Madhya Pradesh High Court
Raju Sen And Anr. vs The State Of M.P. on 31 January, 2019
1 Cr.A.No.1154 of 2005
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Single Bench : Hon'ble Shri Rajeev Kumar Dubey, J.
Criminal Appeal No.1154/2005
Raju & Anr.
vs.
State of M.P.
--------------------------------------------------------------------------------------------
Shri Manish Datt, Senior Advocate with Shri Pawan Gujar, counsel for the
appellants.
Shri Brijendra Kushwaha, Panel Lawyer for the respondent/State.
--------------------------------------------------------------------------------------------
ORDER
Reserved on : 06.12.2018 Delivered on : 31.01.2019 This criminal appeal has been filed under Section 374 (2) of CrPC against the judgment dated 28.05.2005 passed by Vth Additional Sessions Judge, Sagar in Sessions Trial No.210/2004, whereby learned A.S.J. found appellants guilty for the offence punishable under Sections 304-B & 306 of IPC and sentenced them under section 304-B of IPC, which is graver one, to undergo R.I. for 10 years.
2. Brief facts of the case are that on 02.05.2004 Parasram Sen (PW/9) father of the appellant No.1 Raju and husband of the appellant No.2 Smt. Heera Bai lodged a report at Police Station Surkhi averring that one year back his son Raju's marriage was solemnized with Sangeeta, the daughter of Puran Sen, resident of village Jaisinagar. A month ago, he brought her to his house from Jaisinagar. On 01/05/2004 his son appellant Raju had gone to his aunt's (father's sister) house situated at the village Khurai. He slept outside of his Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33 2 Cr.A.No.1154 of 2005 house. His elder daughter in law Sukhavati was sleeping in the courtyard of the house and younger daughter in law Sangeeta in the room of the house. In the morning at 6 AM when Sangeeta did not open the door, he peeped into the room from window and saw that Sangeeta was lying dead on the floor of the room in a burnt state. On that Head Constable Jagdish Prasad, (PW/2) registered inquest No.27/2004 (Ex.P/4) under Section 174 of Cr.P.C. which was inquired by Sub-Inspector Avnish Singh (PW/15). During the enquiry, he went to spot and prepared spot map (Ex.P/7) and also seized pieces of broken bangles, burnt clothes and a cane of kerosene oil from the spot and prepared seizure memo (Ex.P/1). D.S.Tomar Naib Tehsildar (PW/16) prepared inquest report of the dead body of the deceased (Ex.P/3). Thereafter Avnish Singh (PW/5) sent the dead body of Sangeeta to District Hospital Sagar for postmortem where Dr.A.K.Saraf (PW/13) conducted the postmortem of the dead body of the deceased and gave the postmortem report (Ex.P/12) to the effect that Sangeeta died due to antemortem burn injuries. Further investigation was conducted by H.S Dadoria (PW/10). He recorded the statements of Sunita Sen (PW/4), Aunt of the deceased, Purushottam Lal Sen (PW/5) uncle of the deceased, Pooran Lal (PW/6) father of the deceased, Seema Sen (PW/8) sister in law and Kashiram Sen (PW/7), during inquiry it was found that the marriage of Sangeeta was solemnized with appellant Raju on 28.06.2003. After marriage Sangeeta lived with the appellant Raju, her husband; appellant Heera Bai, mother-in-law and other family members but behaviour of the appellants and their family members was not good with Sangeeta. They demanded one chain, motorcycle and Rs.20000/- as dowry and used to harass her due to which Sangeeta committed suicide by setting herself ablaze after pouring kerosene oil on 02.05.2004. On that police registered Crime No.218/2004 (Ex.P/8) for the offence punishable under Sections 304-B, 498-A, 34 of IPC and after investigation police filed charge sheet against the appellants before JMFC, Sagar who committed the case to the Court of Sessions on which S.T. No.210/2004 was registered.
