Rajasthan High Court - Jodhpur
Homla vs State on 12 October, 2018
Bench: Sandeep Mehta, Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 408/2017
Homla S/o Shri Bhog Ji, Aged About 60 Years, B/c Mayeeda
Adiwasi, R/o Neechala Ghantala, P.s. Kotwali, Banswara, Dist.
Banswara (Presently Lodged In Central Jail, Udaipur)
----Petitioner
Versus
State of Rajasthan through Public Prosecutor
----Respondent
For Petitioner(s) : Mr. Shambhoo Singh
For Respondent(s) : Mr. J.P.S. Choudhary, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Judgment / Order
12/10/2018
By the Court:-
The matter was today listed in the Court for orders on the application for suspension of sentences No.1127/2018 filed on behalf of the appellant.
However, with the consent of learned Counsel for the appellant and learned Public Prosecutor, final arguments were heard and the appeal itself is being decided today. Thus the application for suspension of sentences is dismissed as infructuous.
By way of this criminal appeal filed under Section 374(2) Cr.P.C., the appellant Homla has approached this Court for assailing the judgment dated 17.02.2017 passed by Addl. Sessions Judge, Banswara in Sessions Case No.36/2016 whereby (2 of 12) [Criminal Appeal No.408/2017] he was convicted and sentenced as below:-
304-B IPC Imprisonment for life and fine of Rs.10,000/- and in default of payment of fine to further undergo one year Simple Imprisonment.
498A Three Years' Simple Imprisonment and fine of Rs.5000/- and in default of payment of fine to further undergo three months' Simple Imprisonment.
Both the sentences were ordered to run
concurrently.
Facts in brief are that Kala D/o Bapulal was married to Raju S/o Homla, appellant herein on 06.06.2011. On 17.12.2011, Homla came to the village and informed Bapulal's son Dinesh that Smt. Kala had ended her life by hanging herself. On this the first informant's son Dinesh and his wife Kavita went to village Nichla Ghantala where the dead body of Smt Kala was lying on a coat. Shri Bapulal suspected foul play in the death of his daughter. He lodged a report at Police Station Kotwali Banswara on the same day casting a suspicion that Kala might have been murdered by her husband Raju.
A Mrig report No.42/2011 was registered and inquiry commenced. The dead body of Smt. Kala was subjected to postmortem and the medical officer opined that the cause of death was asphyxia (by pressure on neck).
(3 of 12) [Criminal Appeal No.408/2017] After inquest proceedings held by the SDM, Banswara, report under Section 176 IPC was received on the basis of FIR No.376/2012 (Exhibit-P/9) came to be registered at Police Station Kotwali for the offence under Section 302 IPC.
After investigation, charge sheet was filed against the appellant alone being the father-in-law of the deceased for the offences under Sections 498A & 304B IPC. The trial court framed charges against the appellant in the same terms. The appellant pleaded not guilty and claimed trial.
The prosecution examined as many as 15 witnesses in support of its case. The accused upon being examined under Section 313 Cr.P.C., denied the prosecution case and stated that he was not present at the spot at the time of the incident. He heard hue and cry whereupon he rushed to his house and saw the door locked from inside. The door was broken open and Smt. Kala was seen hanging from the roof. He stated that he had been falsely implicated in this case. Witness Smt. Kana was examined in defence. The trial court, after appreciating the evidence available on record came to a conclusion that the appellant had harassed and humiliated the deceased on account of demand of dowry soon before her death. It was also held that the deceased was subjected to cruelty in her matrimonial home. With these findings, the trial judge, proceeded to convict and sentence the appellant as above, hence this appeal.
(4 of 12) [Criminal Appeal No.408/2017] Learned Counsel Shri Shambhoo Singh representing the appellant urged that:-
1. That there is no allegation whatsoever in the FIR (Exhibit-
P/-9) that the deceased Smt. Kala was aver harassed or humiliated on account of demand of dowry
2. That the entire thrust of allegations in the written report (Exhibit-P/1), submitted by Bapulal was against the husband who was not even charge sheeted by the police.
3. That even during investigation, the material witnesses viz.
PW-1 Shri Bapulal, the first informant (father of the deceased), PW-2 Smt. Meera, mother of deceased, PW-4 Dinesh, brother of the deceased, PW-5 Smt, Kavita Sister-in-law (Bhabhi) of the deceased & PW-6 Pari did not make any allegation to the effect that the deceased was being harassed and humiliated in the matrimonial home on account of demand of dowry.
He drew the Court's attention to the statement of prosecution witness PW-3 Manilal who categorically stated that at the time of incident, the appellant Homla was in his agricultural fields and was waiting for his turn to irrigate the same. Hue and cry was heard from his house whereafter the appellant Homla rushed there. The witness later on came to know that Smt.Kala had committed suicide. He thus, urged that even if the prosecution case is accepted to be true at the highest the offence attributable to the accused appellant would not travel beyond (5 of 12) [Criminal Appeal No.408/2017] Section 498-A IPC. He urged that appellant is in custody since 09.01.2013 and thus, while setting aside his conviction for the offence under Section 304B IPC, the appellant deserves to be released on the sentence already undergone by him.
