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Madhya Pradesh High Court · body

2014 DIGILAW 1220 (MP)

State of M. P. v. Baijnath

2014-09-25

S.K.GANGELE, SUSHIL KUMAR PALO

body2014
JUDGMENT Sushil Kumar Palo, J. 1. Aggrieved by the judgment dated 30.11.2000 passed by Additional Sessions Judge, Mungawali district Guna (MP) in Sessions Trial No. 231/1996 under Section 498(A) read with Section 304(B) of IPC, the appellant/State through Police Station Chanderi has filed this appeal under Section 378 of Cr.P.C. 2. It is not disputed that deceased Saroj was married to accused Rakesh in the year 1994. Accused Shivraj Singh is the father of the accused Rakesh and accused Gyan Bai is the mother of accused Rakesh. Accused Baijnath is the elder brother of accused Shivraj Singh and accused Prem Bai is the wife of accused Baijnath Singh. 3. It would be pertinent to mention here that the accused Rakesh died during the course of trial. 4. The prosecution story transpired before the learned Trial Court is as under:- Accused Baijnath, elder brother of the father in law of deceased Saroj, lodged report at Police Station, Chanderi district Guna on 09.06.1996 at about 08:00 AM that they had dinner and watched Television and slept in the night at their residence. In the morning, his daughter-in-law Saroj was found hanged. She was died by hanging on the fan by rope. On this intimation, Merg No. 20/1996 was registered. During investigation, it was found that husband of the deceased accused Rakesh and other accused persons were demanding dowry, harassed and tortured the deceased Saroj. Due to which, she died in her nuptial home. Jahar Singh father of the deceased Saroj and other witnesses such as Narayan Singh, Kundan Singh narrated that the accused persons were demanding dowry and because of this, deceased Saroj was subjected to harassment and cruelty. In the postmortem, cause of death could not be ascertained as putrefaction has began. In the postmortem, ligature mark was found present on the neck. Therefore, police station Chanderi registered a case under Section 304(B), 498(A), 201/34, and 302 of IPC against the accused persons and after investigation filed charge-sheet. 5. Learned Additional Sessions Judge, framed charges under Sections 304(B) and 498(A) of IPC against all the accused persons. All the accused persons abjured guilt. Accused Rakesh (husband of the deceased) was deleted in the list of accused persons, as he died on 09.06.1998 by consuming poison. 6. 5. Learned Additional Sessions Judge, framed charges under Sections 304(B) and 498(A) of IPC against all the accused persons. All the accused persons abjured guilt. Accused Rakesh (husband of the deceased) was deleted in the list of accused persons, as he died on 09.06.1998 by consuming poison. 6. Learned Trial Court, after adducing evidence, pronounced the impugned judgment on 30.11.2000 by which all the accused persons are acquitted under Sections 498(A) and 304(B) of IPC. The appellant/State has assailed the judgment on several grounds. It is stated that the prosecution witnesses have clearly stated about the demand of dowry and they have also narrated that the deceased Saroj, after returning from her in-laws house, has informed her family members that the accused persons are demanding motorcycle, which was not considered by the learned Trial Court. This has happened within seven years of her marriage. The Postmortem report also found injuries on the person of the deceased Saroj, which were ante-mortem in nature, which is clear indicative that she was subjected to cruelty immediately before her death. The death occurred within 20 days of her marriage. Even after 48 hours of her death, the injuries were found on her body. The trachea had not affected and hyiod bone was not broken. The viscera was sent for forensic examination and the report received that there was no poison. This supports the prosecution story. Learned Trial Court overlooked this evidence and committed grave error in acquitting the accused persons. 7. We have examined the evidence on record and heard the learned Public Prosecutor and counsel for the respondents at length. 8. On the report of the elder brother of father in law accused Baijnath, Merg (Ex. P-5) was registered by police station Chanderi at 09:05 AM on 08.06.1996. The dead body was sent for postmortem vide Ex. P-14 on the same day to Primary Health Centre, Chanderi. The postmortem was performed on 09.06.1996. In the postmortem report, Dr. R.P. Sharma (PW-12) and the team of doctors opined that there were following contusions on the body of deceased:- (i) Contusion present on the right chick just above angle of mouth size 5cm x 2.5cm red in color and clotted blood present. (ii) Contusion present on the middle of the left side of the neck size 6cm x 2.5cm red in color clotted blood present. (ii) Contusion present on the middle of the left side of the neck size 6cm x 2.5cm red in color clotted blood present. (iii) Contusion present at the left parietal region skull size 10cm x 10cm clotted blood present red in color. 