3. Learned Vth Additional Sessions Judge framed the charge against the appellants for the offence punishable under Section 304-B in alternative 302 of IPC and tried the case. The appellants abjured their guilt and took the defence that they were innocent and have falsely been implicated in the crime. However Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33 3 Cr.A.No.1154 of 2005 after trial learned A.S.J. acquitted the appellants from the charge of Section 302 of IPC but found the appellants guilty for the offence punishable under Section 304-B of the IPC & 306 IPC (in place of charge of 302 of IPC) and sentenced them as aforesaid. Being aggrieved from that judgment, appellants filed this criminal appeal.
4. Learned counsel for the appellants submitted that there is no evidence on record to show that soon before her death appellants committed cruelty with the deceased. Although prosecution produced Purushottam Lal Sen (PW/5), Pooran Lal (PW/6), Kashiram Sen (PW/7) and Seema (PW/8) to prove the fact that appellants demanded dowry and used to harass deceased Sangeeta but in this regard their statements are not believable. There are many contradictions in their statements. Purushottam Lal Sen (PW/5) did not depose against the appellants. Learned Trial Court only on the basis of assumption that deceased died within eleven months of her marriage found appellants guilty for the aforesaid offence which cannot be said to be proper.
5. On the other hand, learned counsel for the State submitted that from the prosecution evidence guilt of the appellants is clearly proved so learned Trial Court did not commit any mistake in finding the appellants guilty for the aforesaid offence.
6. This court has gone through the record and argument put forth by the learned counsels of both the parties. It is undisputed that the appellant No.1 Raju is the husband of the deceased and appellant No.2 Heera Bai is the mother in law of the deceased. It is also undisputed that the marriage of deceased Sangeeta was solemnized with appellant Raju on 28.06.2003 and she died due to burn injuries in the intervening night of 01-02/05/2004 in her matrimonial house.
7. As regard to the fact that whether Sangeeta committed suicide, although earlier the trial court had also framed charged against the appellants for the offence punishable under section 302 of IPC that they murdered Sangeeta, the prosecution witnesses Sunita Sen (PW/4), Aunt of the deceased, Purushottam Lal Sen (PW/5) uncle of the deceased, Pooran Lal (PW/6) father of the deceased, Seema Sen (PW/8) sister in law, Kashiram (PW/7), also deposed that considering the situation of the room (spot) where Sangeeta's dead body was Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33 4 Cr.A.No.1154 of 2005 lying, it appeared that Sangeeta was killed first and after that her body was brought and put in the room, but trial court after appreciating all the evidence produced by the prosecution and especially the fact that in the inquest report (Ex.P/3) of the deceased Sangeeta prepared by the Executive Magistrate D.S.Tomar (PW/16) it is mentioned that when he (D.S.Tomar) reached the spot, he found that the room where sangeeta's dead body was lying was bolted from inside and that he got the door opened by breaking the chain of the door, father of the deceased Puran Sen (PW/6) also admitted that when he reached the appellant's house the door of the room in which Sangeeta's dead body was lying was closed from inside and the door was broken by the help of iron rod (sabbal), learned trial court reached the conclusion that in the intervening night of 01-02/05/2004 deceased Sangeeta committed suicide by setting herself ablaze after pouring kerosene oil at her matrimonial house. There is no discrepancy in his finding in this regard. Dr. A.K. Saraf (PW/13) who conducted the autopsy of the dead body of deceased Sangeeta clearly stated that Sangeeta died due to asphyxia which was caused due to antemortem burn injuries and its complication. Although, he stated in his cross-examination that the burn injuries sustained by deceased Sangeeta could be caused due to accident but there is no evidence on record to show that deceased Sangeeta sustained that burn injuries in an accident. Parasram (PW/9), the father of the appellant No.1 Raju and husband of the appellant No.2 Smt. Heera Bai who lodged the merg intimation report clearly stated he had lodged the merg intimation report in which it was clearly mentioned that on 01/05/2004, in the night Sangeeta slept in the room. In the morning, he found Sangeeta lying dead on the floor of that room and the room was closed from inside. Avnish Singh (PW/15) also deposed that on receiving information he went to the spot and prepared spot map (Ex.P/7) and also seized pieces of broken bangles, burnt clothes, half burnt matchstick and a cane of kerosene oil and prepared seizure memo (Ex.P/1). Even appellants also gave suggestion to Sunita Sen (PW/4) in her cross-examination, that Sangeeta committed suicide so there is no reason to consider the trial court's findings wrong. From the prosecution evidence it was clearly proved that in the intervening night of 01-02/05/2004 Sangeeta committed suicide by setting herself ablaze after pouring kerosene oil in her matrimonial house situated at village Surkhi District Sagar and she died within 1 year of her marriage.
Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33 5 Cr.A.No.1154 of 20058. On the point that soon before the death Sangeeta was subjected to cruelty or harassment by her husband appellant Raju and her mother in law Heera Bai for, or in connection with, any demand for dowry or they abeted her to commit suicide, Sunita Sen (PW/4) aunt of the deceased stated that the mother of the deceased Sangeeta had died in her childhood and she used to live with her. The marriage of Sangeeta was solemnized with appellant Raju on 28.06.2003. In the marriage, they had given goods according to their status. For the first time after marriage, when Sangeeta came to her parent's house, she told her that appellant Raju had assaulted her. Second time Sangeeta went to her matrimonial house in the month of Ashwin (Kuwar) and again came to her parents house at Sankranti festival. When Sangeeta came from her matrimonial house at the festival of Sankranti, she stayed with her for a night. At that time she told that her husband (appellant No.1 Raju), mother-in-law (appellant No.2) and sister in law (jethani) harassed her. They were demanding chain, ring and motorcycles. But they did not fulfil the demand of appellants and sent Sangeeta to her matrimonial house. Thereafter, on the eve of akti when we went to take Sangeeta, then Sangeeta's in-laws did not send her. Sangeeta told her on phone that appellants and her sister in law (Jethani) used to harass her. Before her death Sangeeta also told her on phone that she had not had anything for the past two days..
9. Pooran Sen (PW/6) father of the deceased deposed that the marriage of Sangeeta was solemnized with appellant No.1 Raju on 28.06.2003. After marriage Sangeeta came to his house only twice. When Sangeeta came to his house, she told his daughter-in-law Seema (PW/8) and aunt Sunita Bai (PW/4)) that appellants were demanding motorcycle and also assaulted her and used to harass her who in turn informed him about these facts. When his son Jagdish went to Sangeeta's matrimonial house to take her, appellants demanded Rs.20,000/- from him. Thereafter in the month Chaitra (Beginning from March 22 / 21) he sent Sangeeta to her matrimonial house with her father-in- law. A month later, the news came that Sangeeta had died due to burn injury.
10. Seema (PW/8) wife of Sangeeta's brother Jagdish deposed that the marriage of Sangeeta was solemnized with the appellant Raju on 28.06.2003. At that time her father in law gave dowry to the appellants according to his status. After marriage Sangeeta only came twice to her parental house. At that Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33 6 Cr.A.No.1154 of 2005 time Sangeeta told her that husband Raju, mother-in-law, brother-in-law (jeth) and sister-in-law (jethani) used to harass her, they asked her to bring one gold chain, one ring and Rs.20000/- from her parents and due to non fulfillment of that demand, they assaulted her and harassed her. Sangeeta also had told her that if they did not get dowry, they would burnt her.
11. Kashiram (PW/7) Seema' father deposed that on 25/03/2004 when he was going to Ramgir, at bus stand, he met appellant Raju and asked him to get him a motorcycle, chain, ring and Rs.20000 from Sangeeta's father. Raju took him to his house where all his family members including Ashish brother of appellant Raju and his wife also also told him to tell Sangeeta's father to give them a ring, chain, motorcycle and Rs.20000.
