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Madhya Pradesh High Court · body

2006 DIGILAW 518 (MP)

Dinesh Kumar v. State of M. P.

2006-04-12

S.S.DWIVEDI

body2006
JUDGMENT 1. The appellants have preferred this appeal under section 374 (2) of the Criminal Procedure Code feeling aggrieved by the judgment of conviction and order of sentence dated 10.1.1994 passed by the Third Additional Sessions Judge, Ratlam, in Sessions Trial No. 133/1992 whereby all the three appellants were found guilty under section 304B of the Indian Penal Code and each of them were sentenced to 7 years' rigorous imprisonment with a fine of Rs.500/- and further ordered that each of the appellants is to suffer three months' RI in default of payment of fine. 2. The brief facts of the case are that deceased Komalbai was married with appellant No. 1 Dinesh on 16.5.1991. Appellant No.2 is the father-in-law and appellant No.3 is the mother-in-law of the deceased Komalobai @ Artibai. After marriage, all the three appellants started harassing deceased Komalbai with regard to the demand of dowry and they demanded one golden chain, one ring and wristwatch and TV from the deceased. Due to this repeated harassment with regard to the demand of dowry, deceased Komalbai consumed some poisonous substance and died on 26.1.1992. Thus, her death was in suspicious circumstances. The information with regard to the unnatural death of Komalbai has been registered by the police, Alot. Investigating Officer Ramdulare Pandey (PW 8) inquired the marg and sent the dead body of the deceased Komalbai for post-mortem examination. Dr. Vipin Bihari Jain (PW 3) performed the postmortem of the deceased and found that she had the pregnancy of 10-12 weeks. The concerning doctor also preserved the viscera for chemical examination. Prima facie on the basis of this post-mortem examination, the concerned doctor opined that deceased Komalbai died due to cardio-respiratory failure by suspected poisoning. This may be con finned after the chemical examination of the preserved viscera. The post-mortem report has been signed by the panel of three doctors, is Ex. P-4. During the investigation, the father of the deceased stated before the police that his daughter Komalbai @ Artibai died due to harassment by her husband and in-laws. On the basis of this statement, police has registered a criminal case under section 304B, Indian Penal Code, recorded the statement of the prosecution witnesses, arrested the three appellants-accused and after due investigation, filed the charge-sheet against the three appellants-accused before the trial Court. On the basis of this statement, police has registered a criminal case under section 304B, Indian Penal Code, recorded the statement of the prosecution witnesses, arrested the three appellants-accused and after due investigation, filed the charge-sheet against the three appellants-accused before the trial Court. All the appellants-accused abjured their guilt and their defence is of false implication in the case. After due appreciation of the entire prosecution evidence on record, learned trial Court, vide impugned judgment dated 10.1.1994, found all the appellants guilty under section 304B, Indian Penal Code, and sentenced them as stated hereinabove. Feeling aggrieved by the impugned judgment and conviction, the appellants have preferred this appeal. 3. I have heard the learned counsel for the appellants and the learned Government Advocate for the State and perused the record. 4. It is submitted by the learned counsel for the appellants that the prosecution has utterly failed to prove that due to harassment with regard to the demand of dowry, deceased Komalbai died in suspicious circumstances. The prosecution has also failed to prove the real cause of death of the deceased Komalbai as the FSL report of the viscera preserved by the doctor is not proved by the prosecution to prove the cause of death of the deceased. There also exist material contradictions in the statements of the prosecution witnesses with regard to the demand of dowry. Thus, on overall appreciation of the entire prosecution evidence it is submitted that the prosecution has failed to prove the charge under section 304B, Indian Penal Code, against the appellants-accused, therefore, prayed for setting aside of the impugned judgment of conviction and sentence awarded by the trial Court. 5. Per contra, learned Government Advocate, while supporting the impugned judgment, submits that the prosecution has properly proved the charge against the appellants-accused with regard to the harassment to the deceased Komalbai @ Artibai with regard to the demand of dowry. It is also proved that the deceased died within one year from her marriage in suspicious circumstances therefore the presumption under section 113B of the Indian Evidence Act can be invoked and the learned trial Court has rightly found the appellants-accused guilty under the aforesaid offences and therefore, no substantial or material grounds are available to interfere with the finding and sentence recorded by the trial Court, therefore prayed for the dismissal of the appeal. 6. 