Rajasthan High Court - Jaipur
Dhanna Ram And Ors. vs The State Of Rajasthan on 16 May, 1996
Equivalent citations: 1996(1)WLN434
JUDGMENT A.S. Godara, J.
1. This jail appeal has been filed by the appellants-accused Dhanna Ram and Kheraj Ram through the jail against the judgment dated 29.4.1995 passed by the learned Addl. Sessions Judge, Barmer in Sessions Case No. 41/93 whereby each of them has been convicted under Sections 304B/34 and 498A/34, I.P.C. and a sentence of 10 years' S.I. and a fine of Rs. 200/- and, in default of payment of fine, one month's S.I. as well as sentence of 2 years' S.I. and a fine of Rs. 100/- and, in default of payment of fine, S.I. of 15 days, respectively was awarded to each accused.
2. Briefly stated, the prosecution case is as follows: P.W. lGhansi Ram Tehsildar, Chohtan District Banner forwarded Ex.P. 1 report along with Ex.P. 6 post-mortem report, P.W. 7 report of medical officer, Ex.P 8 site inspection memo Ex.P.9 site plan, Ex.P. 10 inquest report and Ex.Pll panchnama, to the officer-in- charge, Police Station, Sedwa to the effect that in pursuance of Inquest No. 3/93 of Police Station, Sedwa relating to death of Smt. Chooni w/o Kheraj, it was reminded that earlier also vide his office letter No. 692 dated 27.8.93 it was requested that an F.I.R. may be registered against four accused persons named therein and it was again reminded and insisted upon the Officer-in-charge that the following four persons were responsible for the death of Smt. Chooni and, therefore, an F.I.R. be registered and legal action be initiated: 1. Shri Dhanna s/o Likhina Jat, r/o Khambrai 2. Smt. Kami v/o Dhanna Jat, r/b Khambrai 3.ShriThakr s/o Sagra Jat, r/o Bamrla 4. Smt. Lachhi w/o Segra Jat, r/o Bamrla. On receipt of Ex.P. 1 on 22.10.93 at 6 P.M., P.W.5 Daulat Singh, Officer-in-charge, Police Station, Sedwa registered F.I.R. No. 54/93 ( Ex.P.2) under Sections 304B and 201, I.P.C. and started investigation. He also inspected the site and prepared Ex.P. 3 site plan. Both the appellants accused were arrested. As a result of investigation, it was revealed that Smt. Chooni, who was daughter of P.W. 8 Gaina Ram and P.W. 2 Smt. Dami, was married to the appellant Kheraj who is brother of his co- appellant Dhanna Ram. P.W. 4 Khuma Ram, who is son of Gaina Ram, was already married to Smt. Puro who is a sister of appellants but, for quite some time, Smt. Puro had deserted Khuma Ram and was leaving at her parents, house. The marriage of Smt. Chooni was celebrated in the early year of 1993 before Holi. She was brought back on the festival of Holi and was sent back to her inlaws' house with kesa. Again on following "Akshaya Tritiya", Khuma Ram fetched back Smt. Chooni to her parents' house. It was alleged by the parents and the brother of the deceased Smt. Chooni that she was complaining that the appellants and their brothers used to taunt and scold her for not bringing valuable clothes, ornaments etc. as dowry and she used to be physically tortured and harassed. Last time, after 7 & 8 days' of return of Smt. Chooni, as above, appellant Kheraj came to his inlaw's house at the village Bamarli and insisted for sending Smt. Chooni with him. However, Smt. Chooni's parents told him that they would arrange for new clothes etc and would only send her on the assurance of four or more persons so that she is not harassed. Kheraj whet away alone. After 7 & 8 days, both the appellants came to the house of Gaina Ram and tried to take back Smt. Chooni forcibly with them. However, her parents were not agreeable to it. Appellants beat P.Ws. Gaina Ram Smt. Dami and Khuma Ram who unsuccessful attempted to resist and, lastly appellants left with Smt. Chooni. This incident was allegedly reported to the Sedwa Police Station on 3.5.93 where at F.I.R. No. 17/93 under Sections 353/323, I.P.C. was registered. Smt. Chooni was kept in the night at ogala whereat a well and field of the appellants were situate and, in the next night, she was taken to the 'dhanf of Sagra Ram in the village Bamarli itself which is also village of Gaina Ram. It was in the morning of 5.5.93 at 6 a.M., that Smt. Chooni, as alleged, jumped into the well, situate nearby to the dhani and in the field of Sagra Ram, She was taken out alive but due to serious injuries, she succumbed to her injuries. The appellant Dhanna Ram lodged a written report at the said Police Station, to the effect that his brother's appellant Kheraj Ram's wife Smt. Chooni had committed suicide by jumping into a well and Inquest report No. 3/93 was registered and the Tehsildar-cum-Executive Magistrate, Chohtan conducted inquest and, on examination of witnesses and the autopsy conducted, Smt. Chooni was found to have died because of injuries to her left kidney and large intestine, proving to be fatal, so it was found that the deceased was subjected to cruelty as she had not brought enought dowry and hence she had met with her death otherwise than in normal circumstances within 7 years of her marriage. Om completion of investigation, a charge-sheet under Sections 306 and 498A, I.P.C. was presented against the appellant-accused persons, in the court of the then Addl. Munsif & Judicial Magistrate, First Class, Barmer. Since offence under Section 306, I.P.C. is exclusively triable by the Court of Sessions, so, the accused were committed to the court of the learned Addl. Sessions Judge, Barmer for trial.
3. In the trial court, initially both the appellant- accused persons were charged with the commission of the offences punishable under Sections 306 and 498A I.P.C. to which each of them pleaded not guilty and claimed to be tried and hence trial was commenced.
