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Madhya Pradesh High Court · body

2016 DIGILAW 725 (MP)

Suresh v. State Of M. P.

2016-08-22

S.K.PALO

body2016
JUDGMENT : This appeal under section 374(2) of Criminal Procedure Code has been filed assailing the judgment dated 28-5-1999 passed by 8th ASJ, Bhopal in S.T. No. 69/99 whereby the appellants have been convicted for offence under section 304-B of Indian Penal Code and sentenced for 7 years rigorous imprisonment each. The appellant No. 2/Gopilal is dead, therefore, the appeal is being dealt with regard to appellant No. 2. 2. The prosecution story in brief is that the marriage of appellant No. 1 was performed with Maya on 14-4-1998. Appellant No. 2 was the father of appellant No. 1/Suresh and appellant No. 3 is the sister-in-law (wife of elder brother) of appellant No. 1. At the time of marriage, the appellant No. 1 demanded a motorcycle and a colour T.V. as dowry. The family members of deceased/Maya assured to give the same within a year. After her marriage, Maya had come to her maternal house three to four times. Always she used to inform her members of family, that his father-in-law/Gopilal, husband/Suresh and sister-in-law/Shyamwati are constantly demanding motorcycle. She also narrated that her husband/Suresh has been treating her with cruelty. Suresh has been instigated by the other accused persons Gopilal and Shyamwati for the same. On 5-12-1998, Maya died in suspicious circumstances at her matrimonial home by consuming poison. Police Station, Gautam Nagar was informed about the same. Ex.P/12 Rojnamcha drawn. Ex.P/10 was drawn after the merg report. Issuing notice to the witnesses Panchnama (Ex.P/9) was prepared. Pre MLC report (EX.D/3) was received. After requisition for post-mortem by Ex.P/1, post-mortem was conducted. Written complaint was made by the mother of the deceased to Police Station, Gautam Nagar. Crime No. 294/98 was instituted. 3. After investigation, charge-sheet has been filed for offences under sections 304-B and 306 read with section 34 of Indian Penal Code. After committal charges have been framed against the appellants for offences under sections 306 in alternative 304-B of Indian Penal Code. Appellants abjured guilt and contended that Gulab Singh (PW/7) used to visit the house of the appellant to meet Maya in the absence of her husband Suresh. In this regard, there was a tussle. He also threatened to kill. The appellants also alleged that two days before the incident, they had seen Gulab Singh in compromising position with Maya when it was objected Gulab Singh threatened the appellants to kill two days before the incident. In this regard, there was a tussle. He also threatened to kill. The appellants also alleged that two days before the incident, they had seen Gulab Singh in compromising position with Maya when it was objected Gulab Singh threatened the appellants to kill two days before the incident. Gulab Singh had come to the in law’s place of Maya with two small packets, one containing sweets (Jalebi) and the other packet was not known what contained. The appellants challenged the judgment impugned on several grounds. It is claimed that the statement of deceased Maya was not immediately recorded when she was shifted to the hospital. There was no evidence of any physical cruelty and harassment to the deceased immediately or soon before the incident. The prosecution failed to establish treatment of cruelty by the appellants. There is no documentary proof or oral testimony about the cruelty and harassment. (PW/4, PW/5 and PW/6) namely Ram Singh, Subelal and Durga Prasad did not support the prosecution case. There are numerous contradictions and omissions with regard to the statements of PW/10 Dayaram, the father of the deceased, PW/2 Krishna, the mother of the deceased, PW/9 Prabha, the sister of the deceased, therefore, their statements are not reliable. The prosecution failed to prove allegation of demand of dowry or cruel treatment beyond reasonable doubt hence, the appellants are entitled to be acquitted. 4. Learned Panel Lawyer for the State opposing the arguments advanced, referring the incriminating piece of evidence contended that the statement of Dayaram (PW/10), Smt. Krishna (PW/2) and Prabha Maran (PW/9) submitted that the judgment impugned is well merited and calls for no interference. It is further contended that the death of the deceased occurred within seven years of her marriage, therefore, presumption under section 113-B of Evidence Act is applicable. 