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2015 DIGILAW 202 (MP)

Arun v. State of M. P.

2015-02-18

N.K.GUPTA

body2015
JUDGMENT: N.K. Gupta, J. 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 15.1.997 passed by the Fifth Additional Sessions Judge, Jabalpur in ST. No. 1089/294 whereby, he has been convicted of offence punishable under Section 304-B of I.P.C and sentenced to ten years rigorous imprisonment. 2. The prosecution's case in short is that on 11.8.1994 Tarabai, wife of the appellant, who, was residing with the appellant in his house situated at Gulaua Chowk, Jabalpur sustained burn injuries and she was admitted in Medical College, Jabalpur where she expired the same day. An intimation of her death was given to the Police Station, Madan Mahal. After registering, merg inimation Ex.P/8, the dead body of Tarabai was sent for post mortem and it was found that she sustained more than 90% burn injuries on her body and therefore, she died out of shock caused by burning. Thereafter, Police has recovered a plastic can containing some kerosene oil, two semi burnt match sticks etc. from the spot. The parents and relatives of the deceased Tarabai had stated that the appellant and his mother were habitually cruel with the deceased with respect to demand of dowry. Also she was blamed by the appellant and his mother because she was not blessed with any child. It was also alleged that the appellant and his mother had asked Tarabai to keep her utensils separately. On due investigation the charge sheet was filed before the JMFC, Jabalpur who, committed the case to the Court of Sessions and ultimately, it was transferred to the Fifth Additional Sessions Judge, Jabalpur. 3. The appellants abjured their guilt. They took a plea that at the time of funeral of Tarabai, her parents and relatives had demanded for returning of the gifts given to the deceased including her golden ornaments and when those gifts were not immediately handed over to them, a false case has been lodged against the accused persons. Tarabai was never tortured for any reason including demand of dowry. She was suffering from abdominal pain especially during the period of menses. In defence Tarakeshwar Sharma (DW1), Ramvraksha Gupta (DW2), Rajaram Kushwaha (DW3) and Dr. Shantilal Gugaliya (DW4) were examined. 4. Tarabai was never tortured for any reason including demand of dowry. She was suffering from abdominal pain especially during the period of menses. In defence Tarakeshwar Sharma (DW1), Ramvraksha Gupta (DW2), Rajaram Kushwaha (DW3) and Dr. Shantilal Gugaliya (DW4) were examined. 4. The Fifth Additional Sessions Judge after considering the prosecution's evidence acquitted Smt. Kalawati Bai, mother of the appellant, from all the charges but, convicted the appellant for offence under Section 304-B of I.P.C and sentenced as mentioned above. 5. I have heard the learned counsel for the parties. 6. The sole contention of the learned counsel for the appellant is that the prosecution has failed to prove that the deceased Tarabai was subjected to cruelty for demand of dowry or otherwise. The evidence led by the prosecution is not cognate and therefore, the appellant would have been acquitted from the charge of Section 304-B of I.P.C. The learned counsel for the appellant has placed his reliance upon the judgment passed by the Apex Court in the case of "Raman Kumar Vs. State of Punjab" [: (2009) 16 SCC 35 ], in which it is held that if prosecution has failed to establish the accusations against the appellant then accused cannot be convicted in absence of any reasons. Reliance is also placed on the judgment passed by the Apex Court in the case of "Hazarilal Vs. State of M.P." [: (2009) 13 SCC 783 ] in which it is held that there is a vast difference between "could have been", "must have been" and "has been". In absence of any material, the case would fall in the category "could have been" and in such a case conviction is impermissible. Similarly reliance is placed upon the judgment passed by the Apex Court in the case of "Kaliyaperumal and another Vs. State of Tamil Nadu" [ (2004) 9 SCC 157 ] in which the Apex Court has dealt with the provisions of Section 304-B of I.P.C and Section 113-B of the Evidence Act and held that to indicate that the expression "soon before" would normally implicate that the interval should not be much between the cruelty and harassment concerned and the death in question. There must be an existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. There must be an existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not be disturb the mental equilibrium of the woman concerned, it would be of no consequence. 7. Reliance has also been placed on the judgment passed by the Division Bench of this Court in the case of "State of M.P. Vs. Shiv Pujan Singh" (1994 II MPWN Note 34) in which it is held that there is no clear and cognate evidence to show as to whether harassment was caused to the deceased for a particular reason, the accused cannot be convicted of offence under Section 306 of I.P.C. Unless a consistent cruelty or harassment is shown or proved this presumption cannot be raised. There may be cases where cruelty and harassment may be immediate proximate of cause of suicide and in such circumstances, the facts are required to be proved clearly. 