Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 736 (MP)

Nahar Khan v. State of Madhya Pradesh

2018-08-29

VIVEK RUSIA

body2018
JUDGMENT : VIVEK RUSIA, J. 1. The appellants have filed the present appeal being aggrieved by judgment dated 28.11.1998 passed in Sessions Trial No.43/1998 by Second Additional Sessions Judge, Ratlam by which they have been convicted under Sections 304-B and 498-A of the IPC and sentenced to undergo 7 years' RI and 2 years' RI and fine of Rs. 500-00 respectively, with default stipulation. The sentences are directed to run concurrently. 2. As per the prosecution story on 05.10.1997 near about 5.30 PM an information was received at Police Station Tal, District Ratlam from Nathulal that a dead body of a lady wearing red Salwar and Kurti is floating in the Well. The information was registered as Merg No.34/97 in Rojnamcha Sanha 215. The information was given to the Sub Divisional Officer (Police) Vinit Kapoor (PW-13). They reached to the spot and recovered the dead body vide Panchnama (Ex.P/7). The dead body was identified by Mubarik and Jahoor Khan as Bhoori Bee, wife of Akram. Spot Map Ex.P/14 was prepared. The dead body was sent for postmortem examination. Dr. Leela Yadav (PW-11) and Dr. G.K.Swarnakar (PW-1) conducted the postmortem examination and submitted the report Ex.P/1. The Viscera was kept in a sealed cover and sent to the Forensic Lab. Since the deceased died within 7 years of marriage in an unnatural condition, therefore, an FIR (Ex.P/9) under Sections 409-A and 304-B of the IPC was registered against the accused persons on 29.10.1997. They were arrested on the same day i.e. 29.10.1997 vide Exs. P/3, P/4 and P/10 to P/12. After completing the usual investigation, the Challan was filed before the Judicial Magistrate, First Class, Alot and thereafter it was committed to the Sessions Court on 10.02.1998. The appellants pleaded not guilty and they were tried under Sections 498-A and 304-B of the IPC. 3. The appellant No.1 is father-in-law; appellant No.5 is mother-in-law; appellant No.2 is husband and appellant Nos.3 and 4 are brother-in-law and sister-in-law [Jeth and Jethani] of the deceased. The marriage of deceased Bhoori Bee and Akram (appellant No.2) took place approximately 2 years back. 4. In support of the criminal case, the prosecution examined Dr. G.K.Swarnakar as PW-1. According to him the cause of death was asphyxia and shock and death took place within 30 to 36 hours before commencing postmortem. The marriage of deceased Bhoori Bee and Akram (appellant No.2) took place approximately 2 years back. 4. In support of the criminal case, the prosecution examined Dr. G.K.Swarnakar as PW-1. According to him the cause of death was asphyxia and shock and death took place within 30 to 36 hours before commencing postmortem. To ascertain the exact cause of death, the Viscera was seized and liver was kept for d........... text. He has not found any external injury on the person of deceased. 5. Afsar was examined as PW-2 to prove the arrest memos (Exs.P/3 and P/4). In cross-examination he admitted that the accused were arrested within 2-3 hours of the recovery of the dead body. It means on 30.10.1997. The prosecution examine Munna Khan as PW-3 who is local resident. In cross-examination he stated that Mubarik had informed him that Bhoori Bee is missing since 10.00 in the night. Thereafter he came to know that the dead body was recovered from the Well. In cross-examination he also admitted that after the marriage they started living separately with other family members. 6. Ayyub Khan was examined as PW-4 who is a neighbour of the parents of the deceased. He deposed in the Court that in the function of Teeje (one month's before the death) deceased Bhoori Bee was telling his wife that inlaws are assaulting her and demanding the almirah, bed-box and few articles as dowry and her brother has said that he will give all these things after the Soyabeen crops. In crossexamination he stated that in the function there were 150 ladies were in the room and there was separate arrangement for gents in another room. He also stated that Bhoori Bee did not inform him the assault by in-laws. Jahida, sister-in-law (Nanad) of the deceased was examined as PW-5. In crossexamination she stated that her mother-in-law has disclosed the financial condition to the father-in-law of Bhoori Bee and he did not make any demand of dowry and at the time of marriage 1 bed, 1 Peti, utensils and clothes were given. Sugrabai, mother of the deceased, was examined as PW-7 and according to her