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Madhya Pradesh High Court · body

2005 DIGILAW 1268 (MP)

Ram Krishan v. State of M. P.

2005-12-12

R.S.JHA

body2005
JUDGMENT 1. The appellants have assailed the judgment of the Additional Sessions Judge, Begumganj, District Raisen, dated 21.10.2002 passed in ST No. 202/2001 being aggrieved by their conviction under section 498A of the Indian Penal Code (hereinafter referred to as 'IPC') under which sentence of one year's rigorous imprisonment with fine of rupees two hundred and fifty has been imposed on each of them. Apart from which appellant No.1 Ram Krishan has been sentenced to rigorous imprisonment for ten years under section 304B of the IPC and appellants No.2, 3 and 4 have been sentenced to rigorous imprisonment for seven years under section 304B of the IPC. 2. The case against the appellants is that the deceased Vineeta, who was the wife of appellant No.1 sister-in-law of appellant No.2 and daughter-in-law of appellants No.3 and 4, entered into wedlock with appellant No. 1 on 26.4.2001 in a community wedding ceremony of the Sahu community, thereafter the appellants started demanding a television. motorcycle and cooler as dowry. The deceased Vineeta visited her parents twice after marriage and she had complained about this demand to her mother. Her parents had thereafter counselled appellant No.1 when he had gone to the house of the deceased's parents to bring back Vineeta on 13.9.2001. Ten days after her return, i.e., on 25.9.2001, her parents received information from the police station that their daughter Vineeta has been admitted in Silvani hospital due to severe burn injuries. 3. Assistant Sub-Inspector Ramdas Patel (PW8), who is the Investigating Officer, has stated that he had received information at 8.30 a.m. on 25.9.2001 at police station Bambhori that the deceased Vineeta has received bum injuries. When he reached the spot, i.e., Village Kundali, he immediately dispatched '. Vineeta for treatment to Silvani hospital and set the criminal law in motion by seizing the burnt clothes of deceased Vineeta, a matchbox, a tin container Chimni, plain and contaminated soil and a note book/diary of the deceased Vineeta with 23 pages, on page 21 of which she had made entries in respect of her-in-laws and her parents as per Ex. P-6. Dr. P-6. Dr. Nitu Sharma, Medical Officer posted in Silvani Hospital, later on the same day and about 1 o'clock sent intimation to the police station Silvani that the deceased Vineeta had succumbed to her bum injuries which was registered as a morgue intimation and as per the provisions of section 174 of the Code of Criminal Procedure inquest proceedings were initiated and immediately notices under section 175 of the CrPC were issued to Ram Krishan appellant No.1, Jankibai appellant No.4, Mangal Singh, Shiv prasad (PW4) and Prem Narayan on the same day, i.e., 25.9.2001 as is evident from Ex. P-7. The Post-mortem was conducted by Dr. Devendra Sharma (PW7) alongwith Dr. Mrs. Nitu Sharma. On 26.9.2001 morgue No. 10/01 was registered vide Ex. P-13 and the inquest was held by Sub- Divisional Officer (Police) Bareli. He opined that the deceased had been subjected to cruelty on account of dowry by the accused appellants as a result of which she had committed suicide by pouring kerosene oil and setting fire to herself. On 7.10.2001 on the basis of the case diary sent by the SDO(P) Bareli cases were registered against the accused appellants under sections 498A and 304B of the IPC and charge-sheets were filed against them on 7.12.2001. 4. The appellants denied the charges and in their statments under section 313 of the CrPC and stated that Vineeta received the bum injuries accidentally while cooking and at the time of the incident they were not at home and that the deceased Vineeta had kept all the jewellery with her parents that is why they had been falsely implicated so that the parents may not be required to return the jewellery. In defence they examined four witnesses who have stated that the deceased Vineeta received bum injuries while cooking. The prosecution has examined eight witnesses including the parents and uncle of the deceased Vineeta. 5. The trial Court has held the accused guilty as charged and imposed the sentence as mentioned herein before. 6. The appellants have questioned the impugned judgment mainly on the grounds that the trial Court has failed to appreciate and in fact ignored the following material facts: (a) that Dr. 5. The trial Court has held the accused guilty as charged and imposed the sentence as mentioned herein before. 