5. Perused the record and judgment impugned. 6. Learned trial Court acquitted the appellant for offence under section 306 of the Indian Penal Code and convicted the appellants for offence under section 304-B of the Indian Penal Code, therefore., discussion in this appeal is restricted as regards the offence under section 304-B of the Indian Penal Code only. 7. Exhibit P-l is the post-mortem report prepared by Dr. Ashok Jain (PW-1) along with Dr. B.K. Athwal. According to this report, the deceased Maya aged about 25 years died due to cardio-respiratory failure as a result of suspected poisoning. 7. Exhibit P-l is the post-mortem report prepared by Dr. Ashok Jain (PW-1) along with Dr. B.K. Athwal. According to this report, the deceased Maya aged about 25 years died due to cardio-respiratory failure as a result of suspected poisoning. The evidence of medical officer is that the deceased had no external injury on her body. There is nothing in this regard to discredit his evidence. Therefore, it can safely be held that the deceased Maya died due to consumption of poison. 8. The marriage of Maya was performed on 16-4-1998. Within eight months of her marriage she died on 5-12-1998. Essential ingredients of section 304-B of the Indian Penal Code can be summed up as follows : (a) there is a married lady; (b) she has died an unnatural death including deaty by burn or by bodily injury or by poisoning etc; (c) that such death has occurred within seven years of the marriage; (d) it must be found that soon before her death she was subjected to cruelty or harassment for, or in connection with any demand for dowry by her husband or any of his relatives. 9. In the present case, the evidence has brought in home that : (i) There was an unnatural death of the Maya; and (ii) Maya had been married within seven years of her unnatural death. The point for determination is whether soon before her death, she was subjected to cruelty or harassment caused by her husband or his relatives and such cruelty or harassment was for or in connection with demand of dowry ? 10. The mother of the deceased, Krishna Bai (PW-2), sister of the deceased, Prabha Maran (PW-9), father of the deceased Dayaram (PW-10), villager - Vijay Singh (PW-3), cousin of the deceased Gulab Singh (PW-7) have stated that at the time of marriage in April 1998, according to prevalent customs, cash of Rs. 11,000/-, one TV, cooler, fan, double bed, gold ring and other items of daily use were given by the parents of the Maya. When the food was served, the appellant No. 1- Suresh and his father - Gopilal demanded motorcycle and a colour TV. The father of the deceased was not in a position to give the same. Therefore, the accused persons said that if the demands are not met, they will not take the bride with them. When the food was served, the appellant No. 1- Suresh and his father - Gopilal demanded motorcycle and a colour TV. The father of the deceased was not in a position to give the same. Therefore, the accused persons said that if the demands are not met, they will not take the bride with them. The village people and the father of the deceased with folded hands requested the appellant No. 1- Suresh to take the food but the appellant No. 1 Suresh did not take food. After several requests and on the assurance that motorcycle and colour TV shall be given within a year, the matter was resolved and on the following day the ‘bidai’ was performed. 11. On the second day i.e. on 17-4-1998, when Maya was to brought to her maternal home as per rituals from village- Narelkheda, the accused persons again pressed for the demand of colour TV. After the intervention by the village people, Maya was sent to her matrimonial home. After one month, Gopilal, the father-in-law of Maya had come to escort his daughter-in-law and took her. From the date of marriage till the day she ended her life, Maya had come three times to her maternal home. In these visits, she repeatedly stated that her husband Suresh, her father-in-law Gopilal, her Jethani (the wife of elder brother of the husband) and sister in law were treating her with cruelty for demand of dowry. They always insisted for bringing motorcycle from her father’s house. The deceased Maya also used to narrate about the harassment, she was being met at her matrimonial home. For the last time she had gone to maternal home in the month of ‘Bhado’, Maya informed her parents and sister that the appellant No. 1 Suresh and her sister-in-law Shyamvati demanded to fulfill the earlier assurance of colour TV and motorcycle. Mother of the deceased Krishna (PW-2) requested the appellant No. 1- Suresh and Shyamvati not to treat her daughter with cruelty. 