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2012 DIGILAW 30 (CHH)

BIRENDRANATH GAREWAL v. STATE OF M. P.

2012-01-19

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 10-6-1996 passed by 6th Additional Sessions Judge, Durg in Sessions Trial No.494/1993. By the impugned judgment, accused/appellant Birendranath Garewal has been convicted under Sections 304-B and 498-A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and two years, respectively. Both the sentences are directed to run concurrently. By the said judgment, the learned Additional Sessions Judge acquitted other accused persons Kedarnath Garewal and Jitendra Garewal of the charges framed against them. 2. Case of the prosecution, in brief, is as under: Deceased Anita was married with the appellant on 4-5-1992. After one year of the marriage, when she came to her maternal house, she told her mother that the appellant used to beat and ill-treat her. He used to come home in drunken state. The appellant intended to start some business and for that purpose he was asking and ill-treating her to bring an amount of Rs. 10,000/- from her parents. He used to say that until she brings the amount of Rs.10,000/-, he will not keep her with him. On 28.5.1993, the deceased had written an inland letter to her father that the appellant used to ill-treat her and she had also written therein to give the amount of Rs. 10,000/- to the appellant. It was also written by the deceased therein that the appellant had illicit relationship with his sister-in-law (Bhabhi: and with some other girl. On the next day, i.e., 29-5-1993, the deceased got burnt in unusual circumstances, but the accused persons did not report the incident in police station nor they took her to Nandani Mines Hospital, which is situated at a distance of thirty steps from their house. The accused persons deliberately caused delay in her treatment and she was taken to Durg Hospital, which is situated three kilometers away from their house. The accused persons cleaned-up the place of occurrence and thereby tried to eliminate the evidence of occurrence. After death of the deceased, her father Udayram (PW-6) made a written complaint (Ex.P-2) to Inspector General of Police, Bhilai Range, Bhilai (Durg). On the basis of written complaint (Ex.P.2), Crime No.67/93 under Sections 304-B and 498-A of the Indian Penal Code was registered against the appellant and the acquitted accused persons. The deceased was sent for treatment to District, Hospital, Durg vide Ex.P•l. Dr. On the basis of written complaint (Ex.P.2), Crime No.67/93 under Sections 304-B and 498-A of the Indian Penal Code was registered against the appellant and the acquitted accused persons. The deceased was sent for treatment to District, Hospital, Durg vide Ex.P•l. Dr. V.R.Meshram (PW -7) admitted the deceased in the hospital and gave a certificate (Ex.P-5) that she was fit to make dying declaration. A Head Constable recorded dying declaration of deceased Anita vide EX.P-5. During the treatment, the deceased died. The Investigating Officer reached the place of occurrence and gave notice (Ex.P-4A) to Panchas and prepared inquest (Ex.P-4) on the body of the deceased. The dead body of the deceased was sent for post mortem examination to District Hospital, Durg vide EX.P-6. Post mortem was conducted by Dr. M.C.Mehnot (PW-8), who gave his report vide Ex.P-6, in which, he found 95% ante mortem burn injuries. He opined that the cause of death was shock due to extensive ante mortem burn. In further investigation, inland letters (Ex.P-3A to Ex.P-3D) and other letters [Ex.P-3(1) to Ex.P-3(12)] were seized. An other letter was seized from acquitted accused Kedarnath Garewal vide Ex.P-7. After completion of the investigation, charge sheet was filed against the appellant and other accused persons Kedarnath Garewal and Jitendra Garewal in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Session, from where, it was received on transfer by 6th Additional Sessions Judge, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Smt. Meena Shastri, learned counsel for the appellant argued that the prosecution utterly failed to prove a case of dowry death against the appellant. The prosecution also failed to prove that the deceased was subjected to cruelty or harassment by the appellant in connection with any demand for dowry. The provisions of Sections 113-A and 113-B of the Evidence Act are not applicable in this case. The prosecution had not established that prior to the death of the deceased she had been either subject to cruelty or harassment or for any demand of dowry. Evidence in this is wholly insufficient to convict the appellant. Looking to the evidence of Udayram (PW -6), it appears that after the incident took place on 29-5-1993 and FIR (Ex.P-2A) was lodged on 8-6-1993, i.e., after delay of 10 days of the death of the deceased. Evidence in this is wholly insufficient to convict the appellant. Looking to the evidence of Udayram (PW -6), it appears that after the incident took place on 29-5-1993 and FIR (Ex.P-2A) was