9. Dr. R.P. Verma (PW-12) has also deposed that ligature mark is seen around the neck. The ligature mark of knot was also seen. Contusions mentioned above are ante-mortem in nature whereas the ligature mark on the neck was described as postmortem in nature. The team of doctors opined that the cause of death cannot be given due to the fact that putrefaction has already started. Viscera was preserved for chemical analysis. Dr. R.P. Sharma (PW-12) also stated that death occurred in between 30 to 48 hours before the postmortem. For ascertaining the time of death, he also cut the bone to see the brain but the same was in bad stage. Therefore, they could not ascertain the cause of death. They have stated that the injury caused on the head may be due to hit by a big hard and blunt object forcefully on the head. Even after 48 hours of the death, the injury could be seen clearly. It is also stated by the Medical Officer that there was no bone injury seen on the cervical injury on the trachea. He has opined that if the body is hanged usually hyiod bone gets injured but if the body is hanged slowly then the hyiod bone does not get fractured. There is clear evidence that deceased Saroj died under suspicion circumstances. 10. All these indicate that the deceased died unnatural death in the house of her in-laws. It also indicates that she did not die due to poisoning so the consumption of poison by her is ruled out. It is also evident from the postmortem report that her trachea was not effected due to hanging. Therefore, the death has not occurred due to exphysia or due to hanging. The ligature mark on the neck is postmortem that means the dead body was later hanged for making it a case of hanging. The marriage of deceased Saroj with Rakesh was solemnised 20 to 25 days prior to the incident. The deceased died at her in-laws place. There were marks of injuries on her body, which are ante-mortem. The ligature mark on the neck is postmortem that means the dead body was later hanged for making it a case of hanging. The marriage of deceased Saroj with Rakesh was solemnised 20 to 25 days prior to the incident. The deceased died at her in-laws place. There were marks of injuries on her body, which are ante-mortem. All these goes to show that immediately before her death, she was subjected to cruelty. The evidence available also indicates that the report was lodged in the morning at 09:00 AM claiming that the deceased hanged herself at 08:00 AM. Postmortem was performed on the same day show that the postmortem was performed 30 to 40 hours after death. That means the deceased died in the evening of 7th June, 1996. The in-laws, in whose house she died, offered no explanation. 11. In the record, the accused persons have not offered any explanation regarding the death of deceased Saroj. According to the accused persons and the Merg intimation (Ex. P-5) registered by accused Baijnath, in the previous night they dinned saw picture in the Television and went to sleep. Had that been so, how can the injuries were found in the body of deceased Saroj. Not offering any explanation in this regard by the accused persons, creates grave suspicion in the conduct of the accused persons. 12. Kundan Singh (PW-1) is the elder brother of Jahar Singh, Jahar Singh (PW-2) is the father of deceased Saroj, Narayan Singh (PW-4) is the uncle of Jahar Singh, Prem Bai (PW-5) is the mother of deceased Saroj. They all have clearly indicated that the marriage was performed in the year 1994 as per the Hindu traditions but the "gauna" was performed in the year 1996. They have said that during the marriage, the accused persons Rakesh, Shivraj Singh, Baijnath demanded a motorcycle as dowry but this could not be fulfilled. 13. Jahar Singh (PW-2) has stated that during the marriage, he gave articles as per his capabilities and gave one lac rupees in cash. But at the time of marriage, if their demand of motorcycle is not fulfilled, the in-laws including Baijnath were returning the "barat" without performing the marriage. At that time, he had no money to fulfill this demand. After relatives intervened, the marriage was performed. But at the time of marriage, if their demand of motorcycle is not fulfilled, the in-laws including Baijnath were returning the "barat" without performing the marriage. At that time, he had no money to fulfill this demand. After relatives intervened, the marriage was performed. In his cross-examination, he has admitted that during the ceremony of taking meal by "Pangat" the son-in-law had demanded a motorcycle. He agreed to give when his financial position becomes good. But he could not keep his words and could not give the motorcycle to his son-in-law. After the "gauna" in 1996, his daughter Saroj Bai's "vida" was performed. When Saroj Bai was brought to the maternal home from her in-laws place, she narrated the demand of motorcycle and the treatment of harassment to her. Saroj Bai left for her in-laws place, after staying for 2-3 days. Three days after, she joined her in- laws, they got the message Saroj Bai's death. The demand of dowry as has been explained by the witnesses has not been rebutted. 