Kanwaljit Singh Ahluwalia, J.@mdashPooja, Kamlesh, Bachchu Singh sons of Balmukund and their mother Smt. Savitri, have been convicted vide impugned judgment dated 23.4.2005, for offence under Sections 304-B and 201 IPC by the court of Additional District Sessions Judge (Fast Track) No. 2, Dholpur. Vide separate order of even date, all the appellants were sentenced as under:--
"U/s. 304-B IPC- to undergo life imprisonment and to pay a fine of Rs. 1000/- each, in default of payment of fine to further undergo two years'' S.I.
U/s. 201 IPC- to undergo R.I. for two years and to pay a fine of Rs. 400/- each, in default of payment of fine to further undergo two months'' S.I."
2. Aggrieved against their conviction and sentence, the appellants instituted D.B. Criminal Appeal No. 461/2005. A separate appeal on behalf of the appellants was also received from the Jail and the same was assigned docket No. D.B. Criminal Jail Appeal No. 643/2005. Since in both the appeals, the same appellants have challenged the same impugned judgment, we shall club both the appeals and decide them together.
3. Anta Ram (P.W.17), the complainant was married with Ramsnehi (P.W.19); six daughters were born out of their wedlock. Two daughters, namely Jamna (P.W.18) and Seema (the deceased), were married to two brothers, namely Kamlesh and Pooja, the appellants No. 2 and 1, respectively. Kamlesh was married with Jamna (P.W.18) about nine years before the occurrence, whereas, second daughter Seema, (the deceased) was married with Pooja, two years before the occurrence.
4. In the present case, we are concerned with the unnatural death of Seema, who died within two years of her marriage with Pooja. The cause of death, as per Post-Mortem Report (Exhibit-P/26) and in the opinion of Doctor B.N. Singh Tomar (P.W.24), who had conducted autopsy, is asphyxia due to throttling, accompanied by injuries on person of deceased Seema.
5. The prosecution in all had examined twenty-five witnesses. Most of the witnesses, who are neighbours of the accused, have turned hostile. The prosecution case regarding demand of dowry to attract ingredients of the offence under Section 304-B IPC rests on the testimony of Hubb Lal (P.W.14), Fufa of the deceased (husband of paternal aunt of the deceased), Anta Ram (P.W.17), father of the deceased, Smt. Jamna (P.W.18), sister of the deceased, and Ramsnehi (P.W.19), the mother of the deceased.
6. Jamna (P.W.18), the wife of the appellant Kamlesh claims herself to be an eyewitness (to the causing of injuries to the deceased Seema). She is the star witness of the prosecution. Having noted broad features of the case, we proceed to notice the contents of the FIR (Exhibit-P/17) lodged by Anta Ram (P.W.17).
7. In the statement made before the police, leading to registration of the case, Anta Ram (P.W.17) stated that he is resident of Bholaram Ka Pura, Police Station Dimni, District Muraina, Madhya Pradesh. His daughters Jamna and Seema were married in village Bhuda with Kamlesh and Pooja sons of Balmukund, respectively. Elder daughter, Jamna was married nine years ago and she is mother of one daughter. Younger daughter, Seema was married about two years ago and she has not given birth to any child. It was stated in the statement that at the time of marriage of Seema, he had given dowry beyond his capacity. But, still the son-in-law, Pooja was demanding gold chain , upon which he gave an assurance that currently he was not in a position to satisfy the demand, but he will do the needful at a later stage. It was stated by the complainant that on this assurance, his daughter Seema was kept well, but seven and a half months or eight months before, Pooja, Kamlesh and Bachchu Singh sons of Balmukund started harassing his daughter and used to beat her. On hearing that daughter Seema is being subjected to cruelty, the complainant approached Mukhiya of the village Bhuda and Chokharia Mallah residents of Kuthiana and gathered a Panchayat. People of the village and Chokharia gave assurance that in future his daughters will not be harassed. Upon which, the complainant returned to his village. On 2.11.2003, the complainant