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2008 DIGILAW 1139 (MP)

SUBHASH YADAV v. STATE OF M. P.

2008-09-11

INDRANI DATTA

body2008
JUDGMENT : 1. This appeal has been preferred against the judgment of conviction and sentence dated 27-11-2002 passed by the Sessions Judge, Bhind in S.T. No. 94/1996 by which he has been convicted under section 498-A of Indian Penal Code and sentenced to undergo one year rigorous imprisonment with fine of Rs. 1000/- and in default of payment of fine to undergo three months rigorous imprisonment. 2. The case of the prosecution in brief is that deceased Sulekha was married to appellant in the year 1995 and after marriage the appellant and his parents and brother subjected her to torture and cruelty for alleged demand of dowry to bring colour TV and Scooter from parents. Appellant wrote a letter of warning with this respect to the deceased when she was residing with her parents. On 7-12-1995 appellant brought back deceased Sulekha from her parental house and then again ill-treated and harassed her with respect to demand of dowry. Fed-up with such demand and cruelty, the deceased committed suicide on 8-12-1995. A report was submitted to T.I. Bhind by Ratna Devi (PW-4) mother of deceased. Accused also gave intimation in writing that on 8-12-1995 when he came back from School, he saw deceased hanging from roof. Marg No. 67/95 (Ex.P/22) was lodged by Head Constable No. 63, Gyan Singh (PW-9). PW-6 R. S. Pachori, CSP reached on spot and prepared spot map (Ex.P/13). Letters written by appellant and his brother to the deceased Sulekha (Ex.P/8 to P/10) were seized as per Ex.P/7 from deceased mother Ratna Devi. Lash panchnama (PW-12) was prepared by CSP Shri R. S. Pachori and dead body of the deceased was sent for post-mortem. Dr. M. L Jain (PW-2) conducted autopsy on the dead body and cause of death was found to be Asphyxia due to hanging and death was found to be suicidal in nature and Ex.P/3 is the post-mortem report. S.I. Shiv Shankar Pandey (PW-3) lodged First information Report (Ex.P/4) on the basis of report (Ex. P/5) of C.S.P. Shri R. S. Pachori (PW-6). After investigation, charge-sheet was filed in the Court of C.J.M. Bhind from where case was committed in the Court of Sessions. 3. Appellant was charged for committing offence under section 498-A and 304-B, Indian Penal Code and alternate charge of section 306, Indian Penal Code was also framed against the appellant. P/5) of C.S.P. Shri R. S. Pachori (PW-6). After investigation, charge-sheet was filed in the Court of C.J.M. Bhind from where case was committed in the Court of Sessions. 3. Appellant was charged for committing offence under section 498-A and 304-B, Indian Penal Code and alternate charge of section 306, Indian Penal Code was also framed against the appellant. After conclusion of trial, .the learned Sessions Judge acquitted the appellant from the charges levelled against him under sections 304-B and 306, Indian Penal Code and convicted and sentenced him under section 498-A, Indian Penal Code, hence this appeal. 4. The contention of learned counsel for the appellant is that finding arrived at by the Sessions Court that appellant was found to have harassed the deceased and subjected her to cruelty in relation to demand of dowry is perverse and cannot be sustained. It is also urged that PW-4 Ratna Devi's statement is full of contradictions and omissions. No reliable evidence is produced on the point of cruelty. No demand of dowry established from the letters said to have been written by the appellant to the deceased. So cruelty is not proved by the evidence produced by the prosecution. Hence it is prayed that appellant is to be acquitted. 5. The learned Panel Lawyer for the State on the other hand urged that harassment of deceased by the appellant with intend to meet-out the demand of dowry is proved from the evidence of statement of Ratna Devi (PW-4) mother of the deceased and independent witness Subhash (PW-5). So the trial Court has rightly convicted the appellant under section 498-A, Indian Penal Code. Section 498-A of Indian Penal Code speaks that : "498-A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation - For the purpose of this section, "cruelty" means - (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 6. Considered the material on record. In all 9 witnesses were examined on behalf of the prosecution. Prosecution has adduced the evidence of Ram Mohan Parashar (PW-1), Subhash (PW-5) and Ratna Devi (PW-4) mother of deceased with respect to acts of cruelty with deceased by appellant. 7. PW-1 Ram Mohan Parashar who was again examined as PW-8 had failed to support the prosecution case and was declared hostile by the prosecution. His statement is unreliable. 