14. The defence witnesses Gaya Prasad (DW-1), Munna (DW-2), Harkunwar Bai (DW-3) and Sirnam Singh (DW-4) only said that there was no quarrel at the in-laws house of the deceased. The family of accused Rakesh are well of financially. The question of demanding dowry was not there according to them. But all the defence witnesses belong to village Hiravar and are known to the accused persons. Sirnam Singh (DW-4) is the resident of village Bundeda and attended the marriage and denied the demand of dowry. He is related to accused Baijnath. His daughter is married to the son of accused Baijnath. Therefore, his statement does not create confidence. 15. Prem Bai (PW-5) (mother of deceased) has clearly stated that when her daughter came from her matrimonial home, she complained of treatment of cruelty and harassment. This aspect has not been seriously considered by the learned Trial Court, specially when the death occurred immediately after she returned to her matrimonial home. 16. In the present case, it is established by the prosecution that soon before her death, the deceased was subjected to harassment or cruelty in connection with demand of dowry. Therefore, the court has to presume that the accused persons have committed the offence under Section 304(B) of IPC. 16. In the present case, it is established by the prosecution that soon before her death, the deceased was subjected to harassment or cruelty in connection with demand of dowry. Therefore, the court has to presume that the accused persons have committed the offence under Section 304(B) of IPC. This is clear from the provision of Section 113(B) of Indian Evidence Act, which states 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 the accused persons 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. The prosecution in this case, had led sufficient evidence before the Court to raise a presumption that the accused persons caused the dowry death of the deceased and it was therefore for the accused persons to rebut this presumption. The accused persons/respondents did not rebut this presumption. 17. In Amar Singh Vs. State of Rajasthan reported in AIR 2010 SC 3391 , it is held that in a case relating to dowry death, the statements made by the mother and brother of the deceased that the deceased was taunted by the in-laws for not bringing dowry about a month prior to the incident, relates to cause of her death and is admissible in evidence. Thus, harassment for dowry soon before incident stands proved and the presumption of dowry death would, therefore, arise. 18. In case of dowry death, the presumption under Section 113(B) of Indian Evidence Act, 1872, shall be raised on the proof of the following essentials:- (i) The question before the court must be whether the accused has committed the dowry death of a woman. This means that the presumption can be raised only if the accused is being tried for an offence under Section 304B, IPC. (ii) The woman was subjected to cruelty or harassment by the husband or his relatives. (iii) Such cruelty or harassment was for or in connection with the any demand for dowry. (iv) Such cruelty or harassment was soon before her death. 19. It has been proved by the evidence adduced by the prosecution that the accused persons have committed dowry death of Saroj Bai. (iii) Such cruelty or harassment was for or in connection with the any demand for dowry. (iv) Such cruelty or harassment was soon before her death. 19. It has been proved by the evidence adduced by the prosecution that the accused persons have committed dowry death of Saroj Bai. She was subjected to cruelty or harassment by her husband and in- laws, ante-mortem injuries were found on her body, that cruelty or harassment was for or in connection with the demand of motorcycle as dowry and the cruelty or harassment was soon before her death. So all the above requirements of the presumption is found proved in the present case. 20. In the case of Amar Singh (supra), the taunting was done one month prior to the incident. In the present case, the incident took place after the "gauna" was performed. There were grievous ante- mortem injuries on the body of the deceased. It is sufficient to show that she was treated with cruelty soon before her death. 