arrived at the village Bhuda and had a talk with his daughters. In his presence, Bachchu Singh had given beating to Seema. Upon which, Kamlesh also intended to give beating to Seema. Later, the accused told him that they will kill Seema. At that time, Balmukund, Smt. Savitri and Smt. Omwati, wife of Bachchu Singh, were also present. They were threatening his daughter. The complainant wanted to bring back his daughter, but the accused did not permit her to accompany him. The complainant came to his relative Makhan Singh and narrated the incident to him. On 3.11.2003, at about 4 a.m., his daughter Jamna and Ward Panch Bheem Sen came to him, and informed him that the accused have killed Seema. The complainant stated in the FIR that his daughter, Jamna, informed him that Seema was killed by Kamlesh, Pooja, Bachchu Singh, Balmukund, Smt. Savitri and Smt. Omwati. The complainant along with his daughter, Jamna and Bheem Sen reached the village Bhuda, but Balmukund etc were not present at the house. The complainant inquired from the villagers about the dead body of Seema. He was informed by the villagers that the dead body has been taken by the accused in tractor trolley. Where they have taken the same, was not known to them. The complainant searched for the dead body of his daughter, but could not get any clue. An apprehension was raised in the FIR that the in-laws of Seema had thrown the dead body of Seema somewhere, or they have burnt the same. Therefore, the report was presented and legal action was sought.
8. The aforesaid FIR was investigated. Report of investigation with the opinion of the Investigating Officer was submitted in the court of concerned Magistrate. Report of the investigation alongwith the accused was committed to the court of Sessions, and trial of the case and accused was entrusted to the court of Additional District and Sessions Judge (Fast Track) No. 2, Dholpur.
9. All the appellants were charged for the offence under Sections 304-B and 201 IPC. The first charge stated that on 2.11.2003, on Sunday, in village Bhuda, Seema, the daughter of Anta Ram, who was married with Pooja two years before, within seven years of her marriage, on account of demand of dowry, was subjected to cruelty and beating and therefore, she had died an unnatural death. Therefore, the accused appellants had committed the offence punishable under Section 304-B IPC. The second charge stated that on the said date, time and place, after causing death of Seema, her dead body was thrown in a drain . Therefore, for causing disappearance of evidence, the accused had committed the offence punishable under Section 201 IPC.
10. It is to be noted that vide Exhibit-P/9, on 5.11.2003 at 7:10 a.m., dead body of Seema was recovered. As stated earlier, Dr. B.N. Singh Tomar (P.W.24) vide Exhibit-P/26 had conducted post-mortem on the dead body of the deceased. He had found the following 13 injuries on the dead body of Seema, aged 20 years, as under:--
"1. Face cyanosed. Tongue clutched between teeth.
2. Bruise 3 x 2cm over the left cheek.
3. Abrasion with bruise 3 x 2 cm over the left lower jaw angle.
4. Abrasion with bruise 8 x 2cm over the left of neck below jaw angle.
5. Abrasion 20 x 3cm over the neck below chin extending to left of neck.
6. Multiple abrasion 20 x 10cm over the anterior and left of the neck extending upto upper mid of chest.
7. Bruise all over the palm of right hand.
8. Swelling all around the upper 2/3rd of the right thigh with # of neck, femur and hip joint dislocation.
9. Abrasion 3 x 2cm over the right knee.
10. Abrasion 6 x 5cm over the right knee.
11. Abrasion 10 x 2cm over the left limb region.
12. Bruise 8 x 3cm over mid of chest posterio region.
13. Abrasion 5 x 2cm over the right part of chest 1/3rd.
14. Abrasion with bruise 5 x 3cm with # leg bone."
11. As per opinion of the Board of the Doctors, cause of death was asphyxia due to throttling and injuries leading to shock and death.
12. Thus, it is apparent that it is not a case of suicide, but of culpable homicide. The trial court taking into account ingredients of Section 304-B IPC has convicted the appellants for the said offence.
