Madhya Pradesh High Court
Santosh Kumar vs State Of Madhya Pradesh on 18 March, 1997
Equivalent citations: 1998CRILJ3081
Author: R.P. Gupta
Bench: R.P. Gupta
JUDGMENT R.P. Gupta, J.
1. This appeal is directed against the judgment dated 9th October, 1993 by the Additional Sessions Judge, Narsinghpur, whereby the appellant has been convicted for the offences under Section 304B, I.P.C. (Dowry death) and Section 306, I.P.C. (abetment to commit suicide). The appellant has been sentenced to R.I. for 7 years on both the counts separately. Both sentences to run concurrently.
2. The facts of the case are that the deceased Suman Bai and the appellant Santosh were married in April, 1990. The appellant was unemployed and was seeking employment. He expected help from his father-in-law in seeking employment or at least expected that his father-in-law gives him Rs. 20,000/- so that he may seek employment himself. This money could not be paid by Hemraj the father of Suman Bai although orally demands were made and letters were also written with some oblique reference. Though no direct demands were made but Suman Bai had to write to her father on 3rd October, 1992 beseeching him again and again not to decline or refuse demand of Rs. 20,000/- by her husband for his employment and at least to arrange half of the money in all circumstances, at the same time mentioning that she knew that her father with his resources, was apparently not in a position to arrange that sort of big money. The process continued; the demand could not be met. The accused also wrote a letter simply referring that he had not received any definite reply nor the father of Suman Bai had sent letter as he expected. He wanted to know with certainty what the father-in-law was doing or would do. This letter was written by the accused on 22-9-91. The father of Suman Bai sent his cousin Ravishankar to fetch the girl from the house of the husband. This 'uncle' is employed in Nagarpalika Udaipura, District Raipur. He went to the house of the accused to fetch Sumanbai on 5th October, 1992. The husband did not send her and asked for money and he said that she would not be sent, until the money is paid as he needed to get employment. About 13 days after, Sumanbai left the house at about 3.00 a.m. on 18-10-92 and jumped in a well; she was drowned and died. She was pregnant for about last 4 months at that time. When Sumanbai did not return home, some time i n the morning the husband went in search of her. In fact, the husband lodged a report at the police-station on 18-10-92 that Sumanbai had gone from the house at about 3.00 a.m. to ease herself saying that she was feeling much pain in her stomach. She had complained of stomach pain but he had asked her to take courage as no doctor could be available at that night time and that he would arrange for the doctor in the morning. When Sumanbai went to ease herself he did not accompany her and when she did not return he went in search of her alongwith other family member and finding her Chappal and Lota; he peeped in a well and tried with a bucket and found a cloth floating in the water; she was then pulled out, she had hardly some breath left and while she was taken to Vaidya, the Vaidya declared her dead. The parents of the girl were informed. The father of the girl lodged a written report to the police on 19-10-92 which was converted into a formal F. I. R. in which the father made grievance that his daughter was treated with cruelty and was harassed and beaten because he could not fulfil the demand of Rs. 20,000/- made by son-in-law and this demand was being made since the time of marriage.
3. The trial Court found that it has been established that the demand has been made for Rs. 20,000/- so that the money may help the appellant (accused) to seek some employment and that the girl was being harassed for non-fulfilment of that demand, so much so that when Ravishankar, the uncle of the girl, went to fetch her on 5-10-92, she complained that she was harassed and beaten for non-fulfilment of the demand and the accused refused to send her with her uncle till the money is paid.
4. The trial Court in reaching this conclusion relied upon the evidence of Hemraj (PW 7), Ravishankar (PW 9), the letters written by the deceased dated 3rd October, 1992 (Ex. P. 6) letter written by the accused hmself Ex. P. 8 dated 22-9-1992 to Hemraj, the FIR lodged by Hemraj at Police Station (Ex. P. 9) and the medical evidence on autopsy surgery, which shows that the death was due to drowning. So the trial Court found that it was a case of dowry death, that the deceased had been treated with cruelty and harassment; that she committed suicide on account of such treatment towards her, such cruelty was meted out to her because of the non-fulfilment of the demand of Rs. 20,000/- made by husband from the father of the deceased. Thus the trial Court found that these factors established the evidence of dowry death punishable under Section 304B, I.P.C. and also cruelty having been committed by the husband of the girl since after 4-6 months of the marriage which is proved beyond doubt so by presumption under Section 113A of the Evidence Act, the conduct of the husband amounts to abetment to commit suicide.
