HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 137 / 2012
Lakhvinder Singh S/o sh. Chindasingh by caste Maji resident of 4
MLD Police Station Garsana, District Ganganagar
—-Appellant
Versus
State of Rajasthan
—-Respondent
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For Appellant(s) : Mr. DS Thind
For Respondent(s) : Mr. CS Ojha, PP
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HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON’BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
Per Hon’ble Mr. Justice Gopal Krishan Vyas
04/09/2017
The instant cr. appeal has been filed by the accused
appellant Lakhvinder Singh under Section 374(2) Cr.P.C. against
the judgment of conviction and sentence dated 28.1.2012 passed
by the learned Addl. Sessions Judge, Anupgarh Camp Garsana,
District Ganganagar in Sessions Case No.7/2009 by which the
learned trial court convicted the accused appellant for the offence
under Section 304B and 498A IPC and following sentence was
passed:
Under Section 304B IPC Life imprisonment with fine of
Rs.5,000/- and in default of
payment of fine to further
undergo one months additional
imprisonment.
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Under Section 498A IPC Three years imprisonment with
fine of Rs.3,000/- and in default
of payment of fine to further
undergo 15 days additional
imprisonment.
As per facts of the case on 16.9.2008 a written report was
submitted by Amarjeet Singh (PW–2) father of the deceased
Veerpal Kaur alleging therein that his daughter was married with
the accused appellant 8 months ago as per the Hindu rites and in
the marriage, the dowry articles were given as per his status. In
the FIR, it was alleged that the accused appellant alongwith his
mother and elder brother’s wife murdered his daughter Veerpal
Kaur and dead body of Veerpal Kaur is lying in her house. In the
FIR it was also alleged that all above persons constantly making
demand of dowry after marriage and for conciliation, Panchayats
were conducted, but no result came out.
Upon aforesaid complaint (Ex.P/1) dated 16.9.2008, a formal
FIR no.310 (Ex.P/2) was registered at Police Station Garsana on
16.9.2008 under Section 304 B IPC and investigation was
commenced.
The CEO, Anupgarh immediately went to the house of
complainant Amarjeet Singh where the dead body of deceased
Veerpal Kaur wife of accused appellant Lakhvinder Singh was lying
on a cot in the house. After inspection the details of the dead
body was prepared vide Ex.P/3 on 16.9.2008. Similarly, the
Panchayatnama was also prepared at the place of occurrence in
the presence of five witnesses. The site plan (Ex.P/7) was also
prepared. The dead body of the deceased was taken to the
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Primary Health Center, Garsana for post mortem where post
mortem of the dead body of the deceased Veerpal Kaur was
conducted by the medical board and post mortem report
(Ex.P/17) was prepared.
In the post mortem report an opinion was given by the board
that cause of death can be given after receiving the report of
autopsy and chemical report of visceras. The visceras taken from
the dead body were sent to the FSL for examination. Vide Ex.P/18
the following report was given by the FLS, which reads as under:
“On chemical examination, portions of viscera (1-7)
and exhibit (8) from three packets marked A, B and X
respectively gave positive tests for the presence of
organo phosphoronus insecticide and gave neative
tests for metallic poisons, cyanide, alkaloids,
barbiturates and tranquillizers.
Portions of viscera (1-7) from two packets marked A
and B respectively gave negative tests for ethyl and
methyl alcohol”
It is also reported in the post mortem report that there was
no external injury upon the body of the deceased.
During investigation, the accused appellant was arrested
vide Ex.P/19. The photographs of the dead body were also taken
during investigation. The details of the gifts given in the marriage
(Ex.P/8) was obtained for the purpose of investigation. The
statements of the prosecution witnesses were recorded under
Section 161 Cr.P.C. and after completing investigation, charge-
sheet was filed against the accused appellant under Section 306,
304B and 498A IPC in the court of Judicial Magistrate, Garsana,
from where the case was committed for trial to the court of
learned Addl. District Sessions Judge, Anupgarh.
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The learned trial court after hearing arguments for framing
charge framed charge under Section 498A, 304B and 306 IPC
against the accused appellant and proceeded for trial.
In the trial, statements of 15 prosecution witnesses were
recorded and 19 documents were exhibited to prove the
allegation against the accused appellant.
After recording evidence of prosecution, the statement of the
accused appellant were recorded under Section 313 Cr.P.C. in
which he denied all the allegations and led oral evidence of three
witnesses namely DW-1 Mukti Lal, DW-2 Porna Ram and DW-3
Subhash. However, the learned trial court vide its judgment dated
28.1.2012 convicted and sentenced the accused appellant for the
offence under Section 304B and 498A IPC but acquitted from the
charge under Section 306 IPC.
