Madhya Pradesh High Court
Raj Kumar And Ors. vs State Of Madhya Pradesh on 12 March, 2004
Equivalent citations: 2005CRILJ1072
JUDGMENT S.L. Jain, J.
1. Appellants Rajkumar, Ramsahai and Savitri Devi who are husband, father-in-law and mother-in-law respectively, of deceased Janki Bai, by the impugned judgment and order dated 13-2-98, passed by Additional Sessions Judge, Chhatarpur, in Sessions Trial No. 58/95, stand convicted for offences punishable under Sections 304B and 306 of the IPC. They have been sentenced to R. I. for seven years each for the offence punishable under Section 304B of the IPC and to R.I. for five years with fine of Rs. 500/- each for the offence punishable under Section 306 of the IPC. The substantive sentences imposed under both the sections have been directed to run concurrently.
2. The appellants had been charge-sheeted under Section 304B of the IPC for committing dowry death and under Section 306 of the IPC for abetting the commission of suicide by deceased Janki Bai. The death of Janki Bai is alleged to have occurred on 10-5-94 within 13 days of her marriage with appellant Rajkumar.
3. I have heard Shri Surendra Singh, learned senior counsel with Shri Ashvini Dubey, advocate, appearing for appellant and Shri S. K. Rai, learned penal lawyer for the State; and perused the record of the trial Court.
4. The first question that arises for determination is whether the death of Janki Bai occurred otherwise than in a normal circumstance?
5. Dr. R. K. Sharma (PW7) has stated that on 10-5-94 he examined Janki Bai and submitted his report Ex. P-7. On examination, he found burns present on the whole back of abdomen, whole back of chest, whole face and neck. Both the arms were also burnt. Burn injuries were also found on right thigh, genital region, buttocks and left thigh. Percentage of burns was found to be 62 to 70 per cent. Burns were deep in nature.
6. Dr. Hari Agrawal (PW11) who conducted autopsy of the dead body of Janki Bai, has also stated that Janki Bai died due to shock produced by external kerosene oil burn. He found 66 per cent burns on the body of the deceased. Nothing has been elucidated in the cross examination of Dr. Sharma and Dr. Agrawal to doubt the veracity of their statements. Thus, there is overwhelming evidence to the effect that the death of Janki Bai occurred otherwise than under the normal circumstance,
7. The next question which arises for determination is whether the death of Janki Bai occurred within seven years of her marriage?
8. After appreciating the evidence of Ghappu Das Gupta (PW4), the father of deceased Janki Bai, her brother Sunil Kumar (PW 6) and other evidence on record, the trial Court reached to a finding that the death of Janki Bai occurred within 13 days of her marriage. The learned counsel for the appellant, also did not dispute this fact. Thus, it is well established that the death of Janki Bai occurred within 13 days of her marriage.
9. This brings us to a crucial question as to whether the deceased was subjected to cruelty or harassment by her husband or his parents for or in connection with demand for dowry?
10. Ghappu Das Gupta (PW4), the father of the deceased has stated that at the time of marriage of Janki Bai, he gave sufficient dowry within his capacity but immediately before the departure (Bidai) of Janki Bai for her matrimonial home appellants Rajkumar and Ram Sahay demanded a scooter in the form of dowry and gave a threat that if the scooter will not be given they will not take the bride with them. His relatives assured these appellants that arrangement for a scooter will be made within a short time. On this assurance only appellants Rajkumar and Ram Sahay took the bride Janki Bai with them.
11. Ghappu Das (PW4) has further stated that on 9-5-94 his son Sunil was sent to Maharajpur to bring Janki from her marital home but the appellants did not send her with Sunil as the demand of scooter was not fulfilled. The appellants warned his son that if the scooter will not be given, his daughter will not be sent and Rajkumar will perform another marriage. According to the witness Janki Bai also informed Sunil that the appellants subject her to cruelty and harassment.
12. Sunil Kumar (PW6) has also stated that at the time of departure of the bride from her parental home appellants Rajkumar and Raj Sahay demanded a scooter by way of dowry. He further stated that when on 9-5-94 he reached to the nuptial home of Janki Bai to bring her, the appellants asked him as to whether he has brought the scooter or not and when he said that he has not brought the scooter, the appellants informed him that they will not send Janki with them. At that time Janki Bai informed him that the appellants subject her to cruelty and harassment.
13. Other witnesses examined by the prosecution in this regard namely, Mst. Shanti (PW2), Ramsewak (PW5), Smt. Saraswati (PW8) and Mukesh Kumar Gupta alias Raju (PW10) have not supported the prosecution case and have been declared hostile. Simply because these witnesses have been declared hostile and they have not supported the prosecution case, the evidence of Ghappu Das Gupta (PW4) and Sunil Kumar (PW6) cannot be disbelieved. It is true that they are near relations of the deceased but merely being relatives of the deceased their evidence cannot be discarded. As per the settled law relating to the appreciation of the evidence of such witnesses their evidence should be scrutinized with caution. After carefully scanning the evidence of these witnesses the trial Court has found the same to be worthy of credence. On an independent appreciation of the same, I also do not find any infirmity in their evidence to discard the same.
14. The evidence of Ghappu Das Gupta (PW4) and Sunil Kumar (PW6) is further corroborated by the oral dying declaration made by the deceased to her relatives and also her dying declaration, Ex. P-1 recorded by Executive Magistrate. Ghappu Das Gupta (PW4) and Sunil Kumar (PW6) have stated that when they learnt that the deceased has been admitted in Chhatarpur hospital, they went to the hospital where Janki Bai told them that the three appellants have put her afire. In her dying declaration, Ex. P-1, the deceased has stated as follows :--
^^eSaus [kqn feV~Vh dk rsy Mkydj vkx yxkbZ gSA ngst ds fy, iwjk ?kj lrkrk FkkA iwjk ?kj dgrk Fkk fd dqN ugha ngst esa feyk** From this dying declaration also it is clear that the appellants used to harass the deceased for or in connection with demand for dowry.
