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2012 DIGILAW 814 (MP)

Brijmohan v. State of Madhya Pradesh

2012-08-23

N.K.GUPTA

body2012
JUDGMENT : N.K. Gupta, J. The appellant has preferred this appeal against the judgment dated 5.8.1996 passed by Additional Sessions Judge, Gadarwara, District Narsinghpur in ST. No. 182 of 1995 whereby the appellant is convicted for the offences punishable under Sections 306 and 498A of I.P.C. and sentenced for three years rigorous imprisonment with fine of Rs. 2000 and two years rigorous imprisonment with fine of Rs. 500. In default of payment of fine he has to undergo one year and six month rigorous imprisonment respectively. Prosecution's case in short is that the deceased Kalawati was the wife of the appellant. Their marriage took place in the year 1993. The appellant was habitually beating his wife after consuming liquor. On 30.8.1995 the appellant assaulted the deceased Kalawati after consuming some liquor and he also told the deceased Kalawati that she should commit suicide by pouring kerosene oil upon her. The deceased poured the kerosene oil upon her and set herself on fire. Thereafter, the appellant took the deceased to Primary Health Centre, Tendukheda. Dr. Ahirwar (P.W. 2) had sent an information to the Police about the incident and that the deceased was admitted in the hospital. On receiving a requisition, Dr. Ahirwar recorded the dying declaration Ex. P/8 of the deceased Kalawati. Investigation Officer Sub-inspector R.C. Jat (P.W. 7) had also recorded a dying declaration Ex. P/10 of the deceased. The deceased was shifted to the district Hospital, Narsinghpur but, she took her last breath at about 11.40 p.m. in the night. A Merge inquiry was initiated. In post-mortem, Dr. B.K. Saksena (PW 1) found that the deceased Kalawati died due to burn injuries. He gave his report Ex. P/2 in that respect. After taking evidence of the parents and relatives of the deceased, the Police had registered a crime and after due investigation a charge-sheet was filed before the Additional Chief Judicial Magistrate, Gadarwara who, committed the case to the Sessions Judge, Narsinghpur and ultimately it was transferred to the Additional Sessions Judge, Gadarwara. 2. The appellant abjured his guilt. He took a specific plea in the case that he was falsely implicated. He had more than a sum of Rs. 1 lac in his bank account and, therefore, there was no need for the appellant to harass the deceased Kalawati for dowry demand, etc. Actually she sustained the injuries while she was cooking. 2. The appellant abjured his guilt. He took a specific plea in the case that he was falsely implicated. He had more than a sum of Rs. 1 lac in his bank account and, therefore, there was no need for the appellant to harass the deceased Kalawati for dowry demand, etc. Actually she sustained the injuries while she was cooking. When it was informed to the parents of the deceased that she sustained burn injuries they demanded a sum of Rs. 1 lac from him and since he had not given that sum to the parents of the deceased they stated falsely against the appellant. In defence one Laxmi Prasad Soni (DW1) who took the deceased Kalawati to the hospital, was examined to explain the behavior of the parents of the deceased at that time. The learned Additional Sessions Judge after considering the evidence adduced by the parties convicted the appellant for the offence punishable under Sections 306 and 498A of IPC and sentenced as mentioned above. 3. I have heard the learned Counsel for the parties. 4. The learned Counsel for the appellant has submitted that the deceased died due to an accident and it was not a case of suicide. Police as well as the doctor had recorded the dying declarations due to the instigation of the parents and relatives of the deceased and also the dying declarations are inconsistent with each other and, therefore, they are not believable. In support of this contention learned Counsel for the appellant has placed his reliance upon the various judgments passed by Hon'ble the Apex Court in the case of State of Maharashtra Vs. Sanjay, (2004) 13 SCC 314 , Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka, (2007) 13 SCC 112 , Samadhan Dhudaka Koli Vs. State of Maharashtra, (2008) 16 SCC 705 ; and Muthu Kutty and Another Vs. State by Inspector of Police, Tamil Nadu, (2005) 9 SCC 113 . It is also submitted that the investigation was not fair and the appellant is falsely implicated in the matter. It is prayed that the appellant be acquitted from all the charges. In the alternate it is prayed that the appellant has suffered the trial and appeal since last 17 years and, therefore, he should not be sent to the jail again. 