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Madhya Pradesh High Court · body

2009 DIGILAW 527 (MP)

8addu @ Jham Singh v. State of M. P.

2009-04-21

RAKESH SAKSENA

body2009
JUDGMENT 1. Appellant has filed this appeal against the judgment dated 5th January, 2005 passed by the I Additional Sessions Judge, Jabalpur in Sessions Trial No.34/2003 convicting him under sections 498A and 304B of the Indian Penal Code and section 4 of the Dowry Prohibition Act and sentencing him to rigorous imprisonment for 3 years with fine ofRs.1,000/-, rigorous imprisonment for 10 years and rigorous imprisonment for 6 months with fine of Rs. 7 ,000/-, on each count, respectively. 2. According to the prosecution, Batko Bai (deceased) was married to appellant two years prior to the occurrence. Rs.30,000/- cash and other articles worth Rs.70,000/- were given in the dowry. After about 6 months of the marriage, accused persons namely Baddu @ Jham Singh (husband), Smt. Sanni Bai @ Channi Bai (mother-in-law), Giran Singh (father-in-law) and Ballu @ Bhagwat Singh (younger brother of Baddu) started harassing Batko Bai for not meeting the demand of Rs.10,000/- cash and a Suzuki motorcycle. Though Chanda Bai (PW2), mother of deceased, made endeavours to make the accused persons understand to keep her happy but all in vain. On the occasion of "Raksha Bandhan" when N anhe Singh (PW4), brother of deceased, went to the house of accused persons for fetching his sister, they again raised the demand of Rs.1O,OOO/- and did not permit her to go. On 16.10.2002, Batko Bai suffered bum injuries under suspicious circumstances. She was taken to Medical College, Jabalpur for the treatment but on the same day she died of bum injuries. On the report made by the ward boy to Police Station, Garha, marg intimation EX.P-2 was recorded. After inquest, dead body of Batko Bai was sent for post-morttm examination. On 17.10.2002, Dr. N.N. Kurkele (PW7) and Dr. Smt. Totode performed post-mortem examination and found 90% bum injuries on her body. The said injuries were ante-mortem in nature. Post-mortem examination report is EX.P-8A. 3. On 18.10.2002, Smt. Chanda Bai (PW2) submitted a written report EX.P-2 to police. After requisite investigation, charge-sheet was filed and case was committed for trial. 4. Before the trial Court, charges under sections 498A, 304B of the Indian Penal Code and section 4 of the Dowry Prohibition Act were framed. 5. All the accused persons abjured their guilt and pleaded false implication. They, however, did not adduce any evidence in their defence. After requisite investigation, charge-sheet was filed and case was committed for trial. 4. Before the trial Court, charges under sections 498A, 304B of the Indian Penal Code and section 4 of the Dowry Prohibition Act were framed. 5. All the accused persons abjured their guilt and pleaded false implication. They, however, did not adduce any evidence in their defence. Trial Court relying mainly on the evidence of Chanda Bai (PW2), Mullu Singh (PW3) and Nanhe Singh (PW4) held the appellant guilty and convicted and sentenced him as mentioned above. However, finding the evidence insufficient to bring home the charge against other accused persons, acquitted them. 6. Learned counsel for the appellant contended that the evidence of Chanda Bai (PW2), Mullu Singh (PW3) and Nanhe Singh (PW4), who are respectively the mother and brothers of Batko Bai, in regard to the cruelty allegedly meted out to her is unreliable. Their evidence is discrepant and contradictory. They made several omissions and contradictions in respect of the material aspects of the prosecution story. According to him, death of Batko Bai was merely an accident while cooking on the stove. There was absolutely no reliable evidence to show that any act of cruelty was committed or any demand was made soon before her death. On the other hand, learned counsel for the State justified the judgment of the Court below by adopting the reasonings of the learned trial Judge. 7. I have carefully considered the submissions made by learned counsel of both the sides and perused the impugned judgment and the evidence on record. 8. Apex Court in the case of Vidhya Devi and another v. State of Haryana [ (2004)9 SCC 476 ], observed that:" 6. ....It may be seen that section 304B IPC was mainly introduced having regard to the increasing menace of dowry deaths by burns and bodily injury or otherwise than under normal circumstances and the insufficiency of the existing provisions of law to combat them effectively and also with the laudable object of curbing the menace of dowry deaths with a firm hand. In order to attract section 304B IPC the Court must be satisfied that (i) the death of a woman must have been caused by burns of bodily injury or otherwise than under normal circumstances; (ii) such death must have occurred within seven years of her marriage; (Hi) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by the relatives of her husband; (iv) such cruelty or harassment must be for or in connection with demand for dowry; and (v) such cruelty or harassment is shown to have been meted out to the woman soon before her death meaning thereby the proximity in point of time and not too remote or stale in point of time and relevance. The legislature has also taken care to enact a statutory presumption as to dowry death by inserting section 113B to the Indian Evidence Act, 1872 to the extent that 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." In Kaliyaperumal and another v. State of Tamilnadu [ (2004)9 SCC 157 ], apex Court explained the meaning of the expression "soon before" as used in section 304B of IPC and section 113B of the Evidence Act holding that: " The expression "soon before" is very relevant where section l13B of the Evidence Act and section 304B are pressed into service. The 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 in by the prosecution. "Soon before" is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. Evidence in that regard has to be led in by the prosecution. "Soon before" is a relative term and it would depend upon circumstances of each case and no straitjacket 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 brings 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 section 113B.The expression "soon before her death" used in