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2014 DIGILAW 319 (CHH)

Pramod Rao v. State of Madhya Pradesh

2014-08-21

CHANDRA BHUSHAN BAJPAI

body2014
JUDGMENT Chandra Bhushan Bajpai, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 12-10-1999 passed by the IVth Additional Sessions Judge, Durg, M.P. (now C.G.) in Sessions Trial No. 155/98 whereby and whereunder the learned Additional Sessions Judge after holding the appellant guilty for subjecting his wife Veena to cruelty convicted him under Section 498-A of the Indian Penal Code (for short 'the IPC) and sentenced the appellant rigorous imprisonment for 3 years and fine of Rs. 1000/-, in default of payment of fine, additional rigorous imprisonment for 3 years and fine of Rs. 1000/-, in default of payment of fine, additional rigorous imprisonment for 1 year. The learned trial Judge acquitted the appellant of the charge under Section 304B of the IPC. Against such acquittal no criminal appeal is reported to be filed by the State. The conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned. 2. As per case of the prosecution, on 2-2-1998, at about 10.35 p.m., the appellant reached Police Station-Mohan Nagar, Durg (CG), registered the merg intimation regarding death of his wife Veena and stated that at about 11 a.m., he went to his duty, her wife Veena asked him to bring household material and grocery after his duty, he went to the grocery shop, purchased household articles and about 8.15 p.m. he reached his house, he got his house door booted from inside, he called his wife, not getting answer he collected the neighbours. After breaking the glass he opened the door, entered inside the house and saw her wife Veena hanging inside the room with a hook of roof with the help of nylon rope. The investigating officer registered the merg intimation vide Ex.-P/12, reached the place of occurrence on 3-2-1998, after giving merg notice to witnesses vide Ex.-P/13, inquest was prepared vide Ex.-P/1. After inquest, the dead body was sent for post-mortem. Dr. The investigating officer registered the merg intimation vide Ex.-P/12, reached the place of occurrence on 3-2-1998, after giving merg notice to witnesses vide Ex.-P/13, inquest was prepared vide Ex.-P/1. After inquest, the dead body was sent for post-mortem. Dr. S.A. Mandge (PW-8) conducted the autopsy and noticed following symptoms: (i) Ligature mark found around the neck by nylon rope with slip knot at the back, circumference is 26 inch, width 0.5 cm., on account of such mark, deep groove chocolate coloured, ante-mortem in nature, (ii) stains of saliva on sari present, impression of knot not found; The autopsy surgeon opined that the cause of death was asphyxia due to hanging. The post-mortem was conducted by the team of Dr. S.A. Mandge and Dr. P.K. Agrawal. The investigating officer during the investigation of merg seized green coloured nylon rope tied with the hook of the roof vide Ex.--P/2. After inquiry in the merg, First Information Report was registered on 5-2-1998 by Ashok Kumar Sharma (PW-9) under Sections 304B and 498-A of IPC against the appellant and started investigation. Spot map was prepared at the instance of father of the deceased Baban Rao (PW-15). Inland letter Ex.-P/3A and postcard Ex.-P/3B written by the deceased to her father, mother were seized vide Ex.-P/3. Also the I.O. got it translated in Hindi as both the documents were in Marathi, Hindi translation is Ex.-P/4 & Ex.-P/5. He also collected one telegram (Ex.-P/6) sent to the father of the deceased regarding the alleged ailment much prior to this incident. The I.O. also collected the card (Ex.-P/7) regarding the marriage of the deceased and the appellant from father of the deceased Baban Rao (PW-15) vide Ex.-P/8. The I.O. also seized the draft of State Bank and other documents in relation with the handwriting of the deceased vide Ex.-P/9. Patwari map was prepared vide Ex.-P/10. During the investigation, the letters and other documents containing the handwriting of the deceased were sent for examination of the documents regarding the handwriting of the deceased. During postmortem, the autopsy surgeon noticed one handwritten note present in the undergarment of the deceased. Dr. S.A. Mandge (PW-8) handed over the sari, blouse brassiere, nylon rope coir rope and the said handwritten note in a sealed condition to the constable for further investigation. The I.O. seized all those clothes, handwritten suicidal note and the ropes vide Ex.-P/16. The suicidal note so seized is Ex.-P/16A. Dr. S.A. Mandge (PW-8) handed over the sari, blouse brassiere, nylon rope coir rope and the said handwritten note in a sealed condition to the constable for further investigation. The I.O. seized all those clothes, handwritten suicidal note and the ropes vide Ex.-P/16. The suicidal note so seized is Ex.-P/16A. On presentation, I.O. also seized a letter signed by the deceased and her father in Marathi, also some pages of the diary of the deceased vide seizure memo Ex.