No dowry or cruelty soon b4 wife’s death! No evidence except bald statements! ALL acquitted in 306, 304B, 498A. Raj HC

Sad story of how a husband is acquitted 21 years AFTER the death of his wife. The Hon. HC scrutinizes the evidence and notices that there is NO evidence to prove either dowry demand or cruelty linking to the death !!

#SoonBeforeDeath #ProsecutionToProve #Cruelty_SoonBeforeDeath #soon_before_death_304B_(1)_of_IPC #acquittal #acquittalIn304B

The Honourable HC appreciates states “….. On an overall analysis of the entire sequence of events, … it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements!!….”

“…Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully…..”

“…In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific …”

“….As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well….”

=========================================

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
J U D G M E N T :

S.B.CRIMINAL APPEAL NO. 221/1997

Ramesh Kumar
vs.
State of Rajasthan

DATE OF ORDER : 12th July, 2016

P R E S E N T
HON’BLE MR.JUSTICE ARUN BHANSALI

Mr.Suresh Kumbhat, for the appellant.
Mr. Arjun Singh, Public Prosecutor.

BY THE COURT:

This appeal is directed against the judgment dated 28/4/1997 passed by the Addl. Sessions Judge, Bali in Sessions Case No.54/95, whereby, the appellant Ramesh Kumar has been convicted for the offence under Sections 498A, 304B and 306 IPC and has been senteced to imprisonment as under:

U/s 498A IPC : 3 years R.I., Rs.1000/- fine, in default 3 months R.I.
U/s 304B IPC : 7 Years R.I., Rs.5000/- fine, in default 6 months R.I.
U/s 306 IPC : 7 Years R.I., Rs.500/- fine, in default 6 months R.I.
All the sentences have been ordered to run concurrently.
By the said judgment, other two accused Shanker Lal and Nopi Bai, parents of appellant Ramesh Kumar, were acquitted.

The brief facts of the case are that on 19/6/1995, Shanker Lal, father of the appellant, lodged an FIR indicating therein that his son Ramesh Kumar (Appellant) was married to Vimla 05 years ago; they are having one daughter Mamta aged about 2 years and a son Ravi aged about 06 months; at about 8.00 am on the said day Ramesh Kumar, his wife Vimla and other family members went to plough the field; at about 10.30 am his son Pratap informed him that he went to the well to start the pump, the pump did not start and Pratap found that one `odna’ (shorter version of saree) was lying near the motor; Pratap went to the well and Ramesh Kumar and Phoola Ram also came to the well and saw that clothes of woman were lying there; they went back to the house to search Ramesh’s wife and children but they were not found; Ramesh Kumar and Phoola Ram informed Pratap that about 10.00 am Vimla told that she is going to give milk to her children and Vimla along with Mamta & Ravi fell into the well.

On the said report proceedings under Section 174 Cr.P.C. were initiated by SDM, Bali and after investigation they lodged FIR under Section 498A and 304B IPC and after investigation challan was filed against appellant Ramesh Kumar, his father Shanker Lal and mother Nopi Bai. After trial, Shanker Lal and Nopi Bai were acquitted and appellant Ramesh Kumar was convicted and sentenced in the manner indicated hereinbefore.

On behalf of the prosecution, 17 witnesses were examined, whereafter, statement of accused under Section 313 Cr.P.C. was recorded; on behalf of the prosecution documents Ex.P/1 to P/32 were produced and defence produced the statement of Smt. Kastu as D-1.

While P.W.4 to P.W.12 were declared hostile, the trial court based on the statements of P.W.1 to P.W.3, Shesha Ram-brother, Mangi Lalfather and Smt. Kastumother, though brother and father during the course of their statement were also declared hostile, and based on the evidence available on record convicted the appellant for the offences under Sections 306 and 498A and 304B IPC with the aid of Section 113A & 113B of the Evidence Act, 1872. The other accused Shanker lal and Nopi Bai were acquitted, as noticed hereinbefore.

