Madhya Pradesh High Court
Kok Singh vs State Of M.P. on 20 December, 2016
Bench: N.K. Gupta, G.S. Ahluwalia
1 CRA No. 509/2000 & CRR No. 325/2000
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
Division Bench
PRESENT:
HON'BLE MR. JUSTICE N.K. GUPTA
&
HON'BLE MR. JUSTICE G.S. AHLUWALIA
CRIMINAL APPEAL NO. 509 OF 2000
Kok Singh
-Vs-
State of M.P.
________________________________________________
Shri Madhukar Kulshreshtha, counsel for the appellant.
Shri J.M. Sahani, Panel Lawyer for the respondent/State.
________________________________________________
AND
CRIMINAL REVISION NO. 325 OF 2000
Brijesh
-Vs-
State of M.P. & others
________________________________________________
Shri M.M. Tripathi, counsel for the applicant.
Shri J.M. Sahani, Panel Lawyer for the respondent
No.1/State.
Shri Madhukar Kulshreshtha, counsel for the respondents
No.2 to 4.
________________________________________________
JUDGMENT
(20/12/2016) PER JUSTICE G.S. AHLUWALIA:
By this common judgment, the Cr.A. No. 509/2000 and Cr.R. No. 325/2000 are being decided.
2. Cr.A. No. 509/2000 has been filed against the Judgment dated 28-6-2000 passed by Sessions Judge, Morena 2 CRA No. 509/2000 & CRR No. 325/2000 in S.T. No. 189/1996 by which the appellant Kok Singh has been convicted under Section 304-B of I.P.C. and has been sentenced to undergo the Life Imprisonment with a fine of Rs. 1000, in default 1 year rigorous imprisonment and under Section 498-A of I.P.C and has been sentenced to undergo the rigorous imprisonment of one year with fine of Rs. 1,000, in default 3 months imprisonment.
3. Cr.R. No. 325/2000 has been filed by the complainant against the acquittal of the respondents no. 2 to 4 namely Daujiram, Phoolwati and Ramabai for offences under Section 304-B and 498A of I.P.C.
4. The necessary facts for the disposal of these two cases, in short are that on 2-4-1996, while S.C.S. Parmar was on round, he was informed by Kotwar of village Baretha that the wife of Kok Singh, resident of Dayal Ke Pura has died in a suspicious circumstance. The Merg Ex. P.5 was registered and Panchnama of dead body Ex. P.7 was prepared. The Spot Map Ex. P.3 was prepared. In merg enquiry, it was found that the deceased Meera was married to the appellant Kok Singh on 5- 5-1992 and on 2-4-1996, she committed suicide by hanging herself. Daujiram is the father-in-law, Phoolwati is the mother- in-law and Ramabai is the sister-in-law of the deceased Meera. During Merg enquiry, it was found that the appellant in Cr.A. No. 509/2000 and respondents no. 2 to 4 in Cr.R. No. 325/2000 were harassing the deceased for bringing T.V., Scooter, Fridge etc. They used to ill treat her and were extending the threat that in case, She do not bring the dowry then, She would be done to death. The deceased Meera committed suicide by hanging herself. Accordingly, FIR Ex.P/9 was registered for offences under Section 304-B and 498A of I.P.C. The police after completing the investigation, filed the charge sheet.
5. The Trial Court framed charges against the 3 CRA No. 509/2000 & CRR No. 325/2000 appellant (Cr.A. No. 509/2000) and respondents no. 2 to 4 (Cr.R. No. 325/2000) for offences under Sections 304B and 498A of I.P.C. The accused persons abjured their guilt and pleaded not guilty.
6. The prosecution in support of its case, examined Bhikaram (P.W.1), Babulal (P.W.2), Brijesh (P.W.3), Smt. Vidhya Devi (P.W.4), Dr.K.N. Mishra (P.W. 5), Dr. P.K. Sonkar (P.W.6), Angad Singh Kushwah (P.W.7) and S.C.S. Parmar (P.W.8). The appellant examined Head Constable Udaiveer Singh (D.W.1), Bhopelal (D.W.2), Darshanlal (D.W.3), Lajjaram (D.W.4).
