HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 41 / 2013
Shanker Lal son of Shri Nathu Rot, by caste Meena, resident of
Mandava Khaparda, Kotwali Police station, Dungarpur, District
Dungarpur

—-Appellant
Versus
State of Rajasthan

—-Respondent
__
For Appellant(s) : Mr. T.C. Sharma
For Respondent(s) : Mr. C.S. Ojha, P.P.
__
HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
Per Hon’ble Mr. Justice Manoj Kumar Garg :

20/07/2017

Instant criminal appeal has been filed by the appellant

Shanker lal against the judgment dated 07.12.2012 passed by

District and Sessions Judge, Dungarpur in Sessions Case No.

84/2008 by which the learned Judge has convicted the present

appellant as under :-

Under Section 302 IPC Life Imprisonment and a fine of

Rs.5,000/- and in default of payment

of fine to further undergo 15 days

simple imprisonment.

Under Section 498A IPC Three years rigorous imprisonment

alongwith fine of Rs. 500/- and in
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default of payment of fine to undergo

15 DAYS simple imprisonment.

Succinctly stated, the fact of the case are that the

complainant Kanti lal lodged a written report with the Station

House Officer, Police Station, Kotwali, Dungarpur on 22.06.2008

alleging inter alia that his daughter Anita was married to the

accused-appellant Shanker Lal on 21.04.2008. It was stated in the

FIR that after marriage, his daughter Anita had come to his house

on three occasions and on the last occasion, i.e. on 15.06.2008,

her mother-in-law and brother-in-law had taken her back to the

marital home. It was further mentioned in the FIR that whenever

Anita used to come to his house, she used to cry and complained

that her husband Shanker lal, father-in-law Nathu and mother-in-

law used to harass her and treated her with cruelty on account of

demand of dowry. She also complained to her father that her

silver ornaments were forcibly taken away by the accused and was

mortgaged. She further told him that the accused were

continuously harassing her for bringing money and other dowry

articles despite the fact that the complainant had given dowry to

best of his capacity at the time of the marriage. He further stated

that the deceased was sent back with her mother-in-law and

brother-in-law despite her protest. He stated that his daughter

was done to death by the accused on 21.06.2008.

On the basis of this report, an FIR No. 178/2008 was

registered for the offences under Sections 498-A and 304-B read

with Section 34 IPC and investigation commenced.

After usual investigation, the police submitted chargesheet
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against the accused appellant for offence under Section 304-B and

498A IPC.

The prosecution in its support examined eight witnesses in

all and exhibited 13 documents. The statement under Section 313

Cr.P.C. was recorded who denied the charges and claimed trial.

After conclusion of trial, the learned District and Sessions

Judge, Dungarpur convicted the present appellant for offence

under Section 304-B and 498A IPC vide judgment dated

17.12.2008. Against the said judgment, the present appellant

preferred an appeal before this Court which was registered as S.B.

Criminal Appeal No. 23/2009. Learned Single Judge while allowing

the appeal, set aside the judgment dated 17.12.2008 and the

matter was remanded back to the learned trial court for holding a

denovo trial of the appellant after framing a charge for offence

under Sections 498-A and 304-B and in the alternative, under

Section 302 IPC.

After remand by this Court, the learned Sessions Judge

framed charge under Section 302 IPC and in the alternative for

offence under Section 304-B and 498-A IPC. The prosecution

examined nine witnesses and exhibited 13 documents. The

accused was examined under Section 313 Cr.P.C who denied the

charges but did not adduce any evidence in his defence.

After conclusion of the trial, the learned District and Sessions

Judge, Dungarpur acquitted the accused appellant for the offence

under Section 304-B IPC on the ground that since substantive

offence under Section 302 IPC stands proved, the conviction for

alternative charge under Section 304-B IPC is not required.

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Accordingly, the learned trial court convicted the accused

appellant for the offence under Section 302 and 498A IPC and

passed the sentences as mentioned earlier.

Learned counsel for the appellant argued that there is no

plausible evidence against the present appellant to convict him for

offence under Section 302 IPC as there is no eye-witnesses of the

occurrence. Learned counsel further submitted that there is no

evidence on record to the effect that the accused treated the

deceased Anita with cruelty in connection with demand of dowry

soon before her death so as to raise a presumption under Section

304-B and Section 113-B of Evidence Act. He further argued that

the case of the prosecution is totally based upon circumstantial

evidence which is not complete and is apparent from the evidence

of the prosecution witnesses. Learned counsel argued that the

prosecution has failed to connect the accused appellant with the

alleged offence and therefore, the impugned judgment is liable to

be quashed and set aside.