5. It is prayed that the appellant be acquitted from all the charges. In the alternate it is prayed that the appellant has suffered the trial and appeal since last 17 years and, therefore, he should not be sent to the jail again. 5. On the other hand the learned Panel Lawyer has submitted that the conviction and sentence directed by the Trial Court appears to be on the sound footings and therefore, there is no basis by which any interference can be done in the judgment. 6. After considering the submissions made by the learned Counsel for the parties and looking to the facts and circumstances of the case, it needs to be examined that whether the deceased Kalawati committed suicide? Whether the appellant harassed her in her life time? Whether the harassment comes within the purview of Section 107 of I.P.C.? Whether the appellant can be convicted for offence punishable u/s 498A or 306 of I.P.C.? and Whether the sentence imposed upon the appellant can be reduced? 7. The prosecution has examined Dr. B.K. Saksena (P.W. 1) to prove the post-mortem report. Dr. Saksena has categorically accepted in para 15 of the cross-examination that there was no smell of kerosene on the body of the deceased and, therefore, it is submitted by the learned defence Counsel that she died due to an accident at the time when she was cooking. However, Dr. Saksena saw the body after her death and before her death she was treated by Dr. Ahirwar (P.W. 2) and there was a possibility that her body could be cleaned at the time of her treatment. Dr. Ahirwar has stated that he examined the deceased Kalawati and recorded an MLC report (Ex. P/3). She sustained 90% burn injuries and a foul smell of kerosene was there on her body. In para 12 of his cross-examination, he has stated that some of her hair were found burnt but remaining hair of the deceased were present on the body and a deep smell of kerosene was coming out from her hair. There is no basis by which the testimony of Dr. Ahirwar can be disbelieved and, therefore, it is apparent that before sustaining the burn injuries the deceased got the kerosene poured upon her. It is not a case of the prosecution that some one else poured kerosene upon the deceased. In her dying declaration Ex. There is no basis by which the testimony of Dr. Ahirwar can be disbelieved and, therefore, it is apparent that before sustaining the burn injuries the deceased got the kerosene poured upon her. It is not a case of the prosecution that some one else poured kerosene upon the deceased. In her dying declaration Ex. P/8 as well as Ex. P/10 she had stated that she herself poured kerosene upon her and set herself on fire. Under such circumstances, looking to the evidence of Dr. Ahirwar (PW2) it cannot be said that the deceased sustained the burn injuries due to an accident but, certainly she herself poured the kerosene upon her and set herself on fire, Hence, it is a case of suicide. The learned Additional Sessions Judge has rightly held that it was a case of suicide. 8. Bala Prasad (PW3), father of the deceased, Prahlad (PW4), Ganesh Prasad (PW5), brothers of the deceased, have stated that the marriage of the deceased took place three years prior to her death. The appellant was not sending her to her parent's house frequently. He used to take her to her parents house and to return along with him only. Bala Prasad and Ganesh Prasad have stated that the deceased was taken to the house of her parents for once, two times or three times. There is a material contradiction between the evidence of these witnesses. However, it is confirmed by these witnesses that the appellant was taking the deceased to her parents house and bringing her back with him. According to the brother Ganesh Prasad the deceased came to her parents house for 2-3 times and her last visit to her parents house was a month before her death. 9. It is stated by Prahlad (PW4) that the appellant was not leaving his wife to her parents house because they could not provide a motor cycle to the appellant. In this connection a letter Ex. P/9 is produced before the Court at the time of evidence of Bala Prasad, the father of the deceased. It is objected by the learned defence Counsel that it was not proved that letter was written by the deceased because her handwriting was not compared with the handwriting of that letter and letter was written in the name "Radha" and not as "Kalwati". It is objected by the learned defence Counsel that it was not proved that letter was written by the deceased because her handwriting was not compared with the handwriting of that letter and letter was written in the name "Radha" and not as "Kalwati". Prahlad and Ganesh Prasad have stated that the appellant and his relatives named her as "Radha" and, therefore, letter was written in the name of "Radha" but it was written by the deceased "Kalawati". Though handwriting of the letter could not be compared