13. We shall now briefly notice evidence led by the prosecution.
14. Siya Ram (P.W.1), Lal Singh (P.W.2), Jagan Nath (P.W.3), Kaluta @ Kalicharan (P.W.4), Rakesh (P.W.5), Bheem Sen (P.W.6), Makhan Singh (P.W.7), Chokhariya (P.W.8), Ram Sewak (P.W.10) and Ram Bhajan (P.W.11), have been presented regarding convening of Panchayat and demand of dowry. But they have not supported the prosecution case and have been declared hostile.
15. Shyam Sunder (P.W.9), had attested the memo (Exhibit-P/9) regarding seizure of the dead body. Devendra Kumar (P.W.12) and Mohan Singh (P.W.15) attested Inquest/Panchnama (Exhibit-P/12). Barelal (P.W.13) had attested (Exhibit-P/13 to 16) the formal arrest memos of the accused. Ramveer (P.W.16) denied his signatures on Panchanama and inquest report; he was declared hostile. Sijuaa (P.W.20) has also attested arrest memo. Rakesh (P.W.21) being a photographer, was called to take photographs of the spot from where dead body was recovered. Sriman Lal Meena (P.W.22), Bhagwan Singh (P.W.23) and Shiv Raj Kumar Gupta (P.W.25) had participated in the investigation, and had proved various facets of the investigation.
16. As stated by us earlier, the case of prosecution rests upon the statement of Hubb Lal (P.W.14) the ''Phupha'' of the deceased (husband of the paternal aunt of the deceased), Anta Ram (P.W.17), the father of the deceased, Jamna (P.W.18), the sister of the deceased, and Ramsnehi (P.W.19), the mother of the deceased.
17. Hubb Lal (P.W.14) stated in the court that Kamlesh, Pooja, Bachchu Singh, Savitri, Omwati and Balmukund used to beat Seema for not bringing gold chain in the dowry. He further stated that Anta Ram had gone to the house of the accused. After feeling humiliated, he came to the house of Makhan Singh in village Gaharai, where his daughter, Jamna informed him regarding death of Seema.
18. In cross-examination, this witness stated that Seema is his niece. Two months before death of Seema, a Gram Panchayat was convened.
19. Anta Ram (P.W.17), stated that his daughter, Jamna, was married with Kamlesh about ten years ago. His another daughter, Seema, was married three years before his deposition in the court with Pooja. He had given dowry according to his capacity. Accused were demanding gold chain. He informed them that as he was recently operated upon, therefore, he cannot satisfy their demand. He had convened a Panchayat, where accused Pooja, Bachchu Singh, Kamlesh and Balmukund assured him that they will not harass his daughter. He had sent both his daughters back to their matrimonial home. Accused again started quarreling with them for demand of dowry. He further stated that he had gone to the house of the accused. His daughters informed him that accused gave them beating. Therefore, they should be taken back to their native house. At that stage, Kamlesh, Bachchu Singh, Pooja and Savitri armed with lathis encircled him, and told him that they will not send back the girls. They dragged his daughters into their house. Thereafter, he went to village Gaharai. In the night, at 4:00 AM, his daughter Jamna came along with Bheem Sen and informed him that Seema was killed by Kamlesh, Bachchu Singh, Pooja and Savitri. They had strangulated her, and had also given beating to her with fist and kick blows. After three days, dead body of his daughter was recovered by memo Exhibit-P/9. Panchanama (Exhibit-P/12) of the dead body was made.
20. In cross-examination, this witness admitted that in the month of Bhado, his wife was operated upon. Seema along with her husband Pooja had visited the hospital to ask the welfare of his wife. At that juncture, they had not raised demand of gold chain. He further stated that one month before the death of his daughter, he had convened the Panchayat. He admitted that at the time of operation of his wife, he had gone to the house of accused to ask for loan of Rs. 100-200 for purchasing medicines. He further stated that on the day beating was given to his daughter, he had gone to the house of accused.
21. Smt. Ramsnehi, (P.W.19), the wife of Anta Ram, has also reiterated in the court that her daughter was harassed by the accused for demand of dowry.
