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2018 DIGILAW 612 (RAJ)

Naresh Kumar Saini v. State of Rajasthan

2018-02-21

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT Goverdhan Bardhar, J. - The instant criminal appeal has been filed by the accused appellant against the Judgment of conviction and sentence dated 29.01.2014 passed by learned Addl. Sessions Judge, No. 1, Jhunjhunu, Camp Chirawa (Raj.) in Sessions Cases No. 96/2010 (121/2010) whereby the learned trial court has convicted and sentenced the accused appellant for the following offences:- U/s.304B IPC: Life imprisonment and a fine of Rs. 10,000/-, in default of payment of fine the accused appellant was to further undergo simple imprisonment of one year. U/s.498A IPC: Two years rigorous imprisonment and a fine of Rs. 2,000/-, in default of payment of fine the accused appellant was to further undergo simple imprisonment of three months. All the sentences were ordered to run concurrently. 2. Facts of the case briefly stated are that the complainant Matu Ram Saini s/o Prahlad Saini, r/o Village Sohasara, Tehsil Loharu, District Bhiwani (Haryana) submitted a written report (Ex.P7) on 16.07.2010 to the S.H.O., Police Station Pilani to the effect that he is permanent resident of Village Sohasara (Dhani Maliyan), Tehsil Loharu, Police Station Lohar, District Bhiwani (Haryana). He is about 50 years of age. The marriage of his daughter Sushila was solemnized on 9th November 2008 with Naresh Kumar s/o Baldev Saini, r/o Mohalla Rajpura (Pilani). Yesterday on dated 15.07.2010 at about 4:00 P.M Sanwar Mal Ji informed him on telephone that his daughter died due to Asphyxia as a result of strangulation. Immediately he along-with family members and persons of his village who were present, went to the house of his daughter. He did not find his girl there at home and found that she was lying dead in the hospital. His daughter was being subjected to cruelty and torture by mother-in-law Manju, huband-Naresh, devar-Sandeep, nanad-Pinki for demand of dowry. They used to give beatings to his daughter several times for not bringing motor-cycle in dowry. They used to pass on comments that his daughter was not having mother. The complainant further mentioned in the written report that he gave dowry in the marriage beyond his capacity but the in-laws of Sushila were not satisfied with the dowry given in the marriage. Due to this reason his daughter took this extreme stand. The FIR may kindly be registered and justice be done to him. 3. The complainant further mentioned in the written report that he gave dowry in the marriage beyond his capacity but the in-laws of Sushila were not satisfied with the dowry given in the marriage. Due to this reason his daughter took this extreme stand. The FIR may kindly be registered and justice be done to him. 3. On recording the said written report, a case bearing No. 273/2010 (Ex.P8) for the offences under Sections 498A and 304B IPC was registered. After completion of investigation, the police submitted charge-sheet against accused appellant under sections 498A and 304B IPC in the Court concerned. After taking cognizance in the matter, the case was committed to the Court of Sessions Judge, Jhunjhunu from where the case was transferred to the learned trial court. The learned trial court thereafter framed the charges against the accused appellant under sections 498A and 304B IPC, who denied the charges and claimed to be tried. The prosecution in support of its case got the statements of eighteen witnesses recorded and thirty four documents exhibited. Thereafter, the accused appellant was examined under section 313 Cr.P.C., 1973 In defence, the accused appellant did not produce any evidence and six documents got exhibited. The learned trial court after hearing the final arguments, convicted and sentenced the accused appellant for the charges levelled against him vide impugned judgment dated 29.01.2014. The accused appellant aggrieved and dissatisfied with the impugned judgment of conviction and sentence has preferred instant criminal appeal. 