Rajasthan High Court - Jodhpur

Dashrath vs State on 17 May, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 1595/2019

Dashrath S/o Shri Govardhan Bheel (Gameti), Aged About 24 Years, Sanwad, Police Station Rajnagar, District Rajsamand. (At Present Lodged In District Jail Rajsamand).

----Appellant Versus State, Through P.p.

                                                                      ----Respondent


For Appellant(s)              :     Mr. Firoz Khan,
                                    Mr. Abhishek Pareek
For Respondent(s)             :     Mr. Arun Kumar , PP.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

17/05/2022

1. This Criminal Appeal under Section 374(2) Cr.P.C. has been

preferred with the following prayer:-

"It is, therefore, humbly and respectfully prayed that this Criminal Appeal may kindly be allowed and while setting aside the Judgment dated 19.08.2019 passed by learned Additional Sessions Judge, Rajsamand, the appellant be acquitted from the offence under Section 498-A and 304-B of IPC."

1.1 Vide the impugned judgment dated 19.08.2019, the

accused-appellant was convicted for the offences under Sections

498-A and 304-B IPC; for the offence under Section 498-A IPC, he

was sentenced to undergo three years simple imprisonment and a

fine of Rs.2,000/-, in default of payment of which, he was to

undergo further 15 days simple imprisonment and; for the offence

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under Section 304-B IPC, he was sentenced to undergo ten years

simple imprisonment; both the sentences were order to run

concurrently.

2. Brief facts of this case as placed before this Court by the

learned counsel for the accused-appellant are that a complaint

was filed before the learned Chief Judicial Magistrate, Rajsamand

by one Lala Ram (complainant) on 28.10.2015, alleging therein

that his daughter, who passed away on 14.10.2015, was tortured

by her husband and in-laws. And that, his daughter was also

assaulted by her husband, at the complainant's house, four

months prior to her death.

3. Learned counsel for the appellant-husband submits that the

learned trial court has erred in passing the impugned judgment of

conviction, as it is a matter of record that not a single witness has

stated that there was any kind of harassment or torture by her

husband or in-laws, and that no demand for dowry was made, but

the said factual aspect was not taken into due consideration by

the learned trial court, before passing the impugned judgment.

4. Learned counsel for the appellant-husband further submits

that in the Bhil community, no tradition / ritual of dowry exists,

which makes the version of the prosecution highly improbable.

5. Learned counsel for the appellant-husband also submits that

no ingredient for constituting the offences under Section 304-B

and 498-A I.P.C. is made out against the accused, and that the

main ingredient that harassment must be proven in connection

with a demand for dowry against the wife, is absent in the present

case.

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6. Learned counsel for the appellant-husband, while opposing

the finding recorded by the learned trial court, that the appellant

meted out cruelty to the deceased victim through denying her the

freedom of wearing jeans, denying her permission to continue her

studies, is false and untrue, as the appellant himself bought her

pairs of jeans, and never denied her permission to continue

studies.

7. Learned counsel for the appellant-husband also submits that

the learned trial court has therefore incorrectly convicted the

appellant, and thus, the impugned judgment passed by the

learned trial court deserves to be quashed and set aside.

8. On the other hand, the learned Public Prosecutor opposes,

and submits that the learned trial court has rightly passed the

impugned judgment of conviction against the accused-appellant,

after taking into due consideration the overall facts and

circumstances of the case and a perusal of the evidence on record.

9. Learned Public Prosecutor further submits that the learned

trial court has recorded that the deceased victim was treated

cruelly by her husband, and that when she secured admission into

the Second Year of her college course, her husband denied her

permission to continue her studies and threatened her life, tore

her clothes and physically assaulted her.

10. Learned Public Prosecutor also submits that, as per the

complaint filed, the spot where the deceased-victim's body was

found, she died allegedly by committing suicide is not believable,

since there was no table there nor were there any kind of forced

entry on the door to break into the room where she was found,

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and that she was short in height which makes the story that she

passed away by suicide from hanging, all the more doubtful.

11. Heard learned counsel for both parties and perused the

record of the case.

12. This Court observes that, as is reflected from the record,

P.W. 7 Radha Krishna, in his testimony deposed that there was a

table of about 2 / 2 and a half feet in the room where the

deceased-victim was found, and that the room was also of about 9

feet.

