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Madhya Pradesh High Court · body

2011 DIGILAW 730 (MP)

Ashok Kumar v. State of M. P.

2011-07-06

G.S.SOLANKI

body2011
JUDGMENT G.S. Solanki, J. 1. The appeal has been preferred by appellant being aggrieved by judgment dated 30.11.1995 passed by First Additional Sessions Judge, Murwara (Katni) in S.T. No. 5/88 whereby the appellant has been convicted under section 304B, 498A of IPC and sentenced to R.I. for 7 years and R.I. for 2 years & fine of Rs. 2000/- with default stipulation. 2. The prosecution case, in short, is that marriage of appellant Ashok Kumar was solemnized-with Rita Bai on the eve of Basant Panchmi in the year 1984. On 27.8.1987 she was admitted in Government Hospital, Katni in burnt condition. Dr. O.P.Shrivastava admitted her and sent a report (Ex.P-4) to the Police Station. During the treatment, she succumbed to the burn injuries. Investigating Officer Surendra Singh (PW-17) prepared Panchnama (Ex.P-17), dead body of deceased was sent for post mortem. Two stoves, a lamp, burnt pieces of Saree, Mangalsutra and match box were seized from the Kitchen, seizure memo (Ex.P-18) was prepared. 3. Technical Officer Dr. Subhash Pathak (P W-7) inspected the spot and prepared report (Ex.P-10). Dr. A.S.Thakur (PW-13) performed autopsy and opined that she died by shock due to extensive burn injuries (98%). He prepared post mortem report (Ex.P-8). 4. After usual investigation, appellant along with the co-accused persons was charge sheeted before Additional Chief Judicial Magistrate, Katni, who committed the case to the Court of Sessions. Additional Sessions Judge, Murwara (Katni) framed the charges under sections 498A, 304B of IPC against the appellant and co-accused. 5. The appellant abjured the guilt and pleaded false implication. Dhanna Lal Bakawle (DW-1) was examined as defence witness. 6. On appraisal of evidence on record, learned Additional Sessions Judge, though acquitted the co-accused persons however, appellant has been convicted and sentenced as mentioned hereinabove, hence this appeal. 7. Learned counsel for the appellant has submitted that the trial Court has failed to appreciate the evidence on record in its proper perspective. He has further submitted that during investigation Dhanna Lal Bakawle (DW-1) recorded the dying declaration of deceased in which she specifically stated that she burnt accidentally during preparation of food. Counsel has further submitted that since dying declaration was recorded without any undue influence, therefore, the trial Court committed illegality in disbelieving the same. He has further submitted that during investigation Dhanna Lal Bakawle (DW-1) recorded the dying declaration of deceased in which she specifically stated that she burnt accidentally during preparation of food. Counsel has further submitted that since dying declaration was recorded without any undue influence, therefore, the trial Court committed illegality in disbelieving the same. He further submitted that there are number of letters written between appellant and family members of deceased but in those letters fact of cruelty or demand of dowry was not mentioned. Counsel has prayed for setting aside the impugned judgment and for acquittal of the accused. 8. Learned counsel for the State has supported the judgment and justified the finding recorded by the trial Court. 9. I have perused the impugned judgment, evidence and other material on record. It is undisputed that deceased died within 7 years of her marriage due to burning. As per prosecution she committed suicide, however, as per defence she burnt accidentally. The trial Court placed reliance on the statements of Dr. Subhash Pathak (PW-7), Dr. Vasudeo (PW-1) and Dr. Ramesh (PW-2) and recorded finding that Rita committed suicide and discarded the evidence regarding dying declaration. 10. On careful scanning of statements of Dr. Vasudeo (PW-1) and Dr. Ramesh (PW-2), it reveals that Dr. Vasudeo is the son of landlord of appellant. It is admitted by Dr. Vasudeo that litigation in relation to eviction matter was fought upto the High Court. He also admitted that two other criminal cases were registered against him on the report of Triveni Bai, mother of appellant. In these circumstances, Vasudeo (PW-1) cannot be said to be an independent witness. Dr. Ramesh (PW-2) neighbour of appellant deposed that on listening hue and cry, he rushed towards the room where Rita was burning. A family member tried to extinguish the fire. Ramkumar, brother-in-law of Rita was saying Bhabhi tumne yeh kya kar liya ? 