Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 188 (MP)

Santosh Singh v. State of M. P.

2012-02-10

M.A.SIDDIQUI

body2012
JUDGMENT 1. This appeal has been preferred by the appellants against the judgment dated 15.9.04 delivered by the then 3rd Addl. Sessions Judge (Fast Track), Guna in Sessions Trial No. 214/98 whereby each of the appellants have been convicted under sections 304-B of IPC and sentenced to undergo RI for ten years and fine of Rs. 1,000/-, in default of payment of fine, the appellants were directed to undergo further RI for 6 months. No sentence under section 498-A was imposed being a lesser offence of section 304-B IPC according to section 71 of IPC. 2. In short, the prosecution case is that Kamlesh Bai (since dead) was married to Chandrapal on 2.6.96 and she started living with Chandrapal (husband), Santosh Singh (father-in-law) and Rabadbai (monther-in-law). They were residing at Village-Nagda. It is alleged the accused persons were demanding Rs. 50,000/- in cash as dowry and they started beating and ill treating Kamlesh Bai. Even demand was made from the family members of Kamlesh Bai. On 29.4.98 Kamlesh Bai met her father Badal Singh (PW.1) and made complaint that accused persons were demanding cash and dowry and they were doing Marpeet with her and they were also not providing her food and clothes. On 3.7.98 at 7 p.m., Kamlesh Bai was brought in burnt condition to the District Hospital, Guna. On the request of police, on 4.5.98 at 1.45-2 a.m. dying declaration of Kamlesh Bai (Ex. D/2) was recorded by Naib Tahsildar which was found to be under the influence of accused persons. On 4.5.98 Kamlesh Bai expired. So, her death was intimated vide Ex. P/3, and the Police Station-Kotwali, Guna recorded Marg (P/7). Marg Case No. 044/98 was sent to Police Station-Sirsi where on 6.5.98 Marg (P/4) was recorded. On 5.5.98 dead body of Kamlesh Bai was sent for postmortem examination and postmortem report vide Ex. P/1 was received. On 6.5.98, spot map (P/9) was prepared and burnt pieces of blouse and an iron chimney were seized vide Ex. P/10 from acused Chadrapal. After investigation, PS-Sirsi registered FIR (P/6) vide Crime No.-17/98 under sections 304-B and 498-A IPC against the accused persons. Accused persons were arrested and after usual investigation, charge sheet was filed. On 11.12.98, charges under section 304-B and 498-A were framed against the accused persons by the then learned Sessions Judge, Guna. 3. Accused persons abjured the guilt contending that they have been falsely implicated. Accused persons were arrested and after usual investigation, charge sheet was filed. On 11.12.98, charges under section 304-B and 498-A were framed against the accused persons by the then learned Sessions Judge, Guna. 3. Accused persons abjured the guilt contending that they have been falsely implicated. It was pleaded by them that the incident was accidential and deceased herself made dying declaration (Ex. D/2) to Naib Tahsildar Lachhiram (DW. 4). In defence other witnesses Brajbhan Singh (DW. 1), Shivcharan (DW 2) and Krapan Singh (DW 3) were examined. 4. To substantiate its case, prosecution examined Badal Singh (PW 1) father of deceased, Bhura (PW 2) cousin of deceased, Shishupal (PW 3) brother of deceased, Anita (PW 4) elder sister of deceased, Dr. Sudhir Rathore (PW. 5), Krapan Singh (PW. 6) Dr. Y.S. Raghuvanshi (PW 7), Banwarilal (PW 8), Head Constable, Mahesh Chandra Shukla (PW 9) Asstt. Sub-Inspector of Police, Bhagwan Singh (PW 10) neighbour of accused persons, Hazarilal Verma (PW 11) Head Constable and Pankaj Shrivastava (PW 12) SDOP and Investigating Officer of the case. 5. I have heard both the sides and perused the record of trial Court. 6. Badal Singh Yadav (PW 1), Bhura (PW 2), Shishupal (PW 3) and Anita (PW 4) stated that accused persons were treating deceased Kamlesh Bai with cruelty and they were not providing her food and clothes, they were beating and ill treating her and were also demanding Rs. 50,000/- in cash, though they have stated that no demand was made at the time of marriage, but demand was started after the marriage. According to Badal Singh (PW 1), on 22.12.97 accused Santosh asked him to give Rs. 50,000/- but as he was not in a position to fulfill the demand of dowry, he could not bring his daughter with him. At that time, accused Chandrapal gave beating to Kamlesh Bai and accused Santosh was also there. After about 2-3 months from this incident, Kamlesh Bai came to the house of the witness and made complaint that accused persons were demanding money from her. Bhura (PW 2) also stated that demand of Rs. 50,000/- was made from Kamlesh. Though Shishupal (PW 3) has not stated the figure of Rs. 50,000/- in his statement but he stated that demand of money was made. 7. Bhura (PW 2) also stated that demand of Rs. 50,000/- was made from Kamlesh. Though Shishupal (PW 3) has not stated the figure of Rs. 50,000/- in his statement but he stated that demand of money was made. 7. Learned counsel for appellants submitted that the statements of these witnesses are omnibus and it is very much clear from their statements that demand was not made soon before death of Kamlesh Bai, though as per their statements it was made some months before her death. Counsel submitted that according to section 304-B IPC where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruetly or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death under this section. He relied