12. Prabha Maran (PW-9) has deposed that whenever her sister Maya used to come to Village- Neemkheda to her maternal home, she used to intimate that she has been subjected to cruelty. Mother of the deceased Krishna (PW-2) requested the appellant No. 1- Suresh and Shyamvati not to treat her daughter with cruelty. 12. Prabha Maran (PW-9) has deposed that whenever her sister Maya used to come to Village- Neemkheda to her maternal home, she used to intimate that she has been subjected to cruelty. Because of non-fulfilment of the demand of motorcycle and colour TV Maya was beaten by the accused persons in the presence of Prabha Maran and it was told to Prabha Maran that they will send Maya to her maternal home only when the demand will be fulfilled otherwise not. 13. Dayaram PW-10 has also stated that when his daughter Prabha and son Suneel had gone to Maya’s in-laws home, they did not send Maya and Maya was beaten and they told that demand has not been met, therefore, they will not send Maya to her parental home. When they returned from the appellant’s house, they narrated the same to Dayaram (PW-10). After few days, brother-in-law of Maya [elder brother of her husband] intimated that Maya has fallen sick. Dayaram (PW-10) and Krishna Bai (PW-2) went to the hospital. They saw the dead body of Maya. In the statements of these witnesses, they have referred the incident of marriage when the appellant No. 1 refused to take his food and after several requests, the appellant No. 1- Suresh and Gopilal, his father demanded a motorcycle and a colour TV but they have not stated about the presence of Shyamvati-appellant No. 3. Dayaram (PW-10) in his cross-examination admits that Shyamvati - Appellant No. 3 is residing separately since long. He made it clear that before the marriage of Maya, Shyamvati- Appellant No. 3 was residing separately. That being so, the allegations made against the appellant No. 3-Shyamvati seems to be not reliable. 14. The evidence regarding involvement of Shyamvati in demanding dowry and treating Maya with cruelty seems to be not convincing. Therefore, she is entitled to the benefit of doubt. 15. As regarding the contradictions and omissions in the police statement and the testimony of the witnesses, law laid down by the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753 may be referred to. In the aforesaid case the Apex Court has held that overmuch importance cannot be given to minor discrepancies. As regarding the contradictions and omissions in the police statement and the testimony of the witnesses, law laid down by the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753 may be referred to. In the aforesaid case the Apex Court has held that overmuch importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. Minor discrepancies in respect of minor details of the incident including the sequence of evidence and overt acts are possible, even in the version of truthful witness. No criminal case can be free of such minor discrepancies and inconsistency. 16. In Narayan Chetan vs. State of Maharashtra, AIR 1986 SC 250 , it has been observed that “minor contradictions in the statements of the witnesses under section 161 of the Code of Criminal Procedure and the deposition made by them during investigation and the statement made before the Court are not fatal for prosecution.” 17. In Ramswarup v. State of M.P., 2006 Cri.L.J. 475 (MP) it is held that minor and slight variation in the evidence of the witnesses in cross-examination suggests that the witnesses are not telling lie and they are not tutored. Therefore, minor discrepancies, improvements made by the witnesses in their testimony and variations in earlier and later statement, do not make their testimony infirm. 