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Madhya Pradesh High Court · body

2015 DIGILAW 696 (MP)

RAJEEV RANJAN v. STATE OF MADHYA PRADESH

2015-07-06

N.K.GUPTA

body2015
JUDGMENT : N.K. GUPTA, J. 1. The appellants have preferred the present appeal being aggrieved with the judgment dated 10.2.1998 passed by the IIIrd Additional Sessions Judge, Chhatarpur in ST No. 145/1994 whereby, each of the appellants have been convicted of offence under Section 304-B of I.P.C and sentenced to 10 years rigorous imprisonment. 2. The facts of the case in short are that on 28.3.1994 at about 8.00 a.m., the appellant No. 3 Vikas Sharma, who had slept on the terrace of his house (Village Bagauta, District Chhatarpur) in the previous night, went inside the house, he found that his sister-in-law Ram Kumari had committed suicide and her body was hanging with a rope in a room. He immediately informed his brother Rajeev Ranjan, appellant No. 1 and the body of the deceased was removed from the hook and they found her to be dead. Vikas Sharma went to the Police Station Chhatarpur and lodged a merg intimation. On 5.4.1994 Shri Ramswarup Pateria (PW1), father of the deceased had lodged a typed report (complaint) before the SHO concerned and after merg enquiry, on 7.4.1994, a case of offence under Section 304-B of I.P.C was registered and investigation was initiated. The body of the deceased had already been sent for its post mortem. Dr. Sudhir Kumar Khare (PW11) performed the post mortem on the body of the deceased Ram Kumari at District Hospital Chhatarpur and gave his report. He found that the deceased died due to hanging. After due investigation, a charge sheet was fled before the JMFC Chhatarpur who committed the case to the Court of Sessions and ultimately it was transferred to the IIIrd Additional Sessions Judge, Chhatarpur. 3. The appellants abjured their guilt. They took a plea that the deceased was kept in comfort. She was never harassed for any dowry demand or otherwise. The appellant No. 1 Rajeev Ranjan had already purchased a moped from his colleague Phoolchand Jain (DW2). In defence Nandkishore Shivhare (DW1), Phoolchand Jain (DW2) and Prem Narayan (DW3) were examined. 4. After considering the evidence adduced by the parties, the Additional Sessions Judge convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties. 6. In defence Nandkishore Shivhare (DW1), Phoolchand Jain (DW2) and Prem Narayan (DW3) were examined. 4. After considering the evidence adduced by the parties, the Additional Sessions Judge convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties. 6. After considering the submissions made by the learned counsel for the parties, the first question which is to be settled by this Court is whether the death of the deceased was caused within seven years of marriage. In the context of her marriage, Ramswarup (PW1) and Rajesh (PW3), brother of the deceased have stated that the marriage of the deceased and the appellant Rajeev Ranjan took place 6-7 years prior to the date of their statement. Ratti Bai (PW5), maternal aunt of the deceased, has accepted in para 4 of her cross examination that the marriage of the deceased and appellant No. 1 took place 8-9 years prior to date of her statement. Ramadevi alias Ramdevi (PW6), cousin of the deceased, has sated in para 5 of her statement that the marriage of the deceased took place 10 years prior to the date of her statement. Savitri (PW7), mother of the deceased, has stated that marriage of the deceased took place 8-9 years prior to the date of her statement. All these witnesses were examined in the month of December, 1996 therefore, if computation is done on the basis of the statements of these witnesses, it appears that some of the witnesses have accepted that the deceased died after completing seven years of her marriage and some of the witnesses have stated that she died before completion of seven years of her marriage. Ramswarup (PW1) had lodged a typed FIR Ex.P/1 on 30.3.1994, in which it was mentioned that the marriage of his daughter, deceased Ram Kumari, took place on 22.5.1987 but, in the statement of other witnesses, nobody has stated about the date of marriage of the deceased with the appellant No. 1 Rajeev Ranjan. It was not shown by the witnesses as to what was the basis for the date of marriage as given in the FIR Ex.P/1. No copy of the invitation card of the marriage was submitted before the trial Court. No person was examined to show that the marriage took place on a particular date. It was not shown by the witnesses as to what was the basis for the date of marriage as given in the FIR Ex.P/1. No copy of the invitation card of the marriage was submitted before the trial Court. No person was examined to show that the marriage took place on a particular date. According to the FIR Ex.P/1, if date of marriage i.e. 22.5.1987 is considered then the deceased died after six years and ten months of her marriage. 