13. This Court also observes that the testimonies rendered by

the doctors, Dr. Yashwant Bhulawat, P.W. 16 and Dr. Manju

Puroshit, P.W. 17 reveal that the cause of death of the victim was

by anti-mortem hanging, and that when someone hangs

himself/herself then the knot of the rope is towards his/her ear,

which is further fortified by the medical report at Ex.P/5.

Furthermore, there were no injuries found on the body of the

deceased-victim which may point towards the alleged physical

cruelty (beating) suffered by her.

14. This Court further observes that in the Bhil community, to

which the deceased victim, her husband and her in-laws belonged

to, does not have the ritual / tradition of dowry, and that makes

the version of the prosecution all the more doubtful.

15. This Court also observes, as is recorded in the impugned

judgment passed by the learned trial court, that PW-2 Geeta sister

of the deceased-victim in her deposition confirmed that the

deceased victim's husband in fact bought her pairs of jeans, and

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did not restrict or deny her, her freedom of choice, and therefore,

any such allegation that cruelty was meted out to the deceased on

such ground is untenable.

16. This Court further observes that the testimony of Dr. Manju

Purohit, P.W. 17 confirms that the cause of death was hanging and

suffocation, and a perusal of the record does not suggest anything

to the contrary, or any possibility of foul play.

17. This Court also observes that although the victim-wife's

death falls within the 7 years time frame prescribed by the

legislature in the provision of law of Section 304-B I.P.C. the

evidence on record, i.e. the absence of substantial proof that

there was a demand for dowry from the deceased-victim, coupled

with no witness testimony to corroborate such allegation, does not

prove the allegations against the accused, and therefore, does not

prove the version of the prosecution, beyond all reasonable doubt.

18. This Court is conscious of the judgment rendered by the

Hon'ble Supreme Court in Shabbir Hussain Vs. The State of

Madhya Pradesh & Ors. (Special Leave to Appeal Crl.

No.7284/2017) on 26.07.2021, relevant portion of which reads

as under :-

"In order to bring a case within the provision of Section 306 IPc, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide."

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19. This Court is also conscious of the judgment rendered by

Hon'ble Supreme Court in Amalendu Pal @ Jhantu Vs. State of

West Bengal; reported in (2010) 1 Supreme Court 707, relevant

portion of which reads as under :-

"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.

13. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.

25. We now intend to proceed to find out whether a case under Section 498A IPC is made out against the appellant or not. In the case of Girdhar Shankar Tawade v. State of Maharashtra (2002) 5 SCC 177, this Court gave a

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succinct enumeration of the object and ingredients of Section 498A IPC, when it observed as follows in paras 3 and 17:

"3. The basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislatures: whereas Explanation

(a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498-A. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

17. As regards the core issue as to whether charges under Sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary neither are we inclined to do so, but in order to justify a conviction under the later provision there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereon -- the

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documentary evidence (namely, those three letters), in our view, falls short of the requirement of the statute: even on an assumption of the fact that there is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl's in-laws' place and requests the husband to treat her well -- at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498-A. Demand for dowry has not seen the light of day."

27. Accordingly, the present appeal is hereby partly allowed. We hereby set aside the conviction of the appellant under Section 306 but uphold the conviction of the appellant under section 498A. As the appellant is on bail, his bail bonds stand cancelled. The appellant is directed to surrender himself before the jail authorities within 15 days from today to serve out the remaining sentence under Section 498A, failing which the concerned authority shall proceed against the appellant in accordance with law. "

20. This Court, in light of the above made observations, finds

that the learned Court below has erred in passing the impugned

order convicting the accused herein, despite a lack of substantial

evidence proving his culpability beyond all reasonable doubt.

21. This Court, therefore, allows the appeal. Resultantly, the

impugned judgment dated 19.08.2019 passed by the leanred

Additional Sessions Judge, Rajsamand, in Sessions Case

No.06/2016 (CIS No.04/16), convicting the appellant herein is

quashed and set aside and the appellant is acquitted from all the

charges levelled against him. The appellant is in jail, as reflected

from the custody certificate placed on record, and therefore, the

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