4. During the course of pendency of trial, the learned Addl. P.P. moved an application alleging that as a result of investigation and as was borne out of the evidence of the witnesses examined during the trial that both Smt. Kanu w/o Dhanna as well as Lachhi w/o Sagra were also co-accused along with the appellants--accused. It was further requested that all these accused persons, instead of being charged with the commission of offence punishable under Section 306, I.P.C. be charged with the commission of an offence punishable under Section 302, I.P.C as well. After hearing both the parties, vide its order dated 17.9.94, the learned trial judge while accepting the application, ordered that both Dhanna and Kheraj be charged with the Commission or offence punishable under Section 302/34 I.P.C. instead of Section 306, I.P.C. Besides, congnlzance of commission of offence punishable under Sections 302 and 498A read with Section 34, I.P.C. was taken against Smt. Kami as well as Smt. Lachhi and they were summoned to face the trial.
5. Accordingly, on appearance of all the accused persons, both Kheraj and Dhanna were charged with an offence punishable under Section 302/34, I.P.C. besides, under Section 498A I.P.C. while Lachhi and Kanu were charged with the commissions of offences punishable under Sections 302/34 and 498A, I.P.C. All of them pleaded not guilty and, at the same time, claimed to be tried. Hence this trial was completed.
6. The prosecution examined as many as 10 witnesses, who are, P.W. 1 Ghansi Ram, P.W. 2 Smt. Dami, P.W. 3 Sona Ram, P.W. 4 Khuma Ram, P.W. 5 Daulat Singh, P.W. 6 Dr. OP. Khatri. P.W. 7 Chetan Ram, P.W.8 Gaina Ram, P.W. 9 Lumba Ram and P.W. 10 Ranveer Singh.
7. Accused persons were examined under Section 313, Cr.P.C and they denied that Smt. Chooni was ever subjected to as cruelty and that any demand regarding dowry, properly or any valuable thing was ever made from her. It was further stated that Smt. Choonl was of a fickle and weak mind because of mental dis-order, she was mentally up-set. She used to stray often and she herself without any rhyme or reason went to the well and jumped into the same. It was further stated that D.W. 1 Ghamanda Ram and one Sagra took out Smt. Chooni from the well. As a result of fall into the well she was hurt and succumbed to the injuries. They brushed aside the prosecution evidence as being concocted and false one. They examined D.W. 1 Ghamanda Ram, D.W. 2 Sanga and D.W. 3 Badra Ram in their defence.
8. After hearing both the parties, vide the impugned judgment dated 29.4.95, the learned trial judge, discarding the prosecution evidence, acquitted Smt. Lachhi and Smt. Kanu of offences punishable under Sections 302 and 498A, I.P.C. Appellants-accused were not found to be guilty for commission of offence under Section 302/34 I.P.C. and instead they were convicted under Sections 304B/34 and 498A/34 I.P.C. Consequently, the learned trial Judge imposed sentences on both the accused-appellants as referred hereinbefore. Hence this Jail Appeal.
9. The learned Amicus curiae has vehemently contended that, initially, accused-persons were challenged for commissions of offences punishable under Sections 306 and 498A, I.P.C. but, on the request of the learned Addl. P.P., Smt. Lachhi and Smt. Kanu were also summoned to face the trial. They were all charged with the offence of committing murder of Smt. Chooni. However, the learned trial judge has concluded that there was absolutely no evidence against Smt. Lachhi and Smt. Kanu, They were acquitted Besides, both the accused have also been acquitted of offence punishable under Section 302/34, I.P.C. Appellants were never charged with the commission of an offence punishable under Section 304B, I.P.C. It is also argued that the prosecution, initially came forward with a story that all the accused persons, in furtherance of a common intention to murder Smt. Chooni, subjected Chooni to murderous assault in the 'dhani' of Sagra Ram and thereafter, she was put on a cot and was thrown into the well situate nearby the said dhani. P.W. 9 Lumba Ram, along with one Rugh Nath, who was not examined by the prosecution, who is also a relation of P.W. 8 Gaina Ram, father of the deceased, was alleged to be an eye-witness of the occurrence but, in the impugned judgment, the learned trial judge brushed aside this story of the prosecution. It is also argued that Smt. Puro who is sister of the appellants, was married to P.W. 4 Khuma Ram much prior to the marriage of Chooni with accused Kheraj Ram. Any how, some differences arose between the families of Likhma and Gaina Ram, as a result of which Likhma took away his daughter Smt. Puro to his house. Thereafter, admittedly, Smt. Puro never returned to her in-laws' house. Even then, as the prosecution story reveals, the learned Amicus Curiae further argued that the accused as well his family members never wished to desert Smt. Chooni. They wanted to , as any rate, keep Smt. Chooni with Kheraj Ram. They apprehended that Gaina Ram also, as a retaliatory action might not send Smt. Chooni to her in-laws' house. Smt. Chooni was time and again, being carried to her parents house much against the wishes of appellant, family members. Appellant Kheraj Ram tried his level best again and again to go to his in-laws' house to fetch his wife Smt. Chooni with him. Therefore, it is argued that there was absolutely no question of demanding any dowry in the form of valuable things, ornaments etc. Had it been so, the appellant would have naturally deserted and driven Smt. Chooni from their house to her parents house, whereas, on the contrary, they were Insistent for keeping Chooni at their house. Prior to the alleged incident, although P.W. 2 Dami, P.W, 4 Khuma Ram and P.W. 8 Gaina Ram have deposed that they were subjected to an assault by the appellants but their is absolutely no proof in the form of lodging of police report or their medical examination in proof of their being subjected to any such assault. Even if the F.I.R.No. 17/93, Police Station, Sedwa, filed along with the charge-sheet, assuming it to be a public document, is taken into consideration, appellants forcibly took Smt. Chooni along with them and, on being resisted, caused simple injuries, as alleged. This shows that the appellants were never after any valuable property or things but were motivated by the sole intent, purpose and conduct of keeping Smt. Chooni with her husband Kheraj appellant.
