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2015 DIGILAW 216 (MP)

Sundarlal v. State of M. P.

2015-02-20

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 18.1.1996 passed by the 3rd Additional Sessions Judge, Rewa in S.T. No.155/90, whereby the appellant has been convicted of the offence under Section 304-B of the IPC and sentenced to ten years' R.I. 2. The prosecutionâs case, in short is that marriage of the appellant Sundarlal took place with one Duvasiya (the deceased) in the year 1985. After two years of her marriage, she was sent to the house of the appellant and on 7.6.1990, she had expired due to burn injuries. After the death of the deceased Duvasiya, her parents and relatives have alleged that there was a continuous demand of a bicycle, radio and watch from the side of the appellant and he was in habit to deal the deceased Duvasiya with cruelty for fulfillment of his demand of dowry and therefore, she committed suicide. After due investigation, the charge sheet was filed before the JMFC Teonthar, who committed the case to the Court of Sessions and ultimately, it was transferred to the 3rd Additional Sessions Judge, Rewa. 3. The appellant abjured his guilt. He took a plea that he kept the deceased with comfort. Since marriage of sister of the deceased was arranged on a particular day on which marriage of sister of the appellant was also arranged therefore, the deceased was not permitted to go and attend the marriage of her sister hence, she committed suicide. In defence Sumeshwar Prasad (DW-1) and Ramkumari (DW-2) were examined. 4. The 3rd Additional Sessions Judge after considering the evidence adduced by both the parties, convicted the appellant and his father Narmada Prasad for the offence under Section 304-B of the IPC and sentenced as mentioned above. However, during the pendency of appeal, Narmada Prasad had expired and therefore, appeal filed on behalf of the appellant Narmada Prasad was abated. 5. The appellant Sundarlal remained absent on the given dates before the office of this Court therefore, an arrest warrant was issued against him and he was brought from the jail. However, during the pendency of appeal, Narmada Prasad had expired and therefore, appeal filed on behalf of the appellant Narmada Prasad was abated. 5. The appellant Sundarlal remained absent on the given dates before the office of this Court therefore, an arrest warrant was issued against him and he was brought from the jail. He did not have any counsel to defend his case therefore Shri Narendra Nikhare, whose name is in the panel of High Court Legal Services Committee and who has a wide experience of the criminal cases, was appointed to argue the matter on behalf of the appellant and thereafter, I have heard the learned counsel for the parties. 6. It is apparent that the deceased sustained the burn injuries and in consequences, she had expired. It would also be apparent and admitted that she committed suicide. Babulal (PW-1) father of the deceased, Ramroop (PW-2) cousin of the deceased, Bawni (PW-3) mother of the deceased, and Nandkishore (PW-4) cousin of the deceased have stated that the marriage of the deceased took place with the appellant in the year 1985 and after three years of her marriage, a custom of "Gouna" took place and thereafter, she resided for two years' in the appellant's house. In those two years, she went to her father's house only for two times and every time she had informed that there was a demand of the appellant relating to a bicycle, radio and watch. These witnesses have stated that the deceased was not sent peacefully in those two visits. However, there is a contradiction between the witnesses relating to dispute at that time when the deceased Duvasiya was taken to her parents' house. Nandkishore (PW-4), who went to take the deceased Duvasiya to her father's house has accepted that in first "Vidai", there was no dispute and she was sent to her parents' house. Babulal has accepted that in first visit of the deceased to his father's house, she had stated that the appellant demanded a bicycle, radio and watch and it was also told by the appellant that if such articles were not provided then, the deceased would be tortured by not providing the foods or clothes and she would be assaulted. Babulal has accepted that in first visit of the deceased to his father's house, she had stated that the appellant demanded a bicycle, radio and watch and it was also told by the appellant that if such articles were not provided then, the deceased would be tortured by not providing the foods or clothes and she would be assaulted. It would be apparent from the statement of Babulal that in first visit, there was an allegation of demand only and it was not told by the deceased that the appellant did any cruelty to her for fulfillment of demand and therefore before first visit of the deceased to her parents' house, there was no cruelty done by the appellant to her relating to the dowry demand. 