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2010 DIGILAW 1214 (MP)

KANHAIYALAL s/o SITARAM GUPTA v. STATE OF M. P.

2010-12-07

M.A.SIDDIQUI, RAKESH SAKSENA

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JUDGMENT : RAKESH SAKSENA, J. 1. Appellants have filed this appeal against the judgment dated 12-11-2002, passed by Second Additional Judge to the Court of First Additional Sessions Judge, Sidhi, in Sessions Trial No. 101/2002, convicting them under sections 304-B and 498-A of the Indian Penal Code and sentencing them to imprisonment for life and rigorous imprisonment for three years with fine of Rs.5000/-, on each count respectively. In default of payment of fine, further rigorous imprisonment for six months. 2. In Short, the facts of the case are that Sangeeta Gupta (deceased) was married to appellant Kanhaiyalal on 31-5-2001. While living with her husband, in her nuptial home, she sustained burn injuries on 1-6-2002 and during the course of the treatment she died on 2-6-2002. On 2-6-2002, Premwati, mother of deceased Sangeeta, made a written report to Superintendent of police making allegations of demand of dowry and cruelty against the appellant/husband and mother-in-law. On the basis of aforesaid complaint, first information (Ex.P/11) was registered on 9-6-2002. According to aforesaid report, though Rs.51000/- were given to accused persons at the time of Tilak, but they further demanded a Hero Honda Motorcycle and on not meeting the said demand, subjected Sangeeta to cruelty. Under suspicious circumstances, Sangeeta suffered burn injuries on 1-6-2002. She was taken to District Hospital, Sidhi. After the death of Sangeeta on 2-6-2002, an intimation (Ex.P/5) was sent to Kotwali, Sidhi. After recording the Murg report (Ex.P/6), inquest proceedings were conducted and dead body of Sangeeta was sent for post-mortem examination. Dr. R. N. Arya (PW-2) conducted the post-mortem examination and found burn injuries on the face, chest, neck, hands and thighs of Sangeeta. The smell of kerosene was emanating. There were about 80% burns on the body. The cause of death of Sangeeta was shock due to burns. Post-mortem examination report is Ex.P/1. 3. During trial, appellants abjured their guilt and pleaded false implication. According to them, the marriage of appellant Kanhaiyalal was performed in a 'Sammelan' without any dowry. None of the appellants made any demand of motorcycle from the deceased or her family members. According to appellants, deceased was half mad. Therefore, she set fire herself. 4. Learned trial judge, relying upon the evidence of Sokhilal Gupta (PW-1), Premwati (PW-4), Dashrath Prasad Gupta (PW-5) and Koushal Kumar Gupta PW-6) held the appellants guilty and convicted and sentenced them as mentioned above. 5. According to appellants, deceased was half mad. Therefore, she set fire herself. 4. Learned trial judge, relying upon the evidence of Sokhilal Gupta (PW-1), Premwati (PW-4), Dashrath Prasad Gupta (PW-5) and Koushal Kumar Gupta PW-6) held the appellants guilty and convicted and sentenced them as mentioned above. 5. Aggrieved by the impugned judgment, appellants have preferred this appeal. 6. We have heard the learned counsel for the parties. 7. It was no longer disputed that deceased Sangeeta died of burn injuries. It is also reflected from the evidence of Dr. R. N. Arya (PW-2) that the dead body of deceased was brought to District Hospital, Sidhi and he had performed the post-mortem examination of the body. The scalp hair of the deceased were partially burnt. Smell of kerosene was present on partially burnt clothes and skin. Face, chest, neck, both hands and both thighs were burnt. Overall 80% extensive burn injuries were present on her body. Cause of death of deceased was hypo-volumic shock, which was due to extensive burns of first and second degree. The burns were ante-mortem in nature. Dr. R. N. Arya also placed on record his post-mortem report (Ex.P/1), which was written by Dr. Sandeep Bhalla. It was thus clearly evident that deceased Sangeeta died of burn injuries. 8. Learned counsel for the appellants, however, submitted that the trial Court gravely erred in placing implicit reliance on the evidence of Sokhilal (PW-1), Premwati (PW-4), Dashrath Prasad Gupta (PW-5) and Koushal Kumar Gupta (PW-6). Their evidence was discrepant and contradictory and did not inspire confidence. On the other hand, learned counsel for State justified and supported the judgment of trial Court. 9. To constitute an offence under section 304-B, the following essentials must be satisfied:- (i) The death of woman must have been caused by burn or bodily injury or otherwise than under normal circumstances; (ii) Such death must have occurred within 7 years of her marriage; (iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or a relative of her husband; (iv) Such cruelty or harassment must be for or in connection with demand of dowry. 10. Premwati (PW-4), Dashrath Prasad Gupta (PW-5) and Koushal Kumar Gupta (PW-6) respectively mother, maternal uncle and uncle of deceased categorically stated that deceased was married to appellant Kanhaiyalal in a 'Samudayik Vivah Sammellan' in the month of May, 2001. 10. Premwati (PW-4), Dashrath Prasad Gupta (PW-5) and Koushal Kumar Gupta (PW-6) respectively mother, maternal uncle and uncle of deceased categorically stated that deceased was married to appellant Kanhaiyalal in a 'Samudayik Vivah Sammellan' in the month of May, 2001. According to Dashrath Prasad (PW-5) and Koushal Kumar (PW-6) it was 31st May, 2001. The marriage was settled 15 days before the Sammelan and on the occasion of marriage Rs.51000/- cash was given to appellant Kanhaiyalal. Undisputedly deceased suffered burn injuries in her husband's house on 1-6-2002 and succumbed to her injuries on 2-6-2002. This fact was not disputed by the appellants also. Thus, it was amply established that death of deceased took place within 7 years of her marriage. 