At the threshold, learned counsel for the appellant submits
that the accused appellant is behind the bars since 2.1.2009. The
learned counsel for the appellant submits that no mark of injury
was found upon the body of the deceased. The cause of death was
poison as reported by the FSL and there is no evidence of demand
of dowry or any incident is reported to prove any cruel attitude of
the accused appellant. Only bald allegations is that there was
demand of dowry. While inviting attention towards the statement
of PW–13 Dr. Sanjay Sharma it is submitted that the said witness
specifically stated before the court that after post mortem report
(Ex.P/17) was prepared and opinion was kept reserved because
visceras were sent for chemical examination. In the cross-
examination, it is specifically stated by the doctor that no mark of
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injury was found upon the body of the deceased, therefore, it is
obvious that finding of the learned trial court so as to hold
accused appellant guilty for offence under Section 304B IPC is not
sustainable in law. It is also pointed out that the learned trial
court framed charge under Section 306 IPC also due to the
evidence on record, however, the learned trial court while holding
the accused appellant guilty for committing offence under Section
304B IPC imposed maximum punishment provided in the IPC for
the said offence. According to the learned counsel for the
appellant even if the finding of the learned trial court is accepted
that deceased wife of the appellant died within a year, therefore,
presumption can be drawn against him under Section 304BN IPC,
but the maximum punishment which is life imprisonment imposed
against him is not sustainable in view of the law laid down by the
Hon’ble Supreme Court in the case of Sunil Dutt Sharma Vs. State
(Government of NCT of Delhi) reported in (2014) 4 SCC 375.
Learned counsel for the appellant submits that the accused
appellant is not disputing the fact that deceased died in the house
of the accused appellant and as per Section 304B IPC
presumption of homicidal death can be drawn against him, but on
the basis of evidence on record, it cannot be said that maximum
punishment was to be imposed against the accused appellant
because there is no evidence of cruelty. The maximum allegation
is for demand of Rs.3,000/- and there is no mark of injury upon
the body of the deceased and admittedly, the deceased died due
to consumption of poison, therefore, the maximum sentence
provided under Section 304B IPC is not proper.
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Learned counsel for the appellant submits that if this Court
comes to the conclusion that it is not a case for offence under
Section 306 IPC then the maximum sentence awarded to the
accused appellant may kindly be reduced to already undergone in
view of the judgment of the Hon’ble Supreme Court in the case
of Sunil Dutt Sharma (supra) in which the Hon’ble Supreme Court
held that maximum punishment may be imposed in rarest of rare
case.
Per contra learned Public Prosecutor vehemently opposed
the prayer and said that the marriage of the deceased Veerpal
Kaur was solemnized with the accused appellant before 8 months
from the date of death. She died within 8 months, therefore, the
learned trial court has rightly arrived with the finding that offence
under Section 304B IPC is made out coupled with the offence
under Section 498A IPC. While inviting attention towards Section
304 B IPC, it is submitted that prosecution is not required to prove
its case but it is for the accused appellant to prove his innocence
but there is no evidence on record to prove the innocence of the
accused appellant. More so, it is admitted position of the case that
deceased died in the house of the accused appellant and there
was demand of money from his in-laws and Rs.3,000/- were given
by the father-in-law before the death of the deceased.
Learned Public Prosecutor submits that no interference is
called in this case because the learned trial court has rightly gave
finding that offence under Section 304B IPC is made out because
all the ingredient are in existence for offence under Section 304B
IPC.
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After hearing learned counsel for the parties, we have no
doubt to observe that deceased died within one year from the
date of marriage but at the same time, we cannot lose sight of the
fact that there is no evidence of any incident prior to the death of
the deceased. Further, no injuries were found upon the body of
the deceased. We have perused the statement of PW–13 Dr.
Sanjay Sharma who was one of the member of the medial board.
The said witness specifically stated that he was one of the
member of the medical board in which two other persons namely
Dr. Madan Mohan Agarwal, Medical Officer and Dr. Rachna Jamdu
were the members. It is also stated by him that on 16.9.2008 the
post mortem of the dead body of Veerpal Kaur was conducted by
the medical board and post mortem report (Ex.P/17) was given.
The witness PW–13 Dr. Sanjay Kumar Sharma specifically stated
that apparently there was no mark of injury upon the body of the
deceased, but visceras were taken for the purpose of ascertaining
cause of death and as per chemical report (Ex.P/18) sent by the
FSL, organo phosphoronus insecticide was found in the visceras
which is taken from the stomach of the deceased.
It is true that there is no reliable evidence of demand of
dowry but there is evidence on record that before the death of
the deceased some money was demanded by the accused
appellant for repairing of taxi and this fact is established from the
statement of PW–3 Kalwant Kaur, mother of the deceased that
Rs.3,000/- were demanded by the accused appellant and said
amount was given to him.