7. The first question for consideration is that whether the deceased Meera died in suspicious circumstances or not?
8. Dr.P.K. Sonkar (P.W.6) along with Dr. K.N. Mishra (P.W.5) had conducted Postmortem of the dead body of Deceased Meera and submitted the postmortem report Ex. P.1. On medical examination, Dr. P.K. Sonkar (P.W. 6) found the following injuries on the dead body of Deceased Meera:-
Ligature Mark over the neck interiorly and lateral aspect of neck. Ligature Mark was 9 inch long ½ inch in width and the mark of knot was 3 cm above the angle of Mandible on left side of neck. Trickling of Saliva from the angle of the mouth from right side was present. One incised wound was found over left little finger in the middle. On internal examination, thyroid bone was found fractured.
The cause of death was due to asphyxia as a result of hanging.
9. Dr. P.K. Sonkar (P.W. 6) was cross examined in detail. However, the Counsel for the appellant, could not point out any discrepancy or shortcomings in the evidence of Dr. P.K. Sonkar (P.W. 6) which may make his evidence unworthy of reliance. Considering the fact that the Deceased committed Suicide therefore, it is held that the death of Deceased Meera 4 CRA No. 509/2000 & CRR No. 325/2000 was suicidal in nature.
10. Now, the next question is that whether the prosecution has proved the guilt of Kok Singh beyond reasonable doubt or not?
11. Bhikaram (P.W.1) is the grand father of the deceased Meera. He has stated that deceased Meera was married to the appellant, Kok Singh about 4 years prior to the date of incident. They had given adequate ornaments and articles at the time of marriage. Meera used to come to her parents house very frequently after her marriage. Two years after the marriage of deceased Meera, his grand son got married which was attended by the appellant Kok Singh and Dauji also. As his grand son had got lot of dowry, therefore, the appellant and acquitted accused persons started demanding dowry. However, none of the accused had said anything to this witness. He was told by deceased Meera that the accused persons are demanding dowry equivalent to what his grand son has got. In cross examination, this witness has stated that prior to demand of dowry, the deceased Meera was never beaten. This witness further admitted that when the deceased was beaten by Kok Singh, this witness was not present. This witness was informed by deceased Meera, that the appellant had assaulted her. This witness further admitted that the deceased Meera had studied upto the 4-5 class, however, She had never written any letter complaining the demand of dowry by the accused persons.
12. Thus, it is clear that no demand of dowry or any other article was ever demanded by the appellant Kok Singh or any of the accused person from this witness. According to this witness, he was informed by deceased Meera about the demand of dowry and beating given by the appellant. However, this witness has not stated that when he was informed by deceased Meera. If the deceased Meera had ever 5 CRA No. 509/2000 & CRR No. 325/2000 informed this witness about the demand of dowry or ill- treatment, then it was expected that this witness would have tried to intervene in the matter. However, neither this witness talked to his son Babulal (P.W.2), the father of the deceased Meera, nor convened any Panchayat or made any complaint either to Police or to any member of the Society. Further, the only evidence of this witness is to the effect that he was informed by Deceased Meera about the demand of dowry and ill-treatment. Thus, at the most, this witness can be termed at hearsay witness as the information given by deceased Meera cannot be said to be a dying declaration within the meaning of Section 32 of Evidence Act, 1872. Further this witness has stated that he was informed by Brijesh regarding demand of dowry and harassment. But except instructing Brijesh to inform Babulal, this witness did nothing.
13. Babulal (P.W. 2), is the father of the deceased Meera. He has stated that the deceased Meera was married to the appellant on 5-5-1992. He had given sufficient dowry at the time of marriage. At the time of marriage, the deceased Meera was aged about 16 years. In first two years of marriage, the deceased Meera had come to her parents house for once or twice only. At that time, she had never made any complaint about the dowry. On 20-5-1994, his son Motiram was married. The in-laws of Motiram had given lot of dowry as a result of which the appellant and other acquitted accused persons also started demanding dowry. When the deceased Meera replied that she would make a complaint to her parents then they extended the threat that in case the dowry is not given, then they will kill her and will get the appellant married again. On 18-3-1996, he had invited co-accused Dauji in his house. At that time, Dauji informed this witness that the appellant used to beat the deceased and therefore, they should give more dowry. Thereafter he replied that just now 6 CRA No. 509/2000 & CRR No. 325/2000 he has been operated upon therefore, he would do as per his capacity. About 15-20 days thereafter, he received a telegram from his son at Goa that Meera has been killed. He came to Morena after receiving the Telegram and gave his statement to S.D.O.(P) Ambah. This witness has further stated that since, he is posted in Goa, therefore, he had met with Meera only once or twice after her marriage. Meera had informed him that her mother-in-law and sister-in-law used to say that since, her brother has got lot of dowry in his marriage, therefore, She should also bring Scooter and Gold Chain. He was informed by his wife Vidhya Devi (P.W. 4) that her in-laws are harassing her for demand of dowry therefore, he should give something to them. She was married near about 4 years prior to the date of incident. About 6 months back, she had gone to her matrimonial house and at that time she was happy.