-P/17. Articles were sent for hand-writing expert vide Ex.-P/18. The State Examiner of Questioned Documents gave his opinion, which was admitted by the Court under the provisions on 18-1-1999 and exhibited as Ex.-P/15, that the sent documents were written by the same person. The appellant was arrested vide memo of arrest (Ex.-P/19). The statement of the witnesses under section 161 of the Code of Criminal Procedure, 1973 (for short 'the Code'). The evidence was duly investigated. After collecting the necessary evidence, charge-sheet was filed before the Judicial Magistrate First Class, Durg, on 7-4-1998 against the appellant under Sections 304B, 498 of the IPC, who, in turn, committed the case to the Court of Session, Durg, the learned Additional Sessions Judge received the case on transfer and during the trial he framed the charges against the appellant under Sections 304B and 498-A of the IPC. 3. In order to prove the guilt of the appellant, the prosecution examined as many as 15 witnesses. The statement of the appellant was recorded under Section 313 of the Code wherein he denied the circumstances appearing against him and pleaded innocence and false implication in crime in question. 4. After providing opportunity of hearing to the parties, the trial Judge acquitted the appellant of the charge framed under Section 304B of the IPC convicted him under Section 498-A of the IPC and sentenced the appellant as aforementioned. 5. I have heard learned counsel appearing for the parties and perused the judgment impugned and the record of me trial Court. 6. The learned counsel for the appellant vehemently argued that Section 293 of the Code is for the reports of certain Government scientific experts. In this Section sub-section (4) is for its applicability to the Government scientific expert in the said law (g) for any Government scientific expert specified by notification by the Central Government for this purpose is added by Act 25 of 2005 w.e.f. 23-6-2006. In this Section sub-section (4) is for its applicability to the Government scientific expert in the said law (g) for any Government scientific expert specified by notification by the Central Government for this purpose is added by Act 25 of 2005 w.e.f. 23-6-2006. There is no notification issued that the said Examiner of Questioned Documents is covered under Section 293 of the Code. Also the said provisions enacted in the year 2006 and the report is dated 5-11-1998. In absence of any provision, the report (Ex.-P/15) cannot be admissible without the opportunity for cross-examination by the appellant. With this, this report cannot be read as evidence against the appellant. Also no question is asked that the hand-writing belongs to the deceased. As per statement of Constable Rajendra Tiwari (PW-14), he immediately obtained the report which itself is suspicious. varZns’kh; inland letter was posted from Bhilai, hence, Ex.-P/3A is suspicious. There is no specific allegation in the Ex.-P/3B. The way the letter is addressed seems suspicious. The father of the deceased engaged a private counsel. The most important letter Ex.-P/17A and B was written by the deceased and her father regarding the illicit relation of the deceased with some J.T. Tiwari, both executed the document Ex.-P/17 A regarding the admission of such relation. The oral evidence which was given by 3 witnesses are not admissible and trustworthy. There is nothing for demand of dowry in the post card (Ex.-P/3B). General statement regarding demand of dowry cannot put the case under cruelty. The suicidal note is suspicious because it was not noticed by the panchnama witnesses and the doctor found it inside the undergarment; the body was kept in mortuary over ice, the clothes of the deceased were found wet, but it is highly suspicious that the alleged suicide note was not affected. The defence applied for re-cross-examination on account of new circumstances of the Dr. Mandge, the Investigating Officer and Baban Rao (PW-15). The trial Judge on 11-5-99 rejected the application under Section 311 of the Code for Dr. Madage and Baban Rao, he only allowed the application for further cross-examination of Ashok Sharma, by this the appellant is deprived of his legal right to put the questions on account of new circumstances. The witnesses deposing against the appellant are relatives of the deceased. The Investigating Officer admitted that he had not interrogated any other witness for the factum of cruelty. The witnesses deposing against the appellant are relatives of the deceased. The Investigating Officer admitted that he had not interrogated any other witness for the factum of cruelty. Since there are omissions and contradictions, the statement of the witnesses are not admissible for proving the cruelty, any earlier burn or injury mark was not noticed by the autopsy surgeon. During the inquest, the father of the deceased made no complaint or not lodged any report. The appellant was held guilty for demand of motorcycle, this demand seems to be suspicious as the appellant was already having scooter. Surendra (PW-3) did not state anything regarding the demand of motorcycle, he only deposed that since there were some domestic situation and problem that is why the deceased and the appellant started living separately. The letter Ex.