Rajesh Kumar Kaushik Vs The State of Madhya Pradesh (now the State of Chhattisgarh)

Chhatisgarh High Court (Single Judge)

1185 of 2000 of 2015, Judgment Date: Feb 20, 2015

HIGH COURT OF CHHATTISGARH, BILASPUR
Reference under Sections 370 & 392 of the Code of Criminal Procedure, 1973
In
Criminal Appeal No.1185 of 2000
APPELLANT/:
(Accused)
Rajesh Kumar Kaushik
Versus
RESPONDENT: The State of Madhya Pradesh (now the State
of Chhattisgarh)
{Criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973}
(Reserved for judgment on 19-1-2015)
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Present:
Mrs. Renu Kochar, counsel for the appellant.
Mr. J.K.T. Gilda, Advocate General with Mr. Satish Gupta, Govt. Advocate
for the State/respondent.
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Single Bench: Hon’ble Mr. T.P. Sharma, J
JUDGMENT
(20-2-2015)
1. Their Lordships in the Division Bench could not reach a consensus as to the
culpability of appellant Rajesh Kumar Kaushik, and therefore, by order dated
19-9-2014, the appeal was directed to be laid before third judge in terms of
Sections 370 and 392 of the Code of Criminal Procedure, 1973 (for short 'the
Code'). Order of reference reads thus,
“There is a difference of opinion between us. One of us has
convicted the Appellant and the other has acquitted him. In
view of this, the matter be placed before the third judge for
opinion, after nomination.”
2. By order dated 16-10-2014, Hon'ble the Acting Chief Justice directed the
matter to be placed before this Bench.
3. Section 392 of the Code reads as –
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Cr.A.No.1185/2000
“392. Procedure where Judges of Court of Appeal are
equally divided.-When an appeal under this Chapter is
heard by a High Court before a Bench of Judges and they
are divided in opinion, the appeal, with their opinions, shall
be laid before another Judge of that Court, and that Judge,
after such hearing as he thinks fit, shall deliver his opinion,
and the judgment or order shall follow that opinion:
Provided that if one of the Judges constituting the
Bench, or, where the appeal is laid before another Judge
under this section, that Judge, so requires, the appeal shall
be re-heard and decided by a larger Bench of Judges.”
4. Law relating to the scope of powers and jurisdiction of third judge in reference
under Section 392 of the Code is no longer res integra as the same has been
settled by the Supreme Court and several High Courts (see Footnote)1.
Law on the subject of reference under Section 392 of the Code is that while
making reference of appeal to third Judge, the appeal as a whole is required to
be laid before the third judge. The third Judge is required to examine
independently the entire case including the points on which the two Judges of
the Division Bench had concurred. The third Judge is not bound by the opinion
of the Division Bench. His position is not that of a Judge sitting in a three
Judge Bench where majority opinion prevails. The third Judge is free to decide
the appeal by resolving the differences in the manner he thinks proper. His
opinion is rather the material one and against the judgment that follows
therefrom an appeal lies. The third judge is not obliged, either as a rule of
1Tanviben Pankajkumar Divetia v. State of Gujarat, (1997) 7 SCC 156; Babu v. State of
U.P., AIR 1965 SC 1467 : (1965) 2 SCR 771; Hethuba v. State of Gujarat, (1970) 1 SCC
720 : 1970 SCC (Cri) 280 : AIR 1970 SC 1266; Union of India v. B.N. Ananti
Padmanabiah, (1971) 3 SCC 278 : 1971 SCC (Cri) 535 : AIR 1971 SC 1836; State of A.P.
v. P.T. Appaiah, (1980) 4 SCC 316 : 1980 SCC (Cri) 960 : AIR 1981 SC 365; Balku v.
Emperor, AIR 1948 All 237 : 1948 All LJ 102 : 49 Cri LJ 264; Nemai Mondal v. State of
West Bengal, AIR 1966 Cal 194 : 1966 Cri LJ 522; Dharam Singh v. State of U.P., 1964
(1) Cri LJ 78 : 1962 All LJ 748 (SC); State of U.P. v. Dan Singh and others, (1997) 3 SCC
747; Sajjan Singh and others v. State of M.P., (1999) 1 SCC 315; Shriram Pandey and
others v. State of M.P. (now State of C.G.), 2013 (3) CGLJ 28.
