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Madhya Pradesh High Court · body

2016 DIGILAW 745 (MP)

State of M. P. v. Sarvar Ali @ Chhotu

2016-08-29

ANAND PATHAK, N.K.GUPTA

body2016
JUDGMENT Gupta, J. -- 1. The State has preferred the present appeal being aggrieved with the judgment dated 31.8.2000 passed by the Second Additional Sessions Judge, Vidisha in S.T. No.3/2000, whereby all the respondents have been acquitted from the alternate charges of offence under section 302 or 304B of IPC and section 498A of IPC. 2. Facts of the case, in short, are that the deceased Khursheed Bi was married to the respondent No.1 Sarvar Ali. Their marriage took place one year prior to the date of incident of death of the deceased Khursheed Bi. The respondent Maksud Ali and Bilkish Bi are parents of Sarvar Ali @ Chotu and were in-laws of the deceased Khursheed Bi. On 5.6.1999 Khursheed Bi was found hanged in the house. Kallu Khan (PW1) father of the deceased Khursheed Bi and Aabda Bi (PW2) mother of the deceased Khursheed Bi immediately reached to the house of the respondents and they found that there were external injuries to the deceased. Her palms were turned black and possibility could not be ruled out that palms were burnt. On their complaint, the dead body of the deceased Khursheed Bi was sent for post-mortem. Dr. P.K. Jain (PW5) had performed the post-mortem on the body of the deceased and gave his report Ex. P-3. According to him, the deceased had died due to hanging. He also preserved viscera of the deceased for its chemical analysis. 3. Thereafter, the witnesses Kallu Khan (PW1), Nanhe Khan (PW3) and other witnesses have alleged that the deceased Khursheed Bi was being dealt with cruelty for demand of dowry for a sum of Rs.50,000/- and a scooter and, therefore, either she was killed or she committed suicide. Police had recovered various articles from the spot like broken bangles, one nylon rope and so many other things. One suicidal note Ex.D-2 was also found in the room, where the dead body was found and the same was recovered by the police. After due investigation, the charge-sheet was filed before the JMFC, Kurwai, who committed the case to the Court of Session and ultimately, it was transferred to the second Additional Sessions Judge, Vidisha. 4. The respondents in their statements recorded under section 313 of the CrPC abjured their guilt. They took a plea that the deceased Khursheed Bi was suffering from gynecological problem and she had sustained a severe pain of abdomen. 4. The respondents in their statements recorded under section 313 of the CrPC abjured their guilt. They took a plea that the deceased Khursheed Bi was suffering from gynecological problem and she had sustained a severe pain of abdomen. After giving much treatment, she could not be cured and, therefore, it is possible that she would have committed suicide. They have refused that they demanded any dowry or harassed the deceased in consequence of that demand. In defence, Kadir (DW1) and Munna Lal (DW2) the adjacent neighbours of the respondents were examined to show that the deceased Khursheed Bi was kept with comfort. 5. The second Additional Sessions Judge after considering the evidence adduced by the parties acquitted the respondents from all the charges. 6. We have heard the learned counsel for the parties at length. 7. First of all, it is to be decided as to whether the death of the deceased was homicidal in nature or not. In this connection, evidence of Dr. P.K. Jain (PW5) may be examined. According to him, nails of the body were blue and mortal lividity was present on back and neck of the body. There was swelling on right chick and abrasions were there on right chick. No other external injury was found on her body except the ligature mark. According to Dr. Jain, the deceased died due to hanging. On cross-examination, he has accepted that there was no external or internal injury to confirm that death of the deceased was homicidal in nature. Though he did not clearly opine but looking to his opinion in general, it appears that he found the death of the deceased Khursheed Bi to be suicidal in nature. The witnesses Kallu Khan (PW1) and Aabda Bi (PW2) have stated that when body was examined, some portions of her body were found blue and it was appeared that she was dragged on her back and, therefore, they thought that she was killed. However, according to Dr. Jain, since mortal lividity was present on back and back of the neck then due to that mortal lividity, it could