It is submitted by the learned counsel for the appellant that a bare perusal of the entire sequence of events as brought on record by the prosecution would clearly show that the prosecution has failed to bring home the charges against the appellant and, therefore, the judgment impugned deserves to be set aside. It is submitted that there is no evidence worth the name regarding the appellant seeking dowry and, therefore, the conviction under Section 498A and 304B cannot be sustained. With reference to the letters Ex.P/2, Ex.P/3 and Ex.P/4 it was submitted that the letters, even if taken as proved, were written between the period 13/4/1993 and 03/07/1993 and the incident has happened on 19/6/1995 i.e. almost after two years and, therefore, the ingredients of Section 304B regarding ‘demand of dowry soon before death’ is totally missing. It was further submitted that a bare reading of the letters would indicate that the same are nowhere connected with the demand of dowry but infact pertain to the amount which was lying with the appellant’s father-in-law along with some more amount as loan and, therefore, from the very nature of the said documents, it cannot be said that any dowry was ever demanded by the appellant. With reference to the statement of Shesha Ram and Mangi Lal, brother and father of deceased Vimla, it was submitted that from both the statements it is ex facie clear that the appellant did not demand any dowry and, therefore, the conviction of the appellant deserves to be set aside.

With reference to the conviction under Section 306 IPC it was submitted that the entire statements of Mangi Lal and Kastu, father and mother of deceased Vimla, clearly indicate about some dissatisfaction from the mother-in-law only and there is no reference whatsoever regarding any dissatisfaction/dispute with the appellant and, therefore, the appellant could not have been convicted for abetment of suicide by deceased Vimla and, therefore, the judgment deserves to be quashed and set aside. It was also submitted that the documents Ex.P/2 to Ex.P/5 which have formed the basis for conviction are full of overwriting, wherein, the Investigating Officer P.W.16 has indicated that he did not get examined said documents and that overwriting in said letters was apparent and, therefore, said documents could not have been relied on by the prosecution.

Reliance was placed on Harpal Singh vs. State of Rajasthan : 2004 (2) R.Cr.D 274, Devender Singh vs. State of Haryana : 2007 (1) Crimes 228 (SC), Manoj Kumar vs. State of Rajasthan : 2008 (1) Cr. L.R.(Raj.) 865, Vikram Singh vs. State of Rajasthan : 2007 (1) Current Judgments (Raj.) Criminal 295, Indrajit Sureshprasad Bind & Ors. vs. State of Gujarat : 2013 Cr.L.R.(SC) 403 and Bakshish Ram & anr. vs. State of Punjab : 2013 Cr.L.R.(SC) 753.

Learned Public Prosecutor vehemently opposed the submissions made by the counsel for the appellant. It was submitted that from the material available on record it is proved beyond reasonable doubt that deceased Vimla along with her two minor children, Mamta and Ravi, committed suicide on account of demand of dowry by the appellant and, therefore, his conviction is justified and the judgment of the trial court does not call for any interference.

I have considered the submissions made by the learned counsel for the parties and have perused the material available on record.

The ingredients of offence under Section 304B IPC pertaining to dowry death, which has got implication in the present case are death of a woman within seven years of marriage otherwise than under normal circumstances, woman being subjected to cruelty and harassment soon before her death in connection with any demand of dowry. Further, Section 113A of the Evidence Act provides for presumption as to abetment of suicide by a married woman in case it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or relatives of her husband had subjected her to cruelty and Section 113B of the Act provides for presumption as to dowry death if it is shown that soon before the death of a woman she was subject by such persons to cruelty and harassment for or in connection with demand of dowry.

