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2013 DIGILAW 302 (CHH)

PURANLAL v. STATE OF M. P. (NOW C. G. )

2013-10-18

RANGNATH CHANDRAKAR, SUNIL KUMAR SINHA

body2013
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment, dated 3rd of August, 1998, passed in Sessions Trial No. 399/1994 by the First Additional Sessions Judge, Baloda Bazar, District Raipur. By the impugned judgment, the appellant has been convicted under Section 304-B IPC and sentenced to undergo R.I. for life and to pay fine of Rs. 5,000/- with default sentence of R.I. for 1 year. 2. The facts, briefly stated, are as under:- 2.1 Deceased Roopbai was married to the appellant 1 year prior to the incident. On 09.06.1994, at about 12.00 noon, she sustained bum injuries while residing in the house of the appellant in village Amlidih. The appellant and his father Khikram (DW-2) arranged a vehicle (Jeep); Gopiram (PW-2), father of the deceased was informed; the deceased was taken in the said Jeep to Bilaigarh, however, she died on the way. 2.2 An information was sent to the Police through Basant Kumar (PW-10), a Peon in the Hospital. On this information, a merg intimation (Ex.P/5) was recorded. Panchanama (Ex.P/1) on the dead body of deceased was prepared and the dead body was sent for postmortem. The postmortem examination was conducted by Dr. Chandra Shekhar Patel (PW-11). He found that it was a case of 85 - 90% bum of serious nature. Except the burn injuries, no other injuries were found on the dead body of the deceased. The burn injuries were ante-mortem. The Autopsy Surgeon opined that the cause of death was asphyxia on account of burn injuries. The postmortem report is Ex.P/6. 2.3 Based on the above merg intimation, First Information Report (FIR Ex.P/5) was recorded by S.H.O. Mr. R.K. Lalwani (PW-9). In the FIR, he mentioned that the appellant was demanding bicycle and wrist-watch from the deceased. He was harassing the deceased and the deceased had committed suicide on account of the above harassment by the appellant. It is mentioned in the FIR that these facts came to the notice of the Police during their investigation. 2.4 In further investigation, the container of kerosene and matchsticks etc. were seized from the house of the appellant vide seizure memo Ex.P/3. The case-diary statements of Gopiram (PW-2), Dhansai (PW-3) and Nankunbai (PW-6) were recorded on 26.07.1994. In the case-diary statements, they made allegations against the appellant that he was harassing the deceased on account of demand of dowry. 2.4 In further investigation, the container of kerosene and matchsticks etc. were seized from the house of the appellant vide seizure memo Ex.P/3. The case-diary statements of Gopiram (PW-2), Dhansai (PW-3) and Nankunbai (PW-6) were recorded on 26.07.1994. In the case-diary statements, they made allegations against the appellant that he was harassing the deceased on account of demand of dowry. 2.5 The learned Sessions Judge relied on the testimonies of these witnesses and held that it was proved beyond all reasonable doubts that the deceased was subjected to harassment on account of demand of dowry 'soon before her death'; therefore, appellant was liable for punishment under Section 304-B IPC. The appellant, thus, was convicted and sentenced as above. Hence, this appeal. 3. Mr. Ravi Kumar Bhagat, learned counsel appearing on behalf of the appellant has argued that the conviction is mainly based on the testimonies of father, brother and mother (PW-2, PW-3 and PW-6); their case-diary statements were recorded after more than 1½ months; though it comes in the evidence that Gopiram (PW-2) had lodged FIR, but the said document has not been filed by the prosecution; the Investigating Officer i.e. Mr. Ramesh Mishra (PW-7) has clearly admitted that the statements of these witnesses were recorded during the investigation of merg, but those statements were not filed along with the charge-sheet; therefore, the prosecution has suppressed the relevant material and the conviction based on the evidence of above three relative witnesses, whose statements were recorded after a long time cannot be sustained. He cited the decision of Samadhan Dhudaka Koli Vs. State of Maharashtra (2008) 16 SCC 705. 4. On the other hand, Mr. Manish Nigam, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. He has argued that a presumption would arise against the appellant under Section 113 B of the Indian Evidence Act and the conviction based on the testimonies of above witnesses as also on the said presumption was fully justified. 5. We have heard counsel for the parties. 6. Gopiram (PW-2) is father of the deceased. He has deposed that after the marriage when the deceased had visited his place, she had stated that the persons of in-laws place were demanding money, Rs. 10,000/-. She had also stated that a bicycle and watch was also being demanded. 5. We have heard counsel for the parties. 