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prudence or on the score of judicial etiquette, to accept the view of either or
both of the Judges, even on points where there is no difference of opinion.
5. In the light of aforesaid proposition of law, I have heard the appeal filed on
behalf of the appellant.
6. The appellant has preferred the appeal against the judgment of conviction and
order of sentence dated 28-4-2000 passed by the 2nd Additional Sessions
Judge, Bilaspur in Sessions Trial No.1/2000, whereby while acquitting two
other co-accused namely Malluram Kaushik & Smt. Kaveri Bai, father & mother
of the appellant, of the charges under Sections 498A & 304B of the IPC,
convicted the appellant/husband under Sections 498A & 304B of the IPC and
sentenced him to undergo RI for two years & pay fine of Rs.1,000/- and
imprisonment for life & fine of Rs.2,000/-, in default, additional imprisonment for
three months, on each default, respectively.
7. By filing appeal, the appellant has impugned the judgment on the ground that
without any material, the trial Court has convicted & sentenced the appellant in
the aforesaid manner and thereby has committed illegality.
8. As per case of the prosecution, deceased Aruna Bai was married to the
appellant about 2½ years prior to the date of incident i.e. 25-4-1999. The
appellant and his parents committed torture & cruelty in connection with
demand of dowry upon the deceased and as a result of torture & cruelty, bride
Aruna Bai sustained burn injuries on 25-4-1999. She was brought to the
District Hospital, Bilaspur. Her percentage of burns was 100%. She was
admitted in the hospital on 25-4-1999 and was attended by Dr. (Kum.) S. Rao
(PW-13). She was examined vide Ex.P-13. It was a kerosene oil burn. She
was under shock, blood pressure was not recordable and her condition was
serious. The fact of admission of Aruna Bai in the hospital was intimated to
Police Station City Kotwali, Bilaspur by Dr. (Kum.) S. Rao (PW-13) vide Ex.P-
14. During the course of treatment, Aruna Bai succumbed to the injuries on
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26-4-1999 at 9.11 a.m.. Death was intimated to Police Station City Kotwali,
Bilaspur vide Ex.P-15. Morgue was recorded vide Ex.P-11.
9. The Investigating Officer after summoning the witnesses vide Ex.P-7, prepared
inquest over the dead body of the deceased vide Ex.P-8. Spot map was
prepared vide Ex.P-12. Burnt ornaments, clothes, bangles, slippers, match
box and melted jerrican seized from the rooms where the incident took place.
Bangles and part of hair of the deceased were seized from the roof vide Ex.P-
9.
10. Dead body of the deceased was sent for autopsy to Dharam Hospital, Bilaspur
vide Ex.P-16A. Dr. Rajnikant Verma (PW-15) conducted autopsy vide Ex.P-16
and found following injuries and symptoms: -
➢ Tongue protruded and beaten between the teeth.
➢ Body burnt. Carbon particles found in the trachea.
➢ Internal organs congested.
➢ Percentage of burns was 100% .
➢ Smell of kerosene oil was coming from the body.
➢ Degree of burns was up to 2nd with charing.
➢ Burn injuries were ante mortem in nature.
Cause of death was suffocation and asphyxia as a result of fume emitted by
fire.
11. Patwari prepared spot map vide Ex.P-4. Articles seized were sent for chemical
examination to the Forensic Science Laboratory and the FSL has affirmed
presence of kerosene oil over the burnt articles vide Ex.P-3. Viscera and other
articles were sealed and seized vide Ex.P-5.
12. On 13-5-1999, Tularam Kaushik (PW-6), father of the deceased, lodged written
complaint vide Ex.P-6. On the basis of the written complaint, FIR Ex.P-6A was
registered. The accused were arrested. After recording statements of the
witnesses under Section 161 of the Code and after completion of investigation,
charge-sheet was filed before the Court of Judicial Magistrate First Class,
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Cr.A.No.1185/2000
Bilaspur who in turn, committed the case to the Court of Sessions, Bilaspur,
from where the 2nd Additional Sessions Judge, Bilaspur received the case on
transfer for trial.
