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Madhya Pradesh High Court · body

2012 DIGILAW 100 (MP)

Balram Sanodiya v. State of M. P.

2012-01-19

U.C.MAHESHWARI

body2012
JUDGMENT : 1. The appellants/accused have preferred this appeal being aggrieved by the judgment dated 9-10-1996 passed by Sessions Judge, Seoni, in S.T. No. 20/95 convicting each of them under Sections 304-B and498-A of IPC for RI eight years in earlier section while R1 two years with fine of Rs. 1,000/- in later. 2. The facts giving rise to this appeal in short are that the appellant No. 1 Balram Sanodiya got married with the deceased Kumari Bai on 4-5-1992. Subsequent to such marriage she was residing at her matrimonial home where she was subjected to harassment and cruelty on account of demand of Rs. 20,000/- in dowry. In her life time she apprised about such act of the appellants and of other members of their family to her parents. Lastly she was taken from her parental home to matrimonial home by appellant No. 1 Balram on 13-9-1994. Subsequent to it, said Kumari Bai sent a letter dated 13-9-1994, which was written at her instance by some Bhagwat Singh, to her father contending that she is facing the torture and harassment of appellants and other family member on account of non-fulfillment of their demand of Rs. 20,000/- in dowry. Such letter was handed over by Bhagwat Singh to the father of Kumari Bai. Thereafter on 15-9-1994 said Kumari Bai has passed away. On receiving such information her father Jagdish gave a report in writing to the Police Station, Lakhanwada, District Seoni contending that deceased was taken to her matrimonial home by appellant No. 1 on 13-9-1994 and thereafter on 16-9-1994 he received the information of her death. It is also stated that he has a doubt that the family member of his daughter's in-laws family have killed her because of nonfulfillment of their requisite demand of dowry. On such report in writing (Exh. P-2) an inquest report was registered at the same police station. In the course of its inquiry after preparing the Panchnama of dead body in presence of the witnesses the same was sent to hospital, where its post-mortem was carried out. According to post-mortem report (Exh. P-4) no definite opinion regarding cause of death was given by Dr. M.K. Tiwari (P.W. 3). However, viscera was preserved and later the same was sent to FSL Sagar for its chemical examination. According to post-mortem report (Exh. P-4) no definite opinion regarding cause of death was given by Dr. M.K. Tiwari (P.W. 3). However, viscera was preserved and later the same was sent to FSL Sagar for its chemical examination. In the course of inquiry of said inquest the aforesaid letter dated 13-9-1994 written by Bhagwat Singh (P.W. 2) at the instance of deceased Kumari Bai was also seized in presence of the witnesses. According to which the deceased informed her father regarding cruelty and harassment carried out with her by the appellants and other family members on account of aforesaid demand of dowry. In the course of inquiry, it was found that the deceased died with unnatural death within seven years from the date of her marriage with the appellant No. 1 and soon before death also she was subjected to demand of Rs. 20,000/- in dowry. In suth premises on 24-9-1994 a Crime No. 88/94 was registered against the present appellants and deceased appellant No. 2 the father-in-law of the deceased Kumari Bai for the offence of Sections 498-A and 304-B of IPC. The witnesses were interrogated and the appellants and co-accused were arrested. On completion of investigation the appellants along with co-accused the other family members of the appellants-were charge-sheeted for the offence of Sections 498-A and 304-B of IPC. 3. After committing the case of the Sessions Court, on evaluation of charge-sheet the charge of Sections 498-A and 304-B of IPC were framed against the appellants and other co-accused. They abjured the guilt on which the trial was held. After recording the evidence on appreciation of the same by acquitting the co-accused Jagram and Netram from the alleged charges the present appellants and deceased Khusiram were held guilty for the offence of Sections 498-A and 304-B of IPC and each of them was punished with the above mentioned punishment. Being dissatisfied with such conviction and sentence the appellants have come to this Court with this appeal. 4. Being dissatisfied with such conviction and sentence the appellants have come to this Court with this appeal. 4. Shri S.C. Datt, Senior Advocate assisted by Shri Pushpendra Dubey, learned Counsel of the appellants after taking me through the record of the Trial Court including the evidence led by the prosecution and the exhibited papers of the charge-sheet along with the impugned judgment argued that even on taking into consideration the available evidence of prosecution as accepted in its entirety even then the offence of Section 304-B as well as Section 498-A of IPC is not made out against any of the appellants. In continuation by referring the post-mortem report of the deceased Kumari Bai (Exh. P-4) along with the deposition of Dr. M.K. Tiwari (P.W. 3) who prepared such report, said that it is apparent from such report and deposition that the cause of death of Kumari Bai whether the same was homicidal, accidental or suicidal could not be ascertained by the doctor. That is why no definite opinion in this regard was given by such Doctor in the post-mortem report (Exh. P-4), however, viscera was preserved but on its chemical examination as per FSL report (Exh. P-18) no chemical poisonous substance was found either in such viscera or on the clothes of the deceased. So in such premises, the prosecution has utterly failed to prove that Kumari Bai was