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2012 DIGILAW 26 (CHH)

SURENDRA KUMAR v. STATE OF M. P.

2012-01-17

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT As per Hon 'ble Shri Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 8th of March, 1996 passed in Sessions Trial No. 38/1994 by the VIIth Additional Sessions Judge Bilaspur. By the impugned judgment, the appellant has been convicted u/s 304B IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under: Deceased-Sobhna Kumar was wife of the appellant. She was married to the appellant in the year 1988. She was residing with the appellant in quarter No. L/18, Balgi Colony. The appellant was working as a compounder in Project Hospital, SECL, Balgi Project. On 15.10.1993 at about 4 p.m, the appellant had gone on his duty. At about 4:30 p.m, he was informed in the hospital that some smoke is coming out from his quarter. On this information, he rushed to his house and found that the deceased was lying in the bathroom having sustained bum injuries. One Dr. Datta was called, who told that the deceased has died. The matter was reported by the appellant, on which, Dehati Merge Intimation (Ex-P-8) was recorded. The post-mortem report (Ex-P-5) revealed that the cause of death was shock due to extensive anti-mortem bum injuries within 24 hours from the time of post-mortem examination. The case of the prosecution is that according to mother of the deceased namely- Kamlabati (P.W.3), the appellant used to harass the deceased on account of demand of dowry. She had already paid Rs. 16,000/- to the appellant in four Installments, but the appellant was demanding Rs. 20,000/- more and was harassing the deceased on this account, therefore, the deceased committed suicide by burning herself. The learned Session Judge relied on the testimonies of Kamlabati (P.W.3), Dheeraj Masih (P.W.5), Sarla Bose (P.W.10) and N.P. Rawate (P.W.11) and held that it was a case of dowry death and the appellant was liable for punishment under Section 304B IPC, and thus, the appellant was punished as above. 3. Mr. The learned Session Judge relied on the testimonies of Kamlabati (P.W.3), Dheeraj Masih (P.W.5), Sarla Bose (P.W.10) and N.P. Rawate (P.W.11) and held that it was a case of dowry death and the appellant was liable for punishment under Section 304B IPC, and thus, the appellant was punished as above. 3. Mr. Surendra Singh, learned Senior Advocate appearing on behalf of the appellant, argued that there was no evidence of demand of dowry soon before death; there was no evidence of treating the deceased with cruelty; there was absolutely no evidence to show that either the deceased was treated with cruelty by the appellant or there was any demand by the appellant in preceding 1 year, therefore, the evidence led by the prosecution clearly fails the proximity test and the conviction cannot be sustained. 4. On the other hand, Mr. Kishore Bhaduri, learned Additional Advocate General, appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard the learned counsel for the parties at length and have also perused the records of the Sessions case. 6. In Kamesh Panjiyar @ Kamlesh Panjiyar Vs. State of Bihar,(2005) 2 SCC 388, the Supreme Court held that "The expression 'soon before her death' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings into the importance of a proximity test as indicated by the said expression both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. The determination of the period which can come within the term "soon before" under Section 114 Illustration (a) is left to be determined by the Courts, depending upon the facts and circumstances of each case. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. The determination of the period which can come within the term "soon before" under Section 114 Illustration (a) is left to be determined by the Courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live-link between the effects of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. Similar view was reiterated in Prem Kanwar Vs. State of Rajasthan, AIR 2009 SC 1242. 7. In Suresh Kumar Singh Vs. State of U.P., 2009 AIR SCW 4014. it was held that Some harassment which had taken place one year prior to the death without something more could not have been considered to be a cruelty which had been inflicted soon before the death of the deceased and the same does not satisfy the proximity test. 8. Mr. Singh has mainly contended that in the instant case there is absolutely no evidence that there was any demand from the side of the appellant within the period of one year preceding the death of the deceased, therefore, the prosecution has failed to prove nexus between the alleged demand and the death. We have carefully examined the evidence of the above witnesses on which reliance has been placed by the sessions Court. Kamlabati (P.W.3) deposed in para 6 of her evidence that the appellant used to demand money from her. She had paid Rs. 16,000/- to the appellant in four installments. The deceased had visited her house one year prior to the incident and had told her that the appellant used to treat her with cruelty. In fact, the appellant had expelled the deceased from his house at that time. Though, she deposed in the cross-examination that the appellant was demanding Rs. 20,000/- more, but she has not deposed that when he demanded the above money. In fact, the appellant had expelled the deceased from his house at that time. Though, she deposed in the cross-examination that the appellant was demanding Rs. 20,000/- more, but she has not deposed that when he demanded the above money. Therefore, it is clear that if any demand of money was made, and the deceased was subjected to cruelty on account of that demand, it was an instance which occurred prior to one year of the death of the deceased. Dheeraj Masih (P.W.5) deposed that Kamlabati used to tell him that the appellant treats the deceased with cruelty. When she stated like above is not clear from his evidence. Moreover, his evidence to that effect was' hear-say' and not admissible. Sarla Bose (P.W.10) has not at all made any allegation against the appellant. On the contrary, she deposed that she does not know as to whether any conflict was there between the appellant and the deceased. N.P. Rawate (P.W.11) has also not deposed any material fact relating to treating the deceased with cruelty on account of demand of dowry soon before her death. 9. Mr. Singh has relied on the decision of Gurdeep Singh Vs. State of Punjab & Others, AIR 2011 SC 3616. in which the Supreme Court on the facts and evidence of the case has held that the evidence clearly fails the proximity test and the appellant was entitled to acquittal. 10. In appreciation of entire evidence available on record, we find no positive evidence of treating the deceased with cruelty by the appellant on account of demand of dowry in preceding one year period from the date of the incident. In the above facts and circumstances of the case, there is no evidence of existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death and in the said circumstances it cannot be held that the deceased was subjected to cruelty or harassment by the appellant soon before her death, which is an important ingredient of the offence punishable under Section 304B IPC. We are of the view that the evidence led by the prosecution in the above circumstances clearly fails the proximity test. 11. We are of the view that the evidence led by the prosecution in the above circumstances clearly fails the proximity test. 11. Apart from the above, Kamlabati (P.W.3) has also deposed that she had seen deep impression of throttling on the neck of the deceased and she had also seen that eyes and tongue of the deceased were protruded. All these facts are omission in her diary statement (Ex-D-3) recorded under Section 161 Cr.P.C. In the cross-examination, when she was faced with the above omissions, she could not explain the same and deposed that she had stated all this to the police and police might have changed her statement. This also creates doubt on her testimony because the above omissions were material. 12. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 304B IPC are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail, his bail bonds are cancelled and surety stands discharged. Appeal Allowed.