Madhya Pradesh High Court
Shiv Charan vs The State Of Madhya Pradesh on 4 February, 2019
1 Cr.A.No.2403/2013
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Single Bench : Hon'ble Shri Rajeev Kumar Dubey, J.
Criminal Appeal No.2403/2013
Shiv Charan and Anr.
vs.
State of M.P.
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Ms. Seema Jaiswal, counsel for the appellant.
Shri V.S. Mishra, Dy. Government Advocate for the respondent/State.
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JUDGEMENT
Reserved on : 01/12/2018 Delivered on : 04 /02/2019 This criminal appeal has been filed under Section 374 (2) of CrPC against the judgment dated 10.04.2013 passed by Second Additional Sessions Judge, Seoni in Sessions Trial No.27/2012, whereby learned Sessions Judge found the appellants guilty for the offence punishable under Sections 304B / 34, 498A/34 of the IPC and Section 4 of the Dowry Prohibition Act and sentenced each of them to undergo ten years rigorous imprisonment, one year rigorous imprisonment and fine of Rs. 500/- and 6 months rigorous imprisonment and fine of Rs.500/- respectively with default stipulations.
2. It is undisputed that appellant No.1- Shiv Charan was the husband of the deceased Pramila @ Suman and appellant No.2- Smt. Teeran Bai was the mother-in-law of the deceased. The marriage of the deceased Pramila @ Suman was solemnized with appellant No.1- Shiv Charan on 24.06.2007 thereafter she resided with the appellants and died on 30.09.2011.
Digitally signed by NAVEEN KUMAR SARATHE Date: 05/02/2019 10:38:28 2 Cr.A.No.2403/20133. As per prosecution case, after marriage deceased Pramila @ Suman resided with the appellants but the behaviour of the appellants was not good with her. They told her that her parents did not give adequate dowry and asked her to bring one motorcycle and Rs. 25,000/- cash from her parents. When deceased Pramila returned back from her matrimonial house to her parental house she told her parents about the demand of appellants. But her parents were not able to fulfill the demand of appellants, so they sent her back again to her matrimonial home without fulfilling the demand. After two years of her marriage appellant No.1- Shivcharan came to the parental house of deceased Pramila and told her father that he needed some money for repairing his house. At that time father of the deceased Suman namely Bhagchand Chaudhary (PW-1) gave him Rs. 15,000/- but because he could not fulfill the demand of appellants regarding one motorcycle and Rs. 25,000/- appellant Shiv Charan used to assault the deceased Pramila and he did not give him proper food and harassed her physically and mentally. Due to which Bhagchand Chaudhary, father of the deceased, gave Rs. 15,000/- to appellant Shiv Charan but after some time, Shiv Charan again came to Bhagchand Chaudhary and told that he needed money for buying two motor pumps. At that time Bhagchand again gave him Rs.7,000/- for buying a motor pump. Two years prior to the death of the deceased Pramila @ Suman appellant Shiv Charan again assaulted her. When Bhagchand came to know this, he went to appellant's house to see her daughter where her daughter Pramila informed him that appellant Shiv Charan demanded money for a motorcycle and since he could not fulfill his demand, appellant Shiv Charan assaulted her. On that Bhagchand sent his son Dhaal Singh (PW/3) to take Pramila @ Suman back to her parental home at Salekhurd. At that time Pramila @ Suman lived with her parents for 15 to 20 days. This time also Pramila @ Suman told Bhagchand and her family members that appellants Shivcharan and Teeran Bai demanded money and motorcycle for which they used to assault her and also taunted her. After 15 to 20 days, appellant Shiv Charan again came to Pramila @ Suman's parental house to take her back in her matrimonial house. At that time he promised Pramila's parents to not harass her in future for dowry. On that deceased's parents sent her along Digitally signed by NAVEEN KUMAR SARATHE Date: 05/02/2019 10:38:28 3 Cr.A.No.2403/2013 with appellant Shiv Charan to her matrimonial house. Later Pramila gave birth to one daughter who died in the hospital at the time of delivery. Thereafter, Pramila got treatment in her parental house. Sometime later Pramila again gave birth to one daughter. On 29/09/2011 Dhaal Singh, brother of the deceased Pramila took her from her matrimonial house to her parental house. On the following day, appellant Shiv Charan came to Pramila's parental house and told that there was a function in the house of her maternal aunt and took Pramila with him. At that time also appellant Shiv Charan demanded Rs. 25,000/-. On that, Bhag Chand gave him Rs. 10,000/- and sent Pramila along with him. Appellant Shiv Charan told him that if he did not give him the remaining amount until evening, he would see them and thereafter on the very same day i.e. 30.09.2011 in the night at around 11 pm, the parents of the deceased were informed that Pramila @ Suman died due to falling in the well. On that Bhag Chand, father of the deceased and Dhaal Singh brother of the deceased went to her