5. In appeal learned counsel for the appellant vehemently argued that the only evidence available on record is the statement of Ravishankar (PW 9). The learned counsel has taken me through the statement of this witness as also of Hemraj and FIR and also statements of other witnesses and urged that even father does not say that the girl ever had directly told him that she was being harassed. The mother of the girl had not appeared in the witness-box. She would have been the best witness to tell about the harassment. It is argued that in the letter Ex. P. 6, written on 3rd October, 1992 by the deceased, it is nowhere written that she was harassed and cruelly treated although there is a mention that Rs. 20,000/- was being urgently needed by the husband to get the employment and that therefore her father should not refuse the demand, although she knew that he has no resources to meet the same. But this does not raise any presumption that she was being treated with cruelty. Needing employment and seeking help therefor, is entirely different from treating with cruelty. Everybody seeks help from relatives for employment but that does not mean that he treats his wife with cruelty. It has also been argued that in fact Ex. P. 6 has not been proved to be written by the deceased as only the father says that he identified her writing, that it is not sufficient proof. This argument, however, I reject straightway without saying more than this that a father receives letters from her daughter in ordinary course of life and by the very nature of relationship he sees her writings from her childhood, he is the best person to say if a writing is of his child or not. The letter Ex. P. 6 bears the seal of Kareli Post Office, district Narsinghpur. It also bears the seal of the Post Office, Raisen, where the father was living. So there is no doubt of its genuineness. So this is properly proved letter.
6. Similarly, on the letter Ex. P. 8 written by the accused to Hemraj, the writing of the accused, was identified by the father of the deceased. The appellant/accused admitted to have written this letter. A letter written by one witness Komal Prasad (PW 4) Ex. P. 7 is also on record. This is also about the demand made by the accused from the parents of the girl deceased as conveyed by the deceased to this witness when he went to meet her to find her welfare but this witness is not supporting if any such thing was stated to him by the deceased. So the letter written by him to the father of deceased, although on record and containing the same narration of the deceased to him, cannot be taken as a proved fact as it is a previous statement of the witness which is not substantive evidence. The substantive evidence is that what he stated in the Court. The witness is hostile to the prosecution case and was corss-examined by the prosecution.
7. The question is whether the evidence which is on record in the form of statements of Ravishankar, uncle of the deceased, Hemraj father of the deceased and the two letters Ex. P. 6 and Ex. P. 8 and the FIR along with the medical evidence, are sufficient to prove that the girl was being treated with cruelty by the husband for non-fulfilment of the demand of dowry made by her husband.
8. There appears no doubt that the husband had been asking his father-in-law through his wife Suman Bai to pay him Rs. 20,000/- so that he could get employment. This demand was being made eversince the marriage of the parties. The demand has been formally referred to with all anxiety in the letter that had been written by Suman Bai (Ex. P. 6) dated 3-10-92. Themar. riage has taken place in April, 1990. A perusal of' this letter shows that it makes reference to a letter received from Jablapur from Asha Buaji, in which there was mention of need of money for arrange ing employment to her husband (the husband is referred as 'Ritu Ke Jijaji'. Ritu being the sister of Suman Bai). She writes "Papaji Yahan per Sabhi Log Apse Kuchh Sahayata Karne Ki Bat Karte Hain". She further refers that she knows that her father will not be able to arrange such big money in short time and could not be able to sell the land. She asked her father to go and find out all the facts and that if people demand money he should not refuse and at least 10,000/- rupees could have been paid. It could also mean demand of money, referred to by Asha Buaji by those who could manage employment The letter also mentions that "Main Yahan Bahut Achchi Tarah Se Hun - Aur Ghar Main Sabko Inki Naukari Ki Chinta Rahti Hai". She again writes -- "Waise Ye Apse Paise Mangege to Ap Mana Nahin Karna Papaji". She insisted to her father to take steps to find out some source with the help of Phuphaji to get her husband some employment.
