Rajasthan High Court - Jaipur
Mukat Bihari vs State Of Rajasthan on 25 November, 2005
Equivalent citations: 2006CRILJ439, RLW2006(2)RAJ1369, 2006(1)WLC164
JUDGMENT Narendra Kumar Jain, J.
1. The accused appellant Mukut Bihari has filed this appeal under Section 374 of the Code of Criminal Procedure against the judgment and order dated 4th July, 2002 passed by the Addl. Sessions Judge No. 1, (Fast Track), Kotain Sessions Case No. 16/02 whereby he has been convicted and sentenced under Section 304B, IPC to 10 years R.I. and a fine of Rs. 1,000/-and in default of payment of fine to further undergo 6 months S.I.
2. P.W. 1 Ghasi Lal lodged a typed report Ex. P1 on 13-10-2001 at Police Station Budhadit, District Kota wherein it was alleged that his daughter Shakuntala Bai aged about 24 years was married on 28th April, 1996 with accused Mukat Bihari s/o Kishan Gopal by caste Gurjar r/o Morana P.S. Budhadit, District Kota. The 'Gauna' ceremony took place after 3 years of the marriage and the number of items were given in dowry as per details given in the said report. It was further alleged that the accused Mukat Bihari and in-laws of Shakuntala Bai demanded further a motorcycle or a sum of Rs. 50.000/- in dowry when his daughter Shakuntala went to in-laws house. It was further alleged that the accused Mukat Bihari husband, Prem Bai mother-in-law and Kishan Gopal father-in-law started to harass his daughter. As and when Shakuntala came to his house, she used to tell about cruelty and harassment being done by her in-laws. It was also alleged that about one year ago, she was beaten by her husband, mother-in-law and father-in-law on the question of demand of dowry. She was tried to be killed by her in-laws but her sister-in-law intervened in the matter. The number of allegations were also alleged about cruel action on the part of in-laws on the person of Smt. Shakuntala Bai in this report. It was further alleged that on 10th October, 2001 at about 9.00 p.m. his daughter Shakuntala was killed by her husband Mukat Bihari. Her funeral took place in the night at about 12.00 O'clock without any information to them. Two persons came on the motorcycle to inform them that his daughter has died and funeral has already taken place. The third-day ceremony will be held on 12th October, 2001. When they reached on third-day then the said ceremony had already taken place. They asked about cause of death then her in-laws members did not give any reply but certain women of the village told that the husband, mother-in-law and father-in-law have killed Smt. Shakuntala, therefore, It was prayed that a report be registered and action be taken as per law.
3. On the basis of the above information police registered an FIR No. 130/2001 under Sections 304B and 201, IPC and started investigation. During investigation the accused appellant and his father Kishan Gopal were arrested and at their instance some recovery of articles was made and site-plan was prepared. After investigation of the matter, the police filed a challan against the present appellant as well as his father Kishan Gopal on 16th January, 2002 in the Court of Judicial Magistrate, Deegod who committed the case for trial to the Court of Sessions Judge, Kota who transferred the same for trial to the Court of Addl. Sessions Judge No. 1 (Fast Track), Kota.
4. The trial Court framed charge against accused persons for the offence under Section 304-B, IPC which was denied and they claimed to be tried. In support of the case, the prosecution examined P.W. 1 Ghasi Lal, P.W. 2 Kailash Chand, P.W. 3 Smt. Santosh, P.W. 4 Smt. Barfi, P.W. 5 Suresh, P.W. 6 Ram Narain, P.W. 7 Ramratan, P.W. 8 Babulal, P.W. 9 Rambharos, P.W. 10 Hari Shankar, P.W. 11 Modulal, P.W. 12 Babulal, P.W. 13 Kalyanibai, P.W. 14 Chhitar Lal, P.W. 15 Deendayal, P.W. 16 Ramnarain Meena and P.W. 17 Ramphool and produced documentary evidence. Thereafter the statement of the accused persons were recorded under Section 313, of the Cr. P.C. In defence the accused persons examined D.W. 1 Kedaram and D.W. 2 Hari Kishan.
5. After hearing arguments on behalf of both the parties and after considering all the facts and circumstances of the case, the learned trial Court vide impugned judgment and order acquitted the co-accused Kishan Gopal from the offence under Section 304-B, IPC but convicted and sentenced the accused appellant as mentioned above. Being aggrieved with the same, the present appeal has been filed.