after the marriage Bhoori Bee came to her house and made a complaint of demand of dowry by inlaws. Sugrabai, mother of the deceased, was examined as PW-7 and according to her after the marriage Bhoori Bee came to her house and made a complaint of demand of dowry by inlaws. Thereafter Hanif Khan i.e. Jeth came and took her and thereafter within one and half months she again came and she made a query about the demand of dowry and she disclosed that at the instance of Jeth, Jethani and mother-in-law, Akram assaults her and after 2-3 months again Nahar Khan came and took her with him without informing to other family members and next day she heard about the death of Bhoori Bee. In cross-examination she admitted that at the time of marriage she had given bed-box and there was no demand of dowry by the appellants. 7. Mubarik was examined as PW-8, who is brother of the deceased, has stated about the demand of dowry on an information given by Sugrabai. The prosecution examined Sitaram as PW-10; Dr. Leela Yadav as PW-11; Town Inspector Mahendrasingh as PW-12; DSP Vinit Kapoor as PW-13 and Dr. D.K.Satpati as PW-14. 8. All the accused persons in their statements before the Court have stated that they went to the police station for lodging report and they were arrested on the same day but the arrest was shown after 25 days and they also stated that in their Muslim Community there is no concept of dowry. They have never demanded the dowry. They are innocent and falsely been implicated. They used to go to the forest for water and answer to natural call and Bhoori Bee might have sleeped into the Well as an accident. 9. By judgment dated 28.11.1998 the learned Additional Sessions Judge has convicted all the appellants under Sections 304-B and 498-A of the IPC and sentenced them as stated above. Being aggrieved by the aforesaid judgment, the appellants have filed the present appeal before this Court. 10. By order dated 23.01.1999 this Court had suspended the sentence in respect of the appellant Nos.3 and 5 and rejected the application in respect of the appellant Nos.1, 2 and 4. Thereafter vide order dated 14.05.1999, the sentence of appellant No.4 Hanif Khan has also been suspended. Thereafter vide order dated 06.07.1999 the sentence of appellant No.1 Nahar Khan has also been suspended. Thereafter vide order dated 14.05.1999, the sentence of appellant No.4 Hanif Khan has also been suspended. Thereafter vide order dated 06.07.1999 the sentence of appellant No.1 Nahar Khan has also been suspended. Vide order dated 07.12.1999 appellant No.2 Akram Khan has also been released on bail by suspending the sentence. 11. Shri Sanjay Sharma, learned counsel appearing for the appellants argued that the prosecution has utterly failed to prove the demand of dowry by the appellants soon before the death of Bhoori Bee. The witnesses admitted in the evidence that there was no demand at the time of marriage and the demand of so called bed-box and utensils have already been fulfilled at the time of marriage. Therefore, the appellants have wrongly been convicted under Section 304-B of the IPC. He further submitted that there was no harassment or assault which is evident from the evidence of the doctor that no body injury was found. As per the evidence of the mother, brother and sister-in-law (Nanad) that the father-in-law took Bhoori Bee one day before and next day she was found missing from 10.00 in the night and thereafter her dead body was found. Therefore, within this short period there was no harassment to Bhoori Bee, hence there cannot be any conviction under Section 304-B of the IPC. The allegations against the fater-in-law; mother-in-law; brother-in-law and sister-in-law are very general in nature and as a trend they have been falsely implicated along with the husband. In support of his contention he has placed reliance over the judgments passed by the Apex Court in the case of Kamesh Panjiyar v/s State of Bihar, (2005) 2 SCC 388 ; Dhian Singh v/s State of Punjab, (2004) 7 SCC 759 and Dinesh v/s State of Haryana, (2014) 12 SCC 532 . He further submitted that the appellants have already undergone 1 year to 2 years of sentence and even if they are convicted under Section 498-A of the IPC in which the maximum punishment is 3 years. They are entitled for reduction of the period already undergone. 