9. This letter by itself does not disclose that she was being harassed or treated with cruelty by husband.
10. The husband's letter Ex.P.8 is dated 22nd September, 1992 written from Piparia Rakhai to the grand-father and other family members of his in-laws. After wishing welfare., he writes "Dada Ji Aap Jo Bat Yahan Par Kan Gaye The Uska "Koie Jabab Nahin Diya Aur Na Aapne Guddu Ko Bheja, Kam Se Karn Patra Dwara Samast Baion Ko To Likh Dete Taki Hamko Kuchc Santushti Si Mil Jati". Then a request was made in the letter to send all the information. It is difficult to interpret this letter as reference to demand of Rs. 20,000/- when nobody speaks that this letter was in connection with any previous talks where such demand was made. There is nothing in the statement either of Hemraj or Ravishankar about their visit to the house of the accused where some incident might have taken place, which might be finding reference in the letter Ex. P. 8, So nobody knows what is the context of the reference 'Jo Baat Aap Kah Gaye The' in the letter Ex. P. 8, At least there is no evidence
11. Let us revert to the oral evidence of Hemraj and Ravishankar. A perusal of the statement of Hemraj as P. W. 7 does not suggest that as the deceased ever told him personally that her husband or relatives of her husband treated her with cruelty. He does say that Santosh Kumar asked for Rs. 20,000/- from him for obtaining employment or doing some self employment work. But he does not go further and does not say that he had been going to his daughter's house and found her ill-treated, nor does he say that whenever he visited his daughter's house she complained of some harassment or cruelty. He only says that Komal Patwa had informed him about the ill-treatment of Suman Bai by her husband and his relatives, for non-fulfilment of the demand. This may be considered in the light of the fact, that Komal Patwa as P. W. 4 does not support that he told such facts to Hemraj or that deceased made such complaints to him. So, that part of testimony of Hemraj has to be ignored. Then he narrates what he was informed by his brother Ravishankar that the accused was demanding money and since the demand was not met he was beating Suman Bai and ill-treating her and other members were doing so and Suman Bai had complained all this to Ravishankar. What Ravishankar told Hemraj will not be considered as evidence. It would be hearsay. That is also a subject-matter or FIR. Still it is not a fact seen or ¦ experienced by this witness Hemraj. It may corroborate Ravishankar slightly, but nothing more. So the evidence of Hemraj even if accepted as a whole, only goes to establish that accused as a whole, only goes to establish that accused had been demanding 20.000/- rupees so that he may arrange some employment himself. Cruel treatment to deceased due to non-fulfilment of demand, cannrst be taken as established by this witness Heunraj.
12. Now I will take up the most important witness. ftwishankar (PW 9) He had visited the girl on 5 10-92 as narrated by him and the girl told him that, she was being beaten and harassed by her husband as 20,000/- rupees have not been paid, which is needed for employment. According to him he is first cousin of Hemraj and not his real brother. He went to the house of Suman Bai on 5-10-92. According to him Suman Bai visited her father's house 10 times after her marriage. According to him when he asked Santosh to send Suman Bai with him, accused told him to arrange Rs. 20,000/- or return without Suman Bai. He stayed in her house at night. He says that Suman Bai was weeping and was beseeching him to take her from that house as those people were beating her as 20,000/- rupees were not provided to her husband. So he returned to Hemraj and informed him of all these things.
13. This witness has also stated that the demand of Rs. 20,000/ was not made either before the marriage or at the time of marriage. This demand was made after marriage for seeking help for employment by Santosh Kumar.
14. Thus, we have only the statement of this witness Ravishankar to support the entire story of cruel treatment by the husband towards his wife in the form what was told to him by Suman Bai about 12 days before her death. It may have that force of a dying declaration if we believe him as to what Suman Bai told him. His personal knowledge relates to demand of money by the accused which was made from him also and the fact, that husband refused to send Suman Bai with him unless the demand is met. Rest of his knowledge about the beating or ill-treatment is based on what was told by Suman Bai on that particular date. So it is a case of oral dying declaration made by Suman Bai to him. Section 32(a) of the Evidence Act provides that statement made by deceased soon before death regarding the circumstances of her death are relevant statements and can be proved in evidence. Such statements are exception to the rule against hearsay. The fact to be found is whether Suman Bai made such statement to Ravishankar. If 'yes', the inference of cruelty arises; if 'not' or even if 'doubtful' the benefit of doubt must go to the accused on the point of cruelty. The question whether the demand of Rs. 20,000/- was a 'dowry demand' is independent question. Ravishankar stated what Suman Bai told him on 5-10-92. This narration saw the light of the day when Hemraj reported to the police on 19-10-92.
