Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 191 (MP)

Swaraj v. State of Madhya Pradesh

2017-02-06

C.V.SIRPURKAR

body2017
ORDER : Shri C.V. Sirpurkar, J. 1. This criminal revision is directed against the order dated 29.02.2016 passed by the Court of Additional Sessions Judge, Jatara, District Tikamgarh, in Sessions Trial No.266/2015, whereby a charge under section 302 read with section 34, 304-B, 306 and 498-A of the Indian Penal Code and section 3/4 of the Dowry Prohibition Act was framed against the petitioners Swaraj and Rajpal Singh Bundela. 2. As per prosecution case before the trial Court deceased Renuka Raje married co-accused Yatendra Singh on 07.12.2008. Swaraj is the mother and Rajpal Singh is the father of Yatendra Singh. At the time of marriage, parents of deceased Renuka Raje had given Rs.5,00,000/- in cash and other household items in dowry; however, petitioner Swaraj used to complain that they did not receive dowry to the extent they expected. The chain given in dowry was light. When deceased Renuka became pregnant, she was left at her maternal home and petitioners and co-accused Yatendra did not pay any attention to her. The delivery required an operation. At that time, the consent of Yatendra Singh was needed. He arrived with his mother after several calls. When petitioner Swaraj returned, she took away all the gold and silver ornaments of Renuka Raje. After the delivery, Renuka Raje continued to be in her maternal home for about 6 months. When deceased Renuka asked Yatendra Singh to take her back, he put up a condition that till two of the shops belonging to Renuka's father were not transferred in his name, he would not keep Renuka with him and she will have to live with his parents at Chandera. Thereafter, deceased Renuka was sent to Chandera by her parents with the provisions. The parents of the deceased used to make arrangements for all the provisions at Chandera. At the time of "Karva Chautha", Yatendra Singh went to Chandera. After about a fortnight, on 26.10.2014, Lata Raje, mother of the deceased, received a telephone call from some unknown lady that Renuka Raje was ill and was frothing from mouth. She was taken to Jhansi. The relatives of the deceased reached Jhansi Medical College but by then, the deceased had already expired. The relatives of the deceased suspected that she was harassed and killed by the accused persons for dowry. 3. She was taken to Jhansi. The relatives of the deceased reached Jhansi Medical College but by then, the deceased had already expired. The relatives of the deceased suspected that she was harassed and killed by the accused persons for dowry. 3. Learned counsel for the petitioners has assailed the order framing charge against petitioners Swaraj and Rajpal Singh mainly on the ground that there are no specific allegations of dowry demand and harassment against the petitioners. In panchnama of the dead body, no external injury was found on the person of the deceased. No external injury was found on the dead body during autopsy either. The doctor conducting post-mortem examination failed to determine the cause of death; therefore, viscera was preserved and sent for chemical examination to the Medico Legal Institute, Bhopal and Forensic Science Laboratory, Sagar. The viscera sent to Medico Legal Institute, Bhopal was found to be decomposed and unfit for examination; whereas no poison was detected in the pieces of viscera sent to the Forensic Science Laboratory, Sagar. In aforesaid circumstances, it cannot be said that the deceased had suffered an unnatural death. In this regard, learned counsel for the petitioners has invited attention of the Court to the judgment rendered by the Supreme Court in the case of Akula Ravinder and others v. State of Andhra Pradesh, AIR 1991 SC 1142 . Therefore, it has been prayed that the petitioners, who are father-in-law and mother-in-law of the deceased, should be discharged. 4. Learned panel lawyer for the respondent/State on the other hand has opposed this revision petition. 