10. Similarly, Smt. Chooni was never subjected to any physical harm, beating or harassment and, a false story of demanding valuable articles, ornaments in the form of dowry and consequential harassment was cooked up to get the appellants and their family members involved in such a serious but false case. The learned trial Judge fell into error and, prima facie, there being no proof that accused persons had ever subjected Smt. Chooni to harassment, beating etc., raising a demand of any dowry as such and there was absolutely no case of meeting out a cruel treatment warranted by Section 498A I.P.C.
11. Besides/when prosecution failed to prove that there was any demand for dowry etc. and in prosecution of such an demand Smt. Chooni was subjected to cruelty as above, a mere unnatural death, by way of committing one's suicide, no presumption as provided under Section 113A or Section 113B of the Indian Evidence Act can come to the aid of the prosecution and hence the prosecution prima facie failed to prove that Smt. Chooni was ever subjected to cruelty or harassment by the appellants and such cruelty or harassment was for or in connection with demand of dowry. That being so, merely because Smt. Chooni had not died under normal circumstances and her death having occurred within seven years of her marriage, will not suffice to attract Section 304B, I.P.C. Besides, as the medical evidence reveals, Smt. Chooni had four external injuries as are borne out of Ex. P. 6 postmortem report and her death was result of injury to left kidney as well as large intestine resulting in internal bleeding.
12. Therefore, it is also argued that such injuries could be caused by Jumping Into the well and deceased's striking against cement-tank lying in the well or any other hard substance as well. Once, statement of P.W. 9 Lumba, who is not only a chance witness but whose conduct as well as relationship with P.W. 8 Gaina Ram, makes him a totally unreliable witness and as a result, the learned trial judge also, not relying on his evidence, proceeded to acquit the accused persons of offence punishable under Section 302/34, I.P.C. there is no there direct or circumstantial evidence worth the name to hold the accused persons guilty of the aforesaid offences. When the prosecution miserably failed to discharge its initial burden, the appellants accused cannot be called upon to straight away prove their innocence.
13. On the contrary, the learned Public Prosecutor has with equal vehemence supported the impugned judgment and argued that Smt. Chooni was subjected to mental as well physical harassment and cruelty on the ground that she had not brought dowry to their satisfaction and hence the impugned judgment suffers from no infirmity or illegality.
14. I have given my earnest consideration to the rival contentions advanced by the learned counsel for the parties.
15. Before embarking on the evidence and adjudication on merit, there is no denial of the fact that Smt. Chooni met with a death which is otherwise than a normal one. As regards cause of her death, P.W. 7 Dr. O.P. Khatri, who was one of the members of the Medical Board conducting the autopsy of the dead body, clearly stated that Smt. Chooni's dead body bore 4 injuries and, on internal examination, her left kidney and the large intestine were found to be lacerated and injured and so her death resulted from excessive bleeding. Although, at the time of post-mortem, belatedly performed, tongue of the deceased was found to be protruded but nothing turns out of it since the learned trial Judge has rightly held that there was absolutely no evidence, worth the name, to hold that Smt. Chooni was murdered and that the appellants by themselves with their co-accused already acquitted, formed any common intention and in furtherance of such a common intention committed her murder. Initially Ex. P. 1 report was lodged by the Executive Magistrate, Chohtan. He did not blame the. appellant Kheraj Ram. A case under Sections 304B and 201, I.P.C. was registered. On completion of investigation, a charge-sheet under Sections 306 and 498A , I.P.C. war lodged. Consequently, appellants were charged with the commission of offences under Sections 306 and 498A, I.P.C. Subsequently on the application of prosecution cognizance of offences under Sections 302 and 498A, I.P.C. was taken against both the said ladies. Lastly, they were all charged for commission of murder with the aid of Section 34, I.P.C. besides under Section 498A, I.P.C. However, the learned trial judge did not find any evidence to hold accused, under trial, liable for commission of murder and they all stand acquitted of this charge. Besides, both the lady accused were also not found guilty of commission of offence under Section 498A I.P.C. and were acquitted. Such acquittal has not been challenged by the State. Therefore, this part of the prosecution story, mainly based on the direct testimony of P.W. 9 Loomba, a relation of Gaina Ram and supported by P.W.S Khooma Ram and Smt. Dami has been totally discarded. No appellant was charged with the commission of offence punishable under Section 304B, I.P.C.
16. Now reverting to the prosecution case, it is pertinent to discuss the prosecution evidence.
17. As regards the alleged demand of dowry and, as a result of meeting out cruel and harassing treatment to Smt. Chooni, statements of her father P.W. 8 Gaina Ram, her mother P.W. 2 Smt. Dami and her brother P.W. 4 Khooma Ram are directly relevant.