13. In order to bring home the guilt of the appellant and the accused persons, the
prosecution has examined as many as nineteen witnesses. The accused
persons were examined under Section 313 of the Code in which they denied
the circumstances appearing against them, pleaded innocence and false
implication in the crime in question. They have also examined defence
witnesses Ram Prasad (DW-1) and Manmohan Lal (DW-2) who have deposed
that relation between the appellant and the deceased was cordial, after death
of deceased Aruna Bai, her father Tularam Kaushik (PW-6) met with a
politician, the then Member of Legislative Assembly, Bilha and on his advise,
complaint has been made by the father of the deceased.
14. After providing opportunity of hearing to the parties, while acquitting two coaccused
i.e. parents of the appellant, the trial Court has convicted & sentenced
the appellant as aforementioned.
15. Initially, the matter was heard by a Division Bench consisting of Hon'ble the
then Chief Justice and Hon'ble Mr. Justice Pritinker Diwaker, and on account of
difference of opinion, vide order dated 19-9-2014, it was directed to be placed
before the third Judge for opinion. As a third Judge in terms of Section 392 of
the Code, I have heard learned counsel for the parties, perused the judgment
and record of the trial Court.
16. Mrs. Renu Kochar, learned counsel for the appellant, vehemently argued that
conviction of the appellant is substantially based on the evidence of Tularam
Kaushik (PW-6) – father, Gayamati (PW-7) – mother, Ramlal (PW-8) – grandfather
and Rajkumar (PW-9) – uncle of the deceased, they are interested and
inimical witnesses. After death of the deceased on account of love & affection
and on the advise of politician, Tularam Kaushik (PW-6) has lodged false
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Cr.A.No.1185/2000
complaint against the appellant and his parents. Mrs. Renu Kochar further
argued that as per their evidence, relation between the appellant and the
deceased was cordial, the appellant has never demanded dowry, motorcycle or
Rs.25,000/-, he has never committed torture and cruelty, the deceased died
inside her room, room was closed from inside and the deceased sustained
burn injuries inside her room when the room was closed from inside, at that
time the appellant was sleeping on the roof, and only on the ground that the
appellant is husband of the deceased, he cannot be made liable for
commission of the offence of dowry death. There is material contradiction,
omission, exaggeration and improvement in the evidence of Tularam Kaushik
(PW-6), Gayamati (PW-7), Ramlal (PW-8) and Rajkumar (PW-9) with their
previous statements. In the light of aforesaid material contradiction, omission
and improvement in their evidence, their evidence are not sufficient for drawing
positive inference in absence of corroboration from independent source. Even
as per their evidence, father of the appellant has demanded motorcycle and
money, they have not deposed that the appellant has demanded motorcycle or
money or demanded dowry or committed torture & cruelty in connection with
demand of dowry. Therefore, presumption under Section 113B of the Indian
Evidence Act, 1872 could not be available in favour of the prosecution. Even
otherwise, presumption is rebutable presumption and in absence of proof that
the appellant has committed torture & cruelty in connection with demand of
dowry, conviction of the appellant is not sustainable under the law. Mrs. Renu
Kochar also argued that on the same set of evidence two accused have been
acquitted by the trial Court, the present appellant is also entitled for similar
treatment. As per evidence of aforesaid witnesses, persons of in-laws' house
(sasuralwale) have committed the offence, their evidence are bald and
omnibus which are not sufficient for drawing definite conclusion only against
the present appellant. The prosecution has utterly failed to prove its case
beyond reasonable doubt. Conviction and sentences imposed upon the
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Cr.A.No.1185/2000
appellant under Sections 498A & 304B of the IPC are not sustainable under
the law.