A scanning of the evidence available on record indicates that P.W.1 Shesha Ram, brother of deceased Vimla, stated that his uncle Mangi Lal was in service at Bombay; Ramesh was in service at Bhiwandi; he was not aware about the nature of relation between Vimla and her husband as he used to come to the village once in a year; once or twice Vimla told him at Sadri that Ramesh used to give her beating. The said witness then referred to an incident of some Sunday regarding which he did not indicate any date or period and stated that he along with Puna Ram, Durga Ram and his uncle Mangi Lal went to Bhiwandi to meet Ramesh, where Ramesh sought monetary help from his uncle and offered to pay interest; his uncle told Ramesh that as he is in service he did not have the money; Ramesh had asked for Rs.50,000/-. Witness concluded his statement qua the said visit by indicating that that was the conversation which took place between Ramesh and Mangi Lal and there was no other discussion and then stated that Ramesh told his uncle that he will have to give the amount under any circumstance, whereafter, the said witness was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during police investigation as Ex.1. In cross examination by the counsel for the accused, he stated that Vimla told him 6-7 times about beating and as to when Vimla told him about the said aspect he was not aware of the year and time and reiterated that he used to visit village once in a year. When the witness was asked about other details qua Vimla as to birth of her children, he expressed ignorance. On further cross examination regarding the location of Ramesh’s room at Bhiwandi, he expressed ignorance and with regard to his visit he stated that Ramesh and Vimla were sitting happily. He expressed ignorance about Ramesh lending some money to Mangi Lal. Said statement of P.W.1 Shesha Ram is full of contradictions as noticed hereinbefore, he started with the fact that he met Vimla once or twice in Sadri when she informed about beating given by Ramesh, however, in the cross examination he claimed that Vimla told him 6-7 times regarding beating given to her. The said witness is cousin brother of deceased Vimla and is totally unaware of her family circumstances i.e. birth of her children and in those circumstances, the communication between Shehsa Ram and Vimla regarding her personal affairs, when admittedly Shesha Ram visited his village only once in a year from Bombay, specially in view of rural background of the parties involved, appears to be wholly improbable. The witness even qua the meeting indicated that Ramesh asked for monetary help and also offered to pay interest on the said amount, however, nowhere the witness has indicated anything about the point of time, not even the year has been indicated as to when the said incident regarding their visit to Bhiwandi happened, as such, it cannot be said that the alleged demand could be termed as demand for dowry.

Mangi Lal, P.W.2, father of deceased Vimla, indicated that relations between Ramesh and Vimla were (??? ???) normal. Ramesh used to serve at Bombay and Vimla was living at Bali. He alleged that Vimla was living at Bali peacefully for 12 months, whereafter, her in-laws stopped giving food to her. He stated that Ramesh Kumar wrote letters to him demanding Rs.2 lacs, which were handed over to Police and marked as Ex.P/2, Ex.P/3 and Ex.P/4. He also exhibited a letter written by Vimla to the community as Ex.P/5. He also stated that he met Vimla at Bombay, where she stated that everything was peaceful and she has no problem; Ramesh used to ask for Rs.2 lacs sometimes and Rs.35,000/- sometimes. When he stated that father-in-law and mother-in-law of Vimla & her husband forced her to commit suicide, he was declared hostile and was cross examined by Assistant Public Prosecutor, wherein, he exhibited his statement during investigation as Ex.P/6 and admitted the production of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5. In cross examination by the counsel for the accused, most of the allegations pertain to father-in-law and mother-in-law. A look at the statement indicates prodution of letters Ex.P/2, Ex.P/3, Ex.P/4 and Ex.P/5, making statement about demand of Rs.2 lacs and sketchy allegations only pertain to in-laws and not against appellant Ramesh Kumar.