Per contra, learned Public Prosecutor argued that previously

the conviction against the accused appellant for offence 304-B IPC

was set aside and matter was remanded back to the trial court for

holding a denovo trial after framing the charge for offence under

Section 498-A and 304-B or in the alternative for offence under

Section 302 IPC, which is based on facts and evidence on record

and therefore, the impugned judgment does not call any

interference.

We have considered the arguments advanced by both the

parties before us and thoroughly scrutinized the record of the
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case.

Admittedly, in the present case, the prosecution case rests

entirely on circumstantial evidence to prove the offence under

Section 302 IPC. PW/2 Kanti who lodged the First Information

Report has stated that his daughter got married with appellant

Shanker lal on 21.04.2008 and on 21.06.2008, he received

telephone call from Khapeda informing him that his daughter was

serious. When he reached Khaperda in the night at 11:00 PM, he

found the house of inlaws of his daughter was locked and nobody

was present. On inquiry, he was told that they have gone to other

house, however, one person came and told him that his daughter

has committed suicide. The complainant Kanti lal came back and

next morning when he went back to the house of his daughter’s

inlaws, the police had already reached and he saw that Anita was

hanging from a Balli and her feet were touching the ground. He

found broken bangles and her hair. When this witness was

examined as PW/2, he mentioned that her daughter told him that

her inlaws were demanding money and said that her father gave

less dowry. However, in his cross-examination this witness

mentioned that appellant Shanker lal visited his village in a jolly

mood and previously no quarrel had taken place. He further

mentioned in the cross-examination that her daughter Anita

resided with Shanker lal happily.

PW/1 Nana lal in his statement stated that he knows Kanti

lal very well. He alongwith Kanti lal went to the house of his

daughter’s in-laws and saw that the house was locked. The

neighbour informed them that they had gone to another house
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and that Anita had committed suicide. It is stated that they came

back and on the next day, they again went there and saw the

dead body of Anita. This witness does not say anything regarding

demand of dowry or cruelty meted out by the inlaws of deceased

Anita.

PW/3 Jeevraj stated that he had also gone with PW/2 Kanti

lal and saw the dead body of Anita. He stated that Anita told him

that Shankar used to beat her and demand dowry from her. In his

cross-examination he mentioned that relatives informed him about

beating Anita and demand of dowry.

PW/4 Savji in his statement has mentioned that Anita used

to complain about harassment by the appellant and her father-in-

law. He alongwith complainant went to the house of inlaws of

Anita and saw her dead body. In his cross-examination, he

admitted that previously they never heard about beating by

accused Shankar lal and he further admitted that this fact was

narrated by complainant Kanti lal.

PW/5 Smt. Mani in her statement stated that Anita told her

that she was ill-treated by her in-laws. In her cross-examination

she admitted that she never saw the inlaws of Anita beating her.

PW/7 Dr. B.P. Verma is the doctor who conducted the

postmortem of deceased Anita and prepared postmortem report

(Ex.P/8) and found following injuries upon the body of the

deceased :-

“Face congested, both hands and nails cyanosed, leg

1/3” front also cyanosed; tongue bitten in between teeth
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and blackish in colour, distended. Blisters present on the

gluteal region. Foul smell with undigested food was

coming out from both the nostrils. Pus-like discharge

was coming out from the vulva and facial discharge was

coming from the anus.

The following injuries were found on the body of the
deceased:-

(1) Ligature mark around neck 1/3 transversely and
continuously 30×1/2cm.

(2) Ligature mark 1/3rd on neck obliquely (this ligature
mark has been found to be postmortem).

(3) Contusion violet in colour on left breast laterally
3×1/½.

(4) Contusion violet in colour on right breast laterally
transversely placed 4×1/½ cm.

(5) Prick injury left side vulva and clotted blood with
swelling of vulva.

Ligature mark was situated on 1/3rd portion of the neck
below the thyroid cartilage continuous transverse
measuring 30×2/½ cm. It was deep blackish in colour
with hard base. There were marks of abrasions on the
margin of ligature marks and both the cornua of the
hyoid bone were found broken.