18. As regarding “soon before her death”, the deceased Maya was treated with cruelty and harassment by her husband or by his relatives, evidence of Krishna Bai (PW-2) is very important. She has specifically stated that because of demand of dowry, the appellants persistently demanded dowry and treated the deceased with cruelty. When the deceased last came to her maternal home, Krishna Bai (PW-2) found some signs of injuries on her back. Paragraph 6 of her cross-examination is very specific in this regard. The persistent demand of motorcycle and colour TV from the deceased and due to non-fulfilment of the demands, the deceased was subjected to torture The evidence shows that certainly there was demand of dowry right from the day of marriage. Paragraph 6 of her cross-examination is very specific in this regard. The persistent demand of motorcycle and colour TV from the deceased and due to non-fulfilment of the demands, the deceased was subjected to torture The evidence shows that certainly there was demand of dowry right from the day of marriage. Dayaram (PW-10) the father of the deceased assured that demands will be fulfilled within one year however, the demand persisted and as the demand was not met, the deceased was subjected to cruelty and within a period of eight months of her marriage, she committed suicide by consuming poison. At the time of marriage when the parents of the deceased failed to give dowry, which was agreed and for that she was tortured and insulted and ultimately there was tragic death of Maya in her in-laws house. 19. In similar case of Pawan Kumar vs. State of Haryana, AIR 1998 SC 958 when the persistent demands of TV and scooter were made from the bride after the marriage or from her parents, it has been held that the same would constitute to be in connection with marriage and it would be a case of demand of dowry within the meaning of section 304-B of the Indian Penal Code. It is not always necessary that there was agreement for dowry. 20. Learned counsel for the appellant has placed reliance on the decision in the case of Durga Prasad and another vs. State of M.P., (2010) 9 SCC 73 in which the Apex Court has held that except bald statements of victim’s mother and brother alleging that victim had been subjected to cruelty and harassment prior to her death, no other evidence adduced to prove that she committed suicide on account of the same. The aforesaid decision is not applicable to the present case for the simple reason, that cruelty was made to Maya by the accused appellant and that too in the presence of Prabha Maran (PW-9). The statement of Krishna Bai (PW-2) is also relevant in this regard. 21. Learned counsel for the appellants arguing at length has also suggested that in a case of dowry death, criminal liability under section 304-B is attracted not just by demand of dowry but by the acts of cruelty or harassment for the demand of dowry by the husband or his relatives. 21. Learned counsel for the appellants arguing at length has also suggested that in a case of dowry death, criminal liability under section 304-B is attracted not just by demand of dowry but by the acts of cruelty or harassment for the demand of dowry by the husband or his relatives. He also argued that unless such an act of cruelty is proved to have been caused by the husband or his relatives to the deceased soon before her death, in connection with the demand of dowry, the accused cannot be held liable for offence under section 304-B, Indian Penal Code. In this regard, learned counsel for the appellants has placed reliance on the decision in Bharat Bhushan and another vs. State of M.P., (2014) 13 SCC 525 . In the present case the witnesses - the parents and the sister of the deceased specifically and unambiguously stated that due to consistent demand of dowry, which could not be fulfilled, the deceased was subjected to cruelty and therefore, she committed suicide within eight months of her marriage. Therefore, the decision rendered in the case of Bharat Bhiishan (supra) is not applicable in the present case for the facts are different. 22. As regarding, the argument that Gulab Singh (PW-7) used to visit the house of in-laws of the deceased Maya to which in-laws resent and because of this there was a quarrel and the deceased was given two packets by said Gulab Singh (PW-7) out of which one packet contained ‘jalebi’ and the other one not known, the same seems to be an afterthought and is not proved. Gulab Singh (PW-7) has admitted that Dayaram (PW-10), the father of the deceased is his bade papa (elder brother of his father), therefore, Maya was her sister in relation. He has stated that he was present at the time of marriage and there was demand of dowry and the appellant Suresh did not accept the food for demand of dowry and after several requests and on the assurance that the demand will be met within one year, the marriage was performed. Suggestion was made to him that he had gone to Maya’s in-law house after marriage but he denied the same. Suggestion was made to him that he had gone to Maya’s in-law house after marriage but he denied the same. It is argued by the counsel for the appellant that his wife has been living separately for last four months and because of his visit to Maya’s matrimonial home which was opposed by her in-laws and for this reason, Maya committed suicide. But, this fact is also denied by Dayaram (PW-10) and there is nothing on record to show that Gulab Singh (PW-7) used to visit Maya’s in her in-laws house. Statements of Ramjeevan (DW-1) and Ashok Kumar (DW-2) do not hold much water. These defence witnesses have been called for evidence by the accused persons. 