5. A perusal of the impugned order reveals that the trial Court has framed charges under sections 302, 304-B and 306 of the Indian Penal Code against petitioners and co-accused Yatendra Singh. To prove an offence under section 302 of the Indian Penal Code, it is necessary that the death must be homicidal in nature. To constitute an offence under section 304-B of the Indian Penal Code, the death must either be homicidal or suicidal and to constitute an offence under section 306 of the Indian Penal Code, the death has to be suicidal in nature. To constitute an offence under section 304-B of the Indian Penal Code, the death must either be homicidal or suicidal and to constitute an offence under section 306 of the Indian Penal Code, the death has to be suicidal in nature. In this regard, when we examine the documents filed by the prosecution along with report under section 173(2) of the Code of Criminal Procedure, we may note that after the death of the deceased, a panchnama was prepared by City Magistrate, Jhansi on 27.10.2014; wherein, it was categorically recorded that the cause of death was not clear; therefore, post-mortem examination was recommended. In the report of postmortem examination, it has been stated that she was brought dead to Medical College, Jhansi at about 9:00 p.m. on 26.10.2014. On next day, i.e. on 27.10.2014, her post-mortem examination was conducted; however, no external injury was found anywhere on the body. The cause of death could not be ascertained. Hence, viscera was preserved for chemical analysis and was sent to State Forensic Science Laboratory, Sagar and Gandhi Medico Legal Institute, Medical College, Bhopal. The viscera sent to Gandhi Medico Legal Institute, Medical College, Bhopal was found to be decomposed and foul smelling. It had lost its morphology; hence, it was found unfit for chemical analysis. However, the pieces of viscera sent to State Forensic Science Laboratory, Sagar were examined for chemical poison. As per the report dated 24.11.2014, the tests for chemical poison were negative. 6. Thus, apart from the bald statements made by relatives of the deceased that she was murdered for dowry, there is nothing on record to indicate that the deceased suffered an unnatural death. None of them met the deceased before her death. Thus, the allegation that she was frothing from the mouth and was therefore taken to Medical College is in the nature of hearsay evidence. The allegation has been made because there was a demand for dowry and the deceased had suffered an untimely death. It is true that prima facie there is material to indicate that the deceased was subjected to demand for dowry by her husband. It is also true that the deceased died an untimely death because she was only 38 years old. However, an untimely death has to be differentiated from a death under unnatural circumstances. It is true that prima facie there is material to indicate that the deceased was subjected to demand for dowry by her husband. It is also true that the deceased died an untimely death because she was only 38 years old. However, an untimely death has to be differentiated from a death under unnatural circumstances. The prosecution has failed to file any material which would suggest that the death was either homicidal or suicidal or even accidental. Thus, prima facie, it cannot be said that the death of the deceased was caused by any burns or bodily injury or occurred otherwise then under normal circumstances. Thus, this essential ingredient of the offence of dowry death punishable under section 304-B of the Indian Penal Code, is missing in the case. Since prima facie, the death was neither homicidal nor suicidal; therefore, the offence punishable under section 302 of the Indian Penal Code or 306 of the Indian Penal Code would also not be constituted. 7. Now the question that remains for consideration is whether the offence under Section 498-A of the IPC or Section 3/4 of the Dowry Prohibition Act are made out. In this regard, it may be noted at the outset that since the offence under Sections 304-B or 306 of the IPC are not constituted, the cause of death of the deceased Renuka Raje is no longer in question in this case. As such the facts allegedly disclosed by the deceased during her life time to her family members regarding acts and conduct of the petitioners would not be admissible in evidence by way of oral dying declaration. In this regard, judgment rendered by the Supreme Court in the case of Inderpal v. State of M.P., (2001) AIR SCW 5082 may profitably be referred to; wherein, the Supreme Court has held as follows : "7. Unless the Statement of a dead person would fall within the purview of Section 32 (1) of the Indian Evidence Act, there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the Statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned." 8. Likewise, in the case of Bhairon Singh v. State of M.P., AIR 2009 SC 2603 , it has been held that : "The death of Smt. Ranjana Rani @ Raj Kumari was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498-A simpliciter, the question of death is not and cannot be an issue for consideration, we are afraid the evidence of PW-4 and PW-5 is hardly an evidence in law to establish such offence. In that situation Section 32(1) of the Evidence Act does not get attracted." 