Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 798 (MP)

Ansuiya Prasad v. State of Madhya Pradesh

2015-08-04

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. The appellants have preferred the present appeal being aggrieved with the judgment dated 25.3.1998 passed by the Sessions Judge, Rewa in S.T. No. 76/1995, whereby each of the appellant has been convicted of offence under Sections 304-B & 498-A of the IPC and sentenced to seven years R.I. and three years R.I. with fine of Rs. 1,000/- respectively. In default of payment of fine, one month's further R.I. to the appellants. 2. The prosecution's case in short is that the deceased Sunita was married with the appellant Ansuiya Prasad. After two years of her marriage, on 17.1.1995 at about 11:00 a.m. Surendra Singh (PW-1) heard cries from the house of the appellants, when he went to the house of the appellants at village Geruwari (Police Station Naigarhi, District Rewa), he found that an incident of arson took place in the house of the appellants and the deceased Sunita had sustained the burn injuries and consequently, she died. Surendra Singh went to the Police Station, Naigarhi and lodged a merg intimation report Ex.P./1. SHO Bhupendra Singh Yadav (PW-8) went to the spot. The dead body of the deceased Sunita was sent for the postmortem. On 17.1.1995, Dr. Harishchandra Mishra (PW-6) performed the postmortem on the body of the deceased and gave a report Ex.P/5. He found that the deceased died due to burn injuries and consequential shock. During merg enquiry, on 22.1.1995 Mohan Lal Sharma uncle of the deceased had submitted a typed complaint Ex.P/11 to SHO, Naigarhi and thereafter, a case was registered against the appellants. The parents of the deceased had alleged that the deceased Sunita was being tortured for demand of dowry. After due investigation, the charge sheet was filed before the JMFC Mauganj, who committed the case to the Court of Sessions. 3. The appellants abjured their guilt. They denied the allegations made against them, whereas they took a plea that on the date of incident, none of them were present in the house. Since the deceased aborted six months prior to the incident and she was in agony due to that incident therefore, possibly she had committed suicide due to shock of that abortion. However, no defence evidence was adduced. 4. The Sessions Judge, Rewa after considering the prosecution's evidence convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties at length. 6. However, no defence evidence was adduced. 4. The Sessions Judge, Rewa after considering the prosecution's evidence convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties at length. 6. Dr. Harishchandra Mishra (PW-6) has given the postmortem report Ex.P/5. According to him, the deceased died due to burn injuries and consequential shock. He did not mention as to whether the death of the deceased was suicidal or accidental. As per statement of the appellants under Section 313 of the Cr.P.C., it appears that they have accepted that the deceased Sunita had committed suicide. There was no eyewitness to the incident and when Surendra Singh (PW-1) and Anand Pratap Singh (PW-2) went to the house of the appellants, they found that an incident of arson took place in the house and the dead body of the deceased Sunita was found in semi burnt condition. According to the witness Anand Pratap Singh (PW-2), the police has seized a frying pan, semi burnt wood and some smell of kerosene was oozing from floor of the house. Therefore, if the deceased Sunita was cooking something on frying pan on the earthen stove with the help of wood then, there was no possibility that a huge amount of kerosene could be found there on the floor. Presence of the kerosene on the floor in the house clearly indicates that it was not a case of accident, but the deceased had committed suicide. However, for the offence under Section 304-B of the IPC, it is to be proved by the prosecution that the deceased had died an unnatural death and therefore, after considering the evidence, it is proved by the prosecution that death of the deceased was unnatural death. 7. Now-a-days, the parents of the deceased immediately start making allegations of dowry demand and harassment, if their daughter dies in the house of in-laws. In the present case, the incident took place on 17.1.1995 and after five days, one Mohan Lal Sharma uncle of the deceased Sunita had lodged a typed complaint Ex.P/11 before the SHO, Naigarhi. If the entire text of that complaint is perused then, omnibus allegation are made in the complaint. It was alleged that the parents of the deceased were not informed prior to cremation of dead body of the deceased and therefore, it would be apparent that she was killed by the appellants. If the entire text of that complaint is perused then, omnibus allegation are made in the complaint. It was alleged that the parents of the deceased were not informed prior to cremation of dead body of the deceased and therefore, it would be apparent that she was killed by the appellants. It was mentioned that the deceased was given torture by the appellants and, when the relatives of the deceased visited the house of the appellants to take the deceased to the house of her father then, always a demand was made amongst them and the deceased was not sent to the house of her father with the allegations that father of the deceased Sunita cheated the appellants. It was also alleged that in the month of August or September, 1994, the deceased Sunita was beaten so that an abortion was caused to her. Again, she was not sent to the house of her father. In the last para of the complaint, it was mentioned that on the 5th day of Hindi Calender in the year 1994, Mohan Lal Sharma himself went to bring the deceased Sunita to her in-laws' house then, she was not sent with uncle Mohan Lal Sharma and the deceased informed Mohan Lal Sharma that the appellants have demanded a golden chain, a T.V. and a bicycle. Also a demand of Rs. 20,000/- was made by the appellants so that the appellant Ansuiya Prasad could open a shop at village Gangev. However, in support of this complaint Ex.P/11, Mohan Lal Sharma did not appear in the witness box before the trial Court and therefore, this complaint could not be proved. The complaint was filed by Mohan Lal Sharma on behalf of Shambhu Prasad (PW-3) father of the deceased and therefore, it should be considered as a complaint made by parents of the deceased in the beginning through Mohal Lal Sharma. 