8. If the evidence of the present case is examined in the light of aforesaid judgments then it would be apparent from the evidence given by Dr. D.K. Sakelle (PW8) and Investigation Officer S.R. Katare (PW7), that the deceased sustained burn injuries of 90% on her body and she died due to shock caused by the burn injuries whereas, Sub Inspector S.R. Katare has stated that he had seized one plastic can containing little kerosene, burnt and semi burnt clothes of the deceased, two semi burnt match sticks etc. from the spot. Spot was not the kitchen and therefore, there was no possibility of any accident with the deceased. The Police did not allege that the deceased died due to homicidal attack done by the appellants and therefore, when the death of the deceased was neither homicidal nor accidental then certainly it was suicidal. Since the deceased Tarabai had brought the can of kerosene to the spot, the can of kerosene could not have been shifted from the spot. Seizure of can of kerosene and semi-burnt match sticks clearly prove that Tarabai sustained injuries due to her suicidal act. 9. After death of the deceased Tarabai her parents and relatives had made omnibus allegations against the appellant and his mother. Seizure of can of kerosene and semi-burnt match sticks clearly prove that Tarabai sustained injuries due to her suicidal act. 9. After death of the deceased Tarabai her parents and relatives had made omnibus allegations against the appellant and his mother. Out of that Ramnaresh (PW1) uncle of the deceased, Savita Sharma(PW2), daughter-in-law of the witness Ramnaresh, Kamaljeet (PW3) brother of the deceased, Shiv Shankar Sharma (PW5) brother of the deceased and Ramawatar Sharma (PW6) brother of the deceased have been examined before the trial Court to prove the cruelty relating to dowry demand and otherwise. Out of these witnesses Shiv Shankar Sharma (PW5) has stated that the deceased Tarabai never told him about any event which might have taken place in the house of the appellant. Only for once he was intimated that the deceased Tarabai was seriously ill and when he went to the house of the appellant, he was intimated that Tarabai was admitted in the Medical College, Jabalpur and ultimately expired due to burn injuries. Shiv Shankar Sharma was not declared hostile by the prosecution and therefore, his testimony is binding upon the prosecution. Ramawatar Sharma (PW6) has accepted that he and Shiv Shankar Sharma were not the real brothers of the deceased Tarabai and therefore, testimony of the witnesses Shiv Shankar Sharma has equal weight as of the witness Ramawatar Sharma. When the deceased did not tell anything to her cousin Shiv Shankar Sharma about her problem in her husband's house then it was not possible that she would have told about her problems to Ramawatar Sharma. 10. Ramnaresh, Savita Sharma, Kamaljeet and Ramawatar have concentrated only on four issues. Firstly, that the appellant was demanding dowry from the deceased. Secondly, the behavior of un- touch ability was done with the deceased, thirdly that she was not properly treated in the appellant's house when she fell ill and fourthly that she was blamed because she was not blessed with a child. 11. The first allegation as alleged by the witnesses is examined, then it would be apparent that Ramnaresh, Savita Sharma, Kamaljeet and Shiv Shankar Sharma have stated in an omnibus manner that the appellant was demanding dowry. Kamaljeet could not tell about the article which was demanded by the appellant. Ramnaresh has stated that the deceased was continuously telling him that the appellant and his mother were demanding dowry. Kamaljeet could not tell about the article which was demanded by the appellant. Ramnaresh has stated that the deceased was continuously telling him that the appellant and his mother were demanding dowry. In the cross examination, he has stated that initially a sum of Rs.15,000/- was demanded and a sum of Rs.5000/- was given in tilak. Thereafter, the appellant was demanding for a bigger vehicle. He gave an example of bigger vehicle that the appellant was demanding a Bullet Motorcycle. Savita Sharma has stated that the appellant was demanding a Hero Honda Motorcycle whereas, Ramawatar did not state about any article of dowry in the examination-in-chief but, in the cross examination, he has stated that there was a demand of motorcycle from the side of the appellant. However, these witnesses Ramnaresh, Savita Sharma and Ramawatar Sharma when confronted with their respective case diary statements Exs.D/1, D/2 and D/4 then it was very much clear that none of them had informed the Police that the appellant was demanding for a motorcycle or he was demanding a particular item of dowry from the deceased. Had there been a demand from the side of the appellant then, the submissions of the witnesses would have been uniform. Ramnaresh states in para 8 that the appellant was demanding for a bigger motorcycle like a Bullet whereas, Savita Sharma told about a motorcycle Hero Honda whereas, Ramawatar told about motor cycle but, no specification has been given by him whereas, none of them have stated in their case diary statement about the demand of the motorcycle. In these circumstances, it would be apparent that the allegation relating to demand of motorcycle appears to be concocted which is created by these witnesses at the time of their statement before the trial Court. 