6. The learned Counsel for the accused appellant Mr. S.C. Gupta contended that from the evidence on record and from all the facts and circumstances of the case no offence under Section 304-B, IPC is made out against the accused appellant and the learned trial Court has committed an illegality in passing the impugned judgment against him. He contended that this is not a case of death of Smt. Shankuntala deceased by any burns or bodily injury or occurs otherwise than under normal circumstances. He submits that although marriage took place on 28th April, 1996, she died on 10th October, 2001 within a period of 7 years from the date of marriage but her death was not due to burns or bodily injury or otherwise than under normal circumstances. He further contended that the prosecution has failed to produce any evidence so as to show that soon before her death she was subjected to any cruelty or harassment by her husband-appellant in connection with any demand of dowry, therefore, ingredients of Section 304-B, IPC are not established in the present case. He lastly contended that accused appellant was arrested on 8-11-2001 and he was not granted bail during trial as well as during pendency of the appeal, therefore, he has already served out a sentence of more than 4 years and this Court has powers to reduce the minimum sentence prescribed by law looking to the facts and circumstances of the case. He contended that it is a fit case where sentence of imprisonment can be reduced to a period already undergone.
7. Mr. S. C. Gupta learned Counsel for the appellant has referred the statements of P.W. 1 Ghasi, father of the deceased, P.W. 2 Kailash, nephew of P.W. 1 Ghasi, P.W. 3 Smt. Santosh, mother of deceased, P.W. 4 Smt. Barfi, P.W. 7 Ramratan, uncle of the deceased and elder brother of P.W. 1 Ghasi and submitted that from their statements it is not established beyond reasonable doubt that there was any demand of dowry on the part of the appellant but from their statements it appears that there were good relations in between deceased and the present appellant. He further submitted that from their evidence it is clear that soon after death of Smt. Shakuntala the information was given to the uncle, mother and father of the deceased by sending two persons but they did not turn up and there was no alternative for the accused persons except to perform funeral of the deceased.
8. Mr. Gupta cited Shyam Lal v. State of Haryana , Heera Lal v. State (Govt. of NCT, Delhi) , Saryaveer Singh v. State of Punjab , Balwant Singh v. State of Punjab AIR 2005 "SC 1504, Satpal v. State of Haiyana , Kuniah Abdullah v. State of Kerala and submitted that it was a duty of the prosecution to prove that she was killed or died because of demand of dowry soon before her death. The prosecution has failed to prove any demand of dowry soon before her death, therefore, conviction of the appellant cannot be maintained under Section 304-B, IPC. Mr. Gupta, also contended that from the statements of the prosecution witnesses the present case does not even fall for conviction under Section 498A, IPC.
9. He also submitted that although there is no evidence available to prove any demand of dowry by husband or in-laws of the deceased soon before the death of Smt. Shakuntala but there are certain allegations about demand of dowry in the nature of motorcycle as well as Rs. 50.000/-. He submits that although said demand is not proved but even if it is found to be proved then it was not made soon before her death, therefore, at the most accused can be convicted and sentenced under Section 498A, IPC. He submits that appellant has already remained in judicial custody for about 4 years and that sentence be treated as sufficient for the offence under Section 498A, IPC. In support of his contention he relied upon Dinesh Seth v. State 2003 Cri LJ 4532 (Delhi), Satpal v. State of Haryana , Balwant Singh v. State of Punjab AIR 2005 SC 1504.
10. He also relied upon Keru Ravidas v. State of Jharkhand 2003 Cri LJ 3658 (Jharkhand), Shamsaheb Neerasaheb Multani v. State of Karnataka 2003 Cri LJ 526 (Kant) in support of his contention that even if minimum sentence of 7 years imprisonment is prescribed under Section 304B, IPC, the same can be reduced to the period already undergone.
11. The learned P. P. submitted that this is a case wherein sufficient evidence has been produced by the prosecution to prove the guilt against appellant and the learned trial Court was right in convicting and sentencing the accused appellant for the offence under Section 304B, IPC. He submits that this is a case wherein Smt. Shakuntala died otherwise than under normal circumstances within 7 years of her marriage. The abnormal circumstances are proved from the statements of P.W. 1 Ghasi, P.W. 3 Santosh, P.W. 7 Ramratan, who are father, mother and uncle of the deceased. He submitted that as per defence evidence, the deceased died due to stomach-ache whereas she did not make any complaint about it at any time before her death. No record has been produced by the defence to prove it. As per statements of DW1 Kedaram and DW. 2 Hari Prasad, Smt. Shakuntala died due to stomach pain but no oral or documentary evidence is available about efforts made by her in-laws for her treatment. She was not got examined by any doctor. The prescription slip written by any doctor is not available on record. The learned P. P. further contended that words "soon before death" does not mean a day prior to the occurrence. If there was demand of dowry within a reasonable period prior to her death then the said death can be taken as dowry death if death has taken place under abnormal circumstances.