11. It was also not disputed by the appellants that deceased suffered burn injuries in their house. According to appellants, as stated by them in the statements recorded under section 313 of the Code of Criminal Procedure, none of them were present at the house when deceased got burnt. It was further evident from the evidence of Chandra Bali Singh (DW-1) and Narendra Kumar Singh (DW-2) that on 1-6-2002 deceased suffered burn injuries in the house of Kanhaiyalal. Dr. R. N. Arya (PW-2) also testified that on post-mortem examination of the body of deceased, he found 80% burns on her body. The injuries were ante-mortem in nature. Thus, it stood proved that the death of deceased had been caused by burns in her nuptial home within 7 years of her marriage. 12. Now the question before us is whether deceased was subjected to cruelty or harassment by the appellants soon before her death and in connection with demand of dowry. Premwati (PW-4) deposed that at the time of marriage Rs. 61,000/-, TV, cooler, ring and Almirah were demanded. She had given Rs. 61,000/- to Kanhaiyalal in the marriage Sammelan. After Sangeeta went to the house of Kanhaiyalal in village Harbado, she lived there for about 4 months. Thereafter, she came back to her house. According to her, when she came to her house, she informed that her husband and mother-in-law used to harass her. Kanhaiyalal used to quarrel with her and demand a motorcycle. He told that if the motorcycle was not given to him he will not call her back to his house. For about 4 months Sangeeta lived there with her. According to her, when she came to her house, she informed that her husband and mother-in-law used to harass her. Kanhaiyalal used to quarrel with her and demand a motorcycle. He told that if the motorcycle was not given to him he will not call her back to his house. For about 4 months Sangeeta lived there with her. However, after about 5 months, Kanhaiyalal took her to his house. After 4 months, again she came back to her house, then again she informed her that her husband was harassing and intimidating her for a motorcycle. After staying at her house for about two months, she was again taken to her husband's house. After about 15 days, she received information that Sangeeta was burnt. On 2-6-2002, she submitted a written complaint to Superintendent of Police saying that on not giving motorcycle in dowry appellants had burnt Sangeeta. It is true that in cross-examination this witness admitted that she got this complaint written by somebody, but the person who wrote the complaint did not talk to her and she did not know as to what was written in the application because she had simply put her thumb impression on it. In cross-examination, she further admitted that she did not give Rs.61,000/- to Kanhaiyalal at the time of marriage. It is true that there were some improvements in her statement, but they were not of such nature to discard her whole of the testimony. She remained firm on the point that whenever Sangeeta came to her house she told her that appellant Kanhaiyalal demanded a motorcycle and dowry and on not fulfilling the demand intimidated her. The evidence of Premwati (PW-4) stood corroborated from the evidence of Dashrath Gupta (PW-5), maternal uncle of the deceased and Koushal Kumar (PW-6), uncle of deceased. Dashrath Prasad Gupta (PW-5) stated that after marriage, while deceased came to his house, she told to him and his wife that on not giving motorcycle appellants used to manhandle her. Though in cross-examination he was confronted with his police statement (Ex.D/3) about the above fact, but on perusal of his police statement (Ex.D/3) it is seen that the fact that deceased told to him about her harassment for motorcycle was mentioned in the said statement. Though in cross-examination he was confronted with his police statement (Ex.D/3) about the above fact, but on perusal of his police statement (Ex.D/3) it is seen that the fact that deceased told to him about her harassment for motorcycle was mentioned in the said statement. Though Koushal Kumar Gupta (PW-6) reiterated that deceased was being harassed in her nuptial home for not meeting the demand of motorcycle, but he admitted that before recording of his statement, he went to the Court in early hours and consulted the private counsel engaged by appellants, who read over him the statement recorded in the charge-sheet and accordingly he gave statement before the Court. In our opinion, the evidence of this witness does not inspire confidence. 13. Sokhilal (PW-1), brother-in-law of deceased, stated that Kanhaiyalal demanded a motorcycle and a chain in dowry. Sangeeta had also disclosed this fact before him and his wife when they were at her mother's house. He, in very clear terms, stated that except appellant Kanhaiyalal, none else made any demand of dowry. He clarified that though Sangeeta did not talk to him, but he heard it when she told this fact to his wife. 14. Learned counsel for the appellants submitted that the evidence of Sokhilal (PW-1) created doubt about making of demand of dowry by appellant Mst. Duasiyabai, the mother-in-law since he made clear statement that except Kanhaiyalal no other person demanded dowry and that he was not declared hostile by the prosecution. 