12. Shri Vishal Sanothiya, learned Government Advocate appearing for the Respondent/State submitted that all the witnesses have categorically stated that there was demand of dowry and due to non fulfillment of said demand the appellants used to harass Bhoori Bee, therefore, she committed suicide. The prosecution examined one independent witness Ayyub Khan (PW-4) also. 12. Shri Vishal Sanothiya, learned Government Advocate appearing for the Respondent/State submitted that all the witnesses have categorically stated that there was demand of dowry and due to non fulfillment of said demand the appellants used to harass Bhoori Bee, therefore, she committed suicide. The prosecution examined one independent witness Ayyub Khan (PW-4) also. Therefore, the learned Sessions Judge has rightly convicted the appellants under Sections 498-A and 304-B of the IPC and there is no scope of interference in this appeal and the same is liable to be dismissed. 13. The marriage of Akram Khan and Bhoori Bee took place before 2 years of the death is not under dispute. The dead body was recovered from the Well and she died due to asphyxia and shock is also not under dispute. Therefore, there is no need to appreciate the findings in respect of marriage and cause of death of Bhoori Bee. The only issue under consideration in this appeal is whether prosecutor has proved that the appellants at the time of marriage had demanded the dowry from her parents and whether after the marriage the appellants demanded the bedbox, almirah and utensils as a dowry from Bhoori Bee and due to non fulfillment of said dowry, she has committed suicide ? 14. The prosecution examined Sugrabai, mother of the deceased as PW-7 who stated that her daughter after the marriage came to Kumharkheda within a month and she told that the accused are demanding Godrej almirah, bed with box and other utensils. Thereafter Hanif Khan came to take her and she explained to him that the dowry which they wanted have already been given and Hanif Khan understood the same and took her daughter and after one and half months her daughter came to Kumharkheda and made a complaint that at the instance of sister-in-law (Jethani) and mother-in-law, Akram used to assault her. She lived their two and half months and Nahar Khan, her father-in-law, came there and took her and thereafter she received the information about the death of her daughter. According to Sugrabai the deceased came twice, first after one month after marriage and second time after one and half months. In cross-examination she admitted that at the time of marriage there was no demand of dowry of Godrej almirah, bed with box as the same have already been given at the time of marriage. According to Sugrabai the deceased came twice, first after one month after marriage and second time after one and half months. In cross-examination she admitted that at the time of marriage there was no demand of dowry of Godrej almirah, bed with box as the same have already been given at the time of marriage. She has also stated that she has never made complaint to the police about the demand of dowry and harassment to her daughter. Other witnesses, like brother and his wife, have stated against the accused only on the information given by PW-7. 15. None of the witnesses have stated that the appellants have directly demanded dowry from them at the time of marriage or after the marriage till the death of Bhoori Bee. According to them only Bhoori Bee used to complaint but despite that Bhoori Bee herself went along with fatherin-law Nahar Khan to her husband's house. 16. So far as Ayyub Khan (PW-7) who is said to be an independent witness heard about demand of dowry from Bhooribai in the function where 100-150 women are there. He has also admitted that there was separate arrangements for gents and ladies which is very common in Muslim Community and in cross-examination he himself admitted that Bhoori Bee did not tell him directly about causing assault by the in-laws. He has also admitted about that he is having closed proximity with the family of Bhoori Bee. Therefore, it cannot be believed that Bhoori Bee will give information to the wife of Ayyub Khan who are not very closed to her family. The allegations of demand of dowry are very general in nature. The demand of almirah and bed with box have already been given at the time of marriage. 