matrimonial house where they saw Pramila's dead body lying in the well situated behind the house of appellant Shiv Charan. On the death of deceased Pramila @ Suman, appellant Shiv Charan lodged the merg intimation report (Ex.P/16) at P.S. Aari, District Seoni to the effect that his marriage was solemnized with Pramila @ Suman in the year 2007. On 30.09.2011 he took Pramila @ Suman from her parental house and reached the village Kaathi at 6 pm. Thereafter, he went for irrigating his field and when he came back from his field at 9 pm, he found that Pramila was not at home and her dead body was found in the well situated behind his house. On that police registered Merg No. 29/2011 under Section 174 of Cr.P.C. and enquired into the matter. During inquiry Navin Kumar Jain, Sub-Inspector (PW/19) went to the spot and prepared the spot map (Ex.P-3). Enquest report of Pramila's dead body (Ex.P-2) was also prepared by Jyoti Bhalavi (PW/14). Thereafter her dead body was sent for postmortem to District Hospital, Barghat where Dr S.S. Kakodia (PW/15) conducted autopsy and gave the report (Ex.P/13) to the effect that deceased Pramila died due to drowning. In the merg inquiry, it was found that deceased Pramila died due to drowning in suspicious Digitally signed by NAVEEN KUMAR SARATHE Date: 05/02/2019 10:38:28 4 Cr.A.No.2403/2013 circumstances and appellants demanded dowry and used to harass the deceased Pramila @ Suman.
4. On that police registered Crime No. 86/2011 for the offence punishable under Sections 302, 304 B and 498A of IPC and Section 3 /4 of Dowry Prohibition Act and investigated the matter. The investigation was conducted by N.D. Jatav (PW/20). During the investigation, he seized the list of articles given by the parents of the deceased at the time of marriage, Pramila's Mark-Sheet of fifth class and marriage card (Article-A to C) and prepared the seizure memo (Ex.P-5, 6&7). He also recorded the statements of Bhagchand Chaudhary (PW/1), Vindheshwari (PW/2), Dhaalsingh (PW/3), Shyamnath (PW/4), Omta (PW/7) Ex.P-4, Kheeral Bai (PW/8) Jageshwar (PW/9) Smt. Urmila (PW/10) and Amar Singh (PW/17) and arrested the appellants and prepared the arrest memo (Ex.P/23 and Ex.P/24). After investigation police filed charge sheet against the appellants before JMFC, who committed the case to the Court of Sessions. On that ST. No. 27/2012 was registered. Learned Second Additional Sessions Judge, Seoni, framed charges against the appellants for the offence punishable under Sections 302, 304B, 498 A r/w Section 34 of the IPC and Section 4 of Dowry Prohibition Act and tried the case. Although appellants abjured their guilt and took the defence that they are innocent and have falsely been implicated in the case. However, after trial, the trial court acquitted the appellants from the charge of an offence punishable under Section 302, 34 of IPC but found them guilty for the offence punishable under Sections 304B, 498A, 34 IPC and Section 4 of Dowry Prohibition Act and sentenced them as aforesaid. Being aggrieved from that judgment appellants filed this criminal appeal.
5. Learned counsel for the appellants submitted that Pramila @ Suman died due to drowning in the well, which was an accident. The learned trial court also acquitted the appellants for the charge punishable under section 302 of IPC. Although prosecution witnesses deposed that appellants demanded dowry and used to harass the deceased but in this regard there are many contradictions and omissions in the statements of prosecution witnesses and learned trial court without appreciating these facts wrongly Digitally signed by NAVEEN KUMAR SARATHE Date: 05/02/2019 10:38:28 5 Cr.A.No.2403/2013 found the appellants guilty for the offence punishable under Sections 304B, 498A, 34 IPC and Section 4 of Dowry Prohibition Act.
6. On the other hand, learned counsel for the State submitted that from the evidence produced by the prosecution, guilt of the appellants is clearly proved. So, learned trial court did not commit any mistake in finding the appellant guilty for the aforesaid offences and prays for rejection of the appeal.
7. On the point that deceased Pramila @ Suman died on 30.09.2011 due to drowning in the well situated behind the house of appellants, there is no ambiguity in the prosecution evidence. In this regard Naveen Kumar Jain (PW-19) deposed that on 30.09.2011 he was posted as SHO at P.S. Aari. On that day appellant Shivcharan came to police station and informed that his wife Suman @ Pramila had died due to drowning in the well situated behind his house. On that he registered merg No. 21/2011 (Ex.P/16) and went to spot and where he saw that the dead body of Pramila @ Suman lying in the well. On that point, prosecution story also got support from the statements of Shyamnath (PW-4), Bhagchand Meshram (PW-5), Sakun Meshram (PW-6) Omta (PW-7). They also deposed that on receiving information, when they reached the spot they found the dead body of Pramila @ Suman lying in the well and Jyoti Bhalavi (PW/14) who prepared the enquest report (Ex.P/2) of dead body of deceased Pramila @ Suman also supported this.