In cross examination, this witness has stated that in the year 1992, he was posted in O.N.G.C. Mehsana, Gujarat and from Nov. 1995, he is posted in Goa. He also admitted that due to travelling expenses, he generally did not come to Morena. For the first time in March 1996, he had come to Morena. When he was posted in Mehsana, he was not visiting Morena very frequently. He used to come to Morena at the most twice a year. At the time of marriage of Meera, he was posted in Gujarat. He further admitted that wife of Daujiram, resides in the village. He had never seen the house of the accused persons. He further admitted that co-accused Rama was married near about 11 years back and she is residing in Jori village. He had talks with the appellant and Dauji and none else. He further admitted that whatever statement he has given in the Court is based on the information given by his son Brijesh, Ashok, deceased Meera and his wife. He further admitted that in first two years, there was no demand of 7 CRA No. 509/2000 & CRR No. 325/2000 dowry and Meera had no difficulties. No report was ever lodged with regard to harassment of Meera. He had never made any complaint to any of the relatives. He had not made any complaint to the Superior officers of Daujiram. He had also not made any complaint to his department. He had never taken any leave on the ground of harassment of Meera. He never came to Morena to have talks with Meera on the issue of harassment. He had never gone to the matrimonial house of Meera. He never convened any Panchayat in this regard. He had never instituted any complaint before the Court of law. He had never consulted any Advocate in this regard. He further admitted that he has engaged a private lawyer. He further admitted that Meera had never sent any letter making complaint of demand of dowry or harassment. No messenger was ever sent by Meera. He had never made any complaint in the matrimonial house of Meera. He had never made any complaint to any of the neighbors of Daujiram. He admitted that on 14.04.1996 he informed S.D.O.(P) Angad Singh Kushwaha for the first time about the demand of dowry and harassment. He also could not state that on what dates, he had come to Morena. He also admitted that he had not given the details of the articles which were given in dowry to his son Motiram. Even he could not state before the Court that what articles were given in dowry to his son Motiram. He further admitted that Phoolwati and Rama had not attended the marriage of his son Motiram and Phoolwati and Rama had never come to his house to see the dowry which was received by his son Motiram. He cannot say that why the names of Rama and Phoolwati were not mentioned in his Police Case Diary statement Ex. D-1. This witness also admitted that the fact of his son Motiram was married on 20-5-1994 and the appellant and his family members had attended the marriage and after noticing that Motiram had got lot of dowry therefore, 8 CRA No. 509/2000 & CRR No. 325/2000 they were pressurizing the deceased Meera to bring more dowry, is not mentioned in his police case diary statement Ex. D.1. The allegation that her father has not given any dowry and She should bring more dowry and when the deceased said that She would complaint to her parents then the accused persons had extended the threat that they would kill her and would get the appellant married again is also not mentioned in the police case diary statement Ex. D.1. He further admitted that the allegation that he had invited Dauji on 18-3-1996 and Dauji has stated that the appellant used to beat Meera and therefore, he should give more dowry, is also not mentioned in his police case diary statement Ex. D.1. He further admitted that the fact that his wife used to him about the demand of dowry and harassment is not mentioned in his police case diary statements Ex.D/1 and Ex.D/2.