8. PW-4 Ratna Devi has deposed that on 9-5-1995 marriage of her daughter Sulekha was solemnized with appellant/accused and Gauna was performed after a month. At the time of Gauna, the appellant and his brother demanded Scooter and TV in dowry, and threatened her that if their demand is not fulfilled deceased will be subjected to harassment and torture. Ratna Devi has further narrated that after some days her elder daughter Sheetla Devi and elder son went to appellant's house and after returning from there, they intimated her that appellant and his family members were torturing Sulekha for demand of TV and Scooter. Then after 15 days she went to appellant's house with Subhash (PW-5). At that time again demand of dowry was made by appellant and his family members. Ratna Devi has narrated that at that time the appellant and his family member demanded Scooter and TV and started quarrelling with her. So she went her home back with Sulekha. Then after Rakhee the appellant came to her house and took back deceased Sulekha to their matrimonial home. Third instance on the point of demand of Scooter and TV as per statement of this witness is again when she went to appellant's house with her son-in-law Diwansingh. So she went her home back with Sulekha. Then after Rakhee the appellant came to her house and took back deceased Sulekha to their matrimonial home. Third instance on the point of demand of Scooter and TV as per statement of this witness is again when she went to appellant's house with her son-in-law Diwansingh. Ratna Devi narrated that at that time deceased was crying and she asked her to meet-out the appellant's demand of dowry and told that if the demand is not fulfilled, they may kill her. In cross-examination in para 18 this witness admits that in-laws of deceased never demanded dowry before and at the time of marriage of deceased with appellant. She also admits that in her police statement (Ex.D/1) she has not stated that her elder son and daughter went to appellant's house and after returning from there they told that appellant is harassing Sulekha for demand of TV and Scooter and they used to beat her. In her case-diary statement (Ex.D/1) there is complete omission that she went to deceased matrimonial home with Subhash (PW-5) 15 days after Gauna and at that time appellant and his family members demanded Scooter and TV and threatened to kill Sulekha if their dowry demand was not fulfilled. So she took deceased Sulekha with her to her parental home. There is also omission of alleged third instance that when she again went to appellant's house with her son-in-law Diwansingh, demand of dowry was again made by the appellant's family and deceased was crying at that time and asked her to fulfil demand of dowry and told her that if demand is not fulfilled then her in-laws will kill her. As per her case-diary statement recorded under section 161, Criminal Procedure Code there was a quarrel with respect to dowry at the time of marriage and then after Gauna when she went to deceased matrimonial home, then again there was a demand of dowry. Ex. P/6 is report made by Ratna Devi to T.I. Bhind. In that report also first demand of dowry is alleged to have been made at the time of marriage and then at the time of Gauna. Ex. P/6 is report made by Ratna Devi to T.I. Bhind. In that report also first demand of dowry is alleged to have been made at the time of marriage and then at the time of Gauna. Contrary to this in her cross-examination and in examination-in-chief this witness has stated that there was no demand of dowry at the time of marriage and first time demand of Scooter and colour TV was made by the appellant and his family members when after Gauna she went to meet the deceased at appellant's place. Moreover, in her case-diary statement recorded under section 161, Criminal Procedure Code she has not mentioned that first time when she went to appellant's place Subhash (PW-5) was with her and second time Diwansingh was with her. These contradictions falsify her narration, 9. In this way there are material contradictions and omissions in the statement of Ratna Devi (PW-4) given in the Court and in her statement under section 161, Criminal Procedure Code. 10. Subhash (PW-5) is another witness. This witness in-chief has narrated that at the time of marriage there was dispute with respect to demand of TV and Scooter. He has further stated that after Gauna he accompanied Ratna Devi mother of deceased to appellant's place. At that time appellant was not there, father and brother of the appellant taunted them for dowry then they took Sulekha back with them. He also deposed that he is not aware of the fact that how Sulekha was treated in her matrimonial house. Then again he has stated that her in-laws used to harass her for demand of dowry. In this way this witness himself is not sure about the ill-treatment and harassment given by the appellant. He has changed his version so his evidence is doubtful. His evidence is contradictory to the evidence of Ratna