Rajasthan High Court - Jaipur
Hira Ram And Anr. vs State Of Rajasthan on 24 September, 2004
Equivalent citations: II(2005)DMC799, RLW2005(3)RAJ1565, 2005(1)WLC20
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT N.N. Mathur, J.
1. This appeal is directed against the judgment dated 3.12.2002 passed by the Additional Sessions Judge (Fast Track), Nagaur convicting the appellants Hira Ram and his wife Smt. Rukma for offence under Section 304B I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs. 25000/-; in default of payment of fine to further undergo 2 years simple imprisonment. They have also been convicted for offence under Section 498A I.P.C. and sentenced to 3 years simple imprisonment and to pay fine of Rs. 5000/-; in default of payment of fine to further undergo 1 month simple imprisonment. Both the sentenced have been ordered to run concurrently.
2. The prosecution case as unfolded during the trial is that on 19.1.96 D.W.3 Trilok Ram submitted a written First Information Report Ex.P12 at Police Station, Jaswantgarh stating inter alia that his uncle's daughter Buli was married to one Harphool son of appellant Hira Ram of village Laidy. Last evening he was informed that while no member of the family was in house Buli accidentally slipped in the tank and died on account of drowning. The appellants came to know about the incident when they returned from the field. The information of the incident was given to the parents of Buli. It was further stated that Buli was married to Harpool about 4 years back, she was 19 years old sick and issueless lady. On this information police commenced inquiry under Section 174 of the Code of Criminal Procedure. No external injury was found on the dead body. In the opinion of the Medical Board Mst. Buli died of asphyxia due to drowning.
3. On 17.1.97 P.W.18 Mst. Dhapu submitted a typed written report at Police Station, Jaswantgarh stating inter alia that his daughter Mst. Buli was married to Harphool son of appellant Hira Ram in village Laidy. She was being harassed for not bringing sufficient dowry. Father-in-law, mother-in-law and the sister-in- law used to threaten her to bring Scooter, Freeze, Cooler and Rs. 50,000/- else she would not be kept in matrimonial home. The appellant Hira Ram used to tease her with bad intention. Her husband P.W.7 Uma Ram alongwith, P.W.9 Bhanwar Lal, P.W.21 Badri Prasad and P.W.1 Asu Singh implored mercy from the appellant Hira Ram but he did not yield. It was further alleged that there were also complaints against appellant Hira Ram of teasing his elder daughter-in-law P.W.4 Radha with bad intention. She being tired of his conduct, settled in her parents house. It was further alleged that the appellants Hira Ram and Rukma murdered Buli by drowning in the tank on 18.12.96. On receiving information from Triloka Ram her husband went to village Laidy. Seeing the dead body of his daughter he became unconscious. While he was lying unconscious the accused persons got his thumb impressions on certain papers. The delay in filing the First Information Report was due to the mental illness of her husband. On this information police registered a case and proceeded with investigation. It further appears that while investigation was pending efforts were made to settle the matter in a panchayat. The meeting was convened on 17.3.99 under the chairmanship of P.W.26 Karan Singh. The matter was heard by a collegium of 7 panchas. The appellant Hira Ram did not attend the panchayat meeting. The panchayat gave its judgment after a month. In the opinion of the panchayat Mst. Buli died because of the misconduct of her father-in-law Hira Ram. The case was transferred to the C.I.D. (CB) for investigation. The appellants could not be arrested as such police filed a charge-sheet on 12.5.98 against them under Section 299 Cr.P.C. for offence under Section 498A & 304B I.P.C. in the court of Judicial Magistrate First Class, Ladnu. The appellants surrendered before the Trial Court on 24.8.98. Thus, the police filed a supplementary charge-sheet against the accused persons. On being committed the case was transferred to the court of Additional Sessions Judge, Nagaur Camp Deedwana for trial. Eventually the case was transferred to the court of Additional Sessions Judge (Fast Track), Nagaur. The appellants denied the charges levelled against them and claimed trial. The prosecution in support of the case examined 26 witnesses. The accused persons in their statement under Section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against them. The appellant Hira Ram stated that on the date of incident i.e., 18.12.96 he along with his wife Rukma had gone to the field leaving behind their daughter-in-law Buli Devi. At about 8:00 P.M. they returned from the field. Inspite of repeated calls there was no response from inside the house. A young boy named Sharvan Kumar climbed on the wall