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2009 DIGILAW 1377 (MP)

SRIKANT v. STATE OF M. P.

2009-12-15

K.S.CHAUHAN

body2009
Judgment K.S. Chauhan, J. ( 1. ) Appellant No.2 Ram Charan has died during the pendency of this appeal, hence appeal against him has been abated. ( 2. ) This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 20.12.1990 passed by Additional Sessions Judge, Dindori (M.P.) in S.T. No. 10/1990, whereby the appellant has been convicted under Section 498-A and 304-B of I.P.C. and sentenced to R.I. for 3 years and R.I. for 10 years. Both the sentences were directed to run concurrently. ( 3. ) The prosecution case in short is that Mamta Bai was married with this appellant Srikant in the year 1986 in the Collective Marriage Conference held at Jabalpur. At that time no any dowry was settled but afterwards the appellant started demanding dowry of Rs.15,000/- and used to harass her and subjected to cruelty on account of not fulfilling the demand. Badri Prasad Gupta (PW-17) the brother of Mamta who was Sub Engineer in Irrigation Department at Baikunthpur managed the appellant to open a hotel at Baikunthpur which was run by him for 2/4 months but the business of hotel could not run properly hence it was closed. Thereafter appellant had gone to Bhopal for business purposes. From there also he returned to Baikunthpur and intended to start the business of stationery at Vikrampur, therefore, Badri Prasad Gupta gave Rs.2500/- to him. Thereafter also he persisted his demand and got the letters written by his wife Mamta (deceased) and brother Ramakant but the parents and the brothers of deceased could not manage the same. Therefore he continued the harassment of his wife Mamta Bal. On 25.07.1989 Mamta poured kerosene over her and her daughter Ruby aged 2 years and a blazed the fire on account of which they sustained burn injuries. Guljarilal (PW-7) informed at outpost Vikrampur on the same day. This report was written in Rojnamcha Sanha (Ex.P-33C) by Ravishankar (PW-37). Sardar Makhan Singh, Principal of Government Higher Secondary School, Vikrampur recorded her dying declaration (Ex.P-26). Mamta and her daughter Ruby were sent to P.H.C. Dindori where they were admitted. Dr. S.K. Khare (PW-11) intimated the concerned police for recording her dying declaration, therefore, at the request of concerned police C.L. Yadav (PW-8), Naib Tahsildar and Executive Magistrate recorded her dying declaration (Ex.P-6). Mamta and her daughter Ruby were sent to P.H.C. Dindori where they were admitted. Dr. S.K. Khare (PW-11) intimated the concerned police for recording her dying declaration, therefore, at the request of concerned police C.L. Yadav (PW-8), Naib Tahsildar and Executive Magistrate recorded her dying declaration (Ex.P-6). On 26.07.1989 at 3:05 a.m. Mamta died, her daughter Ruby also died. Marg intimation No.0/89 was registered at Police Station Dindori from where it was sent to Police Station Shahpur where the marg intimation No. 15/89 under Section 174 of Cr.P.C. was registered. After preparing panchnama of dead body of Mamta the postmortem examination was conducted by Dr. S.K. Khare (PW-11) and Dr. R.M. Mishra (PW-29). According to their opinion the cause of death was shock as a result of extensive burns. However, viscera and articles were preserved for further chemical and his to pathological examination. The inquiry was made. The spot map was prepared. The container of the kerosene and match box etc were seized from the spot. Other articles were also seized. On the basis of inquiry of marg intimation, F.I.R. of Crime No.81/89 under Section 306 of I.P.C. was registered at Police Station Shahpur. The statement of the witnesses were recorded during the course of investigation. The seized articles were sent to F.S.L. Sagar for chemical examination. After completing the investigation, the charge sheet was filed in the Court of J.M.F.C. Dindori who committed the case to the Sessions Court for trial. ( 4. ) Accused was charged under Section 498-A, 304-B or in alternative under Section 306 of I.P.C. He denied the guilt and claimed to be tried mainly contending that he is innocent. The prosecution examined as many as 37 witnesses whereas the appellant did not examine any witness. After appreciating the evidence trial Court found him guilty under Section 498-A and 304-B of I.P.C. and sentenced thereto as stated hereinabove in para no.2 of this judgment. Being aggrieved by the judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal. ( 5. ) Shri Yogesh Dhande, learned counsel for the appellant submitted that the court below has not appreciated the evidence in proper perspective. Since the marriage was performed in a Collective Marriage Conference, therefore, there was no question of