6. Gopiram (PW-2) is father of the deceased. He has deposed that after the marriage when the deceased had visited his place, she had stated that the persons of in-laws place were demanding money, Rs. 10,000/-. She had also stated that a bicycle and watch was also being demanded. When he met his son-in-law (appellant) and told these things, he did not reply to him. After 15 days, one Parasram came to their place and told that his daughter was serious. Hearing this, he went to village Amlidih and saw his daughter in burnt condition. The appellant was taking her to the Hospital by a Jeep. He also accompanied them in the Jeep. Her daughter had taken water in the Jeep, however, she died on the way to the Hospital. In para 6 of his cross-examination, he deposed that after the death of his daughter, he had gone to lodge a report in the Police Station. His report was written by the Daroga. He deposed that if his said report is not filed along with the charge-sheet, he cannot tell reason for that. In para 7, he deposed in clear words that he had lodged a report in the Police Station regarding demand of dowry, but the Police may not have filed his report in the case. In para 9 of his cross-examination he further clarified that on the next morning, he had gone to Police Station, Bilaigarh, where his report was written by Chota Daroga. In his report, he had stated about demand of dowry etc. 7. Dhansai (PW-3) is brother of the deceased. In para 2 of his examination-in-chief, he also deposed that when the deceased bad visited their place, she was telling that watch, money and bicycle are being demanded. She had told all this to his mother also. In cross-examination, para 5, he deposed that when he had asked the appellant about demand of money and bicycle, the appellant did not say anything to him. 8. Nankunbai (PW-6) is mother of the deceased. She has also deposed in similar fashion. She also deposed that her daughter was telling that there was demand of watch, baza and Rs. 10,000/-. She had also stated that the appellant used to assault her. 9. 8. Nankunbai (PW-6) is mother of the deceased. She has also deposed in similar fashion. She also deposed that her daughter was telling that there was demand of watch, baza and Rs. 10,000/-. She had also stated that the appellant used to assault her. 9. In appreciation of the evidence of these witnesses, we find that their evidence regarding demand of dowry is vague and general. Though they have deposed that the deceased was telling that there was demand of wrist-watch, bicycle, baza and Rs. 10,000/-, but it was not made clear by them as to who was demanding all this. That is to say that there is no positive evidence against the appellant that the appellant was demanding all these things from the deceased. 10. Mr. Bhagat has vehemently contended that A.S.I. Mr. Ramesh Mishra (PW-7) has admitted in para 5, 6 and 7 of his cross-examination that a report was lodged by the father of the appellant and during the course of investigation he had recorded statements of many witnesses namely-Mahettar, Suresh and Nankunbai, however, these documents have not been filed along with the chargesheet. No reason has been assigned by the Investigating Officer for not filing these documents before the Court. In Samadhan Dhudaka Koli Vs. State of Maharashtra 1, the prosecution had suppressed a dying declaration, which was said to be recorded by the Judicial Magistrate. The Supreme Court observed that the prosecution must also be fair to the accused. Fairness in investigation as also trial is a human right of an accused. The State cannot suppress any vital document from the Court only because the same would support the case of the accused. It was held vide para 13 of the judgment that "The learned Sessions Judge as also the High Court, committed a serious illegality in refusing to consider the said question in its proper perspective. The prosecution did not explain as to why the said dying declaration was not brought before the Court. The learned Sessions Judge as also the High Court surmised about the contents thereof. Not only the contents of a dying declaration, but also the manner in which it is recorded and the details thereof playa significant role in the matter of appreciation of evidence", and such suppression was held to be fatal. 11. The learned Sessions Judge as also the High Court surmised about the contents thereof. Not only the contents of a dying declaration, but also the manner in which it is recorded and the details thereof playa significant role in the matter of appreciation of evidence", and such suppression was held to be fatal. 11. In the instant case also, the statements of witnesses which were recorded within 1 or 2 days of the incident, including the statement of mother of the deceased, were not filed by the prosecution. That apart, the report lodged by the father of the deceased was also not filed. Even the report, lodged by the father of the appellant was also not filed and the prosecution did not offer any explanation for suppression of these documents. The above documents were relevant because they were containing the earlier disclosure of the witnesses relating to the said incident and the alleged facts relating to demand of dowry, harassment of the deceased as also many other facts and they were quite relevant. We are of the view that suppression of above documents was fatal to the prosecution. 