18. P.W.2 Smt. Dami, firstly examined on 18.2.94, after taking cognizance against two ladies accused persons, was again examined on 21.11.94. She stated that in the first instance, after marriage of Smt. Choonl with appellant Kheraj Ram, she was sent along with Kheraj Ram at the time of her marriage. In the first instance, on the festival of Holi Smt. Choonl returned to her parents' house and lived with them for about 4 or 5 days. Thereafter , at the insistence of appellant Kheraj, she was sent back to her in-laws' house. P.W. 4 Khooma Ram, as is also statement of Khooma Ram, was sent to fetch Smt. Chooni in the month of Balshakh but the appellants refused to send Smt. Chooni to her parents house and after great entreaties, they agreed to send Smt. Chooni alongwith Kheraj. After 7 or 8 days Kheraj came their house and insisted for sending Smt. Chooni with him. He stayed in the night. In the next morning after taking tea, Kheraj insisted that Smt. Chooni be sent along with him but they refused to send her telling him that they will arrange for ornaments for which Smt. Choonl was being taunted and scolded for. On this Kheraj returned. It was on the 12th day of Balshakh Vadi that both appellants came to their house to fetch Smt. Chooni with them. On resistence, they assaulted P.W. 8 Gaina Ram and P.W. 4 Khooma Ram as well as P.W. 2 Smt. Daml herself. They forcibly took Smt. Chooni with them. This story is almost corroborated by the statements of P.W. 4 Khooma Ram as well as P.W. 8 Gaina Ram.
19. They have all stated that on 3.5.93, when the appellants lastly came to their house, inspite of their protest, appellants attempted to forcibly take Smt. Chooni along with them to which they resisted and, hence they were subjected to beating and, as a result of which, they were hurt.
20. P.W. 8 Gaina Ram has clearly stated that he reached the Police Station, Sedwa and lodged F.I.R. No. 17/93 on 5.5.93. This F.I.R., being a public record, is filed along with the charge- sheet filed against the appellants. There is absolutely no mention of the fact that the appellants were taunting and scolding Smt. Chooni for not having brought enough dowry and that she was being physically or mentally meted out any ill or cruel treatment and was being tortured and harassed' as such,
21. Smt. Daml has further made a sweeping statement that the in-laws' of Smt. Chooni taunted her as she had not brought any ornaments in dowry and hence Smt. Chooni was being subjected to harassment. She in the last stated that Smt. Chooni had narrated this story to her.
22. She stated, in her cross-examination, that her son P.W. 4 Khooma Ram was married to the daughter of Likhma Ram, who is father of the appellants. Likhma Ram with the aid of police, took her daughter Smt. Puro to his house and since then she was living at her parents' house. She stated that father of the appellant Likhma did not bring any ornaments for Smt. Chooni at the time of her marriage. On the contrary, P.W. 4 Khooma Ram clearly stated in his cross-examination that Likhma had brought 'kadia' and "hansli' at the time of marriage of Smt. Chooni and those very ornaments were given to Smt. Puro at the time of his own marriage. Smt. Dami also admitted in her cross-examination that Smt. Chooni re-visited her house for the first time, after her marriage, she did not complain that she was subjected to any cruelty or there was any demand or complaint from the side of her In-laws' in regard to dowry or otherwise. They have all stated that, at the second time, when Khooma Ram went to fetch Smt. Chooni again to their house, the appellants refused to allow her to send along with him. Even then on the Insistence of Khooma Ram, Smt. Chooni had been again sent to her parents house. Smt. Dami did not disclose in her statement dated 18.2.94 that at the time when the appellants lastly took Smt. Chooni along with them, they had also threatened that Smt. Chooni would be done to death within 2 or 3 days. On the contrary, she made an Improvement over her previous statement in her statement dated 21.11.94 and stated that while taking away Smt. Chooni forcibly along with them appellants threatened that Smt. Chooni would be killed to death. She falsely stated in her cross- examination that at the time Smt. Chooni was sent to her in-laws house for the first time after marriage, she did not have any ornaments to wear, whereas P.W. 4 Khooma Ram has, though very reluctantly, admitted that two silver ornaments to be worn in the neck and legs, were brought at the time of marriage of Smt. Chooni by the appellant. P.W. 4 Khooma Ram also corroborated the statement of his mother Smt. Dami, as above, and stated that when, on the eve of 'Akhshya Tritiya', he went to fetch Smt. Chooni. Appellants refused to send her along with him and he was told that since they had not given ornaments and clothes to Smt. Chooni, they would not send her along with him. Smt. Chooni also told him that she was "taunted and scolded for not bringing ornaments and that she was subjected to beating 2 or 3 times. Any how, he prevailed upon the appellants and brought her to his house. After 6 or 7 days Kheraj turned up to take back Smt. Chooni along with him but they promised that they would be getting prepared some ornaments and new clothes for her and thereafter she would be sent back. This annoyed Kheraj and he went back. This admission also shows that Kheraj was never greedy of any dowry in the form of new clothes or the ornaments, as is the prosecution. He was throughout insistent for not sending back Smt. Chooni and he was insistent for keeping her at his house. He, time and again, tried his level best to take back his married wife Smt. Chooni. On 3.5.93, as is the statement of P.W. 2 Smt. Dami, appellants came to their house and they wanted to take away forcibly Smt. Chooni along with them. They resisted. As a result, appellants gave beating to him as well as his parents. He also admitted in his cross-examination that he was already married to the sister of the appellants.
23. P.W. 8 Gaina Ram also supported the aforesaid statements of his wife and son and further stated that Smt. Chooni, on the eve of Akhshya Tritiya, when brought to her house, told them that the appellants Smt. Kalu, who is wife of Dhanna Ram appellant, always taunted and scolded her for not bringing clothes and ornaments, although she (Smt. Chooni) had toiled hard to have earned a lot for her parents for the last 15 to 16 years. Here it is to be noted that Smt. Darni has clearly stated that Smt. Chooni did not complaint in this respect at the time of her first visit to their house. So this is an afterthought improvement on the part of Gaina Ram. He further stated that Smt. Chooni told them at the time of her second visit that she was so taunted and scolded for not bringing enough ornaments and clothes in the form of dowry and she was subjected to beating and as such harassment. P.W. 4 Khooma Ram also similarly narrated statement of Smt. Chooni to him.
