Rajasthan High Court - Jodhpur
Smt.Gero Devi And Ors vs State on 25 November, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Criminal Appeal No. 355/2012
1. Smt. Gero Devi W/o Banka Ram (Mother-in-law), B/c Jat,
R/o Village Bakana, P.S. Chohtan, District Barmer.
2. Banka Ram S/o Sonaram (Father-in-law), B/c Jat, R/o
Village Bakana, P.S. Chohtan, District Barmer.
3. Hanuman Singh S/o Bankaram (Husband), B/c Jat, R/o
Village Bakana, P.S. Chohtan, District Barmer.
----Appellants
Versus
State of Rajasthan, Through P.P.
----Respondent
For Appellants : Mr. Suresh Kumbhat.
For Respondent : Mr. Shrawan Bishnoi, PP.
Mr. Rajesh Panwar, Sr. Adv. assisted
by Mr. Mudit Vaishnav.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 25/11/2022
1. This Criminal Appeal under Section 374(ii) Cr.P.C. has been preferred claiming the following reliefs:-
"It is, therefore, prayed that the appeal of the appellants may kindly be allowed and they be acquitted from the charges levelled against them."
2. The present Criminal Appeal emanates from the report, filed by the complainant-Gorkharam, P.W.-6, on 16.09.2009 at Police Station, Chohtan on the basis of which an F.I.R. bearing No. 139/2009, was lodged and upon investigation, the present appellants were arrested and a charge-sheet was filed against them for the offences under Sections 498-A and 304-B IPC; thereafter the concerned Court took cognizance against the (Downloaded on 30/11/2022 at 11:14:13 PM) (2 of 11) [CRLA-355/2012] appellants and forwarded the same to be committed to the concerned Sessions Court, Barmer, for trial. Upon trial, the learned Court below convicted the present appellants for the aforementioned offences, assailing which the appellants have approached this Court, by preferring the present appeal.
3. Brief facts of the case, as the pleaded facts and a perusal of the record would reveal that the complainant-Gorkharam averred that his daughter-Shanti (the deceased victim) was married to the appellant no.3-Hanuman Singh, three years prior to the filing of the impugned FIR. That about six months, after the marriage was solemnized between the couple, the appellants being the husband, the mother-in-law and father-in-law of the deceased victim, subjected her to mental and physical harassment in connection with the demands for dowry of Rs. 1,00,000/- and 10 'tolas' of gold, threatening to oust her from her matrimonial home, in case of non-fulfillment of such demands. That upon visiting her paternal home, she had narrated to her father and other family members about attempts made on her life, that her husband and his family had attempted to poison her, if the dowry demand is not fulfilled; whereupon the complainant conveyed to the husband and his family that he did not have the sufficient means to fulfill their demands of dowry, to which they acquiesced; but 15 days prior to the filing of the said complaint, they again began harassing the deceased victim with demands for dowry.
3.1 That when the complainant was informed that another attempt on her (deceased victim's) life was made by the appellants, he phoned his daughter and she answered, in tears and narrated incidents of harassment and threats to her life. That she stated further that her father-in-law had made inappropriate (Downloaded on 30/11/2022 at 11:14:13 PM) (3 of 11) [CRLA-355/2012] advances toward her and would violate her person, that the appellant no.2-Banka Ram then came on the phone call, and demanded dowry from the complainant, as a consequence of non compliance of which his daughter (deceased victim) would continue to suffer. That the husband and his family physically assaulted his daughter as a result of which she passed away, and attempts were made by them to cover up the same.
4. Learned counsel for the appellants submits that the impugned F.I.R. was lodged after a 24 hours delay from the date of the alleged incident.
4.1 Learned counsel further submits that witnesses P.W.1- Moolaram and P.W.4-Thanaram turned hostile and the other witnesses, namely P.W.7-Veermaram and P.W.10-Pukhraj are maternal uncles of the deceased victim and cannot be relied upon, as they are interested witnesses. He also drew the attention of this Court to the testimonies of witnesses, P.W.6-Gorkharam, P.W.8-Devika, P.W.10- Pukhraj, P.W.11-Ravatram, P.W.9-Andu. 4.2 Learned counsel also submits that the call details of the alleged phone conversation between the deceased victim and her father, were not brought on the record, and therefore such averment could not be corroborated.