23. Learned senior counsel for the appellants has also placed reliance on the decision in the case of Rakesh Chand and another vs. State of Punjab, (2010) 15 SCC 89 in which it has been held that “the mother and sister of the deceased deposed that there was demand for Rs. 50,000/- by the appellants - no such details had been spelt out in their statements under section 161, Criminal Procedure Code. In statement under section 161, Criminal Procedure Code demand of Rs.50,000/- had been confined only to the husband- in the light of the fact that only demand for dowry that could be foisted on two appellants was of year 2000 and it cannot be said that the appellants had made any demand “soon before” death of the deceased.” In the present case, the demand was alleged to have been made by the husband appellant No. 1 and his father Gopilal for motorcycle and a colour TV. The same was not demanded by the appellant No. 3- Shyamvati. Therefore, involvement of Shyamvati in demanding dowry and subsequently harassment of the deceased Maya by her cannot be accepted. More so, the father of the deceased admits that Shyamvati is residing separately before the marriage of Maya. Gopilal, the father-in-law of the deceased is dead. But the demand of dowry by husband appellant No. 1 is very much persistent. 24. Section 113-B of the Indian Evidence Act, 1872 reads as under : “Section 113-B. Presumption as to death. More so, the father of the deceased admits that Shyamvati is residing separately before the marriage of Maya. Gopilal, the father-in-law of the deceased is dead. But the demand of dowry by husband appellant No. 1 is very much persistent. 24. Section 113-B of the Indian Evidence Act, 1872 reads as under : “Section 113-B. Presumption as to death. — When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation. — For the purpose of this section, “dowry death” shall have the same meaning as in S. 304B of the Indian Penal Code (45 of 1860)” In the present case the deceased died within seven years of her marriage and explanation given by the appellant that Gulab Singh (PW-7) had given two small packets, one containing ‘jalebi’ and other is not known, therefore, the deceased might have consumed the same and died, cannot be accepted for there is no satisfactory explanation by the appellant in this regard. At the other hand, persistent demand of dowry from the deceased has been proved. Therefore, presumption under section 113-B of the Evidence Act can be drawn. The deceased was not suffering from any mental depression, but she committed suicide out of frustration due to assault and torture. Therefore, section 304-B of the Indian Penal Code has been established against the appellant No. 1 Suresh but it is not established against the appellant No. 3-Shyamvati. 25. In view of the preceding analysis, conviction and sentence by the impugned judgment, as regarding the appellant No. 3- Shyamvati is not sustainable and hence, the appeal is allowed to the extent of the appellant No. 3- Shyamvati and she is acquitted for offence under section 304-B. 26. As regarding the appellant No. 1- Suresh, considered on the point of sentence. Minimum sentence prescribed under, is seven years. The appeal as regarding the appellant No. 1- Suresh is disallowed. Therefore, the sentence imposed by learned trial Judge is affirmed. The appellant No. 1 is given the benefit of section 428 of the Code of Criminal Procedure and period undergone be adjusted in his sentence. He is on bail. Minimum sentence prescribed under, is seven years. The appeal as regarding the appellant No. 1- Suresh is disallowed. Therefore, the sentence imposed by learned trial Judge is affirmed. The appellant No. 1 is given the benefit of section 428 of the Code of Criminal Procedure and period undergone be adjusted in his sentence. He is on bail. He is directed to surrender before the trial Court within one month from today, failing which the learned trial Court would be at liberty to procure his presence by coercive means. Let a copy of this judgment along with record be sent to the trial Court forthwith.