6. The appellants have questioned the impugned judgment mainly on the grounds that the trial Court has failed to appreciate and in fact ignored the following material facts: (a) that Dr. Devendra Sharma (PW7) who conducted the post mortem has specifically stated about the absence of any smell of kerosene oil from the body of the deceased; (b) that there is a delay of twenty days in recording the statements of the prosecution witnesses for which there is no explanation; (c) that the necessary ingredients for establishing a case under section 304B have not been proved as the prosecution has failed to establish any connection between the alleged demand for dowry and the death of the deceased; (d) the adverse presumption against the prosecution must be drawn under section 114(g) of the Evidence Act in view of the fact that page 21 of the diary of the deceased Vineeta on which she had written material facts about her-in-laws and parents though seized was not produced by the prosecution; (e) that the marriage of the deceased and appellant No. 1 was held in a community wedding function organized by Sahu community in which admittedly no dowry was given or demanded. 7. Learned counsel for the appellants has relied upon the judgments of the apex Court reported in the cases of Sunil Bajaj v. State of M.P. 2002(1) JLJ I = AIR 2001 SC 3020 , Jitendrasingh Jaysingh Rawal v. State of Maharashtra, AIR 1999 SC 1564 , Meka Ramaswamy v. Dasari Mohan, AIR 1998 SC 774 , Kans Raj v. State of Punjab, AIR 2000 SC 2324 , Salamat Ali v. State of Bihar, AIR 1995 SC 1863 , N. V. Satyanandam v. Public Prosecutor. A.P. High Court, AIR 2004 SC 1708 and Kunhaibdulla v. State of Kerala, AIR 2004 SC 1731 to support his contentions. 8. A.P. High Court, AIR 2004 SC 1708 and Kunhaibdulla v. State of Kerala, AIR 2004 SC 1731 to support his contentions. 8. The trial Court has disbelieved the defence witnesses who are the neighbours of the appellants by holding that their testimony is doubtful as they have failed to disclose their role in trying to help the deceased Vineeta when they reached the spot, and on a presumption that defence witnesses are usually set up only for the purposes of supporting the accused and that the Investigating Officer has not seized a stove from the place of the incident. The trial Court has also held that the defence story cannot be believed as the investigating officer Ramdas Patel (PW8) has not been specifically questioned as to the possibility of the incident having occurred accidentally. In para 35 of the impugned judgment, the Court below has concluded that as the prosecution case is not one of murder and as the defence has failed to prove that the death has occurred due to an accident the only possible view and conclusion is that the deceased Vineeta has committed suicide. 9. On careful consideration of the testimony of the mother, father and uncle of the deceased i.e. Shiv Prasad PW4, Ramuwarbai PW5 and Kailash Sahu PW6 respectively and the testimony of the investigating officer Ramdas Patel (PW8), I find that the trial Court while recording the conclusion has not taken into account several contradictions and omissions mentioned hereinafter. Shiv Prasad PW4, Ramkuwarbai PW5 and Kailash Sahu PW6 in the examination-in-chief have only made a general statement that the appellants were asking for a motocycle, cooler and television. None of these witnesses have stated that the appellants accused committed any positive act subjecting the deceased to cruelty or that their conduct was such as to drive the deceased to commit suicide. Not a single incident has been narrated or statement made by any of them to the effect that the deceased was being subjected to cruelty or harassment just before or in proximity of the date on which the incident occurred. These witnesses have also not stated that the accused appellants committed certain acts and subjected the deceased Vineeta to cruelty or harassment specifically in connection with any demand for dowry. These witnesses have also not stated that the accused appellants committed certain acts and subjected the deceased Vineeta to cruelty or harassment specifically in connection with any demand for dowry. Only a general statement has been made that the accused appellants were asking for a motorcycle, television and cooler without specifying as to which of the accused made the demand and when. The father of the deceased Shiv Prasad (PW 4) was specifically confronted during the trial with this omission in his statements recorded on 16.10.2001 under section 161 of the CrPC but has failed to give any explanation or reason for it. In paragraph-5 of his deposition Shiv Prasad (PW4) has admitted the fact that his daughter's marriage took place in the community function in which the question of giving dowry does not arise. This statement in an admission about the fact that the accused had not demanded any dowry at the time of marriage. This omission is a material contradiciton which could not have been ignored or overlooked by the trial Court while dealing with charges under section 498A and section 304B of the IPC. 10. Another significant fact which has not been taken into account by the trial Court is that the statements of Shiv Prasad PW4, Ramkuwarbai PW5 and Kailash Sahu PW6 were recorded for the first time on 16.10.2001 i.e. nearly 20 days after the