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2003 DIGILAW 1321 (MP)

KAILASH v. STATE OF MADHYA PRADESH

2003-12-04

S.L.JAIN

body2003
Judgment ( 1. ) APPELLANT Kailash stands convicted for offences punishable under Sections 498-A and 304-B, IPC and sentenced to RI for ten years for the offence punishable under Section 304-B, IPC by the impugned judgment and order dated July 14, 2000, passed by Sessions Judge, Chhatarpur, in Sessions Trial no. 132/99. No separate sentence has been awarded for the offence punishable under Section 498-A, IPC. ( 2. ) THE prosecution case, in brief, is that the marriage of deceased uma Devi was solemnised with appellant Kailash on 4-5-97. Acquitted accused smt. Shyam Bai is the aunt of appellant. In the wee hours of 18-3-99 the dead body of deceased was found in a well located in the house of the appellant. Thus, the death of Uma Devi occurred otherwise then under normal circumstances. It is alleged by the prosecution that the deceased was subjected to cruelty or harassment by her husband Kailash and acquitted accused for or in connection with demand of dowry. ( 3. ) INQUEST was conducted and the dead body of Uma Devi was sent for post-mortem examination. The post-mortem examination was conducted by Dr. R. G. Kotia (P. W. 1) who found an anti mortem lacerated wound on occipital region of the body and blood was oozing out from the wound. Dr. Kotia opined that cause of death of Uma Devi was asphyxia due to drowning. In his opinion approximate time of death was within 12 - 24 hours of the postmortem examination. Ex. P-l is the report of Dr. Kotia. During investigation a rope and one steel Gund were recovered from the spot. ( 4. ) AFTER investigation a challan for offences punishable under sections 498-A and 304-B, IPC was filed against the appellant and the acquitted accused. ( 5. ) LEARNED Additional Sessions Judge framed the charges against the appellant and acquitted accused who abjure the guilt and pleaded that they have been falsely implicated. ( 6. ) ON the basis of the above prosecution case the Trial Court came to the conclusion that the prosecution has established its case against the appellant and accordingly, by the impugned judgment and order convicted and sentenced, him as indicated above. However, the Trial Court did not find co-accused Shyama Bai guilty of the aforesaid offences and acquitted her. ( 7. ) AGGRIEVED by the conviction and sentence aforesaid, the appellant has filed this appeal. However, the Trial Court did not find co-accused Shyama Bai guilty of the aforesaid offences and acquitted her. ( 7. ) AGGRIEVED by the conviction and sentence aforesaid, the appellant has filed this appeal. ( 8. ) I have heard Shri Surendra Singh, learned Senior Counsel with shri Shrivastava, Advocate appearing for the appellant and Shri Dinesh Joshi, panel Lawyer for the State and perused the record of the Trial Court. ( 9. ) SHRI Surendra Singh, learned Senior Counsel for the appellant led me through the record and contended that the learned Additional Sessions judge erred in accepting the prosecution evidence. He submitted that the conviction and sentence imposed upon the appellant are illegal and incorrect, as such are liable to be set aside. ( 10. ) ON the other hand, Shri Dinesh Joshi, learned State Counsel has supported the judgment recorded by the learned Trial Judge convicting and sentencing the appellant as indicated above. ( 11. ) THE first question that arise for determination is whether the death of Uma Devi occurred otherwise than under a normal circumstance ? It is not disputed that death of Uma Devi occurred due to drowning in a well. Bhawani Singh (P. W. 2), who is none but husband of acquitted accused Smt. Shyama Bai, has stated that body of deceased Uma Devi was taken out from the well. Anil Maheswari (P. W. 12), has stated that he conducted inquest on the dead-body of Uma Devi. Dr. R. G. Kotia (P. W. 1), who conducted autopsy, has also stated that cause of death of Uma Devi was drowning. Thus, there is overwhelming evidence to the effect that the death of Uma Devi occurred otherwise than under normal circumstances. ( 12. ) THE next question which arises for determination is as to whether the death of deceased occurred within 7 years of her marriage ? ( 13. ) JAMUNA Prasad (P. W. 3), Maida Bai (P. W. 4), Desh Raj (P. W. 5), Sheel Kunwar (P. W. 6), Parwati (P. W. 7), Mukandilal (P. W. 8) and Jasral (P. W. 9) have stated that Uma Devi died within 2 years of her marriage. E p-8 is invitation card of her marriage, from which it is clearly established that the marriage of the deceased and appellant was solemnized on 4-5-97. E p-8 is invitation card of her marriage, from which it is clearly established that the marriage of the deceased and appellant was solemnized on 4-5-97. It is no in dispute that the prosecutrix died in the intervening night of 17th and 18th march, 1999. Thus, there is overwhelming evidence to the effect that death c uma Devi occurred within two years of her marriage. ( 14. ) THIS brings us to the crucial question as to whether the deceased was subjected to cruelty or harassment by the appellant or his any relative for or in connection with demand for dowry ? ( 15. ) JAMUNA Prasad (P. W. 3) has stated that in the marriage of Uma devi cash of Rs. 3000. 00 and other articles were given. After the marriage, the deceased came to her marital home 3-4 times. She used to complain that the appellant is giving her threat that if some more money and articles are not brought by way of dowry, she will be finished. ( 16. ) MAIDA Bai (P. W. 4) is the mother of the deceased. She has also stated that after the marriage, the deceased met her 5-6 times. Every time she informed her that her husband demands Rs. 50,000. 