4. Mr. Sanjay Mehala, learned counsel appearing for the accused appellant has argued that the prosecution has failed to prove guilt of the accused appellant beyond reasonable doubt. He has been convicted contrary to the evidence available on record. Learned counsel argued that findings recorded by the learned trial court for convicting and sentencing the accused appellant are perverse and erroneous. There are several infirmities and contradictions in the statements of the prosecution witnesses and therefore, no reliance can be placed upon the testimony of such witnesses. The statements of prosecution witnesses are inconsistent, contradictory and also suffer from infirmities. The witnesses of the prosecution have suppressed the genesis of the occurrence and the statements of prosecution witnesses do not corroborate the story of the prosecution. Therefore, the evidence of the prosecution witnesses cannot be treated as credible as they are not reliable witnesses. The statements of prosecution witnesses are inconsistent, contradictory and also suffer from infirmities. The witnesses of the prosecution have suppressed the genesis of the occurrence and the statements of prosecution witnesses do not corroborate the story of the prosecution. Therefore, the evidence of the prosecution witnesses cannot be treated as credible as they are not reliable witnesses. Learned counsel further argued that the accused appellant or his family members never made any demand of dowry and even they never harassed or tortured the deceased for or in connection with demand of dowry. The prosecution witnesses have not given specific date, place and time when the deceased was being subjected to cruelty, harassed or tortured for or in connection with demand of dowry. The learned trial court has further failed to consider that in this case the prosecution witnesses have not stated that soon before death the deceased Sushila was subjected to cruelty, harassed or tortured by the accused appellant for or in connection with demand of dowry. Thus, the prosecution has completely failed to prove the guilt of the accused appellant beyond all reasonable doubt. All the prosecution witnesses are interested witnesses and the prosecution did not produce any independent witnesses residing nearby the place of in-laws of deceased Sushila. Learned counsel further argued that the learned trial court has failed to consider that the prosecution has completely failed to prove the fact that at the time of alleged incident the accused appellant was present in Pilani, in-fact the accused appellant was in Mumbai, regarding which the appellant submitted evidence before the I.O during the course of investigation. Learned counsel further argued that the findings arrived at by the learned trial court are further vitiated as being misreading and non-reading of the material in support of the appellant as well as based on mere surmises and conjectures. 5. Learned Public Prosecutor appearing for the State opposed the appeal and supported the impugned Judgment of conviction passed by the learned trial court. 6. We have considered the submissions made by learned counsel for the appellant and learned Public Prosecutor and carefully scanned the material on record, exhibits and the deposition of witnesses. 7. 5. Learned Public Prosecutor appearing for the State opposed the appeal and supported the impugned Judgment of conviction passed by the learned trial court. 6. We have considered the submissions made by learned counsel for the appellant and learned Public Prosecutor and carefully scanned the material on record, exhibits and the deposition of witnesses. 7. As per the case of the prosecution, Matu Ram (PW8) is father of the deceased, Somveer (PW9) is elder brother of the deceased, Budhram (PW1) is elder brother of Matu Ram (PW8), Chiranji Lal (PW5) is brother of Matu Ram (PW8) and Krishan Kumar (PW4) is uncle of Matu Ram (PW4). 8. Matu Ram (PW4) in the statement recorded before the Court reiterated the averments made in the written report (Ex.P7), on the basis of which FIR (Ex.P8) was registered. Somveer (PW9) elder brother of the deceased deposed that marriage of his sister was solemnized with Naresh on 09.11.2008 and as per their capacity they gave sufficient dowry in the marriage viz. cooler, bed, fridge, utensils, cloth and Rs. 51,000/- in cash. After marriage when his sister came to the home then she told that her mother-in-law, husband-Naresh, devar-Sandeep, nanad-Pinki-all the four, tortured her for or in connection with demand of dowry and invariably used to make demand of one motor-cycle and Rupees twenty thousand in cash. On 11.07.2010 when he went at the in-laws of his sister, he found his sister sad. When he asked his sister about the sadness then she told that her husband Naresh, devar-Sandeep, mother-in-law Manju and nanad-Pinki used to torture her for or in connection with demand of dowry. On 15.07.2010 Sanwar Mal resident of Pilani informed them on phone that Sushila has since been died. Upon this, his father and some persons of village reached at Pilani and at the in-laws place of Sushila they found Pinki (Nanad) was present who told that Sushila had been taken to hospital and where in the mortuary they found Sushila as dead. The testimony of Budhram (PW1)-elder brother of Matu Ram (PW8), Chiranji Lal (PW5) brother of Matu Ram and Krishan Kumar (PW4) uncle of Matu Ram (PW8) is corroborated by the statements of Somveer (PW9). All the aforesaid witnesses are relatives and closely related to the deceased Sushila. 