and made entry in the house and opened the gate. Because of darkness with the help of torch they looked inside the tank and found that Mst. Buli was lying dead. He immediately sent a message to her father namely Uma Ram. He also called Asha Ram, Triloka Ram and Ladu Ram the relatives of deceased Buli Devi. It was unanimous opinion that Buli Devi died because of the accidental slip in the tank. Triloka Ram submitted a report of the incident at the Police Station, Jaswantgarh on the next day. The police visited the site. The dead body was taken out from the tank. All the necessary formalities were completed. The Circle Officer and the Sub Divisional Magistrate, Deedwana also arrived on the spot. The statement of Uma Ram was also recorded vide Ex.D2. The parents of the deceased did not suspect any foul in the death of Buli Devi. However, after 20 days Uma Ram the father of the deceased sent a message through Triloka Ram to arrange for a sum of Rs. 50,000/- the amount which he incurred in the marriage. The offer was not accepted by him. After some time Uma Ram raised the demand to the tune of an amount of Rs. 1 Lakh. As he did not arrange the money demanded by Uma Ram he lodged a false and fabricated case against him. The statement of second respondent Rukma is almost in the same line. In support of the version the appellants examined D.W. 1 Sharwan Ram, D.W.2 Mal Chand and D.W.3 Triloka Ram. The Trial Court found the prosecution case proved and as such convicted and sentenced the appellants in the manner stated above.
4. Challenging the conviction and sentence it is contended by Mr. G.R. Punia learned counsel for the appellants that there has been an inordinate delay of almost one month in lodging the First Information Report, which has not been satisfactorily explained. This raises serious suspicion about the correctness and truthfulness of the prosecution case. It is further submitted that the conviction is solely based on the testimony of P.W.21 Badri Prasad whose statement has been recorded almost after a month of the incident. It is further submitted that there is not a fringe of evidence that deceased Buli was subjected to cruelty or harassment by the appellants in connection with any demand of dowry soon before her death. Thus, the basic ingredients to constitute dowry death under Section 304B I.P.C. are conspicuously missing. Thus, according to the learned counsel it is not at all a case of dowry death and that provision of Section 113B of the Indian Evidence Act raising presumption against the appellants cannot be pressed into service. On the other hand the learned Public Prosecutor sought to explain the delay in filing the F.I.R. on twin grounds. Firstly the father of the deceased P.W.7 Uma Ram could not bear the shock of the tragic death of his young daughter and he become mentally disturbed. Secondly at the instance of the accused persons D.W.3 Triloka Ram a close relative of the deceased was pressurizing them not to take matter to the police. He succeeded in misdirecting the victim family to the extent that the initial investigation could not proceed in right direction. Thus, according to the learned Public Prosecutor the delay has been satisfactorily explained and the same is not at all fatal. He referred to the statements of P.W.7 Uma Ram and P.W.18 Mst. Dhapu, P.W.21 Badri Prasad, P.W.2 Purna Ram, P.W.10 Bhanwar Lal and P.W.11 Ramu Ram, P.W.13 Moola Ram, P.W.24 Smt. Kamla and P.W.20 Ladu Ram to show that the deceased Buli was subjected to cruelty and harassment by the appellants in connection with their demand of dowry. The learned Public Prosecutor in addition to the aforesaid witnesses has also referred to the statements of P.W.3 Asha Ram and P.W.4 Radha, P.W.12 Shanta and P.W.16 Ram Gopal to show that the appellant Hira Ram is a person of bad character. He has been by his conduct seeking sexual favour from his deceased daughter-in-law. It was also a major factor contributing the unnatural death of deceased Buli. He has also referred to the statements of P.W.19 Bheem Singh, P.W.23 Mala Ram and P.W.26 Karan Singh to assert the fact that after the incident a panchayat of more than thousand people had assembled and a group of 7 persons was authorized to find out truth in the matter. The panchayat consisting of 7 persons submitted a report holding that the misconduct of the appellant Hira Ram was the reason of unnatural death. It is also asserted by the learned Public Prosecutor that the size of the mouth of the tank was very small (13 Inches) and as such there could be no possibility of accidental slip of the deceased in the tank. Thus, according to the learned Public Prosecutor the prosecution has successfully proved the death of Buli as occurred within 7 years of marriage in abnormal circumstances and soon before her death she was subjected to cruelty and harassment in connection with the demand of dowry.