incident. Although in the present case the accused cannot claim any benefit in their defence on this count as they have failed to put any question in regard to the delay, if any, in recording the statements of these witnesses to the Investigating Officer Ramdas Patel (PW8), but we are more concerned here with the conduct of the witnesses in delaying the disclosure about the demand for dowry etc. to the investigating agency rather than the delay in recording of their statements by the Investigating Officer. Ramkuwarbai (PW5) in paragraph 4 of her deposition has categorically stated that her family members had not made any statement or informed the police after the incident nor had any inquiry been made from them by the police. to the investigating agency rather than the delay in recording of their statements by the Investigating Officer. Ramkuwarbai (PW5) in paragraph 4 of her deposition has categorically stated that her family members had not made any statement or informed the police after the incident nor had any inquiry been made from them by the police. The conduct of the parents of the deceased in not filing any complaint or informing the police about the fact that their deceased daughter was being subjected to cruelty and harassment in relation to demand for dowry speaks volumes about the conduct of these witnesses and in fact brings the entire prosecution case under the pale of doubt. It is unnatural that parents of the deceased daughter would remain silent for a long period of 20 days in spite of having full information and knowledge that their daughter had been forced to commit suicide by subjecting her to cruelty and harassment. The prosecution has also not examined the officer who conducted the inquest nor have the inquest report or statements if any recorded during inquest been exhibited to explain this lacuna in the prosecution case. In my considered opinion this conduct of the parents of the deceased who are material and important witnesses is fatal for the prosecution case specifically as no explanation whatsoever has been giver for this delay. It is significant that Ramkuwarbai (PW5) has specifically and categorically stated that no enquiry was made by the police from them and no information was given by them to the police. If these witnesses and given some information to the police during the inquest proceedings the prosecution should have confronted them with these statements to establish that they had made such statements immediately after the incident. On the contrary, there is a specific statement by these witnesses that they were neither asked nor did they make any statement before the police authorities. 11. Yet another important fact that has escaped the attention of the trial Court is that Dr. Devendra Sharma (PW7) in his statement during cross-examination has clarified that the smell of kerosene oil was not present on the body of the deceased. In the absence of the smell of kerosene oil the prosecution story that the deceased committed suicide by pouring kerosene oil and setting fire to herself becomes doubtful when we read along with the above mentioned contradictions and omissions. 12. In the absence of the smell of kerosene oil the prosecution story that the deceased committed suicide by pouring kerosene oil and setting fire to herself becomes doubtful when we read along with the above mentioned contradictions and omissions. 12. There are significant lacuna in the prosecutions story about the condition of the deceased immediately after the occurrence of the incident which have also not been taken into account by the trial Court. The investigating officer, Ramdas Patel (PW8), has stated that immediately on receiving information about the incident he rushed to the spot and thereafter, dispatched the deceased Vineeta for treatment to Silvani hospital. Obviously, Vineeta at this point of time was alive and that is why she was rushed to the hospital for treatment. If she was alive then it is surprising that the investigating officer did not note down her condition or make any inquiry from her as to the cause of the incident. In case she was unconscious it was incumbent upon him to record this fact. Significantly, the report of the medical examination of the deceased Vineeta when she was admitted in the hospital at Silvani has also not been produced which would have indicated the condition of the deceased. In view of these lacuna in the prosecution case the testimony of the defence witnesses gains importance. Shyamsingh (DW 1) and Gopal (DW3) who are the neighbours of the accused appellants have stated that when they reached the house of the accused appellants the deceased Vineeta was alive and she categorically told them that she had received the bum injuries, as a result of her 'Sari' accidentally catching fire while she was making tea and has also clarified that the police had rushed the spot and had in fact made extensive inquiries from the deceased Vineeta who had informed