Rajasthan High Court - Jaipur
Ramesh Singh vs State Of Rajasthan on 26 March, 1998
Equivalent citations: II(1999)DMC260, 1999(2)WLC47, 1998(1)WLN573
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
JUDGMENT Bhagwati Prasad, J.
1. The present appeal has been filed by accused appellant Ramesh Singh against the judgment dated 2.3.1996 passed by the learned Additional Sessions Judge, Ratangarh in Sessions Case No. 30/95 whereby he has been convicted by the learned Additional Sessions Judge under Section 304B, Indian Penal Code and has been sentenced to life imprisonment and a fine of Rs. 1,000 /-.He has also been convicted under Section 498A, Indian Penal Code and has been sentenced to 2 years rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo 6 months rigorous imprisonment on each count.
2. Against the accused appellant and 6 others a report was lodged on 10.3.1995 by P.W. 1 Prithvi Singh at Police Station, Rajaldesar at about 11.30 a.m. In the written report P.W. 1 Prithvi Singh reported that his two sisters Nirmala and Suman have been married to the sons of Balu Singh of Village Payli. His sister Nirmala is married to Sumer Singh and Suman is married to Ramesh Singh. Marriage of both the sisters were solemnised on one day and they were sent to their in-laws' house on the same day about a quarter less than two years before.
3. Ten days after the marriage the sisters were brought back to the family. Sister Nirmala continued to visit her in-laws but his sister Suman did not go back to her in-laws as her husband Ramesh Singh, the appellant, was annoyed with her on account of paucity of dowry. Ramesh Singh never came to take his sister. On the contrary he has kept on informing them that they had not given dowry according to his desire and they will have to face the consequences 8-9 months before the occurrence father-in-law of Suman, Balu Singh had come to their place and insisted that he will make Ramesh Singh understand and they should send Suman. After due deliberations in the family, Suman was sent with her father in-law to Payli.
4. Ten days thereafter Suman was brought back by Nahar Singh. On her return she informed that her husband is annoyed with her on account of paucity of dowry. He is out to commit anything. In such circumstances she was not sent to Payli again. However, 4 days before the occurrence father in-law of Suman, Balu Singh once again came for bringing Suman as there was occasion and assured that nothing will happen to the girl. The occasion was the marriage of Shrawan son of the brother of Balu Singh. On being assured by Balu Singh Suman was sent to Payli.
5. On the morning of 10th March, 1995 the first informant reached Payli where he learnt from his sister Nirmala that Suman was happy until mid night and was dancing in the marriage festivities, but in the morning she was found dead. Her cremation too has been done surreptitiously. She expressed that Suman has been killed by throttling by Ramesh Singh.
6. Prithvi Singh further says that he made enquiries in the village and he was informed that Ramesh Singh was drunk previous night. There was exchange of words in between Ramesh Singh and Suman on account of dowry and during exchange of words Ramesh Singh strangulated Suman and in the morning without informing them, she was cremated.
7. The aforesaid report was lodged at the Police Station, Rajaldesar at 11.30 a.m. which is situated at a distance of 9 kms. from the scene of occurrence. After this, report was lodged the investigation was conducted. A charge-sheet was filled against the 7 accused persons. Charge under Section 302, Indian Penal Code and in the alternative under Section 304B, Indian Penal Code was framed against the accused appellant Ramesh Singh and charges were framed against all the accused persons under Section 201, I.P.C. After trial the learned Additional Sessions Judge felt persuaded that the evidence fell short for the offence punishable under Section 302, Indian Penal Code and, therefore, the accused appellant Ramesh Singh was acquitted of the charge punishable under Section 302, Indian Penal Code. However, the learned Additional Sessions Judge was of the opinion that the marriage of the deceased and the accused appellant was solemnised within 7 years. The death of wife had taken place under unnatural circumstances. There was persistent demand of dowry and cruelty on the wife. Therefore, the offences under Section 304B, Indian Penal Code and 498A, Indian Penal Code were held to be proved and offence under Section 201, Indian Penal Code was not held to be made out. Consequently, the accused appellant was convicted and sentenced as aforesaid and the other 6 accused persons were acquitted of the charge levelled against them.