17. On the other hand, Mr. J.K.T. Gilda, learned Advocate General appearing on
behalf of the State/respondent, opposed the appeal and submitted that
evidence adduced on behalf of the prosecution especially the evidence of
Tularam Kaushik (PW-6), Gayamati (PW-7) and Ramlal (PW-8) are sufficient
for drawing inference that the appellant has committed torture and cruelty upon
the deceased i.e. his wife in connection with demand of dowry soon before her
death. The deceased was married to the appellant 2½ years prior to the
incident. She died in abnormal circumstances as a result of burn injuries
sustained by her in the house of the appellant. The prosecution has proved the
fact that soon before sustaining of such injuries by the deceased, she was
subjected to torture and cruelty in connection with demand of dowry. Date of
incident was the first day of marriage function of cousin sister of the appellant,
guests were taking meals in the house of the appellant in ground floor and the
deceased was present inside the room situated at first floor. She sustained
100% burn injuries. The appellant was present on same floor i.e. upon the roof
at the time of such incident. Door of stair was closed from inside i.e. it was not
possible to open from ground floor. These show the abnormal circumstances
at the time of taking meals by guests. Absence of the appellant and the
deceased from the place of dinner was not natural, inter alia, it would have
been the natural conduct of the appellant and the deceased to remain present
on the place of dinner. There cannot be any straitjacket formula for deciding
the factum of “soon before death”, but there must be existence of a proximate
and live link between the effect of cruelty based on dowry demand and the
death concerned. Tularam Kaushik (PW-6) has specifically deposed that the
appellant's family has demanded motorcycle and money. In para 11 of his
cross-examination, he has also admitted that the appellant and other coaccused
have not permitted the deceased to join in the marriage solemnized in
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Cr.A.No.1185/2000
his family. Gayamati (PW-7), mother of the deceased, has deposed in para 3
of her evidence that the appellant and his father have demanded vehicle. Mr.
J.K.T. Gilda further submitted that in case of torture or cruelty upon the bride,
normally, it would not be possible to lodge report immediately or to react
against the torture and cruelty. Normally, bride and her parents tolerate the
same with a hope that there would be good future of bride after some time and
the matter would subside unless it becomes intolerable. Even at the time of
abnormal death of bride, parents would not be in a position to make complaint
or lodge report immediately on account of shock. Therefore, only on the
ground that they have not lodged report, not made complaint or not convened
the meeting, their evidence cannot be rejected outrightly. Their evidence
require minute scrutiny.
18. Mr. J.K.T. Gilda placed reliance in the matter of Prem Kanwar v. State of
Rajasthan2 in which the Supreme Court has held that “soon before her death”
in case of dowry death means proximate and live-link must exist between effect
of cruelty based on dowry demand and concerned death. Mr. J.K.T. Gilda
further placed reliance in the matter of Bansi Lal v. State of Haryana3 in which
the Supreme Court has held that in case if essential ingredients of dowry death
are established by the prosecution then it is the duty of the court to raise a
presumption that accused has caused dowry death under Section 304B of the
IPC, and has further held that consistent harassment and maltreatment to
deceased by making scooter demand by husband of deceased and family
members, lead to the deceased eventually committing suicide shows that
husband has caused dowry death.
19. In order to appreciate the arguments advanced on behalf of the parties, I have
to examine the evidence adduced on behalf of the parties.
2AIR 2009 SC 1242
3(2011) 11 SCC 359
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20. In the present case, death of deceased Smt. Aruna Bai, legally wedded wife of
the appellant, on 26-4-1999 as a result of burn injuries sustained by her on 25-
4-1999 within seven years of her marriage under abnormal circumstances has
not been substantially disputed on behalf of the appellant, on the other hand
also, same stands established by the evidence of Tularam Kaushik (PW-6) –
father of the deceased, Gayamati (PW-7) – mother of the deceased, Ramlal
(PW-8) – grand-father of the deceased, Rajkumar (PW-9) – paternal uncle of
the deceased, written complaint Ex.P-6, FIR Ex.P-6A, evidence of Dr. (Kum.)
S. Rao (PW-13), injury report Ex.P-13, evidence of Dr. Rajnikant Verma (PW-
15) and autopsy report Ex.P-16.
21. The question for consideration is that whether soon before her death, the
deceased was subjected to cruelty in connection with demand of dowry.
22. Dowry death has been defined in Section 304B of the IPC which reads thus,
“304B. Dowry death.—(1) Where the death of a woman is
caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of her
marriage and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any
demand for dowry, such death shall be called “dowry death”,
and such husband or relative shall be deemed to have
caused her death.
Explanation.—For the purposes of this sub-section,
“dowry” shall have the same meaning as in section 2 of the
Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished
with imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for life.”
23. As per Section 113B of the Indian Evidence Act, 1872, presumption can be
raised about dowry death. Section 113B of the Indian Evidence Act, 1872
reads thus,
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Cr.A.No.1185/2000
“113B. Presumption as to dowry death.—When the
question is whether a person has committed the dowry death
of a woman and it is shown that soon before her death such
woman has been subjected by such person to cruelty or
harassment for, or in connection with, any demand for
dowry, the Court shall presume that such person had caused
the dowry death.