21. In the present context, we would like to refer Bansi Lal Vs. State of Haryana reported in AIR 2011 SC 691 to fortified our view Hon'ble the Supreme Court has held that:- "It may be mentioned herein that the legislature in its wisdom has used the word 'shall' thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with or demand of dowry. It is unlike the provisions of section 113A of the Evidence Act where a discretion has been conferred upon the court wherein it had been provided that the court may presume to abetment of suicide by a married woman. Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of section 113-B relatable to section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused." 22. In the present case, we hold that (a) when the death of Saroj Bai is caused by the bodily injuries; (b) her death occurred otherwise then under normal circumstances; (c) death occurred within seven years of Saroj Bai's marriage; (d) soon before her death she was subjected to cruelty or harassment by her husband and in-laws; and (e) this is in connection with the demand of dowry. Therefore, without any hesitation, we hold that this constitutes "dowry death". 23. In this regard our view is fortified by the recent decision of the Hon'ble Apex Court in Donthula Ravindranath Vs. State of Andhra Pradesh reported in (2014) 3 SCC 196 . The prosecution relied on following circumstances to establish the guilt of the respondents herein, they are:- (i) deceased Saroj is the wife of accused Rakesh; (ii) accused Rakesh along with his wife Saroj and accused No. 3 Shivraj and his wife Gyan Bai were living in the same house; (iii) the deceased Saroj was harassed by the Shivraj, Rakesh and her mother-in-law Gyan Bai; (iv) according to the medical report though the deceased was found hanging in the house of her in-laws house but the cause of death was not exphysia; (v) there is ample evidence in the case that there was a demand of motorcycle as dowry at the time of marriage; and, (vi) within 20 days of her "gauna" deceased Saroj was found dead in her in-laws' with ante-mortem injuries on her body. 24. All the circumstances abundantly establish by the evidence of prosecution that deceased Saroj died in a suspicion circumstances at her in-laws place. Hence, prosecution has established the guilt of the accusation. 25. According to Munna (DW-2), Baijnath, brother of accused Shivraj, is living separately since eight years and also cultivating his field separately. That being so, accused Prem Bai wife of Baijnath is not living in the same house. Therefore, following the principles laid down in Kansraj Vs. State of Punjab and others reported in AIR 2000 SC 2320, the chances of roping in accused Prem Bai cannot be ruled out. Thus, giving her the benefit of doubt, we hold that she is entitled for acquittal. But, all other persons including deceased accused Rakesh were involved in demanding dowry and harassment. Therefore, we hold the respondents No. 1 Baijnath, No. 3 Shivraj and No. 4 Gyan Bai guilty under Sections 304(B) and 498(A) of IPC. We maintain the acquittal of respondent No. 2 Prem Bai wife of accused Baijnath. 26. We considered on the point of sentence as regarding respondents No. 1, 3 and 4 . 27. In the present case, almost 18 years have passed in between. Husband of the deceased namely Rakesh has also died consuming poison in the year 1998. We maintain the acquittal of respondent No. 2 Prem Bai wife of accused Baijnath. 26. We considered on the point of sentence as regarding respondents No. 1, 3 and 4 . 27. In the present case, almost 18 years have passed in between. Husband of the deceased namely Rakesh has also died consuming poison in the year 1998. Therefore, we deem it proper to sentence the respondents No. 1, 3 and 4 under Section 304(B) of IPC for a term of seven years rigorous imprisonment and sentence them accordingly. We also sentence them under Section 498(A) of IPC for one year (10) Criminal Appeal No. 325/2001 rigorous imprisonment and Rs.1000/- as fine each and in default of fine, they have to undergo simple imprisonment for one month each. Both the sentences will run concurrently. The period, if at all spent by them in custody in this case will be adjusted in the sentence. The respondents are directed to present themselves before the learned Trial Court within 15 days for serving out the jail sentence, failing which the learned Trial Court would take coercive steps for securing their presence and the needful. Office is directed to send the original record with the copy of this judgment to the Trial Court at the earliest.