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Madhya Pradesh High Court · body

2012 DIGILAW 986 (MP)

Pavan Kumar and 2 Others v. State of M. P.

2012-10-04

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.;- 1. Both the criminal appeals arose from a common sessions trial. The evidence is common therefore the appellants Pawan Kumar, Halkebhai etc. have preferred this appeal against the judgment dated 14.8.1997 whereas the appellant Gopi Bai has preferred this appeal against the judgment dated 26.11.1999 passed by IIIrd Additional Sessions Judge, Sagar in ST No. 333/1993 and therefore, both the appeals are decided by a common judgment. The appellants have preferred these appeals against the judgments dated 14.8.1997 and 26.11.1999 passed by the learned IIIrd Additional Sessions Judge, Sagar in ST No. 333/1993 whereby the appellants were convicted for offences punishable under Sections 498A of I.P.C. and Section 4 of the Dowry Prohibition Act and sentenced for two years rigorous imprisonment with fine of Rs. 500/- and one years rigorous imprisonment with fine of Rs. 500/- In each default of payment of fine two months additional imprisonment was directed. 2. The prosecution's case in short is that on 16.5.1993 Narayan Prasad (PW 1) had submitted a merg intimation Ex. P/1 to the Police Station Rehli, District Sagar that his daughter Sudha had expired on 16.5.1993 at about 11.00 a.m. in her husband's house. She was married to the accused Halkebhai. The appellants were demanding dowry from the deceased and her parents. They were demanding a fan and T.V. Due to that appellants declined to send the deceased Sudha to the house of her parents for 2-3 times. Ultimately the complainant Narayan Prasad delivered a fan 15 days prior to her death to the appellants but, they did not send his daughter with him. It is suspected by the complainant that the deceased was killed by the appellants. He had also stated in the merg intimation that he was informed by appellant Pavan and one Sishu that the daughter of the complainant had expired then the complainant informed that he would lodge a report at Police Station Gadhakota and thereafter he would visit the house of the appellants. However, the cremation was done by the appellants on the same day. After receiving the merg intimation a panchayatnama lash was prepared of the remains of the deceased Sudha after her funeral. Some portion of remains was send for forensic science analysis but, according to the Forensic Science Laboratory, no poison was found in her remains. However, the cremation was done by the appellants on the same day. After receiving the merg intimation a panchayatnama lash was prepared of the remains of the deceased Sudha after her funeral. Some portion of remains was send for forensic science analysis but, according to the Forensic Science Laboratory, no poison was found in her remains. After due investigation a charge sheet was filed before the JMFC Rehli who committed the case to the Sessions Court, Sagar and ultimately it was transferred to the IIIrd Additional Sessions Judge, Sagar (Camp Rehli). 3. The appellants abjured their guilt. They have stated that the deceased was kept with comfort. There was no demand from the side of the appellants. The deceased died due to her abdominal problem. Her death was a natural death. Father of the deceased was duly informed about the death of the deceased but, neither he went to the house of the appellants nor he had lodged any report within 4-5 hours of the intimation and therefore, funeral of the deceased Sudha was done in a routine manner. In defence Shriram Pandey (DW 1) and Dr. Munnalal (DW 2) were examined. 4. After considering the evidence adduced by the parties the learned IIIrd Additional Sessions Judge vide judgment dated 14.8.1997 acquitted the appellants Pavan Kumar, Halkebhai, Jwala Prasad Pandey and Ramanbai for offences punishable under Sections 304B and 201 of I.P.C. but convicted them for offences punishable under Section 498A of I.P.C. and Section 4 of Dowry Prohibition Act and sentenced them as mentioned above. When the appellant Gopi Bai was arrested a fresh trial was directed but the learned Additional Sessions Judge did not examine the witnesses afresh. Their examination-in-chief was used as it is and an opportunity of cross examination was given to the appellant Gopi Bai and thereafter vide judgment dated 26.11.1999 the learned IIIrd Additional Sessions Judge, Sagar (Camp Rehli) acquitted the appellant Gopi Bai from the charges of offences punishable under Sections 304B and 201 of I.P.C. but convicted her for offences punishable under Section 498A of I.P.C. and Section 4 of Dowry Prohibition Act and sentenced as mentioned above. 5. During the pendency of the appeal the appellant Jwala Prasad Pandey expired and therefore, the appeal filed by him was declared abated. 6. I have heard the learned counsel for the parties at length. 7. 5. During the pendency of the appeal the appellant Jwala Prasad Pandey expired and therefore, the appeal filed by him was declared abated. 6. I have heard the learned counsel for the parties at length. 