7. If the facts mentioned in the FIR Ex.P/1 are compared with the statements of various witnesses then the possibility cannot be ruled out that only to show that the deceased died within seven years of her marriage, such a date has been mentioned in the FIR Ex.P/1 otherwise, Ramswarup (PW1), the author of the FIR, could not show any basis for mentioning such a date of marriage in the FIR. FIR is not a substantial piece of evidence and therefore, if the date of marriage is mentioned in the FIR but, no evidence to substantiate its nature is produced to confirm the same, then the date of marriage as shown in the FIR Ex.P/1 is not at all proved by the prosecution. If evidence of the various witnesses is examined then Ramadevi alias Ramdevi (PW6) has accepted that marriage of the deceased had taken place 10 years prior to Ramdevi's statement i.e. 8 years prior to her death. It would be apparent that all such witnesses, examined before the Court as relatives of the deceased, are not found to be literate persons. There is no reason to disbelieve the witness Ramadevi alias Ramdevi. Looking at the conduct of Ramswarup, father of the deceased, that he gave a fictitious date of marriage in the FIR Ex.P/1, a doubt is created that the deceased died after seven years of her marriage and only to make the case against the appellants, the witness Ramswaroop is falsely claiming that the deceased died within 6-7 years of her marriage. A short margin of two months was shown in the FIR Ex.P/1 lodged by the father of the deceased and hence from the facts accepted by Ramadevi alias Ramdevi, cousin of the deceased, it appears that the deceased died after seven years of her marriage. A short margin of two months was shown in the FIR Ex.P/1 lodged by the father of the deceased and hence from the facts accepted by Ramadevi alias Ramdevi, cousin of the deceased, it appears that the deceased died after seven years of her marriage. According to the provision of Section 304-B of I.P.C the offence under the same would constitute if the deceased dies within seven years of her marriage. When a doubt arose that the deceased died after seven years of her marriage then benefit of the doubt is to be given to the accused and hence, it is clear that no offence under Section 304-B of I.P.C is made out against the appellants. 8. On the basis of the aforesaid discussion, the appellants cannot be convicted of offence under Section 304-B of I.P.C and their appeal may be accepted on a technical ground. However, merits of the case are yet to be considered. Dr. Sudhir Kumar Khare who performed the post mortem has given his report Ex.P/10. He found a ligature mark to the left neck of the deceased which was caused ante mortem. According to him, the death of the deceased could be suicidal in nature. Though some abrasions were found on her neck, Dr. Sudhir Kumar Khare has explained that when the rope tightens around the neck due to the weight of the person who tried to commit suicide, then that person tries to save herself and therefore, naturally nail marks of the deceased herself could be found on her neck. The Police did not file a case of murder. Ram Kumari could not have died in her house from hanging as an accident and therefore, it is established that death of the deceased was suicidal in nature and therefore, it was an unnatural death. 9. Ramswarup (PW1) father of the deceased, Rajesh (PW3), brother of the deceased, Savitri (PW7) mother of the deceased, Ratti Bai (PW5) maternal aunt of the deceased, Ramadevi alias Ramdevi (PW6) cousin of the deceased, Santosh Singh (PW7) reputed citizen of the locality and Trilok Singh (PW9) an independent citizen of the locality were examined to prove that the deceased was being harassed for demand of dowry. Out of these witnesses, Santosh Singh and Trilok Singh have turned hostile. They did not state anything relating to demand of dowry. Out of these witnesses, Santosh Singh and Trilok Singh have turned hostile. They did not state anything relating to demand of dowry. On the contrary they have stated that the deceased was kept in comfort. She had no problem in the house of her husband. These two witnesses are teachers and the appellant No. 1 is also a teacher and therefore, it is possible that they would not have stated against the appellant No. 1. 