16. Learned senior counsel for the appellant submitted that the deceased was seriously burnt. It was not possible for her to make a dying declaration. From the certificate endorsed on Ex. P-1 and from the evidence of Executive Magistrate it is quite clear that at the time of making the dying declaration the deceased was in a fit state of mind.
17. Learned senior counsel, relying on Smt. Rani v. State, 1996 Cri LJ 1026, also submitted that even accepting that the deceased was in a fit state of mind to make the dying declaration, the only version in the dying declaration was that the appellants commented that nothing has been given in dowry. The statement made by the deceased in her dying declaration that nothing has been given in dowry, would at the most amount to a taunt and such a taunt alone cannot be considered to be cruelty.
18. The deceased has specifically stated in her dying declaration that the entire family subjected her to cruelty and harassment. It is not a case where only a vague stray taunt for not bringing dowry was given. It cannot be said to be a case of pin prick only. The deceased has specifically stated that entire family harassed her.
19. Learned senior counsel vehemently argued that the statements of Ghappu Das Gupta (PW4) and Sunil Kumar (PW6) were recorded after about a month of the incident which creates doubt on the credibility of the evidence of these witnesses. It is unsafe to rely on the evidence of such witnesses.
20. The question of delay in examining a witness is material if it is only indicative or suggestive of unfair practice by the investigating agency. In the absence of any unfair practice delay in recording the statements of the witnesses by itself cannot be considered to be a ground for rejecting the evidence of such witnesses. It cannot be said that the statements of Ghappu Das Gupta (PW4) and Sunil Kumar (PW6) are an afterthought. In Panchnama, Ex. P-4 recorded immediately after death the fact has been recorded that the deceased was subjected to cruelty or harassment. Therefore, it cannot be said that merely because there was some delay in recording the statements of father and brother of the deceased, their evidence should be discarded. Even if the evidence of these two witnesses is ignored, there is no reason to discard the dying declaration, Ex. P-1.
21. Learned senior counsel also submitted that no specific instance of harassment has been established. The general allegation of demand for dowry by accused/husband's family members in the absence of cogent evidence involving the parents of accused should not be accepted. In support of his contention, learned senior counsel relied on Salamat All v. State of Bihar, AIR 1995 SC 1863.
22. The allegation made against the appellants cannot be said to be of general nature. It has been specifically stated that all the members of the family harassed the deceased. The statement of deceased made in dying declaration cannot be said to be vague.
23. Learned senior counsel for the appellants next submitted that for the default of the husband the in-laws and other relatives cannot in all cases be held to be involved in the demand of dowry. By mere conjecture and implications such relatives cannot be said to be guilty for the offence relating to dowry death. In support of his contention learned counsel relied on Kansraj v. State of Punjab, AIR 2000 SC 2324 : (2000 Cri LJ 2993). It is true that a tendency has developed for roping all relations of the husband in the matter of dowry death, but in this case there was no reason for the deceased to rope in the in-laws had they been innocent. The deceased died within 13 days of her marriage. She would not have involved her in-laws had there not been any harassment on their part.
24. Learned senior counsel further submitted that the deceased was having premarital sexual relations and was in love with somebody as the marriage ceremony was performed against her will, she committed suicide. Had it really been so, nothing prevented the deceased from refusing to marry appellant Raj Kumar, When she has specifically stated in her dying declaration that she committed suicide due to harassment or cruelty upon her. There was no reason for her to make a false statement involving innocent persons when her death was imminent, therefore, in view of dying declaration and the evidence of the prosecution witnesses, namely, Ghappu Das Gupta (PW 4), and Sunil Kumar (PW6), the defence plea was rightly rejected by the trial Court.
25. Learned trial Court in his judgment has discussed the evidence in detail and recorded a finding that the deceased was subjected to cruelty or harassment by the appellants for or in connection with demand for dowry. The finding of the trial Court is based on cogent reasons. Looking to the totality of the circumstances as discussed, above, I am of the opinion that there is over-whelming evidence against the appellants.
26. Learned senior counsel lastly contended that no independent witness of the locality has supported the prosecution case.
27. In case of dowry death, the family members of the victim are the best witnesses and only they can depose what was the treatment given to the victim. The deceased herself made complaint to her brother regarding ill-treatment by the appellants, therefore, absence of supporting evidence of any independent witness will not cause any dent to the prosecution case. Merely because there was delay in recording the statements of the witnesses due to inaction of the investigating officer, it would not be proper to acquit the appellants solely on account of some defect in investigation. In view of the overwhelming evidence which inspires confidence, mere delay in recording statements of witnesses would not be a reason to discard the evidence of the prosecution witnesses in toto.
28. In view of the aforesaid discussion, I do not find any reason to interfere in the conviction of the appellants under Section 304B of the IPC recorded by the trial Court. The sentences awarded also cannot be said to be harsh or unjust. In case of offence of causing dowry death of women, a stringent view should be taken while imposing sentence, therefore, no interference in the order of sentence is called for. Seven years' rigorous imprisonment is the minimum sentence prescribed for the dowry death.
29. There is also overwhelming evidence to the effect that appellants abetted the commission of suicide by deceased Janki Bai. The harassment meted out to the deceased was nothing but abetment, therefore, there is no ground to interfere in the conviction and sentences awarded to the appellants by the trial Court.
30. In the result, the appeal fails and is accordingly dismissed. The impugned judgment and order of the trial Court convicting and sentencing the appellants as indicated above is hereby maintained.