died because of some unnatural death. In the lack of such material ingredient of Section 304-B of IPC, the appellants could not have been convicted under such section. He further said that in the lack of such evidence showing the Kumari Bai died with unnatural death the appellants could not be convicted even under Section 306 of IPC. In these background he said that out of three material ingredients of Section 304-B of IPC, except the death of the deceased within seven years from the date of her marriage with the appellant No. 1 no other ingredients of such section have been proved by the prosecution with cogent and reliable evidence. The allegation regarding alleged demand of Rs. 20,000/- in dowry by the appellants from the deceased has also not been proved. In such premises, it could not be said that soon before death the Kumari Bai was subjected to any harassment or cruelty by any of the appellants. The allegation regarding alleged demand of Rs. 20,000/- in dowry by the appellants from the deceased has also not been proved. In such premises, it could not be said that soon before death the Kumari Bai was subjected to any harassment or cruelty by any of the appellants. With these submissions he said that the impugned conviction of the appellants under Section 304-B of IPC is not sustainable and in the available factual matrix the same could not be converted in Section 306-B of IPC. 5. So far conviction of the appellants under Section 498-A of IPC is concerned, he argued that mere on the testimony of persons belonging to the parental family of the deceased no inference could be drawn against the appellants that the deceased in her life time, was subjected to harassment or cruelty by the appellants in the matrimonial home. It is apparent fact on record that the story put forth by the prosecution regarding alleged harassment and cruelty has not been proved by any independent source of evidence. The letter (Exh. P-1) as alleged written at her instance by some Bhagwat Singh, has also not been proved by any cogent and reliable evidence and in the available factual matrix this letter could not be deemed to be proved only on the basis of the deposition of it's writer Bhagwat Singh. According to him, the possibility of false fabrication of such letter with the assistance of Bhagwat Singh could not be ruled out. With these submission he prayed for acquittal of the appellants from the alleged charge and setting aside the impugned judgment of the Trial Court by allowing this appeal. He also placed his reliance on a case of the Apex Court in the matter of Akula Ravinder Vs. State of A.P., reported in AIR 1991 SC 1142 . 6. On the other hand by justifying the impugned conviction and sentence of the appellant learned Panel Lawyer Shri Rakesh Kesharwani said that same being based on proper appreciation of evidence, available on record do not require any interference at this stage either for extending the benefit of acquittal from the alleged charge or for reducing the jail sentence of the appellants in any manner. However, in response of some query of the Court he fairly conceded that the cause of the death of the Kumari Bai whether It homicidal, accidental or suicidal has not been proved on record beyond reasonable doubt. In continuation he said that in any case on appreciation of ocular evidence of witnesses examined from parental family of the deceased and letter (Exh. P-1) with the deposition of Bhagwat Singh (P.W. 2) the offence of Section 498-A of IPC is apparently proved beyond reasonable doubt against the appellants. With these submissions he prayed for dismissal of this appeal. 7. Having heard the Counsel at length keeping in view their arguments, I have carefully gone through the record of the Trial Court so also the impugned judgment. 8. It is apparent from record that after death of Kumari Bai on receiving such information by her father before her cremation, he came to the place of incident and thereafter gave a report in writing to police Lakhanwada on 16-9-1994 contending that his daughter was brought by his son-in-law the appellant No. 1 from his home on 13-9-1994 and today he received the information of her death. As per further averments, he has a doubt that due to non-fulfillment of the demand of the appellants of Rs. 20,000/- in dowry his daughter has been killed. On such report (Exh. P-2) an inquest intimation (Exh. P-15) was registered. In the course of its inquiry after preparing the Panchnama (Exh. P-6) the dead body of Kumari Bai was sent to the hospital where it's autopsy was carried out and its report (Exh. P-4) was prepared by Dr. M.K. Tiwari (P.W. 3). In such report, the doctor had opined that "no definite opinion can be given regarding cause of death. Viscera is preserved for its chemical analysis. Duration between death and post-mortem 36 to 48 hours". Accordingly, no definite opinion regarding cause of death was given in such report. The preserved viscera was sent to the FSL Sagar where on its chemical examination as per report (Exh. P-18) no chemical poisonous substance was found in such viscera or on clothes of the deceased. Besides this Dr. Duration between death and post-mortem 36 to 48 hours". Accordingly, no definite opinion regarding cause of death was given in such report. The preserved viscera was sent to the FSL Sagar where on its chemical examination as per report (Exh. P-18) no chemical poisonous substance was found in such viscera or on clothes of the deceased. Besides this Dr. M.K. Tiwari (P.W. 3) on recording his deposition in response of some question of the Court in Paragraph 7 of his deposition categorically stated that he did not found any sign of injury or mark on the dead body of Kumari Bai, on which her death could be said to be unnatural death, there was only possibility of murder or suicide by administering or consuming the poisonous substance and therefore, viscera was preserved and investigation agency was advised to get chemical examined of the same. He further stated that green colour on the skin of the dead body was not found. 