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2017 DIGILAW 1134 (MP)

Rajesh Kumar v. State of M. P.

2017-11-07

ANJULI PALO, S.K.SETH

body2017
JUDGMENT : Anjuli Palo, J. 1. This appeal has been filed by the accused-appellants being aggrieved by the judgment dated 30.8.1994 passed by Additional Sessions Judge, Khurai, District Sagar in Session Trial No.14/93, holding appellants guilty of offences and sentenced as under :- Appellant Offence u/s Sentence Fine Default of fine Appellant No.1 4 of Dowry Prohibition, 1961 RI for 2 years Rs.10,000/- S.I. for three months Appellant No.1 201 of IPC RI for 7 years Rs.5000/- S.I. for three months Appellant No.1 498A of IPC RI for 2 years Rs.3000/- S.I. for three months Appellants No. 2 to 4 4 of Dowry Prohibition RI for 2 years - - Appellants No. 2 to 4 302 of IPC RI for life - - Appellants No. 2 to 4 304B and 498A of IPC No separate sentence awarded - - 2. It is not in dispute that Asha (since deceased) was wife of appellant No.1 and appellant No.4 is the mother-in-law of the deceased and mother of other appellants. The marriage between appellant No.1 and the deceased was solemnized in the year 1991. Asha died on 12.11.1992 within 1 ½ year of marriage due to burn injuries at her matrimonial home. 3. In brief the prosecution case is that appellant No.1 was married to Asha on 7.1.1991. Appellant Nos. 2 and 3 are the sister-in-law. It is alleged that some time after the marriage, Asha was not treated well and was harassed for dowry by her in-laws/appellants. The appellants demanded Rs.10,000/- for setting up a shop for appellant No.1 and a gas burner. The demand was not met. On 8.11.1992 at about 8.30 am the appellant No.4 poured kerosene on her and ignited the fire. Asha sustained burn injuries. Thereafter appellant Nos. 2 and 3 came there and did not do anything to save her. She was immediately brought to the hospital by the neighbours. Asha was examined by Dr. R.K. Damle (PW11). Her three dying declarations were recorded by the Doctor, Naib Tehsildar and Police. Initially, police registered FIR against the appellants under sections 307, 120-B, 201, 498-A of IPC and section 4 of Dowry Prohibition Act. On 14.11.1992 Asha died due to severe burn injuries. After completion of investigation, a charge sheet has been filed against the appellants under Sections 302, 120-B, 201, 498-A of IPC and section 4 of Dowry Prohibition Act. 4. Initially, police registered FIR against the appellants under sections 307, 120-B, 201, 498-A of IPC and section 4 of Dowry Prohibition Act. On 14.11.1992 Asha died due to severe burn injuries. After completion of investigation, a charge sheet has been filed against the appellants under Sections 302, 120-B, 201, 498-A of IPC and section 4 of Dowry Prohibition Act. 4. After committal of the case, the trial Court conducted trial and convicted the appellants and sentenced them as mentioned above. 5. The appellants challenged the impugned judgment on the ground that they are innocent. The learned trial Court has wrongly convicted them on the aforesaid charges on the basis of dying declaration of the deceased Ex.P-21 by ignoring earlier dying declaration of the deceased Ex.P-13, in which Asha stated that accidentally due to burst of stove she sustained burn injuries. On the initiatives taken by her husband-appellant No.1, she was under treatment from 8.11.1992 to 14.11.1992. Prosecution story is not corroborated by any independent witnesses. Hence the appellants pray to set aside the impugned judgment and acquitted from the charges. 6. Learned Government Advocate for the State opposed the above submissions. 7. Heard learned counsel for the parties and perused the records. 8. The point for consideration is that : (i) Whether the deceased was ill-treated or harassed by the appellants for non-fulfillment of dowry demand of the appellants ? (ii) Whether the appellants have wrongly been convicted by the trial Court ? 