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Madhya Pradesh High Court · body

2017 DIGILAW 670 (MP)

Jagdish Kumar v. State of M. P.

2017-05-12

J.P.GUPTA

body2017
JUDGMENT : This appeal has been filed against the impugned judgment of conviction and sentence dated 5-2-1998 passed by First Additional Sessions Judge, Balaghat, in Sessions Trial No. 83/1991, whereby the appellants have been convicted for the offence punishable under section 304-B and 498-A of the Indian Penal Code and each of them sentenced to R.I. for 7 years and fine of Rs.2,500/-, in default S.I. for six months only under section 304-B of the Indian Penal Code as the same is more severe offence than the offence under section 498-A of the Indian Penal Code. 2. In brief, the relevant facts of the case are that in May, 1989, marriage of deceased Jyoti was solemnized with appellant No. 1 accused Jagdish. On 8-3-1991, deceased Jyoti slept after taking dinner in the night. In the early morning at around 5-6 A.M., deceased Jyoti woke up and switched on light. Then Jagdish asked her to switch off the light. Then Jyoti went to answer the nature call. After half an hour, some loud noise came towards the toilet side then Jagdish ran towards toilet and saw his ‘bhabhi’ shouting and Jyoti was burning in front of toilet. Jagdish tried to extinguish fire by pouring water and shouted. On hearing his voice, Ramesh, Krishna and others came to the spot. Jyoti had died due to burn. Jagdish pick up the body of Jyoti and put her body in the bed inside room. Then Jagdish gave written information at Police Chowki Hatta vide Ex.P/2, on the basis of which ‘marg’ was registered as No. 3/91 vide Ex.P/3. During investigation it was found that soon after marriage there was dowry demand of TV, Fridge, Cooler from Jyoti and she was subjected to cruelty and harassment and entire household work was undertaken by her even without giving her proper meals. Even she was blamed for stealing a gold ring. Thus, she was tortured physically as well as mentally. 3. During investigation First Information Report was registered vide Crime No. 32/1991, Ex.P/20. The I.O. prepared the spot map vide Ex.P/22. He sent the body of deceased for post mortem at PHC Hatta and sent the seized articles to FSL Bhopal vide Ex.p/17A after taking permission from District Superintendent of Police. Thus, she was tortured physically as well as mentally. 3. During investigation First Information Report was registered vide Crime No. 32/1991, Ex.P/20. The I.O. prepared the spot map vide Ex.P/22. He sent the body of deceased for post mortem at PHC Hatta and sent the seized articles to FSL Bhopal vide Ex.p/17A after taking permission from District Superintendent of Police. After investigation Challan was filed under sections 302, in the alternative section 304-B, 498-A/34 of the Indian Penal Code and section 4 of the Dowry Prohibition Act before CJM Balaghat. Learned CJM committed the case to the Court of Sessions on 2-1-1991, which, in turn, transferred the case to the Court of 1 ASJ Balaghat. The learned Court below framed charges against the appellants Jagdish, Satyawatibai, Narendra and Radhabai. The appellants abjured the guilt and claimed to be tried. 4. This appeal has been filed on the ground that the finding of the learned trial Court is contrary to law and the evidence has not been appreciated in its proper perspective, which has caused prejudice to the appellants. In the case the prosecution has failed to prove necessary ingredients of the offence and the statements of prosecution witnesses are full of contradictions, omissions and improvements and also failed to consider that material witnesses are interested and closely related to the deceased and the prejudiced against the appellants because their daughter had died and has not considered in right perspective the letter written by the deceased to her parents in which she has not mentioned any facts regarding ill-treatment, demand of dowry and assault or beating. The learned trial Court has erred in relying upon the general, vague and omnibus statements against the appellants. Further, it is submitted that in the case co-accused Satyawati, mother-in-law of the deceased and Narendra Kumar, brother-in-law of the deceased have died and against the rest of the appellants there is no specific allegation with regard to cruelty and demand of dowry. In the aforesaid circumstances the appellants/accused are entitled to be acquitted from the offence. 5. On the other hand learned panel Lawyer opposed the submissions made on behalf of the appellants and supported the findings of the learned trial Court and prayed for dismissal of the appeal. 6. In the aforesaid circumstances the appellants/accused are entitled to be acquitted from the offence. 5. On the other hand learned panel Lawyer opposed the submissions made on behalf of the appellants and supported the findings of the learned trial Court and prayed for dismissal of the appeal. 