5. We have scanned, scrutinized and analyzed the evidence and considered the rival contentions.
6. The demand of dowry is devouring lives of young girls, who marry with high hopes of having a heavenly abode in their husband's house. Attempt was made to control the deep rooted social evil by enacting Dowry Prohibition Act, 1961. However, as the evil could not take care of by this soft statute the Penal Code was amended first by inserting Chapter XXA (containing only 498A) in it, by the Criminal Law (Second Amendment) Act, 1983 and then by insertion of Section 304B. By the Dowry Prohibition (Amendment) Act, 1986. Section 498A I.P.C. seeks to protect a married woman from being subjected to cruelty by her husband or his relatives. Section 304B is aimed at those who indulge in dowry death. To give teeth to these provisions Section 113A was inserted in the evidence Act permitting court to presume having regard to circumstances of the case, that suicide by woman was abetted by her husband or his relatives. Similarly, Act of 43 of 1986 inserted Section 113B in the Evidence Act requiring some presumption to be drawn in case of dowry death. Section 304B reads as follows:-
"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).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
7. Analyzing the provision recently the Apex Court in Sunil Bajaj v. State of M.P. Reported in 2001 (9) SCC page 417 has pointed out the following essential ingredients of offence under Section 304B I.P.C.
"(1) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(2) such death must have occurred within 7 years of her marriage;
(3) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
(4) such cruelty or harassment must be for or in connection with demand of dowry."
The Court held that it is only when the aforesaid ingredients are established by the acceptable evidence such death shall be called "dowry death" and as such husband or his relative shall be deemed to have caused her death. Thus, in case of offence under Section 304B I.P.C. an exception is made by deeming provision as to the nature of death as "dowry death" and that the husband or the relatives as the case may be is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. At the cost of repetition it must be noticed that the expression "soon before" is relevant when Section 113B of the Evidence Act and Section 304B are pressed into service. The burden is on the prosecution to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Thus, it is not enough that harassment or cruelty was caused to the woman for demand of dowry, if Section 304B I.P.C. is pressed, it must have happened soon before the death. The said expression is no doubt elastic in nature and can refer to period either immediately before her death or seven a few days or even a few weeks. However, proximity with her death is the pivot indicated by the expression.
8. In the instant case as far as the first ingredient is concerned, it is not in dispute that the deceased Buli died of homicidal death otherwise than under normal circumstances. P.W.17 Dr. Bhanwar Singh has stated that he was one of the member of the Medical Board which conducted autopsy on the dead body of deceased Buli. He has proved the post-mortem report Ex.P11. In the opinion of the Board the cause of death was asphyxia due to drowning. It is stated by the father and mother of the deceased namely P. W.7 Uma Ram and P.W.18 Dhapu that she was married to Harphool the son of the appellants 4 years prior to the date of the incident. Thus, the second ingredient of the offence is also established that death had occurred within 7 years of the marriage of the deceased. Before we proceed further to see whether the remaining two ingredients are also satisfied, it would be convenient to deal with the major criticism levelled by the appellant to the effect that there is an inordinate delay of almost one month in lodging the First Information Report without satisfactory explanation which raises a serious suspicion about the correctness and truthfulness of the prosecution case.
9. In the instant case the alleged incident took place on 18.12.96. A First Information Report of the incident was lodged at Police Station, Jaswantgarh on 19.12.96 at 7:45 A.M. by D.W.3 Triloka Ram. On the basis of that report an inquiry under Section 174 Cr.P.C. Commenced. However, a typed written First Information Report was submitted by P. W. 18 Dhapu Devi on 17.1.97 at Police Station, Jaswantgarh. On the basis of that report a case was registered against the appellants for offence under Section 498A & 304B I.P.C. Thus, apparently there is a delay of almost one month in lodging the First Information Report. It is sought to be explained by the informant Dhapu Devi herself when she stated in the F.I.R., that her husband on receiving the shocking news reached to the house of appellant Hira Ram and seeing the dead body of his daughter he became unconscious. It is also averred that while her husband was unconscious his thumb impressions were taken on papers. It was further averred in Para 8 of the F.I.R., that her husband became mentally sick seeing the dead body of their daughter and as such he could not narrate the entire incident immediately. The same explanation has been given by her when she appeared in the witness box as P.W.18. In the cross examination she admitted that though her husband Uma Ram remained unconscious for about 12 days but she did not consult any doctor. P.W.7 Uma Ram has stated that on 18.12.97 he was informed by Triloka Ram about the death of his daughter Buli. He accompanied him in the jeep to Laidy. Seeing the dead body of his daughter he became unconscious. However, he has further stated that he inquired from Hira Ram as to the cause of death on which he disclosed that he had gone to the field with his wife and when returned in their absence Buli accidentally slipped in the tank. He also confronted him as to how she could slip in a tank having a small hole. After 15 days of the incident when he gained consciousness his wife inquired about the details of the incident. It was also decided to make an inquiry into the matter. After verifying the facts a First Information Report was lodged. The statements of both the witnesses on the question of delay in filing the First Information Report does not inspire confidence. Even according to P.W.7 Uma Ram he gained consciousness after 15 days. He could have lodged the First Information Report even after 15 days but in fact it was lodged after one month. If Uma Ram had in fact become unconscious his family members would have definitely arranged the medical assistance. It is admitted by P.W.18 Dhapu that no medical assistance was sought during the entire period of unconsciousness of her husband.