24. He also stated that, after returning of Smt. Choonl to her parents' house on the second occasion, after 6 or 7 days, Kheraj Ram-appellant came to take back Smt. Chooni to his house on which he was told that he was not sending his daughter along with him and since they were harassing her demanding dowry, so he would collect some respectable persons and could then send her In their presence. Kheraj got annoyed and went back. After 4 or 5 days, i.e. on 3.5.93, appellants came to his house armed with lathi and an axe, as was never the prosecution case, and they assaulted him. When Smt. Dami and Khooma Ram came to his rescue, they were also assaulted. He also stated that P.W. 3 Sona Ram, who is his son-in-law, had come to their rescue. They returned with Smt. Choonl. He stated that he lodged F.I.R. at the Police Station Sedwa (No. 17/93) on the next day. He was also medically examined at. the Chohtan hospital.
25. On 6.5.93, he learnt that Chooni was killed and so he went to the 'dhani' of Sagra Ram whereat the appellants were seated and dead body of Smt. Chooni was lying in a Jhumpa. A police constable was also present there. He stayed in the night and on the next day, the Offlcer-in-charge of the Police Station, Sedwa, Dy. S.P. and the Tehsildar reached the spot. He immediately told the police that the appellants had killed Smt. Chooni. Here it is again to be mentioned that there is no F.I.R., complaint or statement of any body that P.W. 8 Gaina Ram did in fact report to the police-or the Executive Magistrate-cum-Tehsildar that his daughter was done to death by the appellants. However, he stated that P.W. 9 Loomba and one Rughnath told him that Smt. Chooni was killed and thrown into the well. Here it is to be appreciated that this story of killing Smt. Chooni and then throwing into the well was not borne out by the investigation. Besides, the learned trial Judge, vide his impugned judgment, concluded that the testimony of P.W. 9 Loomba, who is none else but the son of the sister of P.W. 8 Galna Ram, falsely stated that he had seen Smt. Chooni being subjected to cruelty at the dhanl of Sagra Ram and thereafter she was taken on a cot and thrown into the well. Loomba did not report the matter to P.W. 8 Gaina Ram immediately. He was a chance witness. He did not have any business to be present at or near the dhanl of Sagra Ram. Therefore, when Raghunath was not examined in the trial court, statement of P.W. 9 Loomba who is interested in P.W. 8 Gaina Ram, being most unnatural and a chance witness, inspires no confidence. So rightly discarded by the learned trial judge and, therefore, there is no reason to rely upon his statement. However it is to be noted that P.W. 2 Smt. Dami, P.W. 4 Khooma Ram, and P.W. 8 Gaina Ram have all stated, on the basis of so called statement of P.W. 9 Loomaba, that Smt. Choonl was done to death by the appellants as well as Smt. Kanu and Smt. Lachhi. This version has been disbelieved by the learned trial judge. This is an afterthought story on the part of these witnesses who further alleged that the accused-appellants threatened that Smt. Chooni is to be done to death shortly. This sort of conduct on the part of these witnesses further leads to the conclusion that they were bent upon wrecking vengeance on the appellants after the unfortunate death of Smt. Chooni.
26. As is the statement of P.W. 8 Gaina Ram, he lodged F.I.R., No. 17/93 report at the Police Station, Sedwa on 5.5.93 but he never alleged that Smt. Chooni was being ever subjected to cruelty and any demand was being made for dowry or that she was being taunted or scolded for not having brought enough dowry. PW. 8 Gaina Ram was present at the time of preparation of the inquest report by the Executive Magistrate-cum-Tehsildar as well as Dy. S.P. and the Officer-in-charge of the Police Station Sedwa and he did not come forward with the stoiy that the appellants or any of their relations ever demanded or taunted Smt. Chooni for not having brought enough dowry. As stated above, P.W. 9 Loomba is a false and created witness and his version is wholly unreliable. His examination only shows that the prosecution, by hook and crook, wanted to involve the accused in a murder case but, in absence of any evidence that Smt. Chooni was actually done to death by the appellants or any or their relations, this stoiy has been brushed aside as such and, therefore, his statement needs no further elaboration.
27. P.W. 3 Sona Ram, who is son-in-law of P.W. 2 Smt. Dami and P.W. 8 Gaina Ram, is resident of village Ogala. He stated that on 3.5.93, he was returning from the village Akal and when he reached near the dhani of his in-laws', he heard the cries of his father-in-law P.,W.8 Gaina Ram. He immediately entered the dhani. He found that the appellants were beating Gaina Ram, Smt. Dami and Khooma Ram. He made entreaties before the appellants and saved them. Appellants took away Smt.. Chooni with them. He also lending support to the statement of P.W. 2 Smt. Dami stated that the appellants threatened that Smt. Chooni would be done to death within 2 or 3 days. She was done to death on the next day as was told by P.W. 9 Loomba. He is a chance witness. Besides, he is son-in-law of P.W. 8 Gaina Ram. He further stated that Kheraj caught Smt. Chooni by her arms and forcibly took her away. He also stated that P.W. 8 Gaina Ram went to the Police Station and lodged a report there.