them that she had caught fire while making tea and that her-in-laws did not mistreat her and were not at fault. The statement about the inquiry by the police has also been affirmed by them in their cross-examination. When we read both these facts in juxtaposition, it is evident that this missing part of the prosecution case assumes importance. I am of the considered opinion that this gap in the prosecution story is significant. The statement about the inquiry by the police has also been affirmed by them in their cross-examination. When we read both these facts in juxtaposition, it is evident that this missing part of the prosecution case assumes importance. I am of the considered opinion that this gap in the prosecution story is significant. The prosecution should have brought on record the events which occurred after the police reached the spot till the death of the deceased. Failure on its part to do so casts a deep shadow of doubt on the prosecution case when we keep in mind the fact that the prosecution is required by law to prove its case against the accused beyond any reasonable doubt. 13. One of the most glaring lacuna in the prosecution case is the non-production of the copy/diary written by the deceased Vineeta and seized by the investigating officer Ramdas Patel (PW8) from the spot as is evident from the document Ex. P/6. In his statements Ramdas Patel (PW8) has clearly stated that page No. 21 of this diary contained information about the in-laws and the family members of the deceased Vineeta. It stands to reason that in case the deceased was being subjected to cruetly she would definitely have written this fact in her diary and this would have been the most clinching evidence against the accused appellants. No reason whatsoever has been put forth for non-production of this document and, therefore, I have no hesitation whatsoever in drawing a presumption under section 114 illustration (g) of the Indian Evidence Act that this document contained information which would have favoured the accused appellants and not the prosecution. 14. On careful analysis of the statement of the father Shiv Prasad PW4, mother Ramkuwarbai PW5 and uncle Kailash Sahu PW6 of the deceased, it is clear that there is no allegation whatsoever that the appellants accused had committed any act of cruelty or harassment against the deceased Vineeta. The only allegation is that they were asking for a motorcycle, cooler and television and therefore, this is a case of total absence of any evidence regarding the deceased being subjected to harassment or cruelty. The trial Court in Paragraphs 35, 48, 50, 67, 73, 74, 82 and 87 has recorded conclusions by presuming facts which have not been brought on record by the prosecution. The trial Court in Paragraphs 35, 48, 50, 67, 73, 74, 82 and 87 has recorded conclusions by presuming facts which have not been brought on record by the prosecution. The trial Court has pressed into service the provisions of section 113B of the Indian Evidence Act to presume that the death of the deceased Vineeta was as a result of the fact that she being subjected to cruelty. I am of the considered opinion that the provisions of section 113B of the Evidence Act are not attracted to the present case as there is no evidence whatsoever to come to the conclusion that the accused appellants had subjected the deceased Vineeta to cruelty and unless and until the fact of cruelty is not established the presumption under section I13B of the Evidence Act is not attracted. The only evidence on record is a general statement against all about a demand for a cooler, motorcycle and television which in itself does not amount to an act of cruelty or harassment. 15. At this stage, I may profitably refer to three judgments of the many cited by the learned counsel for the appellant. In Meka Ramaswamy v. Dasari Mohan, AIR 1998 SC 774 , the apex Court uphold the acquittal of the accused persons keeping in view of the fact that no dowry was demanded or paid before or at the time of marriage as in the instant case. Sunil Bajaj v. State of M.P., AIR 2001 SC 3020 , the Supreme Court has analysed the essentials for conviction of an accused under section 304B of the IPC and has held that the prosecution must prove, (i) that the death of a woman must have been caused by bums or bodily injury or otherwise than under normal circumstances, (ii) that such death must have occurred within 7 years of her marriage, (iii) that soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband. (iv) that such cruelty or harassment must be for or is connection with the demand of dowry. (iv) that such cruelty or harassment must be for or is connection with the demand of dowry. In the present case, I find that though the essential requirements in (i) and (ii) have been proved, there is no allegation, evidence or proof that the deceased was being subjected to cruelty or harassment soon before her death and that such acts of cruelty or harassment, if any, were in connection with a demand for dowry and, therefore the essential requirements in (iii) and (iv) above are totally absent. In Kunhaibdulla v. State of Kerala, AIR 2004 SC 1731 , the apex Court has analysed the provisions of section 304B of the IPC and section 113B of the Indian Evidence Act as under: "Paragraph-8 : "Section 304B, IPC deals with dowry death which reads as follows: "304B. Dowry death. -- (1) Where the death of a woman is caused by any bums 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 relatives shall be deemed to have caused her death. Explanation-- For the purpose of this sub-section "dowry" shall have same meaning as in S.