9. Relying upon the case of Inderpal (supra), the Supreme court in the case of Kantilal Martaji Pandor v. State of Gujarat, AIR 2013 SC 3055 has held that : "The question that we have, therefore, to decide is whether the Court could have arrived at this finding that the appellant had starved the deceased and committed various acts of mental cruelty towards the deceased only on the basis of the contents of the letter dated 26.03.1992 written by the deceased to the Police Station. The letter written by the deceased on 26.03.1992 could be relevant only under Section 32 (1) of the Indian Evidence Act, 1872, which provides that a statement, written or verbal, of relevant facts made by a person who is dead, is relevant when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. The High Court in the present case has already held that the appellant was not guilty of abetting the suicide of the deceased and was, therefore, not guilty of the offence under Section 306, IPC. As the cause of the death of the deceased is no more in question in the present case, the statements made by the deceased in the letter dated 26.03.1992 to the police Station cannot be taken to be proof of cruel acts of holding him guilty under Section 498-A, IPC. 10. In view of aforesaid authoritative pronouncements, it is obvious that only the facts that were within the personal knowledge of the witnesses regarding conduct and behaviour of the petitioners towards the deceased, can be taken into consideration for the purpose of framing of charge. The facts and circumstances that were communicated to them by the deceased cannot be taken into consideration. 11. It is again to be kept in mind that this petition has not been filed by the husband Yatendra Singh but by his parents Smt. Swaraj and Rajpal Singh. 12. Rampratap Singh, father of the deceased has stated under Section 164 of the Cr.P.C. that the accused persons used to harass the deceased for getting the shop owned by him transferred in the name of Yatendra Singh. Since aforesaid demand was not met, they killed the deceased. Aforesaid statement is obviously non-specific as no time, date and manner in which the deceased was harassed, has been mentioned therein and the allegations that the petitioners killed the deceased is based upon conjecture and surmises. 13. Since aforesaid demand was not met, they killed the deceased. Aforesaid statement is obviously non-specific as no time, date and manner in which the deceased was harassed, has been mentioned therein and the allegations that the petitioners killed the deceased is based upon conjecture and surmises. 13. Drigendra Singh, brother of the deceased, Lata Raje, mother and Rahul Dev, brother of the deceased have stated under Section 164 of the Cr.P.C. that when the petitioner Swaraj had come along with Yatendra Singh at the time of delivery of the deceased, she had taken away all gold and silver ornaments worn by the deceased Renuka. This fact by itself even if presumed to be true, cannot constitute any cruelty or dowry harassment. 14. Thus, apart from the allegation that Swaraj had taken away all ornaments from the deceased when she had come at the time of delivery of the deceased, there is no specific allegation based upon the personal knowledge of the family members of the deceased regarding cruelty or dowry harassment. There is nothing all against the petitioner Rajpal Singh, which is indicative of the fact that he also inflicted any persecution, cruelty or harassment upon the deceased. In aforesaid circumstances, even the offence under Section 498- A of the IPC is not constituted against any of the petitioners. 15. On the basis of foregoing discussions, it is clear that the charge under Sections 302 read with section 34, 304-B, 306 and 498-A of the IPC and Section 3/4 of the Dowry Prohibition Act are not constituted on the basis of material available on record and the trial Court had framed the charges mechanically; therefore, the order dated 29.02.2016 framing charge, is not sustainable in the eyes of law and deserves to be set-aside. 16. Consequently, this criminal revision is allowed. The order dated 29.02.2016 passed by the Court of Additional Sessions Judge, Jatara, District-Tikamgarh in S.T. No.266/2015 is set aside. Petitioners Smt. Swaraj and Rajpal Singh are discharged in the matter. Certified copy as per rules.