14. Brijesh (PW-3) is the brother of deceased Meera. According to this witness when his sister went to her matrimonial house after marriage for the first time, the accused persons had not demanded any dowry. On 20.5.1994 his elder brother was married as a result of which the accused persons used to remain annoyed on the ground that less dowry was given to them. He went to village Baretha on 28.3.1996, then he received the information that his sister Meera is being beaten by the appellant and Phoolwati. When this witness made a complaint to the accused persons then Dauji insisted that they are required to give the dowry. After returning back to his house at Kumheri he informed his grandfather that his sister Meera is being beaten by her in laws and they are demanding dowry. His grandfather instructed him to write letter to Babulal (PW-2). About 2 to 3 days thereafter one Sobran of village Baretha came to his house and informed that when Meera had gone to cut the crops, she suffered a snake bite, as a result of which she has 9 CRA No. 509/2000 & CRR No. 325/2000 expired. Thereafter he came to Morena alongwith his uncle and maternal uncle from where they reached Baretha at about 9:00 PM. She found that the body of the deceased was lying on a cot and had ligature mark on her neck. Thereafter they went to police station where he met with Shri V.K. Mahor SHO who informed that his persons have already reached on the spot. (A note was appended by the court that the witness is continuously speaking on his own). In his cross-examination again a note was appended by the Trial Court that after a question is put to this witness he takes a lot of time to answer the same. This witness also admitted that he has engaged Shri Virendra Yadav as his counsel who is also present in the court room. This witness admitted that Meera had studied upto Class 5th but stated that she was not able to write any letter. He had never received any letter from village Baretha. After the marriage of his sister he had gone for 4-5 times to village Baretha. However, he could not say that on what date he had gone to the matrimonial house of his sister. He also admitted that co-accused Rama is married in village Jauri. She has four children. He had never made any complaint to the senior officer of Dauji alleging that he is harassing his sister. He has also not made any complaint to the police against Dauji. This witness further admitted that Phoolwati and Rama had not attended the marriage of his brother Motiram. This witness has also stated that his sister was not beaten upto the year 1994. When a question was put to this witness that whether his sister Meera was ever beaten in the year 1995, then a note has been appended by the Trial Court that the witness is not giving reply to this question. He has further stated that although his sister had received injuries because of beating but neither he nor Meera had made any complaint. He do not recollect that on which date and month his sister was beaten for the first time. After coming back from the matrimonial 10 CRA No. 509/2000 & CRR No. 325/2000 house of Meera on 28.3.1996, his grandfather had instructed him to send a letter to his father Babulal. However, he did not send any letter and sent a telegram only after the death of Meera. The postmortem of the dead body of Meera was performed on 3.4.1996 in his presence. His statement was recorded after 10 to 12 days. The police had come to the village prior to 8.4.1996 but no statement was given to the police. This witness further admitted that the allegation to the effect that the accused persons started getting annoyed after marriage of his brother as he got a lot of dowry in his marriage and they were demanding dowry is not mentioned in his police case diary statement Ex.D/3 and D/4. The factum of beating of his sister Meera is also not mentioned in his police case diary Ex.D/3 and Ex.D/4. In his police case diary Ex.D/4 this fact is not mentioned that after coming back to his house at Kumheri he had informed his grandfather about the ill treatment and demand of dowry by the in laws of Meera. He further admitted that this statement is being made by him for the first time in the Court. He further admitted the fact that his grandfather had instructed him to write a letter to his father is also not mentioned in his police case diary statement Ex.D/3 and Ex.D/4. He further stated that he could not inform his father about the factum of demand of dowry and beating of his sister Meera. He further admitted that for the first time he is making statement that he was informed by Chiman that his sister has been killed by throttling. Thus, it is clear that this witness never informed his father about the so called demand of dowry as well as harassment. The deceased Meera died on 2.4.1996 and this witness did not lodge any report. The police case diary statement was recorded for the first time on 15.4.1996. No complaint was made either to any respectable members of the society or to police with regard to demand of 11 CRA No. 509/2000 & CRR No. 325/2000 dowry or harassment. Even, according to this witness he was told for the first time by his sister on 28.3.1996 about the demand of dowry and ill treatment. The deceased was married to the appellant on 5.5.1992. The elder brother of this witness was married in the year 1994 and according to this witness he came to know about the demand of dowry and ill treatment for the first time on 28.3.1996 clearly shows that the allegation to the effect that the accused persons started demanding dowry and ill treating Meera immediately after the marriage of his elder brother does not appear to be correct.