upon the decisions of apex Court in Sunil Bajaj v. State of M.P. 2002 (I) JLJ 1 = 2001 Cri. LJ 4700, Durga Prasad and another v. State of M.P. 2010 (3) JLJ 426 = (2010) 9 SCC 73 , Satvir Singh and others v. State of Punjab and another AIR 2001 SC 2828 and in Biswajit Halder alias Babu Halder and others v. State of W.B. ¼2008½ 1 SCC (Cri) 172. It has been held in the aforesaid decisions that basic ingredients to attract the provisions of section 304-B IPC are necessary before presumption could be drawn under section 113-B of Evidence Act. 8. It is not disputed that incident had taken place within seven years of marriage. According to prosecution, it was a dowry death and according to defence, it was an accidental death. From perusal of prosecution evidence, it appears that though there are omnibus statements of demand of dowry, but there is no specific allegation that soon before death of Kamlesh Bai, she was subjected to demand of dowry. Though it was allged that Shishupal (PW 3) visited the house of deceased and accused persons just few days before her death, but on this point Shishupal has not stated anything and he gave statement only to the extent that demand of dowry was there. Though it was allged that Shishupal (PW 3) visited the house of deceased and accused persons just few days before her death, but on this point Shishupal has not stated anything and he gave statement only to the extent that demand of dowry was there. Time may be certainly in months and not in days. Unless there is evidence to show that soon before death, victim was subjected to cruelty by husband or in-laws in connection with demand of dowry, conviction cannot be based. Moreover, it is partient to note that dying declaration (D/2) was recorded by Lacchiram (DW 4) on request of police on 4.5.98 in which Kamlesh Bai narrated that Chimney was lightening and as Chimney was not functioning, to keep it in proper place, she extended her hand and during this process, the Chimney fell on her by which her clothes started burning and her-in-laws took her to Guna hospital. 9. Learned counsel for appellants submitted that Brajbhan Singh (DW 1) also stated that Kamlesh burnt accidentally as Chimney fell down and he and Chandrapal tried to save her by throwing water. Shivcharan (DW 2) stated that when he reached at the house of accused Santosh Singh, he asked Kamlesh Bai how she burnt, on which Kamlesh replied to the witness that she was burnt accidentially by fall of Chimney. Same is the version of Krapan Singh (DW. 3). 10. In my opinion, there is no justification for disbelieving the dying declaration (D/2) recorded by a Naib Tahsildar. Learned trial Court has disbelieved the dying declaration recorded by Naib Tahsildar on the ground that statement was not properly certified by the doctor, while Dr. Sudhir Rathore (PW 5) stated in para 6 of his cross-examination that Tahsildar recorded the dying declaration (Ex. D/2) before him and Smt. Kamlesh was through out conscious while giving her statement. He had certified this at the bottom of Ex. D/2. Learned trial Court has rejected this dying declaration on the ground that doctor has not certified in the beginning and in the end. Learned counsel for appellants submitted that there is no specific proforma for certifying the dying declaration and when the doctor had certified it at the end about the consciousness and capability of giving statement, it ought not to have been disbelieved and trial Court was erroneous in disbelieving it. Learned counsel for appellants submitted that there is no specific proforma for certifying the dying declaration and when the doctor had certified it at the end about the consciousness and capability of giving statement, it ought not to have been disbelieved and trial Court was erroneous in disbelieving it. I am fully agree with the above submission made by learned counsel for appellants. 11. As far as dowry death is concerned, the case of prosecution is not proved beyond reasonable doubt, but so far as case under section 498-A IPC is concerned, there is specific allegation that within 2 years of marriage of Kamlesh Bai, she was subjected to cruelty by appellants for demand of dowry. Though trial Court has not convicted the accused persons under sections 498-A IPC separately, but the Court has found them guilty. By applying section 71 of IPC, the trial Court has convicted and sentenced the appellants for 10 years’ RI and fine of Rs. 1,000/- under section 304-B IPC only. 12. Looking to the circumstances of the case, the accused-appellants are acquitted of the offence punishable under section 304-B IPC, but they are held guilty under section 498-A IPC. The incident is of the year 1998. Accused Santosh Singh remained in jail from 29.5.98 to 24.6.98 (27 days), and accused Mst. Rambai alias Rabadbai and Chandrapal Singh remained in jail from 28.5.98 to 24.6.98 (26 days). So, they are punished for the period already undergone by them and fine of Rs. 1,000/- each under section 498-A IPC. Fine of Rs. 1,000/- on each appellant has already been imposed under section 304-B IPC, but as the appellants are acquitted of the offence punishable under section 304-B IPC, that fine amount of Rs. 1,000/- imposed on each appellant may be adjusted towards the fine amount imposed under section 498-A IPC. In case the amount of fine is not deposited by the appellants, they will have to undergo R.I. for three months. 13. Appeal is partly allowed to the aforesaid extent.