Explanation.—For the purposes of this section,
“dowry death” shall have the same meaning as in section
304B of the Indian Penal Code (45 of 1860).”
24.While interpreting the words “soon before her death” occurred in Section 304B
of the IPC, the Supreme Court in the matter of Hira Lal and others v. State
(Govt. of NCT), Delhi4 has held that no straitjacket formula can be laid down
as to what would constitute a period of “soon before” the occurrence, it has to
be determined by the courts, depending upon the facts and circumstances of
each case. Existence of a proximate and live link between the effect of cruelty
based on dowry demand and the death concerned. The Supreme Court has
observed in para 9 as follows: -
“9. A conjoint reading of Section 113-B of the Evidence Act
and Section 304-B IPC shows that there must be material to
show that soon before her death the victim was subjected to
cruelty or harassment. The prosecution has to rule out the
possibility of a natural or accidental death so as to bring it
within the purview of 'death occurring otherwise than in
normal circumstances'. The expression 'soon before' is very
relevant where Section 113-B of the Evidence Act and
Section 304-B IPC are pressed into service. The
prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and only in that
case presumption operates. Evidence in that regard has to
be led by the prosecution. 'Soon before' is a relative term
and it would depend upon the circumstances of each case
and no strait-jacket formula can be laid down as to what
would constitute a period of soon before the occurrence. It
4(2003) 8 SCC 80
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Cr.A.No.1185/2000
would be hazardous to indicate any fixed period, and that
brings in the importance of a proximity test both for the proof
of an offence of dowry death as well as for raising a
presumption under Section 113-B of the Evidence Act. The
expression 'soon before her death' used in the substantive
Section 304-B IPC and Section 113-B of the Evidence Act is
present with the idea of proximity test. No definite period
has been indicated and the expression 'soon before' is not
defined. A reference to the expression 'soon before' used in
Section 114. Illustration (a) of the Evidence Act is relevant.
It lays down that a Court may presume that a man who is in
the possession of goods 'soon after the theft, is either the
thief or has received the goods knowing them to be stolen,
unless he can account for their possession'. The
determination of the period which can come within the term
'soon before' is left to be determined by the Courts,
depending upon facts and circumstances of each case.
Suffice, however, to indicate that the expression 'soon
before' would normally imply that the interval should not be
much between the cruelty or harassment concerned and the
death in question. There must be existence of a proximate
and live-link between the effect of cruelty based on dowry
demand and the death concerned. If the alleged incident of
cruelty is remote in time and has become stale enough not
to disturb the mental equilibrium of the woman concerned, it
would be of no consequence.”
25.While dealing with same question, the Supreme Court in the matter of Prem
Kanwar (supra), has held that the expression 'soon before' would normally
imply that the interval should not be much between the concerned cruelty or
harassment and the death in question. There must be existence of a
proximate and live-link between the effect of cruelty based on dowry demand
and the concerned death. If alleged incident of cruelty is remote in time and
has become stale enough not to disturb mental equilibrium of the woman
concerned, it would be of no consequence.
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Cr.A.No.1185/2000
26. Undisputedly, deceased Aruna Bai was married to the appellant 2½ years prior
to the date of her death i.e. 26-4-1999, she sustained burn injuries in the house
of the appellant and died as a result of burn injuries sustained by her. After
receiving burn injuries in the house of the appellant at Village Hardi, Police
Station Hirri, Distt. Bilaspur, she was brought to District Hospital, Bilaspur
where she was first time attended and examined by Dr. (Kum.) S. Rao (PW-13)
vide Ex.P-13 who noticed that it was 100% burn injuries, pulse and blood
pressure were not feasible, and condition of the patient was poor. She
informed the police vide Ex.P-14. During the course of treatment, she died on
26-4-1999. Morgue was recorded vide Ex.P-10.
