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2019 DIGILAW 993 (RAJ)

Khemaram v. State of Rajasthan

2019-04-03

SANDEEP MEHTA, VINIT KUMAR MATHUR

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JUDGMENT : Sandeep Mehta, J. 1. The accused appellant Khemaram has been convicted and sentenced as below vide judgment dated 27.11.2015 passed by the learned Sessions Judge, Jaisalmer in Sessions Case No. 15/2014: Offences Sentences Fine Fine Default sentences Under Section 304B IPC Life Imprisonment _ _ Under Section 498A IPC 3 Years' R.I. Rs. 5,000/- Three Months' Simple Imprisonment All the sentences were ordered to run concurrently. 2. He has preferred the instant appeal under Section 374(2) Cr.P.C. for assailing his conviction and sentences as awarded to him by the trial court. 3. The brief facts relevant and essential for deciding the instant appeal are noted herein below: Ranaram (PW-10), the complainant herein, submitted a report (Ex. P/13) to the SHO Police Station Ramgarh, District Jaisalmer on 06.10.2013 at about 11.30 a.m. alleging inter alia that his daughter aged 23 years, was married to Khemaram (appellant herein) on 27.04.2008. Two children (a boy and a girl) were born from the wedlock of the appellant with Smt. Santosh. Smt. Santosh was being harassed and humiliated in the matrimonial home on account of demand of dowry. On 06.10.2013, Pancha Ram (PW-1) called the first informant at about 01.00 am and told him that Santosh had ended her life by hanging. Upon receiving this information, the complainant accompanied by Kaluram, Pritam Ram, Jwara Ram, Tiloka Ram and Kilana Ram, went to the matrimonial home of Smt. Santosh and saw her dead body lying on the floor of Kotha. Mark of a noose was clearly visible on her neck. Bhikharam son of Miraj Ram, had earlier threatened the complainant stating that Smt. Santosh would be killed. The informant cast suspicion upon Bhikharam, Janwru Ram, Khemaram and Meraj Ram and also alleged that his maternal grandson, Swaroop aged 3 years, told him that his father had killed his mother by pressing her neck. The complainant alleged that his daughter had been killed by Bhikharam, Meraj Ram, Janwru Ram and Khemaram for greed of dowry. On the basis of this report, a formal FIR No. 91/2013 (Ex. P/13) was registered at the Police Station Ramgarh for the offences under Sections 498A and 304B IPC and investigation was commenced. 4. The accused appellant was apprehended and after concluding investigation, a charge-sheet came to be filed against him for the offences mentioned above. On the basis of this report, a formal FIR No. 91/2013 (Ex. P/13) was registered at the Police Station Ramgarh for the offences under Sections 498A and 304B IPC and investigation was commenced. 4. The accused appellant was apprehended and after concluding investigation, a charge-sheet came to be filed against him for the offences mentioned above. Since the offences were Sessions triable, the case was committed to the Court of Sessions Judge, Jaisalmer, who framed charges against the accused for the above offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 26 witnesses and exhibited 13 documents in support of its case. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations and claimed that his wife Santosh was mentally disturbed. She would often go away to her father's house where she was provided treatment for her problem. The complainant party had manipulated the case by creating pressure on the administration. Smt. Santosh was never harassed or humiliated on account of demand of dowry. She was not desirous of continuing the matrimonial relationship with the appellant and despite her resistance, she was pressurised by her paternal relatives to do so on which, she became perturbed and ended her own life by hanging. The accused examined himself as a witness in defence. Upon hearing the arguments advanced by the prosecutor, the defence counsel and appreciating the evidence available on record, the trial court proceeded to convict and sentence the appellant as above. Hence this appeal. 5. Learned counsel Shri Nishant Bora representing the appellant, vehemently and fervently urged that most of the prosecution witnesses viz. PW-1 Pancha Ram, PW-2 Sanwala Ram, PW-3 Santoka Ram, PW-5 Lunaram, PW-6 Jumma Ram, PW-7 Kishor, PW-8 Narsingha Ram, PW-16 Tiloka Ram, PW-20 Smt. Gujar Devi and PW-21 Gopu Ram, did not support the prosecution theory and emphatically denied that the deceased was harassed and humiliated in the matrimonial home on account of demand of dowry. He urged that there are grave contradictions inter-se in the statements of PW-10 Ranaram (the first informant) and PW-11 Smt. Jamna being the father and mother respectively of the deceased and PW-15 Jwara Ram, who are only three witnesses who gave evidence in support of the charge. He urged that there are grave contradictions inter-se in the statements of PW-10 Ranaram (the first informant) and PW-11 Smt. Jamna being the father and mother respectively of the deceased and PW-15 Jwara Ram, who are only three witnesses who gave evidence in support of the charge. As per Shri Bora, even if the statements of these three witnesses are considered, manifestly, they too did not clearly allege that the deceased was harassed and humiliated in the matrimonial home on account of demand of dowry "any time soon before her death". Shri Bora referred to the statement of the Medical Jurist, Dr. Manisha Mathur (PW-18) and pointed out that the Medical Board categorically opined in the Postmortem Report (Ex. P/14) that the cause of death of Smt. Santosh was asphyxia due to hanging. The Board did not notice any external injuries on the body of the deceased when postmortem was conducted. Thus, as per Shri Bora, it is a clear case wherein, the deceased ended her