9. Deceased was the wife of appellant No.1. Their marriage was solemnized in the year 1991. It is alleged by her brother-Pradeep (PW13) and Mother/Lalita (PW14) that after some time of marriage, the appellants tortured the deceased for demand of dowry. The appellant No.4 demanded Rs.10,000/- for extension of shop of appellant No.1. Appellant No.4 further demanded amount for purchasing a cooking gas burner. The brother of the deceased gave Rs.2000/- to the appellant No.4 for purchasing the same. Deceased-Asha was harassed by appellant No.4. Thus, on earlier occasion the deceased left her matrimonial home. As per the statement of Pradeep (PW13) and Lalitabai (PW14) to maintain relations with the appellants, they avoided to lodge FIR against the appellants with the police. They brought Asha to her parental house and she resided with them. 10. Pradeep (PW13) and Lalitabai (PW14) also deposed that on 24.10.1992, the deceased went back to her matrimonial home at Bina. As per the statement of Pradeep (PW13) and Lalitabai (PW14) to maintain relations with the appellants, they avoided to lodge FIR against the appellants with the police. They brought Asha to her parental house and she resided with them. 10. Pradeep (PW13) and Lalitabai (PW14) also deposed that on 24.10.1992, the deceased went back to her matrimonial home at Bina. On 8.11.1992, they received information about burning of Asha. They immediately went to Hamidia Hospital, Bhopal, at that time Asha was alive. Asha narrated whole incident to them. She has stated that appellant No.4 assaulted her and set her ablaze. Due to fear of her husband, she did not say anything against the appellants before the doctor in Ex.P13. 11. Thereafter, on 9.11.1992 her dying declaration (Ex.21) was recorded by Nisar Ahmad Rizvi-Naib Tehsildar (PW24). He proved that at the time of recording of dying declaration, Asha was mentally fit and was able to give dying declaration. Nisar Ahmad recorded the statement of Asha according to the prescribed procedure. Therefore, we rely on Ex.P/21 (2nd Dying Declaration) which is only against the appellant No.4. 12. Another Dying Declaration (Ex.22) was recorded on 11.11.1992 by SDOP, Rakesh Gurjar (PW20) as statement under Section 161 of Cr.P.C. wherein we find so many improvements and so many omissions with the police statements of brother Pradeep (PW13) and mother Lalita (PW14). I.O., B.D. Pant (PW20) deposed that Pradeep and Lalita have not stated against appellant Nos. 1 to 3 in their police statements. There are substantial contradiction and omission. Thus, we do not find the Ex.P22 reliable against the appellants No. 1 to 3. 13. We find that the testimony of Pradeep (PW13) and Lalita (PW14) are fully reliable. The deceased also told them against appellant No.4 about the incident. They also stated about the cruel behaviour and demand of dowry by appellant No.4, which has been corroborated by the letters Exs.P/15, P/16, P/18 and P/20 written by Asha (since deceased). These letters also indicate that the appellant No.4 was annoyed with the deceased and ill-treated her. Earlier the deceased had informed to her brother Pradeep (PW13), Lalita (PW14) and Chotelal (PW17), Rajkumar (PW19) and Rajendra (PW15) about the threat of burning by her mother-in-law/appellant No.4. All these witnesses corroborate this fact in their testimony. In such circumstances, dying declarations Ex.P/21 and Ex.P/22 are found reliable against appellant No.4 only. Earlier the deceased had informed to her brother Pradeep (PW13), Lalita (PW14) and Chotelal (PW17), Rajkumar (PW19) and Rajendra (PW15) about the threat of burning by her mother-in-law/appellant No.4. All these witnesses corroborate this fact in their testimony. In such circumstances, dying declarations Ex.P/21 and Ex.P/22 are found reliable against appellant No.4 only. It reveals that at the time of incident the appellants No.1 to 3 were not present with appellant No.4 on the spot. Nor they supported appellant No.4 for committing the offence. 14. As per the dying declaration (Ex.P/21) prior to the incident appellant No.4 tried to ablaze her. Contents of dying declaration (Ex.P21) are duly supported by Pradeep Kumar (PW13) (brother of the deceased), Lalita Bai mother of the deceased (PW14) and other relatives Rajendra (PW15), Chhotelal (PW17) and Rajkumari (PW19). They supported the prosecution story with regard to cruelty and demand of dowry made by the appellant No.4. 15. As per Ex.P.21, at the time of incident appellant No.2 and 3 came to the spot after some time and saw Asha is in burnt condition, but they did not try to save her. Appellant No.1 also came there later. As per Ex.P22 he brought Asha to Bina Hospital and then to Hamidia Hospital, Bhopal for treatment. In Ex.P21, we do not find any allegation against appellant No.1 that he threatened and beaten Asha, for she did not to state any thing against them. It shows that appellant No.1 to 3 did not actively participate in the crime with their mother/appellant No.4. 