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2019 DIGILAW 540 (MP)

VISHNU s/o KAILASH BHARTI v. STATE OF M. P.

2019-07-24

S.C.SHARMA, VIVEK RUSIA

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JUDGMENT : VIVEK RUSIA, J. 1. This judgment shall also govern disposal of Criminal Appeal No. 939/2010 and Criminal Appeal No. 940/2010 as all these three appeals arise out of a common judgment. 2. Appellants have filed the aforesaid three appeals being aggrieved by the judgment dated 8-7-2010 passed by IInd Additional Sessions Judge, Mhow, District Indore in Sessions Trial No. 544/08, whereby they have been convicted under sections 498-A, 304-B and 302 of the Indian Penal Code and sentenced to undergo RI for 10-10 years with fine of Rs. 2,500-2,500/-, in default of payment of fine further RI for 2-2 years for conviction under section 304-B, Indian Penal Code and life imprisonment with fine of Rs. 5000-5000/- in default of payment of fine further RI for 3-3 years for conviction under section 302 of the Indian Penal Code, however, no sentence has been imposed under section 498-A of the Indian Penal Code as same is included in the sentence awarded under section 304-B of the Indian Penal Code. 3. Facts of the case in short are that on 3-3-2008 at 05.30 P.M Kalu (PW/8) gave an information in the Police Station Manpur that he got the information about a fire accident in the house of Vishnu Goswami, Gram Khedi Sihod and immediately he reached to the spot and found that villagers were trying to extinguish the fire. In the incident, wife of Vishnu Goswami viz. Santoshbai, (sic : Shyama Bai) aged about 28 years, his daughter Kumkum, aged about 1½ years, who were inside the house, died due to burn injuries. The aforesaid information was recorded in Marg Nos. 07, 08/08 under section 174 of the Cr.P.C. Murad Khan, ASI (PW/17) reached the spot and prepared the spot map Ex.P/11 and recorded the statement of Kalu. The dead bodies were recovered and sent for postmortem. As per the postmortem report Ex.P/29, both the deaths took place due to cardiac respiratory failure as a result of extensive burn injuries within 24 hours. The FIR was registered under Crime No. 97/08 on 15-3-2008 under sections 498-A and 304-B of the Indian Penal Code against all the appellants viz. Vishnu-husband, Kailash Bharti-father-in-law, Devkanya-mother-in-law and Jitendra-the brother-in-law of the deceased Santoshbai. The seized articles were sent to FSL vide Ex.P/23 and P/24 and thereafter report was submitted vide Ex.P/26. As per the FSL report, kerosene was found over hair and bangles. Vishnu-husband, Kailash Bharti-father-in-law, Devkanya-mother-in-law and Jitendra-the brother-in-law of the deceased Santoshbai. The seized articles were sent to FSL vide Ex.P/23 and P/24 and thereafter report was submitted vide Ex.P/26. As per the FSL report, kerosene was found over hair and bangles. The Police seized ration card of accused Vishnu in which name of Santoshbai and two daughters viz. Shivani and Kumkum are mentioned. The Police also recovered a copy of the FIR registered on 10-5-2005 under section 498-A of the Indian Penal Code against the present appellants on a complaint made by deceased Santoshbai and the copy of the judgment dated 25-1-2006 by which all the accused/appellants were acquitted on the basis of a compromise arrived at with the complainant. 4. After completing the investigation, Challan was filed and the trial was committed to the Court of Session. Thereafter, learned Sessions Judge framed charges under sections 498-A, 304-B and 302 of the Indian Penal Code against all the four accused/appellants. All the appellants abjured the guilt and prayed for trial. 5. Prosecution examined as many as 25 witnesses and the appellants examined two defence witnesses viz. Shekhar (DW/1) and Pratap Singh (DW/2). Learned Sessions Court framed four issues for consideration - firstly whether Santosh bai died within 7 years of her marriage otherwise than under normal circumstances, secondly whether the behaviour of appellants towards deceased Santosh bai was cruel and harsh for demand of dowry, thirdly whether the death of Santosh bai was a ‘dowry death’ and fourthly whether death of Santosh bai and her daughter Kumkum were homicidal in nature and if yes, then who were responsible? After appreciating evidence came on record, learned Sessions Judge came to the conclusion that the deceased Santosh bai, wife of Vishnu, died within 7 years of her marriage otherwise than under normal circumstances. Santosh bai and Kumkum died due to cardiac respiratory failure and suffocation. While answering issues No. 2, 3 and 4, learned additional Sessions Judge has held that all the circumstances clearly establishes that the appellants have committed the offence under sections 302, 498-A and 304-B of the Indian Penal Code. So far the death of Kumkum is concerned, it amounts to murder by appellants under section 302 of the Indian Penal Code and convicted and sentenced all the appellants as mentioned hereinabove. Being aggrieved by the aforesaid judgment and order, the appellants have preferred the present appeals. 