-P/17 goes to show that there were illegal relation of the deceased to some other before marriage, it was admitted and explanation of such is not acceptable. There are material omissions in the statement of the father, the father is so careful as he maintained the draft regarding the articles given at the time of marriage. There was no demand at the time of marriage as the father and the family members did not lodge any report for such demand or complaint anywhere before the incident. As the deceased was having illicit relation prior to her marriage, if the appellant wants divorce from the deceased, then it would be sound ground for the same. This is a general allegation, hence, not admissible. The suicidal note is under cloud of suspicion. The suicidal note written by the deceased was not proved. There are no specific allegation, the trial Court proved the cruelty but it acquitted the appellant for the death of the deceased occurred otherwise than under normal circumstances. The cruelty is not proved. Hence, the appeal may be allowed and the appellant may be acquitted of the charge. In support of the appellant, reliance is placed upon Shailendrasingh v. State of M.P., 2005 (1) MPWN 138 , where the M.P. High Court held that every assault or harassment does not amount to cruelty. It should be in such a manner and to such an extent that a woman could likely to be driven to commit suicide. In support of the appellant, reliance is placed upon Shailendrasingh v. State of M.P., 2005 (1) MPWN 138 , where the M.P. High Court held that every assault or harassment does not amount to cruelty. It should be in such a manner and to such an extent that a woman could likely to be driven to commit suicide. In this case, the husband of the deceased went to the parental house of the deceased to bring the deceased with him and he asked the deceased to apologize his mother and sister, he also told her that in case she does not beg apology from them, he will not take her to her marital house with him, due to this the deceased took sulfas tablet which caused her death. The M.P. High Court held that since the suicide committed within 7 years of marriage, the prosecution is further required to prove that deceased was subjected to cruelty by husband, if there are no evidence, no charge can be framed. Learned counsel for the appellant also placed reliance in the matter of S. Anil Kumar alias Anil Kumar Ganna v. State of Karnataka, 2013 AIR SCW 6180, in which Hon'ble the Supreme Court held that in absence of no disclosure of allegation about the demand of dowry and harassment and torture by accused on deceased due to which she was compelled to commit suicide either in the FIR or before the Tahsildar who recorded initial evidence--also there are contradictory statement of the prosecution witnesses about demand of dowry and harassment cannot be said to be a minor contradiction. Hon'ble the Supreme Court further held that since prosecution failed to prove the basic ingredient of harassment or demand of dowry, presumption under Section 113-A or 113-B of the evidence Act--conviction of the accused was set aside. It is submitted that both the case law cited are applicable to the facts of this case and since the prosecution failed about the demand of dowry and harassment in the present case, the appellant may not be convicted under Section 498-A of the IPC and also the benefit of doubt be given to the appellant and he may be acquitted of the charges. 7. 7. On the other hand, learned counsel appearing on behalf of the State opposed the appeal and submitted that letter Ex.-P/3A, Ex.-P3B and their Hindi translation Ex-P/4 and Ex.-P/5 prove that it were received by family members of the deceased by post where demand of dowry and element of cruelty is written. The prosecution witnesses proved the factum of cruelty. As per report of hand-writing expert, it is proved that it were written by the deceased. Also the recovery of suicidal note may not be put to suspicion as it was noticed by independent person, the autopsy surgeon, which goes to show that upon cruelty, the deceased committed suicide. Even otherwise, from the evidence of witnesses the element of cruelty is proved. Therefore, the trial Court has rightly convicted and sentenced the appellant. As such, the appeal has no substance and the same may be dismissed. 8. In order to appreciate the arguments advanced on behalf of both the parties, I have perused the evidence adduced on behalf of the prosecution. 