Devi, who has stated that after Gauna when she went to the appellant's house accompanied with Subhash, appellant and his family members demanded Scooter and TV and threatened to kill Sulekha. On the other hand PW-5 Subhash; nullifies the presence of the appellant at home at that time. He has not specifically stated about any demand of Scooter and TV by appellant and his family members. The statement of this witness is of no use. 11. So only statement left is the statement of Ratna Devi (PW-4). On the other hand PW-5 Subhash; nullifies the presence of the appellant at home at that time. He has not specifically stated about any demand of Scooter and TV by appellant and his family members. The statement of this witness is of no use. 11. So only statement left is the statement of Ratna Devi (PW-4). Her statement is not corroborated by statement of Subhash (PW-5) with respect to alleged incident of demand of dowry after Gauna and Subhash (PW-5) has denied the presence of appellant in his house at that time. Third instance of alleged-dowry demand is not corroborated by Diwansingh, who is son-in-law of Ratna Devi (PW-4). As per statement of Ratna Devi, he accompanied her toappellant's home. So, evidence of Ratna Devi is unreliable. 12. Other piece of evidence available are three letters which are alleged to have been written by the appellant and his brother Rakesh to deceased Sulekha when she was at her parental house. These letters are Ex.P/8, P/9 and P/10. Letters (Ex.P/8 and P/10) are alleged to have been written by appellant's brother Rakesh. There is no evidence that these letters were written as per the direction of appellant. So these letters cannot be used as evidence against the appellant. Ex.P/9 is the letter written by the appellant to the deceased. In this letter the appellant wrote to deceased that her mother wants to keep him under her control as her elder son-in-law is under her control. It is also written that she has all luxury facilities like dunlop bed, Sofa, TV, Scooter and nice food in her parental house which are not available in his house, so she must be liking to reside there. There is no demand of dowry in this letter. Nothing is mentioned with respect to demand of Scooter or TV. So the documentary evidence these three letters are not sufficient to arrive at a conclusion of appellant's ill-treatment and cruelty with deceased. 13. In case of Girdhar Shankar Tawade vs. State of Maharashtra, 2002(2) Crimes 360 (SC) appellant was charged under sections 306 and 498-A, Indian Penal Code and was acquitted for abetment of suicide and was convicted under section 498-A, Indian Penal Code on the ground of cruelty. In this case no demand of dowry was found to be made by documentary evidence and oral evidence was contradictory. Dying declaration was found to be of no use. In this case no demand of dowry was found to be made by documentary evidence and oral evidence was contradictory. Dying declaration was found to be of no use. So Hon'ble Apex Court acquitted the appellant of charge punishable under section 498-A, Indian Penal Code. 14. In another case Krushnarao Govindrao Gadfane vs. State of Maharashtra, 2006(1) Crimes 618 appellant accused was convicted under section 498-A and 306, Indian Penal Code in that case no specific act of ill-treatment was established by neighbours. No specific information by any specific instance revealed by sister of deceased as to how and in what manner deceased was ill-treated by her in-laws. Considering all other evidence on record, conviction was set aside by the Hon'ble Apex Court. 15. In the case of Ayub vs. State of M. P., ILR (2008) M.P. 343 accused was convicted for offence punishable under section 498-A, Indian Penal Code Conviction was based on letters purported to be written by deceased and oral evidence of parents of deceased. No evidence vas produced that letters were written by deceased. There were material omissions and contradictions in oral evidence. Cruelty by husband was not proved and conviction and sentence was set aside. 16. In the light of the above decision and from the careful scrutiny of evidence on record, PW-1 Ratna Devi's evidence regarding ill-treatment and cruelty by appellant with respect to demand of TV and Scooter is not sufficient and reliable. She has failed to explain the material omissions in her case-diary statement about the alleged instances of demand of dowry and ill-treatment on this count by appellant with deceased. Because of these omissions there remains no evidence against the appellant regarding ill-treatment and harassment with deceased. Evidence of other witness Subhash (PW-5) is of no use. 17. In view of the aforesaid discussion appeal is allowed. Conviction and sentence of the appellant passed by the trial Court by the impugned judgment is set aside. Appellant is on bail. His bail bonds and security bonds stand discharged.