6. So far the death of Kumkum is concerned, it amounts to murder by appellants under section 302 of the Indian Penal Code and convicted and sentenced all the appellants as mentioned hereinabove. Being aggrieved by the aforesaid judgment and order, the appellants have preferred the present appeals. 6. We have heard Shri Amit Singh Sisodiya, learned counsel for the appellants and Shri Pawan Sharma, learned Public Prosecutor for the respondent/State. 7. Shri Sisodiya, learned counsel appearing for the appellants argued before us that learned trial Court has wrongly convicted the appellants under section 498-A and 304-B of the Indian Penal Code in absence of any evidence to the effect that there was cruelty for demand of dowry ‘soon before’ the death of Santoshbai. She died due to fire accident in kitchen while preparing food. At the time of incident she was in the kitchen along with her minor daughter. It has also came on record that on that day all the appellants were not present in the house as they all were attending a marriage ceremony. The prosecution did not examine any local residents who were present at the time of incident. All the witnesses on whose evidence the trial Court has convicted the appellants are related and interested witnesses. There was no specific allegation in respect of cruelty and demand of dowry soon before the death. Earlier also, a false report was lodged against the appellants but later on the deceased herself admitted before the Court that there was no demand of dowry by the appellants, hence they all were acquitted. The allegations made against the appellants are omnibus in nature and no specific allegation is attributed against each of the appellants. They all have been made accused and convicted because they are all close relatives of deceased. There are lot of omissions and contradictions in the statements of the witnesses which have been ignored by the learned trial Court. It is further emphasised by Mr. Sisodia that the deceased was eccentric and used to quarrel with the appellants. She had been brought up by her maternal uncle Dinesh Puri (PW/10) and he performed her marriage with Vishnu, therefore, there was no question of demand of dowry from the parents of the deceased, hence all the appellants are liable to the acquitted. 8. Shri Pawan Sharma, learned Public Prosecutor has argued in support of the impugned judgment. She had been brought up by her maternal uncle Dinesh Puri (PW/10) and he performed her marriage with Vishnu, therefore, there was no question of demand of dowry from the parents of the deceased, hence all the appellants are liable to the acquitted. 8. Shri Pawan Sharma, learned Public Prosecutor has argued in support of the impugned judgment. He submitted that the deceased Santosh bai died within 7 years of her marriage otherwise than under normal circumstances, therefore, as per the presumption under section 304-B, Indian Penal Code read with section 113-B of the Evidence Act, her death squarely falls within the ambit of “dowry death.” She died in her matrimonial house and as per the postmortem report and the doctor’s evidence she died due to burn injuries and its complications which is a death otherwise than under normal circumstances. Earlier also, she made allegation about demand of dowry against the appellants and FIR was also registered but the appellants were acquitted on the basis of compromise. Had she committed suicide, Police would have recovered suicide note. If the deceased was suffering from mental ailment, the appellants would have got treated her and they should not have left her alone in the house. Learned trial Court has duly appreciated the evidence came on record and rightly convicted the appellants under sections 498-A, 304-B and 302 of the Indian Penal Code, there is no scope for interference and all the appeals are liable to be dismissed. 9. We have duly considered the rival submissions of learned counsel and perused the record. 10. As per the Marg report, there was flames seen in the house of Vishnu Bharti and at that time deceased Santosh bai along with her daughter was inside the house and all the villagers were trying to extinguish the fire. As per the spot map, the size of the room in which the incident had occurred is 8 ft. x 9 ft. constructed with bricks and tin shed. A traditional mud stove was also found in the house. The house of appellant Kailash is 200 ft. away from the place of incident. As per the report and statement of appellant Kailash, the entire room had burnt in fire. 11. x 9 ft. constructed with bricks and tin shed. A traditional mud stove was also found in the house. The house of appellant Kailash is 200 ft. away from the place of incident. As per the report and statement of appellant Kailash, the entire room had burnt in fire. 11. The prosecution examined Shambhu Bharti i.e. father of the deceased as PW/1, who stated that two years ago from the date of her death, deceased told him about the demand of dowry by appellants and before the death she used to visit her maternal uncle (Mama) Dinesh Puri (PW/10). Her marriage was got solemnized by Dinesh Puri (PW/10). She started living with him at the age of one and half years. He also admitted in the Police statement that he did not disclose that there was a demand of money from the appellants. Dilip Bharti, brother of the deceased, was examined as PW/2, who has also made general allegations against all of the appellants in respect of demand of dowry. He admitted that earlier, the FIR was also lodged by her uncle Dinesh Puri (PW/10). Shivkanya Bharti (PW/3), mother of the deceased, stated that her daughter used to quarrel on petty issues with her in-laws but she used to complaint this to her uncle and not to her. It is clear from the aforesaid statements of Shambhu Bharti (PW/1), Dilip Bharti (PW/2) and Shivkanya Bharti (PW/3), who are real father, brother and mother of the deceased that the deceased Shyama Bai was very close to her maternal uncle Dinesh Puri (PW/10) who brought-up her since 1½ year of her age and thereafter he got solemnized her marriage with the appellant Vishnu and after her marriage she used to visit his house and these witnesses had no knowledge about the demand of dowry and cruelty by the appellants. They all have made very general allegations against the appellants and they had no knowledge about any specific incident. 12. The prosecution examined Dinesh Puri, maternal uncle of the deceased as PW/10, who was not even aware about the names of father-in-law and brother-in-law of the deceased. According to him, the deceased telephoned him and demanded money for opening a medical shop by in-laws but he refused to give money. 12. The prosecution examined Dinesh Puri, maternal uncle of the deceased as PW/10, who was not even aware about the names of father-in-law and brother-in-law of the deceased. According to him, the deceased telephoned him and demanded money for opening a medical shop by in-laws but he refused to give money. He also stated that after receipt of the information about the death, first he went to the house of his sister and thereafter on the next day they all visited the hospital. Hemabai PW/11 in her cross-examination has also admitted that deceased used to quarrel with her in-laws. 13. Prosecution examined Dr. R. S. Tomar (PW/18) who conducted the postmortem and according to him there was no smell of kerosene from both dead bodies and there is a possibility of the death due to fire accident in the house. 14. It is not the case of the prosecution that on the fateful day of the accident the appellants were present on the spot. The case against the appellant has been made because of unnatural death of the shyama bai and her daughter. It is true that the Shyama Bai died within 7 years of her marriage and death was other than natural circumstances. The only requirement to attract section 498-A, Indian Penal Code (sic 304-B) of Indian Penal Code is that that Shyama Bai was subjected to the cruelty or harassment by appellants in connection with any demand of dowry. 15. The Supreme Court of India in case of Bansi Lal vs. State of Haryana reported in (2011) 11 SCC 359 has held that “while considering the case under 498-A, Indian Penal Code (sic 304-B) of Indian Penal Code, cruelty has to be proved during the close proximity of time of death and it should be continuous and such continuous harassment, physically or mental by the accused make the life of the deceased miserable which may force her to commit suicide”. In the instant case in the FIR there is no allegation about demand of dowry soon before the date of accident. 16. In the Police Station Manpur a ‘Sudden death information’ Exb.P/7 was received on 3-3-2008 at 17:30 about flames in the house of Vishnu Gosai and local residents were extinguishing the fire and inside the house Santosh bai and her daughter were there. 16. In the Police Station Manpur a ‘Sudden death information’ Exb.P/7 was received on 3-3-2008 at 17:30 about flames in the house of Vishnu Gosai and local residents were extinguishing the fire and inside the house Santosh bai and her daughter were there. The police reached to the scene of crime at 18:55 and filled the crime details form i.e. Exb. P/11. As per report house is very small (8 X 9 fit.) and Mud stove and bad were inside. Police recorded the statement of kalu (PW/12) in which he disclosed that Santosh bai had dispute with her husband, father-in-law and mother-in-law 3 years ago which she reported to the police and case was registered against them in court. Deceased Shyama Bai came to house of husband Vishnu few days back. On the basis of this preliminary investigation FIR was registered in police station on 15-3-2008 against all the appellants under section 498-A and 304-B of Indian Penal Code. Thereafter the police recorded statements of others relative of deceased Shyama Bai. 17. That (PW 10) Dinesh Puri in his police statement said that appellants have started harassing Shyama Bai after one and half years of marriage thereafter they all were acquitted in criminal case. That one and half year ago she delivered a baby girl and came back to the house of husband. There is no allegation about demand of dowry soon before death. In the court he has improved his statement that 3-4 days Shayma bai telephoned him and told about demand of money by the accused. These major contradictions in his statement have been ignored by the learned additional session Judge. Father, mother and brothers of the Shayma bai also did not disclose about cruelty or harassment by the appellants soon before the death. 