with any standard handwriting of the deceased, Baia Prasad has accepted that he does not know who is "Radha". He has stated, that he had no knowledge that his daughter was also named as "Radha". However, the letter Ex. P/9 is an inland letter which was addressed to Prahalad Kumar (brother of the deceased) and senders name was Brij Mohan Kumar (the appellant). Letter was sent in the period of December 1993. It bears a clear seal of the Post Office dated 4.12.1993. The deceased died in the year 1995, therefore, in November and December 1993 where the dispute of the deceased and the appellant was not such that a false letter was to be created by the deceased or relatives of the deceased against the appellant. Under such circumstances, looking to the addresses of the Sender and Receiver and postal seal of the post office it is clear that the letter was written by the deceased in name of "Radha". 10. In the letter Ex. P/9 only one line is given that a motor cycle be provided to the husband of the deceased but, it appears that such demand was not prosecuted further. Otherwise in the subsequent two years, there should have been some dispute followed by demand. Prahlad and Ganesh Prasad could not state anything about the demand in their case diary statements. On the contrary Ganesh Prasad in his merge statement had stated that there was no grievance against the appellant. No Panchayat took place for such a demand and therefore, none of the witnesses have stated in their case diary statement about that demand of the motor cycle. It appears that a letter Ex. P/9 was searched and obtained by the father of the deceased, much after the death of the deceased and. No Panchayat took place for such a demand and therefore, none of the witnesses have stated in their case diary statement about that demand of the motor cycle. It appears that a letter Ex. P/9 was searched and obtained by the father of the deceased, much after the death of the deceased and. therefore, they changed their version in the Court accordingly but, if such demand was prosecuted by the appellant then that should be in the knowledge of the appellants and witnesses and they should have told to the police about that demand from the very beginning. Under such circumstances, version of letter Ex. P/9 has no force at present. It appears that appellant never prosecuted his demand of motor cycle further and therefore, it cannot be said that the appellant was harassing the deceased for demand of the dowry. If there was any harassment relating to the demand of the dowry then certainly the police had to file a charge-sheet for the offence punishable u/s 304B of I.P.C. but, in the charge-sheet no offence u/s 304B of I.P.C. was alleged. 11. Bala Prasad, Prahlad and Ganesh Prasad have stated that the deceased was complaining about the assault done by the appellant after consuming the liquor. There is no material contradiction about these fact in their evidence. Such allegation of harassment is duly supported by the dying declaration (Ex. P/8) recorded by Dr. Ahirwar (P.W. 2) and also by dying declaration (Ex. P/ 12) recorded by the Sub-Inspector R.C. Jat. The learned Counsel for the appellant has submitted that there is inconsistency in both the dying declarations and, therefore, they should not be believed. Dying declaration was to be recorded by the Executive Magistrate and, therefore, if it was recorded by a doctor in the absence of the witnesses then it should not be believed. 12. Shri Jat has stated that no Tahsildar or Naib Tahsildar is posted at Village Tendukheda and, therefore, it was not possible to obtain the presence of the Executive Magistrate for recording of the dying declaration and since the deceased was to be shifted to the District Hospital, Narsinghpur therefore, it was essential for the Investigation Officer as well as the Doctor to record the dying declaration. There is no inconsistency in both the dying declarations. Only few lines are additional in the dying declaration Ex. There is no inconsistency in both the dying declarations. Only few lines are additional in the dying declaration Ex. P/8 that the deceased had stated that the appellant directed her to commit suicide with the help of kerosene and he sweared on her parents that she should commit suicide. It is possible that such type of words could have been told by the deceased when a penetrating question was asked by the doctor and it was not told to the Investigation Officer because he did not ask such a question. He simply receded the statement of the deceased. Under such circumstances, there is no inconsistency in both the dying declarations. 