9. The testimony of Budhram (PW1)-elder brother of Matu Ram (PW8), Chiranji Lal (PW5) brother of Matu Ram and Krishan Kumar (PW4) uncle of Matu Ram (PW8) is corroborated by the statements of Somveer (PW9). All the aforesaid witnesses are relatives and closely related to the deceased Sushila. 9. Autopsy (Ex.P2) on the dead body of deceased Sushila was conducted on 16.07.2010 at 2:00 P.M. by the Medical Board consisted of three doctors. As per the postmortem report (Ex.P2) the cause of death was due to Asphyxia. However, final report was to be given after receipt of Viscera FSL Report from Jaipur. FSL report is Ex.P11. As per FSL Report (Ex.P11), result of examination reads ad-infra:- "On chemical examination, portions of viscera (1-5) from two packets marked B and A respectively, gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquillizers and insecticides." 10. Dr. Raghuveer Singh (PW2) deposed that on 16.07.2010 he was posted as Medical Officer in Chirawa Hospital. On that day a Board of three doctors consisted of Dr. S. Ola, Dr. K. Ola and Dr. R.S. Meel was constituted. On that day autopsy on the dead body of deceased Sushila was conducted. Dr. Rahuveer Singh (PW2) reiterated the averments made in post mortem report (Ex.P2). 11. Sharda (PW6) neighbour of the deceased in examination-in-chief deposed that Naresh (accused appellant) is serving in a company in Bombay. Sandeep is brother of Naresh, who is not married. On 15.07.2010 Pinki came and told that Sushila had confined herself in the room and was not opening the gate. She went there and knocked the door but Sushila did not open the door. On this Om Prakash and other neighbouring persons were called. On opening of the door forcibly, Sushila was found in hanging condition with the hook of the roof. Thereafter, Om Prakash and Nandu got lowered down Sushila. Pinki was alone at home at that time. The in-laws of Sushila never tortured her. She did not see Sushila ever sad and noticed her always living happy. Sharda (PW06) did not support the prosecution story and turned hostile. Om Prakash (PW07) in examination-in-chief deposed that Naresh is his uncle's son. Marriage of Naresh was solemnized three years ago. Naresh was serving in a factory in Bombay. The in-laws of Sushila never tortured her. She did not see Sushila ever sad and noticed her always living happy. Sharda (PW06) did not support the prosecution story and turned hostile. Om Prakash (PW07) in examination-in-chief deposed that Naresh is his uncle's son. Marriage of Naresh was solemnized three years ago. Naresh was serving in a factory in Bombay. Om Prakash (PW07) further deposed that on 15.07.2010 he was at his shop, his aunt Sharda told that Sushila was not opening the door. On this he along-with Nandu and Sharda went there. When they saw towards the back side of the window, they found Sushila in hanging condition with hook. They pushed the door and got lowered down her. Thereafter, Sushila was taken to Pilani Hospital. Om Prakash (PW07) further deposed that Sushila was never subjected to cruelty by her in-laws for or in connection with demand of dowry. In his presence the police persons did not recover any saree of red colour. This witness also did not support the prosecution story and turned hostile. 12. We may notice that both these witnesses [Sharda (PW6) and Om Prakash (PW7)] are neighbours of the accused and the same has also been confirmed by them. They affirmed the death of deceased but gave different versions as to the seen of occurrence. The statement of such witnesses would hardly carry any weight in face of statements of Budhram (PW1), Krishan Kumar (PW4), Chiranji Lal (PW5), Matu Ram (PW8) and Somveer (PW9), (closely related to the deceased). The possibility of Sharda (PW6) and Om Prakash (PW7 their being turning hostile by virtue of them being neighbours and relatives of accused cannot be ruled out. 13. In Sahabuddin and Another v. State of Assam, (2012) 13 Supreme Court Cases, 213, the Hon'ble Apex Court held ad-infra:- "Merely because they are all relatives of the deceased will not by itself cause any prejudice to the case of the prosecution. In such events, it is not the outsiders who would come to the rescue and would stand by the victim/deceased and their family, but it is the members of their family who would go to witness such an unfortunate incident. An interested witness is the one who is desirous of falsely implicating the accused with an intention of ensuring their conviction. An interested witness is the one who is desirous of falsely implicating the accused with an intention of ensuring their conviction. Merely being a relative would not make the statement of such witness equivalent to that of an interested witness. The statement of a related witness can safely be relied upon by the Court, as long as it is trustworthy, truthful and duly corroborated by other prosecution evidence." 