11. From the evidence of aforesaid two witnesses nothing could not deduced except the fact that Dr. Ramesh (PW-2) saw that Rita was burning and a family member tried to extinguish the fire. Dr. Subhash Pathak (PW-7) deposed that he inspected the place of incident on 27.8.1987, which is situated at Sawarkar Ward, Nai Basti, Katni. On his direction seizure was also made. List of seized articles was annexed with his report (Ex.P-10). No doubt Surendra Singh (PW-17) admitted that Dr. Dr. Subhash Pathak (PW-7) deposed that he inspected the place of incident on 27.8.1987, which is situated at Sawarkar Ward, Nai Basti, Katni. On his direction seizure was also made. List of seized articles was annexed with his report (Ex.P-10). No doubt Surendra Singh (PW-17) admitted that Dr. Subhash Pathak inspected the place of incident along with him but he specifically deposed that report (Ex.P-10/20) was not prepared before him. It means report was not prepared on the spot and in other words, it was prepared afterwards. It is well established principle of law that report prepared by the Investigating Officer is a corroborative piece of evidence, that can be used to corroborate the statement of Officer, who prepared it but unfortunately, in the instant case Dr. Subhash Pathak (PW-7) deposed nothing in regard to factual position seen by him at the time of inspection. He simply stated that he inspected the place of incident, some material were seized on his direction and list of the same is annexed to (Ex. P-10). In these circumstance, in my opinion, the trial Court committed illegality in accepting report (Ex.P-10) as a substantive piece of evidence. 12. Dhanna Lal Bakawle (DW-1) deposed that on 29.8.1987 he recorded dying declaration of Rita, who stated that she burnt by stove at the time of preparing the food. In his cross examination, he specifically stated that at the time of recording of dying declaration, none of the family members of Rita were present. Dr. O.P.Shrivastava (PW-3) treated the deceased at the first instance, he deposed in his cross-examination Para-4 that Rita informed him that she burnt at the time of preparing the food due to flaring up of stove. When he asked her regarding smell of Kerosene, she stated that a Chimti was fallen on her at the time when someone was covering her by blankate. Though trial Court discarded this part of the evidence on the basis of other circumstances, but trial Court lost sight of the fact that Dr. O.P.Shrivastava is a prosecution witness and prosecution had not declared him hostile and has not challenged the aforesaid part of his testimony, thus, this part of the evidence is binding on the prosecution as held by the Apex Court in Javed Masud and Another Vs. State of Rajasthan AIR 2010 SC 979 . 13. On careful scrutiny of statement of Dr. State of Rajasthan AIR 2010 SC 979 . 13. On careful scrutiny of statement of Dr. O.P.Shrivastava, it reveals that he wrote on Tehrir (Ex.P-5) that dying declaration of injured be recorded. Dying declaration of deceased is (Ex.P-6). Since Dhanna Lal Bakawle (DW-1), Nayab Tehsildar and Dr. O.P.Shrivastava, are the Government Servant and are independent witnesses, nothing could be brought out in their cross examination as to disbelieve them, thus I am of the view that the trial Court committed illegality in not placing the reliance on the testimony of aforesaid witnesses. In my opinion, from the evidence of aforesaid witnesses, the only inference which can be drawn is that deceased died accidentally due to burning and prosecution has failed to prove the fact that Rita committed suicide. 14. Now coming to the question whether deceased was subjected to cruelty or harassment by appellant in connection with demand of dowry; Smt. Sushila Tiwari (PW-9), mother of deceased deposed that when Rita came second time to her parental house, she told that her husband, mother in law and brother in law asked her to tell her parents to transfer the land and house on the husband of Rita, other wise they would be killed. Kumad Tiwari (PW-10) deposed nothing regarding demand of dowry. Sheela (PW-12) sister in law of deceased also stated that when she was returning with Rita from Katni, then appellant told Rita to tell her father to transfer the land and house on his name otherwise he will be killed by him, in cross-examination. She further stated that appellant Ashok wanted a share in the property of father of deceased Rita. Suresh (PW-15), brother of deceased deposed nothing about demand of land, he only deposed about the omnibus statement for demand of dowry. Ashok Kumar (PW-14) deposed nothing about demand of dowry. 