10. Ramswarup, Rajesh, Savitri, Ratti Bai and Ramadevi alias Ramdevi have stated that the deceased had told them about demands of various articles made by the appellants and she was beaten in consequence of the demands not being met.. However, there is lot of contradiction between the statements of these witnesses. All the aforesaid witnesses except Ramswarup have stated that there was a demand of a T.V. made by the appellant whereas, Rajesh has stated that a motorcycle was also demanded. Ramswarup, father of the deceased, did not say anything about the demand of T.V. If the allegations made by these witnesses are compared with the FIR Ex.P/1 then in the FIR, which was lodged two days after the incident, no specific article was mentioned to be demanded by the appellants. It appears that the witness Ramswarup was examined by the Police on 10.4.1994 i.e. after 12 days of the incident and by this time the witnesses had developed their story relating to the demand of dowry and the particulars of articles demanded by the appellants. If the appellants ever demanded for a moped or a T.V. then certainly such facts could be mentioned in the FIR Ex.P/1. Ramswarup (PW1) has accepted that he got the FIR typed in his office. He was working in the office of MPEB. If he had prepared a typed report in his office then certainly it shall be presumed that he would have received some suggestions from his colleagues and the person who typed the report. Still no specific article is shown to be demanded in that FIR Ex.P/1 and therefore, the statements given by the various witnesses appear to be after thought statements. Such inference could be gathered from the statement of Ramswarup himself. He has stated that the appellants had demanded a TVS Luna from the deceased and consequently, she was tortured. Still no specific article is shown to be demanded in that FIR Ex.P/1 and therefore, the statements given by the various witnesses appear to be after thought statements. Such inference could be gathered from the statement of Ramswarup himself. He has stated that the appellants had demanded a TVS Luna from the deceased and consequently, she was tortured. However, the other witnesses except Rajesh were not literate persons and on tutoring them could gather first two words of the article i.e. "T.V." and therefore, they have stated that the appellants have demanded a T.V. If T.V. was demanded by the appellants then certainly Ramswarup, father of the deceased, must have been aware of the demand and he would have stated about that demand. Ramswarup is silent on the demand of T.V. then the statements given by the other witnesses relating to demand of T.V. appear to be false and are therefore not acceptable. Hence, statements of Ratti Bai and Ramadevi alias Ramdevi have no value in the eye of law and cannot be accepted. 11. Ratti Bai and Ramadevi alias Ramdevi have accepted in their cross examination that the deceased told them about the demand of dowry being made only twice. Rattibai informed that 4-5 years prior to her statement the deceased Ram Kumari told about the demand for first time and thereafter, after one year she informed about the demand. If time is computed according to the evidence of Rattibai then there was no demand from the side of the appellants in the last two years of the life time of the deceased Ram Kumari. Ramadevi @ Ramdevi has accepted in para 6 of her evidence that the deceased Ram Kumari did not tell about the dowry demand in her first few visits. She did not make her grievance known to this witness when she was residing at Village Loudi. Two to three years back she started living at Village Dhamora and then she got the version from Ram Kumari. 12. Ramswarup has categorically stated that only TVS Luna was demanded by the appellants from the deceased Ram Kumari. However, Rajesh (PW3) has stated that a motorcycle and T.V. was demanded. Savitri (PW7) mother of the deceased, has stated that a motorcycle and T.V. was demanded by the appellants from the deceased Ram Kumari. 12. Ramswarup has categorically stated that only TVS Luna was demanded by the appellants from the deceased Ram Kumari. However, Rajesh (PW3) has stated that a motorcycle and T.V. was demanded. Savitri (PW7) mother of the deceased, has stated that a motorcycle and T.V. was demanded by the appellants from the deceased Ram Kumari. As discussed above, statements of Rajesh and Savitri cannot be accepted in relation to demand of T.V. because those statements are not corroborated by Ramswarup. It was not the case of Ramswarup that the appellants have demanded a motorcycle from the deceased. Rajesh in the cross examination has accepted that he understands the difference between motorcycle and TVS Luna. Thereafter, he changed his version that Luna was demanded. It would be pertinent to note that each of the witnesses was suggested that the appellant No. 1 Rajeev Ranjan had a moped purchased from Phoolchand Jain (DW2) and each of them have shown ignorance about that fact. Phoolchand Jain (DW2) has stated that he sold a Hero Majestic Moped to the appellant No. 1 on 8.5.1996 and he has shown a receipt Ex.D/5 relating to that