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Madhya Pradesh High Court · body

2009 DIGILAW 562 (MP)

Gulab Singh v. State of M. P.

2009-04-28

R.S GARG

body2009
JUDGMENT (Oral) 1. The appellants Gulab Singh and Smt. Durga Devi, father-in-law and mother-in-law of deceased Gaitri have filed this appeal being aggrieved by the judgment dated 6.1.2000 passed in ST No.121/96 by the learned First Additional Sessions Judge, Sidhi, convicting the appellants under section 498A and section 304B of IPC, sentencing them to undergo RI for two years and pay fine of Rs.500/- in default of payment of fine to undergo RI for 3 months, under the first count and to undergo RI for 7 years under the second count. 2. The prosecution case in brief is that Gaitri was married to Kamal Bhan Singh son of the present appellants. The marriage was performed somewhere in the summer of 1995 and she had died within one year on 31.1.1996. It is not disputed before me that Kamal Bhan Singh was also prosecuted alongwith the present appellants but the trial Court vide its order dated 22.7.1998 directed that said Kamal Bhan Singh being a juvenile should be dealt with by the juvenile Court. It is also not disputed before me that one of the appellants Smt. Durga Devi has died during the pendency of the appeal. 3. The prosecution case further is that within the period between marriage and the death, the deceased had come to her parental house on three occasions and she had informed her parents and other relations that she was being ill-treated and harassed in connection with demand of dowry and she was facing danger to her life and limb. According to the prosecution the deceased conceived after the marriage and all of sudden they received information that the deceased had expired. The prosecution witnesses reached the house of accused persons and found that the body of the deceased was blackened, she had vomited and according to the statement of one of the witnesses, she had asked that the body be not cremated. Before her elder brother could come, the body was cremated and thereafter ashes were thrown in the river. A written report was made by Jaan Bahadur of Police Station Amiliya. After receiving the report, the prosecution agency entered in the arena of investigation, it recorded statements of the witnesses and after collecting other materials filed the charge-sheet. 4. Before her elder brother could come, the body was cremated and thereafter ashes were thrown in the river. A written report was made by Jaan Bahadur of Police Station Amiliya. After receiving the report, the prosecution agency entered in the arena of investigation, it recorded statements of the witnesses and after collecting other materials filed the charge-sheet. 4. As observed above, accused Kamal Bhan Singh was directed to be tried by the juvenile Court but, however, the present appellants were tried by the Court below and were convicted and sentenced as referred to above. 5. Shri Datt learned counsel for the appellants submitted that for purposes of section 304B the prosecution is required to establish each and every ingredient which constitute an offence punishable under section 304B and if any constituent is missing then in absence of a complete chain the accused cannot be convicted. 6. After taking me through the evidence it was submitted by him that some of the prosecution witnesses were saying that the dead body of the deceased was black in colour while other witness PW3 Bhagwanti, was stating that deceased had vomited, her lips only were black, while rest of the body was not and thereafter she died. It is submitted that death could be for any reason but the prosecution has failed in proving that the death was unnatural. 7. It is also submitted by him that there is no evidence on the record that the deceased soon before her death was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with demand of dowry. It is also submitted by him that if the prosecution evidence is taken to be absolute gospel truth then it would only prove that soon after the marriage certain ill-remarks were made against the deceased but that would not mean that what was done soon after the marriage would become soon before the death. He also submitted that in the case like present if independent witnesses are not examined and the statements of the prosecution witnesses suffer with contradictions, vice of omissions amounting to contradictions and the statements cannot be reconciled then the benefit should be given to the accused. He also submitted that in the case like present if independent witnesses are not examined and the statements of the prosecution witnesses suffer with contradictions, vice of omissions amounting to contradictions and the statements cannot be reconciled then the benefit should be given to the accused. It was also submitted that there are ordinary wear and tear are in the life and the threats by somebody in the family to a woman that if she does not bring some gifts or dowry from her family then the husband would remarry would only be a civil cruelty and not criminal. 8. In reply, Shri T.K. Modh, learned counsel for the State submitted that from the nature of the death, condition of the body and the conduct of the prosecution witnesses it would clearly appear that the deceased died unnatural death. 9. It is submitted by him that if brother of the deceased was asking the prosecution witnesses not to cremate the body then cremation of the body would simply show that the deceased had died on unnatural death. It is also submitted by him that from the statements of prosecution witnesses it would clearly appear that the threats were being extended to the deceased and she was even otherwise physically and mentally hurt and as the action of the accused persons was punishable under section 498A of IPC and as the death was unnatural in nature and that too within 7 years of the marriage the accused persons have been rightly convicted. It is also submitted by him that from the evidence available on the record it would clearly appear that the deceased was treated with cruelty in connection with demand of dowry soon before the death and that present is not a case where independent witnesses were required to be examined because the statements of the prosecution witnesses are reliable. 10. So far as the condition of dead body is concerned, the statements have been made by Jaan Bahadur PW6. He has said that the body was black in colour and some black water was drooling out from the mouth of the deceased. He has also stated that the face was black, the tongue was black and on his asking he was informed by accused Durga Devi that some herbal medicines with honey were administered to the deceased. 11. He has said that the body was black in colour and some black water was drooling out from the mouth of the deceased. He has also stated that the face was black, the tongue was black and on his asking he was informed by accused Durga Devi that some herbal medicines with honey were administered to the deceased. 11. PW3 Bhagwanti had also stated that she had gone to the house of the accused persons and when she looked at the deceased she found that the deceased was vomiting. She also stated that except the lips, rest of the body was not black. She thereafter stated that after the said vomiting, when she was trying to move Gaitri there was no reaction and she found that Gaitri had expired. With the statements of these two witnesses, this Court is unable to hold that the death was unnatural or was either because of administration of poison or for such other reason. 