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Madhya Pradesh High Court · body

2018 DIGILAW 680 (MP)

MANOJ v. STATE OF M. P.

2018-08-02

J.P.GUPTA

body2018
JUDGMENT : 1. This appeal has been filed against the impugned judgment of conviction and order of sentence dated 21-5-1999 passed by XIVth Additional Session Judge, Indore in Sessions Trial No. 395/1997 whereby the appellants have been convicted for the offence punishable under sections 304-B and 498-A of the Indian Penal Code and sentenced to R.I. for 10 years along with fine of Rs.2000/- and to R.I. for 6 months, respectively, with default stipulation as mentioned in the impugned judgment. 2. The facts giving rise to this appeal are that the marriage of the deceased Jamuna Bai was solemnized with the appellant No. 1 Manoj on 24-4-1993 and she died due to burn injury on 5-8-1997 in the suspicious circumstances. After the incident she was shifted to M.Y. Hospital, Indore where treating Dr. Surendra Dubey (PW-11) also recorded dying declaration Ex.P-16 in which the deceased disclosed that she herself set ablaze on her body on account of demand of dowry and cruel behaviour of the appellants. Thereafter Executive Magistrate Sm. Meena Pal (PW-13) also recorded dying declaration of the deceased Ex.P-17 in which she stated that the appellants set ablaze her. During the investigation, statement of the parents of the deceased namely Raghunath (PW-5) and Kalawati Bai (PW-6) were recorded by the police and after completion of the investigation of crime No. 473/1997 registered at police station M.I.G Colony, Indore, the charge-sheet was filed against the appellants and the appellants were tried for commission of the offence under sections 302, 304-B, and 498-A read with section 34 of Indian Penal Code. The accused persons abjured their guilt and claimed to be tried. The defence of the appellants are that they are innocent. 3. After completion of the trial, learned trial Court acquitted the appellants of the charge under section 302 of Indian Penal Code. However convicted the appellants under sections 304-B and 498-A of Indian Penal Code and sentenced them as mentioned earlier. 4. The findings of the learned trial Court are mainly based on dying declaration Ex.P-16 recorded by Dr. Surendra Dubey (PW-11) and statement of the parents of the deceased Raghunath (PW-5) and Kalawati Bai (PW-6). The aforesaid findings have been assailed on the ground that the deceased has given two dying declarations and dying declaration Ex.P-16 is not reliable. The statements of the parents of the deceased are also not reliable. Surendra Dubey (PW-11) and statement of the parents of the deceased Raghunath (PW-5) and Kalawati Bai (PW-6). The aforesaid findings have been assailed on the ground that the deceased has given two dying declarations and dying declaration Ex.P-16 is not reliable. The statements of the parents of the deceased are also not reliable. There is no specific averment about the demand of dowry and harassment by the appellants and before the date of incident appellant No. 2 and appellant No. 3 were residing separately as admitted by Raghunath (PW-5). There is no corroboration of the statements of parents. Apart from it, there is no material on record to indicate that soon before the death the deceased was subjected to cruelty. Without proving the necessary ingredient of offence punishable under section 304-B of Indian Penal Code, the appellants can’t be convicted for commission of the offence. Further submitted that when the offence punishable under section 304-B is not established, the evidence in the form of dying declaration can’t be considered to prove the offence punishable under section 498-A of Indian Penal Code as than the evidence of dying declaration would be considered hearsay evidence and cannot be used under section 32 of the Evidence Act. Therefore, appellants can also not be punished under section 498-A of Indian Penal Code. Hence the appeal be allowed and appellants be acquitted. Further it is submitted that in case of upholding of the offence under section 498-A of Indian Penal Code. Hence the appellants be acquitted. 5. Learned Government Advocate opposed the aforesaid contention and supported the finding of the learned trial Court and prays to dismiss the appeal. 6. Having heard contention of learned counsel for the parties and on perusal of the record, in this case it is not disputed here that the marriage of appellant No. 1 Manoj with the deceased was taken place on 24-4-1993 and the deceased was died on 5-8-1997 on account of burn injury in her matrimonial house. Appellant No. 2 Kallu is father-in-law and appellant No. 3 is mother-in-law of the deceased. Initially she was treated by Dr. Surendra Dubey (PW-11) and after that autopsy was conducted by Dr. M. N. Unda (PW-3), who prepared post-mortem report Ex.P-3 and opined that the deceased died on account of burn injury sustained to her. Appellant No. 2 Kallu is father-in-law and appellant No. 3 is mother-in-law of the deceased. Initially she was treated by Dr. Surendra Dubey (PW-11) and after that autopsy was conducted by Dr. M. N. Unda (PW-3), who prepared post-mortem report Ex.P-3 and opined that the deceased died on account of burn injury sustained to her. Hence, the aforesaid evidence is unimpeachable and establishes the fact that the death of the deceased taken place within 7 years of her marriage on account of her burning in her matrimonial house. 