7. When the deceased was taken to her parents' house on the second time, Ramroop (PW-2) has stated that he did not visit to take the deceased Duvasiya in her second visit to her parents' house. Bavni (PW-3) mother of the deceased has stated in para 5 of her statement that when cousins of the deceased were sent to take the deceased from the appellant's house, she was peacefully sent by them. Bavni is mother of the deceased and therefore, it appears that Babulal, Ramroop and Nandkishore are making false allegations that a quarrel took place between the appellant and Nandkishore when Nandkishore went to take the deceased Duvasiya on her second "Vidai". 8. Babulal (PW-1) has accepted that at the time of arrangement of marriage, he has stated to the appellant that he has no means to give any dowry and thereafter. A peaceful marriage took place and the appellant and his father did not demand anything. Ramroop and Nandkishore have accepted that in their family, the boys have received as dowry a sum of Rs.451/- or Rs.1011/-. Nandkishore has stated that his father gave a dowry of Rs.551/- to his sister. Looking to such facts, it appears that there was no dowry system in the community of the witnesses Babulal etc. Bavni (PW-3) mother of the deceased has accepted that when the appellant came to her house to take the deceased Duvasiya, he demanded for such articles however, her statement was not corroborated by her husband Babulal. Looking to such facts, it appears that there was no dowry system in the community of the witnesses Babulal etc. Bavni (PW-3) mother of the deceased has accepted that when the appellant came to her house to take the deceased Duvasiya, he demanded for such articles however, her statement was not corroborated by her husband Babulal. Babulal, Nandkishore and Ramroop, they did not state that the appellant demanded such articles directly in the house of Babulal and therefore, that portion of statement given by Bavni appears to be incorrect. 9. Bavni has accepted in para 5 of her statement that the deceased Duvasiya Bai was taken to her house peacefully for two times and she was sent off peacefully alongwith the appellant when he came to take her. If there was a dispute relating to the dowry demand etc. then, the appellant would have scolded by Babulal etc. and the matter would have referred to the Panchas of the community or an FIR would have been lodged or the deceased would have been detained in her parents' house and redressal proceedings would have been initiated but no such statement was given by Babulal or the deceased. The witnesses could not state as to when the deceased went to the appellant's house in second "Vidai". It appears that there was a long gape of time between the period of incident and second "Vidai' and when Raju visited to take the deceased Duvasiya for third time to take her to her parents' house, for that period, there was no evidence given by Babulal, Ramroop and Nandkishore that any harassment was done by the appellant to the deceased. 10. Learned counsel for the appellant has submitted that for the offence under Section 304-B of the IPC, there should be a cruelty for demand of dowry soon before the incident. In this connection, he has placed his reliance upon the judgments passed by Apex Court in the cases of "Durga Prasad and another Vs. State of M.P." [2010 (2) M.P.L.J. (Cri.) 658] and judgment passed by the Single Bench of this Court in the case of "Mangal Ram and another Vs. State of M.P." [: 1999 (1) M.P.L.J. 505 ] in which, it is held that it is for the prosecution to establish that "soon before" of her death, she was subjected to cruelty for demand of dowry. State of M.P." [: 1999 (1) M.P.L.J. 505 ] in which, it is held that it is for the prosecution to establish that "soon before" of her death, she was subjected to cruelty for demand of dowry. In the light of the aforesaid judgments, there is no evidence in the present case that the deceased was subjected to cruelty for demand of dowry soon before her death. Babulal father of the deceased in para 9 of his cross-examination that when his son went to take the deceased for third time from the appellant's house to the house of her parents, there was no complaint of the deceased relating to the harassment for dowry demand etc. 11. Babulal, Bavni and Nandkishore have accepted that third time, when Raju went to bring the deceased Duvasiya to the house of her parents, the appellant and his father denied to send her because the marriage of sister of the appellant was settled and there was nobody as senior female in the house, who could look after the arrangement of marriage in the house. Bavni has specifically stated that the marriage of sister of the deceased was held for the same day on which the marriage of sister of the appellant was fixed and the deceased wanted to attend the marriage of her sister. In this context, Sumeshwar (DW-1) and Ramkumari (DW-2) have