18. The learned Session Judge has convicted the appellants on the basis of their previous implication under the charge of 498-A of Indian Penal Code that too three years ago. As per allegation in previous complaint the mother-in-law of Santosh bai was not happy with the standered of clothes sent by Dinesh Puri (Mama) in the marriage of her daughter. She tried to burn the clothes and Shyama bai poured herself with the kerosene and lodged the FIR. In the said complaint also there was no allegation of demand of dowry and harassment by the appellants, hence compromise was accepted and appellants were acquitted. She tried to burn the clothes and Shyama bai poured herself with the kerosene and lodged the FIR. In the said complaint also there was no allegation of demand of dowry and harassment by the appellants, hence compromise was accepted and appellants were acquitted. Hence there is absolutely no material about the cruelty or harassment was caused by the appellants soon before the death or persisted after the incident which took place in the years 2005. 19. The Apex Court in Surinder Singh vs. State of Haryana reported in (2014) 4 SCC 129 has held as under : “17. Thus, the words “soon before” appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B, Indian Penal Code. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words “soon before” is, therefore, important. The question is how “soon before”? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. -Therefore, “soon before” is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.” 20. Some instances which degrade her dignity may remain etched in her memory for a long time. -Therefore, “soon before” is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.” 20. In this connection we would like to refer another judgment passed in case of Kans Raj vs. State of Punjab reported in 2000 SCC (Cri) 935 wherein the Supreme Court of India has considered the term “soon before”. “15.... ‘Soon before’ is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term ‘soon before’ is not synonymous with the term ‘immediately before’ and is opposite of the expression ‘soon after’ as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be ‘soon before death’ if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.” 21. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.” 21. As per requirement of the section 304-B of Indian Penal Code the prosecution is required to establish that soon before death of Shyama Bai, she was subjected to cruelty by the appellants for any demand for dowry. 22. As per Post-mortem report and statements of Doctors kerosene was not found in the dead body of both the deceased and carbon particles were found in the windpipe and blood was black. As per Dr. R. S. Tomar’s (PW./19) opinion in cross-examination the blood gets black if death took place due to suffocation. That as per police statement of Shankar (Exb.D/6) [proved by I.O.PW/25] that he saw the flames in the mud house (Kachcha Ghar) of Kailsh Mali and villagers were trying to extinguish but they failed. According to Murad Khan (PW./17) who prepared the spot map (Mouka Panchnama) Exb.P/11 Kumkum was buried under Shyama bai at the scene of the incident, the spot was completely burnt. He enquired about cause of fire from villagers but they were not aware about any cause. The burnt pieces of sari were of synthetic or terrycot. Hence Shyama Bai and her daughter died due to cardiac respiration failure because of smoke inside the house. In the remote areas houses are constructed with low roof and without windows in it. In view of this appellants who were not present in the house at the time of incident cannot be held responsible for death of Shyama Bai and her daughter. We are of the considered opinion that they have wrongly been convicted under section 304-B, 498-A and 302 of Indian Penal Code by the trial court and they are entitled for acquittal. The prosecution has failed to prove all charges beyond reasonable doubt, hence all criminal appeals are hereby allowed. The judgment dated 8-7-2010 passed by IInd Additional Sessions Judge, Mhow, District Indore in Sessions Trial No. 544/08 is hereby set aside. The appellant Vishnu Bharti in Criminal Appeal No. 940/2010 is in jail. He be released forthwith, if not required in any other offence. The judgment dated 8-7-2010 passed by IInd Additional Sessions Judge, Mhow, District Indore in Sessions Trial No. 544/08 is hereby set aside. The appellant Vishnu Bharti in Criminal Appeal No. 940/2010 is in jail. He be released forthwith, if not required in any other offence. The other appellants are on bail and their bail bonds shall stand discharged. The original judgment be retained in Criminal Appeal No. 940/2010 and a copy thereof be placed in connected appeals.