own life because she was not agreeable to continue her matrimonial relations with the accused appellant, but she was compelled to do so as her paternal family members were not ready to keep her with themselves. He further submitted that the first informant Ranaram is habitual of filing false complaints and thus, the entire case has been manipulated by him by exerting undue pressure on the administration and the investigating agency. He submitted that the evidence of the first informant Ranaram (PW-10) and Smt. Jamna (PW-11) is tainted and full of embellishments and is thus totally unworthy of credence. He submitted that even if the statement of Ranaram is seen, manifestly, the last incident of harassment allegedly meted out to the deceased Santosh on account of demand of valuables occurred seven months before her death and thus, as per Shri Bora, the charge under Section 304B IPC cannot be sustained against the appellant owing to lack of convincing proof to establish that the deceased lady was harassed and humiliated in the matrimonial home on account of demand of dowry soon before her death. He thus craved acquittal of the accused of the charge for offence under Section 304B IPC and urged that at best, even if the tainted and cooked up evidence of the material prosecution witnesses is accepted as such, then too, the conviction of the accused can only be recorded for the offence under Section 306 IPC. On these grounds, Shri Bora craved acceptance of the appeal. In the alternative, he urged that considering the fact that the two minor children of the appellant and the deceased are living in the house of the accused appellant with his old aged parents and as there is no evidence to show the existence of exceptional circumstances warranting the maximum sentence, the sentence of life imprisonment awarded to the appellant deserves to be reduced to the minimum permissible term of 7 years for the offence under Section 304B IPC. In support of this contention, Shri Bora relied upon the judgment rendered by Hon'ble the Supreme Court in the case of Harjit Singh vs. State of Punjab, reported in AIR 2006 SC 680 . 6. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel and urged that there is ample evidence on the record of the case to show that right from the time of marriage, the accused appellant indulged in meting out harassment and tortured Smt. Santosh on account of demand of dowry and other valuables. He particularly stressed upon the incident of Navratra wherein, the accused mortgaged the payal of the deceased to consume liquor and being perturbed thereof, Smt. Santosh committed suicide. He urged that the duration of seven months which is mentioned in the statement of Ranaram is in context to the date on which, his testimony was recorded in the Court. He submitted that the accused himself appeared in the witness box wherein, he made a specific denial of the incident which took place just before the death of Smt. Santosh during Navratra when, he allegedly mortgaged the Payal of Santosh for consuming liquor. He submitted that the accused himself appeared in the witness box wherein, he made a specific denial of the incident which took place just before the death of Smt. Santosh during Navratra when, he allegedly mortgaged the Payal of Santosh for consuming liquor. He contended that as, the harassment meted out to the deceased continued right from the marriage till she committed suicide, apparently, the continuous course of cruelty meted out by the accused to the deceased on account of demand of dowry and other valuables is writ large on the face of the record and it is this torture which led to Smt. Santosh ending her life by hanging herself in the matrimonial home. He thus urged that the accused appellant does not deserve any indulgence whatsoever either on the aspect of his conviction as recorded by the trial court or on the aspect of sentences awarded to him. On these grounds, he craved dismissal of the appeal. 7. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the entire record. 8. It is an admitted fact that the deceased was married to the accused appellant within a period of seven years from her death by hanging in the matrimonial home. Having minutely examined the evidence of PW-10 Ranaram (the first informant) and PW-11 Smt. Jamna, being the parents of the deceased Smt. Santosh, we are duly satisfied that both the witnesses have given clinching, convincing and satisfactory evidence to prove the fact that Smt. Santosh was continuously harassed, humiliated and tortured in the matrimonial home on account of demand of money. The tenor of the evidence of these material witnesses is sufficient to satisfy the Court that the accused did not want to work and continuously pestered the deceased to ask her parents for money, etc. so that he could enjoy his life by binging and without raising a finger. For this purpose, he even went to the extent of mortgaging the Payal of the deceased in the period of Navratra so that he could consume liquor. No significant cross-examination was conducted either from Ranaram (PW-10) or Smt. Jamna Devi (PW-11) who have given affirmative evidence, to this effect. For this purpose, he even went to the extent of mortgaging the Payal of the deceased in the period of Navratra so that he could consume liquor. No significant cross-examination was conducted either from Ranaram (PW-10) or Smt. Jamna Devi (PW-11) who have given affirmative evidence, to this effect. The plea advanced by Shri Bora that this instance of mortgaging the Payal of the deceased was of seven months prior to her death, is absolutely untenable because Ranaram PW-10 gave positive evidence that this incident took place seven months before his statement was being recorded in the Court and that on the very same day, Pancharam called