Learned Public Prosecutor on the other hand, vehemently and fervently opposed the submissions of the appellant's Counsel. He contended that the deceased being a young girl of 19 years of age was married to the son of the appellant just six months ago to the incident. She was harassed and humiliated in the matrimonial home on account of demand of dowry and being perturbed thereby, she ended her life by hanging herself. He thus, urged that the impugned judgment which is based on thorough appreciation of evidence does not warrant any interference on the aspect of offences made out nor does the appellant deserve any leniency on the aspect of sentences awarded to him by the trial court and implored the Court to dismiss the appeal.
We have given our thoughtful consideration to the arguments advanced at bar by learned Counsel for the appellant as well as learned Public Prosecutor and have gone through the material available on record and have carefully perused the judgment impugned.
It is admitted that the deceased Smt. Kala was married to son of the appellant just six months prior to the incident. She ended her life by hanging herself and thus, it is definitely a case (6 of 12) [Criminal Appeal No.408/2017] of unnatural death of a married woman in her matrimonial home within seven years from her marriage. However, to bring home the charge under Section 304B IPC, the prosecution is under a burden to prove by evidence beyond all reasonable doubt that the deceased was harassed and humiliated in the matrimonial home on account of demand of dowry. Once, this allegation is established, the burden to disprove the same would shift on to the accused as per the presumption provided by Section 113B of Indian Evidence Act.
Since Shri Shambhoo Singh, learned Counsel representing the appellant did not question the conviction of the appellant for the offence under Section 498A IPC and thus, the only issue which calls this Court's appreciation is as to whether the prosecution has been able to prove by plausible evidence that the deceased was indeed harassed and humiliated in the matrimonial home on account of demand of dowry soon before her death. If the Court is satisfied that the prosecution evidence on this aspect is believable the burden would then shift on to the accused who would have to explain the unnatural death of the deceased as per Section 113B of Indian Evidence Act.
For this purpose, the statements of material prosecution witnesses need to be sited and evaluated.
PW-1 Bapulal, being the father of the deceased lodged the written report (Exhibit-P/1). In the written report, there is no (7 of 12) [Criminal Appeal No.408/2017] allegation whatsoever that the deceased was ever harassed or humiliated in the matrimonial home on account of demand of dowry. However, this Court cannot lose sight of the fact that the complainant party hails from an Aadiwasi background and thus, minor omissions in the FIR have to be taken with a pinch of salt moreso because the ill-treatment must have been shown by the death of young daughter of this witness in a short span of six months from her marriage. Bapulal was examined as PW-1 at the trial, he alleged that upto 2-3 months after the marriage, matrimonial relatives behaved well with the deceased Smt. Kala. However, thereafter she was beaten and maltreated. The witness alleged that the accused appellant and the husband Raju used to pressurize the deceased for a sum of Rs.50,000/-. The demand was made so as to meet educational expenses of Raju. Witness claims to have given a sum of Rs.10,000/- to the appellant about 2-3 months after the marriage,. The witness further states that on the very day of incident, Homla's daughter Kattu came to their home and asked for the silver ornaments of the deceased on the pretext that there was some function in their house. A girl named Sunita was sent with Kattu. A little later, Homla came around and informed that Smt Kala had committed suicide. The witness further stated that 20 days after Smt. Kala committed suicide, Panchas were collected who asked/directed the accused appellant to pay a sum of Rs.90,000/- to the complainant party in lieu of the dowry articles and the silver ornaments of the deceased given to the deceased in Kanyadan. Thus, there is not even a whisper in the statement of Bapulal, regarding any cruelty having been meted to the deceased by the appellant for demand of dowry soon (8 of 12) [Criminal Appeal No.408/2017] before her death. In cross-examination, the witness was confronted with the written report (Exhibit-P/1) and his police statement (Exhibit-D/1). He admitted that it is only recorded in his police statement (Exhibit-D/1) that the accused appellant requested that some money was required so that Raju could undertake higher studies and a sum of Rs.10,000/- was given for higher studies of his Son-in-law Raju. The witness admitted that the allegation of demand of Rs.50,000/- made by the appellant was not mentioned in the said police statement.
PW-2 Smt. Meera Devi, mother of the deceased also alleged that the accused Homla and Raju started maltreating Kala after three months into the marriage of the deceased. The accused started raising a demand of Rs.50,000/- for higher studies of Raju. Smt. Kala used to complain of this maltreatment whenever she came to their home. They gave a sum of Rs. 10,000/- to Homla. This witness admitted in cross examination that Panchas were collected after twenty days of the death of Smt. Kala and it was decided that the accused would pay the complainant a sum of Rs.90,000/- to compensate for the silver ornaments and other goods given in Kanyadan. This witness was also confronted with the police statement Exhibit-D/2 wherein there is no allegation that the accused maltreated the deceased in relation to a demand of a sum of Rs.50,000/-.
