram who is father of the deceased Sita Devi and lodger of the FIR in the present case stated that her daughter Sita was married to Jagdish on 27.3.2007 at Suratgarh. He has gifted double-bed, gold, silver ornaments, and television etc. as dowry articles in the marriage. Sita returned to her parental house after staying in her matrimonial home for one day and then she was regularly coming at her parental house. Sita told her mother that her husband, mother-in-law, brother-in-law, sister-in-law Manju and sister-in-law Sarita harassed her for bringing inadequate dowry and, therefore, they demand for a motor-cycle to be given to them. He told his daughter that whatever he had, he has already given. Thereafter, as and when she would come to her house, she would always tell that accused persons are harassing and beating her for bringing less dowry. He told his daughter that whatever he had, he has already given. Thereafter, as and when she would come to her house, she would always tell that accused persons are harassing and beating her for bringing less dowry. One month before the death of Sita, her brother-in-law Hanuman came to take Sita along to her matrimonial home. At that time, Hanuman said that Jagdish was not well and at that time Hanuman was told that they should not harass Sita as whatever they had at the time of marriage, they have already given. Sita was sent to matrimonial home with Hanuman. After a month, Laxman Ram, uncle of Jagdish called Noranglal on telephone and said that his daughter is dead. After receiving the information from Noranglal, he along with Noranglal, Narayan etc. went to the house of Sita where he saw the dead body of Sita was lying on a bed having injuries on the head, bleeding from the nose and injuries on other parts of the body. When they asked about the injuries, the mother-in-law informed them that Sita has sustained injuries being hit by cow. In the cross examination also, he has not deviated from the statements as stated in his examination-in-chief and has stated that Sita was harassed for bringing less dowry and the demand was of giving a motor-cycle. PW-3 Narayan who is the brother of the deceased has stated almost on the same lines as stated in the statement of his father PW-1. He has stated that when Hanuman came to their house for taking his sister to the matrimonial home, he informed Jagdish could not come because of the injury in his leg but in fact there was no injury in the leg of Jagdish. He stated that time and again, the accused persons were requested not to harass his sister for dowry. PW-4 Phula Devi who is mother of the deceased, has also stated almost on the same lines as PW-1 and PW-3. She has stated that whenever Sita would come to their house, she would tell her that she is not being given food and accused persons harassed her for bringing inadequate dowry. She stated that when she saw the dead body, there were lot of injuries on her body. She has stated that whenever Sita would come to their house, she would tell her that she is not being given food and accused persons harassed her for bringing inadequate dowry. She stated that when she saw the dead body, there were lot of injuries on her body. PW-5 Laxman, PW-6 Bheema Ram and PW-7 Kala Singh who are the neighbouers living in the neighborhood of the accused Jagdish have been declared hostile. PW-9 Dr. Hanuman Singh Nehra stated that on 28.1.2008 while he was working as Medical Officer at Government Hospital, Rawatsar, he conducted the post-mortem of deceased Sita. He stated that there were following six injuries on the body of deceased : 1. On the right elbow and right hand, multiple abrasion signs of 2 X 1 c.m. and 1 X / c.m. 2. On both the knees, multiple abrasion. 3. Bruises signs of 5 X 3 c.m. on the butt. 4. On the left thigh, bruises signs of 7 X 2 c.m. 5. In the left calf, one injury of 4 X 3 c.m. 6. In the right calf, one injury of 5 X 2 c.m. He has further stated that as per Ex.P/15 the Histo-Pathology Report of viscera, there were autolytic changes in all the organs and bacterial colonies were present. PW-10 Vipin Sharma who is the Investigating Officer has stated that on 28.01.2008 while he was posted as Circle Officer, Nohar, he received the papers for investigation in the present case and he has investigated the matter. He has visited the site, prepared site plan, collected the samples, recorded the statements of witnesses etc. in accordance with the provisions of law. 12. The perusal of the post-mortem report shows a number of injuries including the burn injuries on the body of the deceased and it is also mentioned that all the injuries are anti-mortem in nature and the same have been caused a day prior to the death. The FSL report negates the presence of poison in the body. 13. Heard learned counsel for the appellants as well as learned public prosecutor. 14. The FSL report negates the presence of poison in the body. 13. Heard learned counsel for the appellants as well as learned public prosecutor. 