K.S. Garewal, J.
1. Virender Singh along with his father Umrao Singh, sister Lali and Lali''s husband Sant Lal were tried by the learned Additional Sessions Judge, Narnaul for offence under Sections 302/304B and 498A I.P.C. The trial Court vide judgment dated January 19, 1991 convicted Virender Singh under Sections 304B and 498A I.P.C. but acquitted Umrao Singh, Lali and Sant Lal. Virender Singh was sentenced to undergo seven years rigorous imprisonment under Section 304B I.P.C. and two years rigorous imprisonment under Section 498A, I.P.C. There were also sentences of fine etc. and both the sentences were to run concurrently. Virender Singh has filed this appeal to challenge his conviction and sentence.
2. Virender Singh married Dhanpati, daughter of Ram Chander (PW5) of Bawania, on May 4, 1983. At the time of the marriage Virender Singh and his family was not satisfied with the articles given in dowry to Dhanpati by her father. Ram Chander had pleaded which folded hands before Umrao Singh but the latter had kept mum at that time. After the marriage Dhanpati stayed in the matrimonial home only for two days and returned to Bawania. After staying for two days with her parents she returned to her inlaws where she spent about fifteen day and again came back to her parents. She told her father that she had been told by the accused that her father had not given dowry according to the status of Virender Singh''s father. She also told her father that Umrao Singh and Sant Lal had remarked to Dhanpati that in case she died Virender Singh could remarry and get good dowry. Dhanpati had always been complaining that she was being harassed for bringing less dowry.
3. In January, 1988 Virender Singh went to Ram Chander''s house and demanded Rs. 20,000/ on the ground that the money was needed by Sant Lal who was making a film. Ram Chander was unable to fulfil this demand. Thereupon, he was told that he may have to face consequences if he did not give the money, Ram Chander then replied that in case he was able to arrange the money he would deliver the same. After three days Ram Chander went to the appellant''s village and paid Rs. 5,000/ to his father. Ram Chander was told to meet Sant Lal at Narnaul and accordingly he went there and met Sant Lal as well as Lali. Sant Lal also threatened Ram Chander that he had not fulfilled the demand and he would have to face the consequences.
4. On April 1, 1988 Ram Chander''s second daughter was married. Dhanpati visited her parents'' home and told her father that if she was not given two gold ornaments her husband and his father would not allow her to enter their house. Ram Chander gave his daughter two gold ornaments. Virender Singh also attended the marriage and demanded a bicycle and a sewing machine which were also supplied by Ram Chander. After about one and a half months Dhanpati came to her parents and told them that the appellant was now demanding a scooter. Thereupon, Ram Chander went to the appellant''s village and paid Rs. 4,000/ to enable him to purchase a second hand scooter.
5. A month before Dhanpati''s death Ram Chander met her at her inlaws house and was told by her that she should be taken back with him as she apprehended danger to her life at the hands of the accused whom she had noticed talking to each other in a suspicious manner. Thereafter, Ram Chander met Sant Lal and Lali and also requested them to behave properly with his daughter.
6. The prosecution case is that on August 30, 1988 Dhanpati was murdered when she had gone to the fields to cut grass but in order to cover up their tracks the case was reported at Police Station, Narnaul at 4.15 P.M. by the appellant''s father Umrao Singh and registered under Section 302 I.P.C. on the basis of his statement. Umrao Singh had stated that Dhanpati had left the house at 8.30 A.M. to fetch grass but when she did not return until 1/1.30 P.M. he went looking for her and found her lying dead in a bajra field adjoining the field of Hardial. Her neck had been cut and blood was oozing out. Inspector Sadhu Singh (PW 7) took up the investigation, reached the spot and photographed the site. He prepared the inquest report and sent the dead body for postmortem examination. At the site, he collected blood stained earth, a blood stained plastic bag, two plastic chappals, two pieces of broken bangles and a sickle used for cutting the grass. At a distance of about 50 yds. from the spot, the investigating officer found a coloured sheet near a heap of cut grass.
7. The postmortem was conducted by Dr. Vijay Pal Bansal (PW 1) at Civil Hospital, Narnaul at 9.30 A.M. on August 31, 1988 and the following injuries were found on her person:
1. There was a wound of 14 cms. horizontally and 12 cms. vertically on the neck anteriorly, extending from the sternum to the hyoid bone and horizontally from right sterno cleido mastoid muscle to left sterno cleido mastoid. Neck posteriorly was attached by a skin flap. Tracheaoesophagus, hyoid bone, muscles and other blood vessels were severed. Margins of the wound were irregular at places.