PW-3 Manilal, categorically stated that on the date of incident, Homla was sitting besides him waiting for his turn to irrigate his fields. Hue and cry was heard from house of the (9 of 12) [Criminal Appeal No.408/2017] appellant Homla on which he went there. The witness later on came to know that Homla's daughter in law committed suicide.
PW-4 Dinesh, being the brother of the deceased alleged that Homla used to cast an evil eye on his sister and maltreated her. He used to demand money from the deceased for education of Raju. His father gave a sum of Rs.10,000/- to the accused Homla. He also alleged that the deceased came to him about four days ago and complained that Homla was pressurizing her to bring Rs.50,000/- from her paternals and was also casting evil eyes on her for oblique motive. A day later, the accused appellant Homla came to their home. The witness claims to have confronted Homla with these allegations. The witness claims that Homla agreed that the misbehavior would not be repeated in future. In cross- examination, the witness categorically admitted that Kala never complained to him that her father-in-law used to demand money from her. He admitted that his wife told him of these facts.
Smt. Kavita W/o Dinesh was examined as PW-5 she virtually repeated the allegations as set out in the statement of Dinesh, PW-4. However, the witness did not state that the accused Homla came to their home a few days before the incident or that he was confronted with any allegation of maltreating the deceased or casting evil eyes on deceased Smt Kala. The witness further admitted that she and her husband are residing in a separate home. She however, reaffirmed in her cross examination that Smt. Kala complained to her that Homla was having evil eyes on her.
(10 of 12) [Criminal Appeal No.408/2017] The witness Pari, PW-6 virtually repeated the allegations as set out in the statement of PW-1 Bapulal. In cross examination, this witness admitted that she went to the matrimonial home of Kala on a couple of occasions and saw that the girl was happy. The witnesses PW-7 Devji, PW-8 Arjun, PW-9 Badamilal, PW-10 Prabhulal gave evidence of general and formal nature and their testimony do not have any bearing on the case.
Dr. Ravi Upadhyay, PW-11 stated that he conducted postmortem on the body of the deceased and found that deceased expired because of compression on neck. He proved the post mortem (Exhibit-P/5) and a perusal thereof is sufficient to satisfy the Court that Smt. Kala committed suicide by hanging.
Thus, the following facts are established on record beyond all manner of doubt:-
1. That the deceased Smt. Kala was married to Shri Raju son of the appellant on 06.06.2011.
2. That she ended her life by hanging in the matrimonial home within six months of her marriage
3. That the appellant was not present in the house at the time of occurrence.
4. That there is no allegation whatsoever in the FIR (Ex.P/9) that the deceased was ever harassed or humiliated on account of bringing less dowry.
(11 of 12) [Criminal Appeal No.408/2017]
5. That even in the sworn statement of material prosecution witnesses viz., Bapulal, Smt, Meera, Dinesh, Kavita, Smt.Pari, the highest allegation which is set out is to the effect that the accused Homla and Raju used to demand some money from the complainant for higher education of accused Raju. However, definitely there is not even a whisper of any allegation in the entire prosecution case that any demand in form of dowry articles was ever made by the accused from the deceased or her paternal relatives.
In view of the discussions made hereinabove, this Court is duly satisfied that the conclusion drawn by the learned trial court in the impugned judgment that the case involves unnatural death of Smt.Kala on account of being harassed and maltreated for demand of dowry soon before her death is not substantiated from the evidence available on record. Rather the theory putforth in the statements of the witnesses Dinesh and Kavita that the deceased used to complain that the accused appellant was casting evil eyes on her appears to be closer to reality. Rather the immediate cause for incident appears to be the fact that the appellant's daughter brought the silver ornaments of the deceased from her father's home just before her death. It seems that something was triggered by this event which led to the suicide committed by Smt. Kala. In any event, in view of the presumption stipulated by Section 113A of Evidence Act, the burden to disclose these facts and furnish an explanation thereof (12 of 12) [Criminal Appeal No.408/2017] was upon the accused who has failed to discharge the reverse burden of proof would make the accused liable for the offence under Section 306 IPC rather than that under Section 304 B IPC.
We are therefore inclined to allow the appeal in part. While upholding the conviction and sentences awarded to the appellant Homla S/om Shri Bhog Ji by the learned trial court for offence under Section 498A IPC, we hereby set aside, his conviction for the offence under Section 304B IPC and instead, convict him for offence under Section 306 IPC and is sentenced to undergo seven years RI with fine of Rs.10,000/-in default of payment of fine to further undergo six months' SI. The impugned judgment dated 17.02.2017 is modified accordingly.
The appeal is partly allowed in these terms.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
Sudhir Asopa/PA
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