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Homla vs State on 12 October, 2018

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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