stated that the deceased was bent upon to go and attend the marriage of her sister. It is surprising that Raju, who went to take the deceased from the appellant's house to her parents' house was not examined by the prosecution to state as to what was the factual position and what was the conduct of the deceased when she was prohibited to visit her parents' house to attend the marriage of her sister. The defence witnesses have stated that when the deceased was prohibited then, she told in the house that she would see as to how the marriage of sister of the appellant would be performed in a peaceful manner. It is also pertinent to note that death of the deceased took place on 7.6.1990, whereas the complainant Babulal kept silence for two weeks and thereafter, he had lodged a report Ex.P/1 in omnibus manner against the appellant and his father. It is also pertinent to note that death of the deceased took place on 7.6.1990, whereas the complainant Babulal kept silence for two weeks and thereafter, he had lodged a report Ex.P/1 in omnibus manner against the appellant and his father. It is also pertinent to note that the deceased resided in the house of the appellant for two years, whereas there was no senior female member in the family and she was looking after the entire family of the appellant and his father therefore, she had no problem in residing with the family otherwise, she would have been taken to her parents' house and detained there till the redressal of dispute or she would not have been sent to the appellant's house for two times in a peaceful manner. 12. On the basis of aforesaid discussion, it appears that there is no evidence against the appellant that he subjected to the deceased with cruelty for dowry demand or otherwise soon before her death and therefore, no offence under Section 304-B of the IPC is made out. In the light of aforesaid judgments passed by the Supreme Court and the Single Bench of this Court, the possibility cannot be ruled out that since the deceased was not sent to attend the marriage of her sister, she would have committed suicide. However, it was for the prosecution to prove its case beyond doubt. The prosecution has failed to prove its case beyond doubt and therefore, the appellant cannot be convicted of offence under Section 304-B of the IPC. 13. Though, the offence under Section 498-A of the IPC is not of same nature as of offence under Section 304-B of the IPC, the trial Court did not append a separate charge of offence under Section 498-A of the IPC. However, if in the light of the judgment passed in the case of "Smt. Shanti and others Vs. State of Haryana" [: AIR 1991 SC 1226 ] in which the accused was convicted for the offence under Section 498-A of the IPC under the charge of Section 304-B of the IPC, it would be proper to consider the case of the appellant for the offence under Section 498-A of the IPC. State of Haryana" [: AIR 1991 SC 1226 ] in which the accused was convicted for the offence under Section 498-A of the IPC under the charge of Section 304-B of the IPC, it would be proper to consider the case of the appellant for the offence under Section 498-A of the IPC. On the basis of aforesaid discussion, it is apparent that for two times, the deceased Duvasiya was taken to her parents house peacefully and thereafter, the appellant brought her back to his house peacefully. The possibility cannot be ruled out that after the death of Duvasiya, Babulal, Ramroop and Nandkishore have created a case of cruelty for dowry demand or otherwise. If the appellant had subjected the deceased to cruelty then, after second "Vidai", such cruelty should have been continued. Babulal has accepted that when Raju went to take the deceased Duvasiya to the house of her parents then, there was no complaint of any cruelty or demand. It was also apparent that the deceased was a senior female member in the family, who had to look after the family and there was no superior female member in the house. The appellant and his father were doing their work and they were well to do persons hence, the prosecution could not prove that the deceased was ever subjected to cruelty by the appellant for dowry demand or otherwise. Hence, the appellant cannot be convicted of offence under Section 498-A of the IPC. 14. On the basis of aforesaid discussion, it appears that the conviction as well as sentence imposed by the trial Court appears to be erroneous. The appeal filed by the appellant appears to be acceptable and consequently, it is accepted. The conviction as well as sentence imposed by the trial Court for the offence under Section 304-B of the IPC are hereby set aside. The appellant is acquitted from all the charges appended against him. 15. The appellant is in jail and therefore, a release warrant be immediately issued so that the appellant may be released from the jail without any delay. 16. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance (if any).