lodged on 8-6-1993, i.e., after delay of 10 days of the death of the deceased. In cross-examination, Udayram (PW6) specifically stated that on 29-5-1993, he and his wife Rambai (PW-1) had stayed at the house of the appellant. He further stated that it is true that being aggrieved with the death of his daughter Anita, he made the written complaint (Ex.P-2). The evidence of Rambai (PW-1) and Udayram (PW-6) were full of omissions as to their statements to the police and in the Court during the trial. Therefore, the evidence of prosecution witnesses are not reliable and cogent and conviction cannot be based on their testimonies. Learned counsel further argued that when the deceased was admitted in District Hospital, Durg in burnt condition, Dr. Y.R.Meshram (PW -7) gave certificate that injured Anita (the deceased) was physically and mentally fit to make statement. Head Constable Durga Prasad recorded dying declaration of deceased Anita. Dr. V.R.Meshram (PW-7) was examined by the prosecution itself. Therefore, his statement made before the Court is binding on the prosecution. The appellant deserves to be acquitted of the charges framed against him. Learned counsel placed reliance on Amar Singh Vs. State of Rajasthan : (2010) 9 SCC 64, Raman Kumar Vs. State of Punjab, (2009) 16 SCC 35 and Appasaheb and another Vs. State of Maharashtra, 2007 AIR SCW 456. 4. Shri M.P.S.Bhatia, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court. 5. Having heard the rival contentions of the parties, I have perused the record of Sessions Trial No.494/1993. The conviction of the appellant under Sections 304-B and 498-A of the Indian Penal Code is based on the evidence of Rambai (PW-1), Sunita (PW-2) and Udayram (PW-6). 6. It is not disputed that the marriage of the deceased was performed with the appellant within seven years of her death. It is also not disputed that the death of the deceased was otherwise than under normal circumstances within seven years of her marriage. 7. 6. It is not disputed that the marriage of the deceased was performed with the appellant within seven years of her death. It is also not disputed that the death of the deceased was otherwise than under normal circumstances within seven years of her marriage. 7. Now, I shall examine whether the prosecution is able to prove that the deceased was subjected to cruelty or har11ssment, which was sufficient to compel her to commit suicide in connection with any demand for dowry soon before her death. 8. Rambai (PW-l) deposed that her daughter Anita (the deceased) had come back to her maternal house after one year of her marriage on the occasion of Holi festival. She had told her that the appellant used to make a demand of an amount of Rs.10,000/- for starting some business and say her to bring the amount from her. parents. She had also told that the appellant did not like her and used to ill-treat her. She also told her that if money will not be given to the appellant and she will be sent to her matrimonial house, the appellant will kill her. 9. Udayram (PW-6) deposed that his daughter Anita (the deceased) had come to his house after her marriage on the occasion of Holi festival. She had told him that the appellant had illicit relationship with s9me girl and he used to make a demand of an amount of Rs.10,000/-. The appellant used to say her that if she will not bring the money from her parents, he will not keep her with him. He further deposed that on 28-5-1993, he received an inland letter written and sent by his daughter Anita (the deceased). In the said letter, it was written by the deceased that the appellant had illicit relationship with his sister-in-law (Bhabhi) and with some other girl. On the next day, i.e., 295-1993, the deceased got burnt in unusual circumstances. He further deposed that younger brother of the appellant, namely, Babloo came to his house on 29-5-1993 and told him that the deceased had got burnt and she was admitted in hospital. Rambai (PW -1) deposed in similar fashion. 10. Udayram (PW-6) deposed that he made written complaint (Ex.P2) to the Inspector General of Police, Bhilai Range as also to other police officers. 11. Rambai (PW -1) deposed in similar fashion. 10. Udayram (PW-6) deposed that he made written complaint (Ex.P2) to the Inspector General of Police, Bhilai Range as also to other police officers. 11. Now, I shall examine whether the evidence of Rambai (PW-l) and Udayram (PW-6) are sufficient to convict the-.appellant under Sections 304B and 498-A of the Indian Penal Code. 12. Rambai (PW-1) deposed in cross-examination that the letter which was received by them was signed by her daughter Anita (the deceased). The deceased had written in the letter that father-in-law and mother-in-law loved her very much, but her husband (the appellant) used to ill-treat her. The deceased had not written in the letter that lqfurk ikl gks xbZ c/kkbZ gks] vkSj mUgsa 10 gtkj :- ns fnft,xk] . She further deposed that after the death of the deceased when they came, police had enquired them and as they had stated, so was written by the police. It is true that at that time, they had not stated anything against the appellant and the acquitted accused persons. 