7. The learned counsel for the appellants has submitted that the deceased was kept with comfort. The parents of the deceased did not reach to the house of the appellants after her death and the appellants did wait for them up to the evening and thereafter, cremation was done. The parents and relatives of the deceased intentionally avoided to lodge an FIR against the appellants for at least six hours. Thereafter, with due consultations and deliberations they cooked a story of demand of dowry etc. against the appellants. There is a lot of contradictions between the evidence given by the various witnesses relating to facts of demand. A fake receipt was prepared for the purchase of a fan which was never provided to the deceased. The appellants are falsely implicated in the matter. Omnibus allegations were made against the appellants without any basis. Under such circumstances, the appeal filed by the appellants may be accepted and they may be acquitted. In the alternate it is submitted that the appellants Pavan Kumar and Halkebhai remained in the custody for 8 months whereas the remaining appellants who are women remained in the custody for 15 days to two months and therefore, when they have faced the trial and appeal for last 19 years, they may not be send to the jail again. 8. On the other hand the learned Public Prosecutor for the State has submitted that it was a case of dowry demand and the appellants cremated the body of the deceased in hurry haxt which shows their guilt and they are properly punished by the trial Court and therefore, it is prayed that both the appeals may be dismissed. 9. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case it is to be considered as to whether the appeals filed by the appellants can be accepted ? And whether the sentence directed against the appellants may be reduced ? 10. Looking at the evidence adduced by the parties, it is apparent that the appellants Pavan along with one Sishu went to inform the parents of the deceased that she had expired. And whether the sentence directed against the appellants may be reduced ? 10. Looking at the evidence adduced by the parties, it is apparent that the appellants Pavan along with one Sishu went to inform the parents of the deceased that she had expired. Narayan Prasad (PW 1) father of the deceased, did not visit to the Police Station Gadhakota or any Police Station within due time. The appellants were residents of Bagrona and therefore, a report was required to be lodged at Police Station Rehli. No reason has been shown by the complainant Narayan Prasad as to why he did not visit either the Police Station Rehili or Gadhakota soon after the intimation received by him about the death of his daughter. Merg intimation Ex. P/1, lodged at about 10.10 p.m. in the night which indicates that delay of at least 8 hours was caused by the complainant in making an FIR. It was open for the complainant to send some one to the house of the appellants to stop the cremation but no such step was taken by the complainant. It indicates that the complainant did wait till the cremation so that he could lodge an FIR thereafter in a forceful manner. However, a delay of eight hours was caused in lodging the merg intimation and therefore, the possibility of concoction cannot be ruled out. Under such circumstances, the learned Additional Sessions Judge acquitted the appellants from the charge of offence punishable under Section 201 of I.P.C. Hence it was not proved that the death of the deceased was due to any unnatural circumstances. According to the defence witnesses viz. Shriram Pandey (DW 1) and Dr. Munnalal (DW 2) the deceased was in a very poor health condition. Since she was pregnant, she had pain in the stomach. She was constantly vomiting etc. and ultimately she died. Under such circumstances, the trial Court has acquitted the appellants for offence punishable under Section 304B of I.P.C. 11. Narayan Prasad (PW 1) father of the deceased, Kundan (PW 5) cousin of the deceased, Krishna Bai (PW 6) aunt of the deceased, Vijay Kumar (PW 7) brother of the deceased, Awadh Rani (PW 10) mother of the deceased and Asha (PW 12) sister-in-law of the deceased were examined to support the prosecution's version. Narayan Prasad (PW 1) father of the deceased, Kundan (PW 5) cousin of the deceased, Krishna Bai (PW 6) aunt of the deceased, Vijay Kumar (PW 7) brother of the deceased, Awadh Rani (PW 10) mother of the deceased and Asha (PW 12) sister-in-law of the deceased were examined to support the prosecution's version. It is alleged against the appellants that they were demanding for a fan and a T.V. and therefore the deceased was not sent to the house of her father in support of that demand. It is also submitted that the fan was provided by the complainant Narayan Prasad to the appellants 15 days prior to her death and therefore, a receipt Ex. P/10 was also proved by one vendor Rishab Kumar Jain (PW 9). It is also stated by Awadh Rani, Asha and Krishna Bai that Ramanbai and Gopi Bai were in the habit to say that the face of the deceased was ugly and they were in habit to abuse her due to that reason. Such allegations made by these witnesses were not corroborated by the