9. On minute examination, death of Veena, wife of the appellant by asphyxia due to hanging is not disputed. Deceased Veena died within 7 years of her marriage is also not disputed; and the same is proved. The Investigating Officer did not find any evidence regarding murder of Veena by the appellant. The Investigating Officer during the enquiry and investigation found this fact undisputed that the door was bolted from inside the house. The appellant when broken the glass and opened the door by inserting his hand and opening the bolt, thereafter, in the presence of witnesses he found his wife Veena hanging at roof by nylon rope and also coir rope tied in her leg, over all Veena had committed suicide. This fact not disputed or challenged by the prosecution. Since there was demand of dowry, cruelty and harassment and the death of Veena is caused otherwise than under normal circumstances, the Investigating Officer collected the evidence regarding dowry death and filed the charge-sheet under Section 304B read with Section 498-A of the IPC. The Investigating Officer not found any evidence regarding murder during enquiry or investigation. Thereby Veena committed suicide; but since her death occurred otherwise than under normal circumstances that is why the charge-sheet was filed under Section 304B of the IPC. The Investigating Officer not found any evidence regarding murder during enquiry or investigation. Thereby Veena committed suicide; but since her death occurred otherwise than under normal circumstances that is why the charge-sheet was filed under Section 304B of the IPC. The learned trial Court held that in the present case prosecution has failed to prove that soon before the death the deceased was subjected to cruelty or harassment; since ingredient soon before not proved that is why the trial Court no presumed that the appellant had caused dowry death; also the trial Court not found overall admissible circumstances of the case that she is subjected for cruelty before her death; the prosecution has failed to prove beyond the doubt the case of dowry death against the appellant; having regard to absence of overall circumstance, that trial Court not found presence of presumption as to dowry death including suicide, hence, the trial Court acquitted the appellant for the offence under Section 304B of the IPC and held that cruelty may not be accepted as abetment of suicide. But the trial Court held the element of cruelty, mental and physical, by the appellant; such cruelty could likely to cause serious loss to a woman's life and health (mental or physical) and convicted the appellant. The State not challenged the order of acquittal of the appellant. Hence, the order of acquittal passed in favour of the appellant for the charge under Section 304B of the IPC attains finality as the State has not challenged the same. The appellant assailed the conviction under Section 498-A of the IPC. 10. Argument were presented on the point of admissibility of the document Ex.-P/15, report of the State Examiner of Questioned Documents for hand-writing. The Ex.-P/15 was tendered by the prosecutor and admitted by the Court though the appellant not challenged the admissibility of Ex.-P/15 at the relevant point of time, but question is open. Under Section 293 of the Code at sub-section (4), category of Government scientific expert are given but in the said list hand-writing expert or the State Examiner of Questioned Documents is not included. At item (g) it was added by Act 25 of 2005 w.e.f. 23-6-2006 any other Government scientific expert specified by notification by the Central Government for this purpose. The State/respondent failed to show that there was any notification on the date of examination of document i.e. 5-11-1998. At item (g) it was added by Act 25 of 2005 w.e.f. 23-6-2006 any other Government scientific expert specified by notification by the Central Government for this purpose. The State/respondent failed to show that there was any notification on the date of examination of document i.e. 5-11-1998. In absence of any authority, by simply tendering the document, the document itself cannot be admissible and read in absence of any opportunity of cross-examination; I agree with the argument advanced on behalf of the appellant that Ex.-P/15 cannot be used and read as evidence. 11. The learned Senior Counsel appearing for the appellant submitted that in the present case, only by demand of motorcycle ingredient of cruelty not constitutes. When we look after the evidence, the prosecution's case is based on harassment, physical and mental torture also for the demand of motor-cycle which cover under the Explanation (a) for the purposes of ingredient of cruelty. It is not the position of the case that the case of the prosecution is solely based on demand of motorcycle. I do not agree with the contention of the learned Senior Counsel that the evidence regarding the ingredients of cruelty is absent in the present case. 12. During the post-mortem, Dr. S.A. Mandge (PW-8) recovered from inside the underwear of the deceased a hand-written piece of paper which he handed over to the concerned Constable which was duly seized and used in the evidence as Ex.