JAIN, J. - (1.) THE accused appellant Veero S/o Mojaram has been convicted and sentenced by the Addl. Sessions Judge (FT) No. 1, Dholpur vide judgment and order dated 13. 8. 2002 under Section 304-B IPC to 7 years R. I. and a fine of Rs. 200/-, in default of payment of fine to further undergo 1 month's S. I. and under Section 498-A IPC to 2 years R. I. and a fine of Rs. 200/-, in default of payment of fine to further undergo 1 month's S. I. Both the sentences were ordered to run concurrently. Being aggrieved with the same, the present appeal has been filed before this Court.
(2.) PW8 Roopesh, the brother of deceased Suman lodged a typed report before the Superintendent of Police, Dholpur on 4. 6. 2001 about death of her sister Suman on 1. 6. 2001 in village Nidera, P. S. Kaulari, District Dholpur. The said report was directed to SHO, who registered FIR No. 94/2001 on 5. 6. 2001 at 1. 40 p. m. at P. S. Kaulari under Section 304-B and 201 IPC. In the report, it was alleged that marriage of his sister Suman took place on 12. 3. 96 with Veero S/o Mojaram. Since after her marriage, there was continuous demand of one Scooter, Gold Ring and Colour T. V. from her in laws. They use to harass and give beating to his sister. On 1. 6. 2001, two persons came and told him that his sister Suman is seriously ill and he has been called. He reached village Nidera at about 5 p. m. and saw that his sister had already died. He saw that number of injuries were there on the person of deceased. He wanted to go at Police Station but 10-12 persons tied his hands from the back and dead body was cremated. The police investigated the matter and filed a charge-sheet against 6 accused persons including appellant. The case was committed for trial to the Court of Sessions Judge, Dholpur who transferred the same for disposal to the Court of Addl. Sessions Judge No. 1 (FT) Dholpur. The trial court framed charge against the appellant and other two accused persons namely Mojaram his father and Mst. Ramkatori, his mother under Section 304-B, 498-A and 201 IPC and against other co-accused persons namely Bhagwan Singh, Bobby and Jairam under Section 201 IPC. The accused persons denied the charge and claimed to be tried. The prosecution examined 16 witnesses PW1 to PW16 and produced documentary evidence Ex. P. 1 to Ex. P. 10. Thereafter statements of the accused persons were recorded under Section 313 Cr. P. C. , who stated that Suman died due to severe fever. In defence statement of DW1 Ram Babu was recorded. The learned trial Court after hearing arguments from both the sides acquitted all other accused persons from all the charges levelled against them. The accused appellant was also acquitted from the charge under Section 201 IPC. However, appellant was convicted and sentenced under Section 304 B and 498 A IPC as mentioned above. The learned counsel for the appellant contended that learned trial Court has committed an illegality in convicting the accused appellant for the above offence. He submitted that prosecution failed to prove beyond any reasonable doubt that death of Smt. Suman was caused by any burns or bodily injury or occurs otherwise then under normal circumstances and further that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of his husband for or in connection with any demand of dowry. He referred the statement of prosecution witnesses and on that basis submitted that there was no cruelty or harassment with deceased for demand of dowry by her in laws including appellant much less soon before her death and in absence of such type of evidence, the conviction of the appellant is bad in law and deserves to be set aside by this Court. He further contended that the independent witnesses who were neighbourers were declared hostile and conviction is based on interested and relatives witnesses. He also contended that the incident took place on 1. 6. 2001 and complainant was very much present during cremation of dead body but no immediate report was lodged and no explanation has been given for the delay of 4 days in lodging the FIR. He, therefore, contended that the appellant has wrongly been convicted for the above offence and he may be acquitted. Mr. T. P. Sharma, learned counsel for the appellant placed reliance upon Kaliyaperumal & Another vs. State of Tamil Nadu, 2003 Cri. L. J. (SC) 4321 and Satpal vs. State of Haryana, 1998 Cr. L. R. (SC) 668. The learned P. P. Submitted that delay in lodging the FIR has been explained by complainant PW 8 in his statement before the Court. He also contended that deceased was subjected to cruelty and harassment soon before her death is proved from the statement of the father of the deceased namely Babu Lal PW. 9. He, therefore, contended that learned trial Court was justified in convicting the accused appellant.
(3.) I have considered the submissions of the learned counsel for the appellant as well as the learned P. P. and examined the impugned judgment as well as the record of the trial Court. In Kaliyaperumal & Anr. vs. State of Tamil Nadu (supra) the Hon'ble Supreme Court after considering the provisions of Section 304-B IPC and Section 113-B of the Evidence Act held as under:- "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. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `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. 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 prosecution. `soon before' is a relative term and it would depend upon 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 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 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 the stolen, unless he can account for his 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 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. In Satpal vs. State of Haryana (supra) after considering the provisions of Section 304-B, 498-A and 306 IPC and the evidence of that particular case the Hon'ble Supreme Court held as under:- "disputing the said contention of the learned counsel for the appellant, Mr. Prem Malhotra, the learned counsel appearing for the respondent, has submitted that the death had taken place within seven years of marriage and the brother of the deceased had deposed about the demand of dowry and the humiliation of the deceased on account of such dowry demand. He has also submitted that aluminium phosphate is not expected to be consumed by the deceased inadvertently, if the convincing evidence for which conviction u/s. 304-B IPC of the appellant have been made in the absence of sufficient evidence. We, therefore, set aside such convictions and sentences passed against the appellant. But so far as the conviction of the appellant. But so far as the conviction of the appellant u/s. 498-A IPC is concerned, it appears to us that there is direct and convincing evidence that the deceased had been humiliated and treated with cruelty on some occasions by the appellant and also the co-accused who had died before the trial. Therefore, the conviction u/s. 498-A IPC is justified in the facts and circumstances of the case and there is no occasion to interfere with such conviction and sentence passed against the appellant. The appellant is stated to have already served out the sentence for the conviction u/s. 498-A IPC, his bail bond should stand discharged. The appeal is disposed of accordingly. " ;