6. Having heard learned counsel for the parties at length and on perusal of the record it is found that in this case there is no controversy with regard to the death of deceased Jyoti, which had taken place within two years of her marriage with appellant Jagdish, and nature of death of deceased Jyoti was suicidal and death had taken place in the matrimonial home. The prosecution has proved all the aforesaid facts by relevant and reliable evidence. Here, the aforesaid facts have not been assailed on behalf of the appellants; therefore, there is no need to make formal exercise to appreciate the evidence with regard to the aforesaid facts. In other words, it is confirmed that deceased Jyoti committed suicide within two years of her marriage in her matrimonial home. 7. Now, the paramount question for consideration is that whether deceased Jyoti was subjected to cruelty in connection with demand of dowry soon before her death or at any time before her death ? The prosecution case is based on the statements of parents of the deceased Satyawatibai, PW8 and Shankarlal, PW10 and her brother Rameshwar PW9 and social workers Snehlata PW1 and Seema Bastawale, PW2. On careful consideration of the statements of aforesaid witnesses it is found that there is no material in their testimony with regard to demand of dowry by the appellants. Satyawatibai, PW8, is mother of the deceased. In her statement she has not uttered a single word with regard to demand of dowry. Similarly, on the statement of Rameshwar, PW9, who is cousin brother of the deceased, nothing is found with regard to the demand of dowry by the appellants. Father of deceased Shankarlal, PW10 has not directly said anything that appellants demanded any dowry from him or from his daughter. At one place he has deposed that appellant Jagdish, his mother and sister-in-law asked him as to what has been given in the dowry by him when he went to take Jyoti with him. But, such statement was not given by him at the time of recording of statement under section 161 Cr.P.C., Ex.D/3. At one place he has deposed that appellant Jagdish, his mother and sister-in-law asked him as to what has been given in the dowry by him when he went to take Jyoti with him. But, such statement was not given by him at the time of recording of statement under section 161 Cr.P.C., Ex.D/3. Even though the statement is deemed to be correct, the same cannot be considered as disclosing about the demand of dowry. Apart from it, in the statements of Saytawati, PW8 and Rameshwar, PW9 and Shankarlal, PW10 there is no allegation that deceased Jyoti ever complained to them that she has been subjected to cruelty on account of demand of dowry. 8. So far as the statements of Snehlata, PW1 and Seema Bastawali, PW2 are concerned, their statements are not specific. Snehlata Chudiwale, PW1, has stated that after marriage deceased met her and she told her that her in-laws harassed her and demand articles and mother-in-law and brother-in-law tortured her and her husband favoured her mother-in-law. She has not stated about demand of specific article and also not stated about the specific incident of torture. Except it, mother-in-law and brother-in-law have died. There is no allegation against sister-in-law Radhabai and against appellant Jagdish. Only it is alleged that Jagdish always took side of her mother, which is not unnatural. But, in absence of such statement regarding demand of dowry by mother of the deceased and brother of the deceased even father of the deceased, the statement of PW1 with regard to demand of dowry is doubtful and cannot be relied upon. Similary, Seema Bastawale, PW2 has not stated anything with regard to demand of dowry by the appellants from deceased Jyoti or her parents or other relatives. 9. Apart from it, the letter written by deceased Jyoti to her father Ex.P/8 dated 27-1-1991, Ex.P/10 dated 22-2-1991 and Ex.P/11 dated 9-1-1991 do not contain any averment with regard to demand of dowry or any harassment and torture in connection with demand of dowry. 9. Apart from it, the letter written by deceased Jyoti to her father Ex.P/8 dated 27-1-1991, Ex.P/10 dated 22-2-1991 and Ex.P/11 dated 9-1-1991 do not contain any averment with regard to demand of dowry or any harassment and torture in connection with demand of dowry. From the aforesaid letters and the letter written by deceased mother-inlaw Satyawati, Ex.P/9 and P/10 and letter written by accused Jagdish appellant Ex.P/8 shows that there was some teething trouble in adjustment of Jyoti in the matrimonial house as there was some difference between mother-in-law and deceased with regard to household work and childish behaviour of deceased Jyoti; but, it appears that they have not disclosed that deceased was subjected to cruelty in her matrimonial house. In view of the aforesaid discussion, it is clear that in this case prosecution has failed to prove beyond reasonable doubt that appellants demanded dowry from deceased Jyoti or her relatives or with a view to compel their demand they subjected deceased Jyoti to cruelty. In this regard finding of the learned Court below is not correct. The learned trial Court has recorded its finding without appreciating the evidence and material available on record. Hence, in this regard finding of the learned trial Court is held to be incorrect and appellants conviction under section 304-B of the Indian Penal Code is liable to be set aside. 