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Madhya Pradesh High Court · body

2012 DIGILAW 114 (MP)

Sughar Singh v. State of M. P.

2012-01-25

G.D.SAXENA, S.K.GANGELE

body2012
JUDGMENT Saxena, J. -- 1. This appeal has been preferred by the appellant-accused under section 374 of the Code of Criminal Procedure, 1973 against a judgment dated 19th August 2003 in Sessions Trial No.128/02 by the First Additional Sessions Judge, Bhind (M.P.), convicting thereby the accused for commission of offence punishable under section 302 of IPC and sentencing him to suffer imprisonment for life with a fine of Rs.1,000/ for committing murder of his wife Smt. Umadevi. He was further convicted for offence punishable under section 498A of IPC and sentenced to suffer three years’ rigorous imprisonment with fine of Rs.1,000/-. In case of default in payment of fines, additional rigorous imprisonment of 6-6 months was imposed on him, by the trial Court. 2. The facts, in brief, just for the decision of this appeal are that on 9th July 2001 in the morning when the complainant Shripal, father of Smt. Umadevi (deceased) received an information that his daughter was found dead in the village Sikahata under the control of Police Station Umari, he along with his son and brother-in-law proceeded to the village. On reaching the place, they found her daughter dead having received injuries over her feet. After sometime, their son-in-law, i.e., accused Sughar Singh appeared to them who informed that his wife died due to biting by snake. Accordingly, on that very day, the village Chowkidar, namely, Rambharose proceeded to Police Outpost, Billav to lodge the report of the incident. During investigation, it was collected that on 13th May 2000, Smt. Umadevi was married to appellant Sughar Singh. It was alleged that after marriage, the accused and his parents for their unlawful demands of golden chain and a Scooter harassed and tortured the deceased physically and mentally but the father of the deceased despite his sincere efforts could not save his daughter.The Marg was registered and inquiry was conducted. The dead body of the deceased was sent for post-mortem. As per the opinion of the doctor, the deceased died due to throttling. After investigation, the charge-sheet was filed in the Court of Judicial Magistrate Bhind. The learned trial Court after recording the evidence and hearing the parties at length found the appellant guilty and punished him accordingly for the alleged offences, as mentioned above, hence, this appeal. 3. As per the opinion of the doctor, the deceased died due to throttling. After investigation, the charge-sheet was filed in the Court of Judicial Magistrate Bhind. The learned trial Court after recording the evidence and hearing the parties at length found the appellant guilty and punished him accordingly for the alleged offences, as mentioned above, hence, this appeal. 3. The contention of the learned counsel for the appellant is that the judgment of conviction and sentence passed by the trial Judge is against the facts and evidence on record, ignoring the law applicable to case. It is contended that the learned trial Judge fell in error in recording conviction of appellant for committing murder of his wife after placing reliance on the evidence of the relatives of the deceased-wife. It is submitted that there is no direct evidence of the incident and the case is totally based on the circumstantial evidence. All chains of circumstances do not connect the appellant with the alleged crime. It is contended that the guilt of the accused is not proved by the prosecution beyond doubts. Therefore, on the basis of the above arguments, it is prayed that by allowing the present appeal, the accused be acquitted of the alleged offences. 4. On the other hand, the learned Public Prosecutor for the respondent-State opposed the submissions of the accused and contented that after information of the incident was received, father and brother of the deceased reached her residence and after information, a Marg was lodged by the village Chowkidar at the concerned police station. The concerned police set on motion and after inquiry of Marg and on post-mortem report, an FIR was lodged against the accused, without any delay. It is submitted that the ocular evidence in the case is well supported by the medical evidence. The plea of alibi of the accused is not proved by the evidence. Accordingly, it is prayed by him that the judgment of the trial Court being based on cogent reasons, same is liable to be maintained and the appeal deserves dismissal. 5. The question for determination in this appeal is whether the learned trial Judge on the basis of circumstantial evidence rightly convicted the accused for killing his wife and awarded him proper and adequate sentence? 6. Heard the learned counsel for the parties and also perused the evidence on record and the law governing the case. 7. 5. The question for determination in this appeal is whether the learned trial Judge on the basis of circumstantial evidence rightly convicted the accused for killing his wife and awarded him proper and adequate sentence? 