12. Section 304-B IPC defines dowry death. A perusal of Section 304-B would show that this Section has the following ingredients : (I) the death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances; (II) such death should have occurred within 7 years of her marriage; (III) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; (IV) such cruelty or harassment should be for or in connection with demand of dowry; and (V) such cruelty or harassment is shown to have been meted out to the woman soon before her death. 13. In the instant case, so far as demand of dowry and treating the deceased with cruelty or subjecting her to harassment has been held proved on the oral testimonies of Gopiram (PW-2), Dhansai (PW-3) and Nankunbai (PW-6), who are father, brother and mother of the deceased. Their evidence in relation to demand of dowry, as we have held, is not clear. It is not clear as to who was demanding dowry. Their evidence is vague and general as if they were making general allegations in relation to members of the family of the appellant. Their evidence in relation to demand of dowry, as we have held, is not clear. It is not clear as to who was demanding dowry. Their evidence is vague and general as if they were making general allegations in relation to members of the family of the appellant. Thus, nothing specific can be attributed to the appellant on the evidence of these witnesses. That apart, there earlier statements and various reports made by them were suppressed by the prosecution. Their case-diary statements (Ex. D/1 and Ex. D/s), were recorded on 26.07.1994 i.e. almost after about 1½ months of the incident. It is not a case, in which, these witnesses were not present in the village. The contents of the FIR would show that the case was registered against the appellant on the alleged statements of these witnesses during the investigation. The FIR was registered on 12.06.1994. We are unable to understand as to how the FIR was registered on 12.06.1994 on the allegations made by these witnesses when their case-diary statements were recorded on 26.07.1994. 14. Mr. Nigam has tried to canvass that the contents of the FIR would be referring to the statements, which were recorded during the course of investigation of merg. We cannot accept this argument because it is not mentioned in the FIR that the allegation against the appellant was made by the mother and father of the appellant during the investigation of merg, particularly, when no statements which were allegedly recorded during the course of merg were filed on record. We are of the view that in the above facts and circumstances of the case, the evidence relating to demand of dowry or treating the deceased with cruelty or subjecting the deceased to harassment by the appellant on account of such demand, were not fully established by the prosecution. 15. Mr. Nigam has also argued about the presumption under Section 113 B of the Evidence Act. The learned Sessions Judge has also resorted to the provisions of Section 113 B in para 22 of the judgment. 16. Section 113 B is titled as Presumption as to dowry death. 15. Mr. Nigam has also argued about the presumption under Section 113 B of the Evidence Act. The learned Sessions Judge has also resorted to the provisions of Section 113 B in para 22 of the judgment. 16. Section 113 B is titled as Presumption as to dowry death. It provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. In Explanation-It has been provided that for the purposes of this Section, "dowry death" shall have the same meaning as in section 304 B of the Indian Penal Code. 17. A careful reading of the provisions of Section 113 B would show that for the presumption under this Section, it must be shown that soon before her death, the woman was subjected to cruelty or harassment for, or in connection with demand of dowry by the person concerned. Thus, there must be evidence of demand as also the cruelty or harassment on account of such demand made by an accused. Unless these important elements, which are inherent in Section 113 B are established, 110 presumption can be drawn under this Section. 18. In the instant case, as we have held, it has not been shown that the appellant had demanded dowry from the deceased or he had treated the deceased with cruelty on account of his alleged demand of dowry. The prosecution has utterly failed to prove these important ingredients of Section 113 B. We are of the view that in absence of proof of these ingredients, which are inherent in Section 113 B, no presumption can be drawn as to "dowry death". 19. For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above set of evidence, and his appeal deserves to be allowed. 20. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant under Section 304 B IPC are set-aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is on bail. 20. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant under Section 304 B 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 bond shall continue for a period of 6 months in view of Section 437-A Cr.P.C. HEAD LINES Principles relating to presumption u/s 113 B of the Evidence Act Discussed. /kkjk 113&ch lk{; vf/kfu;e ds varZxr mi/kkj.kk ls lacaf/kr fl)kar & foosfprA Appeal Allowed.