10. Now, further question arises whether the deceased was subjected to cruelty and account of which she committed suicide. In other words, whether the deceased committed suicide on account of abetment given by the appellants. 11. As earlier mentioned, so far as letters, Ex.P/8 to P/12 are concerned, they do not disclose the fact that deceased was subjected to cruelty. Simple allegations of teething trouble of adjustment in the matrimonial house cannot be considered as cruelty with the deceased. Deceased mother Satyawati, PW8, in this regard has stated that after marriage deceased Jyoti has said to her that her sister-in-law creates problems during preparation of food. She used to pour more salt and chilly in the vegetables and on account of sour taste of vegetable, her mother-in-law, sister-in-law and husband used to scold and beat her and did not give proper food. Her sister-in-law Radhabai has also falsely blamed her with regard to stealing of gold ring. Thereafter, she gave two golden rings so that Jyoti may not be subjected to cruelty. Her sister-in-law Radhabai has also falsely blamed her with regard to stealing of gold ring. Thereafter, she gave two golden rings so that Jyoti may not be subjected to cruelty. But, this witness has not disclosed these things at the time of investigation and her above statements are contradictory with her police statement, Ex.D/2. In the police statement, Ex.D/2 the aforesaid facts do not find place. In such circumstances, the statement of Satyawati, PW8 cannot be relied upon beyond reasonable doubt. 12. Rameshwar, PW9 has stated that her sister Jyoti told her that behaviour of her in-laws is not good with her. Often they torture her and her mother-in-law and brother-in-law were cruel to her. In cross examination he has stated that Jyoti told her only about the behavior of mother-in-law. Nothing has been said by him with regard to other accused persons. In his statement there is nothing against appellant Jagdish or Radhabai. Hence, with regard to appellants his statement does not support the prosecution story. 13. Shankarlal, PW10 also stated that Jyoti told her that appellants falsely blamed her that she committed theft of golden rings and husband used to beat her and mother-in-law take work from her whole day and brother-in-law in drunken condition abused her and gave her stale food; but, in his police statement, Ex.D/3, there is no mention that there was any role of the appellant accused persons in the aforesaid alleged facts relating to harassment. These allegations are mainly against deceased mother-in-law and brother-in-law. In the aforesaid circumstances, statements of deceased parents Satyawati, PW8, Shankar, PW10 and brother Rameshwar, PW9 are not of such a nature on which reliance can be placed to hold that deceased was subjected to cruelty soon before her death. As earlier mentioned, statements of Snehlata, PW1 and Seema Bastawale, PW2 also do not disclose specific incident with regard to harassment and torture with the deceased. There are general allegations which are mainly against mother-in-law and brother-in-law. 14. In view of the aforesaid discussion, it is obvious that prosecution has not succeeded to establish aforesaid facts beyond reasonable doubt that deceased was subjected to cruelty by the appellants. There are general allegations which are mainly against mother-in-law and brother-in-law. 14. In view of the aforesaid discussion, it is obvious that prosecution has not succeeded to establish aforesaid facts beyond reasonable doubt that deceased was subjected to cruelty by the appellants. Even if the allegation with regard to cruelty be considered to be correct, the nature of allegations is not of such a nature which will be deemed that on account of the aforesaid ill-treatment or torture, appellants abetted the deceased to commit suicide. In this regard, presumption under section 113-A of the Evidence Act would attract when all other circumstances of the case strongly indicates that such suicide had been abetted by the appellants. In other words, mere fact that if a married woman commits suicide within a period of 7 years of her marriage, the presumption under section 113-A of the Evidence Act would not automatically apply. The legislation mandate is that where a woman commits suicide within 7 years of her marriage and it is shown that her husband or any relative of husband has subjected her to cruelty, the presumption under section 113-A of the Evidence Act would attract having regard to all other circumstances of the case that such suicide has been abetted by her husband or by such relative of husband. The term “the Court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband” would indicate the presumption is discretionary. (See. Mangatram vs. State of Haryana, AIR 2014 SC 1782 ). 