4.3 Learned counsel further submits that the cause of death of the deceased victim could not be ascertained, and that in absence of the same, the benefit of doubt ought to be given to the present accused-appellants. The attention of this Court was drawn to the testimony of P.W.5-Dr. Vibhay Tanwar and P.W.20-Dr. Pankaj Khurana, the doctors who conducted the clinical examination of the deceased victim and generated the post-mortem report at Ex.P-11. It was submitted that the said report would reveal that (Downloaded on 30/11/2022 at 11:14:13 PM) (4 of 11) [CRLA-355/2012] the injuries sustained by the deceased victim are superficial in nature and were sustained by the deceased victim about 4 days prior to the occurrence of the alleged incident. Furthermore, P.W.20-Dr. Pankaj Khurana admitted that there were no fresh injuries to indicate any kind of struggle.
4.4 Learned Counsel also submits that a perusal of the testimonies of P.W. 7-Gorkharam, P.W.9-Andu, P.W.17-Rajendra Prasad would reveal that the place of posting (official duty) of the husband, the residence of the in-laws' and the residence of the deceased victim were all at different places, and therefore, the allegations in question are completely false. 4.5 Learned counsel sought to fortify the submissions made hereinabove by placing reliance on the judgment; rendered by the Hon'ble Apex Court in the case of State of Madhya Pradesh .P. v. Sewa Singh 2007 Cr.L.R. (SC) 523; rendered by a Division Bench of this Hon'ble Court, at Jaipur Bench, in the case of Om Prakash Jangid v. State of Rajasthan (2020) 1 RLW (Raj) 484 : Criminal Appeal No.7/2017; rendered by the Hon'ble High Court of Judicature at Allahabad in the case of Smt. Vimla Devi v. State of U.P. 2007 (1) Crimes 618.
4.6 Learned counsel has also pointed out that the sentences awarded to the appellants by the learned Court below vide the impugned judgment, were suspended by Coordinate Benches of this Hon'ble Court; appellant no. 1-Gero Devi in S.B. Criminal Misc. Bail (Suspension of Sentence) Application No. 355/2012 on 10.05.2012, appellant no. 2-Banka Ram in S.B. Criminal Misc. Bail (Suspension of Sentence) Application No. 483/2012 on 24.07.2012 and Appellant No.3-Hanuman Singh in S.B. Criminal (Downloaded on 30/11/2022 at 11:14:13 PM) (5 of 11) [CRLA-355/2012] Misc. Bail (Suspension of Sentence) Application No. 7070/2012 on 04.09.2012.
4.7 Learned counsel further submits that Appellant No.2-Banka Ram is a school teacher and a Government servant, and thus prays for the extension of the benefit to him, under Section 4 of the Probation of Offenders Act, 1958. Reliance in this regard was placed upon the judgments rendered by Coordinate Benches of this Hon'ble Court in the case of Khazan Singh & Ors. v. State of Rajasthan (S.B. Criminal Appeal No. 57/1992, decided on 23.05.1994) and Lalit Kumar & Anr. v. State of Rajasthan (S.B. Criminal Revision Petition No. 866/2014, decided on 08.09.2015).
4.8 Learned counsel also submits that the child of the deceased- victim and the husband, being appellant no.3-Hanuman Singh, was two and a half years at the time of the incident and is presently about 13 years old, residing with his paternal grandparents, being appellants no.1 and 2. That the same is corroborated by the testimony of the father of the deceased victim, P.W.6-Gorkhram, the sister of the deceased victim P.W.8 and the Additional Superintendent of Police, P.W.17- Rajendra Prasad.
4.9 Learned counsel further submits that there is thus an abject and gross lack of evidence to sustain the conviction of the appellants for the offences under Sections 304-B IPC and 498-A IPC.
5. On the other hand, Mr. Rajesh Panwar, learned Senior Counsel assisted by Mr. Mudit Vaishnav, appearing on behalf of the private respondent and learned Public Prosecutor vehemently oppose the appeal and submit that the presumptions under (Downloaded on 30/11/2022 at 11:14:13 PM) (6 of 11) [CRLA-355/2012] Section 304-B and Section 313 of the Indian Evidence Act, 1872 have to be strongly derived against the appellants. 5.1 Learned Senior Counsel further submits that the ingredients for the offence under Section 304-B IPC are made out in the instant case, and drew the attention of this Court to Section 304-B sub-section (1) IPC, stating that the deceased victim passed away under 'unnatural circumstances' and that all the other ingredients as under the said sub-section i.e. the death occurred within 7 years of marriage and the victim being subjected to cruelty by the appellants prior to death; remain uncontroverted and therefore stand against the present appellants. Reliance in this regard was placed upon the judgment rendered in the case of Maya Devi v. State of Haryana (2015) 17 SCC 405.