14. Learned counsel for the appellants at the outset submitted that he is not pressing the present appeal qua Jagdish on the ground that he has already undergone the imprisonment of more than nine years and, therefore, he would restrict his arguments only on the quantum of sentence so far as Jagdish is concerned. For the two other appellants Hanuman and Manju, learned counsel vehemently submitted that there is no evidence of cruelty and harassment for inadequate dowry against those appellants "soon before the death of the deceased". He submits that all the witnesses i.e. PW-1, 3 and 4 who are father, brother and mother of the deceased respectively have stated in one line that Jagdish, Hanuman, Manju, Sohani Devi and Sarita used to harass the deceased for bringing less dowry and were demanding a motorcycle. In one breath, the allegations levelled against all the five persons are absolutely similar and identical. Out of the five, Sarita has not even been charge-sheeted by police. Out of the four persons Sohani Devi has already died and therefore, he submits that the case of Hanuman and Manju is not distinguishable from the case of Sarita who has been let off by the police and, therefore, they should also be extended the same benefit as has been extended in the case of Sarita. He further submits that there is no specific allegation of harassment for bringing less dowry against Hanuman and Manju besides the fact that even if the demand was there, it was not soon before the death of the deceased Sita. The evidence of harassment and demand of dowry soon before death is must and if the same is not there then a person cannot be convicted for an offence under Section 304 B IPC. 15. He further submits that the demand was only at the time of marriage and that was ten months before the death of the deceased. Therefore, it will not fall in category of soon before death. As far as Hanuman and Manju is concerned, he vociferously argues that there is no specific allegations for the demand of dowry or harassment in any of the statements. All the statements are omnibus in nature against all the persons. Therefore, it will not fall in category of soon before death. As far as Hanuman and Manju is concerned, he vociferously argues that there is no specific allegations for the demand of dowry or harassment in any of the statements. All the statements are omnibus in nature against all the persons. Therefore, he submits that the appellants Hanuman and Manju being brother-in-law and sister-inlaw of the deceased may be acquitted in the present appeal. 16. For the appellant Jagdish, learned counsel for the appellants submits that since, he has already undergone the sentence for a period of more than 9 years, the allegation against all the accused persons being omnibus and there is no specific demand of dowry, the extreme punishment of life imprisonment which has been awarded by the learned trial Court in the case of appellant Jagdish should be reduced and he should be released on the sentence which he has already undergone. 17. For the purpose learned counsel for the appellants has relied upon the judgment of the Hon'ble Supreme Court in the case of Sunil Dutt Sharma vs. State (Govt. of NCT of Delhi) in Criminal Appeal No. 1333/2013 decided on 08.10.2013. The reduction of the sentence for accused No.1 Jagdish wherein the Hon'ble Supreme Court held as under: "Applying the above parameters to the facts of the present case it transpires that the death of the wife of the accused-Appellant occurred within two years of marriage. There was, of course, a demand for dowry and there is evidence of cruelty or harassment. The autopsy report of the deceased showed external marks of injuries but the cause of death of deceased was stated to be due to asphyxia resulting from strangulation. In view of the aforesaid finding of Dr. L.T. Ramani (PW-16) who had conducted the postmortem, the learned Trial Judge thought it proper to acquit the accused of the offence Under Section 302 of the Penal Code on the benefit of doubt as there was no evidence that the accused was, in any way, involved with the strangulation of the deceased. L.T. Ramani (PW-16) who had conducted the postmortem, the learned Trial Judge thought it proper to acquit the accused of the offence Under Section 302 of the Penal Code on the benefit of doubt as there was no evidence that the accused was, in any way, involved with the strangulation of the deceased. The proved facts on the basis of which offence Under Section 304B of the Penal Code was held to be established, while acquitting the accused-Appellant of the offence Under Section 302 of the Penal Code, does not disclose any extraordinary, perverse or diabolic act on the part of the accused-Appellant to take an extreme view of the matter. Coupled with the above, at the time of commission of the offence, the accused-Appellant was about 21 years old and as on date he is about 42 years. The accused-Appellant also has a son who was an infant at the time of the occurrence. He has no previous record of crime. On a cumulative application of the principles that would be relevant to adjudge the crime and the criminal test, we are of the view that the present is not a case where the maximum punishment of life imprisonment ought to have been awarded to the accused-Appellant. At the same time, from the order of the learned Trial Court, it is clear that some of the injuries on the deceased, though obviously not the fatal injuries, are attributable to the accused-Appellant. In fact, the finding of the learned Trial Court is that the injuries No,. 