Madhya Pradesh High Court
Dule Khan vs The State Of M.P. on 20 May, 2020
Equivalent citations: AIRONLINE 2020 MP 1179
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
:1:
THE HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
CRA No. 516/2000
Dule Kha and others Vs. State of M.P.)
Shri Z.A. Khan, learned senior counsel with Shri
Ramesh Gangare for the appellant.
Shri Gourav Verma, learned Public Prosecutor for the
respondent/State.
JUDGMENT
(20/05 /2020) This appeal has been filed against the judgment dated 27.04.2000 passed by 14th Additional Sessions Judge Indore in Session Trial No.124/1998 whereby the accused/appellants have been convicted and sentence under Section 304-B of I.P.C. and sentenced to undergo 7 years R.I. and fine of Rs.1,000/- in default to suffer rigorous imprisonment for 6 months.
(2). The case of the prosecution is that Parveen Bee daughter of the complainant Jalal was married to Nosad on 01.06.1994. But her father-in-law Dule Kha, mother-in-law Kallo Bai @ Naseem Bee and husband Nosad were not happy with the dowry. Just after the marriage Parveen bee was tortured by her father-in-law Dule Kha, mother-in-law Kallu@ Naseem Bee and husband Nosad for bringing television, fridge, scooter, almirah from her parental house and they used to beat her. After one month of the marriage Parveen Bee came to her parental house, she tells it to her parents and stayed there for about one and half years. Thereafter on the pursuance of relatives they sent to their daughter to her matrimonial house. On :2: 21.10.1997 Jalal Kha father of the Parveen went to her matrimonial house to meet her. After reaching their he saw that accused persons were beating Parveen, they asked him that why he has come here and threatened to face dire consequences. They forced him to leave the place. Then Jalal Kha returned his home. In the evening Wahid Khan nephew of Jaleel Khan informed him regarding the admission of Parveen Bee by her in laws in M.Y. Hospital, Indore. When Jaleel Kha reached the hospital, he found his daughter Parveen laying dead in the hospital due to burn injuries.
(3). The written communication received from M.Y. Hospital Indore regarding the unnatural death of Parveen Bee lead police to register merge No.0/399/1997 under Section 174 of Cr.P.C. at Police Station Sanyogitaganj Indore. After performing inquest, the dead body of Parveen Bee was sent for postmortem examination. The merge diary was transferred to police station Kudel for further enquiry, under which jurisdiction offence was committed. During enquiry, police recorded the statement of witnesses, prepared the spot map and seized incriminating articles from the place of occurrence. On the basis of merge enquiry FIR was registered under Section 304-B of I.P.C. Investigation of the case was assigned to DSP Headquarter S.S. Bais, he recorded the statement of witnesses, arrested the accused persons. After completion of investigation, charge-sheet was filed :3: before the Court of Judicial Magistrate First Class, Indore who committed the case to session Judge,Indore and ultimately it was transferred to 14 th Additional Sessions Judge for trial.
(4). Accused were charged under Section 304-B of I.P.C. They pleaded not guilt and claimed for trial. They took a plea that they are innocent and falsely implicated in the present crime. In defence they have examined four witnesses Arun Kumar (DW-1), Jankilal (DW-2), Molana Hafiz (DW-3) and Adbul Aziz (PW-4).
(5). In order to substantiate its case, the prosecution examined 13 witnesses. All accused in their statement recorded under Section 313 of Cr.P.C. denied the case of prosecution.
(6). After assessment of evidence on record and hearing learned senior counsel for the parties, the trial court disposed of the case by the impugned judgment and found the accused/ appellants guilt under Section 304 -B of I.P.C. and sentenced as above. Aggrieved by the aforesaid judgment, the appellant has filed instant appeal.
(7). Learned senior counsel for the appellant has submitted that there was no evidence that soon before the death of the deceased any cruelty or misbehavior was done with her by the appellants. More over, the appellants were also not present in the house at the relevant time. There is also no evidence that prior to :4: the death of deceased any demand of dowry was made by the appellants. It is also submitted that in Mohammedan community there is no custom or practice for demanding dowry. Moreover, looking to the low financial condition of the parents of the deceased, it is impossible to believe that the appellants have demanded Television, fridge scooter and Almirah from them. It is further submitted that actually the deceased was burn due to sparking stove and thereafter her relatives have given a colour to the said incident into an offence so as to harass and torture the appellants.It is also submitted that learned trial court has erred in relaying upon exaggerated statement of interested witnesses. The prosecution utterly failed to prove its case beyond reasonable doubt and conviction of the appellant cannot be fastened upon the sole testimony of the interested witnesses. It is further submitted that the accused were not under obligation to discharge their burden as the very ingredients of section 304-B of I.P.C. could not proved by the prosecution.