5.2 Learned Senior Counsel also submits that P.W.5-Dr. Vibhay Tanwar and P.W.-20 Dr. Pankaj Khurana have found three ante- mortem injuries of sizes 8x1 c.m., 5x1 c.m. and 4x1 c.m. on the body of the deceased-victim. A perusal of their testimonies would also reveal that the deceased-victim was beaten just before her death. The attention of the Court was also drawn to the photographs on the record, which as per learned Senior Counsel reveal that the death occurred under unnatural circumstances. Reliance in this regard was placed on the judgment rendered in the case of Bansi Lal v. State of Haryana (2011) 11 SCC 35.
6. Heard learned counsel for both parties and perused the record of the case, alongwith the judgments cited at the Bar.
7. This Court observes that there are certain glaring fatalities in the instant case, the first and foremost being the discrepancy in the medical testimonies of the doctors who conducted the clinical examination of the deceased victim and generated the port- (Downloaded on 30/11/2022 at 11:14:13 PM)
(7 of 11) [CRLA-355/2012] mortem report; wherein surprisingly, astonishingly and shockingly no clear cause of death has been made out, instead a very opaque statement has been made which does not reflect anything whatsoever which could assist this Court regarding the cause of death of the victim.
8. While it is within the realm of this Court to draw certain legal presumptions against the present appellants, on the basis of the provision of law as contained in Section 304-B IPC and upon looking into the factual matrix of the instant case, and as is rightly submitted by learned Senior Counsel for the private respondent; however, this Court relies upon expert and scientific evidence, as that of the doctors in the present case, to ascertain the cause of death, as may only be found out through requisite medical examinations, and no presumption can be drawn in that regard. 8.1 The post-mortem report, dated 16.09.2009, at Ex.P-11, which bears the signatures of P.W.5-Dr. Vibhay Tanwar and P.W.20-Dr. Pankaj Khurana, states the following:-
"In the opinion of the medical board after complete Post Mortem Examination of Smt. Shanti w/o Hanuman Singh Age 21 yrs, caste Jat, Resident of Bakana (Dharasar) P.S. Chohtan. No opinion regarging cause of death can be given. The visceras are preserved in Normal Saline Solution and send for chemical and Histopathological Examination at FSL. Final opinion reserved till FSL report.
The duration of death is about within 24 hrs from the time of Post Mortem Examination at 3:45 pm to 5:15 pm on Dated:
16/9/09"
8.2 The same was reiterated by the two doctors, P.W.5-Dr. Vibhay Tanwar and P.W.20-Dr. Pankaj Khurana, at the bottom of (Downloaded on 30/11/2022 at 11:14:13 PM) (8 of 11) [CRLA-355/2012] the letter dated 16.09.2009, at Ex.P-12, which was addressed to them by the S.H.O. Chohthan, Barmer.
8.3 The Court further observes that the 'Opinion Regarding Cause of Death', at Ex.P-13 as generated by the Medical Board consisting of the doctors, P.W.5-Dr. Vibhay Tanwar and P.W.20-Dr. Pankaj Khurana, reads as follows:-
"Our opinion, after examining, FSL report and the histopathological report of Smt. Shanti devi W/o Sh. Hanuman Singh, Aged 21 yrs, Caste, Hindu (Jaat) R/o Bankana, P(Dharasar), P.S. Chohtan no opinion regarding cause of death can be given in the opinion of Post Mortem board."