10. On the other hand P.W.15 Satya Narayan has stated that during investigation he recorded statement of Uma Ram as well as of Dhapu Devi on 19.12.96. Ex.D2 is the statement of Uma Ram recorded on 19.12.96 itself. He has been confronted with his earlier statement wherein he has stated that his daughter Buli Devi had no grievance against her father-in-law and mother-in- law. Similarly P.W.20 Ladu Ram has stated that on 19.12.96 he was Incharge of Police Station, Jaswantgarh. He has also stated that a written First Information Report Ex.P12 was submitted by one Triloka Ram. He has admitted in the cross examination that he was in complete senses when his statement Ex.D1 was recorded on 19.12.96.
11. The Apex Court in Thulia Kali v. The State of Tamil Nadu reported in AIR 1973 SC page 501 has held that F.I.R. in a criminal case is extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial and that the importance of such report can hardly be overestimated from the stand point of view of the accused. It was further observed that the object of insisting upon prompt lodging of the report to the police in respect of commission of offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits, the part played by them as well as the names of the eye witnesses present at the scene of occurrence. The delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. It was further observed that on account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of the cloured version, exaggerated account or concocted story as a result of deliberation and consultation. Thus, it was emphasized that the delay in lodging of the F.I.R. Should be satisfactorily explained. In the instant case the typed report Ex.P12 has been submitted almost after a month of the alleged occurrence. There is no satisfactory explanation for the delay. This fact raises a reasonable suspicion in the prosecution case as unfolded during the trial.
12. Reverting to remaining two ingredients of offence under Section 304B I.P.C., we may proceed to analyze, evaluate and scrutinize the relevant evidence for reappraisal, if the deceased was subjected to cruelty or harassment by the appellants soon before her death and further if such a cruelty or harassment was in connection with the demand of dowry. P.W.7 Uma Ram is the father of the deceased Buli. He has stated that his daughter deceased Buli was married to Harphool the son of the appellants about 4 years back. He also stated that he had given dowry as per their capacity in her marriage, which included ornaments, household articles and cash amount of Rs. 11,000/-. Whenever she visited them, she used to complain of torture and harassment at the hands of her father-in-law, mother-in-law and sister-in-law for not bringing sufficient dowry. Appellant also used to tease her. He proposed to live with him as his wife or bring in cash Rs. 50,000/-, Freeze, Cooler etc. He along with 2-3 persons went to village Laidy and tried to satisfy the appellants. He also assured that he will meet their demands as per his capacity. He was accompanied by Mala Ram, Purna Ram, Asu Singh, Badri Prasad, Bhanwar Lal etc. He refused to behave properly and asserted that the deceased was his property, as such he was at liberty to use the same, the way he like. He further insisted for arranging Rs. 50,000/- and other articles like Freeze, Cooler, Scooter etc. He also stated that the appellant Hira Ram had misconducted in the same manner on earlier occasion with the elder daughter-in-law namely Radha. The appellant Hira Ram took the deceased Buli from his house on 15th on the pretext that Harphool was to visit on 17th. She died in her matrimonial home. From the statement of this witness, it is difficult to discern the time leg between the demand of dowry and the date of death.