13. Sunita (PW-2) deposed in cross-examination that it is true that in letter dated 28-5-1993, it is mentioned that lqfurk ikl gks xbZ c/kkbZ gks] vkSj mUgsa 10 gtkj :- ns fnft,xk] . She further deposed that she liked her brother-in-law (Jija the appellant). It is also true that since her sister Anita (the dece1sed) had died, therefore, she disliked the appellant. She further deposed that it true that police had recorded her statement after 12-15 days of death of the deceased. After death of the deceased, she or her father had not made any report in police station. 14. Udayram (PW-6) deposed in cross-examination that it is true that at the time of marriage of the deceased, there was no negotiation of dowry. It is also true that the accused persons had performed the last rituals of deceased Anita properly. He further deposed that on 29-5-1993, father of the appellant told him that deceased Anita had got burnt at the time of worshipping. It is also true that being aggrieved with the death of his daughter Anita, he made the written complaint (Ex.P-2). 15. Udayram (PW-6) deposed that it is true that from 29-5-1993 to 56-1993, he had not made any statement against the accused persons. It is also true that being aggrieved with the death of his daughter Anita, he made the written complaint (Ex.P-2). 15. Udayram (PW-6) deposed that it is true that from 29-5-1993 to 56-1993, he had not made any statement against the accused persons. He further deposed that it is true that during the inquest proceeding, he himself 'and his wife were present and his wife had signed the inquest as a witness. Rambai (PW-1) deposed that it is true that she was present during the inquest. It is also true that during the inquest proceeding, she had not stated anything about her son-in-law (Damad). It is also true that as they had stated, so the police had written. On 29-5-1993, he and his wife had stayed at the house of the accused persons. He further deposed that there was no negotiation with the accused persons about dowry. It is true that the accused persons had performed the last rituals of the deceased properly. On 29-5-1993, when the dead body of the deceased was taken to Nandani, at that time, father-in-law of the deceased had told him that the deceased had got burnt at the time of worshipping. It is true that he had participated in all proceedings of the police on that date and had made signatures after reading the papers, but he had not made any report in the police on that date. It is true that being aggrieved with the death of his daughter (the deceased), he made the written complaint (Ex.P-2). 16. In order to hold an accused guilty of offence under Section 304B of the Indian Penal Code, it has to be shown that apart from the fact that the woman died on account of bum or bodily injury otherwise than under normal circumstances, within seven years of her marriage, it has also been shown that soon before her death, she was subjected to cruelty or harassment by her husband or by any relative of her husband for, or in connection with, any demand for dowry. Only then would such death be called "dowry -death" and such husband or relative shall be deemed to have causes the death of the woman concerned. 17. In Appasaheb and another Vs. State of Maharashtra (supra), the Hon'ble Supreme Court observed thus: "9. Only then would such death be called "dowry -death" and such husband or relative shall be deemed to have causes the death of the woman concerned. 17. In Appasaheb and another Vs. State of Maharashtra (supra), the Hon'ble Supreme Court observed thus: "9. Two essential ingredients of Section 304-B IPC, apart from others, are (i) death of woman is caused by any bums or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for "dowry". The explanation appended to sub-section (1) of Section 304-B IPC says that "dowry" shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961. Section 2 of Dowry Prohibition Act reads as under :- "2. Definition of "dowry" - In this Act "dowry" means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies. In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statue that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands; to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India Vs. Garware Nylons Ltd., AIR 1996 SC 3509 and Chemicals and Fibres of India Vs. Union of India, AIR 1997 SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is lot established, the conviction of the appellants cannot be sustained." 