6. To bring home the charge framed against the appellants, first point for consideration is as to whether the deceased Komalbai died within seven years from her marriage to appellant No.1 Dinesh. This fact has been proved by the prosecution on the basis of the statemented of Kantilal (PW 1) who is the father of the deceased, Anil Kumar Sharma (PW 2) who is the brother of the deceased, Sushilabai (PW4) who is the maternal aunt of the deceased, Hemlata (PW 5) who is the elder sister of the deceased and Jadavchandra (PW 6) who is the neighbour of the appellants. All these witnesses categorically stated that in this incident Komalbai @ Artibai died within one year from her marriage with the appellant Dinesh. This fact has not at al been controverted by the defence therefore, the statements of the aforesaid witnesses on this point cannot be disbelieved. Thus, it is proved that the marriage of the deceased Komalbai took place on 16.1.1991 and on 26.1.1992 deceased Komalbai died in this incident. 7. With regard to the cause of death of deceased Komalbai is concerned, on this point the prosecution has examined Dr. Vipin Bihari Jain (PW 3) who performed the post-mortem of the deceased Komalbai @ Artibai on 27.1.1992 and has not found any external injury on the body of the deceased. All the internal organs turned into bluish colour, eroded with mucoid fluid were found in the stomach. Other organs of the body found to be congested. He preserved the viscera and contents of the stomach and intenstine and part of the liver, spleen and kidney and lungs and heart for chemical examination. He further opined that deceased Komalbai @ Artibai died due to cardio-respiratory failure, which might be due to suspected poisoning. This may be confirmed after chemical examination of the viscera. The PM report Ex. P-4 has been proved by the aforesaid medical witness. 8. Surprisingly, the prosecution has not proved the viscera report which might be the conclusive proof on which basis the prosecution could prove the actual cause of death of the deceased and this report ought to have been proved by the prosecution. Thus, first of all, the prosecution has utterly failed to prove the actual cause of death of the deceased Komalbai @ Artibai that she died due to consuming poisonous substance. Thus, first of all, the prosecution has utterly failed to prove the actual cause of death of the deceased Komalbai @ Artibai that she died due to consuming poisonous substance. Only on the basis of the statement of medical witness Dr. Vipin Bihari Jain (PW 3), this cannot be inferred that the deceased died only due to consuming poisonous substance. On this point, where the prosecution failed to prove the actual cause of death, in such type of case, the Hon'ble apex Court in Akula Ravinder and others v. State of Andhra Pradesh [ AIR 1991 SC 1142 ], held as under: "A perusal of the section 304B shows that one of the essential ingredients that has to be established is that death was otherwise than in normal circumstances. In this case, no doubt the other circumstances that the death occurred within seven years of the marriage and that before her death they have harassed her for demand of dowry, are established. Coming to the other ingredient we find that the prosecution has miserably failed to establish that death was otherwise than in normal circumstances. The learned counsel appearing for the State, however, submits that the deceased was young and the death was nor due to natural cause nor it was due to an accident and the only inference that can be drawn is that it was otherwise than under normal circumstances. In a case of this nature, where the prosecution has failed to establish that it was an unnatural death, it cannot be surmised that death must be due to unnatural circumstance. In this context, the framing of the charge and the circumstances that are put to accused under section 313, Criminal Procedure Code, also assume importance. The charge was under section 302, Indian Penal Code and the contents of the charge are to the effect that death was only due to asphyxia. In the examination of section 313 it was not even indicated that the death could be due to poisoning. In any event, in view of the facts and circumstances regarding the death, it has become very difficult, rather impossible, to hold that the death was otherwise than the normal circumstances and consequently, we are constrained to hold that this important aspect of section 304B is not met out. Consequently, the appellants are entitled to acquittal of the said offence." 9. Consequently, the appellants are entitled to acquittal of the said offence." 9. The next crucial point arises for consideration is as to whether soon before her death the deceased was harassed by the husband and the in-laws of the deceased with regard to the demand of dowry. 10. For this, the prosecution has examined Kantilal (PW 1) who is the father of the deceased, who stated before the trial Court that after ten days of the marriage of Arti, he came to know that husband and in-laws were demanding one golden chain, one golden ring and one TV as dowry from his daughter. This happened to be the only one incident only after ten days of the marriage itself. Thereafter, no such demands were ever made by the in-laws or the husband of the deceased whereas for the presumption under section 113B of the Indian Evidence Act, it is necessary to prove that soon before her death, the deceased was subjected to cruelty with regard to the demand of dowry, and this fact has not at all been proved by the prosecution, and no such incident has been narrated by the aforesaid witness Kantilal (PW 1) that soon before her death, i.e., on 26.1.1992, all the appellants were harassing and subjected her to cruely for the demand of