00, one motor cycle and sewing machine. The evidence of Jamuna Prasad and Maida Bai has been further corroborated by Desh Raj (P. W. 5), Sheel Sundar (P. W. 6), Parwati (P. W. 7), Mukandi Lal (P. W. 8) and Jasrath (P. W. 9), who are the brother, sister- in-law, cousin and uncles of the deceased, respectively. ( 17. ) LEARNED Counsel for the appellant submitted that Jamuna prasad (P. W. 3), the father of the deceased, has admitted in Para 1 of his examination-in-chief that regarding demand for dowry the deceased did not tell him directly. She complained to her mother and the mother, in turn, informed him. The contention appears to be correct, but this will not effect the credibility of the witness. In Hindu families, the daughters are more attached with the mother and they maintain some distance from the father out of respect. Therefore, simply because the deceased informed her father regarding demand for dowry through her mother, it does not effect the finding recorded by the Trial Court. ( 18. In Hindu families, the daughters are more attached with the mother and they maintain some distance from the father out of respect. Therefore, simply because the deceased informed her father regarding demand for dowry through her mother, it does not effect the finding recorded by the Trial Court. ( 18. ) LEARNED Counsel for the appellant also contended that the marriage of the deceased was performed two years ago, and if there was any demand for dowry the parents of the deceased would have lodged the reports to the police regarding the same, bat no such reports have been proved. The contention can not be accepted. Among the Hindus, marriage is a sacrament. It is considered to be a relation of Janm Janmantar. Normally, the parents do not lodge report against the husband or in-laws of the daughter and if there are differences, they try to patch up by negotiations. The parents believe that with the passage of time, the disputes will be settled, therefore, they do not set the law in motion. From the evidence, it is clear that the parents of the deceased had assured the appellant that after the harvesting of the crops, they will give motor cycle and other articles and satisfy his demand. In this back-ground, if the parents of the deceased did not lodge any report at the police station, it can not be inferred that there was no demand for dowry. ( 19. ) LEARNED Senior Counsel for the appellant submitted that there are certain material contradictions in the statement of witnesses recorded in the Court and recorded during investigation. Therefore, no reliance can be placed on the evidence of such witnesses. The contention can not be accepted. It is true that the fact of giving the articles after harvesting of the crop and the facts regarding threat of finishing the deceased does not find place in the statements recorded during investigation, but they are of minor nature. The minor contradictions are bound to appear when illiterate persons are giving evidence. Even in case of trained and educated persons, sometimes their memory becomes faint and they give contradictory evidence. Therefore, even if there is any contradiction on a non- material point, it is no ground to reject the testimony of the witnesses. The minor contradictions are bound to appear when illiterate persons are giving evidence. Even in case of trained and educated persons, sometimes their memory becomes faint and they give contradictory evidence. Therefore, even if there is any contradiction on a non- material point, it is no ground to reject the testimony of the witnesses. The contradictions as shown by the learned counsel for the appellant do not effect the substratum that the deceased was subjected to cruelty and harassment for or in connection with dowry. ( 20. ) THE learned Trial Judge in his judgment has discussed the evidence in detail and recorded a finding that the deceased was subjected to cruelty or harassment by the appellant for or in connection with demand of dowry. The finding of the Trial Court is based on congeant reasons. Looking to the totality of the evidence as discussed above, I am of the opinion that there is overwhelming evidence. ( 21. ) THE next question that remains to be determined is whether cruelty or harassment was meted out to the woman soon before her death ? ( 22. ) IT is true that the prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment. Proximity of time between alleged ill-treatment and time of death is a highly relevant factor and an essential and necessary evidence for proof of a case of dowry death. But 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 proximate and live link between the effect of cruelty based on dowry demand and the concern death. If the 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 the facts and circumstances of this case and in the light of the evidence led by the prosecution, it could not be said that the incident of cruelty is remote in time. ( 23. ) THE marriage was performed only before about 2 years of the death. After the marriage ceremony many times, the deceased visited her parents and almost every time informed her parents regarding the harassment. ( 23. ) THE marriage was performed only before about 2 years of the death. After the marriage ceremony many times, the deceased visited her parents and almost every time informed her parents regarding the harassment. From the evidence of Maida Bai, the mother of the deceased, it is clear that the deceased last visited her before about 8-15 days of the incident. Therefore, it can well be said that the deceased was subjected to cruelty or harassment soon before her death. ( 24. ) LEARNED Counsel for the appellant next contended that the possibility of suicide