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Madhya Pradesh High Court · body

2004 DIGILAW 30 (MP)

Hirdesh Kumar Patel v. State of M. P.

2004-01-13

SHANTANU KEMKAR

body2004
Judgment ( 1. ) THE appellants stands convicted under Sections 304-B and 498-A of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 10 years and 3 years respectively. The appellants have also been convicted under Section 4 of the Dowry Prohibition Act, 1961 and sentenced to undergo rigorous imprisonment for one year and fine of Rs. 500/each by judgment dated 7-8-2002 passed by First Additional Sessions Judge, Jabalpur, in Sessions Trial No. 119/2001. The sentence have been ordered to run concurrently. ( 2. ) BRIEF facts relevant for deciding this appeal arc that deceased Sangeeta was married to appellant No. 1 Hirdesh Kumar about two and half years before her death. Appellant No. 2 Awadesh Kumar is brother of the appellant No. 1. Appellant Nos. 3 and 4 are their parents. After one year of the marriage the appellants started harassing deceased Sangeeta on the ground that her father did not give the balance amount of Rs. 20,000/- as promised at the time of marriage towards dowry. The appellants also demanded iron box and Godrej Almirah from her parents and for non-fulfilment of their demands they treated her with cruelty. Eight days prior to the date of incident Kiranbai (P. W. 2) mother and Arjun Prasad (P. W. 11) father of the deceased visited Piparia to meet her. At that time also deceased complained them about the demand of dowry and her ill-treatment by the appellants. Kiranbai (P. W. 2) and Arjun Prasad (P. W. 11) assured the appellant Nos. 2, 3 and 4 that they will fulfil their demand at the time of chowk ceremony after the delivery of child of Sangeeta. On pitra Amavasya day, Kiran Bai (P. W. 2) and Arjun Prasad (P. W. 11) were informed by Bhola Nai and one other person that Sangeeta had ablazed herself. According to the prosecution Sangeeta committed suicide by pouring kerosene oil on her body and thereafter ablazed herself. Inquest report (Ex. P-2) of the body of Sangeeta was prepared. Saket Pandey (P. W. 14), City Superintendent of Police prepared spot map (Ex. P-5) and sent the body of Sangeeta for post-mortem. Dr. Ashok Jain (P. W. 7) conducted the post-mortem on 28-9-2000. His post-mortem report is Ex. P-3, according to which Sangeeta died because of cardiac respiratory failure due to ante-mortem burn injuries. She also had a female foetus. ( 3. P-5) and sent the body of Sangeeta for post-mortem. Dr. Ashok Jain (P. W. 7) conducted the post-mortem on 28-9-2000. His post-mortem report is Ex. P-3, according to which Sangeeta died because of cardiac respiratory failure due to ante-mortem burn injuries. She also had a female foetus. ( 3. ) DURING the trial the appellants abjured their guilt and pleaded false implication. Their defence was that deceased Sangeeta was having illicit relations with a boy and he had visited her in the house on the date of incident and on being objected by the appellant No. 2 there was a quarrel between deceased and, appellant No. 2. She is said to have committed suicide after the said quarrel. ( 4. ) THE Trial Court relying upon the evidence of Kiran Bai (P. W. 2), Khilan Singh (P. W. 3), Rajni Bai (P. W. 4), Santosh Kumar (P. W. 5) and Arjun Prasad (P. W. 11) held that the appellants subjected Sangeeta to physical and mental cruelty and demanded dowry from her as a result of which she committed suicide within two and a half years of her marriage by first pouring kerosene on her. The Trial Court accordingly convicted the appellants for offences and sentenced them as mentioned above. ( 5. ) SHRI Surendra Singh, learned Senior Counsel appearing for the appellants has submitted that the prosecution witness Kiran Bai (P. W. 1), Rajni Bai (P. W. 4), Santosh Kumar (P. W. 5) and Arjun Prasad (P. W. 11) have admitted in their evidence that their statements were recorded by the police more than once; firstly, immediately after the incident and then again on 22-10-2000. The prosecution was therefore bound to produce the statement of witnesses recorded during merg investigation but has suppressed the same and having not produced the same the Trial Court ought to have drawn adverse inference against the prosecution. He also submitted that in view of the material omissions and contradictions in the evidence of the prosecution witnesses the impugned judgment of conviction is bad in law. It was also urged by him that the prosecution has failed to prove the cruelty soon before the death. Lastly it was also urged that the sentence imposed by the Trial Court is too harsh. It was also urged by him that the prosecution has failed to prove the cruelty soon before the death. Lastly it was also urged that the sentence imposed by the Trial Court is too harsh. On the other hand Shri S. D. Khan, learned Government Advocate for the State has submitted that the prosecution has filed all the documents which it is considered relevant for prosecuting the appellants and if the appellants were so dissatisfied, they could have applied to the Court under Section 91 of the Criminal Procedure Code for calling the prosecution to produce the aforesaid statements and having failed to do so the appellants now can not be permitted to say that an adverse inference be drawn against it. He further submitted that the judgment of conviction passed by the Trial Court is based on sound appreciation of evidence and needs no interference. ( 6. ) TRUE it is, the prosecution witnesses Kiranbai (P. W. 2), Rajni Bai (P. W. 4) and Arjun Prasad (P. W. 11) have deposed that police had recorded their statement firstly within two to four days of death of Sangeeta and then again after 15 to 20 days of recording their first statements. Admittedly the first statements recorded during the merg investigation were not placed on record. Therefore, it has to be seen whether non-filing of the aforesaid merg statements would vitiate the trial and it would be fatal for the prosecution or not. The earlier statements were recorded by the police under Section 174 of the Criminal Procedure Code (hereafter referred to as code for short), this provision empowers a police officer to enquire on receipt of an information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. The enquiry under Section 174 of the Code has a very limited scope, the object is merely to ascertain whether a person has died in suspicious circumstances or an unnatural