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." Paragraph-9: The Provision has application when death of a woman is caused by any bums 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. In order to attract application of S. 304B, IPC, the essential ingredients are as follows: (i) The death of a woman should be caused by bums or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. In order to attract application of S. 304B, IPC, the essential ingredients are as follows: (i) The death of a woman should be caused by bums or bodily injury or otherwise than under a normal circumstance. (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 on harassment is shown to have been meted out to the woman soon before her death. Paragraph-10 : Section 113B of the Indian Evidence Act, 1872 (in short the 'Evidence Act') is also relevant for the case at hand. Both S. 304B, IPC and S.113B of the Evidence Act were inserted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as follows: "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 S.304B 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 insel1 a provision relating to presumption of dowry death on proof of certain essentials. It is in this back ground presumptive S. 113B in Evidence Act has been insel1ed. It is in this back ground presumptive S. 113B in Evidence Act has been insel1ed. As per the definition of "dowry death" in S. 304B, IPC and the wording in the presumptive section 113B 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 S. 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the C01ll1 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 S.304B. IPC). (2) The woman was subjected to cruelty or harassment by her husband or her 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. Paragraph -- 11 : A conjoint reading of section 113B of the Evidence Act and S. 304B. 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 S. l13B of the Evidence Act and S.304B, 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 bring 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 S.113B of the Evidence Act. It would be hazardous to indicate any fixed period, and that bring 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 S.113B of the Evidence Act. The expression "soon before her death" used in the substantive S. 3048. IPC and S. 1138 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 S.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 its 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 or 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 no consequence." 16. The law that emerges from reading of the above mentioned three judgments is that for an accused to be convicted under section 304B of the IPC, the prosecution has to prove that the deceased was being subjected to cruelty or harassment in connection with the demand for dowry soon before her death. This apart, for holding a person guilty under section 498A of the IPC it has to be established beyond reasonable doubt that a woman is being subjected to cruelty, i.e., a deliberate act or conduct on the part of the accused which would drive her to commit suicide or grave injury to herself or harassing her with the specific purposes of forcing her or her relatives to meet an unlawful demand for dowry. Similarly, for the purpose of attracting the presumption as contained in section 113B of the Indian Evidence Act, the prosecution has to prove that the deceased woman was being subjected to cruelty or harassment in connection with any demand for dowry soon before her death. 17. In the instant case, the cumulative effect of the evidence as analysed in the aforementioned paragraph is that the prosecution has failed to adduce evidence or to prove beyond any reasonable doubt that the deceased was being subjected to cruelty or harassment soon before her death with the specific intention of extracting dowry or in connection with any demand for dowry which led her to commit suicide. Under the circumstances, I am of the considered opinion that the conviction of the appellants under section 304B and section 498A of the IPC with the aid of section 113B of the Indian Evidence Act is not sustainable and is hereby set aside. The appellants shall be set free forthwith and their bail bonds shall stands discharged. .........................