be presumed by the witnesses that due to the injuries, blood was collected on the back and back of neck, however, by their version, the opinion of Dr. Jain cannot be discarded. Dr. However, according to Dr. Jain, since mortal lividity was present on back and back of the neck then due to that mortal lividity, it could be presumed by the witnesses that due to the injuries, blood was collected on the back and back of neck, however, by their version, the opinion of Dr. Jain cannot be discarded. Dr. Jain has accepted that swelling on the chicks could be caused due to strangulation and when the rope tied on her neck at the time of suicide then if she would have tried to loose the knot of the rope then such abrasion could be caused on her chick. Under these circumstances, the allegations made by the witnesses Kallu Khan and Aabda Bi cannot be accepted and, therefore, death of the deceased was not proved to be homicidal and, hence, no accused could be convicted of offence under section 302 of IPC or any inferior offence of the same nature. 8. For constitution of offence under section 304B of IPC, it is not necessary to establish as to whether death was homicidal or suicidal in nature. For that purpose, death should be unnatural. When according to Dr. Jain, death was caused due to hanging then certainly, it was not a natural death and, therefore, it is proved beyond doubt that the deceased Khursheed Bi died due to an unnatural death. 9. Kallu Khan (PW1) father of the deceased and Aabda Bi (PW2) mother of the deceased have stated that the deceased Khursheed Bi was being harassed for dowry demand etc. Such allegation was made specifically by Aabda Bi. She has stated that when Khursheed Bi visited her house, she told that her husband was harassing for demand of scooter and a sum of Rs.50,000/-, whereas Aabda Bi told her that she was not in a position to fulfill the demand of respondent No.1. It is also stated by the witnesses that the respondent No.2 had told the witness Aabda Bi to get a shop of mechanic to be opened for the respondent No.1. It was also told by her that as and when the respondent No.1 visited the house of the witness Abda Bi, he told his wife that her parents are fakir (poor persons), who could not do anything. It was also stated that due to aforesaid demands, the deceased Khursheed Bi remained in the problem. It was also told by her that as and when the respondent No.1 visited the house of the witness Abda Bi, he told his wife that her parents are fakir (poor persons), who could not do anything. It was also stated that due to aforesaid demands, the deceased Khursheed Bi remained in the problem. In support of such evidence, Nanhe Khan had tried to prove the memo Ex.P-2, i.e., Panchanama Lash and he tried to establish that the deceased sustained so many injuries on her back. However, he did not state any single word that Khursheed Bi was being harassed by the respondents for demand of dowry. Nanhe Khan is said to be a near relative of the witness Kallu Khan so that he visited along with Kallu Khan when an intimation was received that Khursheed Bi had committed suicide, then it was expected from Kallu Khan that he would have told about the demand made by the respondents relating to dowry towards the deceased Khursheed Bi and consequential harassment done by the respondents but it is surprising that Nanhe Khan did not state a single word about the knowledge of the demand and consequential harassment. Looking to the silence of the witness Nanhe Khan, it appears that a false case has been lodged by Kallu Khan and Aabda Bi against the respondents otherwise if Khursheed Bi was being harassed for demand of dowry then Nanhe Khan, who was friend of Kallu Khan (PW1) would have been informed by his friend Kallu Khan about such demand etc. 10. Chhote Khan (PW4) was examined to prove the document Ex.P-2 but thereafter he has stated that Kallu Khan informed him that the respondent No.1 demanded him a sum of Rs.50,000/- and, therefore, he advised to dispose off the land and give amount, whereas there is no statement of Kallu Khan or Aabda Bi that the respondent No. 1 had directly demanded a sum of Rs.50,000/- from Kallu Khan. Hence, it appears that Chhote Khan who treated Kallu Khan as his ustad (teacher) for wrestling and, therefore, he had stated in favour of Kallu Khan. Though his evidence falls within the purview of hearsay evidence and it has no value. Also since it is contradictory to the evidence given by Kallu Khan, it cannot be believed. The conduct