9. This Court looking into the custody period of the appellants finds that Gero Devi, Banka Ram and Hanuman Singh, were arrested on 20.09.2009, 22.09.2009 and 22.09.2009 respectively. Gero Devi @ Gairon Devi was granted bail by a Coordinate Bench of this Hon'ble Court in S.B. Criminal Misc. Bail Application No. 446/2010 vide order dated 11.03.2010; while the bail application preferred on behalf of Banka Ram, was dismissed as not pressed in S.B. Criminal Misc. Bail Application 4503/2010 vide order dated 01.10.2010, and there is nothing is nothing on the record that shows that a bail application was preferred on behalf on Hanuman Singh. Subsequently, the present appellants were remanded to custody vide impugned judgment of conviction dated 07.04.2012. Thereafter, the sentences awarded to the appellants were suspended by Coordinate Benches of this Hon'ble Court; appellant no. 1-Gero Devi in S.B. Criminal Misc. Bail (Suspension of Sentence) Application No. 355/2012 vide order dated 10.05.2012, appellant no. 2-Banka Ram in S.B. Criminal Misc. Bail (Suspension of Sentence) Application No. 483/2012 vide order dated (Downloaded on 30/11/2022 at 11:14:13 PM) (9 of 11) [CRLA-355/2012] 24.07.2012 and Appellant No.3-Hanuman Singh in S.B. Criminal Misc. Bail (Suspension of Sentence) Application No. 7070/2012 vide order dated 04.09.2012.
10. This Court thus observes that appellant No.1-Gero Devi @ Gairon Devi remained in custody for a period of about 6 months 24 days; appellant No.2-Banka Ram remained in custody for a period of about 2 years 10 months 2 days and; appellant No.3- Hanuman Singh remained in custody for a period of 2 years 11 months 13 days.
11. This Court, in light of the above observations, finds that there is nothing in the post-mortem report, at Ex.P-11 or in the letter, at Ex.P-12, or in the Opinion of the Medical Board, at Ex.P- 13, which could assist this Court in ascertaining the cause of death of the deceased victim.
11.1 At the cost of repetition, this Court may draw legal presumption founded in fact and law, but the same cannot take the place of medical and scientific evidence. The above-mentioned exhibits reveal that "no cause of opinion regarding cause of death can be given."
11.2 The language of Section 304-B IPC in sub-section (1) is clear and unambiguous, that the death must have occurred under "unnatural circumstances", for the provision under the said Section, to be attracted.
11.3 However, in lack of any such scientific evidence whatsoever to guide this Court, the case of the prosecution falls flat, and resultantly, the benefit of doubt weighs in favour of the accused appellants. This is further complimented by a lack of call details on the record, to corroborate the version as averred by the complainant regarding the alleged phone call between him and his (Downloaded on 30/11/2022 at 11:14:13 PM) (10 of 11) [CRLA-355/2012] daughter (deceased victim) and her father-in-law. Proving culpability beyond reasonable doubt is a settled principle of law, and in the present case, the case of the prosecution falls short of proving beyond reasonable doubt that the present appellants be held guilty for the offence under Section 304-B IPC. 11.4 However, on a perusal of the impugned judgment, and on a due consideration of the factual matrix of the case, this Court finds that the conviction of the appellants as made under Section 498-A IPC deserves to be upheld and sustained.
12. The case laws cited on behalf of the private respondent, do no render any assistance to his case, in the peculiar factual matrix of the instant case.
13. On an overall consideration of the submissions made, as well as a detailed perusal of the record, the instant appeal is partly allowed, and the appellants are hereby acquitted of the offences under Section 304-B IPC, while maintaining their conviction under Section 498-A IPC. The sentence undergone by the appellants, as observed hereinabove, is sufficient to meet the ends of justice. 13.1 This Court however, observes that the benefit under Section 4 of the Probation of Offenders Act, 1958, requires that the offender must not have any criminal priors/antecedents i.e. be a first time offender and also that the offence in question should not be punishable by life imprisonment or by death, the offence under Section 498-A IPC thus falls well within the purview of Section 4 of the Act of 1958. Therefore, looking into the factual matrix of the case and the observations made hereinabove and the precedent law cited on behalf of the appellants, this Court grants the Appellant No.2-Banka Ram the benefit of Section 4 of the Probation of Offenders Act, 1958, in relation to his conviction (Downloaded on 30/11/2022 at 11:14:13 PM) (11 of 11) [CRLA-355/2012] under Section 498-A IPC. Needless to say that Section 12 of the Probation of Offenders Act of 1958 shall operate in this case. 13.2 The appellants are on bail; they need not surrender. Their bail bonds stand discharged.
15. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
136-/Skant//-
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