HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 228/2014
Shiv Kumar @ Shiva And Ors.
—-Appellant
Versus
State
—-Respondent
For Appellant(s) : Mr.Vineet Jain.
For Respondent(s) : Mr.C.S.Ojha, P.P.
Mr.Devendra Mahalana.
HON’BLE MR. JUSTICE SANDEEP MEHTA
HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
JUDGMENT
BY THE COURT : (PER HON’BLE MEHTA,J.)
Date of Pronouncement : 09/1/2019
By judgment dated 7.3.2014 passed in Sessions Case
No.11/2010 by the learned Additional Sessions Judge, Churu, the
appellants stand convicted and sentenced as below:
Offence u/s. Sentence Fine Fine Default
Sentence
Appellant No.1 Shiv Kumar @ Shiva:
304B I.P.C. Life
Imprisonment
498A I.P.C. 3 years R.I. Rs.10,000/- 6 months R.I.
Appellants Nos.2 3 Gopi Ram and Maina Devi:
304B I.P.C. 10 Years R.I.
498A I.P.C. 2 Years R.I. Rs.10,000/- 6 months R.I.
Facts in brief:
The first informant Ramswaroop P.W.3 submitted a written
report Ex.P5 to Shri Nisarkhan Sub Inspector Police Station
(2 of 20) [CRLA-228/2014]
Kotwali, Churu at the mortuary of the Govt.Bharatiya Hospital,
Churu on 9.3.2010 at about 1.40 PM alleging inter-alia that his
daughter Smt.Kanta (Sonu) had been married to Shiv Kumar @
Shiva son of Gopi Ram, resident of Churu on 23.11.2009. Soon
after the marriage, Shiv Kumar, Gopi Ram and Smt.Maina Devi
started demanding more dowry from his daughter. The first
informant assured the accused that their demands would be met.
However, on numerous occasions, they extended threats that
demands be met or else the girl would either be deserted or killed.
Two Panchayat were held in Nohar. On 27.2.2010, the complainant
sent his daughter to the matrimonial home. On 8.3.2010, she
called and complained that her matrimonial relatives were
harassing her on account of demand of dowry. On 9.3.2010, the
complainant’s brother Sushil received a call that his daughter had
expired and her dead body was lying in the Bharatiya Hospital. It
was alleged that the husband Shiv Kumar, the father in law Gopi
Ram and the mother in law had killed Smt.Kanta as their demands
for dowry were not met. On the basis of this report, an F.I.R.
No.71/2010 was registered at the Police Station Kotwali, Churu for
the offences under Sections 498A and 304B I.P.C. and
investigation commenced. The site inspection plan etc. of the
place of occurrence was prepared. Two pieces of ropes with human
hair attached to it were seized. The Panchnama Lash was
prepared. Few samples of hair of the deceased were collected
from the doctors who conducted post mortem. As per the post
mortem report, the cause of death of Smt.Kanta was opined to be
ante mortem hanging. The accused appellant Shiv Kumar @ Shiva
was arrested and final charge-sheet was filed against him for the
offences under Sections 498A and 304B I.P.C. Since Gopi Ram and
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Maina Devi could not be apprehended, charge-sheet against them
was filed under Section 299 Cr.P.C. Later on, these two accused
were also arrested and a supplementary charge-sheet was filed
against them. The offences being exclusively triable by court of
Sessions, both the chargesheets were committed to the concerned
Sessions Judge, who consolidated both the cases together.
Charges were framed against all the three accused for the
offences under Sections 498A, 304B and 302 I.P.C. They pleaded
not guilty and claimed trial. The prosecution examined as many as
12 witnesses in support of its case and exhibited 17 documents.
Upon being examined under Section 313 Cr.P.C., the accused
denied the prosecution allegations and claimed to have been
falsely implicated. The accused Shiv Kumar categorically stated
that since Smt.Kanta did not get into periods, he pressed upon her
to undergo medical examination and on the very same day, she
ended her life by hanging herself. The dead body was taken to the
hospital and he went to the Police Station to report the matter but
his report was not taken and he was arrested. He also stated that
only when post mortem was conducted, it came to light that
Smt.Kanta was carrying a foetus in her womb. He categorically
stated that the deceased was having illicit relations with her
brother in law and that the child might have been conceived
through him. He further stated that there was no occasion for
demanding any dowry from the complainant because they had
known from before that the complainant’s financial position was
very weak and that is why even the expenses of marriage had also
been borne by the accused side. The deceased felt embarrassed
by having conceived from her brother in law and fearing that her
guilt would be exposed, she committed suicide. Four witnesses
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including the appellant No.1 Shiv Kumar @ Shiva were examined
in defence and 9 documents were exhibited. Upon conclusion of
the trial, the learned trial Judge proceeded to acquit the accused
from the charge under Section 302 IPC and convicted and
sentenced them as above. Hence, this appeal.