of witness Chhote Khan is surprising. Though his evidence falls within the purview of hearsay evidence and it has no value. Also since it is contradictory to the evidence given by Kallu Khan, it cannot be believed. The conduct of witness Chhote Khan is surprising. He did not accompany Kallu Khan when Kallu Khan went to Pathari after getting information that his daughter had died but he went Pathari on his own and participated in the investigation. However, he has accepted that at the time of investigation, the police force from police station Pathari, Kurwai and Vidisha was present, who talked with the parents of the deceased Khursheed Bi and the respondents but neither Kallu Khan nor Aabda Bi told anything to the police about the dowry demand or harassment. Under these circumstances, the testimony of Chhote Khan is not at all believable. 11. So far as the evidence of Kallu Khan and Aabda Bi is concerned, there is a lot of contradiction between their statements before the Court and statements given to the police and also between the statement of Kallu Khan with statement of Aabda Bi. Aabda Bi has stated that there was a demand of scooter as told by Khursheed Bi but she did not mention about such demand in her case diary statement Ex.D-16. Similarly if the scooter would have been demanded then it should be in the knowledge of Kallu Khan (PW1), whereas Kallu Khan did not mention in his statement that the respondents ever demanded any scooter from him or the deceased Khursheed Bi. 12. According to Aabda Bi, when the deceased visited the house of Aabda Bi, she told about the demand of Rs.50,000/-, whereas Kallu Khan has accepted that the respondent No.3 only had told him that he should also spend money for treatment of his daughter and a sum of Rs.50,000/- or more could be given by the witness Kallu Khan for that treatment. Kallu Khan did not accept that a sum of Rs.50,000/- was demanded continuously by the respondents or any of the respondents had told to get a shop of mechanic opened for the respondent No.1. Kallu Khan did not accept that a sum of Rs.50,000/- was demanded continuously by the respondents or any of the respondents had told to get a shop of mechanic opened for the respondent No.1. Hence, looking to the material contradiction between the evidence of Kallu Khan and Aabda Bi, evidence of Aabda Bi cannot be accepted that the respondent No.1 ever told to arrange for opening a shop of mechanic or the respondents often demanded a sum of Rs.50,000/- or the deceased had always complained that there was a demand of sum of Rs.50,000/-. 13. By cross-examination of witnesses Kallu Khan and Aabda Bi, it is apparent that the deceased Khursheed Bi was suffering from illness. According to the sonography report Ex. D-7, her uterus was slightly small with left cystic ovary and looking to the documents Ex.D-3 to D-15, her treatment was going on with the gynecologist at Bhopal and so many times, her ultra sonography was done and a treatment was given to her. Kallu Khan has claimed that he had also spent some amount for treatment of his daughter but he could not show any single receipt about the expenditure done by him for treatment of his daughter. On the contrary, he has accepted that when he was informed that treatment of his daughter was going on and at the time, when his daughter Khursheed Bi was present at his house, he took Khursheed Bi and left at Bhopal in the house of sister of respondent No.1 for treatment and after three days, when he went back to take Khursheed Bi, he was informed that Khursheed Bi was taken to Pathari by the respondent No.1. Hence, by the evidence of these witnesses, it is apparent that the deceased Khursheed Bi was suffering from some gynecological problem and she was under treatment. The respondents got her treatment from gynecologist at Bhopal and they were spending the amount for her treatment. Looking to the conduct of Kallu Khan and Aabda Bi, it appears that they did not give any sum for the treatment and possibility cannot be ruled out that after death of the deceased Khursheed Bi, they could have made such an allegation that a sum of Rs.50,000/- was demanded by the respondents for treatment of the deceased. 14. Looking to the conduct of Kallu Khan and Aabda Bi, it appears that they did not give any sum for the treatment and possibility cannot be ruled out that after death of the deceased Khursheed Bi, they could have made such an allegation that a sum of Rs.50,000/- was demanded by the respondents for treatment of the deceased. 