Rajasthan High Court - Jodhpur

Ashok Kumar vs State Of Rajasthan on 30 September, 2024

Author: Birendra Kumar

Bench: Birendra Kumar

[2024:RJ-JD:40279]                  (1 of 12)                     [CRLAS-590/2024]


      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR



                S.B. Criminal Appeal (Sb) No. 590/2024




1.       Ashok Kumar S/o Nihal Singh, Aged About 25 Years, R/o
         Mahrana PS, Bhirani, Dist Hanumangarh. (Lodged In
         Central Jail, Bikaner)
2.       Rajal Devi W/o Nihal Singh, Aged About 49 Years, R/o
         Mahrana PS, Bhirani, Dist Hanumangarh. (Lodged In
         Central Jail, Bikaner)
                                                                  ----Appellants
                                    Versus


State Of Rajasthan, Through PP
                                                                 ----Respondent


For Appellant(s)           :    Mr. Manjeet Godara
For Respondent(s)          :    Mr. Dhan Raj Vaishnav, PP



            HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment Reserved On                    :       12.09.2024
Judgment Pronounced On                  :       30.09.2024



1.    Heard the Parties.

2. The appellants faced trial in Sessions Case No.30/2019 for

offences under Sections 498-A, 304-B and 302 IPC. By the

impugned judgment dated 04.03.2024, they were found guilty for

offences under Sections 498-A and 304-B IPC. The learned trial

Judge awarded ten years' rigorous imprisonment against the

appellants for offence under Section 304-B IPC along with fine of

Rs.5,000/- and in default of payment of fine, six months' simple

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imprisonment was ordered. For offence under Section 498-A IPC,

the appellants were convicted with three years' rigorous

imprisonment along with fine of Rs.2,000/- and in default of

payment of fine, three months' simple imprisonment was directed.

The sentences have been ordered to run concurrently.

3. The prosecution case as disclosed in FIR No.229/2019

registered with Police Station Bhirani (Ex.P/1) is that the victim

was married with appellant No.1-Ashok Kumar on 09.11.2018.

Though, marriage gift were given by the family members of the

girl. However, there was persistent demand of dowry of rupees

one lack in cash. This demand was being made continuously after

the marriage. The informant-Nathu Ram (PW-1), who is father of

the victim has stated that out of the aforesaid demand, he had

paid Rs.11,000/- to appellant No.2. PW-2 Mukesh Kumar, son of

PW-1 Nathhu Ram stated that the said amount was paid in the

month of March 2019. However, the demand continued and for

non-fulfillment of the demand, torture was persisting. The victim

used to inform her parents and brother, whenever, she visited her

parents house or even on telephone that she was assaulted by the

family members for non-fulfillment of the demand.

4. According to PW-1, PW-2 and PW-6 Maya Devi, the mother of

the victim, on the occasion of Rakshabhandan, the victim along

with her husband had come to their house on 15.08.2019 and the

victim had complained about the demand and torture, but the

family members consoled her that whenever they would be

capable, would pay the money. On the same day, the victim and

her husband returned back to the matrimonial house. On

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18.08.2019, the incident of unnatural death of the victim took

place and the FIR was lodged on 19.08.2019.

5. During trial, the prosecution examined altogether 15

witnesses. PW-1 Nathu Ram has categorically supported about the

demand of dowry and torture for the same soon before death.

PW-2 Mukesh Kumar is also specific that the deceased used to

convey him about demand and torture whenever she visited his

house or even on telephone from her matrimonial house. This

witness is specific that even appellant No.1 had demanded dowry

from him. PW-3 Jagir Singh is witness of inquest, PW-4 Balbir was

mediator in the marriage, which has been admitted by DW-1

appellant Ashok Kumar. The prosecution witnesses PW-1, PW-2

and PW-6 had reported the demand and torture to PW-4 also, but

in Court, PW-4 has turned hostile. The reason may be that he was

relation of both the parties since prior to marriage of the

deceased. PW-7 Doctor Sunita Sharma had examined the external

injury on the person of the deceased and has reported some

injuries on the upper portion of body of the deceased. PW-8

Sanjay Kumar is a formal witness. She had carried the viscera for

FSL examination. PW-9 Doctor Satbir Singh had performed post-

mortem on 19.08.2019 itself. He reported that the death was

within 48 hours. Blood was oozing out from the mouth of the

deceased.

6. On the basis of FSL report vide (Ex.P-12) and Pathological

report vide (EX.P-13), it was opined that oregano-phosphorous, a

pesticides was found in the viscera of the deceased.

PW-10 Mahendra Singh and PW-12 Chandra Bhan are formal

witnesses, who have proved documents. PW-11 Atar Kumar is

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Investigating Officer of the case, who has supported the

prosecution case.

7. PW-13 Doctor Sujata had deposed that when the victim was

brought to the hospital, she was already dead. The attendant

accompanying her, disclosed that the victim had vomited prior to

death. PW-14 Navdeep Singh and PW-15 Subhash are formal

witnesses.