Shri Vineet Jain, learned counsel appearing for the appellants
vehemently and fervently urged that the case set up by the
complainant in the F.I.R. regarding the accused having demanded
dowry and having harassed the deceased on this count is totally
false and fabricated. No details of the alleged articles demanded
by way of dowry have been set out in the F.I.R. The theory
regarding the two panchayatis as set out in the F.I.R. is totally
false and fabricated. None of the close family members of the
deceased including the father Ramswaroop P.W.3, the brother in
law Sushil Kumar P.W.4 and the sister Smt.Sunita P.W.9 stated
that they were aware regarding the deceased carrying a child in
her womb despite the fact that the lady was living in her
matrimonial home from middle of December 2009 till end of
February 2010. He urged that had the deceased conceived from
the appellant No.1 Shiv Kumar @ Shiva, there was no occasion for
her to hide her pregnancy from her mother and her sister because
it would have been a cause for celebration. The silence of the
deceased in this regard was clearly indicative of her guilty mental
state and that is why, when the appellant persisted with
Smt.Kanta that she should undertake a medical examination, she
became apprehensive of her illicit relationship being exposed and
she committed suicide by hanging herself in the matrimonial
home. He further urged that the theory putforth by the
prosecution regarding the appellants having harassed and
(5 of 20) [CRLA-228/2014]
humiliated the deceased on account of demand of dowry is totally
false and fabricated because the accused were aware of the dire
financial straits of the father of the deceased well in advance and
that is why, the marriage was solemnized at Churu where the
accused reside. The expenses of marriage were borne by the
accused Gopi Ram which fact was proved and established by the
defence witness. DW who exhibited the documents viz. bills of
Dharamshala (Agrasen Bhawan) in which, the accused made
arrangements for the complainant party to stay. He further urged
that the defence proved by leading cogent evidence that the
expenses of marriage were borne by the accused Gopi Ram and
thus, the allegation set up by the prosecution regarding the
accused persons having demanded dowry from the deceased is
totally false and fabricated. Apart from the bald allegation of
demand of motorcycle and one lac rupees which also is an
improved version vis-a-vis the investigational statements of the
witnesses, there is no other allegation against the accused of ever
having harassed or humiliated the deceased on any count
whatsoever and thus, ex-facie, the prosecution case that the
accused instigated the deceased to commit suicide by tormenting
and maltreating her for demand of dowry is unsubstantiated. He
further urged that there is an omnibus allegation of the
prosecution witnesses against the accused appellants Gopi Ram
and Maina Devi, that they were also involved in the alleged
harassment meted out to the deceased on account of demand of
dowry whereas, Maina Devi and Gopi Ram hardly had the occasion
to interact with the deceased who was living in the paternal home
from middle of December 2009. On these grounds, he implored
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the Court to accept the appeal, set aside the conviction of the
appellants.
Per contra, learned Public Prosecutor Shri C.S.Ojha and Shri
Mahalana learned counsel representing the complainant
vehemently and fervently opposed the submissions advanced by
the appellant’s counsel. They urged that the deceased was
married to the appellant-Shiv Kumar just four months before the
incident. She was harassed and humiliated in the matrimonial
home on account of demand of dowry. The maltreatment meted
out to the deceased was of such magnitude that the young girl
was left with no option but to end her life by hanging herself in the
matrimonial home within a short span of four months from her
marriage. They contended that testimony of the material
prosecution witnesses being the father, brother and sister of the
deceased is clinching and convincing on the aspect that the
appellant-Shiv Kumar was primarily responsible for the demands
being made from the deceased and thus, the presumption of
Section 113B of the Evidence Act undoubtedly operates against
him. They thus craved dismissal of the appeal.
We have given our thoughtful consideration to the arguments
advanced at the Bar and have threadbare gone through the
material available on record and have appreciated and sifted the
evidence available on record.