27. Tularam Kaushik (PW-6), father of the deceased, lodged written complaint
Ex.P-6 on 13-5-1999 after about 20 days of incident. FIR Ex.P-6A has been
recorded on the basis of written complaint Ex.P-6. As per his evidence, his
daughter Aruna Bai was married to appellant Rajesh Kumar Kaushik and she
died as a result of burn injuries on 26-4-1999. As per his evidence, after 2-3
months of marriage, the deceased came to his house where she informed that
parents of the appellant used to assault her in connection with demand of
motorcycle. Even one week prior to the incident, father of the appellant had
come to his house and demanded Rs.25,000/-, but he was having only
Rs.4,000/-, he had given Rs.4,000/- with a promise that he will pay remaining
amount within a week, but he could not arrange the money. He has further
deposed that on first day of marriage function (mandapachhadan) of cousin
sister of the appellant, the deceased died as a result of burn injuries. At the
time of death, she was pregnant. Earlier, the deceased had told him that her
in-laws (sasuralwale) used to assault her. He has also deposed that kangan of
the deceased was lying upon the cot of the appellant.
28. Gayamati (PW-7), mother of the deceased, has deposed that the appellant and
his father have demanded motorcycle and also assaulted the deceased. Even
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15 days prior to the incident, the appellant visited her house and his father
visited her house just one week prior to the incident and demanded
Rs.25,000/-.
29. Ramlal (PW-8), grand-father of the deceased, has deposed that her granddaughter
used to inform him that members of her in-laws' house used to
commit torture upon her. Rajkumar (PW-9), paternal uncle of the deceased,
has also deposed same thing.
30. Defence has cross-examined these witnesses at length. There are
contradictions and omissions i.e. Ex.D-1 of Tularam Kaushik (PW-6), Ex.D-4 of
Gayamati (PW-7), Ex.D-5 of Ramlal (PW-8) and Ex.D-6 of Rajkumar (PW-9),
but there is consistency in their statements that the appellant along with his
parents had demanded motorcycle and assaulted the deceased and that the
deceased has informed aforesaid facts to these witnesses. Rs.25,000/- was
demanded by father of the appellant.
31. Tularam Kaushik (PW-6), father of the deceased, has lodged written complaint
on 13-5-1999, after 20 days of incident. Even as per para 8 of his crossexamination,
he contacted the then Member of Legislative Assembly which
shows that he has also taken the assistance of political persons in initiating
prosecution against the appellant and his parents, but the fact remains that the
deceased, wife of the appellant, sustained burn injuries in the house of the
appellant within 3 years of her marriage. She was not insane and it was not
accidental burn.
32. Sheetal (PW-10) has deposed that he was present in the house of the
appellant, taking meals at 10.30 p.m. when mother of Amit told him about fire in
the house, he went on the first floor, staircase was closed by latched door from
inside, he broke the door open and went to the roof near the room, the room
was also locked from inside and the deceased was ablaze inside, they broke
the door, at that time the appellant was sleeping on the roof adjoining to the
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Cr.A.No.1185/2000
room where the deceased was burning. As per para 2 of his crossexamination,
at the time of incident, other members were taking meals in the
house of the appellant. As per para 1 of the evidence of Tularam Kaushik
(PW-6), it was the first day of marriage function (mandapachhadan) of cousin
sister of the appellant where relatives were present and were taking meals, but
as per evidence of Sheetal (PW-10), the appellant was sleeping on the roof
adjoining to the room where the deceased sustained burn injuries. Evidence of
the prosecution witnesses reveal that the deceased sustained burn injuries
inside her room. Upper part of the house was closed from inside and only two
persons the deceased and the appellant were present on upper part of the
house, the deceased was present inside the room and the appellant was
present outside the room on same floor.
33. Matrimonial ties are delicate based on trust and confidence. For want of
previous intimacy and understanding, normally bride feels alone in her
matrimonial house. It is a matter of common knowledge that in case of
domestic violence, harassment, torture and cruelty in connection with demand
of dowry, normally, the effected person i.e. bride does not react or report or
inform the harassment or tortuous attitude of her husband, in-laws or relatives
of husband to anyone with a hope that the matter will subside and she will lead
life with dignity in her matrimonial house, but as and when she gets an
opportunity she informs to her parents or other relatives of confidence. Even
parents or relatives of bride normally do not react immediately but wait for
appropriate time with a hope of amicable settlement and bright future of their
daughter, and further, with a view to avoid further complications which might
arise in future, but when the matter becomes intolerable then the daughter-inlaw
/ bride or the effected woman discloses the tortuous attitude of her
husband and his relatives to the neighbours and other persons related to her to
get the dispute resolved by their intervention.