8. The defence version is that deceased was a nurse in the

referred hospital. She was not happy with the appellant No.1, who

was a farmer and under depression, she might have swallowed the

poison.

9. PW-6 Maya Devi, mother of the deceased stated that the

deceased was not working in any hospital. To counter her

statement, DW-1 has produced documents from Ex.D-2 to Ex.D-9.

Those documents goes to shows that the deceased was 10 th/12th

pass. She had undergone training of nursing and thereafter, she

joined a hospital in Punjab. The certificate issued by Haryana

Nurses and Midwives Council dated 09.05.2019 (Ex.D-5) shows

that in October 2018, the deceased was admitted as nurse.

However, there is no document to prove the date of joining of the

deceased in the hospital or the fact that she was attending the

hospital regularly even till her death.

10. Other evidences including of the hostile witness shows that

the deceased was residing in her matrimonial house after her

marriage and off an on was visiting to her parents house. There is

no evidence that she had ever visited elsewhere.

11. Now, the point for consideration is whether the prosecution

has proved that there was demand of dowry by the appellants and

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for non-fulfillment of the same, there was torture to the deceased

soon before death within seven years of marriage.

Point No.2- If the aforesaid conditions are fulfilled, the

presumption would be there against the appellants under Section

13-B. Hence, whether the appellants have discharged their burden

to repel the presumption.

12. Learned counsel for the appellants submits that in between

marriage and death, no Panchayat was held for settlement of

dispute. No information or complaint was made to any of the

authorities as admitted by PW-1 and PW-2, rather the FIR was

lodged only after death of the victim, which creates doubt that

infact there was any demand or torture for the same.

13. PW-6, the mother of the victim has deposed that her family

members wanted to save the maternal life of the victim, therefore,

they did not make any official complaint against the conduct of the

appellants, rather were expecting that the matter would be

resolved and would not go to the extent of unnatural death. The

tendency of the family members to save the matrimonial life in

Indian society till any drop of hope survives, is general experience

of the society.

14. The marriage was solemnized on 09.11.2018 and death took

place within a year on 18.08.2019 within a short span of time,

therefore, the prosecution version cannot be thrown away only for

non-panchayat or non-institution of any criminal case of demand

of dowry and torture for the same especially when the prosecution

witnesses are consistent and trustworthy in material particular.

15. Learned counsel for the appellants next contends that PW-4

Balbir to whom the demand of dowry and torture was disclosed

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has not supported the allegation. PW-1, PW-2 and PW-4 are

interested and partisan witnesses. Nothing was recovered from

the place of incident to connect involvement of the appellants in

the crime alleged. Husband had took the deceased to the hospital,

hence intention was evident.

16. Non-support of the prosecution case by PW-4 Balbir, who was

declared hostile by the prosecution would not make any difference

in the facts and circumstances of this case because Balbir was

relation of both sides, rather he had arranged the marriage from

the appellants side being relative of the appellants. Only for PW-4

turning hostile, testimony of PW-1, PW-2 and PW-4 cannot be

disbelieved. In such type of offences of demand of dowry and

torture, mostly the family members are witnesses from whom

demand was made. Therefore, their testimony cannot be

disbelieved for their being family members.

17. If the Investigating Officer did not find any sign of offence at

the place of incident, that would not make the prosecution version

doubtful. In a case of dowry death, unlike a case of murder,

evidence of crime may not be available at the place of incident. It

is not a case with only allegation that the appellants had

committed the murder, but whole allegation is that the appellants

created a torturous situation against the deceased for non-

fulfillment of dowry demand, which forced the deceased to decide

to finish her life. Even a suicidal act of the deceased, which was

result of demand and torture soon before death would be enough

to prove the charge under Section 304-B IPC. There is no

evidence that husband had carried the deceased to the hospital,

except the statement of the husband as DW-1. Assuming that

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husband had carried the deceased to the hospital would not lead

to the conclusion that offence under Section 304-B IPC is not

made out because to constitute the offence of un-natural death

preceded by demand of dowry and torture for the same soon

before death is the only requirement of law. Causing of intentional

death is not necessary.

18. Learned counsel for the appellants next contends that there

is delay in lodging of the FIR.

19. This Court does not find any merit in the aforesaid

submission for the reason that incident took place on 18.08.2019

and FIR was lodged on 19.08.2019 only after the informant

returned from the hospital and got confirmation of unnatural

death of his daughter.

20. Learned counsel for the respondent-State vehemently

supports the judgment of conviction on the ground that the

ingredients of the offences proved are prima facie made out by

the consistent and trustworthy testimony of PW-1, PW-2 and

PW-6. These witnesses are corroborated by medical evidence. The

doctor has found cause of death due to swallowing of pesticides,

which goes to show that it was a case of unnatural death in the

matrimonial house of the appellants within a year of marriage. It

is evident that the prosecution witnesses have deposed that the

deceased used to complain them about demand of rupees one lack

as further dowry and torture for the same mentally and physically.

PW-2 stated that demand was made from him as well by the

appellant No.1.