The fact regarding the appellant Shiv Kumar having been
married to the deceased Smt.Kanta about 4 months before her
unfortunate suicidal death in the matrimonial home is an admitted
position. The marriage took place on 23.11.2010 and the
deceased committed suicide on 9.3.2010 at the matrimonial
home. Thus, the short compass within which the case travels is as
(7 of 20) [CRLA-228/2014]
to whether the prosecution has been able to establish by cogent
evidence that the deceased was harassed and humiliated in the
matrimonial home on account of demand of dowry and whether
the defence theory regarding the deceased having conceived
outside the marriage and ending her life because of the ignominy
she felt, is plausible or not. The thrust of the prosecution
allegations as set out in the F.I.R. (Ex.P5) is that right after the
marriage, Shiv Kumar, Gopi Ram and Gopi Ram’s wife used to
demand more dowry from the deceased even though substantial
items had been given to her in the marriage. The girl was often
threatened with dire consequences of being killed or being
deserted and twice Panchayatis were held at Nohar so that the
matrimonial strife could be mended. The girl was living at her
father’s house and she was sent to the matrimonial home with her
husband on 27.2.2010. The girl allegedly called the father on
8.3.2010 and complained that her matrimonials were harassing
her on account of demand of dowry. However, what precisely was
the nature of demand being made by the accused from the
deceased during this period of four months is not set out in the
F.I.R. In the sworn testimony, the material prosecution witnesses
narrowed down their case to an allegation that a motorcycle and a
sum of Rs.1 lac was being demanded from the deceased.
Manifestly, omission of such allegations in the F.I.R. do assume
significance. There is not even a whisper of allegation in the
written report Ex.P-5 lodged by PW-3 Ram Swaroop, father of the
deceased, that his daughter was being harassed or humiliated by
any of the accused appellants on account of demand of a
motorcycle or a sum of Rs.1 lac. Significantly enough, there is not
a whisper in the F.I.R. that any dowry was actually given by the
(8 of 20) [CRLA-228/2014]
first informant at the time of the marriage or that the accused
expressed dissatisfaction with the same at the time of the
marriage. This omission assumes significance in backdrop of the
defence theory wherein, a specific stance is taken that the first
informant did not have the financial means and prowess to marry
off his daughter and thus, the marriage was solemnized at Churu
and the entire expenditure was borne by the accused party. Thus,
we are of the view that the omission of these two significant facts
in the F.I.R. is very material and would have a strong bearing on
the evidence of the prosecution witnesses.
We now proceed to discuss the evidence of the material
prosecution witnesses.
P.W.1 Kamal Kumar being the uncle of the deceased Kanta
alleged in his statement that he came to know that the girl was
being harassed in the matrimonial home on account of demand of
money as well as a motor cycle. He stated that in February 2010,
when Shiv Kumar came to Nohar, he was counselled not to harass
Kanta but he persisted with his demand for money and a motor
cycle. The complainant party assured him that demand would be
met when they had the means to do so. Shiv Kumar stayed at
Nohar for 2-3 days and then took Kanta with him back to Churu.
In cross examination, the witness admitted that the marriage was
solemnized in an absolute congenial atmosphere. He did not give
the statement to the police for about 14-15 days of the incident.
The witness was confronted the omission with his police statement
Ex.D-1, wherein there was no allegation that Shiv Kumar
demanded a motor cycle or Rs.1 lac from the family members of
the deceased. He was further confronted with this very statement
regarding the material improvements in his examination-in-chief.
(9 of 20) [CRLA-228/2014]
The most significant fact which emerges from the statement of the
witness is that he did not allege that two Panchayatis were held
for counselling the accused. The witness gave contradictory
version in his examination in chief alleging that when the girl
came to the father’s house in December 2009, she alleged that
she was being harassed owing to the demand of a motorcycle. In
the same breath, the witness stated that when Shiv Kumar came,
then he came to know that money was also being demanded.
P.W.2 Rajendra Kumar is another uncle of the deceased Kanta. He
too gave statement on same lines as that of Kamal Kumar P.W.1.
The witness admitted that his statement was recorded by the
Police on 09.03.2010. He was confronted with various portions of
his examination-in-chief vis-a-vis the police statement and
numerous improvements and contradictions were elicited from
him.