settlement of dowry. The appellant has never demanded the money in dowry. ( 5. ) Shri Yogesh Dhande, learned counsel for the appellant submitted that the court below has not appreciated the evidence in proper perspective. Since the marriage was performed in a Collective Marriage Conference, therefore, there was no question of settlement of dowry. The appellant has never demanded the money in dowry. His economic condition was poor therefore he demanded the money for starting the business. The death was accidental and the court below has committed an illegality in not relying upon the dying declarations given by Mamta. There is no evidence that she was subjected to cruelty soon before her death, therefore, the prosecution has failed to prove the guilt beyond reasonable against the appellant and the Court below has committed illegality in convicting and sentencing the appellant. The finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. ( 6. ) On the other hand, Shri Dildar Singh Purba, learned Dy. G.A. appearing on behalf of respondent/State and Shri G.P.Patel, learned counsel for the complainant supported the impugned judgment, finding and sentence mainly contending that death of Mamta was not accidental. The dying declarations were given under the pressures of the appellant and his family members. There is ample evidence that she was subjected to cruelty. She has written the letters from time to time in this regard. The finding of guilt is proper hence does not call for any interference. ( 7. ) The main point for consideration in this appeal is that whether the court below has committed any illegality in convicting and sentencing the appellant under Section 498-A and 304-B of IPC. ( 8. ) There is no dispute that marriage of Mamta was performed with this appellant in the year 1986 in Collective Marriage Conference held at Jabalpur and she died on 26.07.1989 by burn injuries in her in-laws house. The dispute is whether her death was suicidal or accidental. ( 9. ) It is borne out from the record that one Guljarilal (PW-6) informed police Vikrampur on 25.07.1989 about this incident. The report was written in Rojnamcha Sanha (Ex.P-33C) by Ravishankar (PW-37) the then A.S.I. at outpost Vikrampur. He immediately rushed to the spot and found that Mamta and her daughter were seriously burnt. ( 9. ) It is borne out from the record that one Guljarilal (PW-6) informed police Vikrampur on 25.07.1989 about this incident. The report was written in Rojnamcha Sanha (Ex.P-33C) by Ravishankar (PW-37) the then A.S.I. at outpost Vikrampur. He immediately rushed to the spot and found that Mamta and her daughter were seriously burnt. Sardar Makhan Singh (PW-35) who was the Principal of Government Higher Secondary School, Vikrampur recorded her dying declaration (Ex.P-29) wherein she stated that when she was cooking meals the Dibbi (small container) of kerosene fell down on account of which she caught fire and burnt. However, this witness in the cross examination has admitted that he did not see any oven or container of kerosene there. The kerosene was not spread there. There was no smell of kerosene from the body of Mamta. However, he has been contradicted from his earlier police statement (Ex.P-30). He has further stated that Mamta was seriously burnt. He has taken her thumb impression on dying declaration (Ex.P-29). But this dying declaration was not read over to Mamta. On another dying declaration (Ex.P-6) Dr. S.K. Khare has given certificate that her both hands were burnt hence she could not sign or affix thumb impression on it. In the aforesaid situation the evidence of Sardar Makhan Singh (PW-35) is not reliable that she affixed thumb impression on Ex.P-29. He is contradicted from his own statement on this point. ( 10. ) It is apparent that Ravishankar (PW-37) did not send any requisition in writing to this witness for recording her statement. It appears that on the oral request of the concerned Inspector he has done so. This statement has not been recorded in question and answer form. It has not been read over to her. There is no certificate of the Doctor that she was fit to give such statement. Autopsy Surgeons who conducted the postmortem examination of the deceased have clearly stated that the smell of kerosene was coming out from the dead body of deceased. Thus the statement of this witness is contrary to the statement of the Autopsy Surgeons. Though he has stated in his police statement Ex.P-30 that the smell of kerosene was coming out from her body but in the Court he has denied such fact. Thus he is giving the self contradictory statement on the material fact. Thus the statement of this witness is contrary to the statement of the Autopsy Surgeons. Though he has stated in his police statement