15. After carefully scanning and scrutinizing the evidence of aforesaid witnesses, we find that it has been established that appellant Kanhaiyalal made demand of motorcycle from deceased and on not meeting the said demand he intimidated the deceased. However, we find that the evidence in respect of demand of motorcycle or subjecting the deceased to harassment or cruelty against appellant Mst. Duasiyabai is vague. There is no specific or clinching evidence that she joined appellant Kanhaiyalal in meeting out any cruelty to deceased for making demand of motorcycle. We are unable to accept the arguments advanced by the learned counsel for the appellants that it was not established that the deceased was subjected to cruelty or harassment in connection with demand of motorcycle soon before her death. We are unable to accept the arguments advanced by the learned counsel for the appellants that it was not established that the deceased was subjected to cruelty or harassment in connection with demand of motorcycle soon before her death. It has come in the evidence of Sokhilal (PW-1) and Premwati (PW-4) that just after about 15 days, when deceased went to her husband's house, she suffered burn injuries, and just before going to her husband's house she had told to her mother Premwati about the demand and consequent harassment for not meeting the demand. 16. Placing reliance on Shamlal vs. State of Haryana, (1997) 9 SCC 759 , learned counsel for the appellants submitted that since there was no evidence on record that during 15 days before her death when deceased lived in her husband's house, she was subjected to any cruelty or harassment in connection of demand of dowry, therefore it cannot be held that she was subjected to cruelty soon before her death. In our opinion, the facts of the case of Shamlal (supra) were different. In that case, an attempt was made to patch up between two sides for which a Panchayat was held in which it was resolved that the deceased would go back to her nuptial home pursuant to which she was taken by her husband to his house. This happened about 10 to 15 days prior to the occurrence. There was nothing on record to show that she was either treated to cruelty or harassment with the demand of dowry during the period of her having been taken to parental home and tragic end. In the present case, there had been no patch up or any Panchayat between the two parties. No assurance was given by the husband for giving up the demand of motorcycle and there was no evidence that dispute stood resolved. In our opinion, mere lapse of some time by itself would not provide any defence to accused, if the course of conduct relating to cruelty or harassment in connection with demand of dowry existed. In Baldev Singh vs. State of Punjab, AIR 2009 SC 913 Apex Court held that : "The expression 'soon before her death' used in the substantive section 304-B, Indian Penal Code and section 113-B of the Evidence Act is present with the idea of proximity test. In Baldev Singh vs. State of Punjab, AIR 2009 SC 913 Apex Court held that : "The expression 'soon before her death' used in the substantive section 304-B, Indian Penal Code and section 113-B 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." In Thakkan Jha vs. State of Bihar, (2004) 13 SCC 348 in relation to words 'soon before' it was observed that : "The expression is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time limit. The expression is present with the idea of proximity test. It cannot be said that the term 'soon before' is synonymous with the term 'immediately before'." Section 113-B of the Evidence Act provides as under : "113-B. Presumption as to dowry death.- 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." 17. After bestowing our anxious consideration to the submissions made by the learned counsel for the appellants and having gone through the entire evidence on record in the light of above legal propositions, we find that it has been established that appellant Kanhaiyalal caused dowry death of his wife Sangeeta. The trial Court committed no error in holding him guilty of the offence under section 304-B as well as section 498-A of the Indian Penal Code. However, in our opinion, trial Court misappreciated the evidence in respect to appellant Mst. Duasiyabai. Accordingly, the conviction of appellant No. 1 Kanhaiyalal under section 304-B and 498-A of the Indian Penal Code is affirmed. However, the conviction of appellant No. 2 Mst. Duasiyabai on both the counts is set aside. She is acquitted of both the charges. Appellant Mst. Duasiyabai is reported to be on bail. Her bail bond and surety bond stands discharged. 18. On the question of sentence of appellant Kanhaiyalal, learned counsel for the appellants submitted that in the circumstances of the case trial Court was not justified in awarding the maximum sentence provided under law. She is acquitted of both the charges. Appellant Mst. Duasiyabai is reported to be on bail. Her bail bond and surety bond stands discharged. 18. On the question of sentence of appellant Kanhaiyalal, learned counsel for the appellants submitted that in the circumstances of the case trial Court was not justified in awarding the maximum sentence provided under law. It was not a case of meeting out of extreme cruelty to deceased. Appellant is in jail since 9-6-2002. Thus, he has already remained in jail for a period of about 8 years and 5 months. His sentence under section 304-B of the Indian Penal Code deserves to be reduced to the period of sentence he has already undergone. We find substance in the submission made by the learned counsel for the appellants. Accordingly, the sentence of appellant Kanhaiyalal under section 304-B of the Indian Penal Code is reduced from the imprisonment for life to the period of sentence already undergone by him. The sentence awarded to him under section 498-A of the Indian Penal Code is affirmed. Both the jail sentences shall run concurrent. 19. Appeal partly allowed.