13. To contradict the statements of Shri R.C. Jat, it is strange that the Trial Court had called Tahsildar Shri R.K. Shrivastava as a Court witness to show that whether he was available at Tendukheda on 30.8.1995 or not. Shri Shivastava has categorically informed that he was on leave on 30.8.1995 and he was at Bhopal at that time. Under such circumstances, it is conclusively proved that no Executive Magistrate was available at that time when the doctor recorded the dying declaration. It is also apparent that the parents and relatives of the deceased did not reach the Primary Health Center, Tendukheda and therefore, neither the deceased nor the doctor was under impression of her parents and relatives. There was no need to Dr. Ahirwar or Shri Jat to add any fact on their own while recording such a statement of the deceased. Learned Additional Sessions Judge asked a Court question that Shri Jat has recorded the statement of the deceased in absence of witnesses and, therefore, it was an act flouting the Police Regulations. If some one is dying then the Investigation Officer is entitled to record the case diary statement of that witness. For recording the case diary statement, there is no need of any witness and if that witness dies thereafter, then statement u/s 161 of the Cr.P.C. can be taken as a dying declaration and, therefore, if Shri Jat did not take any witness at the time of recording of the dying declaration then it makes no difference. 14. Under such circumstances, dying declarations recorded by Dr. Ahirwar and Sub-Inspector Shri Jat are acceptable. There is no infirmity in those dying declarations by which those can be discarded. 14. Under such circumstances, dying declarations recorded by Dr. Ahirwar and Sub-Inspector Shri Jat are acceptable. There is no infirmity in those dying declarations by which those can be discarded. In case of Sanjay (supra), Hon'ble the Apex Court discarded some portion of the dying declarations due to contradictions between the dying declarations. Similarly in the case of Mehiboob Sab Abbasabi Nadaf (supra), there were four dying declarations in which there was a material contradiction and, therefore, due to inconsistency those dying declarations were discarded. In the case of Samadhan Dhudaka Koli (supra), it was observed that not only the contents of the dying declarations but, also the manner in which it is recorded and details thereof play a significant role. It is held that dying declaration should be true and voluntary. 15. The learned Counsel for the appellant has also placed his reliance on the judgment passed by Hon'ble the Apex Court in the case of Muthu Kutty (supra), in which it is laid by Hon'ble the Apex Court that a dying declaration can be a sole basis of conviction if it inspires full confidence of the Court and Court should be satisfied that deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or product of imagination. In the present case, it is apparent that there was no opportunity of the Police to call any Executive Magistrate. There was nobody from the side of the parents and relatives of the deceased at that time to tutor her. The doctor and the Investigation Officer had no reason to create a false statement of the deceased at that time, Dr. Ahirwar has stated that she was in a condition to give her statements and looking to the contents of the recorded dying declarations it appears that it is a natural statement of the deceased. She replied the questions asked either by the doctor or the Investigation Officer, Doctor recorded the dying declaration in a question answer form whereas Shri Jat recorded as a statement of the deceased. Under such circumstances, those judgments passed by Hon'ble the Apex Court cannot be applied here due to different set of factual position. She replied the questions asked either by the doctor or the Investigation Officer, Doctor recorded the dying declaration in a question answer form whereas Shri Jat recorded as a statement of the deceased. Under such circumstances, those judgments passed by Hon'ble the Apex Court cannot be applied here due to different set of factual position. In the light of ratio laid in the case of Muthu Kutty (supra) both the dying declarations in the present case are believable and it is proved that the deceased was observing the fast and, thereafter, the appellant came in a drunken state assaulted and harassed her. Ultimately he directed her to commit suicide. 