HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
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)
State of Rajasthan through Public Prosecutor
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
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
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
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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
Both the sentences were ordered to run
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).
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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.
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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
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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
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
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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
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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
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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
(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
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
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