1 (Laceration 1" x V/" skin deep on the side of forehead near hair margin) and 2 (Laceration l 1 /2" x 1" scalp deep over the frontal area) on the deceased had been caused by the accused-Appellant with a pestle. The said part of the order of the learned Trial Court has not been challenged in the appeal before the High Court. Taking into account the said fact, we are of the view that in the present case the minimum sentence prescribed i.e. seven years would also not meet the ends of justice. Rather we are of the view that a sentence of ten years RI would be appropriate. Taking into account the said fact, we are of the view that in the present case the minimum sentence prescribed i.e. seven years would also not meet the ends of justice. Rather we are of the view that a sentence of ten years RI would be appropriate. Consequently, we modify the impugned order dated 4.4.2011 passed by the High Court of Delhi and impose the punishment of ten years RI on the accused-Appellant for the commission of the offence under Section 304B of the Penal Code. The sentence of fine is maintained. The accused-Appellant who is presently in custody shall serve out the remaining part of the sentence in terms of the present order." 18. On the same point, he has relied upon the judgment of Coordinate Bench in D.B.Criminal Appeal No. 633/2013- Sandeep vs. State decided on 07.08.2018 wherein the Division Bench held as under : "In the instant case, undoubtedly the appellant is found guilty of charge under Section 304 B IPC but there is no aggravating circumstance found proved against the appellant. It is not the prosecution case that the appellant is habitual offender. It is not disputed before us that the conduct of the appellant during his stay in jail is found satisfactory. The appellant was arrested on 17.10.10 and thereafter, he is behind the bars till this date and thus, he has already undergone sentence for more than 7 years. Thus, taking into consideration the absence of aggravating circumstances and the existence of mitigating circumstances following the view taken by the Hon'ble Supreme Court in the decisions referred supra, we consider it appropriate to modify the order on sentence and reduce the sentence of life awarded by the learned trial Judge to the sentence already undergone". 19. On the other hand, learned public prosecutor submits that in the present case, the prosecution has proved the case beyond any doubt. The charges of Sections 304B and 498A IPC stand fully proved against the appellants. The statements of PW-1, 3 and 4 cannot be disbelieved and there is no deviation in their statements. 20. The statements are fully corroborated by the medical evidence. She has died in her matrimonial home, the death is unnatural and same is not in the normal circumstances. The death has occurred within seven years of her marriage. The statements of PW-1, 3 and 4 cannot be disbelieved and there is no deviation in their statements. 20. The statements are fully corroborated by the medical evidence. She has died in her matrimonial home, the death is unnatural and same is not in the normal circumstances. The death has occurred within seven years of her marriage. She has been subjected to cruelty and harassment for dowry as it has come in the statements of the prosecution witnesses, therefore all the ingredients of Sections 304B and 498A IPC are duly proved beyond doubt by the prosecution in the present case. 21. Learned public prosecutor submits that if the death has taken place within ten months of the marriage of the deceased Sita, and on her every visit to her parental house, she complaint her mother that she is being tortured and harassed for bringing less dowry, conclusively brings the present case within the ambit of harassment being meted out to her "soon before death". 22. Learned public prosecutor further submits that in the circumstances as per Section 106 of the Evidence Act, the burden was on the accused persons to prove the factum of the death of the deceased and the disclosure made by them that the deceased received the injuries being inflicted by the cow are not only hard to believe but false and fabricated on the face of it. 23. We have considered the submissions made at the bar. The presence of multiple injuries on the body of the deceased Sita shows the causal attitude of the investigating agency as no investigation in furtherance of Section 302 of the IPC has been conducted and, therefore, the charge-sheet has been filed only for the offences under Sections 304-B and 498-A IPC. The nature of injury sustained by the deceased Sita gives an indication that she was tortured before her death and since the accused persons have not given any satisfactory explanation for the cause of death of the deceased Sita all the more raises suspicion that she has been murdered but in the absence of investigation and material placed before us, we are not in a position to deliberate on the same but we are convinced that because of the ill treatment and suspicious circumstances in the matrimonial home, Sita has died. 24. 24. The defense of the accused-persons to the effect that the deceased Sita received injuries inflicted by the Cow needs to be noted for rejection only, as the same appears to be baseless. Even as per the Section 106 of the Evidence Act the burden is on accused giving a plausible explanation of the death of the deceased Sita which is conspicuously absent in the present case. 25. Keeping in view the injuries sustained, postmortem report the statement of PW-9 Dr. Nehra and other evidence, we are convinced that the death of Sita was not under the normal circumstances, more so when the same is within the seven years of her marriage. She was subjected to cruelty as well as harassment at the hands of her in-laws in connection with the demand of dowry. 