9. In view of aforesaid post-mortem report (Exh. P-4), FSL report (Exh. P-18) and deposition of doctor and also in the lack of admissible evidence showing the death of Kumari Bai either homicidal, suicidal or accidental, it could not be said that she died by any burn or bodily injury or otherwise then under normal circumstances as per one of the material requirement to invoke the Section 304-B of IPC. 10. Besides the above, after perusing the aforesaid letter (Exh. P-1) as alleged written by Bhagwat Singh at the instance of Kumari Bai and the depositions of Jagdish (P.W. 1) the father of the deceased, Babulal (P.W. 2), Gulab (P.W. 8) the maternal uncles of the deceased, Suraj (P.W. 5) brother of the deceased and Lata Bai (P.W. 7) sister-in-law of the deceased, I have not found any material evidence or circumstances in them showing the deceased Kumari Bai's death occurred otherwise than under normal circumstances. 11. Under Section 304-B of IPC the accused could not be convicted unless the following facts are proved beyond all reasonable doubts by the prosecution :- (A) The death of woman was caused by any burns or bodily injury or occurred otherwise than under normal circumstances. (B) Such death was caused within seven years of her marriage. 11. Under Section 304-B of IPC the accused could not be convicted unless the following facts are proved beyond all reasonable doubts by the prosecution :- (A) The death of woman was caused by any burns or bodily injury or occurred otherwise than under normal circumstances. (B) Such death was caused within seven years of her marriage. (C) The deceased soon before her death was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry. 12. In view of aforesaid discussion in the light of aforesaid ingredients of Section 304-B of IPC on examining the case at hand it is apparent that prosecution could not prove the death of Kumari Bai by any burns or bodily injury or the same was occurred otherwise then under normal circumstances, therefore, in such premises the impugned conviction of the appellants under Section 304-B of IPC could not be sustained. My view is fully fortified by the decision of the Apex Court in the matter of Akula Ravinder Vs. State of A. P. (supra), cited by the Senior Counsel of the appellants in which it was held as under :- "3. A perusal of the Section 304-B shows that one of the essential ingredients that has to be established is that death was otherwise than in normal circumstances. In this case, no doubt, the other circumstance namely that the death occurred within seven years of the marriage and that before her death they have harassed her for demand of dowry are established. Coming to the other ingredient we find that the prosecution has miserably failed to establish that death was otherwise than in normal circumstances. The learned Counsel appearing for the State, however, submits that the deceased was young and the death was not due to natural cause nor it was due to an accident and the only inference that can be drawn is that it was otherwise than under normal circumstances. In a case of this nature where the prosecution has failed to establish that it was an unnatural death it cannot be surmised that death must be due to unnatural circumstance. In this context, the framing of the charge and the circumstances that are put to accused under Section 313, Cr.PC also assumed importance. In a case of this nature where the prosecution has failed to establish that it was an unnatural death it cannot be surmised that death must be due to unnatural circumstance. In this context, the framing of the charge and the circumstances that are put to accused under Section 313, Cr.PC also assumed importance. The charge was under Section 302, IPC and the contents of the charge are to the effect that death was only due to asphyxia. In the examination of Section 313, it was not even indicated that the death could be due to poisoning. In any event, in view of the facts and circumstances regarding the death, it has become very difficult, rather impossible, to hold that the death was otherwise than the normal circumstances and consequently were are constrained to hold that this important aspect of Section 304-B is not met out. Consequently, the appellants are entitled to acquittal of the said offence." 13. In the aforesaid premises, it is held that prosecution has failed to prove the charge of Section 304-B of IPC against the appellants including the deceased appellant No. 2 Khursi Ram and the Trial Court has committed grave error in convicting them in such section. Hence, such findings of the Trial Court holding conviction against the appellants under Section 304-B of IPC along with its awarded sentence are hereby set aside and the appellants are acquitted from such charge of Section 304-B of IPC. 14. At this juncture,. I have also examined the matter to find out the possibility to convict the appellants under Section 306 of IPC read with Section 113-A of Evidence Act. On going through the provisions of aforesaid both the sections, I have found that to hold the conviction under such Section 306 of IPC the death of the deceased person must be prove to be suicidal death and as per aforesaid discussion, the death of Kumari Bai has not been proved by mode of suicide also. In such premises, after acquitting the appellants from the charge of Section 304-B of IPC they could not be held guilty and convicted for the offence of Section 306 of IPC, for which the alternate charge was framed by the Trial Court. 