14. For the sake of argument, it is presumed that once it was told by the respondents to Kallu Khan father of the deceased to contribute some amount for treatment of the deceased Khursheed Bi, then it cannot be said that they demanded dowry. Looking to the various documents of the treatment, it is apparent that the respondents get the deceased Khursheed Bi treated from a gynecologist of Bhopal and bore the expenditure of the treatment. Since the respondent No.1 was prosecuting a job of mechanic, therefore, if he had lesser income and savings then if he would have intimated the witness Kallu Khan father of the deceased Khursheed Bi for help and to give monetary aid then by such demand, it cannot be said that he was interested in dowry. Looking to the evidence of Kallu Khan, the evidence of Aabda Bi appears to be incorrect that there was a continuous demand of Rs.50,000/- from the side of the respondents towards Khursheed Bi. 15. If Khursheed Bi would have told about the demand of Rs.50,000/- every time then according to the witnesses Aabda Bi and Kallu Khan in one year of her married life, she came to the house of Aabda Bi for 6-7 times and she was taken by the respondent No.1 or his father back to the village Pathari then on demand of Rs.50,000/-, which was continuously made by the respondents, a meeting of community members would have called to resolve the problem or the deceased Khursheed Bi would have detained in the house of Kallu Khan to pressurize the respondents but neither any meeting of respected persons of community was called nor the deceased Khursheed Bi was detained in the hose of her parents or any FIR was lodged in the lifetime of the deceased Khursheed Bi. A document Ex.D-2 was shown to the witness Kallu Khan and Aabda Bi that it was written by the deceased Khursheed Bi, in which no blame was made against any of the respondents or any other persons. A document Ex.D-2 was shown to the witness Kallu Khan and Aabda Bi that it was written by the deceased Khursheed Bi, in which no blame was made against any of the respondents or any other persons. Both of them have denied that such document was written by the deceased Khursheed Bi. According to Aabda Bi, the deceased Khursheed Bi was not literate. She was using her thumb impression instead of making signature, whereas Kallu Khan has accepted that he received so many letters of Khursheed Bi in her lifetime written by her to her father but he was not in a position to say definitely that the document Ex.D-2 was written by the deceased Khursheed Bi. Looking to the evidence of witness Kallu Khan, it appears that Aabda Bi is telling a falsehood. A fact is also cleared by the statement of Kallu Khan that the deceased wrote so many letters to her father and if she had made any grievance against the respondents in those letters then the witness Kallu Khan would have kept those letters with him and those could be produced before the police or the Court. Hence, it shall be presumed that in those letters, Aabda Bi never mentioned anything against the harassment towards the dowry demand. It was asked to the witnesses Kallu Khan and Aabda Bi that out of their three daughters, two have committed suicide. The elder sister of Khursheed Bi had also committed suicide, however, they did not accept but they have accepted that death of the elder sister of the deceased Khursheed Bi was unnatural and she died when she was too young. It is also told by the witnesses Kallu Khan and Aabda Bi that the deceased Khursheed Bi was also telling to these witnesses that the respondents have harassed her that they gave lesser articles in dowry, however, such statement was not found in the case diary statement as of these witnesses. 16. One important fact has been told by the witness Kallu Khan which affects the entire allegation made by Kallu Khan and Aabda Bi that till Chand Khan was alive, there was no demand from the side of respondents relating to any sum or dowry. Chand Khan was elder brother of the respondent No.1 Sarvar Ali. 16. One important fact has been told by the witness Kallu Khan which affects the entire allegation made by Kallu Khan and Aabda Bi that till Chand Khan was alive, there was no demand from the side of respondents relating to any sum or dowry. Chand Khan was elder brother of the respondent No.1 Sarvar Ali. According to Kallu Khan when Chand Khan was alive, there was no demand, even at the time of marriage, there was no demand. Chand Khan had expired two months prior to the death of Khursheed