6. Heard the learned counsel for the parties and also perused the evidence on record and the law governing the case. 7. Ram Bharose Kotwar (PW1) deposed that one year ago in the month of July (Hindu Calender month “Ashad”) Smt. Sushama Devi, wife of his younger brother informed the witness at his agirculture field that the wife of Sughar Singh died. He reached the spot and saw that deceased was died due to hanging. Then he removed the dead body from the hook and placed it on the earth. On his lodging the information report (Ex.P-1) to police Outpost Billav, the police reached the spot and issued Safina Form (Ex.P-2) and prepared the memo of dead body on the spot. In cross-examination, he deposed that the dead body was in lying position on the spot and the villagers informed the witness that the deceased died due to hanging. 8. Ashok (PW4), brother of deceased, Shripal (PW5) father of the deceased, Bundabai (PW6), mother of deceased, Ramrati (PW7), sister-in-law (wife of brother Ashok) all in one breath deposed that deceased Umadevi, near about one year ago, was married to accused Sughar Singh. They stated that as and when she used to come to her parental house, she complained that her husband Sughar Singh, her father-in-law Govindi and mother-in-law Smt. Ladeti (absconded accused) used to beat her and they did not provide to her even the sufficient food. She alleged that her in-laws raised persistent demands for Scooter and golden chain.The witnesses deposed that they sent the deceased twice to her matrimonial house, but all times the treatment of her in-laws including the appellant towards her was not cordial. Third time on the sad demise of her grandmother, she visited her parental house to attend the last rites when she reported that due to ill-treatment by her husband and father-in-law and mother-in-law, she did not want to go to her matrimonial house, however, on assurance by her husband and father-in-law that they will keep her properly and would not raise any demand, they persuaded her for return to her matrimonial house.After one month thereafter, she died. After her death neither her husband nor his father-in-law informed of them about her death. On information by bus employee, at about 4 p.m., in their village Lapoda, Tahsil Lahar, District Bhind (M.P.) about the death of the deceased, her brother Ashok (PW4), Shripal (PW5) and his brother-in-law Rajaram and Rajendra reached the place at about 7 p.m. Accused Sughar Singh was present on the spot but her father-in-law and mother-in-law were absent. The accused was making preparation for her funeral. They also saw the injuries on fingers of her feet. Her hand and one tooth were broken. The dead body was placed on the Chaarpai (cot) in an open place of the house of accused. On information by Chowkidar, the police reached the spot. For post-mortem, the police sent the dead body of the deceased to District Hospital Bhind. Shripal (PW5) father of the deceased also sent a type written letter (Ex.P-8) to the Superintendent of Police, Bhind. 9. Kusuma (PW3) and Pappu (PW10) residents of the locality confirmed the death of deceased Umadevi but they did not depose about the involvement of the accused in the alleged commission of crime. 10. Dr. R.K. Saksena (PW11) deposed that on 10th July 2001, while he was working as a Medical Officer in the District Hospital Bhind, on referral the dead body of Smt. Umadevi, wife of Sughar Singh through constable Raghuwar Dayal No.185 of Police Station Umari, District Bhind along with a requisition memo for post-mortem, after identification of the dead body, a penal of Doctors comprising of Dr. Mrs. P. Saxena, Dr. C.R. Raje and he himself conducted autopsy on the dead body of the deceased and found (i) Abrasion mark of size 6 cm. x 1-1/4 cm. over right side of neck anti laterally horizontally placed, ante-mortem in nature. (ii) Lacerated wound varying 2 cm x 1/2 cm x muscles deep over right big toe 1, 11, 12 caused by some hard and blunt object, ante-mortem in nature. The panel of doctors conducting autopsy opined that death of deceased was caused by strangulation by some means and the same was homicidal in nature within 24 hours from the post-mortem. The post-mortem report is Ex.P-10, signed by the panel of doctors. 11. The panel of doctors conducting autopsy opined that death of deceased was caused by strangulation by some means and the same was homicidal in nature within 24 hours from the post-mortem. The post-mortem report is Ex.P-10, signed by the panel of doctors. 11. Hukum Singh (PW17) stated that on 9th July 2001 while he was posted as an Assistant Sub-Inspector in the Outpost Billav of Police Station Umari, during inquiry of Marg No.1/2/2001, he prepared a Spot Map vide Ex.P-11 of the house of accused where the dead body was placed. After issuance of Safina Notice vide Ex.P-2, he prepared the memo of dead body vide Ex.P-3. Thereafter, he handed over the diary for further investigation in the case to Awadesh Goswami Deputy S.P. 12. Devendra Mishra (PW14) stated that on the relevant date on 10th July, 2011, he was posted as Head Constable in Police Station Umari on which date he received Marg Intimation Report (Ex.P-1) from the Police Outpost Billav. On the basis of the same, he registered Marg No.25/01 vide Ex.P-13. D.L.Dhanele (PW15) stated that on 27th July, 2011 he was posted in Police Station Umari as ASI and on the result of Marg report he lodged the FIR (Ex.P-14) and registered a Crime No.110/2001 against the accused for commission of offence punishable under sections 302, 304B, 498A of IPC. During investigation on 21st March 2002 he arrested the accused Sughar Singh vide arrest memo Ex.P-15. Awdesh Goswami (PW18) deposed that at the relevant time he was posted as Deputy S.P. Ater. When he received the case diary of Crime No.110/2001 from the Police Station Umari, on 30th July 2001, he seized the marriage letter and the card of deceased as per Ex.P-6 and Ex.P-7 and recorded the case diary statements of witnesses Shripal, Ramrati, Ashok Kumar and Bundabai. 