P.W.3 Ramswaroop is the father of the deceased and the first
informant and most important witness of prosecution. In his
examination-in-chief, the witness alleged that Smt.Kanta was
married to Shiv Kumar on 23.11.2009. Numerous articles were
given to the girl at the time of marriage. The matrimonial relatives
of Smt.Kanta were not satisfied with the articles given in dowry.
They demanded a sum of Rs.1 lac and a motorcycle. The
allegation of demand was attributed to all the three accused i.e.
Shiv Kumar, Gopi Ram and Maina Devi. The witness assured that
this demand would be met. However, he alleged that since he
could not keep the promise, the girl was killed. He alleged that
two Panchayatis were held for counselling the accused at Nohar.
On both the occasions Rajendra Kumar, Kishan Kumar etc. were
present from his side whereas, only Shiv Kumar came from the
(10 of 20) [CRLA-228/2014]
accused side. He further alleged that on 8.3.2010, Kanta called
her sister Sunita but did not tell her anything. On the same night,
Kanta again called Sunita and expressed an apprehension that
either she should be taken back home or the demand of the
accused should be met or else, she would be killed. On 9.3.2010,
an information was received that Kanta was no more. The witness
alleged that Kanta had been done to death because the dowry
demand being made by Shiv Kumar, Gopi Ram and Maina Devi
was not satisfied. What is noticable from the examination in chief
of this witness is that he never alleged that Kanta made a
complaint upon returning back from the matrimonial home that
she had been harassed or humiliated by the accused-appellants
owing to demand of dowry. Manifestly, only this witness and his
wife were the paternal relatives in whom, Kanta could have
confided about the treatment meted out to her in the matrimonial
home when she returned in the middle of December 2009. The
mother was not examined in evidence. Since Ram Swaroop never
alleged in his examination in chief that the girl told him upon
coming back that she had been harassed and humiliated by the
accused-persons owing to demand of dowry, manifestly the said
allegation comes under a serious clout of doubt. In cross-
examination, the witness was confronted with the significant
omissions appearing in his written report Ex.P5. The witness
admitted that Kanta’s marriage was solemnized at the Agrasen
Bhawan, Churu. He denied the suggestion that the expenditure of
marriage was borne by Gopi Ram (accused’s father). He further
admitted that the marriage ceremonies were performed in a happy
congenial atmosphere. He did not mention in the written report
Ex.P5 or in the police statement Ex.D3 that the matrimonial family
(11 of 20) [CRLA-228/2014]
members were not satisfied with the articles given in dowry. He
also did not mention that the accused demanded a sum of Rs.1 lac
or a motor cycle from the deceased either in the FIR or in his
police statement Ex.D3. He also admitted that it was not
mentioned in the report Ex.P5 and the statement Ex.D3 that Smt.
Kanta was done to death because the demand being made by the
accused could not be satisfied. The witness admitted that the
persons who were allegedly present in the Panchayati at Nohar
were all his relatives. In the report Ex.P5, no such allegation was
made that Kanta called Sunita and expressed apprehension that
she would be killed if the demand of accused was not met. Similar
improvement viz-a-viz the Police statement Ex.D3 was elicited in
cross-examination. The various imporvements/contradictions
elicited from this witness in cross-examination with reference to
the FIR Ex.P-5 and his investigational statement Ex.D3 are
reproduced herein below for the sake of ready reference:-
“‘kknh dk [kpkZ xksihjke us fd;k gks ;g fcYdqy xyr gSA ;g lgh gS fd vxzlsu
Hkou ds fdjk;k o [kpkZ dk fcy esjs ikl ugha gSA ;g dguk xyr gS fd [kpkZ xksihjke us
ogu fd;k blfy;s esjs ikl nks fcy u gksaA
pw: esa “kknh dkUrk o f”kodqekj dh jkth[kq”kh djds ge x;s FksaA eSaus izn”kZ ih5
esa o izn”kZMh3 esa bl lkeku esa dkUrk dk llqjky i{k uk[kql gqos] de ngst nsus ls
ukjkt gq;s ;g rF; ugha fy[kk;kA eSus izn”kZih5 o izn”kZMh3 esa ,d yk[k :- udn ,d
eksVjlkbZfdy dh ekax f”kodqekj] xksihjke eSuknsoh us dh] ;g rF; ugha fy[kok;k FkkA
izn”kZih5 o izn”kZMh3 esa ^^vk”oklu esa nsjh gksus o ekax iqjh u gksus ls yM+dh dks [kre
dj fn;k** ;g rF; Hkh eSaus ugha fy[kok;kA ;g dguk xyr gS fd eSus ;g ckrs dkuwuh
jkW; ds ckn c+k p+kdj fy[kk;k gksaA”
The witness was given a specific suggestion that Kanta was