Bi and, therefore, according to Kallu Khan, a demand was made only in last two months of life of Khursheed Bi, hence, all allegations made by Aabda Bi that the deceased Khursheed Bi was always telling about her harassment for dowry demand appear to be incorrect. Kallu Khan has accepted in para 10 of his statement that when Chand Khan had died, he went to his house at Pathari and, thereafter he brought Khursheed Bi to his house. Thereafter, witness Kallu Khan took his daughter Khursheed Bi and left her at the house of sister of the respondent No.1 Sarvar Ali at Bhopal and then Sarvar Ali took the deceased Khursheed Bi with him from Bhopal to Pathari. According to Kallu Khan as told in para 14 of his statement that after one and half months of death of the deceased Chand Khan, it was told by his daughter that the respondents were demanding for amount of treatment. When the deceased Khursheed Bi died within two months of death of the deceased Chand Khan then alleged demand should have been informed by the deceased Khursheed Bi in last fifteen days of her life but it is apparent from the statement of Kallu Khan and Aabda Bi that when the respondent No.1 took his wife from the house of his sister at Bhopal, thereafter, Khursheed Bi did not visit the house of Kallu Khan and, hence, it was not possible that she would have informed in last fifteen days of her life that the demand of sum for her treatment was made by the respondents and also the witness Kallu Khan and Aabda Bi in last fifteen days of her life. 17. The deceased was never harassed for dowry demand etc. 17. The deceased was never harassed for dowry demand etc. when Chand Khan was alive and after death of Chand Khan, the deceased Khursheed Bi remained alive for two months only and in those two months, when she was taken to the house of witness Kallu Khan, she did not say about any demand and instead of making payment for her treatment, Kallu Khan left her to the house of sister of the respondent No.1 at Bhopal. Under these circumstances, the testimony of Kallu Khan and Aabda Bi is not at all reliable that there was any demand of Rs.50,000/- for the treatment or otherwise made by the respondents. 18. For constitution of offence under section 304B of IPC, it is necessary to establish that the bride was harassed and dealt with cruelty for fulfilling the demand. If evidence of Kallu Khan and Aabda Bi is considered to that aspect, then they did not take any resolute step when such information was given by the deceased. It is also pertinent to note that no demand was made till Chand Khan brother of the respondent No.1 was alive and demand was made in last two months of life of Khursheed Bi, whereas Kallu Khan and Aabda Bi could not say anything about the harassment of the deceased in last two months, whether she was beaten or they saw injury on her person or what was the source of their statement relating to harassment done by the respondents towards the deceased Khursheed Bi. Hence, neither any offence under section 304B of IPC nor section 498A of IPC was constituted against the respondents. It appears that since the deceased Khursheed Bi died within one year of her marriage, the parents of the deceased had appended a false case against the respondents, whereas the conduct of the respondents is visible that they spent a lot of money for treatment of the deceased Khursheed Bi and they tried to get her cured. The trial Court has rightly acquitted the respondents from the charge of sections 304B and 498A of IPC. 19. On the basis of the aforesaid discussion, there is no reason to make an interference in the judgment passed by the trial Court. There is no substance in the State appeal and, therefore, the same cannot be accepted. The trial Court has rightly acquitted the respondents from the charge of sections 304B and 498A of IPC. 19. On the basis of the aforesaid discussion, there is no reason to make an interference in the judgment passed by the trial Court. There is no substance in the State appeal and, therefore, the same cannot be accepted. Consequently, the State appeal filed against the respondents namely Sarvar Ali, Maksud Ali and Bilkish Bi relating to the impugned judgment is hereby dismissed by confirming the impugned judgment of acquittal. 20. The respondents are on bail. Their presence is no more required before this Court and, therefore, it is directed that their bail bonds shall stand discharged. 21. A copy of the judgment be sent to the Court below along with its record for information.