12. Mr. B. K. Sharma, the learned P. P. has referred State of Andhra Pradesh v. Rajgopal Asawa 2004 (1) WLC (SC) Cr 220 : 2004 Cri LJ 1791 and Kamlesh Panjiyar v. State of Bihar 2005 (1) Crimes 227 : 2005 Cri LJ 1418 (SC) and on that basis submitted that the words "soon before" is a relative term and it would depend upon circumstances of each case and no straight-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. He lastly contended that the offence under Section 304B is a heinous offence and the legislature has prescribed a minimum sentence of imprisonment for such crime and as such the same cannot be and should not be reduced to a period of imprisonment already undergone.
13. I have considered the rival submissions and examined the impugned judgment as well as the record of the trial Court.
14. For ready reference Section 304B, IPC is reproduced as under :--
304-B. Dowry death.-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation -- For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(1) Whoever commits dowry death shall be punished with Imprisonment for a term which shall not be less than seven years but which may extent to imprisonment for life.
Section 113B of the Evidence Act is also reproduced as under :--
113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation -- for the purpose of this Section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).
15. In Shyam Lal v. State of Haryana 1997 Cri LJ 1927 (supra), the Hon'ble Supreme Court in para 10 quoted Section 113B of the Evidence Act and held as under :--
11. It is imperative, for invoking the aforesaid legal presumption, to prove that "soon before her death" she was subjected to cruelty or harassment. Here, what the prosecution achieved in proving at the most was that there was persisting dispute between the two sides regarding the dowry paid or to be paid, both in kind and in cash, and on account of the failure to meet the demand for dowry. Neelam Rani was taken by her parents to their house about one and a half years before her death. Further evidence is that an attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved that she would go back to the nuptial home pursuant to which she was taken by the husband to his house. This happened about ten to fifteen days prior to the occurrence in this case. There is nothing on record to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end.
12. In the absence of any such evidence it is not permissible to take recourse to the legal presumption envisaged in Section 113B of the Evidence Act. That rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption.
16. In Hira Lal v. State of NCT, Delhi 2003 Cri LJ 3711 (supra), the Hon'ble Supreme Court has held that a conjoint reading of Section 113B of the Evidence Act and Section 304B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances.'
17. The Hon'ble Supreme Court has further held as under :--
The evidence of P.Ws. 1, 5, 10 and 11 shows that at the time of marriage there was no demand for dowry, but subsequently, the demands were made, and ill-treatments were meted out. The crucial question is whether they were soon before the death, P.Ws. 10 and 11 stated that grievances were made before the Crime Against Women Cell and the authorities brought about reconciliation. It however was candidly admitted that there was no mention about any dowry aspect while the differences were ironed out. The settlement arrived at on 30-11-1998 was essentially for separate residence. Therefore, there is no definite evidence about ill-treatment to the deceased at any time having immediate proximity to the date of death of the deceased on 14-4-1999 about ill-treatment by the accused persons to attach culpability under Section 304B, IPC. Therefore, the basic requirement of cruelty or harassment soon before the death to bring application of Section 304B is absent.
18. In Satvir Singh v. State of Punjab 2001 Cri LJ 4625 (supra) the Hon'ble Supreme Court held as under :--
Bath the contentions are fallacious. The essential components of Section 304B are : (i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage, (ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under Section 304B. To be within the province of the first ingredient the provision stipulates that "where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances". It may appeal that the former limb which is described by the words "death caused by burns or bodily injury" is a redundancy because such death would also fall within the wider province of "death caused otherwise than under normal circumstances". The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence. In the present context it is advantageous to read Section 113A of the Evidence Act. It. is extracted below :
113-A. Presumption as to abetment of suicide by a married woman.-- When the question is whether the commission of suicide by a woman had been abetted 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.
Learned Senior Counsel submitted that since the word "cruelty" employed therein is a virtual importation of that word from Section 498A, IPC, the offence envisaged in Section 306, IPC is capable of enveloping all cases of suicide within its ambit, including dowry-related suicide. According to him, the second limb of the Explanation to Section 498A which defines the word "cruelty" is sufficient to clarify the position. That limb reads thus :
For the purpose of this section, 'cruelty' means --
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(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 or is on account of failure by her or any person related to her to meet such demand.