sale. Under these circumstances, if the evidence of all the witnesses is considered in the light of the FIR then it would be clear that though Ramswarup etc. were present at the time of post mortem and other formalities of the deceased Rajkumani, they did not allege anything against the appellant at that time. After keeping silent for two days Ramswarup had lodged a written report but, demand of any specific article was not shown in that report. Thereafter, Ramswarup and the family members developed a story of dowry demand and fake allegations were made by the witnesses. On the basis of the aforesaid discussion, it is not proved beyond doubt that there was any dowry demand done by the appellants in the life time of the deceased. 13. Learned counsel for the appellants have placed his reliance upon the judgment passed by the Apex Court in the case of Sham Lal Vs. On the basis of the aforesaid discussion, it is not proved beyond doubt that there was any dowry demand done by the appellants in the life time of the deceased. 13. Learned counsel for the appellants have placed his reliance upon the judgment passed by the Apex Court in the case of Sham Lal Vs. State of Haryana, AIR 1997 SC 1873 , in which it is held that there was no evidence, however, that the deceased was treated with cruelty or harassed with demand for dowry during the period between her going back to her home and her tragic end then presumption of dowry death cannot be raised and accused cannot be convicted of offence under Section 304-B of I.P.C. 14. In the light of the aforesaid judgment, if the evidence of these witnesses is otherwise examined then it would be clear from their evidence that the deceased Ram Kumari visited the house of the appellants for 8-10 times in her life time after marriage. No Panchayat of community was called by Ramswarup - father of the deceased, no FIR was lodged either by the deceased or her father Ramswarup in the life time of the deceased and no steps of redressal were taken by Ramswarup. When the deceased Ram Kumari was feeling harassment in consequence of dowry demand then, to pressurize the appellants so that they should talk about the matter with Ramswarup and his wife, the deceased Ram Kumari could have been detained in the house of Ramswarup. Savitri has stated that the deceased Ram Kumari was detained for 1 1/2 years but, her statement was not corroborated by her son Rajesh or her husband Ramswarup and therefore, her statement appears to be falsehood that the deceased Ram Kumari was detained for some time so that her problem could be redressed. All the witnesses have accepted that before the death, she came to the house of her father at the time of death of her grandmother. Grandmother of the deceased Ram Kumari had expired in December, 1993 and the incident took place on 28.3.1994. There is no evidence given by any of the witnesses about the behavior of the appellants towards the deceased Ram Kumari in those last four months and therefore, in the present case, it cannot be said that she was harassed for dowry demand soon before her death. There is no evidence given by any of the witnesses about the behavior of the appellants towards the deceased Ram Kumari in those last four months and therefore, in the present case, it cannot be said that she was harassed for dowry demand soon before her death. Hence, in the light of judgment passed by the Apex Court in case of Sham Lal (supra) the appellants cannot be convicted of offence under Section 304-B of I.P.C. 15. The learned counsel for the appellants has also placed his reliance upon the judgment passed by the single Bench of this Court in the case of Phool Singh and Another Vs. State of M.P., (1997) 2 MPLJ 163 in which it is held that if the cruelty extended by husband or any relative of the husband is not proved for recording a conviction under Section 498-A of I.P.C, the very foundation of offence under Section 304-B of I.P.C., no conviction under Section 304-B of I.P.C. can be recorded. Though the charge of Section 498-A of I.P.C is not framed against the appellants however, in the light of the judgment passed by the Apex Court in the case of Smt Shanti and Another Vs. State of Haryana, (1991) 1 SCC 371 in which it is held that the person charged and acquitted under Section 304-B of I.P.C can be convicted under Section 498-A of I.P.C. without the charge of that offence, if such a case is made out. A small portion of para 6 of the judgment passed by the Apex Court in the case of Smt. Shanti (supra) may be referred as under : "Under Section 304B it is the "dowry death" that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498A and the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further a person charged and acquitted under section 304B can be convicted under Section 498A