(8). Per contra, learned Public Prosecutor has submitted that prosecution has successfully proved the case beyond reasonable doubt against the accused. It has been proved that the deceased was tortured for demand of dowry by the accused, soon before her death. Deceased died in abnormal circumstance within seven years of her marriage in her matrimonial house and accused has failed to discharge burden under :5: Section 113-B of Evidence Act. When all ingredients of section 304-B-B of I.P.C. are proved, then accused are under legal obligation to discharge the burden that the death was not under abnormal circumstance.
(9). Having heard, learned counsel for the parties and perused the record.
(10). Before dealing with the merits of the case, it would be appropriate to discuss the legal aspect of section 304-B IPC and presumption under section 113- B, Indian Evidence Act.
(11). The actual words used in Section 304-B IPC are of importance. This section reads as under:-
" 304-B. Dowry death:- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" , and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
(12). The ingredients of Section 304-B IPC were rephrased in Kans Raj V. State of Punjab (2000 ) 5 SCC 207 in the following manner:
"(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(b) such death should have occurred within 7 years of her marriage;:6:
(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(d) such cruelty or harassment should be for or in connection with the demand of dowry; and
(e) to such cruelty or harassment the deceased should have been subjected to soon before her death. As and when the aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under section 113B of the Evidence Act. It has to be kept in mind that presumption under Section 113B is a presumption of law. We do not agree with the submissions made by Mr.Lalit, learned Senior Counsel for the accused that the statement made by the deceased to her relations before her death were not admissible in evidence on account of intervening period between the date of making the statement and her death."
The expression "otherwise than under normal circumstances' was explained to mean "death not in usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury."
(13). Section 113-B of the Act reads as follows:
"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 304B, of the Indian Penal Code, (45 of 1860)."
(14). In the case of Yashoda v. State of M.P. (2004) 3 SCC 98, the Hon'ble Apex Court held that once the ingredients of Section 304-B IPC are fulfilled, the onus shifts to the defence to produce evidence to rebut the statutory presumption and to whom that the death was in the normal course with which the accused were not connected. This is what was said: (SCC p. 103, para
13).
"13.......Once the prosecution proves the facts which give rise to :7: the presumption under Section 304-B IPC, the onus shifts to the defence and it is for the defence to produce evidence to rebut that presumption. The defence may adduce evidence in support of its defence or may make suggestions to the prosecution witnesses to elicit facts which may support their defence. The evidence produced by the defence may disclose that the death was not caused by them, or that the death took place in normal course on account of any ailment or disease suffered by the deceased or that the death took place in a manner with which they were not at all connected. In the instant case if the defence wanted to prove that the deceased had suffered from diarrhoea and vomiting and that resulted in her death, it was for the defence to adduce evidence and rebut the presumption that arose under Section 304-B IPC. The defence could have examined the doctor concerned or even summoned the record from the hospital to prove that in fact the deceased has suffered such ailment and had also been treated for such ailment."
(15). Now it is to be considered as to whether the basic ingredients to attract the provisions of section 304-B IPC have been proved by the prosecution.
(16). Jalal (PW-2) and Kaneez Bee (PW-3) narrated the fact that Parveen Bee was their daughter and she got married with accused Nosad prior to 5 years of her death. In the marriage they gave dowry to the best of their capacity. But just after about 15 days of marriage, in-laws of deceased i.e. father-in-law Dule Kha, mother-in-law Kallo Bai @ Naseem Bee and husband Nosad started harassing her at every now and then they also used to give her beating. The deceased informed about all these things to them. On account of said ill treatment at hands of her inlaws and husband, Parveen came to her paternal home and she stayed their for about one and half years to two years. According to Kaneez Bee (PW-3), Gama and Karamat came to there house to bring the Parveen Bee and they were assured that they will keep the Parveen :8: happily and no such incident would recur. On their said assurance the deceased was sent to her matrimonial home. But, nothing changed even thereafter as they continued to ill-treat her.
(17). Jalal (PW-2) and Kaneez (PW-3) further stated that on 21.10.1997 Jalal had gone to the home of Parveen Bee for taking her news. After reaching their he saw that mother-in-law Kallo Bai@ Naseem and husband Nosad were beating Parveen Bee and Dule Kha was present their. After seeing him they asked him that why you have come here.