Ex.P-30 that the smell of kerosene was coming out from her body but in the Court he has denied such fact. Thus he is giving the self contradictory statement on the material fact. Therefore, he appears to be an interested witness and no reliance can be placed on his evidence. ( 11. ) Mamta and her daughter Ruby were sent to P.H.C., Dindori and her dying declaration (Ex.P-6) was recorded by C.L. Yadav (PW-8), the then Naib Tahsildar and Executive Magistrate, Dindori. The certificate that she was fit to give statement was obtained from Dr. S.K. Khare (PW-11). C.L. Yadav (PW-8) has given statement that he recorded the dying declaration of deceased Mamta and she gave such statement. She remained conscious during the course of recording the statement. This witness has stated that at the time of recording the statement no other person except doctor was present there. Other persons were sent outside. ( 12. ) On perusal of his statement it reflects that he has given the evidence before the Court in a very short slipped manner. He has not given the evidence in detail as to what the deceased stated in her dying declaration. The court also failed in his duty to record the statement of this witness properly. It is evident that such dying declaration was not recorded in the question and answer form, therefore, the dying declaration was not recorded properly. It is evident that the members of her in-laws family were there when she was admitted in P.H.C. Dindori therefore the possibility of their influencing the deceased for giving such statement cannot be ruled out. Thus dying declaration was not given voluntarily. Moreover, as stated earlier, the theory of falling down kerosene and consequently catching the fire has been negatived in view of the evidence of Autopsy Surgeons Dr.S.K. Khare (PW-11) and Dr. R.M. Mishra (PW-29) who have clearly deposed that the smell of kerosene was coming out from the body of the deceased which can only be possible by pouring the kerosene over body and setting the fire. Dr. R.M. Mishra (PW-29) has clearly opined that it was not the case of accidental fire. This is not proved that Mamta gave dying declaration voluntarily. ( 13. Dr. R.M. Mishra (PW-29) has clearly opined that it was not the case of accidental fire. This is not proved that Mamta gave dying declaration voluntarily. ( 13. ) Learned counsel for the appellant placed reliance on the decision in the case of Hariram @ Harishankar vs. State of M.P., 2007 (3) M.P.L.J. 554 wherein it has been held that dying declaration can be acted without corroboration if it is found to be otherwise true and reliable. Corroboration is necessary when the same is infirm. ( 14. ) So far as the present-case is concerned the dying declaration was not true and voluntary and it was given under the influence of the family members of the appellant, therefore, the cited case is of no help to the appellant. ( 15. ) Mamta died on 26.07.1989 at 3:05 a.m. The panchnama of dead body was prepared. Postmortem examination was conducted by Dr. S.K. Khare (PW-11) and Dr. R.M. Mishra (PW-29). According to their opinion the cause of death was shock as a result of extensive burns. The postmortem examination report is Ex. P-14A which contains the signature of both the Autopsy Surgeons. ( 16. ) Thus Mamta died on account of extensive burns. Keeping in view the evidence of the Autopsy Surgeons, her death can not be regarded as accidental hence the contention of the learned counsel for the appellant that her death was accidental is not acceptable. Since Mamta died due to burns within 7 years of her marriage, therefore, the fact that she died in abnormal circumstances within the span of 7 years of her marriage in her in-laws house has been established. ( 17. ) The prosecution has led the evidence that Mamta was harassed by the appellant for dowry and she was subjected to cruelty on account of which she committed suicide. Such evidence deserves to be considered. ( 18. ) Ramdayal Gupta (PW-22) is the father of deceased Mamta and Ravishankar Gupta (PW-7), Badri Prasad Gupta (PW-17) and Purushottam Lai Baishya (PW-3) are her brothers. They have given evidence that appellant demanded Rs.15,000/-. The letters were also received. They have denied the suggestive question that the appellant demanded such money for doing the business. ( 19. ) Ramdayal Gupta (PW-22) has deposed that Rs.7,000/- were given at the time of marriage but the appellant demanded Rs.15,000/- at the time of Bidai. They have given evidence that appellant demanded Rs.15,000/-. The letters were also received. They have denied the suggestive question that the appellant demanded such money for doing the business. ( 19. ) Ramdayal Gupta (PW-22) has deposed that Rs.7,000/- were given at the time of marriage