17. In the case of Ramaiah Alias Rama v/s State of Karnataka, (2014) 9 SCC 365 in similar facts and circumstances has set-aside the conviction where demand was not made at the time of marriage and there was no demand by the appellant directly to the parents of the deceased. Para 17 to 21 of the judgment are reproduced below :- "17. With the aforesaid observations, we proceed to discuss the first specific charge under Section 498-A of the IPC relating to the demand of dowry. Para 17 to 21 of the judgment are reproduced below :- "17. With the aforesaid observations, we proceed to discuss the first specific charge under Section 498-A of the IPC relating to the demand of dowry. We have already stated the reasons which prevailed with the trial court in not accepting the prosecution version of demand of dowry by the appellant herein, as well as the reasons which influenced the High Court to take a contrary view. After going through the evidence of PW-1 to PW-3 as well as PW-4 to PW-6, we find that the trial court correctly appreciated and analysed the evidence of these witnesses. In the first instance, it needs to be recorded with due emphasis that none of the witnesses had made any specific allegation for the demand of the dowry in so far as the appellant is concerned. The prosecution also could not establish that any dowry articles were given at the time of marriage. On the contrary, it is accepted by these witnesses that the appellant had asked for the hand of Laxmi because of her beauty by which he was attracted. We are not suggesting that this reason, by itself, is sufficient to rule out the possibility of demand of dowry. At the same time, this circumstance when seen with all other attendant factors surfacing on the record of this case, makes it somewhat difficult to swallow the prosecution version that there would be a demand of dowry as a precondition for marriage. Other attendant circumstances also negate the theory of demand. PW-1 and PW-3 have themselves admitted that it is the accused persons who had incurred all the marriage expenses and also admitted that marriage was performed at the residence of the appellant. This would be because of the reason, as pleaded by the appellant in support of which the appellant led evidence as well, that the family members of Laxmi were poor persons and had not sufficient means to even incur the expenditure on the wedding of Laxmi. Even in respect of alleged demand of dowry, PW-1 Mariyappa stated that the socalled demand was by the father of the appellant and did not at all accuse the appellant in this behalf. To the same effect is the testimony of PW-2. 18. Even in respect of alleged demand of dowry, PW-1 Mariyappa stated that the socalled demand was by the father of the appellant and did not at all accuse the appellant in this behalf. To the same effect is the testimony of PW-2. 18. When the demand of dowry and giving of dowry at the time of marriage has not been proved, further version of the prosecution witnesses that there was a demand for payment of remaining amount of Rs. 3,000/- and harassment of Laxmi on that account, also becomes doubtful. It has come on record, and can be clearly discerned from the reading of the statements of the material witnesses viz. the family members of Laxmi, that during this short period of 6 months of the marriage, she had visited her matrimonial house 5-6 times. Pertinently, her visits were alongwith her husband. The couple had even stayed in the parental house of Laxmi for some days on few occasions. This indicates that the relationship of husband and wife was cordial. In this backdrop, evidence of PW-3, mother of the deceased Laxmi, assumes great significance, who has not even stated that her daughter was harassed for not bringing the alleged balance dowry amount. On the contrary, she accepted that her daughter was happy for first 3 months. So much so in her statement to the Police, she had not told the Police about living peaceful life only for 3 months. She did not tell the Police about giving of dowry of Rs. 2,000/- and demand of balance amount coupled with harassment because of death. (sic dowry). 19. In addition to the aforesaid material aspects which are highlighted from the evidence of the prosecution witnesses, most important feature which is accepted by these witnesses is that in so far as the appellant individually is concerned, there was no demand of dowry by him. In the absence of any particular allegation against the appellant in this behalf, would be improper to convict the appellant under Section 498-A IPC. 20. We find that the High Court has ignored the aforesaid features which are elaborately discussed in the judgment of the trial court, culling from the depositions of the prosecution witnesses. In the absence of any particular allegation against the appellant in this behalf, would be improper to convict the appellant under Section 498-A IPC. 20. We find that the High Court has ignored the aforesaid features which are