15. I have gone through the communications (Ex.D-4 to D-13) written to Ashok by deceased Rita, her brother in law and other family members, but in none of these letters fact of demand of dowry was found place. On careful scrutiny of the aforesaid evidence on record, it reveals that appellant occasionally expressed his desire to get the share in the property of father of deceased Rita. Except this fact, there is only omnibus statement regarding demand of dowry, in these circumstances fact of demand of dowry cannot be said to be proved. 16. On careful scrutiny of the aforesaid evidence on record, it reveals that appellant occasionally expressed his desire to get the share in the property of father of deceased Rita. Except this fact, there is only omnibus statement regarding demand of dowry, in these circumstances fact of demand of dowry cannot be said to be proved. 16. As discussed above that Rita died accidental death, hence provision of section 306 cannot be invoked in this case. 17. Coming to the question of harassment of Rita within the meaning of Section 498A of IPC committed by the appellant; Kumud (PW-10) and Sheela Tiwari (PW-12), sister in law of deceased stated that at the time of marriage of younger sister of Rita when Rita was at her parental house, appellant abused her on the point of preparation of tea and also assaulted her. She was saved by Kumud (PW-10). It also reveals from the evidence of Kumud (PW-10) that Rita told her regarding illicit relations of appellant with Anju and Shobha. When Rita tried to stop this relationship, appellant used to beat her. This fact finds further corroboration from the evidence of Meenaxi (PW-11), friend of deceased Rita. She deposed that Rita wrote a letter (Ex.P-12) to her and told her that her husband used to harass and beat her. On perusal of (Ex.P-12), it reveals that deceased was nervous due to misbehaviour and harassment of appellant. Aforesaid evidence also finds support from the evidence of Suresh Kumar, brother of deceased. 18. In these circumstances, it is proved on record that behaviour of appellant with deceased Rita was aggressive and appellant humiliated and assaulted her in front of near relatives like her sister in laws. It is also proved on record that deceased suspected the appellant and tried to stop his illicit relationships with other ladies, then also she was beaten by the appellant, thus it is proved on record that deceased was subjected to cruelty by appellant within the meaning of Section 498A of IPC. 19. Learned counsel for the appellant has alternatively submitted that appellant remained in jail for about 1 year and 10 days, ends of justice would be met if he is sentenced for the period already undergone and fine. 20. 19. Learned counsel for the appellant has alternatively submitted that appellant remained in jail for about 1 year and 10 days, ends of justice would be met if he is sentenced for the period already undergone and fine. 20. The incident took place in the year 1987, 24 years have lapsed by now, in the facts and circumstances of the case, in my opinion, the ends of justice would be met if appellant is sentenced for the period already undergone and fine of Rs. 5000/-. 21. In the result, the appeal is partly allowed. Conviction of the appellant recorded under section 304B of IPC is liable to be set aside, same is hereby set aside. Appellant is acquitted to the charges under section 304B of IPC, however, conviction of the appellant under section 498A of IPC is hereby affirmed. Sentence recorded by the trial Court is reduced to the period already undergone i.e. 1 year and 10 days and fine of Rs. 5000/-, in default of payment of fine he has to undergo further S.I. for one month. 22. Appellant is on bail, his bail bond and surety bond stand discharged. He is directed to deposit the fine amount within four months from today before the concerned trial Court.