8. On the point that Pramila @ Suman died due to drowning, prosecution story is also corroborated by the statement of Dr. S.S. Kakodia (PW-15) who conducted the postmortem of the dead body of Pramila @ Suman. This witness stated that on 01.10.2011 he was posted as Medical Officer at Community Health Centre, Barghat and on that date he conducted the postmortem of dead body of deceased Pramila @ Suman and found that the deceased died due to asphyxia which was caused due to drowning and she had died within 24 hours from the postmortem. In this regard, his statement also got support from the postmortem report (Ex. P/13) given by him and there is no ambiguity in the statements of above mentioned prosecution witnesses and appellants also did not challenge the statements of Digitally signed by NAVEEN KUMAR SARATHE Date: 05/02/2019 10:38:28 6 Cr.A.No.2403/2013 above mentioned witness up to that extent. So there is no reason to disbelieve their statements on the point. So it is proved that deceased Pramila @ Suman died on 30.09.2011 due to drowning in the well situated behind the house of appellants at village Ari within four years of her marriage.
9. From the statement of Naveen Kumar Jain (PW-19) and Merg report (Ex.P/16) it is clear that on 30/09/2011 after the death of deceased Pramila @ Suman appellant Shiv Charan informed the police that on 30.09.2011 he took Pramila @ Suman from her parental house and reached the village Kaathi at 6 pm. Thereafter, he went for irrigating his field and when he came back from his field at 9 pm, he found that Pramila was not at home and her dead body was found in the well situated behind his house. Which shows that appellant Shiv Charan took deceased Pramila @ Suman from her parental house to his house on 30/09/2011 at 6 PM and she died on the same day.
10. Shyamnath (PW-4) deposed that on the date of incident at around 6-7 pm appellant Shivcharan came to his house and told that his wife Pramila had fallen into the well while she was taking out the motor from the well. Bhagchand Meshram (PW-6) deposed that on the date of incident at 7 pm when he was at home, appellant Teeran Bai came to his house and told him that Pramila had fallen into the well while she was taking out the motor from the well. Shakun (PW/7) also disposed that on the date of incident at 8 pm when he was at home appellants Shivcharan and Teeran Bai came to his house and told him that Pramila had fallen into the well while she was taking out the motor from the well. This shows that appellant Shivcharan took Pramila at his house from her parental house at 6 PM and she died due to drowning in the well at around 7 PM and at that time both the appellants were at their house. Appellant Shivcharan gave false information to the police that at the time of incident he was not at home and went to irrigate his field and he did not know that how she had fallen down into the well. So the explanation given by the appellants to Shyamnath (PW-4), Meshram (PW-6) and Shakun (PW/7) regarding death of deceased Pramila @ Suman becomes doubtful and in these circumstances it cannot be said that the death of Digitally signed by NAVEEN KUMAR SARATHE Date: 05/02/2019 10:38:28 7 Cr.A.No.2403/2013 Pramila @ Suman was accidental. In the result it was an unnatural death. So in this case it is proved that, the deceased Pramila @ Suman wife of the appellant died on 30/09/2011 due to drowning in the well otherwise than under normal circumstances within four years of her marriage.
11. On the point that soon before death of deceased Pramila @ Suman, she was subjected to cruelty or harassment by her husband / appellant No.1 Shivcharan and mother in law appellant No.2- Teeran Bai, father of the deceased Bhag Chand Chaudhary (PW-1) clearly deposed that marriage of deceased Pramila @ Suman was solemnized with appellant Shivcharan four year prior to her death. At that time he gave household articles in dowry to her. After marriage deceased Pramila @ Suman went to her matrimonial house and lived with appellants. After two months of her marriage appellants started harassing her. They told her that her parents did not give adequate dowry and told her to bring one motorcycle and Rs. 25,000/- cash from her parents. When deceased Pramila returned back from her matrimonial house to her parental house she told him about the demand of appellants. But he was not able to fulfill their demand so he sent her back again to her matrimonial home without fulfilling the demand. Once appellant No.1 - Shivcharan told him that he needed Rs.10,000/- for building a hut upon which he gave him Rs.10,000/-. Appellant Shivcharan used to assault the deceased after drinking wine. Once appellant Shivcharan assaulted her by stick due to which Pramila @ Suman sustained injuries on her nose, face and knee. Her maternal uncle Laxman took her to hospital for treatment. At that time, her daughter Pramila @ Suman lived with her uncle Laxman for two days. Thereafter Pramila @ Suman came to her house and lived there for 8 to 10 days. Later appellant Shivcharan came to her house and took Pramila @ Suman with him. At that time Shivcharan assured him that he would not assault Pramila @ Suman in future. On that assurance he sent Pramila @ Suman with the appellant Shivcharan. Two months later, his son Dhaal Singh went to appellant's house where Pramila @ Suman told him that appellant No.2 used to harass her for money. Before death of Pramila @ Suman, on Navratri festival his son Dhaal Singh had taken Suman to his house. After three days Shivcharan again took deceased Pramila @ Suman Digitally signed by NAVEEN KUMAR SARATHE Date: 05/02/2019 10:38:28 8 Cr.A.No.2403/2013 with him to her matrimonial house and in the night at around 11 pm Shivcharan informed him that deceased Pramila @ Suman had died due to falling in the well.