22. The material witnesses in the present case, as noted by us earlier, is Jamna (P.W.18). She stated in the court that she was married with Kamlesh. Her younger sister Seema was married with Pooja. She was married ten years before her deposition in the court, whereas, her sister was married three years ago. The accused used to harass both the sisters and give beating. In-laws of the daughters were demanding gold chain in dowry. Her father was poor. Their father had convened Gram Panchayat. In panchayat, the accused assured that they will not quarrel with their wives. Her mother was operated upon. Her father had come to house of the accused to ask for loan of Rs. 2,000/-. They gave beating to her father. For the reason that "instead of giving dowry, he is demanding loan". They also gave beating to both the sisters. They gave beating to both the sisters on the day, they gave beating to their father. In the day at about 12:00, the accused gave beating to them and their father. Thereafter, her father left for village Gaharai. In the evening, at 6:00 p.m., Pooja, Kamlesh, Bachchu Singh and Savitri gave beating to Seema. Mother-in-law, had caught hold of ponytail of Seema, Kamlesh caught hold of her neck. Bachchu Singh gagged her mouth, and the accused gave beating to Seema. She had witnessed the occurrence from chinks of the "Chhappar". After they had given beating to Seema, she came to the house of Lal Singh, from where she went to the house of Bheem Sen and then accompanied him to village Gaharai to the house of Makhan Singh, where her father was staying. She stated that her father was poor and accused were demanding gold chain.
23. In the cross-examination, this witness stated that at the time of her marriage, the accused had not demanded any dowry. She further stated that since accused were harassing her, she got her younger sister married with accused Pooja. What is important for us to note is that witness has been duly confronted with her statement made to the police. In the court this witness stated as under:--
24. Mr. Rinesh Gupta, duly assisted by Ms. Chandrakala, appearing for the appellants, have submitted that the prosecution has miserably failed to prove that soon before the death, Seema, was harassed on account of demand of dowry. It is submitted before us that it is incumbent for the prosecution to prove that soon before death, the deceased was subjected to cruelty. It is further contended that father of the deceased Seema, Anta Ram (P.W.17), the complainant himself was poor and it is not a case of demand of dowry, rather it is evident from the prosecution case that Anta Ram himself had gone to the house of accused to demand loan. And, thus, the occurrence had ensued. Inter alia, it is further contended before us that the dead body has not been recovered from the house. The deceased herself had left the house and how she died, it has not been proven by the prosecution. It is submitted before us that Jamna (P.W.18) had not witnessed the occurrence and she is a made-up witness.
25. Mr. N.S. Dhakad, the learned Public Prosecutor, has submitted that Jamna (P.W.18) is mother of a daughter. She has first instinct to save her marriage; she will not depose falsely against her husband, especially when her marriage is ten years old.
26. We have given our thoughtful consideration to the rival submissions advanced before us.
27. The term used ''soon before the death'' in Section 304-B IPC, cannot be defined in exact words. It will depend on the facts and circumstances of each case. It has been held in the case of
"The offence alleged against the accused is under Section 304-B IPC which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the accused seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry."
28. It is further held in Prem Kanwar''s case (supra) that no straight jacket formula can be laid down as to what would constitute a period of soon before the occurrence. The following words of the above said judgment are important to be noticed:
"Suffice, however, to indicate that the expression ''soon before'' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."
29. In
30. It has come in the evidence of Anta Ram (P.W.17) that seven to eight months before the occurrence, Seema was continuously harassed, and a gold chain was being demanded. It has also come in evidence that the complainant had convened a Gram Panchayat. It is true that the neighbours and other persons have not supported the case of prosecution and had not lent corroboration to the demand of dowry, and convening of Panchayat. But we find no reason to disbelieve Anta Ram (P.W.17) regarding demand of dowry.