At the first blush we thought that there was force in the said contention but on a deeper analysis we found that the contention is unacceptable. Section 306, IPC when read with Section 113A of the Evidence Act has only enabled the Court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498A, IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial to Section 306, IPC whether the cruelty or harassment was caused "soon before her death" or earlier. If it was caused "soon before her death" the special provision in Section 304B, IPC would be invocable, otherwise resort can be made to Section 306, IPC.
No doubt, Section 306, IPC read with Section 113A of the Evidence Act is wide enough to take care of an offence under Section 304B also. But the latter is made a more serious offence by providing a much higher sentence and also by imposing a minimum period of imprisonment as the sentence. In other words, if death occurs otherwise than under normal circumstances within 7 years of the marriage as a sequel to the cruelty or harassment inflicted on a woman with demand of dowry, soon before her death, Parliament intended such a case to be treated as a very serious offence punishable even up to imprisonment for life in appropriate cases. It is for the said purpose that such cases are separated from the general category provided under Section 306, IPC {read with Section 113A of the Evidence Act) and made a separate offence.
We are, therefore, unable to concur with the contention that if the dowry-related death is a case of suicide it would not fall within the purview of Section 304B, IPC at all. In Shanti v. State of Haryana and in Kans Raj v. State of Punjab 2000 Cri LJ 2993 this Court has held that suicide is one of the modes of death falling within the ambit of Section 304-B. IPC.
19. In Balwant Singh v. State of Punjab AIR 2005 SC 1504 (supra) the Hon'ble Supreme Court in a given facts of that particular case held that there was no evidence to show that victim was subjected to cruelty and harassment based on dowry demand at least for year and 3 months before her death and in the particular facts and circumstances of that case held that no sufficient evidence is available on the basis of which conviction under Section 304-B, IPC can be founded and accused was acquitted from the offence under Section 304-B, IPC.
20. In Satpal v. State of Haryana 1999 Cri LJ 596 (supra) the Hon'ble Supreme Court after considering the facts and circumstances of that case and evidence on record (sic) that there was no convincing evidence on the basis of which conviction under Section 304-B could have been granted and as such the accused was acquitted from the offence under Section 304-B, IPC in the absence of sufficient evidence and he was convicted under Section 498A, IPC.
21. In Kuniah Abudullah v. State of Kerala 2004 Cri LJ 5005 (supra) the Hon'ble Supreme Court after considering the provisions of Section 304-B, IPC and Section 113B of the Evidence Act held that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of death occurring otherwise than in normal circumstances. "Soon before" is a relative term and it would depend upon the circumstances of each case.
22. In. Kamlesh v. State of M.P. (supra) the single Bench of M.P. High Court noted the facts of that particular case that deceased wife committed suicide by hanging herself in matrimonial house within 3 years of marriage. The appellants and relatives of the deceased failed in to prove that there was demand of dowry by the accused persons. There was inordinate delay of two and half years in lodging the FIR which rendered testimony of defence witnesses that there was no demand of dowry probable. In the facts and circumstances of that case the accused persons were acquitted from the offence under Sections 304-B, 306 and 498A, IPC.
23. In Dinesh Seth v. State of Delhi 2003Cri LJ 4532 (supra), the Delhi High Court after considering the facts and circumstances of that particular case acquitted the accused of the offence from the charge under Section 304-B, IPC and convicted him under Section 498A, IPC.
24. In Keri Ravidas v. State of Jharkhand 2003 Cri LJ 3658 (supra), the Jharkhand High Court reduced the sentence from the minimum sentence of 7 years under Section 304-B, IPC as accused in that case had already served out a sentence of about six and half years.
25. In Shamsaheb Mirasaheb Multani v. State of Karnataka 2003 Cri LJ 526 (supra) the Division Bench of the Karnataka High Court upheld the conviction under Section 304-B, IPC but instead of awarding minimum sentence of 7 years reduced it to the period already undergone by the accused which was six and half years.
26. In State of Andhra Pradesh v. Raj Gopal Asawa 2004 (2) WLC (SC) (Cri) 220 : 2004 Cri LJ 1791, the Apex Court considered the provisions of Section 304-B and 498A,-IPC with Section 113 of the Evidence Act and also considered the expression "soon before" and held as under :--
A conjoint reading of Section 113B of the Evidence Act and Section 304-B, IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304-B, IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B, IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft' is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
The above position was highlighted in Hira Lal v. State (Govt of NCT, Delhi) and in Vidhya Devi v. State of Haryana .