12. But regarding harassment of the deceased Sangeeta by the appellants there are many contradictions and omissions in the statements of above mentioned prosecution witnesses. Sunita Sen (PW/4) in her cross examination admitted that there was no demand for dowry at the time of marriage. The wedding was solemnized in a healthy atmosphere. After marriage, Sangeeta came to her parental house peacefully twice. Pooran Sen (PW/6) also in his cross examination admitted that at the time of marriage there was no demand of dowry. After the marriage, for the first time his daughter had lived in her maternal house for 6-7 days, at that time she lived their happily after which they took Sangeeta back and then again sent her to her maternal house in the month of Ashwin (Beginning from September 23). At that time Sangeeta had stayed in her matrimonial house for one month, after which his children had brought Sangeeta back and again sent her to her in-laws house in the month of Chaitra at the time of Navdurga puja. Seema (PW/8) also in her cross examination admitted that there was no demand for dowry at the time of marriage. The wedding was solemnized in a healthy atmosphere. After marriage, deceased Sangeeta went to her matrimonial house only twice and on both the occasions went her matrimonial house without any dispute.
13. So from the cross examination of these prosecution witnesses, it appears that the marriage of the deceased Sangeeta was solemnized with the appellant No.1 Raju on 28.06.2003 and after marriage Sangeeta lived with the appellants and his family members only for a week. At that time she lived there happily. Thereafter she came back to her parental house and next time she went to her Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33 7 Cr.A.No.1154 of 2005 matrimonial house in the month of Ashwin (kuwar which generally begins from September 23). At that time Sangeeta had stayed in her matrimonial house only for one month, after which she again came back to her parental house and for the third time she went to her matrimonial house in the month of Chaitra (which generally begins from March 22 / 21) at Nav Durga Pooja (Which comes in the month of april) and committed suicide on 01-02/05/2004 which shows that after marriage Sangeeta lived at her matrimonial house for hardly about 2-1/2 months. At the time of marriage there was no demand of dowry and for the first two times Sangeeta came back from her matrimonial house happily as admitted by Sunita Sen (PW/4) and Seema (PW/8).
14. So the statement of Sunita Sen (PW/4) that for the first time when Sangeeta came to her matrimonial house, she had told her that appellant Raju assaulted her becomes false. Likewise Sunita Sen (PW/4) deposed that for the second time when Sangeeta came back from her matrimonial house, she had told her that appellant Raju, Heera Bai and her jethani (sister-in-law) harassed her and demanded one ring, one chain and motorcycle, while in her case diary statement (Ex.D/1) it is not mentioned that apart from the bike appellants also demanded chain and ring from Sangeeta. Sunita Sen (PW/4) also deposed that appellants used to harass deceased Sangeeta and she told that fact to her on phone. Before her death Sangeeta also told her on phone that she had not had anything for the past two days. But these facts are also not mentioned in her case diary statement (Ex.D/1). So in this regard her statement becomes afterthought which cannot be believed. Although Sunita Sen (PW/4) deposed that Sangeeta had told her that appellants used to harass her but she did not state in what manner did the appellants harass Sangeeta, So in this regard also her statement becomes doubtful.
15. Seema (PW/8) sister-in-law of the deceased Sangeeta deposed that Sangeeta told her that appellants Raju, Heera Bai and her father-in-law, sister- in-law (jethani) and brother-in-law (jeth) demanded one chain, ring and Rs.20,000/- and due to non-fulfillment of that demand they used to assault her and harass her. Sangeeta also said if they did not get dowry, they would burn her. But except the fact that appellants demanded bike from Sangeeta and used to harass her and assaulted her all other facts are not mentioned in her case Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33 8 Cr.A.No.1154 of 2005 diary statement (Ex.D/4). So in this regard her statement also becomes afterthought which can not be believed.
16. Regarding harassment of Sangeeta by the appellants also Seema (PW/8) deposed in her cross examination that after marriage Sangeeta had come to her parental house twice and Sangeeta had told her both the times that her mother- in-law loves her Jethani very much and her sister in law (Jethani) used to assault her and made her do all the household chores, due to which Sangeeta was upset and worried. Because sister in law (Jethani) had two children, she did not do any work of the house; Sangeeta did all the household chores. So her statement that appellants assaulted her and harassed her also becomes doubtful. On the contrary it appears that Sangeeta was upset and worried due to her sister in law (Jethani).