complainant Narayan Prasad, Kundan or Vijay. It is also pertinent to note that such allegations are made by the witnesses in the Court contrary to their case diary statements. Under such circumstances, the allegations made against the appellants Gopi Bai and Ramanbai about their criticizing the deceased about her face etc. appears to be an after thought. Under such circumstances, if entire evidence is perused then there is no specific allegations against the appellants Gopi Bai and Ramanbai that they had harassed the deceased in any manner or they did any cruelty to her. It is no where stated by any one that, the appellant Gopi Bai or Ramanbai participated in the alleged demand of a fan or a T.V. Under such circumstances, there is no evidence as such against the appellants Gopi Bai and Ramanbai by which they could be convicted for offences punishable under section 4 of the Dowry Prohibition Act or Section 498A of I.P.C. 12. There is a lot of contradiction in the evidence given by the witnesses to the factual position of demand of a fan and a T.V. Looking to the status of Narayan Prasad it appears that he was a big cultivator and therefore, it was not difficult for him to provide a fan or T.V. to the appellants if they had demanded. He has stated that when the witnesses Chatru (PW 2) informed him about the demand of fan, he immediately purchased a fan from the shop of Rishab Kumar Jain and provided that fan to the appellants. His conduct indicates about his financial capacity but, it is apparent that he never provided any fan or T.V. to the appellants which indicates that there was no demand of such things. 13. Narayan Prasad, Kundan and Vijay have stated that when Chatru informed them about the demand, the complainant Narayan Prasad purchased a fan from Rishab Kumar Jain and gave it to the appellants. However, the story of Chatru appears to be a falsehood. If Chatru had informed the complainant about the demand then certainly Chatru must be examined by the Police soon after the incident whereas case diary statement of the witness Chatru was recorded two months after the death of the deceased and therefore, story of demand through the witness Chatru appears to be incorrect. Narayan Prasad has stated that he provided the fan to the appellants 15 days prior to the death of the deceased Sudha but the appellants did not permit the deceased to go to the house of the complainant. Whereas Kundan (PW 5) has stated that fan was provided to the appellants 2-3 months prior to the death of the deceased Sudha. The difference in time told by these witnesses is a material contradiction which makes a doubt about the delivery of a fan. The complainant Narayan Prasad has accepted that when he delivered the fan to the appellants he also delivered the receipt of its payment and again he took a second receipt from the vendor which was provided to the Police. That second receipt is Ex. P/10. Rishab Kumar Jain (PW 9) has stated that he did not issue any duplicate receipt whereas Ex. P/10 was the original single receipt given to the complainant. That second receipt is Ex. P/10. Rishab Kumar Jain (PW 9) has stated that he did not issue any duplicate receipt whereas Ex. P/10 was the original single receipt given to the complainant. The contradictions between the statements given by the complainant Narayan Prasad and Rishab Kumar Jain indicates that a fake receipt Ex. P/10 was prepared by the vendor Rishab Kumar Jain and given to the complainant and therefore, by the evidence given by Rishab Kumar Jain this possibility cannot be ruled out that the complainant obtained a ante dated prepared receipt from Rishab Kumar Jain without purchasing a fan. Under such circumstances, the entire factual position that a fan was supplied to the appellants on their demand appears to be a falsehood. 14. The main grievance of the complainant was that due to demand of fan and T.V. the appellants were not sending his daughter to his house. He has stated that for three times his children and nephew were returned back from the house of the appellants. The complainant has stated in paras 12 to 15 that when he sent his son Vijay to bring his daughter then the appellant did not send her with Vijay due to their demand. If the evidence of Vijay is perused in this context then it would be clear that he went to bring his sister for 2-3 times. He has accepted in para 4 of his evidence that first time when he went to the house of the appellants there was no complaint and thereafter, Sudha was sent with him. After 15 days of her return he went to bring the deceased Sudha again. He has accepted that there was a demand of T.V. and fan but Sudha was sent to her parents house with tears. It means that Vijay was successful in taking his sister to her father's house in the second visit also. Thereafter, Vijay says that third time his father went to the house of the appellants and he could bring the deceased Sudha on the assurance that a T.V. would be provided. It means that Vijay was successful in taking his sister to her father's house in the second visit also. Thereafter, Vijay says that third time his father went to the house of the appellants and he could bring the deceased Sudha on the assurance that a T.V. would be provided. Under such circumstances, looking at the evidence of witness Vijay it is apparent that on each and every time when Vijay went to take his sister to bring her to his parents house, the deceased Sudha was sent and therefore, allegation made by the complainant and other witnesses that deceased Sudha was not sent with Vijay for two times appears to be a falsehood. 