18. In the instant case, in the written complaint (Ex.P-2), a reference was made to a "letter purportedly to have been written by the deceased to Udayram (PW-6). This letter is marked as Ex.P•3A. A bare perusal of the letter (Ex.P-3A) clearly shows that there is not even a whisper about any demand. In Ex.P-3A, it is mentioned that lqfurk ikl gks xbZ c/kkbZ gks] vkSj mUgsa 10 gtkj :- ns fnft,xk] . From perusal of letter (Ex.P-3A), it does not appear that the appellant made any demand for dowry. On consideration of the letters written by the deceased to Sun ita (PW -2) dated 15-11-1992 (Ex.P-3C), to Sunita (PW2), Rambai (PW-1) and Udayram (PW -6) dated 21-12-1992 (Ex.P-3B) and to appellant Birendranath dated 14-7-1992 (Ex.P-3D), it is found that they, do not support the case of the prosecution that the deceased was being subjected to torture and harassment or was being constantly taunted for not bringing dowry. From perusal of the letters (Ex.P-3C and Ex.P-3D), it appears that the relationship between the appellant and the deceased was cordial. From perusal of the letters (Ex.P-3C and Ex.P-3D), it appears that the relationship between the appellant and the deceased was cordial. These letters indicate that they were in normal and happy relationship. The letters (Ex.P3B and Ex.P-3C) also do not contain any imputation against the appellant. In these two letters, there is no reference to any demand by anyone. On the contrary, there is acknowledgment of the fact that the deceased, in her matrimonial house, was the recipient of abundant love and affection. 19. In the instant case, Ex.P-5 is the dying declaration recorded by Head Constable Durga Prasad. Durga Prasad was not examined by the prosecution. In Ex.P-5, Dr. Y.R.Meshram (PW-7) gave a certificate that the deceased was fit to make dying declaration. Dr. Y.R.Meshram (PW-7) was examined by the prosecution itself. 20. In Smt. Laxmi Vs. Om Prakash and others, the Hon'ble Supreme Court held thus : "A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by Investigating Officer has been discouraged and this court has urged the Investigating Officers availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the Investigating Officer or the police officer later on relied on as dying declaration." 21. The Hon'ble Supreme Court held that in ordinary course, dying declaration is not recorded by police officer, but if any statement was recorded by a police officer as dying declaration, that can be relied on and be admissible in evidence. In the instant case, EX.P-5 is produced by the prosecution. The Hon'ble Supreme Court held that in ordinary course, dying declaration is not recorded by police officer, but if any statement was recorded by a police officer as dying declaration, that can be relied on and be admissible in evidence. In the instant case, EX.P-5 is produced by the prosecution. In the dying declaration (Ex.P-5), it is mentioned as under: ^^iz- vki ds ifr ls vki dk dSlk laca/k gS mRrj & esjs ifr ls esjk laca/k cgqr vPNk gS] iz- vki ls fdlh ls >xM+k tks ugha gS mRrj & ugha iz- vki dks dksbZ tyk;k rks ugha gS mRrj & esjh ‘kknh gq, ,d o”kZ gqvk gS iz- vki dSls tyh gS ------------------ vxjcRrh tykbZ mlds ckn nh;k tykdj vkjrh mrkjh fQj nh;k Hkxoku ds ikl j[kdj iyV dj eqM+ jgha Fkh fd nh;k dh yid VsjhdkV dh lkM+h tks eSa iguh Fkh mlesa ihNs rjQ iYyw esa idM+ fy;k vkSj tyus yxk fQj eSa fpYykrs gq, ckgj fudyh fQj ?kj ds lHkh lnL; vk x;s vkSj esjk NksVk nsoj lpfu us ikuh Mkydj cq>k;k vkSj esjs nsoj ftrsUnz us gkFk ls cq>k;k** 22. EX.P-5 is the document produced by the prosecution, but, the same is used by the defence in its favour. The evidence of Dr. Y.R.Meshram (PW7) is found to be reliable. Perusal of the document Ex.P-5 shows that the death of the deceased was accidental. 23. Looking to the facts and circumstances as available on record and the evidence of the prosecution witnesses, it appears that since the deceased had died due to burn injuries, therefore, possibility of implication of accused persons by the parents and the sister of the deceased cannot be ruled out. 24. In the instant case, Rambai (PW-1) and Udayram (PW-6) improved their version in the Court. From perusal of evidence of Udayram (PW -6), it appears that from 29-5-1993 to 5-6-1993, he had not made any statement against the appellant, but since his daughter Anita (the deceased) had got burnt, he, being aggrieved with her death, made the written complaint (Ex.P-2). 25. From the above discussion and circumstances, I find that the evidence of prosecution witnesses are not reliable and cogent. On the basis of evidence available on record, conviction of the appellant cannot be based under Sections 304-B and 498-A of the Indian Penal Code. The prosecution utterly failed to prove the charges against the appellant. 25. From the above discussion and circumstances, I find that the evidence of prosecution witnesses are not reliable and cogent. On the basis of evidence available on record, conviction of the appellant cannot be based under Sections 304-B and 498-A of the Indian Penal Code. The prosecution utterly failed to prove the charges against the appellant. For the reasons aforementioned, the impugned judgment cannot be sustained. 26. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 304-B and 498-A of the Indian Penal Code are set aside and the appellant is acquitted of the said charges. He is on bail. The sureties and bail bonds furnished by him are discharged. Appeal Allowed.