[2024:RJ-JD:40279] (8 of 12) [CRLAS-590/2024]

21. Now the question is whether statement of the deceased

made to PW-1, PW-2 and PW-6 regarding cause of her death is

admissible in evidence.

22. In Sharad Birdhichand Sarda Vs. State of Maharashtra,

reported in (1984) 4 SCC 116, the Hon'ble Supreme Court

considered the scope and ambit of Section 32 of the Indian

Evidence Act and stated that "Section 32 of the Indian Evidence

Act is an exception to the rule of hearsay and makes admissible

the statement of a person who dies, provided the statement

related to the cause of death or exhibits circumstances leading to

the death".

23. In the present case, the prosecution witnesses PW-1, PW-2

and PW-6 have categorically stated that whenever deceased met

to them she disclosed about demand of rupees one lack by the

appellants and for non-fulfillment of the same, mental and

physical torture meted to her soon before death. The last incident

of report of demand and torture was on the occasion of

Rakshabandhan on 15.08.2019 and death was caused within few

days on 18.08.2019. Therefore, statement of the victim to the

prosecution witnesses aforesaid would clearly fall within the four

corners of Section 32 of the Indian Evidence Act.

24. In Satbir Singh and Ors. Vs. State of Haryana reported

in (2021) 6 SCC 1, the Hon'ble Supreme Court considered the

legislative intent of the term "soon before death" appearing in

Section 304-B IPC and held that soon before death does not mean

immediately before death. Para No.36 of the judgment is being

reproduced below :-

[2024:RJ-JD:40279] (9 of 12) [CRLAS-590/2024]

"36. At the cost of repetition, the law Under Section 304-B, Indian Penal Code read with Section 113-B, Evidence Act can be summarized below :

i. Section 304-B, Indian Penal Code must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

ii. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence Under Section 304-B, Indian Penal Code. Once these ingredients are satisfied, the rebuttable presumption of causality, provided Under Section 113-B, Evidence Act operates against the Accused.

iii. The phrase "soon before" as appearing in Section 304-B, Indian Penal Code cannot be construed to mean 'immediately before'. The prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

iv. Section 304-B, Indian Penal Code does not take a pigeonhole approach in. categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring "otherwise than under normal circumstances" can, in cases, be homicidal or suicidal or accidental.

v. Due to the precarious nature of Section 304-B, Indian Penal Code read with 113-B, Evidence Act, Judges, prosecution and defence should be careful during conduction of trial.

[2024:RJ-JD:40279] (10 of 12) [CRLAS-590/2024]

vi. It is a matter of grave concern that, often, Trial Courts record the statement Under Section 313, Code of Criminal Procedure in a very casual and cursory manner, without specifically questioning the Accused as to his defense. It ought to be noted that the examination of an Accused Under Section 313, Code of Criminal Procedure cannot be treated as a mere procedural formality, as it based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice "audi alteram partem" as it enables the Accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the Accused fairly, with care and caution.

vii. The Court must put incriminating circumstances before the Accused and seek his response. A duty is also cast on the counsel of the Accused to prepare his defense since the inception of the Trial with due caution, keeping in consideration the peculiarities of Section 304-B, Indian Penal Code read with Section 113-B, Evidence Act.

viii. Section 232, Code of Criminal Procedure provides that, "If, after taking the evidence for the prosecution, examining the Accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the Accused committed the offence, the Judge shall record an order of

[2024:RJ-JD:40279] (11 of 12) [CRLAS-590/2024]

acquittal". Such discretion must be utilized by the Trial Courts as an obligation of best efforts.

ix. Once the Trial Court decides that the Accused is not eligible to be acquitted as per the provisions of Section 232, Code of Criminal Procedure, it must move on and fix hearings specifically for 'defence evidence', calling upon the Accused to present his defense as per the procedure provided Under Section 233, Code of Criminal Procedure, which is also an invaluable right provided to the Accused.

x. In the same breath, Trial Courts need to balance other important considerations such as the right to a speedy trial. In this regard, we may caution that the above provisions should not be allowed to be misused as delay tactics.

xi. Apart from the above, the presiding Judge should follow the guidelines laid down by this Court while sentencing and imposing appropriate punishment.

xii. Undoubtedly, as discussed above, the menace of dowry death is increasing day by day. However, it is also observed that sometimes family members of the husband are roped in, even though they have no active role in commission of the offence and are residing at distant places. In these cases, the Court need to be cautious in its approach."

25. Considering the cogent and trustworthy material on the

record, this Court is of the view that it is a case of conviction for

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offence under Section 304-B and 498-A IPC. Therefore, this Court

is not inclined to interfere with the judgment of conviction.

26. Learned counsel for the appellants has relied on the

judgment of the Hon'ble Apex Court in Charan Singh @

Charanjit Singh Vs. State of Uttarakhand (Criminal Appeal

No.447/2012 decided on 20.04.2023). The said judgment is

distinguishable and not applicable in the facts and circumstances

of this case. In Charan Singh's case (supra), the named witness

in FIR was not produced in Court and no appeal was preferred