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Upon consideration of the entire evidence, following facts
emerges for consideration to accept the plea of the accused
appellant to reduce the sentence:
A. As per post mortem report (Ex.P/17) no mark of injury was
found upon the body of the deceased;
B. The witness Dr. Sanjay Kumar Sharma PW–13 specifically
stated in his statement that at the time of post mortem the
cause of death was not ascertained but visceras were taken
and sent for chemical examination to the FSL and in the FSL
report (Ex.P/18) it is reported that organo phosphoronus
insecticide was found;
C. Upon consideration of entire evidence, more specifically the
statements of father and mother of the deceased it is also
apparent that no specific incident was reported by the
deceased for quarrel and causing any heart by the accused
appellant to the deceased. The only allegation is that some
money was demanded for the purpose of repairing taxi by
the accused appellant and said amount was paid.
D. Upon consideration of entire evidence, we find that though
prosecution has proved the incident and cause of death, but
there is no evidence of serious nature to presume that there
was cruel attitude of the accused appellant towards the
deceased and conviction is based upon presumption only.
We have examined the evidence and finding of the learned
trial court in the light of the judgment rendered in the case of
Sunil Dutt Sharma (supra), wherein the Hon’ble Supreme Court
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gave following verdict to reduce the sentence, which reads as
under:
“14. Applying the above parameters to the facts of the
present case it transpires that the death of the wife of
the accused-appellant occurred within two years of
marriage. There was, of course, a demand for dowry
and there is evidence of cruelty or harassment. The
autopsy report of the deceased showed external marks
of injuries but the cause of death of deceased was
stated to be due to asphyxia resulting from
strangulation. In view of the aforesaid finding of Dr.
L.T. Ramani (PW-16) who had conducted the
postmortem, the learned Trial Judge thought it proper
to acquit the accused of the offence under Section 302
of the Penal Code on the benefit of doubt as there was
no evidence that the accused was, in any way,
involved with the strangulation of the deceased. The
proved facts on the basis of which offence under
Section 304-B of the Penal Code was held to be
established, while acquitting the accused-appellant of
the offence under Section 302 of the Penal Code, does
not disclose any extraordinary, perverse or diabolic act
on the part of the accused-appellant to take an
extreme view of the matter. Coupled with the above,
at the time of commission of the offence, the accused-
appellant was about 21 years old and as on date he is
about 42 years. The accused-appellant also has a son
who was an infant at the time of the occurrence. He
has no previous record of crime. On a cumulative
application of the principles that would be relevant to
adjudge the crime and the criminal test, we are of the
view that the present is not a case where the
maximum punishment of life imprisonment ought to
have been awarded to the accused-appellant. At the
same time, from the order of the learned Trial Court, it
is clear that some of the injuries on the deceased,
though obviously not the fatal injuries, are
attributable to the accused-appellant. In fact, the
finding of the learned Trial Court is that the injuries
No. 1 (Laceration 1″x ½” skin deep on the side of
forehead near hair margin) and 2 (Laceration 1 ½”x
1″ scalp deep over the frontal area) on the deceased
had been caused by the accused-appellant with a
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[CRLA-137/2012]pestle. The said part of the order of the learned Trial
Court has not been challenged in the appeal before the
High Court. Taking into account the said fact, we are of
the view that in the present case the minimum
sentence prescribed i.e. seven years would also not
meet the ends of justice. Rather we are of the view
that a sentence of ten years RI would be appropriate.
Consequently, we modify the impugned order dated
4.4.2011 passed by the High Court of Delhi and impose
the punishment of ten years RI on the accused-
appellant for the commission of the offence under
Section 304-B of the Penal Code. The sentence of fine
is maintained. The accused-appellant who is presently
in custody shall serve out the remaining part of the
sentence in terms of the present order.”
In view of the above discussion, we are of the opinion that
though it is not a case to destroy the finding of guilt recorded by
the learned trial court for commission of offence under Section
304B and 498A IPC, however, there is strength in the argument of
the learned counsel for the appellant that maximum sentence of
life imprisonment passed against the accused appellant for offence
under Section 304B IPC can be reduced.
Consequently, the instant cr. appeal is partly allowed. The
finding of conviction recorded by the learned trial court for offence
under Section 304 B IPC vide judgment dated 28.1.2012 in
Sessions Case No.7/2009 is hereby maintained, however, the
sentence of life imprisonment imposed against the accused
appellant for offence under Section 304B IPC is hereby reduced
to 11 years while marinating fine and punishment for offence
under Section 498A IPC.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J.
cpgoyal/ps