12. If the appellant would have demanded any dowry from the deceased, then there must be some specification about some demand, either it would be in cash or in kind, then the witnesses would have told about a specific demand. On the other hand, the witnesses have stated in an omnibus manner that the appellant was demanding dowry but, no specification has been given by these witnesses. Since the witnesses could not say about any specific demand then it is apparent that the alleged demand was nothing but, a suspicion raised by the witnesses otherwise, they could say about the specific demand. Since the witnesses could not say about any specific demand then it is apparent that the alleged demand was nothing but, a suspicion raised by the witnesses otherwise, they could say about the specific demand. For commission of offence under Section304-B of I.P.C, demand of dowry is not sufficient. It is to be established that the deceased was subjected to cruelty in consequence of the demand. The aforesaid witnesses did not state about such incident. It is not stated that the deceased Tarabai was retained in her parents house for resolution of any dispute relating to any dowry demand with her husband. No FIR was lodged in her life time. The witness Ramnaresh has accepted that in his community there is a Panchayat of Vishwakarma Samaj but, the matter was never referred to such Panchayat. Accepting that so many relatives of the appellants are residing at Jabalpur and so many relatives of the deceased are also residing at Jabalpur, if there was any dispute relating to dowry demand then the deceased would have informed the relatives who, were residing at Jabalpur but, no such instance could be established by the prosecution. On the other hand Tarakeshwar Sharma (DW1), a distant relative of the deceased Ramvraksha Gupta (DW2) and Rajaram Kushwaha (DW3), neighbors of the appellant, have stated that the deceased was kept with comfort. They denied all the allegations that the deceased was subjected to cruelty for dowry demand. There is no reason to disbelieve the testimony of the neighbors who, were residing near the house of the appellant. 13. For commission of offence under Section 304-B of I.P.C., it is to be established that the deceased was subjected to cruelty for dowry demand. There is no reason to disbelieve the testimony of the neighbors who, were residing near the house of the appellant. 14. For commission of offence under Section 304-B of I.P.C., it is to be established that the deceased was subjected to cruelty for dowry demand soon before her death. There is no reason to disbelieve the testimony of the neighbors who, were residing near the house of the appellant. 14. For commission of offence under Section 304-B of I.P.C., it is to be established that the deceased was subjected to cruelty for dowry demand soon before her death. In this context Savita Sharma (PW2) has stated that when she went to the house of the appellant and talked with the deceased, she was served with snacks and when she was going back, the deceased Tarabai told her to come again so that she wanted to talk on an important issue but, Savita Sharma did not state that on that day the deceased had intimated her about any dowry demand or harassment. 15. The witnesses could not specify time and date or particular period in which such dowry demands were made. In the case of Kaliyaperumal (supra) the Apex Court has discussed about the expression "soon before her death" used in substantive Section 304-Bof IPC and Section 113-B of the Evidence Act and it is held that no definite period has been intimated and the expression "soon before" is not defined. It is held that the Court may consider the period of "soon before" according to the facts of that particular case. In the present case, Savita Sharma had met the deceased Tarabai, three days prior to the incident and no complaint was made by the deceased about any dowry demand or harassment. Also no witness could prove that there was any specific demand of dowry from the side of the appellant. Also it is not established that any specific cruelty or harassment was done with the deceased in consequence of the dowry demand. It is expected from a girl that she would share her problems with her parents and near relatives. It is surprising that Bhavnath, father of the deceased Tarabai was listed as a prosecution witness and he was given up when he was present to give his statement before the Court. Mother of the deceased Tarabai was not examined by the Police and her name was not shown in the witness list. It is surprising that Bhavnath, father of the deceased Tarabai was listed as a prosecution witness and he was given up when he was present to give his statement before the Court. Mother of the deceased Tarabai was not examined by the Police and her name was not shown in the witness list. Non-examination of mother and father of the deceased Tarabai creates an adverse inference against the prosecution that if Bhavnath, father of the deceased and mother of the deceased would have been examined before the Court then they would not have stated against the appellant and therefore, when own relatives are not telling against the appellant than the possibility cannot be ruled out that the other witnesses have created a false case against the appellant so that ornaments and other gifts given to the deceased could be recovered. 