15. Vidya Devi (PW-4) is the mother of the deceased Meera. She has also stated that the deceased was married about four years back. After the marriage, the deceased Meera had visited her matrimonial house for 4 to 5 times. For the first two years the deceased had lived happily. However, after the marriage of her elder son, as he had got a lot of dowry, therefore, the accused persons started ill treating the deceased and were demanding dowry. Whenever the deceased used to come to her parents house she used to tell this witness about the ill treatment. Whenever the deceased went to her matrimonial house she was beaten by her in laws. On one day, one person from Baretha had come and informed that the in laws of Meera have killed her. Thereafter, her son Brijesh went to village Baretha where he found the dead body of Meera. About two months prior to the death, the deceased Meera had gone to her matrimonial house and at that time she was in a good health. In cross-examination, this witness admitted that Phoolwati and Rama had not attended the marriage of his son Motiram and they had not seen the dowry which he had received. The police had recorded her statement after 10 to 12 days and not after a month. If the police is stated to have recorded her statement after a month, then it 12 CRA No. 509/2000 & CRR No. 325/2000 is incorrect. She further admitted that for the first two years the deceased was never beaten by her in laws. This witness had never lodged any report or complaint with regard to demand of dowry as well as ill treatment. Even the respectable members of the society were not informed about the ill treatment and demand of dowry. Ramhet was the mediator for the marriage of Meera and Kok Singh. No complaint was made to Ramhet also. When her husband Babulal had come from Goa, Meera was in her matrimonial house therefore, she could not inform to Babulal about the demand of dowry and ill treatment. When she informed her husband about the ill treatment and demand of dowry then her husband said that he would look into the matter only after the deceased come to her parents house. However, her husband could not ever talk to her daughter about the demand of dowry and ill treatment. She further admitted that Meera had never sent any letter about the demand of dowry for ill treatment. She could not state that on which date the dowry was demanded or her daughter was beaten. She further admitted that she had not informed the police that because her son had got more dowry and, therefore, the appellant and his father became dishonest. She further admitted that she had never informed the police that her in laws were demanding fridge, cooler etc. She admitted that she is narrating this fact for the first time in this Court. She did not have any talk with Brijesh in this regard as he was all the time crying. She admitted that Dauji is a government servant and resides at Morena. She admitted that co-accused Rama has a children.
16. In order to prove the offence under Section 304-B of I.P.C., the prosecution is under obligation to prove that the deceased was subjected to cruelty soon before her death.
17. The Supreme Court in the case of Baljinder Kaur 13 CRA No. 509/2000 & CRR No. 325/2000 Vs. State of Punjab ((2015) 2 SCC 629, the Supreme Court has held as under :
13. Be that as it may, let us consider the case of the prosecution and the evidence as projected. Section 304-B IPC defines "dowry death". To convict an accused under Section 304-B IPC, the prosecution has to establish the following ingredients:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) Such a death must have occurred within seven years of her marriage;
(iii) Soon before death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(iv) Such cruelty or harassment must be for or in connection with demand of dowry;
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
14. Section 113-B of the Evidence Act is also relevant for the case in hand. 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 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."
15. As per the definition of "dowry death" in Section 304-B IPC and the wording in Section 113-B of the Evidence Act, it is necessary to show that "soon before death" the woman concerned had been subjected to cruelty or harassment "for or in connection with the demand of dowry". On proof of the essentials mentioned therein, under Section 113-B of the Evidence Act, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death.
16. The expression "soon before death" in Section 304-B IPC and Section 113-B of the 14 CRA No. 509/2000 & CRR No. 325/2000 Evidence Act was considered by this Court in Hira Lal v. State (Govt. of NCT of Delhi) (2003) 8 SCC 80 and this Court in para 9 observed as under: (SCC pp. 86-87) "9. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. 'Soon before' is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to the expression 'soon before' used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession'. The determination of the period which can come within the term 'soon before' is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon 15 CRA No. 509/2000 & CRR No. 325/2000 before' would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
17. In Kamesh Panjiyar v. State of Bihar ((2005) 2 SCC 388) this Court considered the expression "soon before death" and held as under: (SCC p. 393, para 11) "11. ... The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test."
The same view was expressed in Thakkan Jha v. State of Bihar (2004) 14 SCC 348 and Baldev Singh v. State of Punjab (2008) 13 SCC 233).
18. The above decisions of this Court laid down the proximity test i.e. there must be material to show that "soon before her death"
the woman was subjected to cruelty or harassment "for or in connection with dowry".
The facts must show the existence of a 16 CRA No. 509/2000 & CRR No. 325/2000 proximate live link between the effect of cruelty based on dowry demand and the death of the victim. "Soon before death" is a relative term and no straitjacket formula can be laid down fixing any time-limit. The determination of the period which can come within the term "soon before death" is left to be determined by the courts depending upon the facts and circumstances of each case.