but the appellant demanded Rs.15,000/- at the time of Bidai. His daughter used to tell him that the appellant used to demand money. She told this thing 3-4 times and lastly before 5-6 months of this incident. Since he was not having money therefore the same could not be given. His daughter wrote the letter Article- B to him which was seized by the police. In the cross examination he has stated that he did not lodge the report regarding the demand of dowry because he wanted relation to be maintained. ( 20. ) Ravishankar Gupta (PW-7) has also given evidence that appellant demanded Rs.15,000/- but he did not provide the same. He also received letter Article- D written by the brother of this appellant. ( 21. ) Badri Prasad Gupta (PW-17) has also stated that the appellant demanded Rs.15000/-. He used to harass his sister, therefore, he took his sister to Baikunthpur where he was serving. The appellant also reached there. He managed to open a hotel to appellant but it could not run for a long time and hence closed after 21/2 months. Thereafter the appellant went to Bhopal to do some other business. On Holi festival he returned from Bhopal. Thereafter he intended to start the business of stationery at Vikrampur for which he provided Rs.2,500/- but after a week one letter written by his sister was received wherein it was mentioned that she was in trouble. This letter is Article-C. This witness has also denied the suggestive question that the appellant demanded the money for starting the business. He has clearly stated that appellant warned him that if the demand is not fulfilled then he will not come to take back his wife to her in-laws house. This fact was also mentioned in the letter Article- D. ( 22. ) Purushottam Lal Baishya (PW-23) has stated that after marriage he had gone to Vikrampur where the appellant demanded Rs.15,000/- but he refused. Thereafter he demanded Rs.3000/- or Rs.4000/- but he expressed his inability to provide any amount. This fact was also mentioned in the letter Article- D. ( 22. ) Purushottam Lal Baishya (PW-23) has stated that after marriage he had gone to Vikrampur where the appellant demanded Rs.15,000/- but he refused. Thereafter he demanded Rs.3000/- or Rs.4000/- but he expressed his inability to provide any amount. He also received the letter of the appellant wherein the demand of money was made but that letter is not traceable. He has also stated that his sister used to tell him that appellant harasses her on account of not giving the dowry. ( 23. ) Thus all these witnesses have given evidence against the appellant that he used to demand the money and harass Mamta for not fulfilling such demand. None of them has admitted the defence that appellant used to demand such money for starting the business. ( 24. ) On appreciation of their evidence it is manifestly clear that though the dowry was not settled at the time of marriage but thereafter he started demanding cash of Rs.15,000/-. Demand was not disputed by the appellant. However, his defence is that he demanded the money for starting the business but none of the witnesses has admitted his defence and he has not produced any evidence to prove this fact. The evidence of Badri Prasad Gupta that appellant warned that in case of not providing Rs.15,000/- he will not come to take his wife back to in-laws house clearly indicates that this demand was in the form of dowry and not by way of request for starting the business. The letters Articles A, B, C and D were said to have been written either by Mamta or by Ramakant younger brother of this appellant at the instance of appellant or his father. ( 25. ) Ramakant Gupta (PW-13) who is the brother of this appellant has deposed that Rs.15,000/- were settled at the time of marriage. Out of it Rs.7000 to 8000/- were given at the time of marriage. The assurance was given to provide the rest amount later on therefore, he wrote a letter to provide such money for business at the instance of his father. ( 26. ) The evidence of Rama Kant Gupta also establishes the fact that the demand of money was made. As observed earlier this demand was not made for starting business but in the form of demand. ( 27. ( 26. ) The evidence of Rama Kant Gupta also establishes the fact that the demand of money was made. As observed earlier this demand was not made for starting business but in the form of demand. ( 27. ) The letters written by Mamta and by Ramakant brother of this appellant have been proved by the evidence of H.S. Tomar (PW-36) Hand Writing Expert. These letters were seized vide seizure memo Ex.P-17 and were available before the court below who had an opportunity to peruse and consider the same and took the view that dowry demand was made. These letters were sent in a packet to this Court