13. When he received the case diary of Crime No.110/2001 from the Police Station Umari, on 30th July 2001, he seized the marriage letter and the card of deceased as per Ex.P-6 and Ex.P-7 and recorded the case diary statements of witnesses Shripal, Ramrati, Ashok Kumar and Bundabai. 13. On detailed discussions on the evidence adduced before the trial Judge the following facts emerge therefrom : (i) that, after marriage, the accused (husband of deceased), father-in-law, and mother-in-law for their illegal demand of a scooter and golden chain caused harassment to the deceased; (ii) that, the deceased made the complaint of their in-laws in raising illegal demands of a scooter and golden chain to her parents several times and they tried to pacify the matter; (iii) that, on 9th July 2001, deceased died under suspicious circumstances; (iv) that, no one on behalf of the matrimonial side informed the parents of the deceased regarding death of their daughter; (v) that, on information received through bus employee, the father and brother when reached the residence of accused, they found except the appellant that all the members of her in-law were absent and the accused was indulged in making preparation of the funeral; (vi) that as per post-mortem report and the statement of Dr. R.K. Saksena, death of deceased was caused by strangulation by some means and the same was homicidal in nature. 14. Except the above circumstances, there is nothing to involve the accused in committing murder of his wife. In the opinion of this Court, the aforesaid circumstances are not enough to bring home the present accused with offence under section 302 of IPC. 15. In the case of Satya Narayan Tiwari v. State of U.P. (SC) [2011 Cri.LJ 445], the Hon’ble apex Court observed as under : “As held by this Court in the case of Kunhiabdulla v. State of Kerala [ AIR 2004 SC 1731 ], in order to attract application of section 304B of IPC, the essential ingredients are as follows : 1. The death of a woman should be caused by burns or bodily injury or otherwise than in normal circumstances; 2. Such a death should have occurred within seven years of her marriage; 3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband; 4. The death of a woman should be caused by burns or bodily injury or otherwise than in normal circumstances; 2. Such a death should have occurred within seven years of her marriage; 3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband; 4. Such cruelty or harassment should be for or in connection with demand of dowry; 5. Such cruelty or harassment is shown to have meted out to the woman soon before her death. As regard the important question whether the death of Geeta was homicidal as alleged by the prosecution or suicidal as claimed by the defence, there is a popular adage that the witnesses may lie but the circumstances will not. We are of the view that the presumption of section 113B of the Evidence Act is attracted in this case and the discussion that we have made hereinabove makes it abundantly clear that the defence could not displace the said presumption. The culpability of the two accused in committing this crime is established to the hilt by the facts and circumstances proved by the prosecution. They undoubtedly are the authors of this crime. The irresistible conclusion is that the demand of Maruti Car raised by the two accused after about six months of the marriage persisted as it was not settled by the father of the deceased by supplying the same. The prosecution has successfully proved the persistent demand of Maruti Car as a part of dowry by the two accused and continuous cruelty and harassment heaped upon the deceased by them over this score. To sum up, the prosecution has been able to prove the following : (1) the death of the deceased was caused by strangulation and burning within seven years of her marriage; (2) the deceased had been subjected to cruelty by her husband and mother-in-law (the two accused appellants) over the demand of Maruti Car in dowry raised and persistently pressed by them after about six months of the marriage and continued till her death. (3) The cruelty and harassment was in connection with the demand of dowry i.r. Maruti Car. (4) The cruelty and harassment is established to have been meted out soon before her death. (5) The two accused were the authors of this crime who caused her death by strangulation and burning on the given date, time and place. (3) The cruelty and harassment was in connection with the demand of dowry i.r. Maruti Car. (4) The cruelty and harassment is established to have been meted out soon before her death. (5) The two accused were the authors of this crime who caused her death by strangulation and burning on the given date, time and place. We find that its conclusion are quite inapt, unjustified, unreasonable and perverse. Proceeding on wrong premise and irrelevant considerations, the trial Court has acquitted the accused. The accused are established to have committed the offences under sections 498A and 304B IPC and under section 4 of Dowry Prohibition Act and the findings of the High Court are correct.” 