dowry. Therefore, in such circumstances, the presumption under section 113B of the Indian Evidence Act cannot help the prosecution to arrive at the conclusion for the offence under section 304B, Indian Penal Code. 11. There are material contradictions also in the statement of Kantilal (PW 1). He has not stated about the harassment of his daughter by the appellants in his previous case diary statement Ex. D-l. He has also not stated in his previous statement that the in-laws of his daughter were demanding golden chain, ring and TV. This fact has also not been mentioned in his FIR Ex. P-l. He has also not stated about the demand of Rs. 5,000/- by the appellant accused Dinesh in his case diary statement Ex. D-1. Thus, it is apparent that he improved his statement before the trial Court and narrated the facts which were not mentioned in his FIR EX.P-l and case diary statement Ex. D-l. This appears to be the material contradiction. Thus, his statement given before the trial Court on this point of demand of dowry cannot be believed. 12. D-1. Thus, it is apparent that he improved his statement before the trial Court and narrated the facts which were not mentioned in his FIR EX.P-l and case diary statement Ex. D-l. This appears to be the material contradiction. Thus, his statement given before the trial Court on this point of demand of dowry cannot be believed. 12. Similarly, the statement of Anil Kumar Sharma (PW 2) who is the brother of the deceased Komalbai who stated that once he went to the in-laws house of his sister, but none of the appellants-accused has talked with him with regard to any demand. He only stated that once appellant-accused Dinesh demanded Rs. 5,000/- to start some business and thereafter, appellant-accused Dinesh borrowed Rs. 500/- as loan from him. On the basis of this statement also, this cannot be inferred that the appellant-accused Dinesh has demanded any dowry from the aforesaid witness Anil Kumar Sharma (PW 2) and also harassed the deceased with regard to this demand. 13. The next witness Sushilabai (PW 4) who is the maternal aunt of the deceased Komalbai @ Artibai, she also has not stated that these appellants-accused have ever harassed Artibai for any such demand of dowry. Thus, aforesaid witness Sushilabai, who is close relative of the deceased, has also not supported the prosecution story. 14. The next witness Hemlata (PW 5) who is the elder sister of the deceased Komalbai @ Artibai, she also has not stated as to what items the appellants are demanding as dowry from her sister. She only stated that Artibai told her that her husband was demanding one golden chain and one ring, but this has also not been stated by this witness in her previous case diary statement Ex. D-3. Thus, this omission would also come as a material contradiction in the statement of the aforesaid witness. 15. Jadavchandra (PW 6) is the near neighbour of the appellants-accused who also has not stated that the appellants are harassing the deceased Artibai @ Komalbai. Thus, this witness has also not supported the prosecution story. 16. On perusal of the overall statements of the aforesaid prosecution witnesses, this fact has not been proved beyond reasonable doubt that all the appellants were demanding some dowry and because of this demand of dowry, the deceased was subjected to cruelty by the appellants-accused. 17. Thus, this witness has also not supported the prosecution story. 16. On perusal of the overall statements of the aforesaid prosecution witnesses, this fact has not been proved beyond reasonable doubt that all the appellants were demanding some dowry and because of this demand of dowry, the deceased was subjected to cruelty by the appellants-accused. 17. Hon'ble Apex Court in Sunil Bajaj v. State of M.P. [ 2002 (1) JLJ 1 = AIR 2001 SC 3020 ] held as under: "Normally in a criminal case, accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under section 304B, Indian Penal Code, an exception is made by deeming provision as to nature of death as 'dowry death' and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the ingredients of the offence are proved by the prosecution." 18. This Court also in Shailendra Singh v. State [ 2005 (1) MPWN 138 ], held that for the offence under section 304B, Indian Penal Code, the prosecution ought to have proved that the deceased was subjected to cruelty soon before her death, then only the presumption under section 113B of the Indian Evidence Act can be invoked. 19. Thus, on appreciation of the entire prosecution evidence on record, I am of the considered view that the prosecution has utterly failed to prove that the deceased Komalbai @ Artibai had been subjected to cruelty soon before her death with regard to the demand of dowry. Therefore, learned trial Court has committed error in holding the appellants guilty under section 304B, Indian Penal Code, and the aforesaid finding cannot be sustained. 20. Resultantly, the appeal filed by the appellants is allowed. Therefore, learned trial Court has committed error in holding the appellants guilty under section 304B, Indian Penal Code, and the aforesaid finding cannot be sustained. 20. Resultantly, the appeal filed by the appellants is allowed. The impugned judgment of conviction and order of sentence passed by the trial Court is set aside and all the three appellants are acquitted from the charge under section 304B, Indian Penal Code. The appellants are on bail. Their bail bonds stand discharged forthwith.