and informed that Smt. Santosh had committed suicide. Apparently, Payal is an ornament touching the sentiments of a woman hailing from rural background and if the husband mortgages the same for consuming liquor and that too during the Navratra festival, the extent of mental cruelty inflicted on the woman can very well be understood. The parents of a married woman would be the best witnesses to give evidence regarding the ill behavior meted out to her in the matrimonial home. Merely because the other witnesses (referred to supra) turned hostile and did not support the prosecution story, that by itself cannot be a ground to discard or disbelieve the evidence of PW-10 Ranaram and PW-11 Smt. Jamna more particularly when nothing significant could be elicited in their cross-examination. The facts in the case of Harjit Singh (supra) relied upon by Shri Bora, are totally distinguishable because in that case, Hon'ble the Supreme Court, after appreciating the evidence on record, clearly held that there was no material to show that the deceased was harassed or humiliated in the matrimonial home on account of demand of dowry soon before her death. Thus, the said judgment is of no aid to the defence. 9. In view of the discussion made herein above, we are of the firm opinion that the trial court was perfectly justified in convicting the appellant for the offences under Sections 498A and 304B IPC. Having held so, we now proceed to deal with the aspect of sentences awarded to the accused appellant. Section 304B(2) of the IPC reads as below: "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." 10. Having held so, we now proceed to deal with the aspect of sentences awarded to the accused appellant. Section 304B(2) of the IPC reads as below: "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." 10. On a plain reading of the Section, it is clear that the minimum sentence provided for the offence is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. As the legislature has provided a minimum sentence for the offence and since, the higher sentence which may extend to imprisonment for life has been provided by way of an exception, apparently, for awarding more than the minimum sentence, the Court would have to look for special features in the case. Hon'ble the Supreme Court had the occasion to consider this aspect of the matter in the case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi) reported in (2014) 4 SCC 375 involving the offence under Section 304-B IPC and held as below:- "12. To revert to the main stream of the case, we see no reason as to why the principles of sentencing evolved by this Court over the years through largely in the context of the death penalty will not be applicable to all lesser sentences so long as the sentencing judge is vested with the discretion to award a lesser or a higher sentence resembling the swing of the pendulum from the minimum to the maximum. In fact, we are reminded of the age old infallible logic that what is good to one situation would hold to be equally good to another like situation. Beside paragraph 163 (underlined portion) of Bachan Singh (supra), reproduced earlier, bears testimony to the above fact. 14. 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. 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. 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 1/2" skin deep on the side of forehead near hair margin) and 2 (Laceration 1 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. 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. 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." 11. Manifestly, in the present case, the parties belong to a weaker and poor section of the society. From the prosecution evidence, it is clear that the appellant was not employed and thus, he used to pester the deceased to bring money from her father. It further appears that father of the deceased was not in a position to meet these demands because of his own poverty. On the occasion of Navratra, the accused mortgaged the payal of the deceased and consumed liquor which incident appears to be the trigger for Smt. Santosh to end her life by hanging herself. Apparently, in this incident, no physical cruelty or diabolic behavior was meted out by the accused to the deceased. His apparent craving for liquor seems to have led him to take this step which proved the tilting point leading to the deceased ending her life by hanging. As stated by Shri Bora, the two minor children of the appellant are living with his parents who apparently must be quite old. In this background, we feel that the case does not involve any such special features which warrants award of maximum sentence of life imprisonment to the accused appellant. We feel that the ends of justice would be subserved by reducing the sentence awarded to the appellant for the offence under Section 304B IPC from imprisonment to life to eight years rigorous imprisonment. 12. We feel that the ends of justice would be subserved by reducing the sentence awarded to the appellant for the offence under Section 304B IPC from imprisonment to life to eight years rigorous imprisonment. 12. In this background, while affirming the impugned Judgment on the finding of the conviction of the appellant for the offences under Sections 498A and 304B IPC, we hereby reduce the substantive sentence awarded to him by the trial court for the offence under Section 304B IPC from life imprisonment to Rigorous Imprisonment for a term of eight years. The sentence of fine and the default imprisonment awarded in lieu thereof is maintained. The judgment dated 27.11.2015 passed by the learned Sessions Judge, Jaisalmer in Sessions Case No. 15/2014 is modified accordingly. 13. The appeal is partly allowed in these terms. 14. Record be returned to the trial court.