31. To us, the version contained in the FIR is spontaneous and prompt version. Subsequently, thereto, the witnesses have improved the prosecution version, and have introduced new facts. We will take improvements made by prosecution as a blemish, but not sufficient to throw out the entire case of the prosecution. Thus, we rely upon the version given in the FIR. Regarding particular role assigned to each of the accused, Jamna (P.W.18) had been duly confronted with her previous statement. It has also come in evidence that before lodging of the FIR, Jamna had met her father at village Gaharai at the house of Makhan Singh (P.W.7). She had narrated the occurrence to her father, Anta Ram (P.W.17). In the FIR, Anta Ram (P.W.17) had not attributed specific role to any of the accused, as has been stated by Jamna (P.W.18) in the court. It is but natural for the witnesses to introduce new facts with the passage of time. Since the FIR contained spontaneous and prompt version, we will place our reliance upon the same. In the FIR, it is stated that Pooja was demanding gold chain. Regarding demand of gold chain, no specific allegation has been made in the FIR qua Smt. Savitri, Kamlesh and Bachchu Singh. In the FIR, it has also not been stated that mother-in-law had caught hold of pony-tail of Seema, or Kamlesh had caught hold of neck, or Bachchu Singh had gagged the mouth. Thus, from the FIR, it is apparent that gold chain was demand by Pooja for his benefit. Since Pooja was demanding the gold chain, we can safely infer that he is responsible for the death of his wife Seema.
32. In
"For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusation are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
33. In
"Uniformly every witness has said that the family members of the husband, i.e. Sasuralwale had been making demands of dowry in the form of television and scooter. The nature of the demand is some indication. The demand of scooter predominantly must have been raised by the husband. It cannot be expected that the father-in-law would be demanding a scooter for himself or that the mother-in-law needed it for her use."
34. Thus, taking that demand of golden chain initially made by Pooja; we hold that Bachchu Singh, Kamlesh and Smt. Savitri have nothing to gain from the same. We are of the view that their conviction cannot be sustained qua the offence under Section 304-B IPC. We cannot become oblivious of the fact that marriage of Kamlesh with Jamna (P.W.18) was ten years old and in the FIR, nothing was stated that Kamlesh had demanded dowry from his wife Jamna (P.W.18). There is no allegation that before marriage of Seema with Pooja, Kamlesh, Bachchu Singh and Smt. Savitri had demanded dowry from Anta Ram (P.W.17), father of Jamna (P.W.18) and Seema, the deceased. Therefore, we can safely infer that it was Pooja alone, who was making demand of golden chain. It was pre-dominantly for his benefit. On that account, he caused harassment to his wife, Seema.
35. Thus, by sifting grain from the chaff, we shall extend benefit of doubt to the appellants, namely Kamlesh, Bachchu Singh and Smt. Savitri, so far the offence under Section 304-B IPC is concerned.
36. At the same time, we believe the witness to the extent that these accused i.e. Smt. Savitri, Kamlesh and Bachchu Singh, were responsible for causing harassment and cruelty to the deceased Seema and Jamna for demand of dowry. Thus, they are liable for the offence under Section 498-A IPC. Since no charge has been framed against these appellants for the offence under Section 498-A IPC, same being a lesser offence of Section 304-B IPC, we convict Smt. Savitri, Kamlesh and Bachchu Singh for the offence under Section 498-A IPC. We also uphold the conviction of all the four appellants for disappearance of the evidence and for commission of the offence under Section 201 IPC.
37. Consequently, as a result of above discussion, we dismiss the appeal of Pooja, and hold him guilty of offence under Section 304-B IPC. Since it is a case of throttling, accompanied by 13 injuries on the person of dead body, we are of the view that no ground is made out to reduce the sentence of life imprisonment awarded upon the appellant Pooja. Thus, we uphold his conviction for offence punishable under Section 304-B and 201 IPC and maintain the sentence awarded by the trial court.
38. Having acquitted Kamlesh, Bachchu Singh and Smt. Savitri, for the offence under Section 304-B IPC and convicted them for the offence under Section 498-A IPC, we are of the view that sentence of one year and nine months'' imprisonment shall serve the purpose. Thus, we sentence them under Section 498-A IPC to one year and nine months'' R.I. We also uphold the conviction of appellants Kamlesh, Bachchu Singh and Smt. Savitri for the offence under Section 201 IPC, and reduce the sentence of two years awarded to them on this court to one year and nine months, while maintaining sentence of fine and default thereof. As stated by the trial court the sentences awarded to the appellants on different counts shall run concurrently.