16. Learned counsel for the appellants submits that Ghanshyam (PW1), Gopal (PW2), Phoolchand (PW3), Ravindra (PW4), Chhota Aslam (PW5) are the independent witnesses. They are neighbour of the appellants and they did not support the prosecution story. Close relatives of the deceased are interested witnesses. Hence, prosecution case has become suspicious. The contention of the counsel for the appellants cannot be accepted, because in cases of demand of dowry, domestic violence or Bride burning, offences takes place within the four walls of the matrimonial house. Hence, in those cases evidence of interested witnesses cannot be disbelieved. 17. Some time independent eye witnesses may not be available or some time they turn hostile. As considered in case of Ramesh Vithal Patil Vs. State of Karnataka (2014) 11 SCC 516 and in the case of Sadhu Sharan Singh Vs. State of UP and Ors. Hence, in those cases evidence of interested witnesses cannot be disbelieved. 17. Some time independent eye witnesses may not be available or some time they turn hostile. As considered in case of Ramesh Vithal Patil Vs. State of Karnataka (2014) 11 SCC 516 and in the case of Sadhu Sharan Singh Vs. State of UP and Ors. [2016 (4) SCC 358] it was held that “in present days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence – Unless it is inevitable, people normally keep away from court, as they find it distressing and stressful – Though such kind of human behaviour is indeed unfortunate, but it is a normal phenomena – Such handicap of investigating agency cannot be ignored in discharging their duty. Prosecution case cannot be doubted on such ground alone – Entire case cannot be derailed on mere ground of absence of independent witness as long as evidence of eyewitness, though interested, is trustworthy.” [See also Appabahi and Anr. Vs. State of Gujarat AIR 1988 SC 696 ]. 18. It is also noted here that the deceased was married to appellant No.1 on 17.2.1991 and the incident happened within one and a half year (i.e. on 8.11.1992) of marriage. It is quite obvious that Asha would have told about the conduct and behaviour of her-in-laws to her parents and close relatives not to any outsiders. In the case of Surinder Singh Vs. It is quite obvious that Asha would have told about the conduct and behaviour of her-in-laws to her parents and close relatives not to any outsiders. In the case of Surinder Singh Vs. State of Haryana reported in 2014(4) SCC 129 it was held by the Supreme Court that: “Harassment of a married woman in an Indian household is a peculiar phenomenon-In most cases it is seen that husband or members of his family are never satisfied with what they get as dowry-Wife’s family is expected to keep fulfilling this insatiable demand in some form or the other for some period of time after marriage-Such demands are also fulfilled by parents of wife for fear of their daughter being illtreated-Courts of law cannot lose sight of these realities-Presumption under S. 113-B, Evidence Act, and presumption under S. 304-B IPC, have a purpose-These are beneficent provisions aimed at giving relief to a woman subjected to cruelty routinely in an Indian household in respect of dowry- The meaning to be applied to each word of these provisions, has to be in accord with legislative intent-Even while construing these provisions strictly, care will have to be taken to see that their object is not frustrated” The Supreme Court further held that :- “Harassment and cruelty is meted out to a woman within four wall of matrimonial house, it is difficult to get independent witnesses to depose about it – Only inmates of house and relatives of husband, who cause cruelty, witness it – Their servants, being under their obligation, would never depose against them – Proverbially, neighbours are slippery witnesses- Moreover, witnesses have a tendency to stay away from courts – This is more so with neighbours – In bride burning cases, who else will, therefore, depose about misery of deceased bride, except her parents or her ralatives- It is time to accept this reality- Therefore, the aforesaid submission is rejected.” In the case of Trimukh Maroti Kirkany Vs. State of Maharashtra [2007 Cr.L.J. 20] the Supreme Court has held that :- “Such crimes are general committed in complete secrecy inside house – Nature and amount of evidence required to establish charge cannot be of same degree as required in other cases of circumstantial evidence – Silence of inmates of house about cause of death-Would become additional link in chain of circumstances.” 