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Madhya Pradesh High Court · body

2005 DIGILAW 107 (MP)

Sampat Kumar Dwivedi v. State of M. P.

2005-01-20

U.C.MAHESHWARI

body2005
Judgment ( 1. ) THIS revision petition, under Section 397 read with Section 401, Criminal Procedure Code (for short cr. P. C. ) is directed against the order dated 5. 10. 2004 passed by IIIrd Additional Sessions Judge, Satna in Sessions Trial No. 227/2004 whereby the charges under Sections 498-A, 304-B, 306, 302 read with Section 34 of Indian Penal Code (for short i. P. C. ) are directed to be framed against the applicants and in pursuance of this order, the charges have been framed. ( 2. ) AS per prosecution story, Smt. Saroj Dwivedi got married with Sampat Kumar Dwivedi applicant No. 1 in the year 1993. Smt. Saroj Dwivedi committed suicide on 26. 4. 2004 by consuming some poisonous pesticides. After her death Marg was registered at the Police Station Jaitwara and after inquiry the offence was registered against the present applicants as they were relatives of the deceased. ( 3. ) AFTER holding investigation the charge-sheet was submitted under the above said sections of I. P. C. and after committal of the case the charges have been framed as said above. ( 4. ) HAVING heard the learned Counsel for the applicants Mr. P. N. Mishra, and learned Government Advocate Mr. J. K. Jain, and perused the charge-sheet I have not found any substance for interference in this revision in relation to the charges framed under Sections 498-A, 306, 302 read with Section 34 of I. P. C. ( 5. ) SO far charge under Section 304-B of I. P. C. is concerned, firstly I have to examine whether Section 304-B of I. P. C. is attracted to the present facts and circumstances or not? The Counsel for the applicant cited a reported decision of the Apex Court in Kaliyaperumal and Anr. v. State of Tamil Nadu, ,, AIR2003 SC 3828 , 2003 (51 )BLJR1851 , 2003 Crilj4321 , JT2003 (7 )SC 392 , 2003 (6 )SCALE707 , (2004 )9 SCC157 , 2004 (1 )UJ3 (SC ), in which it has been held in para 4: "4. v. State of Tamil Nadu, ,, AIR2003 SC 3828 , 2003 (51 )BLJR1851 , 2003 Crilj4321 , JT2003 (7 )SC 392 , 2003 (6 )SCALE707 , (2004 )9 SCC157 , 2004 (1 )UJ3 (SC ), in which it has been held in para 4: "4. Section 304-B, I. P. C. deals with dowry death which reads as follows-304-B. 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 purpose of this sub-section dowry shall have 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. The provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B, I. P. C. , the essential ingredients are as follows- (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstances. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for, or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant for the case at hand. (iv) Such cruelty or harassment should be for, or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B, I. P. C. and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act (43 of 1986) with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows- 113-B : 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 purpose of this section dowry death shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860 ). The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st report dated 10th August, 1988 on dowry deaths and Law Reform. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths. Legislature thought it wise to insert a provision relating to presumption of dowry death as a proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per definition of dowry death in Section 304-B of I. P. C. and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials- (1) The question before the Court must be whether the accused has committed the dowry death of a woman, (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B, I. P. C. ). (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with, any demand for dowry. (4) Such cruelty or harassment was soon before her death. " ( 6. ) IN view of the aforesaid dictum of the Apex Court the three things are found in the case in hand which are: firstly, Smt. Saroj Dwivedi died due to unnatural death under abnormal circumstances. Evidence of cruelty and harassment has also been collected by the investigating agency and harassment was in connection of the demand of dowry. This evidence is also available on record, but marriage took place in the year 1993 and the incident did not take place within seven years from the date of marriage and, therefore, this one of the ingredients is absent. On the other hand, as per interrogation recorded under Section 161, Cr. P. C. their near relatives of the deceased namely grand-father Vishnu Kant Sharma, father Ramakant Sharma, brothers Rakesh Kumar and Suresh Sharma and mother Raj Kumari have categorically said that the marriage took place in the year 1993 by Hindu customs, rites and ritual. ( 7. ) IN view of the above said circumstances, it is prima facie established by the police report and challan papers that the said marriage took place in the year 1993 and the alleged incident took place on 25. 4. 2004 and 26. 4. 2004, therefore, it is held that the said incident took place after seven years of the marriage of the deceased and applicant No. 1. ( 8. ) IN view of the aforesaid circumstances, the charge under Section 304-B of I. P. C. is not made out against any of the applicants. But, so far other charges are concerned, sufficient evidence is available on record to frame the said charges. ( 8. ) IN view of the aforesaid circumstances, the charge under Section 304-B of I. P. C. is not made out against any of the applicants. But, so far other charges are concerned, sufficient evidence is available on record to frame the said charges. Therefore, this revision petition is partly allowed. In view of the principle laid down by the Apex Court in the aforesaid reported decision the charge framed under Section 304-B against the applicants is set aside and the Trial Court is directed to delete this charge and to proceed with the trial with other charges. ( 9. ) THE revision is partly allowed.