15. In the FIR Ex. P. 9 Hemraj writes that his brother Ravishankar had told him about what his daughter informed him. She beseeched that she be taken away as her in-laws were demanding 20,000/- rupees and were harassing her. (Kafee Pareshan Karte Hain Avam Pratadit Karte Rahate Hain). Now there is no reference to beatings in this FIR as stated by the daughter. 'Pareshan' and 'Pratadit' are the two words used as to how she was treated. 'Pratadit' is same thing as harassment or being treated with crudity but whether there was beating or not is not referred in this FIR as a fact narrated by the daughter Sumanbai to Ravishankar. So there is variance as regards to 'beating'. Thus, the narration of oral dying declaration by Ravishankar in Court is directly constrasted by this 'variance' on the one hand and by conduct of Suman Bai shown by the absence of a similar grievance made to her father Hemraj at any time. Hemraj does not say that Suman Bai ever made such a grievance to him of 'Pareshan Karna 'Pratadit Kama' or of beating by husband. Such grievance to parents would have been her natural conduct, if she was being ill-treated by husband. Suman Bai's mother, if alive has not appeared in the witness box to make any such statement. This is relevant factor because Suman Bai visited her mother about 10 times as narrated by Ravishankar. If she was treated by physical violence so much so that she was led to commit suicide, at least on one or two or on some occasions the daughter would have told her mother or father about her sufferings. No such evidence has comeforth. So, this conduct of Suman Bai in not raising such grievance to her parents, puts a doubt, as to whether she made such an oral grievance to Ravishankar witness.
16. The above factors reduce the weight of this oral dying declaration allegedly made by the duaghter to Ravishankar. The law regarding dying declaration is :- firstly it must be established beyond doubt as having been made, secondly that it should be truthful and inherently or by surrounding circumstances there should be no factors suggesting that it may not be true or that there may be something else also. In the present case the possibility of improvement in the narration of the girl to her uncle Ravisnankar arises from the fact that factor of 'marpit' is not mentioned in the FIR although mentioned in the Court by Ravishankar. It leads to inference of possible improvement.
17. Secondly, absence of similar narration to father or mother at any time militates against complaint to uncle for the first time, so the truth of it also becomes questionable. By its very nature a dying declaration is statement of a person who is not available for cross-examination. That statement is given the weight of evidence because the statement is made at a time when there is no motive So the Court has to be cautious in accepting the dying declaration as the only evidence for conviction of person for a serious offence involving the deth of maker of dying declaration varies with the circumstance of each case. If there are inherent weaknesses in that previous statement of a dead person or circumstance show negating conduct on his part, the court will seek corroboration to the fact narrated in the dying declaration (which has weakenesses inherent or circumstantial) and in absence of such corroboration, the rule of caution will warrant that it is not safe to base conviction on such dying declaration. A reference may be usefully made to observations of Supreme Court in case of State of Assam v. Mafizuddin Ahmad, relied on AIR 1983 SC 274 : (1983 Cri LJ 426). That was a case of burning of a woman who was alive for 8 days after the incident, but did not tell anybody that her husband set her on fire and the Doctor did not say that the woman was not in a position to speak and she made an oral dying declaration to her uncle after 8 days naming the husband as the culprit and later she made a similar statement to Magistrate who recorded her statement, but in that statement, the name of the husband was found to be wrongly mentioned. On facts of the case, the Court observed "it was not outside the realm of probability that her statement may have been inspired by her uncle.
The criminal jurisprudence in our country requires that guilt of an accused should be proved beyond reasonable doubt and further that severer the punishment stricter is the proof required. In the present case, the standard of "proof beyond doubt" as required by law has not been achieved by prosecution as the sole testimony of Ravishankar regarding the. narration of circumstances of death of Suman Bai as allegedly narrated by her, cannot be said to be fully believeable or entirely truthful. At least there is doubt from surrounding circumstances and possibility of inspired statement by Ravishankar about what she said to him, cannot be ruled out. So no firm finding can be given that deceased was being treated with cruelty by her husband.
18. In view of my findings above, it is not necessary to go in question whether demand of 20.000/- made by the husband after the marriage in order to seek employment or self employment amounled to demand of dowry or not.
19. The net result of above discussion is that the accused/appellant is entitled to benefit of doubt. The judgment of conviction by trial Court and order of sentence, are set aside. The appeal is accepted. The appellant is acquitted of the charges. His bond stands discharged. The appellant is said to be in jail. He be set at liberty forthwith.