Their accusations have been clearly established so far as A-l is concerned. The evidence of P.Ws. 2, 3, 5 and 6 are clear, cogent and trustworthy. They have categorically spoken about the demand as made by A-1 and A-1 (sic). Therefore, the High Court was not justified in holding that no demand was made. Learned counsel for the accused-respondent submitted that there is no definite evidence about demand soon before the death. In view of the fact that the death occurred within the very few months of the marriage, and the evidence of P.Ws. 2,3,4 and 6 that shortly before the deceased committed suicide, demand of dowry was made, the plea is untenable. The accusations clearly stand established so far as A-1, respondent No. 1 is concerned. So far as accused A-3 is concerned, there is no evidence that he ever made any demand of dowry. The inference that he had extended tacit approval for the demand is based on mere surmises and conjectures without any material to substantiate it. Therefore, the acquittal so far he is concerned, does not call for any interference, though for reasons different from those indicated by the High Court. In the ultimate result the appeal is allowed so far respondent No. 1 -- A-1 is concerned while it is dismissed so far as respondent No. 2 -- A-3 is concerned. Custodial sentence of 7 years would meet the end of justice for respondent No. 1 -- A-1. He shall surrender to custody to serve remainder of sentence. Bail bonds of respondent No. 2 -- A-3 cancelled.
27. In Kamlesh Penjiyar v. State of Bihar 2005 Cri LJ 1418 (supra) the Hon'ble Supreme Court considered the provisions of Section 304-B, IPC and 113B of the Evidence Act and upheld the conviction of the accused under Section 304-B, IPC.
28. In the above referred judgments, the Hon'ble Supreme Court has interpreted the provisions of Sections 304-B, 306 and 498A, IPC as well as Section 113B of the Evidence Act and has given the guidelines for conviction and acquittal in the above offences in the light of the facts and circumstances of a particular case.
29. Now in view of the above provisions of law I consider the evidence available in the present case. Smt. Shakuntala was married on 28th April, 1996 and she died on 10th October, 2001. P.W. 1 Ghasia Lal has stated that a girl was born from the wedlock of Shakuntala and accused Mukat Bihari but no due care was taken and the said girl died within a month and half. Thereafter Smt. Shakuntala came to his house at village Talav. She lived there for about 2-3 months but thereafter Kishan Gopal and accused Mukut Bihari came and felt sorry and assured that now they will not assault and harass Smt. Shakuntala in case she is sent with them. The present occurrence took place soon after two or three months. He has also stated about demand of dowry as stated by Shakuntala as and when she came at his village Talav. The accused person was demanding Rs. 50.000/- or a motorcycle. He has also stated that after death of Shakuntala he was not informed. Two persons came from the side of in laws of Shakuntala in night and told his elder brother Ramratan in night at about 11 p.m. that she has died and funeral has already taken place. However, when they went on the third-day and asked the accused persons about reason of death then no reason was disclosed but some of the villagers told that she committed suicide as she was harassed by the accused persons. He further stated that Kishan Gopal accused told him that because of stomach pain she died. P.W. 3 Smt. Santosh has also stated on oath that accused used to demand Rs. 50.000/-or motorcycle. She also stated that Shakuntala was blessed with a girl but she died. Thereafter Shakuntala came at her house at village Talav but on the assurance of her in-laws she was sent back but subsequently she died within a short period.
30. The accused appellant in his statement before the Court under Section 313, Cr. P.C. stated that Shakuntala died with natural death and he had sent a message of her death to his in-laws but no one came to attend funeral and subsequently on the behest of some persons the present report was lodged against him. D.W. 1 Kedaram has stated that Hart Shanker and Babu had gone at village Talav to inform the parents of Smt. Shakuntala about her death. He has stated that after receipt of news from village Talav that parents of Shakuntala are not coming to attend the funeral then only funeral took place. He has stated that Smt. Shakuntala died due to stomach pain. D.W. 2 Hari Prasad brother of accused appellant was examined and he stated before the Court that Shakuntala died at about 4 a.m. and they sent Babu and Hari Shanker to inform about her death to father of Shakuntala but no one came, therefore funeral ceremony was performed. He stated that she died early in morning and funeral took place at about 4 p.m. He also stated that she died due to stomach pain.