17. From the statement of Pooran Lal (PW/6) father of the deceased Sangeeta, it appears that he gave the statement regarding harassment of his daughter Sangeeta by the appellants on the information given to him by her daughter-in-law Seema (PW/8) and sister Sunita (PW/4). But as discussed above, the statements of Seema (PW/8) and sister Sunita Sen (PW/4) are already doubtful. So in this regard statement of Pooran Lal (PW/6) also do not appear to be trustworthy.
18. Kashiram (PW/7) only deposed that appellant Raju had asked him to get him a motorcycle, chain, ring and Rs. 20000 from Sangeeta's father. Although he also stated that on 25/03/2004 when appellant Raju took him to his house, all his family members including brother Ashish and his wife asked him to tell Sangeeta's father to give them a ring, chain, motorcycle and Rs.20000 but all these facts are also not mentioned in his case diary statement (Ex.D/3). So in this regard his statement also becomes afterthought. Even otherwise he did not depose that due to non fulfilment of their demand appellants used to assault or harass the deceased. So from his statement also it does not appear that appellants demanded dowry from deceased Sangeeta and harresd her.
19. So from the statements of above-mentioned prosecution witnesses, it cannot be assumed that appellants demanded dowry from Sangeeta and due to non-fulfilment of their demand they assaulted her and used to harass her.
Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33 9 Cr.A.No.1154 of 200520. Although it is proved from the evidence produced by prosecution that deceased Sangeeta committed suicide by set herself ablaze within one year of her marriage but only on that basis provisions of Section 113-A and Section 113-B of Indian Evidence Act are not attracted.
21. The Apex court in the case of Baijnath v. State of M.P., (2017) 1 SCC 101 held as under:-
"28. Section 113-B of the Act enjoins a statutory presumption as to dowry death in the following terms:
"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 has 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.
Explanation.-- For the purposes of this section, "dowry death"
shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
30. A conjoint reading of these three provisions, thus predicate the burden of the prosecution to unassailable substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113-B of the Act against the accused. Proof of cruelty or harassment by the husband or his relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent, coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.
22. The Apex Court in Pinakin Mahipatray Rawal v. State of Gujarat [(2013) 10 SCC 48 has examined the scope of Section 113-A of the Evidence Act, and held as under:-
Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33 10 Cr.A.No.1154 of 2005"26. Section 113-A only deals with a presumption which the court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution."
23. In the case of State of W.B. Vs. Orilal Jaiswal, 1994 (1) SCC 73, also the Supreme Court has held as under:-
"This Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that that accused charged of abetting the offence of suicide should be found guilty."
Which shows that for attracting presumption given under Section 113-B of the Evidence Act, it is to be proved that deceased was subjected to cruelty soon before her death and For attracting presumption given under Section 113- A of the Evidence Act, it is to be proved that deceased was committed suicide and the accused abetted the suicide. While in this case as discussed above that the statements of prosecution witnesses are not trustworthy regarding demand of dowry and harassment of the deceased by the appellants/Accused. So in the considered opinion of this Court, learned trial court committed mistake in finding appellants guilty for the offence punishable under section 304-B and 306 of IPC.
24. Hence this appeal is allowed. The impugned judgment and order of conviction and sentence of the appellants Raju and Heera Bai for the offence Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33 11 Cr.A.No.1154 of 2005 punishable under Section under Section 304-B and 306 of IPC is set aside and the appellants stands acquitted of the said charges. Appellant Heera Bai is on bail so his bail bond is discharged.
25. Appeal is disposed of accordingly.
(Rajeev Kumar Dubey) Judge (ra) Digitally signed by RANJEET AHIRWAL Date: 02/02/2019 10:59:33