28. On the basis of prosecution evidence discussed above, statements of other witnesses being formal for the present decision, it cannot be denied that Smt. Chooni was married to appellant Kheraj Ram and Gaina Ram and Smt. Dami were insistent upon bringing Smt. Chooni to their house again and again and they were also reluctant to send back Smt. Chooni to the house of her husband- appellant Kheraj Ram. Any how, Kheraj Raj was insistent for taking back and keeping Smt. Chooni of his house and was always reluctant to send her back to her parents' house. He did return back when Smt. Chooni was not being sent with him. On 3.5.93, as stated by P.W. 8 Gaina Ram, P.W. 4 Khooma Ram and P.W. 2 Smt. Dami, besides P.W.3 Sona Ram, as is also borne out of F.I.R. 17/93, appellants came to the dhani of Gaina Ram did the insisted for sending Smt. Chooni with them as they promised on the earlier visit of appellant Kheraj Ram. Any how, they were still reluctant to send back Smt. Chooni with them. This compelled the appellants to forcibly take way Smt. Chooni with them. Smt. Chooni never advanced any resistence nor there is an iota of evidence to suggest that Smt. Ghooni was ever unwilling, to return and live with her husband Kheraj Ram. Any how, she was under great trawma as her parents as well as her in-laws' including her husband Kheraj Ram were opposing her being sent back along with her husband to her in-laws' house or vice versa. In this context, it is also very relevant that Smt. Puro,. sister of the appellants, was so married to P.W. 4 Khooma Ram much before the marriage of Smt. Chooni. Likhma, father of the appellants took away Smt. Puro, with the aid of police, back to his house since then neither Khooma Ram nor nis parents either tried to bring back Smt. Puro to their house. This was also an apparent case of non-sending of Smt. Chooni along with her married husband Kheraj Ram whose sister Smt. Puro was not being brought to the house of Khooma Ram and she was living in a deserted condition.
29. Here it is to be noted that the defence has also advanced a theory that Smt. Chooni suffered from a mental disorderliness and she, because of intermilent strocks, strayed away, at times and have unsuccessfully tried to establish that she strayed away because of such a mental condition, and accidentally fell into the well. This theory has been consistently denied by P.W. 8 Gaina Ram, P.W. 2 Smt. Dami and P.W. 4 Khooma Ram as well as P.,W. 3 Sona Ram. There is absolutely no evidence worth the name to believe this theory. Therefore, this defence theory has been rightly disbelieved and discarded by the learned trial judge and there is nothing on record to dis-agree with this finding of the learned trial judge.
30. As regards marriage of Smt. Chooni with appellant in the early year 1993 is concerned, is undisputed. So her death occurred within 7 years of her marriage. Her death was in circumstances otherwise than normal. So she met with an unnatural death by jumping into the well. There is absolutely no evidence that she was thrown into the well either dead or alive. As discussed above, P.W. 2 Smt. Dami, P.W. 4 Khooma Ram- and P.W. 8 Gaina Ram, being closest relations of Smt. Chooni, are highly interested but this relationship and interestedness, by itself, does not enable to accept the same with suspicion or any stigma. However, none of them is witness to the actual occurrence. P.W. 8 Gaina Ram admits that he went to the house of Sagra Ram on 6.5.93 itself and found the dead body of Smt. Chooni lying in the 'Jhoompa'. The police turned up on 7.5.93 and completed all formalities. He did not lodge any report that his daughter was so subjected to cruelty and there was any demand of dowry, if any. The appellants did not try to dispose of the body without the knowledge of Gaina Ram and without legal formalities having been completed. It was the appellant Dhanna Ram who had initially informed the police. Smt. Chooni jumped into the well as is stated by D.W. 1 Ghamanda Ram, who descended into the well to help Thakra Ram, since the latter was unable to tie with a rope, Smt. Chooni, seriously hurt by falling on a cement tank, kept at the bottom of the well, to help her to be dragged out from the well. She was taken to the house of Sagra Ram and they immediately sent for the appellants who were not present there. After a little while, Smt. Chooni breathed her last. Sagra Ram is the father of Smt. Kanu, wife of the appellant Dhanna Ram, and so both Smt. Kanu and Smt. Chooni were left there. D.W. 2 Sanga lends corroboration to the statement of D.W. 1 Ghamanda Ram. Similarly, D.W. 3 Badra Ram who was present at the time of preparation of Ex. P. 11 Panchnama of dead body of the deceased etc. and was also Surpanch of the village clearly stated that since Gaina Ram did not keep Smt. Puro, sister of accused, he also did not like to send Smt. Chooni with the appellant Kheraj, to whom she was legally married, and so Smt. Chooni was brought back by the appellants. There was no question of demand of dowry etc. and Gaina Ram did not bring Smt. Puro, wife of Khooma Ram, to his house and she is still a deserted woman.
31. So, Khoooma Ram was married with the sister of the appellants much prior to the marriage of Smt. Chooni with the appellant Kheraj and she was hardly kept for a total period of about one month by Gaina Ram etc. at their house. They never tried to bring her back.
32. When there was sort of exchange-marriages by way of Khooma having been married to the sister of the appellants and, subsequently, Khooma's sister (Smt. Chooni) having been married to Kheraj appellant, as is well known, both sides belonged to a poor-peasantry class, there would have hardly been a demand of dowry from either side. If there was any demand of dowry from the appellants' side, they would not have time and again tried to resist Smt. Chooni's visit to her parents house as is the version of P.Ws. Gaina Ram, Smt. Dami and Kheraj Ram.