8. The prosecution case rests on the ocular evidence. P.W. 1 Prithvi Singh who arrived in the morning of 10th of March, 1995 at Payli to participate in the marriage of Shrawan son of Kalyan Singh brother of Balu Singh, father-in-law of the deceased. Soon after his arrival at Payli he received information that Suman is dead. After having learnt about the death of Suman, Prithvi Singh proceeded to Rajaldesar and there he lodged the First Information Report Ex. P-l at 11.30 a.m.
9. P.W. 1 Prithvi Singh has stuck to his version given in the first information that the relations in between the accused appellant and his sister were not good. The reasons for strained relations were that there was a dispute regarding dowry and also the accused had repulsion towards the deceased because she was of dark complexion. The accused used to demand T.V. and Cooler and also complained about not having been given Rs. 60,000/- as Tika'. The deceased was reluctant to go to her in-laws because in the past she had a bad experience. Every time she went there, she returned insulted.
10. On 11.3.1995 Shrawan son of Kalyan Singh was to be married. Balu Singh on this occasion could persuade the parents of Suman to send her with him atleast to attend the marriage. On being assured by Balu Singh she was sent to attend the marriage. Prithvi Singh arrived at Payli in the morning of 10.3.1995. After his arrival he learnt that Suman has been done away with. Soon thereafter he went to the police station and lodged the report. The case of this witness in his cross-examination is that he reached Payli at about 10.15 a.m. In the morning he started from his Village Kajda, Tehsil Chidawa, District Jhunjhunu. After giving this report he went to his village. In the cross examination of this witness the defence has not been able to shake his testimony and he has stuck to his version given in the examination in chief and before the police under Section 161, Criminal Procedure Code.
11. P.W. 14 Nirmala, the sister of the deceased who Was married in the same family has not supported the prosecution case and has turned hostile. Her support to the prosecution case regarding the death of Suman is in terms that she states in her statement that Suman was all right until mid-night and was even engaged in dancing of 'Ghoomar'. Therefore, she clearly deposes that until mid-night she was alright. P.W. 2 Smt. Maya Kanwar mother and P.W. 4 Sayar Singh father of the deceased have deposed regarding Ramesh Singh's intent of demanding dowry. He was dissatisfied with the dowry given.
12. P. W. 7 Bhanwar Singh is a neighbour. He has supported the version of P.W. 1 Prithvi Singh. He has said that the accused used to say that he will not bring his wife firstly because the dowry given was less and secondly she is black and on this count either he will himelf get killed or would kill her. He used to proclaim that he will contact second marriage and this Used to be his rhetoric under the influence of liquor. The accused used to repeat this threat every now and then, under the influence of liquor. On the night intervening 9th and 10th March, 1995atabout2a.m. he was shouting that, "when I said that she is not to be brought she has been brought" and then he threatened that since she has been brought now watch what happens. Some time later he came out of his house speaking that whatever I have done, you people should settle. He saw accused getting out of his house, he was drunk. When this witness asked as to why he was shouting, this witness was replied, that he has done whatever he wanted to do. Early morning a tempo came and at that time a lady was taken to bus stand and within 15 minutes she was brought back. Soon thereafter the deceased was taken to cremation ground. This witness was cross-examined in detail. But the basic tenor of his testimony was not shaken in the cross-examination.
13. The learned Trial Judge has placed reliance on the circumstance that the accused never went to the house of his in-laws to get his wife. Every time she was brought by her father-in-law. She returned humiliated and persecuted. She was a reluctant person to come to her husband's house. Since her father-in-law assured that the accused will behave properly she was made to accompany her father-in- law. Until mid night on 9th March, 1995 she was alright. During the night Bhanwar Singh heard the accused accusing his family members for bringing her against his wishes and then shouting that he has done whatever he wanted to do, they should negotiate the remainder.
14. The learned Additional Sessions Judge felt that the cruelty as defined under Section 498A, Indian Penal Code is clearly made out. Turning of Nirmala hostile is not a circumstance which can go against the prosecution because Nirmala was married in the same family and she still had to live her life in that family. But Nirmala is witness of the fact, that until mid night the deceased was in the fit state of health. It was after mid night only, that she died. Human blood was detected on the petticot of the deceased. The learned Additional Sessions Judge has drawn corroboration of this fact from the report of the Forensic Science Laboratory Ex. P.27. This fact is clear to establish that her death was not under normal circum- stances. Blood on petticot cannot be explained in any normal fashion. Further the learned Additional Sessions Judge was of the opinion that the cremation was done under surreptitious circumstances. Even the paternals were not informed about the death of the deceased and, therefore, it was a fit case where the presumption under Section 113B of the Evidence Act deserves to be drawn and held the offence under Section 304B read with Section 498A, Indian Penal Code proved. The learned Additional Sessions Judge has, however, acquitted the accused persons of the offence under Section 201, Indian Penal Code as the evidence was lacking in material details to bring out the offence under this section.