but unfortunately these letters have been mutilated by the termites and the attempts were made to reconstruct the record but in vain. Now the position is that no part of these letters is legible. But there is sufficient evidence in this regard that the appellant demanded dowry and subjected Mamta to cruelty for not fulfilling such demand. She was so harassed that she determined to end her life along with her daughter Ruby aged 2 years by burning. Thus two lives have gone for the sake of dowry. ( 28. ) In the case of State of Rajasthan vs. Jaggu Ram, (2008) 12 SCC 51 the Apex Court has held thus: "10. At the outset we consider it proper to mention that with a view to curb the growing menace of dowry deaths, Parliament amended the Penal Code and the Evidence Act and inserted Sections 304-B and 113-B respectively in the two statutes. This was done keeping in view the recommendations made by the Law Commission of India in its 21st Report. Section 304-B(l) IPC lays down that where the death of a woman is caused by 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 appearing below sub-section (1) of Section 3 04-B declares that for the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. Explanation appearing below sub-section (1) of Section 3 04-B declares that for the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. Sub-section (2) of Section 304-B prescribes the minimum punishment for dowry death as seven years which can be extended up to imprisonment for life. 11. The ingredients necessary for the application of Section 304-B IPC are: 1. that the death of a woman has been caused by burns or bodily injury or occurs otherwise than under normal circumstances; 2. that such death has been caused or has occurred within seven years of her marriage; and 3. that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry. 12. Section 113-B of the Evidence Act lays down that if soon before her death a woman is subjected to cruelty or harassment for, or in connection with any demand for dowry by the person who is accused of causing her death then the court shall presume that such person has caused the dowry death. The presumption under Section 113-B is a presumption of law and once the prosecution establishes the essential ingredients mentioned therein it becomes the duty of the court to raise a resumption that the accused caused the dowry death. 13. A conjoint reading of Section 304-B IPC and Section 113-B, Evidence Act shows that in order to prove the charge of dowry death, prosecution has to establish that the victim died within 7 years of marriage and she was subjected to cruelty or harassment soon before her death and such cruelty or harassment was. for dowry. The expression "soon before her death" has not been defined in either of the statutes. Therefore, in each case the court has to analyse the fats and circumstances leading to the death of the victim and decide whether there is any proximate connection between the demand of dowry, the act of cruelty or harassment and the death- State of A.P. v. Raj Gopal Asawa, Arun Garg v. State Punjab, Kaliyaperumal v. State of T.N. Kamesh Panjiyar v. State of Bihar and Ram Badan Sharma v. State of Bihar. " ( 29. " ( 29. ) In the light of the aforesaid pronouncement and in the facts and circumstances of this case it is established that Mamta died within 7 years of her marriage in the abnormal circumstances by burn injuries in her in-laws house. She was subjected to cruelty. Being harassed she ended her life along with her two years daughter Ruby. The conduct of the appellant is highly suspicious because he even did not inform the incident to the police or to the parents of deceased. The circumstances suggest that being harassed by persistent and consistent demand of dowry which she was not in a position to fulfill she determined to end her life. The prosecution has proved the guilt beyond reasonable doubt against the appellant. The court below has dealt with every aspect in great detail and has rightly arrived at the conclusion regarding the guilt of appellant. There is no infirmity, illegality, impropriety or perversity in such finding hence the same is hereby affirmed.. Looking to the gravity of offence and keeping in view that Mamta and her daughter Ruby have died the sentence awarded by the trial Court is not excessive .and hence it does not call for any interference. The appeal is meritless and deserves to be dismissed. ( 30. ) Consequently, the appeal fails and is dismissed accordingly. The conviction and sentence passed by the court below are hereby affirmed. The appellant is on bail. His bail bonds are cancelled. He be directed to surrender before C.J.M. Dindori on 18.01.2010 for serving out the remaining part of the sentence. Appeal dismissed.