12. In this regard his statement is also corroborated by the statements of Vimleshwari (PW-2) sister-in-law (Bhabhi) of the deceased, Dhaal Singh (PW-3) brother, Kheeral Bai (PW-8) mother, Jageshwar (PW-9) uncle, Urmila Harinkhede (PW-10) sister and Amar Singh (PW-10) brother-in-law (jija) of the deceased. They also gave almost same statements.
13. Even Shakun Meshram (PW-6), Omta (PW-7), who are the neighbours of the appellants also deposed that behaviour of appellants was not good with deceased Pramila @ Suman. They used to harass her for dowry and also assaulted her.
14. Although some contradictions and exaggerations come out in the statements of above mentioned witnesses. But only on that basis whole statements of these witnesses cannot be discarded. From the statements of above mentioned witness it is clearly proven that appellants demanded dowry from deceased Pramila @ Suman and since the parents of deceased Pramila @ Suman could not fulfill their demand, they used to harass her and assault her.
Apex court in the case of Sher Singh v. State of Haryana (2015) 3 SCC 724 observed :-
"We are aware that the word 'soon' finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 306 of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt."Digitally signed by NAVEEN KUMAR SARATHE Date: 05/02/2019 10:38:28 9 Cr.A.No.2403/2013
15. In this case also from the statements of above mentioned prosecution witnesses it is proved that Pramila @ Suman died within four years of her marriage due to drowning in a suspicious circumstance and it is also proven that appellants, the husband and mother in law of the deceased demanded dowry from deceased Pramila @ Suman and because the parents of deceased Pramila @ Suman could not fulfill their demand, they used to harass her and assault her. So the burden of proving innocence beyond reasonable doubt shifts to the accused. But appellants did not produce any defence evidence to prove their innocence. So in the considered opinion of this court learned trial court did not commit any mistake in finding appellants guilty for the offence punishable under Sections 304B / 34, 498/34 of the IPC and Section 4 of the Dowry Prohibition Act.
16. As regard to the sentence is concerned learned trial court sentenced the appellants under Sections 304B / 34 to undergo ten years rigorous imprisonment, under Section 498A/34 of the IPC one year rigorous imprisonment and fine of Rs. 500/- with default stipulations and under Section 4 of the Dowry Prohibition Act to undergo 6 months rigorous imprisonment and fine of Rs.500/- with default stipulations.
17. Learned counsel of the appellants submitted that the appellant No.2 Smt. Teeran Bai is an old lady and is in custody since 04/10/2011. She is suffering from many ailments. Likewise appellant Shivcharan is also suffering from mental diseases so the sentence of appellants be reduced to already undergone. In the letter of Jail Superintendent dated 09/10/2018 it is mentioned that the current health condition of appellant Teeran Bai is not normal. She is not able to do her own daily work. She is not able to sit up too. She is dependent on others for her routine work. Likewise appellant Shivcharan has been suffering from mental disease since 01/05/2016. His treatment is still going on. Appellants have already suffered almost 9 years of imprisonment including remissions. So looking to facts and circumstances of the case and health condition of appellants, their sentences under section 304B of IPC is reduced to 9 years rigorous imprisonment from 10 years rigorous imprisonment as given by the trial court. Remaining sentence shall Digitally signed by NAVEEN KUMAR SARATHE Date: 05/02/2019 10:38:28 10 Cr.A.No.2403/2013 remain intact. All the Jail sentence shall run concurrently. The period already undergone shall be set off from the jail sentence.
The appeal disposed off accordingly.
(Rajeev Kumar Dubey) Judge sarathe Digitally signed by NAVEEN KUMAR SARATHE Date: 05/02/2019 10:38:28