pregnant at the time of her marriage and that since this fact came
(12 of 20) [CRLA-228/2014]
to light, she committed suicide out of shame. P.W.4 Sushil Kumar
is the brother-in-law of the deceased. In his statement, he also
adopted the line of the other prosecution witnesses. He stated
about the Panchayati held at Nohar when Shiv Kumar came to
fetch Kanta. He further alleged that Kanta was sent from Nohar to
Churu with Shiv Kumar on 27.2.2010. On 8.3.2010 Kanta gave
him a missed call, thereafter, the witness’s wife Sunita called
Kanta on her mobile. She was crying. Sunita allegedly heard
sounds of scolding in the background. In the night at about 10
O’clock, Sunita again called Kanta and she allegedly expressed an
apprehension that she might be done to death if the demands
made by the accused were not satisfied. Upon this, Sunita called
her Peehar and apprised her paternal relatives about the
complaint made by Kanta. On the next morning, information was
received that Kanta was no more. In cross examination, the
witness admitted that no Panchayati was held before 24-
25.2.2010 because they were not aware that the accused were
demanding a sum of Rs.1 lac and a motorcycle by way of dowry.
This admission made by the witness is reproduced herein below in
vernacular for the sake ready reference:-
“24] 25 Qjojh 2010 ls igys dksbZ iapk;r ugha gq;h D;ksafd
eqyfteku }kjk ,d yk[k :i;s ekaxus o eksVjlkbZfdy dh ekax dk gesa
igys irk gh ugha FkkA”
A specific suggestion was given to the witness regarding the
defence theory that Kanta was having illicit affair with him and
that she had conceived because of such relation and that she
committed suicide fearing that her illicit pregnancy would be
exposed. P.W.5 Pawan Kumar and P.W.6 Kanihaya Lal are uncles
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of the deceased. They gave statements similar those given by
P.W.1 and P.W.2. P.W.7 Dr. Mainpal Singh conducted the post
mortem upon the body of the deceased and found a foetus of 10-
12 weeks in her womb. Similar statement was given by P.W.8
Dr.Renu Agarwal. The witness Dr.Renu Agarwal in her cross
examination admitted that the embryo had developed impressions
of eyes, ears etc. P.W.9 Smt.Sunita is the sister of the deceased.
In her evidence, she alleged that numerous articles were given at
the time of the marriage of Kanta with the accused appellant Shiv
Kumar. Kanta came back to her Peehar about 15-20 days after
staying at her matrimonial home. On returning, she made a
complaint regarding being tortured in the matrimonial home for
demand of dowry. As per the witness, a Panchayati was held
wherein the maternal relatives and Shiv Kumar was present. Shiv
Kumar was counselled that his demand would be met when they
had the financial capacity to do so. On 27.2.2010 Kanta was sent
back to her matrimonial home. She alleged that the father-in-law,
mother-in-law and husband were not satisfied with the dowry and
Kanta was maltreated by the accused for demand of dowry. She
received a missed call from Kanta in the morning of 8.3.2010
thereafter, she immediately called her back and heard the sounds
of scolding by the husband in the backdrop. She disconnected the
call after five minutes. She called Kanta at 10.03 P.M. in the night,
on which, Kanta allegedly complained that she was being harassed
and humiliated for demand of a motorcycle and cash and that she
had not been given anything to eat for last two days. She called
her mother and told her of these events. On the next morning,
they received information that Kanta was no more. In cross
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examination the witness feigned ignorance as to the duration after
which her statement was recorded by the police. She claimed to
be present in the Panchayati held at Nohar and stated that when
meeting was convened, Shiv Kumar was asked to come down to
Nohar. She feigned ignorance as to the fact whether mobile phone
on which the conversation was held between her and Smt. Kanta
was of Shiv Kumar. She also admitted that an amicable
settlement was arrived at in the Panhayati and Kanta was sent
back with Shiv Kumar. She was given a suggestion that the
theory put forth by her regarding the calls exchanged between her
and Smt. Kanta was false. P.W.12 Naresh Kumar, Dy.S.P., Churu
was the officer who investigated the matter. His statement is
formal in nature. In cross examination, the witness was
suggested that he did not seek any opinion from the medical
board regarding the age of the foetus being carried by Smt.