or accident also can not be ruled out. The Trial Court also did not rule out the possibility of suicide. Even if a married woman commits suicide within 7 years of her marriage, the case is covered by Section 304-B, ipc. As per legislative intention unnatural death includes suicide because of harassment and cruelty for or in connection with demand of dowry. Therefore, even if it is case of suicide, it does not help the appellant. ( 25. ) SO far as the theory of accident is concern, it is not acceptable. Dr. Kotia (P. W. 1) found an anti mortem lacerated wound on occipital region of the deceased. He has clearly opined that the injury was caused by hard and blunt object. He has specifically stated that this injury can not be caused due to fall in the well, as in that case, other injuries would have also occurred. ( 26. ) LEARNED Counsel for the appellant submitted that it is not in dispute that the death occurred due to drowning and it can not be said that the body was thrown in the well after death, therefore, possibility of accidental fall in the well can not be ruled out. ( 27. ) THE theory of accidental fall is not acceptable. Dr. Kotia has opined that the death occurred within 12-24 hours of the post-mortem. Postmortem examination was conducted on 18-3-99 at about 12. 30 P. M. Therefore, the death occurred in the mid night. It is difficult to believe that in the mid night, the deceased might have gone to fetch water from the well. If in the mid night she would have left her room, the other persons in the house must have learnt about the same. 30 P. M. Therefore, the death occurred in the mid night. It is difficult to believe that in the mid night, the deceased might have gone to fetch water from the well. If in the mid night she would have left her room, the other persons in the house must have learnt about the same. What appears to be probable is that deceased was first assaulted and thereafter was thrown in the well. If there would have been accidental fall in the well, and the injury would have been sustained during such fall, then there would have been certain other injuries also because it is difficult to believe that during fall only the occipital region of the deceased would come in the contact of the walls of the well. Therefore, the Trial Court has rightly held that it is not a case of accident. ( 28. ) IN this case the evidence shows that deceased soon before her death was subjected to cruelty or harassment for or in connection with demand of dowry. Therefore, the presumption under Section 113-B of the Evidence act is also available and has to be drawn against the appellant. The appellant could not give any probable explanation as to how deceased died in his house. ( 29. ) LEARNED Senior Counsel for the appellant has further contended that the prosecution has not examined any independent witness of the locality and, therefore, evidence of interested witnesses should not be believed. The contention can not be accepted. In case of dowry death, the relations of the family of the victim are the best witnesses. Only they can depose what was the treatment given to the victim. The deceased herself on more than one occasion complained to her relatives regarding ill treatment by accused. Normally, such complaints are not made to the neighbours. Therefore, the absence of independent evidence will not cause any dent in the prosecution case. ( 30. ) LEARNED Counsel for the appellant also contended that during investigation the statements of witnesses were recorded after three days of the incident, therefore, the evidence can not be believed. Maida Bai, the mother of the deceased was present at the time of inquest. At that time she did not narrate to the investigating officer that deceased was subjected to cruelty or harassment. ( 31. ) THIS contention also has no force. Maida Bai, the mother of the deceased was present at the time of inquest. At that time she did not narrate to the investigating officer that deceased was subjected to cruelty or harassment. ( 31. ) THIS contention also has no force. The inquest panchnama is not expected to contain all the details. The perusal of Section 174, Cr. PC would go to show that it is not incumbent upon a police officer to mention all the facts stated by the witness at time of preparation of inquest report. It was not necessary for Maida Bai to insist that the fact of demand of dowry be recorded in the inquest Panchnama. ( 32. ) MERELY because there is some delay in recording the statements of the witnesses, they can not be disbelieved even if the delay was caused due to inaction of the investigating officer. It would not be right to acquit the appellant solely on account of some defect in the investigation. It is true that in case of delay in recording the statements of witnesses during investigation, the Court has to be circumspect in evaluating the evidence, but in view of the overwhelming evidence which inspires confidence, mere delay in recording the statements of witnesses would not be a reason to discard the evidence of the prosecution witnesses in to to. ( 33. ) IN view of the aforesaid discussion, I do not find any reason to interfere in the conviction recorded by the Trial Court. The sentence awarded also can not be said to be harsh or unjust. In case of offence of causing dowry death of woman a stringent view should be taken while imposing sentence. The appellant practised cruelty on the deceased for greed of dowry. Therefore, no interference in the sentence is called for. ( 34. ) IN the result, the appeal fails and is accordingly dismissed. The impugned judgment and order of the Trial Court convicting and sentencing the appellant as indicated above, is hereby maintained. Criminal Appeal dismissed.