the substantive section 304B and section l13B 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. The determination of the period which an come within the terms "soon before" is left to be determined by he Courts, depending upon facts and circumstances of each case. office, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty r harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident f cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence." , 9.It is an admitted position in the case that Smt.Batko Bai (deceased) married to appellant two years before her death, which took place on !.2002. From the evidence of Chanda Bai (PW2), Mullu Singh (PW3) lanhe Singh (PW4), Sushil Ranjan Singh (PWlO), SDOP and Dr.Kukrele (PW7), it has been amply established that Batko Bai had If burn injuries in the house of appellant. Thus, it has been proved prosecution evidence that deceased, who was married to appellant, 'n the house of her husband, otherwise than under normal lstances within 7 years of her marriage., 10.The question that now remains to be decided is whether deceased decided to cruelty or harassment by the appellant for, or in connection any demand for dowry soon before her death. 11.Chanda Bai (PW2), mother of deceased, stated that after the marriage, Batko Bai went to her in-laws house. 11.Chanda Bai (PW2), mother of deceased, stated that after the marriage, Batko Bai went to her in-laws house. She came to her house Every time she told that her mother-in-law complained to her that not get sufficient dowry in marriage. She also told that other accused , including the appellant asked her to bring a Suzuki motorcycle 10,000/- cash. They used to taunt and also maltreat her. When her lhe Singh went to fetch Batko Bai from her husband's house, they ;andher and appellant told him that he should first bring motorcycle 10,000/-. In the month of "Sawan" her another son Mullu Singh I gone to fetch her but they did not send her. In the same year in the of "Kuar" she received information that Batko was burnt. In ;-examination, this witness was confronted with the report Ex.P- 2 lodged by her, wherein the facts that her son Mullu Singh went to fetch Batko Bai in the month of "Sawan"and that she was harassed by the accused persons were found missing. The fact that appellant used to beat Batko Bai was also not found mentioned in EX.P-2. 12. Mullu Singh (PW3) stated that Batko Bai did not tell him that appellant demanded the motorcycle and Rs.10,000/- cash. According to .him, she had disclosed this fact only to his mother. According to him, in the month of "Sawan" he had gone to fetch Batko Bai from her in-laws house but they did not send her and instead demanded money and the motorcycle. At that time, he did not meet Batko Bai. In para 8 of his statement, he admitted that after passing of 6 months after the marriage Batko Bai did not tell him that she had any problem in her in-laws house.In para 6, he admitted that within the period of 6 months after the marriage Batko Bai did not make any complaint about the behaviour of anybody in her in laws house, on the contrary, she said that she was living happily. It is important to note that Nanhe Singh (PW4) also stated that after about 6 months of the marriage in the month of "Sawan" he had gone to the house of Batko Bai and then appellant had told him that first he should bring a motorcycle and Rs.10,000/- cash then only his sister would be sent with him. It is important to note that Nanhe Singh (PW4) also stated that after about 6 months of the marriage in the month of "Sawan" he had gone to the house of Batko Bai and then appellant had told him that first he should bring a motorcycle and Rs.10,000/- cash then only his sister would be sent with him. Neither Mullu Singh nor Nanhe Singh stated that they had gone together to fetch Batko Bai from her in laws house in the month of "Sawan". This throws a cloud of suspicion on their evidence and indicates that either of them or both of them were telling a lie. 13. Prosecution evidence on the point as to when the demand was made, is discrepant. According to Chanda Bai (PW2), Batko Bai came to her house three times just after the marriage and told to her that appellant was demanding motorcycle and money, whereas according to Mullu Singh (PW3), until after 6 months Batko Bai did not make any complaint about any problem or harassment in her in laws house and that she lived there happily. 14. From the evidence of the aforesaid three witnesses, in my opinion, it is though established that the deceased died in the house of appellant within seven years of her marriage and a demand of Suzuki motorcycle and Rs.10.000/- cash was made from her, yet it has not been satisfactorily established by the prosecution evidence that the said demand was made and on not meeting of that demand she was subjected to any cruelty "soon before" her death. It is true that no straitjacket formula can be laid down as to what would constitue the period of "soon before the occurrence", it has to be determined by the Court, depending upon the facts and circumstances of each case. On closely scrutinizing the evidence of the prosecution witnesses, I am of the opinion that there appears lack of existence of a proximate and live link between the effect of cruelty based on dowry demand and the death of Batko Bai. Provision of section 113B of the Evidence Act also cannot be pressed into use since the prosecution has failed to show that soon before her death, deceased had been subjected to cruelty or harassment for or in connection with any demand for dowry, by the appellant. 15. Provision of section 113B of the Evidence Act also cannot be pressed into use since the prosecution has failed to show that soon before her death, deceased had been subjected to cruelty or harassment for or in connection with any demand for dowry, by the appellant. 15. Taking into consideration all the above circumstances, I am of the view that the appellant has been rightly convicted for the offence under section 498A of the Indian Penal Code and section 4 of the Dowry Prohibition Act. Accordingly, his conviction and sentences for these offences are affirmed. However, his conviction under section 304B of the Indian Penal Code and sentence of rigorous imprisonment for 10 years is set aside. 16. Appeal partly allowed.