(18). Ajeez Khan (PW-4) is the brother of the deceased who has supported the prosecution version and has stated that due to non fulfillment of demand of dowry the accused persons used to harass the deceased and finally she was died by setting her ablaze. The information of her death was given by Waheed.
(19). Karamat (PW-5) has been declared hostile as he stated ignorance about the incident. Gama (PW-7) stated that accused Nosad is his maternal nephew. Four years back Nosad was married to Parveen and Nosad keep her well. Parveen died due to burn injuries but he does not know how she got ablaze. This witnesses has also been declared hostile.
(20). Waheed Khan (PW-9) deposed that on 21 October 1997 he went to hospital to see his brother-in- law. At the same time Kallo Bai @ Naseem Bee :9: descended from tempo. A dead body was covered with a sheet in the tempo. He asked Kallo Bai @ Naseem, what happened but she did not respond. On enquiry he came to know that Parveen Bee had died because of fire. He further stated that due to non-fulfillment of demand of dowry the accused persons used to ill- treated the deceased.
(21). DSP Santosh Singh Bais (PW-13) is the investigation officer who has proved first information report Ex.P-8, spot map Ex.P-9, seizure memo Ex.P/1 and charge-sheet.
(22). Dr. Surendra Dubey (PW-10) conducted the postmortem of the dead body of Parveen Bee and found multiples burn injuries all over the body and opined that the cause of death of the deceased was cardiac respiratory system failure as a result of burn injuries and its complication. Injuries were antemortem. The statement of Dr. Surendra Dubey (PW-10) is duly corroborated by the autopsy report Ex. P/4. In the cross examination his statement remained unchallenged, therefore, the trial court has relied upon the testimony of the Dr. Surendera Dubey (PW-10) and concluded that the deceased Parveen Bee had died due to burn injuries.
(23). Jalal (PW-2) deposed that on the fateful day he visited the matrimonial house of his daughter Parveen Bee and found that accused persons were beating her with respect to their demand of television almirah as :10: dowry. This statement of witness was not shaken in the cross-examination. To the contrary a suggestion has given in his cross-examination that when he reached the house of the accused persons at that time they were not present there. It was also suggested that on reaching there he had a quarrel with her daughter. These suggestion indicates that accused persons have not disputed on this point that Jalal went their house on the date of incident. Although Jalal did not make any statement before the investigating officer that the accused persons demanding dowry with the deceased on the date of incident however, this fact has found place in his statement recorded during the merge inquiry as well as recorded under Section 164 of Cr.P.C. before the magistrate, therefore, it cannot be said that there is any omission in the statement of Jalal (PW-2). From the statement of Jalal (PW-2), it is clearly established that soon before the death the deceased was subjected to cruelty by her husband, mother-in-law and father-in-law for bringing insufficient of dowry.
(24). Hence, upon overall appreciation of above evidence and ingredients required under Section 304- B of IPC was successfully proved by prosecution. Now burden was over defence to rebut presumption under Section 113-B of Evidence Act. Appellants in the statement under Section 313 of Cr.P.C. has stated that they were not present in the house at the point of time and benefit of plea of alibi should be given to them.
:11:Accused Dule Kha has claimed that he went to village Piplon, one day prior to date of occurrence to take care of his brother-in-law who sustained fracture on his waist. On the date of incident he received information that his daughter- in-law caught fire accidentally, then he returned to his village but no evidence has been produced by him on this point.
(25). Accused Nosad stated that on the date of occurrence at 08:00 pm, he went to village Piplai Fatehabad and on returning back at evening 07:00 pm he received information from one Ashok that your wife has got fire and she was taken to M.Y. Hospital for treatment then he reached M.Y. Hospital with Babu Patel but he has also not produced any evidence to substantiate the aforesaid plea of alibi.
(26). It is well in law when a plea of alibi is taken by an accused, the burden is upon him to establish the same by positive evidence after the onus as regards the presence on the spot is established by the prosecution. In this context, it may be usefully reproduce a few paragraph from the case of Binay Kumar Vs. State of Bihar, J.T. 1996 (10) SC 79 II;-
"22. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration
(a) given under the provision is worth reproducing in this context:
"The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at :12: Lahore is relevant."
23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter- evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.
(27). The appellant Kallo Bai took a plea that on the date of occurrence she went to forest for grazing her goats. She went to forest at 08:00 am and returned to her house at 04:00 pm. After reaching her house, she found that her daughter-in-law was got fire and she extinguished fire. Her daughter-in-law informed her that she got fire due to accident then she took her to hospital for treatment.