18. It is also well established principle of law that the words "Soon before Death" are to be interpreted under the facts and circumstances of each case. The word "Soon before Death" cannot be considered as "Immediately before" but at the same time, stray and stale incidents of demand of dowry can also not be considered as Soon before Death. The incidents of demand of dowry and harassment should not be a stale one and there should be continuous cause of death.
19. The Supreme Court in the case of Mus Shahadal Shaikh v. State of Maharashtra, (2012) 11 SCC 397, has held as under :
11. To attract the provisions of Section 304-B, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. In fact, the learned counsel appearing for the appellant submitted that there is no proximity for the alleged demand of dowry and harassment. With regard to the said claim, we shall advert to the same while considering the evidence led in by the prosecution. Though the language used is "soon before her death", no definite period has been enacted and the expression "soon before her death" has not been defined in both the enactments.
Accordingly, the determination of the period which can come within the term "soon before her death" is to be determined by the courts, 17 CRA No. 509/2000 & CRR No. 325/2000 depending upon the facts and circumstances of each case. However, the said expression would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. These principles have been reiterated in Kaliyaperumal v. State of T.N.(2004) 9 SCC 157 and Yashoda v. State of M.P.(2004) 3 SCC 98.
20. A legal fiction has been created by virtue of Section 304-B of I.P.C. In case if it is proved that soon before her death, the deceased was subjected to cruelty or harassment, for or in connection with demand of dowry, then such death shall be called Dowry Death. The word "Soon Before Death"
has not been defined. However, there has to be a proximate live link between the demand of dowry and the death of deceased.
21. On consideration of the evidence of these witnesses, there is nothing on record to show that soon before her death, the deceased was subjected to harassment. Brijesh (P.W.3) has stated that on 28-3-1996, he was informed by his sister, Deceased Meera with regard to demand of dowry and harassment. This witness does not say that earlier also, he was ever informed either by deceased Meera or his mother Vidhya Devi (P.W. 4) about the demand of dowry or harassment. Whereas Vidhya Devi (P.W. 4) does not say that She was ever informed by Brijesh (P.W.3) that when he went to the matrimonial house of the deceased Meera, She had informed Brijesh (P.W. 3) about demand of dowry or 18 CRA No. 509/2000 & CRR No. 325/2000 harassment. Vidhya Devi (P.W. 4) has stated that whenever, the deceased Meera used to come to her parents house, She used to inform her about the demand of dowry but surprisingly, no other witness say that they were ever informed by Vidhya Devi (P.W. 4) in this regard. Brijesh (P.W.
3) has stated in para 9 of his evidence that when he had gone to the matrimonial house of deceased Meera on 28-3-1996, he was sure that his sister might be killed. Inspite of such an impression which Brijesh (P.W. 3) had gathered on 28-3-1996, he did not take any step either to inform his father or mother. He also did not make any complaint either to the police or any respectable member of the Society. No Panchayat was convened on this issue. Thus, the statement of Brijesh (P.W.
3) that on 28-3-1996, he was informed by deceased Meera about demand of dowry and harassment is nothing but an after thought and hence cannot be accepted. Therefore, there is no evidence available on record to suggest that the deceased Meera was subjected to cruelty soon before her death.
22. Thus, in the light of the evidence led by the prosecution and considering the contradictions and omissions in the evidence of the witnesses, it is held that the prosecution has failed to prove that Soon before death, the deceased Meera was subjected to cruelty.