-P/16A. As per contents of this hand-written piece of paper written by the deceased, it is about the fact that her husband used to harass her and also used to beat her and once or twice he pressed her neck and poured kerosene oil. Main argument submitted for the suspicion and improbability, but since the doctor is an independent witness; nothing is proved that he himself conspired for putting this piece of document, I do not agree with the argument and held that the recovery of Ex.-P/16A inside the undergarment of the deceased found by the doctor is trustworthy and acceptable. As per the position of the suicidal note, found inside the undergarment, goes to show that this is the note written by the deceased herself and for that no hand-writing expert is required. As per the position of the suicidal note, found inside the undergarment, goes to show that this is the note written by the deceased herself and for that no hand-writing expert is required. It leads us that her husband was harassing her, beating her, pressing her neck once or twice and also poured kerosene oil, these all comes under the definition of cruelty as given in Explanation A of the Section 498-A of the IPC. 13. The other incriminating circumferences are the letters Ex.-P/3A and Ex.-P/3B written in Marathi language addressed to father and mother of the deceased. Hindi translation is Ex.-P/4 and Ex.-P/5. Much argued about the seal, the manner the deceased addressed her father and mother, but she managed to post these letters even from Bhilai, addressed her father and mother as Jheku vkvkl o vkbZl] vknj.kh; vkbZ o vkvk does not throw any suspicion about the genuineness of the letters; both of the letters sent much prior to the incident, goes to show that the deceased intimated her father and mother regarding the demand of motor-cycle, harassment and threat. I agree with the findings of the trial Court that the contents of these letters constitute the offence under Section 498-A of the IPC. 14. When we look forward regarding the oral evidence, the prosecution adduced Pushpa Nachole (PW-1, mother of the deceased), Surendara (PW-3, maternal uncle of the deceased) and Baban Rao (PW-15, father of the deceased); in their statement they remained very firm for the ingredients of cruelty. They were cross-examined at length but nothing could be elicited in their cross-examination which could discredit their evidence. Though there are a few minor omissions, and discrepancies in their evidence, but they do not affect the root of the case. They corroborated the Ex.-P/3A, Ex.-P/3B and suicidal note Ex.-P/16A. There was no element of after though , the suicidal note recovered at the time of autopsy, letters were received many months prior to the incident, in general conduct of society, the parents of a married woman always try to see their ward happy and they always try to settle dispute, if any. They are levelling false charges for harassment, cruelty-mental and physical, and demand, it cannot be held to be concocted in view of the entire evidence adduced by the prosecution. They are levelling false charges for harassment, cruelty-mental and physical, and demand, it cannot be held to be concocted in view of the entire evidence adduced by the prosecution. Much said that the father is head Constable in Maharashtra police, he is very vigilant for keeping the draft and other handwritten notes, then why he not lodged any complaint regarding the harassment and cruelty, but for exception parents want that dispute be settled amicable, unless water flows upward to head parents never approach to police. I am of the view that even in the presence of some improvements, some discrepancies, their entire evidence may not be flushed off. The father of the deceased Head Constable Baban Rao (PW-15) is certainly not in a position to cook up the entire case falsely. Argument were advanced for the letter Ex.-P/17, the written admission by the father and the deceased that the deceased was having illicit relation with some J.T. Tiwari for which Ex.-P/17C is referred for the reference of Pramod and J.T., when this Ex.-P/17 was referred to Baban Rao (PW-15), he gave an explanation that he wanted his daughter's life happy, due to pressure he wrote as instructed. Two views are possible, anybody can admit anything towards the happy life of his daughter. Another view, if for the sake of argument, the deceased was having any illicit relation before the marriage that fact is no relevant in the present case because the factum of suicide was not throwing towards the appellant. On the other hand, the appellant was acquitted of the charge of death occurred other than normal circumferences i.e. including suicide. I am of the view that Ex.