Kanta. The witness admitted that the prosecution witnesses did
not specify the date or time or nature of articles allegedly
demanded by the accused from the deceased by way of dowry.
The accused-Shiv Kumar, in his statement recorded under
Section 313 Cr.P.C., took a specific plea that Kanta did not get into
periods, on which, he insisted that they should consult a doctor.
She received a call at about 10 O’clock, the night before the
incident on which, she suddenly became pensive and attempted to
commit suicide by hanging herself. He immediately took her down
from the noose and took her to the hospital. The doctor asked
him to report the matter. He went to the police station, but rather
than taking his report, the police authorities detained him. He
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specifically alleged that foetus being carried in the womb of Kanta
was that of her brother-in-law and fearing exposure upon medical
examination, she committed suicide. Four witnesses including the
accused-Shiv Kumar were examined in defence. The witness
D.W.3 Jagdish Prasad categorically stated that he was the
Secretary of the Agrasen Bhawan, Churu, where the marriage of
Shiv Kumar was solemnized. The payment for the hall was made
by Gopi Ram. The girl’s family came to Churu for solemnizing the
marriage and stayed in the Dharamshala for two days. The
boarding and lodging charges of the girl’s family were borne by
Gopi Ram. He proved the receipts Ex.D8 and Ex.D9. Shiv Kumar
examined himself as a defence witness and took a specific plea
that Kanta contracted the pregnancy from her brother-in-law
Sushil Kumar. She missed her periods upon which, he insisted that
she should get herself medically examined but Kanta refused. On
08.03.2010, he offered to call the doctor at home. On that very
evening, Kanta received a call from Sushil Kumar and she talked
to him in privacy. One more call was received by Kanta at about
10 O’clock whereafter, she became sad. When he woke up in the
morning at about 6 o’clock, he did not see Kanta in the room. He
made a search and saw that Kanta was hanging from a noose in
another room. He alleged that Kanta was having a foetus of about
four months in her womb, whereas their marriage was solemnized
about three and a half months ago. He suspected that Kanta was
having illicit relations with her brother-in-law and that is why she
was hesitating in getting herself medically checked up. Kanta was
instigated by Sushil Kumar to terminate her pregnancy. She came
under pressure because of these circumstances and committed
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suicide fearing repraisal. A specific plea was taken by Shiv Kumar
that neither he nor his parents ever harassed or humiliated the
deceased on account of demand of dowry. In cross examination
conducted from Shiv Kumar, not even a vague suggestion was
given to him by prosecution that the deceased was ever harassed
or humiliated on account of demand of a motor cycle or a sum of
Rs. 1 lac by the accused persons in the matrimonial home.
Rather, the suggestion which was given to the accused by the
Public Prosecutor in cross examination was that he (appellant
herein), his mother and father killed Kanta by hanging her owing
to demand of dowry. Another suggestion was given that she was
throttled to death.
From a threadbare sifting of the evidence of the prosecution
as well as the defence evidence summarized hereinabove, the
following conclusions emerge:-
(1) that the financial condition of the paternal relatives of Kanta
was not very sound. The marriage was solemnized at Churu i.e.
the town of the accused and the expenses of the marriage were
borne by the accused Gopi Ram;
(2) that Smt. Kanta went back to her father’s house after 15
days of her marriage with the accused-appellant Shiv Kumar and
returned back only on 27.02.2010. The theory put forth by the
prosecution witnesses regarding two Panchayatis held for
counselling the accused Shiv Ram is totally false because there
are serious contradictions in the statement of material witnesses
in this regard. On the other hand, not even the faintest of
suggestion was given to Shiv Kumar when he stepped into the
(17 of 20) [CRLA-228/2014]
witness box as D.W.4 that he or his parents harassed the
deceased owing to demand of a motorcycle and cash amount of
rupees 1 lac.
(3) The deceased was carrying a foetus of about 3½ months in
her womb when her dead body was subjected to post mortem.