33. It only leads to a natural conclusion that the appellants never asked for a valuable or property and no such demand was made. It is common knowledge that village-women toil hard in the fields and their economic contribution is substantial. Besides, Smt. Chooni had visited her inlaws' house twice or more and there was no complaint from her side that she was being subjected to any cruelty. Kheraj Ram approached her to take her back. He was unwilling to send her back yet, on the insistence of Khooma Ram, and not on that of Smt. Chooni herself, he did allow Smt. Chooni to go to her parents' house. She was not sent back early. Kheraj Ram came to take her with him. He stayed for a night. He was made to return empty handed with an assurance to send her early. P.W. 2 Smt. Dami and P.W. 8 Gaina Ram told Kheraj Ram that since Smt. Chooni was so being scolded and taunted for not having been given enough ornaments and clothes by her parents, they would arrange for clothes and then send her in presence and on the assurance of some persons so she is not harassed by raising any demand or by subjecting her to cruelty. As discussed hereinbefore, P.W. 8 Gaina Ram did not report in F.I.R. No. 17/93, even after the incident of 3.5.93 when he along with his wife anl son is alleged to have been hurt by the appellants while Smt. Chooni was so lastly taken back by the appellants. So also, he did not make any report to the police or any other authority on 6.5.93 or even on 7.5.83, when the Executive Magistrate, Dy. S. P., S.H.O. and number of persons were present at the Dhani of Sagra Ram, whereat dead body of Smt. Chooni was lying. Never before, Smt. Chooni ever complained to anybody about her being subjected to cruelty, defined under Section 498A, I.P.C., demanding or in order to compel her relations to give valuables including the clothes. She was never physically harmed and bald statements of her parents and brother do not inspire confidence that she used to complain about it. Had it been so, she would have been the first to have refused to have accompanied the appellants and so also she did not resist or protest against the act of the appellants.
34. Had the appellants been motivated by any greed, they would have refused to take back Smt. Chooni and would never take her back much to the opposition from her parents. So, it is quite natural that Khooma's wife was with her parents and, as a retaliatory action, as happens in most of such cases, parents of Smt. Choon were avoiding to send Smt. Chooni with her husband Kheraj Ram, who is brother of Khooma's wife. Smt.Chooni was legally wedded wife of Kheraj Ram, she never showed her unwillingness to live with Kheraj Ram. She always willingly returned to Kheraj Ram's house and lastly top, Kheraj Ram never waited for new clothes or anything else but wanted only Smt. Chooni to be sent with him. He was promised lastly that she would be sent after few days. She was not sent. Appellants must have smelt something foul in the game. They came and took back Smt. Chooni with them. On resistence for which there could not have been legal justification, they did cause simple hurt to Gaina Ram, Smt. Dami etc. resulting in registration of F.I.R. No. 17/93 at the Police Station, Sedwa.
35. As discussed herein before, P.W. 2 Smt. Dami admitted that Smt. Chooni did not complain about any demand or harassment when she firstly returned to her house. However, P.W. 8 Gaina Ram and P.W. 4 Khooma Ram contradict her. There is not a single instance when Smt. Chooni could have been taunted or scolded for dowry and also subjected to physical or mental torture or harassment for the same. Had there been so, the appellants could not have been all and all out to keep Smt. Chooni with them. They could not have threatened to kill Smt. Choonl, as her parents have subsequently alleged. There is no evidence that the appellants were present at the Dhani of Sagra Ram when Smt. Chooni Jumped into the well.
36. Here it is to be seen that the appellants had raised crops at the well In the village Ogala bordering Bamarla and the Dhami of Sagra Ram, father-in-law of appellant Dhanna Ram, is situate in its bordering village Bamarla. The only plausible reason for leaving Smt. Chooni, along with Smt. Kanoo, wife of Dhanna Ram, at Smt. Kanno's father's Dhani was that since the appellants had picked up a quarrel with the inlaws' of Kheraj Ram who had reported the matter to the police and, keeping in view fate their sister Smt. Puro, as a measure of precaution, they left Smt.. Chooni, along with her husband's brother's (appellant Dhanna Ram) wife Smt. Kanoo at latter's parents' Dhani. Appellants were not there. They might have gone underground or left for some unknown place. As are the statements of D.W.S Ghamanda Ram, Sauga Ram and Badra Ram, who had no motive or any reason, whatsoever, to falsely support the appellants. Smt. Chooni was taken out of the well in a serious condition taken to the Hospital. There is nothing to disbelieve this version.
37. As a result, there was no homicidal or accidental death but a pure and simple suicidal death. Hence an unnatural and, in circumstances far from being natural one.
38. That being so, coming to the adjudication as to whether an offence under Section 304B, I.P.C., was committed, the same requires that the death of Smt. Chooni should have been caused otherwise than under the normal circumstances; (2) such death should have occurred within 7 years of her marriage; (3) she must have been subjected to cruelty or harassment by her husband Kheraj Ram and his brother Dhanna Ram (appellants); and (4) such cruelty or harassment should have been for or in connection with demand for dowry, as was also laid down by the apex Court in Shanti v. State o/Haryana .
39. As discussed herein before, there is no reliable, cogent and clear evidence that Smt. Chooni was subjected to cruelty or harassment by the appellants for or in connection with demand of dowry. There are number of circumstances which tend to show that the appellants could not have demanded any dowry as is defined under Section 2 of the Dowry Prohibition Act, 1961.
40. That being so, in absence of such a demand and subjecting the deceased to cruelty or harassment therefore, no presumption under Section 113B, Evidence Act can be pressed into service. Since, in absence of such a demand and consequential meeting out cruel or harassing treatment, basic ingredients of constituting the offence or "dowry death" is missing, as held by Hon'ble Mr. Saxena, J. in B. Ram v. State of Rajasthan 1995 (2) RLW (Raj) 421.
41. Even appellants were not initially prosecuted by the prosecution under Section 304B, I.P.C. and so they were never charged with the commission of this offence.
42. Therefore, the prosecution failed to prove commission of such offence by the appellants and the learned trial judge committed illegality in holding the accused-appellants guilty of commission of offence under Section 304B I.P.C.
43. Now, coming to offence under Section 306, I.P.C. the same requires that the appellants must have abetted the act of commission of suicide by Smt. Chooni. Thus abatement of suicide is confined to the case of persons who aid and abet the commission of suicide by the hand of the person who commits suicide.