15. In the present case, there is no other circumstance to presume that appellant being husband and appellant No. 2 being sister-in-law of the deceased abetted deceased Jyoti to commit suicide. Hence, it cannot be held that appellants are responsible for abetment to commit suicide by deceased Jyoti. Hence, it cannot be said that appellants are guilty for committing offence punishable under section 306, Indian Penal Code. 16. Appellants have also been convicted under section 498-A of the Indian Penal Code on the aforesaid allegation and evidence with regard to cruelty. In view of this Court, first of all the allegations are not proved beyond reasonable doubt. Even if the allegations are deemed to be proved they do not come within the purview of cruelty as defined under section 498- A of the Indian Penal Code Explanation 1 and 2. 17. In view of this Court, first of all the allegations are not proved beyond reasonable doubt. Even if the allegations are deemed to be proved they do not come within the purview of cruelty as defined under section 498- A of the Indian Penal Code Explanation 1 and 2. 17. One more aspect requires to be considered in this case. When appellants accused are acquitted under section 302 or in the alternative section 304-B of the Indian Penal Code or 306, Indian Penal Code then the evidence which come in the purview of dying declaration under section 32 of the Evidence Act cannot be read with regard to evidence under section 498-A of the Indian Penal Code as in the offence under section 498-A of Indian Penal Code question of death of deceased does not come in the purview of consideration. Therefore, the statements which are admissible under section 32 of the Evidence Act as relevant to the death of deceased is not admissible with regard to offence under section 498-A of the Indian Penal Code, as has been held by the Apex Court in the case of Gananath Pattnaik vs. State of Orissa, (2002)2 SCC 619 . The relevant para 10 is reproduced hereinbelow :— “10. Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial Court has referred to the statement of PW 5, who is the sister of the deceased. In her deposition recorded in the Court on 4-5-1990 PW 5 had stated : “Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfilment of balance dowry amount of a scooter and a two-in-one.” and added : “On 3-6-1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima Apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from her, and that her mother-in-law has come and some conspiracy is going against her (the deceased). At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from her, and that her mother-in-law has come and some conspiracy is going against her (the deceased). She further told that ‘mate au banchei debenahin’.” Such a statement appears to have been taken on record with the aid of section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under section 304-B and such statement was admissible under clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under section 498-A of the Indian Penal Code and has to be termed as being only a hearsay evidence. section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused. 18. In the case of Inder Pal vs. State of M.P., reported in 2001(10) SCC 736 wherein the Apex Court considered the matter and held as under :— “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. 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. 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, Indian Penal Code disjuncted from the offence under section 306, Indian Penal Code 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. 19. Relying upon this judgment, the Apex Court further confirmed the same view in the case of Bhairon Singh vs. State of M.P., reported in (2009)13 SCC 80 . 20. In view of the aforesaid propositions of law, when no offence under section 304-B or 306, Indian Penal Code against the appellant is made out then the statement given by deceased to their parents and other relatives or social worker before the death with regard to ill-treatment and harassment by the appellants are not admissible as they come in the purview of hearsay evidence. Then, in absence of other evidence, the fact with regard to the conviction of offence under section 498-A of the Indian Penal Code remain unestablished, therefore, in view of aforesaid reasons, the appellants’ conviction under section 498-A of Indian Penal Code cannot be held to be correct. 21. In view of the aforesaid discussion, the finding of the learned trial Court cannot be upheld. It is contrary to law, as discussed above. Hence, this appeal is allowed and appellants’ conviction and sentence under section 304-B and 498-A of the Indian Penal Code is hereby set aside. Appellants are on bail. Their bail bonds are discharged. If fine amount is already deposited by the appellants, the same be returned back to them. A copy of this order be sent to the trial Court for information and compliance.