A look at the letters Ex.P/2, Ex.P/3 and Ex.P/4 reveals that while Ex.P/2 is dated 13/4/1993 indicating that Ramesh was not well and that Mangi Lal should come with Rs.2 lacs for treatment and if he does not turn up then they should deem that their son-in-law is no more. The Investigating Officer qua the said letter indicated that there may be interpolation with the figures. The document Ex.P/3 dated 15/6/1993 is a piece of paper, wherein, it is indicated that please pay Rs.2 lacs to Phoola Ram, qua the said piece of paper also the Investigating Officer stated likelihood of interpolation in the figures, which is apparent from the bare look at the said exhibit. The third document is a letter dated 3/7/1993 (Ex.P/4), wherein, it is indicated that Mangi Lal should repay Rs.25,000/- given by Ramesh along with Rs.10,000/-, in total Rs.35,000/- by way of draft. It was indicated that the amount was paid by him two years back and, therefore, he can also lend and that amount would be returned back with interest. The document Ex.P/5 is a Note dated 29/11/1993 written by Vimla addressed to Panchas indicating that she was at her parents home for six months and there should be some settlement. Further reference was made that nobody has turned up from her in-laws to take her back and that she does not want to go back to her in-laws place. In his statement, Mangi Lal made bald statement about demand of Rs.2 lacs by appellant Ramesh and produced document Ex.P/2 to Ex.P/5 for supporting the said contention. However, a bare look at the said documents, as noticed hereinbefore, would indicate that besides the fact that there are apparent interpolations in the figures, from none of the communication it can be deciphered as to demand was in relation to dowry by appellant Ramesh Kumar. On the other hand, the letter Ex.P/4 indicates calling for return of the amount paid by Ramesh Kumar to Mangi Lal and offering interest on the additional amount requested by him. The said document, conclusively indicates that other communications Ex.P/2 & Ex.P/3, apparently cannot be termed as any demand for dowry. Further the indication by the father Mangi Lal regarding his daughter living peacefully at Bombay when he met her, also clearly indicates that in so far as appellant was concerned, there was apparently no dispute between the husband and the wife. The letter/representation dated 29/11/1993 (Ex.P/5) said to have been written by Vimla also does not indicate any demand of dowry from any quarter and only a grievance has been made that her in-laws were not taking her back from her parents’ house.

In view thereof, from the documents produced by Mangi Lal P.W.2 and from his statement also, nothing has emerged so as to bring home the allegations/charge against the appellant Ramesh Kumar.

P.W.3 Kastu,who is mother of deceased indicated that the first child was born to Vimla after about one year of her marriage; the relations of Vimla with her in-laws were normal when she ws sent back after delivery; thereafter, her father-in-law and mother-in-law used to quarrel with her and used to give her beating and would not give food to her. She made reference to communication made to Panchas of the Samaj regarding dispute after Vimla came to Sadri (parental home); Ramesh Kumar had written 2-3 letters, however, she was not aware of the contents thereof and her husband informed her that Ramesh was demanding amount of money, whereafter, Ramesh took Vimla to Bali and from there to Bombay. She alleged that husband of Vimla and her father-in-law and mother-in-law used to give beating and used to demand money. In cross examination she stated that Vimla returned from Bombay to Bali and she did not indicate anything about beating being given to her. She stated about beating given by mother-in-law when Ramesh was at Bombay; Ramesh took Vimla to Bombay where she remained for about 1 -2 years and a son was born to her at Bombay. A bare look at the said statement of Kastu, it can be deciphered that she made reference about relations being normal till the birth of first child and thereafter, when Vimla went to her in-laws place there was some dispute and when she returned back to her parental house and remained there for six months. Thereafter, Ramesh took her back and from there they went to Bombay and stayed at Bombay for over two years and relations were normal inasmuch as Vimla gave birth to her second child at Bombay i.e. place of her husband and whereafter, the incident has happened. The letters which have been written over a period of seven months during the period 3.4.1993 to 29.11.1993, pertain to the period when Vimla was at her parental home. Besides above, there is no other evidence as all other witnesses i.e. P.W.4 to P.W.12 have been declared hostile and P.W.13 to P.W.17 are official witnesses.