15. Kundan (PW 5) cousin of the deceased, has stated that he also went to bring Sudha for once and she was not sent but, he has also stated that such type of unsuccess was caused to Vijay for two times and to Narayan Prasad for once but, such an allegation is no where corroborated by either Narayan Prasad or Vijay. Under such circumstances, it appears that allegations made by the witnesses that the deceased Sudha was not sent with Vijay or Narayan Prasad to the house of the complainant appears to be incorrect. Vijay has accepted in his cross-examination that third time the appellant Pavan came to take Sudha to the house of the appellants and at that time he did not say anything for any demand. If a married daughter is not send to the house of her parents it is not an harassment. On the contrary if a married daughter is not taken to the house of her husband then it is a harassment in the eyes of the society but there is no such incident took place that the appellants left the deceased Sudha in the house of the complainant Narayan Prasad with the pretext that unless they provided a fan or T.V. they will not take the deceased to their house but there is no such allegation made by the prosecution witness. Looking to the entire evidence given by the prosecution witnesses it appears that a false story was cooked for demand of a fan and T.V. No fan was provided to the appellants but a fake receipt was obtained by the complainant to confirm his allegations. Looking to the entire evidence given by the prosecution witnesses it appears that a false story was cooked for demand of a fan and T.V. No fan was provided to the appellants but a fake receipt was obtained by the complainant to confirm his allegations. The deceased Sudha was never detained in the house of the appellants and Vijay or Narayan Prasad were never return back without sending Sudha to their house. 16. Under such circumstances, the prosecution failed to prove that any harassment was done with the deceased or any fan or any material was demanded from the complainant or relatives of the complainant. It appears that a story was cooked by the complainant and his family members because his daughter expired within two years of her marriage and therefore, he did not visit in cremation of the deceased. He delayed initially in lodging the FIR against the appellants so that he could get the advantage of the fact that the cremation of the deceased was done by the appellants without informing the Police. Story was cooked within eight hours in which the complainant did not lodge the FIR and thereafter, the witnesses have exaggerated their evidence before the Court which were not found correct. Since no demand of dowry or any cruelty done in demanding dowry is proved against the appellants therefore, they cannot be convicted for offence punishable under Section 4 of the Dowry Prohibition Act. The learned trial Judge has committed an error in convicting them for such an offence. 17. Similarly it is no where proved that the appellants demanded fan or T.V. from the deceased or her parents. It is no where proved that any cruelty was done with the deceased in fulfillment of that demand or otherwise. There is no evidence of any harassment, done by the appellants to the deceased. The complainant and his relatives utterly failed to prove a case against the appellants. The appellants could not be convicted for offence punishable under Section 498A of I.P.C. The learned Additional Sessions Judge has committed an error in convicting the appellants for offence punishable under Section 498A of I.P.C. 18. On the basis of the aforesaid discussion the appeals filed by the appellants appears to be acceptable therefore, both the appeals are allowed. The appellants could not be convicted for offence punishable under Section 498A of I.P.C. The learned Additional Sessions Judge has committed an error in convicting the appellants for offence punishable under Section 498A of I.P.C. 18. On the basis of the aforesaid discussion the appeals filed by the appellants appears to be acceptable therefore, both the appeals are allowed. The conviction as well as the sentence directed by the trial Court against the appellants by both the judgments for offences punishable under Sections 498A of I.P.C. and Section 4 of Dowry Prohibition Act is hereby set aside. They are acquitted from all the charges. The appeals are hereby accepted. The appellants would be at liberty to get the fine amount back if they have deposited before the trial Court. 19. The presence of the appellants is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged. A copy of the judgment be sent to the trial Court along with its record for information and compliance.