13. P.W.18 Dhapu is the mother of the deceased. She stated that after 12 months of the marriage the deceased was sent to her matrimonial home. She used to complain about the harassment at the hands of her father-in-law, mother-in-law and sister-in-law for not bringing sufficient dowry. They had asked to bring Scooter, Freeze and a sum of Rs. 50,000/- in cash from her father. She also used to report that her father-in-law appellant Hira Ram after consuming liquor used to misbehave with her with bad intention. Even during night he used to knock the door of her bed-room. On certain occasions he entered in her bed-room and tried to outrage her modesty. It was also reported that he had misbehaved with his elder daughter-in-law namely Mst. Radha two months prior to the date of incident. The appellant Hira Ram had harassed the deceased in the same manner. Her husband along with Asu Singh, Bhanwara etc. had met him in village Laidy to advise him to behave property. A day before the incident Hira Ram had visited their house to take the deceased to his house. The deceased was not prepared to go with him. She complained that he may harass or torture her. She was confronted with her earlier statement Ex.P7, wherein she had omitted to give the statement as to the harassment to her daughter at the hands of the appellants. In the cross examination she denied the suggestion of filing a false complaint against the appellant. In her statement recorded on 19th she has not said a word about the alleged dowry demand, harassment and misbehaviour at the hands of the appellant. The contradictions, omissions and improvement in her statement, creates a serious doubt about the truthfulness of version given by her and as such it is unsafe to rely on her testimony to convict the appellants.
14. P.W.21 Badri Prasad lived in the neighborhood of the appellants. He has stated that on 17.12.97 he heard the cries of deceased Buli. He rushed to the house of appellant Hira Ram. He knocked the door but Hira Ram refused to open the same. The window of the room was open. From the window he could see that both the appellants were beating deceased Buli with hands and fists. She was being dragged by them. On his intervention he was advised to leave the place otherwise he will face the serious consequence. He further stated that the deceased Buli had sustain injuries on various parts of the body. The main criticism levelled against this witness is that inspite of the fact that he knew that after the said incident the deceased Buli was reported to have died he had not reported the matter to the police. His statement has been recorded after a month from the date of the incident. Further his statement does not find corroboration from the medical evidence. The postmortem report Ex.P11 shows that there are no injuries on any part of deceased Buli. It clearly appears that P.W.21 Badri Prasad is a cooked up witness. No reliance can be placed on the testimony of such witness.
15. P.W.2 Purna Ram has stated that Uma Ram had approached to him and complained about the illtreatment to his daughter by the appellant Hira Ram. He along with P.W.7 Uma Ram went to the village Laidy. He inquired from the appellant as to why he was harassing the daughter of Uma Ram on which he replied that he had not given sufficient dowry in marriage. In the cross examination he has admitted that he does not remember as to on what date, month or year he had gone to village Laidy with Uma Ram to meet appellant Hira Ram. He has further stated that he had alone gone with Uma Ram to the house of the appellant. On this aspect his statement does not find corroboration from the statement of Uma Ram himself when according to him he had gone with 2-3 persons namely Bhanwar Lal, Moola Ram etc. In the cross examination he could not give the correct description of the house of the appellants. It creates doubt if he had actually visited the house of the appellant along with Uma Ram. He has also admitted that in one of the case Uma Ram had obliged him by giving evidence in his favour. On careful consideration of the entire evidence, this witness cannot be placed in the category of wholly reliable witness.
16. P.W.10 Bhanwar Lal has stated that he had gone to the house of appellants along with Uma Ram to reprimand him for harassing the deceased Buli. He has stated that the deceased Buli was his property he would use her, the way he like. He has further stated that Uma Ram had failed to meet the dowry demand of Rs. 50,000/- in cash and other articles. He also stated that on 3.9.96 the deceased Buli was being assaulted by the appellants in the field. In the cross examination he admitted that the appellant Hira Ram was tried on the charge of murder of his father. It is difficult to comprihand that Uma Ram would take with him a person like P.W.10 Bhanwar Lal with whom his relations were not cordial as he was charged for the murder of his own father. Police recorded statement of this witness after more than a month of the incident. He, clearly appears to be cooked up witness.
17. P.W.11 Ramu Ram is the nephew of P.W.7 Uma Ram. He stated that his aunt i.e., Uma Ram's wife used to say that Buli is not happy in her in-laws house as she was being tortured and harassed by the appellants. His statement is of general nature.