16. In these circumstances, the witnesses could not prove that the deceased was subjected to cruelty for dowry demand and consequently she had expired due to an unnatural death. Therefore, in the light of the judgment passed by the Apex Court in the cases of Raman Kumar (supra), Hazarilal (supra) and Kaliyaperumal (supra) the appellant could not be convicted of offence under Section 304-B of I.P.C. The Additional Sessions Judge has committed an error of appreciation in convicting the appellant of offence under section 304-B of I.P.C. 17. Remaining three allegations are not connected with a case of dowry death but, in case of "Narvinder Singh Vs. State of Punjab" [: (2011) 1 SCC 601 ], it is held by the Apex Court that though a separate charge of offence under Section306 of I.P.C is to be framed by the trial Court but, in the light of the provisions under Section 221 of the Cr.P.C. the accused can be held guilty of offence under section 306 of I.P.C under the head of charge of Section 304-B of I.P.C. Hence in the light of the judgment passed by the Apex Court in the case of Narvinder Singh (supra) the other allegations are to be considered to examine as to whether any offence under section 306 of I.P.C. was committed by the appellant. 18. It was told by the witnesses that the appellant and his mother had directed the deceased to keep her utensils separately. 18. It was told by the witnesses that the appellant and his mother had directed the deceased to keep her utensils separately. However, Savita Sharma (PW2) has accepted that when she went to the house of the deceased Tarabai, Tarabai had served snacks and tea to her and she brought the utensils. Such allegations were made by the witnesses in their case diary statements but, almost all the witnesses did not allege about such allegations. The witness Ramawatar Sharma was reminded in the cross examination about such allegation in para 4 of his statement then, he repeated that allegation, he has accepted that Tarabai was residing with the appellant and her mother. Food of the entire family was cooked simultaneously and lunch and dinner was served to all of them simultaneously. He did not say that food prepared by the deceased Tarabai was not accepted by her mother-in-law or the appellant and therefore, the allegation of un-touchability appears to be hypothetical allegation, which appears to be not true as per statement given by Ramawatar Sharma (PW6) in para 4 of his statement. 19. The witnesses have alleged that when Tarabai fell ill in the house of the appellants then she was not properly treated or she was not shown to any doctor for her treatment. However, if the statements of Dr. Shantilal Gugaliya (DW4) is examined then it appears that the deceased Tarabai was shown to Dr. Gugaliya for her illness relating to sterility and profuse bleeding during menses. The witnesses have accepted in their cross examination that when Tarabai came to her parents house she never fell ill. Witness Ramnaresh has stated in para 11 in a casual manner that Tarabai might have had fever and she was not treated. However, he could not quote any specific date on which the deceased Tarabai was ill and the appellant did not arrange for her treatment. Savita (PW2) was sister-in-law of the deceased Tarabai. She did not say anything about the illness and treatment of the deceased Tarabai. On the contrary in para 6 of her statement, she denied that the deceased Tarabai fell ill in her life time. Kamaljeet did not state anything about this allegation whereas, Ramawatar Sharma who, has accepted that he was frequent visitor to the house of the appellant but, he did not allege about illness or treatment of the deceased Tarabai. On the contrary in para 6 of her statement, she denied that the deceased Tarabai fell ill in her life time. Kamaljeet did not state anything about this allegation whereas, Ramawatar Sharma who, has accepted that he was frequent visitor to the house of the appellant but, he did not allege about illness or treatment of the deceased Tarabai. Hence the allegation relating to improper treatment of the deceased Tarabai when she fell ill appears to be hypothetical. 20. Ramnaresh, Kamaljeet, Savita and Ramawatar have stated that the appellant was blamed by the mother-in- law that she could not be blessed with a child. There is no allegation against the appellant that he blamed his wife on that cause. On the contrary Dr. Shantilal Gugaliya (DW4) is examined to show that he treated the deceased Tarabai for her illness of sterility. 21. After considering all the allegations made against the appellant relating to harassment done on the deceased Tarabai, it appears that the prosecution could not prove any blame or allegation against the appellant which falls within the purview of Sections 107 or109 of the I.P.C. It is true that the decease died within seven years of her marriage and therefore, presumption under section 113-Aof the Evidence Act is available in favour of the prosecution but, it was for the prosecution to prove that the appellant had ill- treated his wife Tarabai and therefore, she committed suicide. Under these circumstances, the appellant cannot be convicted even of Offence under Section 306 of I.P.C. 22. On the basis of the aforesaid discussion the appellant cannot be convicted of offence under section 304-B or 306 of I.P.C and therefore, appeal filed by the appellant appears to be acceptable. Consequently, it is hereby accepted. The conviction as well as the sentence imposed against the appellant for offence under Section 304-B of I.P.C. are hereby set aside. The appellant is acquitted from all the charges, appended against him. 23. The appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. 24. Copy of the judgment be sent to the trial Court along with its record for information.