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34. In case of abnormal death of bride, normally parents do not inform the police at
the time of inquest or autopsy on account of shock, but only on the ground that
maternal relatives of the deceased had not lodged report during the life time of
the deceased or had not convened panchayat or community meeting or the
bride had not taken any action, evidence of maternal relatives or bride cannot
be rejected outrightly, however, before acceptance it requires to be scrutinized
minutely.
35. Tularam Kaushik (PW-6), Gayamati (PW-7), Ramlal (PW-8) & Rajkumar (PW-
9) are such relatives of the deceased. Their evidence thus require close
scrutiny on above principle. Only on the ground that Tularam Kaushik (PW-6)
has lodged complaint after 20 days of incident or other relatives have not
stated anything to the police on the date of incident or at the time of inquest,
their evidence cannot be rejected outrightly.
36. As deposed by Tularam Kaushik (PW-6), Gayamati (PW-7), Ramlal (PW-8)
and Rajkumar (PW-9), lastly, father of the appellant demanded Rs.25,000/- for
marriage of his niece, from father of the deceased. In absence of any other
evidence, aforesaid demand cannot be considered as demand of dowry, but
their evidence reveal that the appellant and his father have demanded
motorcycle as dowry and on account of non-fulfillment of demand, they have
committed torture and cruelty upon the deceased and harassed her. The
appellant, husband of the deceased, was under obligation to save his wife from
torture and harassment, but as per evidence of Tularam Kaushik (PW-6),
Gayamati (PW-7), Ramlal (PW-8) and Rajkumar (PW-9), the appellant himself
was instrumental in harassment. Although Gayamati (PW-7) has deposed in
para 6 of her cross-examination that she has stated to the police that the
deceased was not having any grudge against the appellant, the appellant kept
her well and she does not know how the deceased sustained burn injuries, but
she has explained in same para that on account of death of her daughter, she
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was mentally perturbed, thereby she has explained that why she has stated
aforesaid statement to the police.
37. As held by the Supreme Court in Hira Lal (supra), there can be no straitjacket
formula as to what would constitute a period of “soon before” the occurrence, it
has to be determined by the courts, depending upon the facts and
circumstances of each case. Existence of a proximate and live link between
the effect of cruelty based on dowry demand and the death concerned.
38. In case of abnormal death of bride on account of torture and cruelty in
connection with demand of dowry there must be live-link between such
harassment / torture in connection with demand of dowry and death of the
deceased.
39. Probably, some confusion has been created in interpreting the word
'sasuralwale'. The word 'sasuralwale' is not ambiguous and specifically
includes husband and relatives of husband normally residing under same roof.
It does not exclude husband. Evidence adduced on behalf of the prosecution
against 'sasuralwale' of the deceased bride clearly includes husband of the
deceased i.e. the present appellant.
40. Evidence adduced on behalf of the prosecution, especially evidence of
Tularam Kaushik (PW-6), Gayamati (PW-7), Ramlal (PW-8) and Rajkumar
(PW-9), clearly reveal that the appellant has harassed his wife regularly.
Circumstances proved by Sheetal (PW-10) further reveal that even on the date
of incident, the appellant and the deceased were present and on same day, the
deceased sustained burn injuries inside her room, the appellant, responsible
member of the house, was sleeping on the roof adjoining to that room, doors of
staircase were latched from inside and more importantly he despite being
responsible family member was sleeping when other persons were taking
meals in the ground floor. Absence of the deceased from ground floor is also
alarming. This shows the exceptional circumstances of presence of the
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Cr.A.No.1185/2000
deceased and the appellant on first floor. These circumstances also indicate
the immediate act of harassment of the deceased by the appellant alone
leading her into her death.
41. Evidence of Tularam Kaushik (PW-6), Gayamati (PW-7), Ramlal (PW-8) and
Rajkumar (PW-9) are sufficient for proving the factum of harassment and
torture committed by the appellant, but are not sufficient for proving the factum
of torture and harassment in connection with demand of dowry. Evidence of
aforesaid witnesses are sufficient to prove the fact that by regular torture and
harassment, the appellant has driven the deceased to commit suicide and end
her life and thereby abetted the suicide of the deceased. Evidence adduced on
behalf of the prosecution is not sufficient for proving the fact that the appellant
has caused dowry death but is sufficient for proving the fact that the appellant
has abetted the suicide of deceased Aruna Bai.