31. The statement of the prosecution witnesses clearly show that deceased died within a period of 7 years from the date of her marriage. There was consistent demand of Rs. 50.000/- or motorcycle by the accused appellant. The deceased was blessed with a girl but she was not taken care of and, therefore, she died and thereafter Shakuntala came at her parents house and remained there for about 2-3 months. However, on the assurance of accused and his father, the deceased was sent back to her in-laws where she died on 10th October, 2001. From the statements it appears that although the parents of deceased were informed about death but a scrutiny of the statements of P.Ws. 3, 4 and 7 shows that the message of death came at village Talav after funeral took place. P.W. 1, P.W. 7 have stated specifically that they were informed by two persons who were sent by accused persons that funeral has already taken place. The statement of D.W. 1 and D.W. 2 do not show that what efforts were made by in-laws of deceased for treatment of the deceased in case she had stomach pain. No doctor has been examined on behalf of the defence that they made efforts for showing the deceased to doctor. This is a case where there is no dispute that no post-mortem took place of the deceased, therefore, cause of death is not known. The statement of the prosecution witnesses show that deceased was hanged by accused, whereas accused in his statement before the trial Court under Section 313, Cr. P.C. states that her death was natural death whereas defence witness D.W. 2 states that she died due to stomach pain.
32. After considering the entire record it appears that death of Smt. Shakuntala was not a natural death. She died otherwise than under normal circumstances within 7 years of the marriage. If it was a natural death then there was no reason not to inform the parents of deceased immediately and to call them and to wait for them till funeral started. The statement of the accused under Section 313, Cr. P.C. as well as statement of D. W. 2, who is brother of the accused, are also contradictory to each other on the point of cause of death. It appears that one of them or both of them are giving false explanation for cause of death. It further appears that Smt. Shakuntala was living with her parents after death of her kid aged about one and half month but she was forced to come again at her in-laws' house on the assurance of her in-laws where she died otherwise than under normal circumstances. There was no inconsistency in the statements of prosecution witnesses about demand of dowry by in-laws of deceased for Rs. 50.000/- or motorcycle. P.W.3 Smt. Santosh has stated that on third-day when she asked mother-in-law of deceased about cause of death then she told that there was a quarrel between husband and wife and his son i.e. the accused hanged the deceased and killed her.
33. The trial Court has considered the statement of P.W. 1 Ghasi Lal, P.W. 2 Kailash, P.W. 3 Smt. Santosh, P.W. 4 Smt. Barfi, P.W. 5 Suresh and P.W. 7 Ramratan and thereafter in paras 9, 10 and 11 of the judgment has rightly recorded a finding about death of deceased Shakuntala otherwise than under normal circumstances and has rightly convicted the accused appellant under Section 304-B, IPC. The reasonings given by the learned trial Court for conviction of the appellant are based on cogent evidence and there is no perversity in it. The contradictions pointed out by the learned trial Court in the prosecution witnesses are of minor nature and they are not fatal to the prosecution case.
34. In view of the above facts and circumstances of the present case, I am of the opinion that the learned trial Court has not committed any illegality in convicting the accused appellant under Section 304-B, IPC.
35. On the point of sentence the learned Counsel for the appellant submitted that looking to all the facts and circumstances of the case, the sentence can be reduced to a period already undergone as appellant has already remained in judicial custody for about 4 years as he is in jail since 8th November, 2001. The offence under Section 304-B, IPC is a heinous offence and the legislature has prescribed a minimum sentence for it. So far as judgment cited by the learned Counsel for the appellant Khairu Rabidas v. State of Jharkhand (supra) and Shamsaheb Neerasaheb Multani 2003 Cri LJ 526 (supra) are concerned, the same are not applicable as in both the cases the accused had already undergone sentence of imprisonment for a period more than 6 years whereas in the present case, the accused has undergone the sentence of imprisonment for a period of only 4 years. Apart from it, when there is a mandate of legislature to pass minimum sentence then the mandate of legislature has to be respected. However, looking to peculiar facts and circumstances of the present case the sentence of imprisonment for 10 years is reduced to a minimum sentence of 7 years R.I. and a fine of Rs. 1,000/- and in default of payment of fine to further undergo one month's S.I. The judgment of the learned trial Court is modified to the extent as mentioned above.
36. Consequently the appeal is partly allowed. The conviction of the appellant under Section 304-B, IPC is maintained but sentence of 10 years R.I. is reduced to a period of 7 years R.I. and fine of Rs. 1.000/-, in default of payment of fine, to further under go one month's S.I.