18. P.W.13 Moola Ram stated that the appellant Hira Ram used to say that the in-laws of his son Harphool had not given sufficient dowry. He has been raising demand of Freeze, Cooler and Rs. 50,000/- in cash. He also used to propose for the second marriage of Harphool.
19. P.W.24 Kamla is the sister of the deceased Buli. She has stated that buli was married with Harphool in village Laidy. There were no problem for about one year. However, after one year they used to complain for not giving sufficient dowry. They had raised demand of Scooter, Freeze, Cooler etc. They also threatened that if the demand is not met Buli shall be killed. Buli also reported that her father-in-law after consuming liquor used to harass her. On appreciation of evidence of Mst. Kamla there is nothing to suggest that soon before the death the deceased was subjected to cruelty by the appellants in connection with the demand of dowry.
20. P.W.25 Ladu Ram is the brother-in-law of P.W.7 Uma Ram. He stated that he had heard about the death of Buli in village Laidy. D.W.3 Triloka Ram had approached to him and advised for settling the matter. He also stated that Hira Ram was prepared to pay Rs. 70 to 80 thousand for this. He advised him to talk to P.W.7 Uma Ram.
21. That prosecution has also examined certain witnesses as to the character of appellant Hira Ram. P.W.3 Asha Ram has stated that D.W.3 Triloka Ram had approached to him with a view to settle the matter with Uma Ram. He could not talk to Uma Ram as he was unconscious after the incident. He stated that appellant Hira Ram is a person of bad character. The main cause of death of Buli was the character of appellant Hira Ram. P.W.4 Mst. Radha is the elder daughter-in-law of appellant Hira Ram. In her deposition, she has certified her father-in-law i.e., the appellant a person of good character. She denied the suggestion of misbehavior by the appellant with her. It is significant to notice that P.W.7 Uma Ram and P.W.18 Dhapu Devi have in their statement have charged appellant for misbehavior even with his elder daughter-in-law Mst. Radha. This witness has not only denied the charge of misbehavior with her but the appellant, but has gone to the extent of saying that his relation with Buli were normal. She denied the suggestion that, deceased Buli was being harassed by appellant for not bringing sufficient dowry. This witness has been declared hostile by the prosecution. P.W.16 Ram Gopal has stated that the appellant Hira Ram is a person of good character. He denied the suggestion that he misbehaved with his aunt. This witness has also been declared hostile by the prosecution.
22. The prosecution has also led evidence to show that on 17th March, 1997 i.e., after three month of the incident a community meeting was convened at Jat Mandir, Sujangarh. It was attended by a large crowd of about one thousand persons. The meeting was convened under the chairmanship of one Ram Narain. In the said meeting P.W.7 Uma Ram made a complaint as to the conduct of the appellant leading to the death of his daughter. In the said meeting a panchayat was constituted consisting of Govardhan Lal, Ransingh, Surja Ram, Dhanna Ram, Khinva Ram, Mahal Chand. The said committee was divided in three groups. They visited the village Laidy and made inquiry from different persons of the incident. They also inspected the site and submitted a report. The committee arrived at the conclusion that the appellant Hira Ram is a person of criminal back ground and he used to tease his both the daughter-in-law. According to their report either the appellant committed the murder of Buli or she committed suicide being tired of his conduct. He failed to produce this report referred to by him. The statement P.W.23 Mala Ram is almost in the same line so as the statement of P.W.26 Karan Singh. It was admitted that in the said meeting the appellant Hira Ram was not present. We are of the view that this sort of evidence is of no avail to the prosecution. Such sort of parallel agency to investigate a case deserves to be disapproved.
23. P.W.5 Ramu Ram is the neighbour of appellant Hira Ram. He has stated that on the date of incident he had gone to the house of appellant Hira Ram. The door of the house was closed. One boy named Sharwan climbed on the wall and entered in the house and opened the door. It was dark and as such a torch was brought. The dead body of Buli was seen in the tank. This witness has not supported the prosecution case. As such he has been declared hostile.
24. P.W.15 Satya Narain Dy. Superintendent of Police at Deedwana has given the details of the investigation. He inspected the site in presence of the family members of the deceased including Uma Ram. In the cross examination he stated that he had recorded the statements of Uma Ram and Dhapu, but just after the incident they did not make any statement alleging the harassment of Buli Devi at the instance of the appellants. He also stated that he recorded the statement of Uma Ram, Bhanwar Lal, Ramu Ram, Shanti. He also recorded the statement of Dhapu Devi. He also stated that when Uma Ram gave statement, he was perfectly in fit mental condition.
