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Shiv Kumar @ Shiva And Ors vs State on 9 January, 2019

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
(3 of 20) [CRLA-228/2014]

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
(4 of 20) [CRLA-228/2014]

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
(6 of 20) [CRLA-228/2014]

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
(13 of 20) [CRLA-228/2014]

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
(14 of 20) [CRLA-228/2014]

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
(15 of 20) [CRLA-228/2014]

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
(16 of 20) [CRLA-228/2014]

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
(18 of 20) [CRLA-228/2014]

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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