2. 2 cm. x 0.3 cm. muscle deep incised wound below the angle of left mandible horizontal in direction.
3. 2 cm. x 0.5 cm. muscle deep incised wound below the chin, slightly left side, horizontal in direction.
4. Incised wound four in number over the right side of neck varying from 2 x 0.4 cm to 2. x 0.5 cm. horizontally.
5. 1.5 cm. x 0.5 cm incised wound on the outer border of left axilla/muscle exposed.
6. 1.5 cm. x 0.7 cm. incised would in the right axilla, muscle deep, oblique in direction.
7. 1.5 cm. x 0.5 cm. incised wound in the right axialla, oblique.
8. 1.5 cm. x 0.5 cm., 1.2 x 0.5 cm., 1.5 cm. x 0.1 cm. incised wound over the right shoulder, oblique in direction.
9. 1.5 cm. x 0.3 cm. incised wound over the medial aspect of left wrist.
10. Incised wound 0.5 cm. x 0.3 cm. over the little finger of left hand at the tip on the palmer surface.
8. The Medical Officer found greenish discolouration on the abdomen and maggots were crawling on the wounds. No mark of injury was found on the thighs or vulva and inside the vagina. Uterus contained a male foetus of about 34 weeks. Two vaginal swabs were taken and sent for chemical examination to Forensic Science Laboratory, Madhuban. In the opinion of the Medical officer injury 1 was sufficient to cause death in the ordinary course of nature. The death had been instantaneous and the time which elapsed between death and postmortem was 12 to 24 hours.
9. Dhanpati''s dead body was cremated without informing her parents. On August 31, 1988 Ram Chander came to know about the murder and filed an application before S.H.O. P.S. Sadar Narnaul regarding his daughter''s murder which led to the further investigation of the case. The appellant was arrested on September 2, 1988. Later his coaccused were also arrested and all them were sent up for trial. At the trial charge was framed against the accused under Sections 302/304B and 498A I.P.C. to which they pleaded not guilty and claimed to be tried.
10. The main witnesses examined by the prosecution were Dr. Vijay Pal Bansal (PW 1), Ram Chander (PW 5), Kailash (PW 6) and Inspector Sadhu Singh (PW 7) and closed the case. The accused were examined without oath under Section 313 Cr.P.C. Virender Singh appellant admitted the inter se relationship with his coaccused and also admitted that he had married to Dhanpati on May 4, 1983 but denied the other allegations. In defence he pleaded innocence and false implication. the accused were specifically asked what they had to say regarding the filing of the FIR 249 on August 30, 1988 at 4 P.M. at P.S. Narnaul under Section 302 I.P.C. in respect of the murder of Dhanpati but replied that this was incorrect !!
11. The accused were called upon to enter defence but did not lead any defence evidence. The learned trial Court came to the conclusion that the prosecution had failed to establish who had committed the murder of Dhanpati and had also failed to bring on record any evidence to prove under what circumstance she had been raped before her murder. Consequently, it was held that the prosecution had failed to establish that an offence under Section 302 I.P.C. had been committed by the accused. However, the prosecution case as regards harassment, cruelty and demands for dowry was accepted and Virender Singh was found guilty of offence under Section 113B of the Indian Evidence Act (for short `the Act'') and of offence under Section 498A I.P.C.
12. Learned counsel for the appellant argued that it was a clear case of rape and murder. The prosecution evidence did establish that the deceased had been raped before she was killed. The deceased had died due to injury 1 which was a wound 14 cm x 12 cm on the neck and extended from the sternum to the hyoid bone and horizontally from right sterno cleido mastoid muscle to left sterno cleido mastoid. Neck was posteriorly attached with the flap of skin. Trachea, esophagus, hyoid bone, muscles and other blood vessled were severed. Furthermore, it was argued that the case did not fall under Section 304B I.P.C. as there had been no demands for dowry and the demands for money were not connected with dowry at all. Therefore, the presumption under Section 113B of the Act did not come into operation.