15. The learned Counsel for the appellant challenging the conviction has urged that when the accused was facing the dual charge under Section 302, Indian Penal Code and Section 304B, Indian Penal Code which are in substance not the same kind of charges, a prejudice has been caused to the appellant. The requirements of proof and evidence in relation to both the offence are different and, therefore, when the accused was facing a charge in the alternative he could not properly defend himself.
16. Further the argument of the learned Counsel for the appellant was that acquittal recorded by the learned Additional Sessions Judge under Section 201, Indian Penal Code clearly shows that the offence was not committed qua the deceased and since the offence was not committed therefore, there was no question of any evidence of the offence being gone done away and, therefore, the acquittal of the accused persons under Section 201, Indian Penal Code clearly establishes that the accused were not guilty of any offence.
17. Learned Counsel further asserted that the best evidcence in the case was Smt. Nirmala and she has turned hostile. She was the real sister of the deceased and her turning hostile is very material. When the real sister of the deceased is not supporting the prosecution case then it clearly envisages that the appellant cannot be held guilty. It is urged by the learned Counsel for the appellant that the witness P.W. 7 Bhanwar Singh has wrongly been relied upon. There is no family terms with him and he nurses a grudge against the accused. In any case, the learned Counsel for the appellant urges that sentence awarded is highly excessive. Where the reason of death has not been established, the awarding of sentence of life imprisonment is not called for.
18. Learned Public Prosecutor has urged that the learned Additional Sessions Judge has rightly convicted the accused appellant. There is sufficient evidence on record to establish that right from the beginning the accused has not treated his wife well. In short span of a quarter less than two years the wife had died under unnatural circumstances. She was persecuted and tortured consistently for whatever period she lived with her in-laws. The accused had even upto last, extending to the night of 9th March, accusing the lady and has been complaining against her being brought to the family. The conduct of the accused in the past was the testimony of the cruel behaviour of the husband towards the wife. His conduct on the night intervening 9th and 10th March, 1995, that is the night of death, shows that he had all the anger stored in him against the deceased and his cruelty has never ceased towards the deceased. It was an ongoing process right from the beginning of the marriage.
19. The lady was cremated without even informing her parents. The brother of the deceased had arrived on that day itself as he was expected to attend the marriage of Shrawan, they could have atleast waited for him to arrive. The accused persons had tried to create ah evidence by taking the deceased in a tempo and then bringing her back. But this also goes against the accused persons as once she was shown to be sick on that morning then she should have been examined by a doctor. Once she was set to be taken to Ratangarh then bringing her back within 10 to 15 minutes shows that it was only an act of creating evidence. The ingredients of the offence under Section 304B, Indian Penal Code are clearly made out. The presumption can be drawn under Section 113B of the Evidence Act because the death was within 7 years of the marriage and cruelty was associated in the behaviour of the accused. Thus, the presumption was available against the accused. The accused has not been able to discharge his burden in disputing this presumption and, therefore, he has rightly been convicted and proper sentence has been awarded by the learned Additional Sessions Judge.
20. We have heard the learned Counsel for the appellant as well as the learned Public Prosecution and have also gone through the record.
21. The marriage and death of the deceased were within a period of quarter less than two years. Right from the beginning the husband had not treated his wife well. He had never come to escort his wife as he was not happy with her because she was black and had not brought sufficient dowry. Every time she was taken she returned humiliated and presecuted. All these facts are clearly borne out from the evidence of P.W. 1 Prithvi Singh, brother; P.W. 2 Smt. Maya Kanwar, mother; and P.W. 4 Sayar Singh, father of the deceased. Thus, the strained relationship between the husband and wife and demand of dowry is proved beyond reasonable doubt.