26. Coming to the question of Hanuman and Manju, we feel persuaded by the arguments of the learned counsel for the appellants as Hanuman is the brother of Jagdish and Manju is the wife of Hanuman that there is no specific instance of harassment or cruelty and there is no specific demand of dowry by them. It is also a fact that since both the brothers were living in the same house its a common knowledge that since both persons are married they are naturally concerned with their spouses individually and unless proved otherwise the brother and his wife is generally not involved in the affairs of the others. Therefore, unless an incident or allegation of a specific nature is made out against the appellants Hanuman and Manju, merely, on the omnibous statements of the prosecution witnesses convicting the accused Hanuman and Manju in the circumstances will not be safe and therefore, in our view the learned trial Court should have acquitted the appellants Manju and Hanuman. The case of Hanuman and Manju can also be seen from the point of view that Sarita who is the sister of Jagdish has also been let off by the police as no charge-sheet has been against her. Taking into consideration the totality of the circumstances, statements of the witnesses and other material on record we are of the view that Hanuman and Manju are liable to be acquitted of the charges of under Sections 304B and 498A IPC thus we set-aside the order of conviction against Hanuman and Manju. 27. Taking into consideration the totality of the circumstances, statements of the witnesses and other material on record we are of the view that Hanuman and Manju are liable to be acquitted of the charges of under Sections 304B and 498A IPC thus we set-aside the order of conviction against Hanuman and Manju. 27. The relationship between the Hanuman and the deceased were not very sour as one month prior to the death of the deceased Hanuman went to the parental house of Sita to bring her to the matrimonial home instead of his brother Jagidish. Therefore, in our view her sister-in-law Manju who is also married in the same house coming from a different place was not involved in harassing the deceased for dowry. The present appeal qua Hanuman and Manju is allowed and the order of conviction dated 04.02.2011 passed by the learned trial Court is quashed. 28. In case of Jagdish although the learned counsel has not pressed his appeal on the ground that he has already undergone a sentence of more than nine years and, therefore, he on the strength of the judgment cited prays for allowing the appeal on the sentence already undergone by the appellant Jagdish. We are of the view that husband is the person who is responsible for the well being of his wife. In our view, the husband is under an obligation and duty to protect his wife even if the other family members are showing hostile attitude towards her. The husband is required to stand by his wife in all circumstances, unless the wife is unreasonable. In the present case when Sita has suffered multiple injuries on her body including burn injuries on her private parts, the present case becomes all the more serious and heinous qua Jagdish. His is suppose to protect her, much-less there is no satisfactory explanation of the death and injujries of deceased Sita. 29. We are of the firm opinion that the responsibility of a husband vis-a-vis other family members qua his wife stands on a much higher footing and if something wrong happens to her in the matrimonial home then the responsibility of the husband is higher than others. 29. We are of the firm opinion that the responsibility of a husband vis-a-vis other family members qua his wife stands on a much higher footing and if something wrong happens to her in the matrimonial home then the responsibility of the husband is higher than others. In the present case Jagdish failed to protect his wife and rather there are allegations that he has tortured and harassed his wife for bringing less dowry, resulting into her unnatural death within a period of seven years of her marriage (10 months from the date of marriage). The appeal against the conviction qua Jagdish is dismissed and the judgment dated 04.02.2011 is upheld. 30. In our view, the learned trial court has awarded a sentence of life imprisonment in the present case which is the extreme punishment provided under Section 304B of the IPC and the minimum sentence prescribed is seven years. Taking into consideration the totality of the circumstances, we are of the view that in the present case, the minimum sentence prescribed i.e. seven years would not be sufficient and, therefore, in our opinion a sentence of ten years rigorous imprisonment (without remissions) would be a proper sentence to meet the ends of justice. Consequently, the impugned order dated 04.02.2011 passed by the learned trial court is modified against Jagdish while maintaining the conviction and replacing the sentence to ten years of rigorous imprisonment (without remissions) for commission of the offence under Sections 304B and 498A of the IPC. The sentence of fine is maintained.