death and if so what is the apparent cause of death. The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the enquiry under Section 174 of the Code. The question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the enquiry under Section 174 of the Code. No doubt the statements recorded during merg investigation can be said to be previous statements of the witnesses and, therefore, they can be used for confronting the witnesses. Now in the present case it has to be seen whether the prosecution has deliberately suppressed those statement or not? Kiranbai (P. W. 2) in her cross-examination has deposed that her statements were recorded on two occasions. She has also deposed that after recording the first statement the police did not register case against the appellants and as such through local Member of Parliament she telephoned to the police authorities and then offence was registered. At the time of her cross-examination, it was prayed on behalf of the appellants that they be provided the first statement of Kiranbai (P. W. 2 ). On this request the Public Prosecutor made a statement before the Court that no such statement was on record. I find no steps were taken on behalf of the appellants by moving an appropriate application during the trial for the production of earlier statements of the witnesses recorded during merg investigation. There is no cross-examination on this point to the investigation officer who was the best witness to explain about it. Thus, during the entire trial the appellants never insisted for production or supply of the first statements of the witnesses for confronting them. In view of this, I am of the view that since no steps were taken by the appellants during the trial for gelling the production of earlier statements of witnesses, adverse inference can not be drawn against the prosecution for its non-production. ( 7. ) COMING to the next point, Kiran Bai (P. W. 2) has deposed that her daughter Sangceta was married with appellant No. 1 two and half years prior to her death and that dowry of Rs. 45,000/was demanded by the appellants at the lime of marriage out of which Rs. 25,000/- was paid at that time and Rs. 20,000/- was to be paid subsequently. After one year of marriage they were informed by deceased Sangeeta when she met them that the appellant Nos. 45,000/was demanded by the appellants at the lime of marriage out of which Rs. 25,000/- was paid at that time and Rs. 20,000/- was to be paid subsequently. After one year of marriage they were informed by deceased Sangeeta when she met them that the appellant Nos. 3 and 4 had abused her for non-payment of the balance amount of dowry and were also demanding for Almirah, iron box and golden chain. Kiran Bai (P. W. 2) has also deposed that 8 days prior to the date of incident she along with her husband Arjun Prasad (P. W. 11) visited Sangeeta in the house of her in-laws and at that time also she complained about the abuses hurled to her by appellant Nos. 3 and 4 and she was beaten up by appellant Nos. 1 and 2 for dowry. On this she and Arjun Prasad (P. W. 11) assured the appellant Nos. 3 and 4 that they will fulfil their demand after a month at the time of Chowk ceremony after the delivery of child of Sangeeta. Arjun Prasad (P. W. 11) in Para 6 of his deposition has categorically deposed that after 1 year of her marriage Sangeeta complained about the demand of dowry by the appellants. Sangeeta also complained to him that appellant Nos. 1 and 2 used to beat her up and appellants Nos. 3 and 4 used to ill-treat her. Arjun Prasad (P. W. 11) has further deposed that 8 days prior to the death of Sangeeta they visited Piparia where appellant No. 3 demanded Rs. 20,000/- as the balance amount of dowry and also an Almirah and iron box for which he assured him that he will fulfil their demand at the time of chowk ceremony after the delivery of child of Sangeeta. The evidence of Kiran Bai (P. W. 2) and Arjun Prasad (P. W. 11) stands fully corroborated by the evidence of Khilan Singh (P. W. 3), Rajni Bai (P. W. 4) sister of the deceased and Santosh Patel (P. W. 5 ). Nothing substantial has come in their cross-examination so as to make their evidence unreliable. The learned Counsel for the appellants has pointed out towards certain omissions and contradictions in the previous statement of the witnesses which to my mind are very minor and also natural and does not make the evidence of these witnesses untrustworthy. Nothing substantial has come in their cross-examination so as to make their evidence unreliable. The learned Counsel for the appellants has pointed out towards certain omissions and contradictions in the previous statement of the witnesses which to my mind are very minor and also natural and does not make the evidence of these witnesses untrustworthy. All the witnesses in their diary statements have deposed about demand of dowry by the appellants and their treating the deceased with cruelty. Thus, I find that the Trial Court has correctly appreciated the evidence of these witnesses. The judgment of conviction is based on sound appreciation of evidence and needs no interference. ( 8. ) AS regards the defence of the appellants, suffice is to say that the allegation levelled by the appellants about the illicit relationship of the deceased with a boy named Sunil and her quarrel with appellant No. 2 on the date of incident because of the visit of Sunil is not proved by the appellants by any reliable evidence. ( 9. ) IN view of the above findings, the judgment of the learned Trial Court is affirmed. As regards sentence, in my considered opinion instead of sentence of rigorous imprisonment for 10 years awarded to the appellants by the Trial Court for an offence under Section 304-B of the Indian Penal Code the sentence of 7 years rigorous imprisonment would meet the ends of justice. Accordingly, the sentence is modified and it is ordered that the appellants shall undergo the sentence of 7 years rigorous imprisonment for an offence under Section 304-B of the Indian Penal Code. The rest of the sentences awarded by the Trial Court for the offence under Section 498-A of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act, 1961 shall remain the same. All the sentences shall run concurrently. Appellant Nos. 2, 3 and 4 are on bail, their bail order stands cancelled and they are directed to surrender immediately to serve out the remaining part of their sentence. Appellant No. 1 is already in jail. Appeal is partly allowed.