8. Shambhu Prasad (PW-3) and Gayatri Devi (PW-4) have stated that when the deceased visited the house of her parents, she told that there was a demand of T.V. and cash. Shambhu Prasad made a suspicion that the deceased was beaten in the previous night of the incident and thereafter, she was killed. 8. Shambhu Prasad (PW-3) and Gayatri Devi (PW-4) have stated that when the deceased visited the house of her parents, she told that there was a demand of T.V. and cash. Shambhu Prasad made a suspicion that the deceased was beaten in the previous night of the incident and thereafter, she was killed. Shambhu Prasad has accepted in para 6 of his evidence that there was no electric connection in the house of the appellants and therefore, it was not possible that a T.V. would have been demanded by the appellants from the deceased or her parents. In the complaint Ex.P/11, it was mentioned that the appellants demanded a golden chain and a bicycle. However, the witnesses Shambhu Prasad and Gayatri Devi did not confirm about the demand of golden chain or bicycle. Hence, it appears that the prosecution could not prove that there was a demand of T.V., a golden chain or a bicycle from the deceased Sunita. Under these circumstances, a single demand of cash of Rs. 20,000/- remains under consideration as alleged by the parents of the deceased. 9. Shambhu Prasad (PW-3) has accepted in para 8 of his statement that the appellant Ansuiya Prasad had demanded a sum of Rs. 10,000/- for opening a shop, whereas the witness Gayatri Devi has stated that there was a demand of Rs. 20,000/- from the side the appellants. However, she has accepted that the deceased Sunita intimated about that demand when she visited the house of her parents in last time before her death. In the previous visits, there was no any information given by the deceased Sunita about any demand. On the contrary, Gayatri Devi has stated that the appellant Lalman Tiwari father-in-law of the deceased was in habit to order the deceased to press his legs and to do Massage and on her denial, she was beaten. However, such evidence was not given by Gayatri Devi in her case diary statement Ex.D/2 and no such allegation was made in the complaint Ex.P/11. Also neither Shambhu Prasad (PW-3) nor Suman (PW-5) have stated anything about that fact. Hence, it appears that Gayatri Devi is cooking a new story to show that her daughter was dealt with cruelty in appellants' house. However, such story could not be proved by the witness Gayatri Devi and apparently, it was a false allegation against the appellants. 10. Also neither Shambhu Prasad (PW-3) nor Suman (PW-5) have stated anything about that fact. Hence, it appears that Gayatri Devi is cooking a new story to show that her daughter was dealt with cruelty in appellants' house. However, such story could not be proved by the witness Gayatri Devi and apparently, it was a false allegation against the appellants. 10. Suman (PW-5) has stated that 3-4 days prior to the incident, she visited the house of the appellants and resided with her sister Sunita. She found that the appellants were in habit to assault the deceased Sunita. When the witness Suman, who was ten years old girl at the time of incident started weeping then, she was beaten by the appellants. A new story has been quoted by the child witness Suman, which was neither told by Shambhu Prasad nor it was mentioned in the complaint Ex.P/11. When the witness Suman was asked the reasons for which her sister Sunita was assaulted then, she could not state any reason. If the deceased Sunita had been assaulted by the appellants and thereafter, Suman had also been assaulted then, when Suman returned to the house of her father, she would have stated the entire story to her father and the deceased Sunita would have been called back to her father house for resolution of dispute. Suman has stated that when she was brought to her father's house from her sister's in-laws house, she was informed that Sunita had died. 11. On the contrary, Gayatri Devi has stated that when a telegram was received from the appellants that Ansuiya Prasad has expired then, Bhuvneshwar was sent to enquire about the actual incident. He found that the deceased Sunita had already died. According to the witness Gayatri Devi, Bhuvneshwar had been sent to know the actual fact and he was not sent to bring the deceased Sunita to the house of the appellants, whereas the child witness Suman has accepted that she reported about the assault caused by the appellants to Sunita and thereafter, Bhuvneshwar was sent to bring Sunita to the appellants' house. In absence of any corroboration by other witnesses, the facts told by the child witness Suman cannot be accepted. 12. In absence of any corroboration by other witnesses, the facts told by the child witness Suman cannot be accepted. 