14. Rajneesh Poonia (PW11) deposed that on 16.07.2010 he was posted as Circle Officer, Chirawa. He investigated into the matter and on the basis of material available to him, he submitted charge-sheet against the accused appellant. 15. Finding of conviction has to be based on the evidence which is credible and reliable. In the present case there is ample evidence that deceased was subjected to cruelty soon before her death in connection with demand of dowry. Sushila died within two years of the marriage at in-laws place and her death was unnatural. 16. As far as charges against the accused appellant for offences under sections 304B and 498A IPC are concerned, from the statements of material witnesses of the prosecution it is clear that the prosecution has proved that soon before the death of deceased Sushila, the accused appellant subjected her to cruelty and harassment in connection with demand of dowry. 17. As per the definition of "Dowry Death" in Section 304B IPC and the wording in the presumptive section 113B of the Indian Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been "soon before her death subjected to cruelty or harassment for or in connection with the demand of dowry". Presumption under section 113B of the Indian Evidence Act is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that accused caused the dowry death. 18. Looking to the statements of prosecution witnesses we are of the opinion that the prosecution has shown/presented and or proved even by preponderance of probabilities that the deceased Sushila has been treated with cruelty emanating from or founded on dowry demands. Thus the prosecution has proved charges against the accused appellant for the offences under sections 498A and 304B IPC. Therefore, in our considered view, the learned trial court rightly convicted the accused appellant for the offence under section 304B IPC. Thus the prosecution has proved charges against the accused appellant for the offences under sections 498A and 304B IPC. Therefore, in our considered view, the learned trial court rightly convicted the accused appellant for the offence under section 304B IPC. Krishan Kumar (PW4) admits that after one year of the marriage, Sushila gave birth to a female child. 19. In Sunil Dutt Sharma v. State (Government of NCT of Delhi)- (2014) 4 SCC 375 , after revisiting the previous case laws on the subject held out the certain principles while determining the quantum of sentence to be kept in view while sentencing an accused found guilty of offence under section 304B. In para 15 of the report on the basis of study of 40 previous judgments on the subject it was held by their Lordships as under: "Would the above principles apply to sentencing of an accused found guilty of the offence under Section 304-B inasmuch as the said offence is held to be proved against the accused on basis of a legal presumption? This is the next question that has to be dealt with. So long there is credible evidence of cruelty occasioned by demand(s) for dowry, any unnatural death of a woman within seven years of her marriage makes the husband or a relative of the husband of such woman liable for the offence of "dowry death" under Section 304-B though there may not be any direct involvement of the husband or such relative with the death in question. In a situation where commission of an offence is held to be proved by means of a legal presumption the circumstances surrounding the crime to determine the presence of aggravating circumstances (crime test) may not be readily forthcoming unlike a case where there is evidence of overt criminal acts establishing the direct involvement of the accused with the crime to enable the Court to come to specific conclusions with regard to the barbarous or depraved nature of the crime committed. The necessity to combat the menace of demand for dowry or to prevent atrocities on women and like social evils as well as the necessity to maintain the purity of social conscience cannot be determinative of the quantum of sentence inasmuch as the said parameters would be common to all offences under Section 304-B of the Penal Code. The necessity to combat the menace of demand for dowry or to prevent atrocities on women and like social evils as well as the necessity to maintain the purity of social conscience cannot be determinative of the quantum of sentence inasmuch as the said parameters would be common to all offences under