23. Further more, as per the prosecution case, the deceased Meera was leading happy life during first two years of marriage. The accused persons started demanding dowry only after the elder son of Babulal (P.W. 2) got married. This allegation also appears to be untrustworthy as the deceased Meera had never written any letter to her parents or relatives, complaining the demand of dowry or harassment. No complaint was ever made by the Grand Father, Parents and 19 CRA No. 509/2000 & CRR No. 325/2000 brother of the deceased Meera to any body. No Panchayat was convened. Even after the death of deceased Meera, no F.I.R. was lodged. Their statements were recorded after 12-14 days from the date of incident. The father of the deceased Babulal (P.W. 2) has admitted that at the time of the marriage of Meera, he was serving in Gujarat and thereafter he is posted in Goa. He was informed by Brijesh (P.W. 3) and Vidhya Devi (P.W. 4) about the demand of dowry and harassment. However, Brijesh (P.W. 3) has admitted that he had not informed his father about the demand of dowry and harassment. Whereas Vidhya Devi (P.W. 4) has not stated that after She was told by Meera about the demand of dowry and harassment, she had ever informed her husband while he was in Goa. The natural conduct of the mother in such a situation would have been to inform her husband immediately about the ill-treatment which is being given to her daughter but even that was not done, which clearly shows that the theory of demand of dowry and ill-treatment is nothing but an after thought. In view of the vital omissions and contradictions in the evidence of the witnesses, coupled with the improvements which they have made in their Court evidence and their conduct of keeping silence for near about 2 weeks after the death of Meera, clearly show that the allegations regarding demand of dowry and harassment by the appellant are nothing but merely an after thought. Only vague and omnibus allegations have been made which are not sufficient to hold the appellant guilty. Even otherwise the prosecution witnesses are not found to be trustworthy. Thus, this Court is of the view that the prosecution has failed to prove that the appellant is guilty of committing offence under Section 304-B of I.P.C.
24. It is the prosecution case itself that at the time of 20 CRA No. 509/2000 & CRR No. 325/2000 marriage and even two years thereafter, there was no demand of dowry by the appellant or other accused persons. The allegation that the appellant and other accused persons started making demand of dowry only after the marriage of Motiram has been found to be an after thought. There is no other evidence on record that the appellant had ever demanded dowry or had ever harassed the deceased Meera for want of dowry. As the prosecution has miserably failed in proving the demand of dowry and harassment, then under this circumstance, the appellant cannot be held guilty under Section 498-A of I.P.C. Accordingly, it is held that the appellant Kok Singh is not guilty of offence punishable under Section 304-B and 498-A of I.P.C. The appellant Kok Singh is acquitted of the charges under Section 304-B and 498-A of I.P.C. The judgment and sentence passed by the Trial Court is set aside. The appellant Kok Singh is on bail. His bail bonds and surety bonds are discharged.
25. So far as the Criminal Revision No. 325/2000 filed by complainant Brijesh against Daujiram, Phoolwati and Ramabi is concerned, for the reasons mentioned earlier, it is held that the Trial Court did not commit any illegality or mistake in acquitting the respondents. Even otherwise, the scope of revisional jurisdiction of this Court is very limited. The Supreme Court in the case of Suryakant Dadasaheb Bitale v. Dilip Bajrang Kale, (2014) 13 SCC 496 : (2014) 5 SCC (Cri) 728, held as under :
The scope of revisional jurisdiction was considered by this Court in K. Chinnaswamy Reddy v. State of A.P. AIR 1962 SC 1788 and held as follows:
"Where the appeal court wrongly ruled out evidence which was admissible, the High Court would be justified in interfering with the order of acquittal in revision, so that the evidence may be reappraised after taking into account 21 CRA No. 509/2000 & CRR No. 325/2000 the evidence which was wrongly ruled out as inadmissible. But the High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also...."
12. In Akalu Ahir v. Ramdeo Ram (1973) 2 SCC 582, this Court held that where the material evidence have been overlooked by the trial court or Sessions Court, the High Court in revisional jurisdiction can interfere with the finding of acquittal.
13. In the present case the Sessions Court has not ruled out any evidence which was admissible.
26. The learned Counsel for the Complainant could not point out any evidence which was not taken into consideration by the Trial Court. The prosecution could not prove that the respondents in Cr.R. 325/2000 had ever demanded dowry or had ever treated the deceased Meera with cruelty. Accordingly, the Judgment passed by the Trial acquitting Daujiram, Phoolwati and Rama is upheld. The respondents Daujiram, Phoolwati and Rama are on bail. Their bail bonds and surety bonds stand discharged.
27. Consequently, the appeal filed by Appellant Kok Singh in Cr.A. No. 509/2000 is allowed. The Criminal Revision No. 325/2000 filed by Complainant Brijesh against the acquittal of Daujiram, Phoolwati and Rama is dismissed.
28. The Copy of the judgment along with the Record be sent back to the Trial Court for necessary information.
(N.K. GUPTA) (G.S. AHLUWALIA)
Judge Judge
(alok) (20.12.2016) (20.12.2016)