12. Section 304B clearly provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years and it is also proved before the Court that soon before her marriage there was demand of dowry and she was ill-treated in connection with demand of dowry then the Court shall presume that the death was a dowry death. In the present matter the prosecution failed in bringing on record that the death was either because of bums or because of bodily injury or was not under normal circumstances. If the death is because of burns or bodily injury or is not under the normal circumstances then only the Court can deem that the death was a dowry death. In the matter of Akula Ravinder and others v The State of Andhra Pradesh, reported in AIR 1991 SC 1142 , the Supreme Court has observed that if it is not proved to the satisfaction of the Court that the death was not in the natural circumstances then the accused would be entitled to be acquitted. 13. Taking into consideration the totality of the circumstances, I hold that the prosecution has failed in proving the commission of the offence by the accused, punishable under section 304B IPC. 14. 13. Taking into consideration the totality of the circumstances, I hold that the prosecution has failed in proving the commission of the offence by the accused, punishable under section 304B IPC. 14. So far as offence under section 498A is concerned, for proper appreciation of the arguments of the parties it is necessary to refer to the language of section 498A. Section 498A IPC reads as under : "498A. 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 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 death (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 an account of failure by her or any person related to her to meet such demand." 15. A fair reading and understanding of section 498A would show that whoever being the husband or the relative of the husband of a woman subjects such woman to cruelty then such person shall be punished. However, the explanation provides the meaning of cruelty. Clause (a) talks about the wilful conduct while clause (b) talks about the harassment of a woman. Clause (a) has nothing to do with clause (b) but clause (b) sometimes may overlap and the wilful conduct of the accused in making the demand may lead to inference that the accused was committing an offence as defined under clause (b) of section 498A. 16. Clause (a) has nothing to do with clause (b) but clause (b) sometimes may overlap and the wilful conduct of the accused in making the demand may lead to inference that the accused was committing an offence as defined under clause (b) of section 498A. 16. 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 or limb (whether mental or physical) to the woman if is taken to be cruelty then any action on the part of the husband or relatives of the husband in giving threat to a woman that if the demand of dowry is not met then the husband would re-marry or that woman would not be allowed to enter in the house or that sometime woman would be thrown out of the house, then such conduct is likely to cause grave injury to the mental health of the woman. In the Indian society when a woman marries, she snaps all her ties with the parents and according to the Indian culture starts living with the husband. If she finds absolute solace in the protection of the husband then she would be enjoying a good life but if the husband or the relatives of the husband make such statements which are likely to drive her crazy and when such statements have a permanent impact and effect then a woman is likely to lose her mental balance. The legislature while defining cruelty has very cautiously selected the words in relation to health by saying that it may be mental or physical health. 17. In the present case it has come on the record that the husband and his relatives were extending threats to the deceased and were also causing injury or danger to the mental health of the deceased with their wilful conduct. 18. In the present case, clause (b) of section 498A shall also be applicable because it has come on record that the deceased, on coming to her parental house, had informed number of persons that she was being harassed with a view to coerce her to meet any unlawful demand for any property or valuable security, etc. 19. 18. In the present case, clause (b) of section 498A shall also be applicable because it has come on record that the deceased, on coming to her parental house, had informed number of persons that she was being harassed with a view to coerce her to meet any unlawful demand for any property or valuable security, etc. 19. So far as the submission of learned counsel for the appellants that the independent witnesses ought to have been examined is concerned, it is to be observed that if the witnesses are motivated, partisan, interested or are aggrieved by the conduct of the accused persons and the Court in its prudence finds that it would not be safe to rely upon the statements of such witnesses then the Court to be on the safer side may call for some corroboration but in a case where the statements of the witnesses are unruffled flow of the river and the Court does not find any impediment in placing reliance upon the statement or does not find any grain of falsehood in the statement then the Court may rely upon the witnesses who are even otherwise relations of the deceased or the complainant. The rule is a rule of prudence, the rule is rule of appreciation of evidence and not a rule of law. 20. So far as the argument relating to the demand and its emptiness is concerned, this Court is unable to hold that the prosecution could not bring sufficient evidence on the record to connect the accused with the alleged crime. 21. True it is that the Court below has recorded some findings which cannot be approved but the fact still remains that there is evidence on the record to hold that the accused Durga Devi and Gulab Singh were rightly convicted for offence punishable under section 498A IPC. 22. As Durga Devi has already expired and her appeal has abated, no orders in her favour are required to be passed. Conviction of Gulab Singh under section 498A is maintained and the quantum of sentence is confirmed. 23. At this stage, Shri Datt submitted that accused Gulab has already undergone 2 years and one month jail sentence, therefore, his bail bonds be discharged. 24. Conviction of Gulab Singh under section 498A is maintained and the quantum of sentence is confirmed. 23. At this stage, Shri Datt submitted that accused Gulab has already undergone 2 years and one month jail sentence, therefore, his bail bonds be discharged. 24. In the opinion of this Court, appellant Gulab is required to appear before the CJM Sidhi to convince him that he has already undergone the period of sentence awarded to him. If learned CJM Sidhi finds that the accused has already undergone the period of sentence awarded to him, then he shall discharge the bail bonds and shall set the accused free but in case he finds that accused has not undergone the jail sentence awarded to him then he shall take the accused in custody and send him to jail to undergo the remaining sentence. The accused shall appear before the CJM Sidhi on 18.5.2009 alongwith a copy of this judgment enabling the learned CJM to know that what he is required to do. 25. The appeal is allowed to the extent indicated above.