19. Thus the testimony of near/close relative of the deceased cannot be brushed aside. The learned trial Court duly appreciated the evidence in the impugned judgment. Hence after considering the evidence on record, we find that the dying declaration Ex.P13 which is in favour of the appellant, is not reliable. 20. Another Dying declaration (Ex.P21) was recorded by the Executive Magistrate. Police recorded the statement of the deceased under Section 161 of Cr.P.C. which is Ex.P22, wherein similar allegations have been made against the appellant No.4. Both the dying declarations have been corroborated with the testimony of brother and mother of the deceased against the appellant No.4. I.O. Shri B.D. Pant (PW21) clearly deposed that in police statement Ex.P5 and Ex.P7 Pradeep (PW13) and Lalita (PW6) have not alleged against the appellants No. 1 to 3. Hence such omissions are very important, which create reasonable doubt in their favour. 21. Although appellants No.1 to 3 did not rescue the deceased from appellant No.4, but it does not mean that they had any common intention to harass her or to kill her. Another evidence on the basis of the dying declaration of the deceased Ex.P21, presumption under Section 113-B of Evidence Act may be drawn only against appellant No.4. Appellant No.4 treated the deceased with cruelty soon before the incident for demand of dowry. She ablazed the deceased and committed her murder. 22. In case of Jaishree Anant Khandekar Vs. State of Maharashtra [ (2009) 11 SCC 647 ] it was held that if the deceased is making several dying declaration at different hours to different persons on the basis of which Courts below primarily rely to sustain conviction. Though some deviation in narration of facts in these dying declarations was discernible but they were consistent in material particulars. Moreover, evidence of some witnesses in substantial part corroborated dying declaration. Declarant lived for more than 15 days, and hence was in a position to give declaration. Doctor had also opined that declarant was conscious enough to make the statement and all judicially evolved rules of caution were duly followed. Hence, such dying declaration found voluntary and trustworthy. [See (2013) 2 SCC 224 Asha Vs. State of Maharashtra, (2015) 11 SCC 154 Sandeep Vs. Haryana]. 23. Doctor had also opined that declarant was conscious enough to make the statement and all judicially evolved rules of caution were duly followed. Hence, such dying declaration found voluntary and trustworthy. [See (2013) 2 SCC 224 Asha Vs. State of Maharashtra, (2015) 11 SCC 154 Sandeep Vs. Haryana]. 23. On the above discussions and after going through the judgment of Court below and having considered the entire evidence available on record, we are constrained to observe that the trial Court has not made a correct approach to convict the appellants No.1 to 3 in this case. Hence, we find that there is no evidence on record to prove the guilt of appellants No. 2 and 3 for committing offence under Section 498-A, 304-B, 302 of IPC and Section 4 of the Dowry Prohibition Act. Hence, the appeal is partly allowed in favour of appellants No. 1 to 3. Appellants No. 2 and 3 are acquitted from the charges under Sections 498-A, 304-B, 302 of IPC and Section 4 of the Dowry Prohibition Act and appellant No.1 is acquitted from the charges under Section 201, 498-A of IPC and Section 4 of the Dowry Prohibition Act respectively. Fine amount, if any, deposited by the appellants No. 1 to 3 be returned to them. The prosecution has proved the guilt of appellant No.4 by adducing cogent evidence. Hence, the appeal with regard to appellant No.4 is dismissed. 24. Appellant No.4 Vimla Dai is on bail, her bail bond is cancelled and she is directed to surrender immediately before the trial Court to undergo the remaining sentence, failing which the trial Court shall take appropriate action under intimation to the Registry. 25. A copy of this judgment be sent to the trial Court for information and compliance alongwith its record immediately.