12. Suman has accepted that a demand of money was done by the appellants 3-4 days prior to the death of Sunita but there was no information of any demand prior to that incident, which took place before the witness Suman, whereas according to Gyatri Devi, the demand was informed by the deceased Sunita in her last visit to the house of her parents. In the complaint Ex.P/11, it was mentioned by Mohan Lal Sharma that, when he visited to take the deceased Sunita to the house of the appellants, Sunita told about that demand for the first time. According to the pleadings of the complaint, no intimation of demand was given by the deceased in her last visit to the house of her parents. She informed about the demand for the first time to her uncle Mohan Lal Sharma when, he visited to take the deceased Sunita to the house of appellants. According to that complaint Ex.P/11, thereafter, the deceased Sunita did not visit to her father's house. If the pleadings of the complaint Ex.P/11 are accepted then, the evidence given by Gayatri Devi is not believable that in the last visit to the house of her parents, the deceased Sunita told about the demand or harassment. The pleadings of the complaint Ex.P/11 could not be proved due to non-examination of the witness Mohan Lal Sharma. According to the witness Shambhu Prasad, Mohan Lal Sharma was a mediator when, marriage of the deceased Sunita and Ansuiya Prasad was arranged. 13. If there was a demand from the side of the appellants then, it is not only sufficient to prove that there was a demand but also it is to be proved that the deceased was being tortured or dealt with cruelty for fulfillment of such demand. According to the witnesses, the appellant Ansuiya Prasad demanded a sum of Rs. 20,000/- so that he could prosecute his business at village Gangev, whereas if the evidence of the witness Surendra Singh and Anand Pratap Singh is examined then, it would be clear that the appellant Ansuiya Prasad had gone to his field to rip the grass. It is not established that as to whether the appellant Ansuiya Prasad was interested to prosecute his business at village Gangev. It is not established that as to whether the appellant Ansuiya Prasad was interested to prosecute his business at village Gangev. The appellants left their house for their routine work and they had no suspicion that the deceased would commit such an act in their absence. If there was a demand of Rs. 20,000/- to prosecute the business then, it should be in the knowledge of father of the deceased. Shambhu Prasad in his evidence did not state the amount of demand made by the appellants to the deceased Sunita. Hence, in para 8 of his cross- examination, a specific question was asked to Shambhu Prasad that what was the amount of demand and for which purpose, such demand was made then, he replied that a sum of Rs. 10,000/- was demanded by the appellants from the deceased Sunita so that the appellant Ansuiya Prasad could prosecute his employment. Shambhu Prasad did not state that there was a demand of Rs. 20,000/- or that demand was made to open a shop at village Gangev. He did not make clear that what sort of employment was required to the appellant Ansuiya Prasad. On the other hand, Gayatri Devi and Suman have stated that a sum of Rs. 20,000/- was demanded by the appellants from the deceased. If there was a demand of cash from the side of the appellants to the deceased then, certainly such demand would have been informed to her father correctly and purpose of demand should have also been indicated to her father. If there was a demand of Rs. 20,000/- then, Shambhu Prasad would have knowledge of that amount of demand and he could not state that a sum of Rs. 10,000/- was demanded. It appears that the witnesses have stated in support of the complaint Ex.P/11, but Shambhu Prasad could not remember the amount, which was mentioned in the complaint Ex.P/11. Looking to the material contradictions relating to amount of demand between the witnesses, it appears that there was no demand of any cash from the side of the appellants. 14. If the appellant Ansuiya Prasad had made a request for financial problem to prosecute his business then, such request shall not fall within the category of dowry demand. Looking to the material contradictions relating to amount of demand between the witnesses, it appears that there was no demand of any cash from the side of the appellants. 14. If the appellant Ansuiya Prasad had made a request for financial problem to prosecute his business then, such request shall not fall within the category of dowry demand. If he had requested for the financial help to prosecute his business and nothing was given by the parents of the deceased then, it makes no difference unless the deceased was dealt with cruelty for fulfillment of such demand. According to Gayatri Devi, that demand was communicated by the deceased Sunita in her last visit to her parents house. However, Gayatri Devi did not state as to when the deceased Sunita visited her house at last time. According to the text of complaint Ex.P/11, the deceased Sunita was not sent to her parents' house for so many times, whereas according to the child witness Suman, the demand was told by the deceased Sunita before her sister Suman for the first time when, the child witness Suman visited the house of the appellants. After considering the aforesaid evidence, it is not proved beyond doubt that as to when the deceased told about her grievance to her parents and to whom she told about her problem or there was any demand from the appellants. Hence, nothing is proved that she was dealt with cruelty by the appellants in consequence of demand. 