44. As discussed hereinbefore, appellant Kheraj Ram is the husband of the deceased and Dhanna Ram is his elder brother. Smt. Chooni was married to Kheraj Ram and it was sister a few months of her marriage and well within 7 years of her marriage that she committed suicide. There is nothing against it.
45. Section 306, I.P.C. further requires that the accused must have been subjected to cruelty within the meaning of Section 498A, I.P.C. Section 498A, I.P.C. is as under
498-A Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three, years and shall also be liable to fine. Explanation.- For the purposes of this section, 'cruelty' means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman, or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security is on account of failure by her or any person related to her to meet such demand.
Thus clause (b) of the explanation, as held hereinbefore is not attracted since there is no proof of harassment of the deceased with a view to coercing her or any person related her to meet any unlawful demand for any property or valuable security was on account of failure by her or any person related to her to meet such demand.
46. However, as discussed hereinbefore, Smt. Chooni was married to the appellant a few months prior to her death. She is established to have committed suicide.
47. The appellants were opposed to the return and visit of Smt. Chooni to her parental house. She was allowed, after entreaties by her brother and she was always expected to be back at the earliest. On her last visit to her parents, even after 4 or 5 days, Kheraj Ram went to fetch her back to his house: However, on refusal by her parents, Kheraj Ram returned but on 3.5.93, came with his brother Dhanna Ram appellant and they picked up a quarrel with the parents and brother of the deceased. They were manhandled and also hurt as was reported vide F.I.R. 17/93 at Police Station, Sedwa. Smt. Chooni was forcibly taken along by the appellants. Her parents had a grievance that the sister of the appellants was separated from Khooma Ram and the appellants were still forcibly keeping Smt. Chooni as wife of Kheraj Ram. The appellants were apprehensive that Chooni might not face the same fate as that of their sister Smt. Puro. Smt. Chooni was brought to her parental house and taken back to her in laws' house and every time there was a row over it. She was under a great mental and physical agony. On 3.5.93, she was forcibly led to her in a law's house much to the antiquence and opposition from her parents. As a result, her parents and brother were injured. Her father loged F.I.R. No. 17/93 at the Police Station. That being so, appellants apprehended arrest and so left her, in the company of Smt. Kanoo, at the latter's father's Dhani. Thus she was passing through a serious mental stress and trauma since her marriage. Appellants knew it and still they forcibly brought her back from parents' house and then kept her secretly at the house of Sagra Ram which must be to. her disliking. Thus, the deceased was passing through a quite testing, tense and stressful movements since her marriage. Dhanna Ram, being elder brother of Kheraj Ram, was on the side of his younger brother. They were joint in occupation, mess and residence. Their acts, culminating into the incident of 3.5.93 and subsequential leaving Smt. Chooni at the Dhani of Sagra Ram, such wilful acts and conduct on the part of the appellants were of such a nature as were likely to drive Smt. Chooni to commit suicide by her, as defined under clause (a) of the lantion appended to Section 498A, I.P.C. Thus, the prosecution has also proved beyond reasonable manner of doubt that Smt. Chooni was subjected to a cruelty as defined under Section 498A, I.P.C. prior to her committing suicide, as above.
48. That being so, the presumption under Section 113A, Evidence act is attracted, which runs as under
113-A. When the question is whether the commission of suicide by a women had been beatten by her husband or any relative of her husband and 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 such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation - For the purposed or this section, 'cruelty' shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860)
49. So, the appellants, by their persistent conduct and acts created such a suffocating tense and purturbing atmosphere amounting to cruelty and, lastly, the deceased finding herself unable to bear such a surcharged and tense atmosphere, felt compelled to end her life to get rid of it all by jumping into the well and thus she committed suicide within a short period of her marriage and the appellants are responsible for the same.
50. The appellants failed to rebut presumption under Section 113A, Evidence Act. They raised a false plea of mental disorlderliness of the deceased.
51. Therefore, having regard to the totality of facts and circumstances narrated herein before, the prosecution failed to prove commission of offence punishable under Section 304B, I.P.C. by the appellants. They deserve to be acquitted of this charge. Instead, they are proved to be guilty of commission of offence under Section 306, I.P.C. besides the offence under Section 498A I.P.C.
52. As regards sentencing, appellant Dhanna Ram wa born in 1967 and Kheraj Ram in the year 1973. They were aged 26 and 20 years at the time of the occurrence. They are real brothers. They are poor agriculturists. Their sister Smt. Puro is a victim of desertion by the parents of the deceased. The charges or murder and dowry death have failed. Their wives too, charged with them, stand acquitted. The allegations of demanding dowry stand disproved. There was also a contributory role of the parents of the deceased to have been subjected her to an unbearable, tense and perturbing atmosphere to compel her to commit suicide. All these facts when considered along with the discussions made hereinabove, make out a case for leniency in regard to sentence to be awarded under Section 306, I.P.C. So a sentence of 3 years, besides fine under Section 306, I.P.C. would serve the ends of justice.
53. In the result, this appeal is partly allowed. Appellants accused are. acquitted of offence punishable under Section 304B/34, I.P.C. Instead, they are convicted under Section 306, I.P.C. Their conviction under Section 498A/34, I.P.C. and the order of sentence passed there under is maintained. Appellants are awarded 3 years' R. I. and a fine of Rs. 5000/- each and in default of payment of fine, to undergo 6 months, R. I., under Section 306, I.P.C. Both the substantive sentences are ordered to rum concurrently. In case of realisation of fine a sum of Rs. 8000/- is ordered to be paid to P.W. 8 Gaina Ram as compensation.