elaborately discussed in the judgment of the trial court, culling from the depositions of the prosecution witnesses. The High Court, while accepting the version of the prosecution on this aspect, namely, Laxmi was harassed and humiliated because of demand of dowry made by the appellant, has embarked on the discussion which is general and non-specific in nature. Even if there is little evidence, that is too infinitesimal to convict the appellant, more so when that is not only self contradictory but also surrounded by other weighty circumstances that go in favour of the accused. Once we find that the demand of dowry and harassment on that account is not proved beyond reasonable doubt, question of invocation of Section 113 Evidence Act would not arise. We feel that the High Court has been totally influenced by the fact that Laxmi had died within 6 months of her marriage and it was an unnatural death. No doubt, it was so. But only for this reason, the High Court could not have convicted the appellant by finding him guilty of offence under Section 304-B of IPC as well by primarily relying upon the provisions of Section 113-B of the Evidence Act. 21. We are conscious of the fact that it was an unfortunate demise of Laxmi who died within 6 months of the marriage. However, at the same time, whether her death was accidental as claimed by the defence or it was a suicide committed by Laxmi, is not clearly established. Had the allegations of demand of dowry and harassment of Laxmi were established thereby making it an offence under Section 498-A of IPC, things would not have been different. However, when we do not find dowry demand and harassment of Laxmi to be established, the inferences drawn by the High Court taking the aid of Section 113-B of the Evidence Act also deserve to be discarded. However, when we do not find dowry demand and harassment of Laxmi to be established, the inferences drawn by the High Court taking the aid of Section 113-B of the Evidence Act also deserve to be discarded. Section 113-B of the Evidence Act reads as under : "113-B. Presumption as to dowry death :- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death." A plain reading of the aforesaid provision would demonstrate that to attract the presumption as to dowry death stated in the aforesaid provision, it is necessary to show that soon before her death, she had been subjected by such persons to cruelty or harassment for, or in connection with, any demand for dowry. When this essential ingredient has not been established in the present case, the question of drawing any presumption by invoking of the aforesaid provision would not arise. " 18. One of the important fact in this case is that Bhoori Bee committed suicide on 05.10.1997 and there is evidence came on record that accused were made to seat in the police station on the same day but the FIR was registered after one month against them and during this period they were in the police station. The deceased Bhoori Bee left the house of appellants at 10.00 in the night and they immediately informed this fact to her parents, mother and brother, that she is missing. Thereafter they came to village Tal and went to the police station. There they received the information about death of Bhoori Bee due to drowning and before this there was dispute between the appellants and brother and father of the deceased in respect of the missing of Bhoori Bee. 19. According to PW-9, S.M.Khan, Sub Divisional Officer (Police), he conducted the investigation of Merg from 08.10.1997 to 27.10.1997 and there was no enough evidence to implicate accused in the case. After obtaining the report dated 27.10.1997 from Bhopal he found the death by way of drowning in the water as unusual and within 7 years of the marriage then he registered an FIR. 20. After obtaining the report dated 27.10.1997 from Bhopal he found the death by way of drowning in the water as unusual and within 7 years of the marriage then he registered an FIR. 20. The learned Additional Sessions Judge has also found omissions and contradictions in the statements of the witnesses. Therefore, the prosecution has failed to prove the cruelty soon before the death and the demand of dowry and the appellants are entitled for benefit of doubt. 21. In the result, this appeal is allowed. The impugned judgment dated 28.11.1998 is hereby set-aside. The appellants are acquitted from the charge under Sections 304-B and 498-A of the IPC. The appellants are on bail. Their bail-bonds stand discharged. Fine amount, if deposited, be refunded to the appellants.