16. It appears that no one will direct his wife to commit suicide in such a position. Certainly when he assaulted his wife, she must have given a threat that due to his harassment she would commit suicide and, therefore, the appellant reacted and directed her to commit suicide with the help of kerosene kept in the can and also he sweared upon her parents so that she could commit suicide. Now it is to be considered that whether the overt act of the appellant comes within the purview of Section 107 of I.P.C.? 17. It is stated by the various witnesses including the father and brothers of the deceased that the appellant was in a habit to assault the deceased after consuming some liquor. He was harassing the deceased in such a manner. He was not permitting the deceased to go to her parents house by her own. Under such circumstances, the overt act of the appellant proved by these witnesses comes in the purview of offence punishable u/s 498A of the I.P.C. 18. Learned Counsel for the appellant has submitted that if the appellant was insisting that the deceased, should commit suicide then he would not have taken her to the hospital. The argument advanced by the learned Counsel for the appellant is contrary to the defence evidence adduced by the appellant. One Laxmi Prasad Soni (D.W. 1) was examined to prove the relations of the appellant with the deceased, but, he has stated in his examination-in-chief that he was called by the appellant. When he reached to the house of the appellant, the deceased was lying and the appellant was sitting. One Laxmi Prasad Soni (D.W. 1) was examined to prove the relations of the appellant with the deceased, but, he has stated in his examination-in-chief that he was called by the appellant. When he reached to the house of the appellant, the deceased was lying and the appellant was sitting. The appellant directed the witness to take the deceased to the hospital and lodge a report in the Police Station. Thereafter, Laxmi Prasad Soni, Kamlesh and Suresh Kumar Purohit took the deceased in a jeep to the Primary Health Centre, Tendukheda. From, the evidence of the defence witness Laxmi Prasad Soni, two important facts came out, firstly that the appellant neither visited the hospital with his wife nor lodged any FIR in the Police Station by himself. Secondly, the incident took place at about 2.30 p.m. in the afternoon but, the deceased was not sent to the hospital before 5.00 p.m. in the averting. Appellant did not take any step to save the life of his wife and therefore, it cannot be said that the appellant had not intended, that his wife should not die. 19. The appellant firstly assaulted his wife after taking some drink etc. whereas he knew that his wife had observed the fast since last 2-3 days. When the wife retorted due to his harassment then he challenged her to commit suicide and, thereafter, he did not take care to send his wife to the hospital immediately or to take her to the hospital by himself. Looking to the overt act of the appellant as depicted in the dying declarations and by the defence witness Laxmi Prasad Soni, it is apparent that the challenge given to the wife was not given in a drunken condition but, it was the actual challenge given to the wife and, therefore, the appellant abated his wife to commit suicide. Hence his overt act comes within the purview of Section 107 of the I.P.C. 20. Hence his overt act comes within the purview of Section 107 of the I.P.C. 20. In the present case the deceased died within three years of her marriage and, therefore, presumption u/s 113A of the Evidence Act is also applicable in the case and, therefore, looking to the overt acts as established by the dying declarations and the parents and relatives of the deceased, the appellant did not leave any option to the deceased except to commit suicide and, therefore, when the overt act of the appellant comes within the purview of Section 107 of I.P.C., he is guilty of offence punishable u/s 306 of I.P.C. The Trial Court has rightly convicted the appellant for that offence. 21. So far as the sentence is concerned, it is true that the appellant suffered the trial for last 17 years but, looking to his overt act and the sentence imposed by the Trial Court it appears that the Trial Court was already lenient to the appellant. Only three years rigorous imprisonment was directed against the appellant for the offence punishable u/s 306 of I.P.C. and therefore, there is no basis by which the sentence can be reduced again. The sentence passed for offence punishable u/s 498A of I.P.C. may be reduced but, since sentences are to run concurrently such reduction will not make any difference in the total sentence of the appellant. Under such circumstances, there is no need to reduce the sentence for the offence punishable u/s 498A of the I.P.C. 22. On the basis of the aforesaid discussion the appeal filed by the appellant cannot be accepted and, therefore, it is dismissed in toto. The conviction as well as the sentence directed for the offence punishable under Sections 306 and 498A of I.P.C. is hereby maintained. The appellant is directed to surrender before the Trial Court forthwith so that the jail sentence as well as the default sentence may be executed. A copy of the judgment be sent to the Trial Court with its record for information and speedy compliance.