(28). Arun Kumar (DW-1) stated that on 21.10.1997 he :13: was coming from his site. On the way Kallo Bai met him. He told her about the scarcity of water in the site then Kallo Bai said that she is having drum in her house and you can take it. At the same time one lady coming out from the house in burn condition. The Kallo bai was on the road and she tried to extinguish the fire then he arranged the tempo to took the lady to hospital. After that he went to house of Kallo Bai and found that one stove was lying there and kerosene was also spilated there. In the cross-examination the witness accepted that he is not the resident of that village and he does not know the woman who got fire. He cannot say that the woman was ablazed by her inlaws due to demand of dowry.
(29). Jankilal (DW-2) deposed that when the Kallo Bai was grazing her goats in forest then one cyclist informed her that her daughter-in-law has been ablazed. Then Kallo Bai came to her house. He also follows her and after reaching the house of Kallo Bai he saw that Parveen Bee the daughter-in-law of Kallo Bai was got fire and one contractor was trying to extinguish the fire then Kallo Bai also extinguish the fire by putting blanket upon her. But the statement of both the defence witnesses are inconsistent and contradictory to each other. In these circumstance, the defence taken by Kallo Bai that at the time of incident she was not present in the house is not found trustworthy.
(30). Considering all the circumstances, this court is of :14: the view that plea regarding the appellants that they were out of house at the time of occurrence is not believable. The prosecution witnesses proved that there was demand of dowry and the deceased was tortured and harassed soon before her death. The statement of Dr. Surendera Dubey (PW-10) also established that the deceased died due to burn injuries. There is also no dispute the fact that has taken place well within 7 years of marriage in an unnatural way, therefore, the burden upon the accused persons to rebut the presumption under Section 113-B of Indian Evidence Act and the defence could not displace the said presumption. The culpability of the accused persons in committing this crime is established to the hilt by the facts and circumstances proved by the prosecution. They undoubtedly are the authors of this crime.
(31). To sum up, the prosecution has been able to prove the following:
(1) The death of the deceased was caused by burn injuries within seven years of her marriage.
(2) The deceased had been subjected to cruelty by her husband, mother-in-law and father-in-law over the demand of television, fridge, almirah and scooter in dowry raised and persistently pressed by them even after about 5 years of the marriage and continued till her death.
(3) The cruelty and harassment was in connection with the demand of dowry i.e. :15: television fridge, almirah and scooter.
(4) The cruelty and harassment is established to have been meted out soon before her death.
(5) The accused persons were the authors of this crime who caused her death by abalzed her on the given date, time and place.
(32). In the light of the evidence led in by the prosecution, the trial court cannot be said to have erred in holding that it was established that due to unlawful demand of dowry, the Parveen Bee was died otherwise than under a normal circumstance and therefore, no error has been committed by the trial court in convicting the appellants for the offence under Section 304-B of I.P.C. and sentenced them to 7 years R.I. However, legislature has not provided fine to be imposed for offence punishable under Section 304-B of I.P.C. and in present case learned Additional Session Judge has imposed fine of Rs.1000/- each. Hence regarding fine, this sentence is against the provision of section 304-B of I.P.C., therefore, that part is to be deleted.
(33). For the forgoing reasons, appeal regarding sentence is partly to be allowed. Judgment of conviction is affirmed. Regarding sentence the imposition of fine and additional imprisonment in default of fine is being deleted. The substantive sentence with rigorous imprisonment of seven years under Section 304-B of I.P.C. awarded by the trial court is hereby affirmed. Appellants would be entitled to get :16: the fine amount, if they had deposited before the trial court. Appellants are in bail, they are directed to surrender before the trial court immediately for undergoing the sentence awarded to them. The Registry of this Court is directed to arrange for issuance of supersession warrant against the appellants.
Let a copy of this judgment be sent to the concerned court alongwith record for information and necessary compliance.
(S. K. AWASTHI) JUDGE praveen PRAVEEN Digitally signed by PRAVEEN KUMAR NAYAK DN: c=IN, o=DISTRICT AND SESSION COURT INDOR, postalCode=452005, st=Madhya KUMAR Pradesh, 2.5.4.20=e98f729464903facdd39c454715d6eccc 5a350c9111fb019b34dace6d05b8fd5, NAYAK cn=PRAVEEN KUMAR NAYAK Date: 2020.05.21 07:36:14 -12'00'