13. This is a curious case where medical evidence points to a brutal murder. The dead body of a young healthy woman is found in the fields with a huge wound on the neck that had nearly severed the neck. The Medical Officer on seeing the opinion of the Forensic Scientist Ex.PZ/3 opined that the deceased had been subjected to intercourse. The forensic expert had detected blood stains and human semen on the shirt and petticoat of the deceased. Human semen was also detected on the two microscopic slides (vaginal swabs slides). This was an obvious case of murder without doubt but can it be said that Dhanpati''s death had been caused by bodily injury otherwise than under normal circumstances. Death had certainly been caused due to bodily injury and the circumstances were also not normal but it is extremely doubtful if the case of murder could be converted to one under dowry death by applying the ingredients of the offence mentioned in Section 304B I.P.C. i.e. "death of a woman ........caused by bodily injury...... otherwise than under normal circumstances."
14. Nevertheless, one may examine the evidence of cruelty in the form of dowry demands. The evidence consists of the testimonies of Ram Chander (PW 5) and Kailash (PW 6). In the opening part of his testimony Ram Chander described how the appellant''s father had been dissatisfied with the dowry presented at the time of the marriage and how the appellant''s other coaccused used to say that Ram Chander had not given dowry according to the status of the family and that if Dhanpati died the appellant could remarry and get good dowry. These are the general allegations which may not constitute dowry demands to bring the case within Section 304B I.P.C.
15. Continuing with the statement, Ram Chander stated that Rs. 20,000/ was demanded by the appellant to finance his brotherinlaw Sant Lal for making a film. He managed to arrange Rs. 5,000/ and paid the amount to the appellant. Ram Chander was also asked to meet Sant Lal at Narnaul. When he met Sant Lal and Lali at Narnaul, Sant Lal threatened him that if he did not fulfil his promise he may have to face the consequences. Ram Chander further testified that when his second daughter got married in April, 1988, the deceased told him that she should be given two gold ornaments for the occasion otherwise the appellation would not allowed her to enter the house. Ram Chander gave her a gold pendant and a pair of ear rings. At the time of the said marriage the appellant also demanded a bicycle and a sewing machine. Thereafter, the appellant demanded a scooter through the deceased and Rs. 4,000/ was paid to him to buy a second had scooter. A month before the deceased was killed she had told her father that she should be taken back because she apprehended danger to her life. Ram Chander assured his daughter that he would speak to the appellant and his coaccused and request them to treat her property. He also contacted Sant Lal and Lali with the same request.
16. The conundrum in this case is that there is strong evidence that the deceased was raped and then murdered but there is no evidence that the appellant had committed this crime. Although the appellant''s father had lodged the report about the murder, the police did not vigorously pursue the investigation into the murder and instead directed the investigation towards dowry death. The evidence of dowry demands soon before the death is a major ingredient of dowry death. In such cases it has to be shown that soon before the death the woman was subjected to cruelty or harassment by the accused for, or in connection with, a demand for dowry. The evidence of dowry demand is somewhat weak. Apart from the general demands, demand of Rs. 20,000/ for financing a film cannot be said to be a dowry demand. The presents demanded at the time of the marriage of the sister of the deceased cannot be termed to be dowry demands. All that remains is demand of bicycle and a scooter for which Rs. 4,000/ was paid to enable the appellant to buy a second hand scooter. Somehow it seems difficult to link these dowry demands with the murder of the deceased. If the deceased had committed self immolation in her matrimonial home or committed suicide by hanging or poisoning then the trial Court could have stretched the evidence to bring the case under Section 304B I.P.C. by making use of the presumption under Section 113B of the Act. The case is one of brutal murder for which the appellant and his coaccused were charged, tried and acquitted and the State was content with that verdict. Unfortunately, the evidence regarding dowry demands soon before Dhanpati''s murder is somewhat lacking, therefore, the conviction of the appellant under Sections 304B and 498A I.P.C. cannot be sustained.
17. The trial Court had categorically held that the recovery of scissor was not enough to hold the appellant guilty of murder. In other words the recovery had been completely disregarded. No other evidence of murder, either direct or circumstantial, was produced before the trial Court. The appellant was, therefore, acquitted of the murder charge. In the circumstances of the case it may not be appropriate to hold the appellant guilty of dowry death and cruelty when the case was one of murder for which he was acquitted.
18. In view of the above, the appeal is accepted and the appellant is acquitted of the charges of dowry demands and cruelty.