15. Coming to consider the sustainability of impugned conviction of the appellants under Section 498-A of IPC. In such premises, after acquitting the appellants from the charge of Section 304-B of IPC they could not be held guilty and convicted for the offence of Section 306 of IPC, for which the alternate charge was framed by the Trial Court. 15. Coming to consider the sustainability of impugned conviction of the appellants under Section 498-A of IPC. It is unrebutted evidence on record that the deceased Kumari Bai was brought from her parental home by her husband the appellant No. 1 just before two-three days of her death and immediately after reaching the matrimonial home she was subjected to demand of Rs. 20,000/- in dowry by the appellants and their other family members, on which she approached Bhagwat Singh (P.W. 2) to write a letter on her behalf to her father on which he wrote a letter at her instance in which the alleged cruelty, harassment and torture committed by the appellants and other family members on account of demand of Rs. 20,000/- in dowry with her was stated and such letter (Exh. P-1) was handed over by Bhagwat Singh to her father Jagdish (P.W. 1). Such letter was seized from the possession of father of the deceased and same was proved by Bhagwat Singh as well as Jagdish. I have not found any evidence on which the aforesaid letter could be said to be a concocted by Bhagwat Singh or Jagdish or other family members of Jagdish subsequent to death of Kumari Bai. Keeping in view such letter (Exh. P-1), on perusing the deposition of witnesses Jagdish (P.W. 1), father of the deceased, Babulal (P.W. 4), Gulab (P.W. 8), maternal uncles of the deceased and Latabai (P.W. 7), sister-in-law of the deceased it is apparent that each of them has categorically stated that they were informed by the deceased Kumari Bai regarding aforesaid demand of Rs. 20,000/- in dowry and due to that she was subjected to cruelty and harassment in her matrimonial home by the appellants and other family members. On going through cross-examination of aforesaid all the witnesses, I have not found any material thing destroying the version stated by them in their in-chief. In such premises, I have found sufficient evidence against the appellants to affirm their impugned conviction under Section 498-A of IPC. 16. On going through cross-examination of aforesaid all the witnesses, I have not found any material thing destroying the version stated by them in their in-chief. In such premises, I have found sufficient evidence against the appellants to affirm their impugned conviction under Section 498-A of IPC. 16. In view of aforesaid discussion the arguments advanced by the appellants' Counsel for extending the acquittal to the appellants from the charge of Section 498-A of IPC is here by failed and the impugned conviction of the appellants under such section is hereby affirmed. 17. At this juncture, learned Senior Counsel submits that taking into consideration that the incident was happened long before in the year 1994 and appellants did not have any criminal antecedents or history and in such premises they are the first offenders. Besides this the appellant No. 3 Jhini Bai being old aged woman of 70 years is not in a position to walk, and as per Paras 48 and 50 of the impugned judgment in the pendency of trial the appellant No. 1 suffered the judicial custody of three months and six days while appellant no. 3 suffered such custody for two days and subsequent to passing the impugned judgment on 9-10-1996 till suspending their remaining jail sentence by this Court on 7-11-1996 they also suffered near about one month out of the awarded jail sentence. Keeping in view all these circumstances after seventeen years of the incident instead to send the appellants again jail for facing the remaining jail sentence under Section 498-A of IPC by adopting some lenient view their awarded jail sentence under such section be reduced from two years to the aforesaid period for which they have already suffered the jail by enhancing some amount of fine under discretion of the Court. 18. In the available circumstances, I have found some substance in the submission of the appellants' Counsel. Thus, keeping in view all the aforesaid circumstances as argued by the Senior Counsel, I deem fit to reduce the jail sentence of the appellants under Section 498-A of IPC from two years to the aforesaid period for which they have already undergone by enhancing the amount of fine from Rs. 1,000/- to Rs. 11,000/- against each of the appellants. The same is ordered. 19. 1,000/- to Rs. 11,000/- against each of the appellants. The same is ordered. 19. In view of aforesaid discussion, by affirming the conviction of the appellants under Section 498-A of IPC this appeal is allowed in part, and impugned conviction of the appellants under Section 304-B of IPC along with it's awarded sentence is set aside and they are acquitted from such charge. In view of the aforesaid discussion the awarded jail sentence of the appellants under Section 498-A of IPC" is reduced from two years to the aforesaid period (mentioned in the foregoing para) for which they have already undergone by enhancing the amount of fine from Rs. 1,000/- to Rs. 11,000/- against each of the appellants. The enhanced fine amount is to be deposited by each of them in the Trial Court within forty five days from today, failing in depositing the enhanced fine within the aforesaid period concerning appellant has to suffer further six months' RI. Till this extent the impugned judgment is modified while other findings of the same are hereby affirmed. The bail bonds of the appellants are hereby discharge. 20. Appeal is allowed in part as indicated above.