On an overall analysis of the entire sequence of events, as noticed hereinbefore, it is apparent that prosecution has failed to produce/bring on record any evidence indicating specific demand of dowry soon before the death of Vimla. In fact, in the entire statements of the above three witnesses, except for the statement that there is no custom of giving dowry in their community, there is no reference of the word dowry in their statements. Further, the few allegations which have been made pertaining to alleged ill treatment by father-in-law and mother-in-law like not giving food to Vimla, those allegations specifically pertains to the period immediately after the birth of first child, after first year of marriage and, thereafter, there is specific evidence regarding the fact that Ramesh thereafter took Vimla to Bombay and at Bombay they were living peacefully.

In those circumstances, apparently, it cannot be said from the evidence available on record that there was any demand of dowry on the part of the appellant Ramesh Kumar. So far as the allegation about beating being given by the appellant and father-in-law and mother-in-law to the deceased Vimla are concerned, the statements are too general and non-specific inasmuch as it is admitted on record that Ramesh used to reside at Bhiwandi during the period when allegation of giving beating has been indicated whereas Vimla is stated to be staying at Sadri with her father-in-law and mother-in-law and in the letter Ex.P/5 dated 29/11/1993 written to Panchas also there is no reference of any beating being given to deceased Vimla and,therefore, the prosecution has failed to being home even the said allegation against appellant Ramesh Kumar.

Even as per the evidence led by the prosecution, the demand, if any, (though it has been held hereinbefore that there was no such demand) was made between the period 13/4/1993 to 3/7/1993 based on Ex.P/2 to Ex.P/4, whereas, Vimla committed suicide on 19/6/1995 i.e. after almost two years.

Hon’ble Supreme Court in State of Karnataka vs. Dattaraj & Ors. : 2016 (2) RLW 1573 (SC) held that as the demand was made about two years before the occurrence, the same was too remote to the occurrence and, therefore, would not satisfy the requirement of ‘soon before her death’ as contemplated under Section 304B (1) of IPC. The Hon’ble Supreme Court further with reference to its judgment in the case of Appasaheb vs. State of Maharashtra : (2007) 9 SCC 721 and Rajinder Singh vs. State of Punjab : (2015) 6 SCC 477 refused to consider the demands made by the accused in the said cases for purchasing the agricultural land and also with reference to sewing machine to be treated as demands constituting ‘dowry’.

As discussed extensively, there is no evidence available on record about any ill treatment/harassment by appellant except for bald statements about his giving beating to deceased Vimla. As already noticed the evidence only points to some such incident by the father-in-law/mother-in-law for which also there is no reference in Ex.P/5 and, therefore, there is no iota of evidence regarding abetment to suicide as well.

The trial court while making reference to the various statements, frowning on the conduct of the witnesses, who turned hostile specially P.W.4 Prakash, based on drawing presumption under Section 113A and 113B of the Evidence Act, convicted the accused.

The Hon’ble Supreme Court in the case of Bakshish Ram (supra) held that there must be material to show that soon before her death the victim was subjected to cruelty or harassment, in other words the prosecution has to rule out the possibility of a natural and accidental death so as to bring it within the purview of death occurring other than in normal circumstances.

In the present case, the prosecution was obliged to prove that appellant had subjected the deceased to cruelty/soon before the occurrence there was cruelty or harassment and in view of the fact that prosecution has failed to prove that deceased Vimla was subjected to cruelty by the appellant/subjected to cruelty or harassment soon before her death in connection with any demand of dowry, the presumption under Section 113A and 113B of the Evidence Act does not arise and, therefore, the findings recorded by the trial court cannot be sustained.

In view of the above discussion, this Court is satisfied that prosecution has failed to establish the guilt of the appellant beyond reasonable doubt and the trial court committed an error in convicting the appellant and same is, therefore, liable to be set aside.

Accordingly, the appeal is allowed, the conviction of appellant Ramesh Kumar for the offences punishable under Sections 306, 304B and 498A IPC is set aside. The amount of fine, if paid by the appellant, be refunded back to him.

(ARUN BHANSALI), J.

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