15. For consideration of offence under Sections 498-A & 304-B of the IPC, it is to be proved by the prosecution that the deceased Sunita was dealt with cruelty soon before her death. The term "soon before" has a vast meaning and according to the various judgments of the Hon'ble Apex Court, a reasonable time may be considered by the Court. According to the facts of that particular case, the deceased Sunita died after two years of her marriage, whereas six months prior to the incident, her abortion took place. Gayatri Devi did not state that the deceased Sunita went to her house after abortion. There is no allegation from the side of Shambhu Prasad or Gayatri Devi that in the entire marital life, she was dealt with cruelty. Gayatri Devi did not state that the deceased Sunita went to her house after abortion. There is no allegation from the side of Shambhu Prasad or Gayatri Devi that in the entire marital life, she was dealt with cruelty. According to the witness Gayatri Devi, she was informed by the deceased Sunita in her last visit about the demand or harassment but, if the deceased was so harassed for demand etc. then, there was no possibility that Suman sister of the deceased Sunita could be sent to the house of the appellants, whereas Suman claims that she visited the house of her sister's in-laws and till then, there was no knowledge of dowry demand or consequential harassment. The harassment as alleged by the child witness Suman is not proved beyond doubt because Suman appears to be a tutored witness and no corroboration was made to the evidence of child witness Suman or her mother Gayatri Devi as well as Shambhu Prasad. Hence, Gayatri Devi and Shambhu Prasad could not prove that the deceased was dealt with cruelty done by the appellants. When there was no information given by the deceased Sunita till her last visit to the house of her parents, then it shall be presumed that she was residing comfortably in the house of the appellants for 1 1/2 years. There is no cogent evidence to say that she was dealt with cruelty by the appellants for dowry demand or otherwise. There was no intimation to her parents about any problem by herself. Even, they did not know as to why she committed suicide. 16. On the basis of aforesaid discussion, the prosecution could not prove that there was any demand from the side of the appellants to the deceased or she was dealt with cruelty in prosecuting that demand. The trial Court has committed an error in convicting the appellants of offence under Section 304-B of the IPC. Though, the charge of offence under Section 306 of the IPC is of quite different nature in comparison to the charge of offence under Section 304-B of the IPC. The trial Court has committed an error in convicting the appellants of offence under Section 304-B of the IPC. Though, the charge of offence under Section 306 of the IPC is of quite different nature in comparison to the charge of offence under Section 304-B of the IPC. However, the Hon'ble Apex Court has established a law that if the factual position has been put to the accused persons in their statement under Section 313 of the Cr.P.C. and no prejudice is caused to the accused persons then, they can be convicted of offence under Section 306 of the IPC in the light of Provisions of Section 221 of the Cr.P.C. and therefore, in absence of any charge of offence under Section 306 of the IPC, it would be appropriate to consider as to whether such offence is made out or not. 17. As discussed above, there is a lot of inter se contradiction between the statement of the witnesses and text of the complaint Ex.P/11. The case of the prosecution was dependent upon the fact that the deceased had committed suicide because of cruelty done by the appellants for demand of dowry. However, as discussed above the witnesses could not prove anything against the appellants relating to dowry demand. In absence of any demand, no other allegation has been made by the witnesses that the deceased have been dealt with cruelty done by the appellants. There was no specific allegation against the appellants that the deceased had made a complaint against the appellants about their behaviour that they had beaten her for a particular reason. The statements given by the witnesses Shambhu Prasad and Gayatri Devi are dependent upon their suspicion only. They could not prove a single instance of cruelty done by the appellants upon the deceased Sunita or any reason for that cruelty. Hence, on the basis of present evidence, neither the offence under Section 306 of the IPC nor offence under Section 498-A of the IPC is made out against the appellants. The suspicion cannot be taken the shape of evidence and therefore, only on the basis of suspicion, the accused cannot be convicted. 18. As discussed above, the prosecution has failed to prove that there was no any demand of dowry from the side of the appellants or they dealt with cruelty. The suspicion cannot be taken the shape of evidence and therefore, only on the basis of suspicion, the accused cannot be convicted. 18. As discussed above, the prosecution has failed to prove that there was no any demand of dowry from the side of the appellants or they dealt with cruelty. No single instance of cruelty was established beyond doubt and therefore, the appellants cannot be convicted of offence under Sections 304-B, 306 & 498-A of the IPC. The present appeal filed by the appellants appears to be acceptable, consequently it is hereby accepted. The conviction as well as sentence recorded by the trial Court against the appellants for the offence under Sections 304-B & 498-A of the IPC are hereby set aside. The appellants are acquitted from all the charges appended against them. 19. At present, 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. 20. Copy of the judgment be sent to the trial Court alongwith its record for information.