42. In the present case, the appellant has been convicted under Sections 498A &
304B of the IPC, he was not charged for the offence punishable under Section
306 of the IPC, but evidence adduced on behalf of the prosecution clearly
reveals that the appellant has abetted the suicide of the deceased punishable
under Section 306 of the IPC and has also committed torture and cruelty upon
the deceased punishable under Section 498A of the IPC. Although specific
charge of Section 306 of the IPC has not been framed upon the appellant, but
the prosecution has led clear evidence and the appellant was having complete
opportunity to defend himself. Even otherwise, dowry death is either murder
punishable under Section 302 of the IPC or abetment to commit suicide
punishable under Section 306 of the IPC.
43.While dealing with the question of conviction of the accused under Section 306
of the IPC in case of charge under Section 304B of the IPC, the Supreme
Court in Hira Lal (supra) has held that even in case of charge under Section
304B of the IPC, accused may be held guilty for commission of the offence
Page 18 of 20
Cr.A.No.1185/2000
under Section 306 of the IPC even in absence of specific charge. Paras 15
and 16 of the judgment in Hira Lal (supra) read thus,
“15. It may be noted that though no charge was framed
under Section 306 IPC, that is inconsequential in view of
what has been stated by a three-Judge Bench of this Court
in K. Prema S. Rao v. Yadla Srinivasa Rao5.
16. On the facts of the case even though it is difficult to
sustain the conviction under Section 304-B IPC, there are
sufficient materials to convict the accused-appellants in
terms of Section 306 IPC along with Section 498-A IPC.”
44.While delivering opinion in the appeal, Hon'ble the then Chief Justice took the
view that the appellant has committed the offence punishable under Sections
304B & 498A of the IPC, but Hon'ble Mr. Justice Pritinker Diwaker took the
view that the prosecution has failed to prove the guilt of the appellant
punishable under Sections 304B & 498A of the IPC. In the light of aforesaid
discussion, I hold that the prosecution has failed to prove the commission of
the offence of dowry death by the appellant but has proved that the appellant
has abetted the suicide of the deceased and has also tortured and harassed
the deceased and thereby committed the offence punishable under Sections
306 & 498A of the IPC.
45. Consequently, the appeal is partly allowed. Conviction and sentences imposed
upon the appellant under Section 498A of the IPC are hereby affirmed.
Conviction of the appellant under Section 304B of the IPC is altered to Section
306 of the IPC and the appellant is sentenced to undergo RI for six years & pay
fine of Rs.2,000/-, in default of payment of fine to further undergo RI for six
months.
46. The appellant is on bail. He shall immediately surrender himself before the
Court of 2nd Additional Sessions Judge, Bilaspur for serving remaining
5(2003) 1 SCC 217 : 2003 SCC (Cri) 271
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Cr.A.No.1185/2000
sentence imposed upon him. The trial Court shall also take appropriate steps
for sending him to jail to serve remaining sentence.
JUDGE
20-2-2015
Soma
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Cr.A.No.1185/2000
HIGH COURT OF CHHATTISGARH, BILASPUR
Reference under Sections 370 & 392 of the Code of Criminal Procedure, 1973
In
Criminal Appeal No.1185 of 2000
Rajesh Kumar Kaushik
- Versus -
The State of Madhya Pradesh (now the State of Chhattisgarh)
HEAD NOTE
1. The word 'sasuralwale' includes husband and relatives of husband normally
residing under same roof.
in ^llqjkyokys^ esa lkekU;r% ,d gh Nr ds uhps jgusokys ifr ,oa mlds fj'rsnkj
'kkfey gSa A
2. In appropriate case, accused may be convicted under Section 306 of the
IPC instead of Section 304B of the IPC without framing charge.
leqfpr izdj.k esa] vfHk;qDr dks /kkjk 304&[k Hkk-n-fo- ds LFkku ij /kkjk 306 Hkk-n-fo- ds
v/khu vkjksi fojfpr fd, fcuk nks"k fl) fd;k tk ldrk gSA