-P/17A does not affect the root of the case especially regarding the cruelty. On the other hand, the appellant was acquitted of the charge of death occurred other than normal circumferences i.e. including suicide. I am of the view that Ex.-P/17A does not affect the root of the case especially regarding the cruelty. One more point to be taken note of is that at Ex.-P/17C allegedly the deceased wrote the name of Pramod and after comma wrote the word 'J' and after that letter there is written like either 't' or it may look like 'T', if we had one view, it looks like 'JI' goes to show that the deceased wanted to write Pramod JI; if the other view is assumed to be true for the sake of argument, even then presence of the fact of any previous illegal relation before the marriage to any other person, not diminishes the effect of cruelty as appeared in the case with the help of oral and documentary evidence including the suicide note. 15. As in a family dispute normally victim tells it to her parents or near relatives and on the basis of non-corroboration from other independent witnesses, the statement of the parents and near relatives may not become false and they need not independent corroboration. Their statement be valued on the basis of their won strength. I agree with the finding of the trial Court that their statement inspire confidence, trustworthy and admissible for the incriminating circumstance of cruelty against the deceased for which the appellant has been convicted. 16. Reliance is placed on the case law of Shailendra Singh v. State of M.P. (supra), in this case law, there was one solitary circumference that the appellant asked deceased to apologize his mother and sister otherwise he will not take her to her marital home and due to this deceased took sulfas tablet which caused her death. In the present case, ingredients of cruelty are found and proved by more than one set of evidence and the suicide was not a direct effect of cruelty that is why the appellant was acquitted for the charge. Looking to the different facts, the case cited is of no help for the appellant in the present case. In the present case, ingredients of cruelty are found and proved by more than one set of evidence and the suicide was not a direct effect of cruelty that is why the appellant was acquitted for the charge. Looking to the different facts, the case cited is of no help for the appellant in the present case. Reliance on behalf of the appellant is also placed upon the matter of S. Anil Kumar alias Anil Kumar Ganna v. State of Karnataka (supra) wherein in absence of any relevant fact in FIR or before the initial evidence, Hon'ble the Supreme Court held that demand of dowry and harassment is not proved because there was contradictory statement of the witnesses about the same, Hon'ble the Supreme Court held that this is not a minor contradiction and the prosecution failed to prove the basic ingredients of harassment and demand of dowry. But in the present case basis ingredients of harassment and demand of motorcycle proved by more than one means. Since the facts are different from this case, the cited case law does not help the appellant to the extent of his innocence. 17. To part with, I am of the view that there is no reason to take a different line from the trial Court as the prosecution proved by sufficient and credible evidence that the appellant committed cruelty towards his wife deceased Veena and also he made demand for motorcycle, the learned trial Court has rightly convicted the appellant for the offence. So far as the quantum of sentence is concerned, the learned trial Court sentenced the appellant for three years' rigorous imprisonment and also with fine Rs.1000/- with default sentence of additional rigorous imprisonment for one year. Though the death of the deceased may not be directly connected with the ingredients of cruelty because other circumstances which could lead and connect are not proved, but in the shadow of cruelty, mental and physical, demand of motorcycle, harassment, a 20 years' young woman ended her life and thereby she deprived of her remaining life, I am of the view that looking to the post effect of cruelty though not linked explicitly in absence of other attending circumstances, the learned trial Court has adequately sentenced and punished the appellant. Therefore, the sentence awarded to the appellant also warrants no interference. 18. Therefore, the sentence awarded to the appellant also warrants no interference. 18. On close scrutiny of the evidence, I do not find any illegality or infirmity in the judgment of conviction and order of sentence passed by the learned trial Court. Consequently, the appeal filed by the appellant has no substance, and the same is liable to be and is hereby dismissed. As the Appellant is on bail, his bail stands cancelled and he is directed to be taken into custody forthwith for serving out the remainder of the sentence imposed on him.