22. From the evidence on record it is established that the deceased was escorted by her father-in-law Balu Singh 3-4 days before the incident. She was reluctant at the time when she was escorted by her father-in-law Balu Singh. Her parents and brother only agreed after Balu Singh assured them that he will make his son understand and he will never now commit anything foul. The occasion was the marriage of Balu Singh's brother's son and, therefore, at his insistence she was sent. The marriage was to be solemnised on 11th March, 1995. On 10th March, 1995 the deceased was dead and cremated. During the night the deceased was in perfect condition as deposed by P.W. 14 Smt. Nirmala, sister of the deceased.
23. P.W. 7 Bhanwar Singh an immediate neighbour stated that the accused was shouting and protesting against the bringing of the deceased. He was also exhorting that he has done whatever he wanted and your people should negotiate. This witness has also stated that for 10 to 15 minutes the deceased was taken in a tempo and then brought back and then in the morning in a hurry she was cremated. The sequence of events clearly establishes that Suman had died under the circumstances which were otherwise than normal and within 7 years of the marriage.
24. No explanation is coming forth as to why she was cremated in post haste under the circumstances indicated by the prosecution. The demand of dowry had been an ongoing process and that has been sufficiently highlighted in the evidence of parents and brother of the deceased and P.W. 7 Bhanwar Singh and it can be safely said that until last minute of life of Suman, Ramesh Singh persecuted her for bringing less dowry and, therefore, we are of the firm opinion that the offence under Section 304B, Indian Penal Code is clearly made out against the accused appellant.
25. The doubts which have been tried to be created by the defence is not sufficient. Presumption is available against the accused under Section 113B of the Evidence Act.
26. The acquittal under Section 201, Indian Penal Code does not absolve the accused appellant from the offence under Section 304B because the ingredients of Section 201, Indian Penal Code are not supported by any presumption, which can be drawn under any provision of the Evidence Act. The offence under Section 201, Indian Penal Code has to be independently proved. But the offence under Section 304B, Indian Penal Code can be established by drawing a presumption under Section 113B of the Evidence Act. Therefore, the argument of the learned Counsel for the appellant that acquittal under Section 201, Indian Penal Code should be read in favour of the accused has no foundation.
27. The case of the accused that the defence has been prejudiced because the charges under Section 302, Indian Penal Code and Section 304B, Indian Penal Code have been simultaneously levelled against the accused has no legal basis. The Courts have taken a constant view that the charge under Sections 302 and 304B, Indian Penal Code can coexist vide 1993 Cr. L.J. 2636 and, therefore, no prejudice has been caused.
28. The conviction of the appellant has been supported by the learned Additional Sessions Judge vide Smt. Shanti & Anr. v. State of Haryana, AIR 1991 SC 1226=I (1991) DMC 187. The Hon'ble Supreme Court in this case has held that where the body is cremated hurriedly without even informing the parents, the unnaturality of the death can be seen in it. The cremation has excluded the possibility of post mortem and, therefore, the cause of death could not be clearly established. When the death in not shown to be normal then it was definitely an unnatural either homicidal or suicidal and under these circumstances the Hon'ble Supreme Court was of the view that an offence under Section 304B is attracted. The support is perfect from the citation and, therefore, nothing wrong has been committed by the learned Additional Sessions Judge in finding the offences under Sections 304B and 498A, Indian Penal Code proved against the accused appellant.
29. This brings us to the question of sentence to be awarded to the appellant. The reason of death has not been established by the prosecution. The evidence is lacking on this part. Therefore, the prosecution case suffers from this lack and support is taken from the presumption under Section 113B of the Evidence Act. The Hon'ble Supreme Court in the aforesaid case itself has awarded the minimum sentence of 7 years instead of life imprisonment. Therefore, we also deem it proper that in the given facts and circumstances of the case, the imprisonment of 7 years under Section 304B, Indian Penal Code would meet the ends of justice.
30. In the result, we allow the appeal in part and confirm the conviction of the appellant under Section 304B, Indian Penal Code and alter the sentence under Section 304B, Indian Penal Code from life imprisonment to one of 7 years rigorous imprisonment with a fine of Rs. 1,000/- and in default of payment of fine the appellant would undergo further six months rigorous imprisonment. The conviction of the appellant under Section 498A; Indian Penal Code is maintained. Since the accused has been sentenced under Section 304B, Indian Penal Code a separate sentence under Section 498A, Indian Penal Code is not necessary in view of the decision of the Supreme Court in Smt. Shanti & Anr. v. State of Haryana (supra).
31. With the aforesaid modification, the appeal is allowed in part.