25. P.W.20 Ladu Ram was Incharge of Police Station, Jaswantgarh on 19.12.96. He has stated that D.W.3 Triloka Ram submitted a written report Ex.P12. On the basis of that report the Sub Divisional Magistrate, Deedwana conducted an enquiry under Section 174 Cr.P.C. in the presence of the S.D.M. The site-plan Ex.D1 was prepared. In the cross examination he admitted that when the site was inspected and the Memo Ex.D1 was prepared P.W.7 Uma Ram was in fit mental condition. He remained throughout with them during the inquiry. The statement of Uma Ram was recorded on 19.12.96 Ex.D3.
26. The defence has examined D.W.1 Sharwan Ram. He has stated that in December, 1996 while he was playing Girdhari Ram called him and asked him to get in the house of appellant and open the door. Accordingly he climbed on the wall, jumped inside the house and opened the door. At that time Ramu Ram arrived with the torch, peeped into the tank. It was found that Mst. Buli was lying dead in it. D.W.2 Mal Chand @ Mal Singh stated that his house is at a distance of 15 Meters from the house of appellant Hira Ram. He also stated that the daughter-in-law of appellant Hira Ram died on account of drowning in the tank. The police prepared the site-plan in his presence. A big crowd had assembled on the spot. P.W.21 Badri Lal was not seen in the locality for the last 20-25 years. D.W.3 Triloka Ram has stated that deceased Buli was his niece in relation. On 18.12.96 he came to know from Girdhari Lal that Buli has died. He went to Sujangarh to inform about the incident to P.W.7 Uma Ram. He returned to village Laidy along with Uma Ram, Asha Ram etc. Uma Ram did not complain of dowry death. Under the instructions of Uma Ram he lodged First Information Report at Police Station, Jaswantgarh vide Ex.P12. He has stated that after 20 days of the incident Uma Ram, Ladu Ram approached to him. They asked him to convey the message to Hira Ram to arrange about Rs. 50,000/- for setting the dispute. The offer was not accepted by Hira Ram. However, Umar Ram continued to raise the demand. A stamp paper was also brought for preparing a document for a sum of Rs. One Lakh. The First Information Report was filed as Hira Ram refused to arrange the said amount for Uma Ram. In the cross examination he denied the suggestion that he was making a false statement to protect the appellant.
27. From the aforesaid discussion of the evidence it emerges that there is no satisfactory explanation of delay in filing the First Information Report. The explanation given by Mst. Dhapu to the effect that her husband was unconscious for 15 days has been falsified by the prosecution own witnesses. P.W.20 Ladu Ram has stated that he had inspected the site on 19.12.96 in presence of Uma Ram at that time he was perfectly in fit mental condition. Otherwise also it is difficult to comprehend that Uma Ram remained unconscious for 15 days and the family members did not arrange for medical aid. His statement was recorded on the same day by the police. He has not uttered a single word about the demand of dowry by the appellants. Thus, the delay in filing the F.I.R. is fatal in this case and so as the truthfulness of the prosecution case. It can further be seen that there is nothing in the prosecution evidence to show that the deceased Buli was subjected to cruelty or harassment by the appellants soon before her death. Though there is allegation of dowry demand but there is no evidence to suggest that such a demand was raised soon before her death. In absence of any such evidence, it is not possible to take legal remedy of presumption envisaged in Section 113B of the Evidence Act. In the light what is stated above, in our view, the Trial Court has committed serious and manifest error in concluding that the appellants were guilty of offence when the crucial and necessary ingredients that the deceased Buli was subjected to cruelty or harassment by the appellants soon before her death or in connection with the demand of dowry was not established. Thus, impugned judgment is unsustainable and deserves to be set aside. In the back ground of the aforesaid, the charge under Section 498A also cannot be sustained.
28. Consequently, the appeal is allowed. The judgment dated 3.12.2002 passed by the Additional Sessions Judge (Fast Track), Nagaur is set aside. The appellants are acquitted of offence under Section 304B and 498A I.P.C. The appellant Hira Ram is in Jail. He shall be released forthwith, if not required in any other case. Smt. Rukma is on bail. Her bail bonds stand discharged.