On the dissection of ligature mark being done, the soft
tissue muscles were found congested. Tracheal ring and
thyroid cartilage found fractured. Anterior valve of
esophagus was also lacerated and through the
laceration, undigested food was coming from the
laceration, undigested food was coming from the
stomach to the trachea. The vessels were severely
contused.

All these injuries, except injury No.2, were found to

be ante-mortem in nature. The specific finding of the

Medical Officer is that the injury No.2 was postmortem

in nature. The death was opined to be due to cardio
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respiratory failure caused by the ligature marks around

neck.

After examining the entire set of evidence of prosecution, it

appears that there is no direct evidence against the accused

appellant so as to convict him for the offence under Section 302

IPC. Admittedly, the accused was not present at the time of

occurrence so also there is no direct evidence with regard to

demand of dowry by the accused appellant but we find that in a

case where the wife has died due to homicide, it is must for the

husband to explain as to how the death has taken place. There is

an omnibus allegation that all the members of in-laws demanded

dowry from her and therefore, presumption under under Section

113B of the Evidence Act is required to be drawn to hold that

husband is responsible for committing dowry death under Section

304B IPC. Hon’ble Supreme Court in the case of G.V.

Siddaramesh vs. State of Karnataka (2010) 3 SCC 152 has

held as under :-

“A reading of Section 113B of the Evidence Act
shows that there must be material to show that
soon before the death of woman, such woman
was subjected to cruelty or harassment for or in
connection with demand of dowry, then only a
presumption can be drawn that a person has
committed the dowry death of a women. It is
then up to the appellant to discharge this
presumption. The appellant however has not
brought on record anything substantial to dispel
the theory of the prosecution. In fact, while
filing application for grant of bail, the appellant
had stated that the deceased was having an
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affair with another person before her marriage
and since she could not marry him, she was in
distress and, therefore, committed suicide.

However there was no evidence brought on
record to prove this theory. Further in his
statement under Section 313 of Cr.P.C. he has
stated that the deceased was not happy with the
house of the appellant and stated that the house
of her sister and father were bigger and better.
Further his theory of intimating the police and
lodging a complaint before the Sub-Inspector of
the Police Station at 12.30 AM fails as he had
closed his shop at around 10.30 PM. After that
by his own admission, he went and informed the
sister of the deceased and then went outside the
town to bring his father before lodging the
complaint. Therefore, it is very much likely that
the accused after witnessing the dead body of
the deceased tried to hush up the matter and
went to the Police Station much later. If this
theory is to be true, this brings the suspicious
behaviour of the appellant more to light, as the
natural reaction to seeing the dead body of a
wife who had come to her matrimonial home
only 2 days earlier would be that of disbelief or
shock. Instead by his own admission, he went
and informed the sister of the deceased. The
prosecution witnesses have also testified that
the appellant came to the paternal house of the
deceased and made a statement to the effect
that it would be detrimental to both the families
if a complaint was to be lodged and to bury the
past. The appellant has also not produced
anything on record to dispel the theory of the
prosecution that there was a further demand of
Rs. 50,000/- on his part. He has also failed to
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prove that there were demands for dowry
immediately before the marriage and there were
negotiations which took place involving both the
families. All these circumstances point to the
fact that the appellant has not rebutted or
discharged the presumption. Therefore we have
no doubt in holding that the appellant is guilty
for the offence punishable under Section 304B
of the IPC, for being responsible for the death of
his wife.”

In view of above, the case does not travel beyond Section

304-B IPC and no offence under Section 302 IPC is made out

against the accused appellant.

Further there is evidence against the accused appellant that

the accused appellant used to harass the deceased for demand of

dowry, therefore, the conviction of the accused appellant under

Section 498-a is proved beyond reasonable doubt.

In view of the above discussion, the appeal is partly allowed.

The conviction and sentence passed against the accused appellant

under Section 302 IPC is set aside and the conviction is altered

from Section 302 IPC to the offence under Section 304-B IPC and

sentence of ten years rigorous imprisonment with fine of Rs.

20,000/- is hereby imposed against him. In default of payment of

fine, the accused shall further undergo one year’s rigorous

imprisonment. The conviction and sentence awarded by the

learned trial court for offence under Section 498-A IPC is hereby

maintained. Upon depositing the amount of Rs. 20,000/- the

same may be disbursed to the legal heirs of deceased.

(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J.