without charge being there, if such a case is made out. No such period is mentioned in Section 498A and the husband or his relative would be liable for subjecting the woman to "cruelty" any time after the marriage. Further a person charged and acquitted under section 304B can be convicted under Section 498A without charge being there, if such a case is made out. But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498A in view of the substantive sentence being awarded for the major offence under Section 304B." 16. Similarly in the judgment passed by the Apex Court in the case of Narwinder Singh Vs. State of Punjab, AIR 2011 SC 686 in which it is held that while dealing with the case under Section 304-B of I.P.C a separate charge of Section 306 of I.P.C is to be framed but, in the light of provision of Section 221 of the Cr.P.C. and after considering the facts of the case, the Apex Court convicted the accused of offence under Section 306 of I.P.C in absence of any charge of that offence. For ready reference para 22 of the judgment passed by the Apex Court in the case of Narwinder Singh (supra) is reproduced as under : "It is a settled proposition of law that mere omission or defect in framing charge would not disable the court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Sections 221(1) and (2) Cr.P.C." In the light of the aforesaid the judgments passed by the Apex Court in the case of Smt. Shanti (supra) and Narwinder Singh (supra) it would be proper to consider the matter for offence under Section 306 and 498-A of I.P.C because the entire factual position was put before the appellants in their examination under section 313 of the Cr.P.C. 17. As discussed above, there was no evidence to show that the deceased was harassed for the demand of dowry. As discussed above, there was no evidence to show that the deceased was harassed for the demand of dowry. It was alleged by the witnesses that the deceased could not be blessed by a child in last 6-7 years of her marriage but, no witness has stated that due to that reason any satire was given by the appellants or she was harassed. Rajesh (PW3), brother of the decease, has stated in para 13 of his evidence that the deceased Ram Kumari was in a habit telling her mother that she was not blessed with a child. However, he did not state that the appellants misbehaved with the deceased on that count or blamed her on that count. 18. Except of the allegation of dowry demand and the fact that the deceased was not blessed with a child, there is no allegation made by the witnesses against the appellants relating to harassment of the deceased on any count whereas, it is not proved that the appellants have demanded any dowry or any article like moped or T.V. from the deceased or she was being harassed on these counts. It is also established that she was not blamed at all because she did not have any issue in 6-7 years of her marital life. It is not stated by any of the witnesses that any threat or remark was given by the appellant No. 1. Under these circumstances, prima facie there is no evidence to convict the appellants of offence under Section 498-A of I.P.C. 19. The prosecution has failed to prove any cruelty done by the appellants upon the deceased. On the contrary, it is established that after death of the deceased, her parents and relatives have developed an after thought story of cruelty. When the appellants cannot be convicted of offence under Section 498-A of I.P.C, for demand of dowry or otherwise in absence of any cruelty, it cannot be said that the appellants abetted the deceased Ram Kumari to commit suicide. No overt act of the appellants is established by the prosecution which may fall within the purview of Section 107 or 109 of the I.P.C. Hence the appellants cannot be convicted of offence under Section 306 of I.P.C. 20. No overt act of the appellants is established by the prosecution which may fall within the purview of Section 107 or 109 of the I.P.C. Hence the appellants cannot be convicted of offence under Section 306 of I.P.C. 20. It would be apparent that death of the deceased took place after seven years of her marriage and it is not proved that the deceased had been harassed by the appellants either for demand of dowry or otherwise and therefore, the appellants cannot be convicted of offence under Section 304-B of I.P.C or 498-A of I.P.C. Hence the appeal fled by the appellants is acceptable and consequently, it is accepted Their conviction and sentence of offence under Section 304-B of I.P.C is hereby set aside. They are acquitted from all the charges appended against them. 21. The appellants are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged. 22. Copy of the judgment be sent to the Courts below along with its record for information and compliance. Allowed.