Section 304-B of the Penal Code. The above, therefore, cannot be elevated to the status of acceptable jurisprudential principles to act as a rational basis for awarding varying degrees of punishment on a case to case basis. The search for principles to satisfy the crime test in an offence under Section 304-B of the Penal Code must, therefore, lie elsewhere. Perhaps, the time spent between marriage and the death of the woman; the attitude and conduct of the accused towards the victim before her death; the extent to which the demand for dowry was persisted with and the manner and circumstances of commission of the cruelty would be a surer basis for determination of the crime test. Coupled with the above, the fact whether the accused was also charged with the offence under Section 302 of the Penal Code and the basis of his acquittal of the said charge would be another very relevant circumstance. As against this the extenuating/mitigating circumstances which would determine the "criminal test" must be allowed to have a full play. The aforesaid two sets of circumstances being mutually irreconcilable cannot be arranged in the form of a balance sheet as observed in Sangeet (supra) but it is the cumulative effect of the two sets of different circumstances that has to be kept in mind while rendering the sentencing decision. This, according to us, would be the correct approach while dealing with the question of sentence so far as the offence under Section 304-B of the Penal Code is concerned." The Supreme Court in Satish Chandra & Anr. v. State of Madhya Pradesh- (2014) 6 SCC 723 has observed that general unhappiness with marital life, though main reason for suicide being harassment for dowry, would yet constitute extinguishing and mitigating circumstances if she was happy with this marriage. v. State of Madhya Pradesh- (2014) 6 SCC 723 has observed that general unhappiness with marital life, though main reason for suicide being harassment for dowry, would yet constitute extinguishing and mitigating circumstances if she was happy with this marriage. The Supreme Court in Hari Om v. State of Haryana & Anr.- (2014) 10 SCC 577 , while interpreting the expression "may" occurring in Section 304B IPC to decide choice of sentence, has observed that it is not mandatory for the Court in every case to award life imprisonment to the accused once he is found guilty of the offence under section 304B. The Court could award sentence in exercise of its discretion between seven years to life imprisonment depending upon the facts of each case. It was held that in no case it could be less than seven years and that extreme punishment of life term should be awarded in "rare cases" but not in every case, held the Supreme Court. 20. The only reason that has been given by the trial court in deciding to award extreme penalty of life imprisonment in the impugned judgement is that dowry is a social menace and it has to be dealt with iron hand. 21. The Supreme Court in Sunil Dutt Sharma, supra, observed that necessity to combat the menace of demand for dowry or to prevent atrocities on women and like social evils as well as the necessity to maintain the purity of social conscience cannot be determinative of the quantum of sentence inasmuch as the said parameters would be common to all offences under Section 304B IPC. This, therefore, cannot be elevated to the status of acceptable jurisprudential principles to act as a rational basis for awarding varying degrees of punishment on a case-to-case basis. 22. Taking into consideration the facts and circumstances of the present case that the deceased left behind him an innocent dependant, the sentence part of the Judgment requires modification and it is deemed just and proper that the accused appellant be sentenced for offence under section 304B IPC to ten years rigorous imprisonment in-stead of life imprisonment with a fine of Rs. 10,000 and in default of payment of fine, to further undergo imprisonment of six months. 23. In view of the above discussion, the criminal appeal filed by the accused appellant is partly allowed. 10,000 and in default of payment of fine, to further undergo imprisonment of six months. 23. In view of the above discussion, the criminal appeal filed by the accused appellant is partly allowed. The conviction of the accused appellant under section 304B IPC is maintained but his sentence for the said offence is reduced from life imprisonment to rigorous imprisonment of ten years with fine of Rs. 10,000/- and in default of payment of fine, to further undergo rigorous imprisonment of one year. Sentence awarded to the accused appellant 498A IPC is maintained as stipulated by the learned trial court. Both the sentences shall run concurrently.