Considering the fact that Smt.Kanta was at her father’s house
from about 15 days after the marriage, manifestly the accused
Shiv Kumar had no access to his wife span a period of about 2½
months and therefore, a suspicion could be generated in his mind
owing to her not getting into mensuration.
(4) The allegation regarding the deceased having been harassed
and humiliated by the accused on account of demand of a
motorcycle and a sum of Rs.1 lac is totally missing from the
written report Ex.P5 and the investigational statements of the
material prosecution witnesses. Such allegation has been set up
by way of a sheer improvement when the witnesses stepped into
the witness box for giving their evidence.
(5) Other than the improved allegation of demand of the
motorcycle and sum of Rs.1 lac there is no aspersion of the
prosecution witnesses that anything else was ever demanded by
the accused from the deceased or that she was harassed or
humiliated for such demands.
In backdrop of the above discussion, we are of the opinion
that the allegations set out in the statements of the material
prosecution witnesses that the deceased was harassed and
humiliated by the accused on account of demand of a sum of Rs.1
lac and a motorcycle has not been proved satisfactorily and
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beyond all manner of doubt by cogent convincing evidence and as
a consequence, we have no hesitation in holding that the
prosecution failed to prove that the deceased was harassed and
humiliated in the matrimonial home on account of demand of
dowry any time soon before her death. The conclusions drawn by
the trial Court to this effect in the impugned judgment are not
based on an appropriate appreciation of the evidence and thus
cannot be sustained.
We feel that from the tenor of the prosecution evidence as
well as the defence evidence it is quite likely that the accused
appellant Shiv Kumar was carrying a niggling suspicion in his mind
regarding the deceased having conceived outside the wedlock and
thus, he was pressurizing her to undergo medical tests. We feel
that the hype so created by the accused Shiv Kumar against
Smt.Kanta was not substantiated by any positive material and
merely appears to be the conjectural creation of the suspicious
state of the accused. It seems that owing to this suspicion, the
accused was pestering Smt.Kanta to undergo a medical treatment
and being under this persistent pressure of the accused,
Smt.Kanta appears to have been instigated to end her life by
hanging herself in the matrimonial home. The suspicious attitude
of the accused Shiv Kumar which resulted into undue pressure
being exerted and aspersions being cast on the deceased,
amounted to cruelty which led to the deceased ending her life in
the matrimonial home within a period of seven years from her
marriage. Thus, the presumption under Section 113A of the
Evidence Act definitely operates against the accused Shiv Kumar.
(19 of 20) [CRLA-228/2014]
In wake of the discussion made hereinabove, we find that so
far as the appellants Gopi Ram and Smt.Maina Devi are
concerned, the prosecution could not prove the charges beyond
them by leading cogent and convincing evidence beyond all
manner of doubt. We are also of the opinion that the prosecution
could not bring home the charge on dowry death punishable under
Section 304B I.P.C. against the appellant Shiv Kumar and rather
he is liable to be held guilty for the offence under section 306
I.P.C. for instigating Smt.Kanta to commit suicide.
Accordingly, the appeal preferred by Gopi Ram and
Smt.Maina Devi deserves to be and is hereby allowed. Both these
accused are acquitted of the charges. They are on bail. Their bail
bonds are discharged.
The conviction of the appellant Shiv Kumar for the offence
under Section 304B I.P.C. is set aside and instead, he is convicted
for the offence under Section 306 I.P.C. However, his conviction
for the offence under Section 498A I.P.C. is upheld.
Considering the overall facts and circumstances as available
on record, we deem it proper to sentence the appellant Shiv
Kumar for the offence under Section 306 I.P.C. to rigorous
imprisonment for a period of 7 years and fine of Rs.5000/-, in
default of payment of fine, he shall further undergo three months
imprisonment. However, the sentence awarded by the trial court
to Shiv Kumar for the offence under Section 498A I.P.C. is
maintained. Both the sentences shall run concurrently. The
accused appellant Shiv Kumar is in custody for the last more than
(20 of 20) [CRLA-228/2014]
8 years and 10 months. He shall be released forthwith if not
wanted in any other case, upon depositing the amount of fine.
While allowing the appeal partly, the impugned judgment
dated 7.3.2014 is modified in the above terms.
(VINIT KUMAR MATHUR),J (SANDEEP MEHTA),J
/tarun goyal/
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