16. Again, in the case of Bansi Lal v. State of Haryana [ AIR 2011 SC 691 ), the Hon’ble apex Court held : “While considering the case under section 498A, cruelty has to be proved during the close proximity of time of death and it should be continuous and such continuous harassment, physical or mental, by the accused should make life of the deceased miserable which may force her to commit suicide. In such a fact situation, the provisions of section 113B of the Indian Evidence Act, 1872 providing for presumption that accused is responsible for dowry death, have to be pressed in service. The said provisions read as under : “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 had 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.” (Emphasis supplied) It may be mentioned herein that the legislature in its wisdom has used the word “shall” thus, making a mandatory application on the part of the Court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with or demand of dowry. It is unlike the provisions of section 113A of the Evidence Act where a discretion has been conferred upon the Court wherein it had been provided that Court may presume to abatement of suicide by a married woman. It is unlike the provisions of section 113A of the Evidence Act where a discretion has been conferred upon the Court wherein it had been provided that Court may presume to abatement of suicide by a married woman. Therefore, in view of the above, onus lies on the accused to rebut, the presumption and in case of section 113B relatable to section 304B IPC, the onus to prove shifts exclusively and heavily on the accused. The only requirement is that death of a woman has been caused by means other than any natural circumstances; that death has been caused or occurred within 7 years of her marriage; and such woman had been subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry. Therefore, in case the essential ingredients of such death have been established by the prosecution, it is the duty of the Court to raise a presumption that the accused has caused the dowry death. It may also be pertinent to mention herein that the expression shown before her death has not been defined in either of the statutes. Therefore, in each case, the Court has to analyse the facts and circumstances leading to the death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. {Vide : T. Aruntperunjothi v. State through S.H.O., Pondicherry [ AIR 2006 SC 2475 ]; Devi Lal v. State of Rajasthan [ AIR 2008 SC 332 ]; State of Rajasthan v. Jaggu Ram [ AIR 2008 SC 982 ]; Anand Kumar v. State of M.P. [ AIR 2009 SC 2155 ]; and Undavalli Narayana Rao v. State of Andhra Pradesh [ AIR 2010 SC 3708 ]}.” 17. On perusal of the record of the case, it appears that the learned trial Judge framed the charges for offence under sections 498A, 304B and in alternative under section 302 of IPC. In case the accused could not be convicted under section 302 of IPC on the same set of evidence as adduced before the trial Judge, he can be convicted for offence under section 304B of IPC. In case the accused could not be convicted under section 302 of IPC on the same set of evidence as adduced before the trial Judge, he can be convicted for offence under section 304B of IPC. In the light of the evidence discussed above, we are of the opinion that the prosecution has been able to show that soon before her death the deceased had been subjected by the appellant to taunt in connection with demand for dowry. A girl dreams of great days ahead with hope and aspiration when entering into a marriage, and if from the very next day the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride and such acts of taunting by the husband would constitute cruelty both within the meaning of sections 498A and 304B of IPC. Once, it is established by the prosecution that soon before her death the deceased was subjected by the appellant to harassment or cruelty in connection with demand for dowry, the Court has to presume that the appellant has committed the offence under section 304B of IPC. This will be clear from section 113B of the Indian Evidence Act which states 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. As seen before, the prosecution in this case had led sufficient evidence to prove beyond all reasonable doubts that the appellant had caused the dowry death of the deceased. 18. Consequently, the appeal is partly allowed and the conviction and sentence recorded by the trial Judge for commission of offence punishable under section 302 of IPC is set aside and instead the accused-appellant is found guilty of offence under section 304B of IPC and sentenced to ten years’ rigorous imprisonment. However, the findings arrived at by the learned trial Court for convicting and sentencing the accused for offence under section 498A of IPC stand confirmed. .............