7. Now the question is that whether the deceased was subjected to cruelty soon before her death in connection with demand of dowry by the appellants. The learned trial Court has relied on the statement of Dr. Surendra Dubey (PW-11) who recorded the dying declaration Ex.P-16 and also partly relied on dying declaration Ex.P-17 recorded by Executive Magistrate Smt. Meena Pal (PW-13) and also placed reliance on the statements of Raghunath (PW-5) and Kalawati Bai (PW-6). But on careful scanning of the aforesaid statements of prosecution witnesses and dying declarations Ex.P-16 and Ex.P-17, it is found that there is no iota or material to indicate that soon before her death the deceased was subjected to cruelty in connection with demand of dowry. There is general averment with regard to demand of dowry after two years of the marriage and general averment with regard to harassment without disclosing the date or period where such harassment was taken place and that why the learned trial Court has not given any finding on the aforesaid point but the learned trial Court has ignored the aforesaid infirmity without considering it as a essential ingredient of the offence. In such circumstance, presumption under section 113-B of Evidence Act does not attract, when the prosecution has not proved necessary ingredient of the presumption. In the aforesaid circumstance, there is no hesitation to hold that the prosecution has failed to establish the necessary ingredient of the offence of dowry death. Accordingly, the finding of trial Court with regard to conviction of the appellants under 304-B of Indian Penal Code can’t be upheld. 8. So far as the appellants’ conviction under section 498-A of Indian Penal Code is concerned, it is also not sustainable. Accordingly, the finding of trial Court with regard to conviction of the appellants under 304-B of Indian Penal Code can’t be upheld. 8. So far as the appellants’ conviction under section 498-A of Indian Penal Code is concerned, it is also not sustainable. Raghunath (PW-5) father of the deceased has categorically admitted that the appellant No. 2 and 3 were residing separately from before 1 ½ months of the incident and there is no specific allegation against them with regard to demand of dowry and harassment. Apart from it, in this regard there is no direct evidence, there is hearsay evidence of Raghunath (PW-5) and Kalawati Bai (PW-6) and dying declarations Ex.P-16 and Ex.P-17, which is not admissible under section 32 of the Evidence Act purely to prove the ingredient of the offence punishable under section 498-A of Indian Penal Code as when the question of death of the deceased ceased, the evidence in the nature of dying declaration can’t be considered under section 32 of the Evidence Act for rest of the offence. 9. In other words, when appellants accused are acquitted under section 304-B of the 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 it 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. 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). 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. 10. 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. 10. 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. 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. 11. 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 . 12. In view of the aforesaid propositions of law, the evidence in the nature of dying declaration came under the purview of hearsay evidence and on the basis of that evidence, the ingredient of offence under section 498-A of Indian Penal Code cannot be proved and the same remain unestablished. 13. In view of the aforesaid discussion, the findings of the learned trial Court are not sustainable as the prosecution has failed to prove the charges beyond reasonable doubt. Hence, this appeal is allowed and the impugned judgment of conviction and order of sentence passed against the appellants No. 1 to 3 are hereby set-aside. 13. In view of the aforesaid discussion, the findings of the learned trial Court are not sustainable as the prosecution has failed to prove the charges beyond reasonable doubt. Hence, this appeal is allowed and the impugned judgment of conviction and order of sentence passed against the appellants No. 1 to 3 are hereby set-aside. Appellants No. 1 to 3 are acquitted of the charges under section 304-B and 498-A of Indian Penal Code. Appellants No. 1 to 3 are on bail. Their bail bonds are discharged. Fine amount, if any deposited by the appellants, the same be returned back to them. 14. A copy of this judgment be sent to the trial Court for information and compliance.