Madhya Pradesh High Court
Tarkeshwar Prasad And Anr. vs State Of Madhya Pradesh on 9 October, 2002
Equivalent citations: 2003CRILJ3686
JUDGMENT Ajit Singh, J.
1. Appellant Nos. 1 and 2, namely; Tarkeshwar and Ram Pyari, have been convicted in Sessions Trial No. 222/ 93 by IInd Additional Sessions Judge, Jabalpur, under Section 304B of the Indian Penal Code and sentenced to seven years rigorous imprisonment. Co-accused Bharti, who is daughter of the appellants, has been acquitted of the charges under Sections 306 and 304B of the Indian Penal Code.
2. From the first information report, Ex. P-14, and from perusal of the impugned judgment, the prosecution story, as unfolded, is as under :--
Appellants were father-in-law and mother-in-law of the deceased Poonam Dubey who was married to their son Arvind Dubey on 17-6-90. Arvind Dubey is employed as a Clerk in the Indian Army and as such he was posted at Siligudi at the time of incident. A child was born to them at Jabalpur on 25-1-92. After the birth of child appellant No. 2, Ram Pyari, started demanding Rs. 10,000/- from her for the purposes of celebrating "Chowk" Ceremony of the child and for which she and co-accused Bharti subjected her with cruelty; Deceased Poonam Dubey complained to her parents about the said demand. She committed suicide by consuming poison on 25-5-92. Information about the incident was given by the appellant No. 1 Tarkeshwar Prasad at Police Station, Civil Lines, Jabalpur, on the basis of which Marg was registered on 26-5-92. The incident was investigated by the City Superintendent of Police, Satpal Singh (P.W. 14) who, after recording the statement of witnesses, recorded the First Information Report, Ex. P-14, and registered an offence under Section 306/34 of the Indian Penal Code against appellant No. 2 Ram Pyari and co-accused Bharti. During investigation, he also seized two letters. Exs. P-4 and P-5, written by the deceased Poonam Dubey from the possession of her father, R. S. Upadhyaya (P.W. 5). The appellants and co-accused Bharti were tried for offence under Section 306 of the Indian Penal Code and, in the alternative, under Section 304B of the Indian Penal Code. The trial Court acquitted the appellants of the charge punishable under Section 306 of the Indian Penal Code and convicted them under Section 304B of the Indian Penal Code and sentenced as aforesaid. Co-accused Bharti, was acquitted of all the charge. The conviction was based upon the evidence of Urmila Pandey (P.W. 3), Bindra Devi (P.W.:4), R. S. Upadhyaya (P.W. 5) Chandra Shekhar Upadhyaya (P.W. 6) and A. ML Das (P.W. 7). Bindra Devi (P.W. 4), R. S. Upadhyaya (P.W. 5) and Chandra Shekhar Upadhyaya (P.W. 6) are the mother, father and brother of the deceased Poonam Dubey respectively and Urmila Pandey (P.W. 3) and A. M. Das (P.W. 7) are their neighbours. The appellants pleaded not guilty and their defence was that they were innocent and have been falsely implicated.
3. The learned Senior Counsel for the appellants, Shri Surendra Singh, has urged that there was no evidence to show that deceased Poonam Dubey was subjected to cruelty or harassment by the appellants soon before; her death for, or, in connection with any demand for dowry to attract the offence under Section 304B of the Indian Penal Code the evidence of witnesses relied upon by the trial Court as to demand of dowry was too general and vague their evidence suffered from contradictions on material points and they had motive to speak against the appellants. He has further asserted that even the letters, Exs. P-4 and P-5, written by the deceased Poonam Dubey do not sup port the case of prosecution and, therefore, in the absence of satisfying the ingredients of offence under Section 304B of the Indian Penal Code, the conviction and sentence imposed on the appellants cannot be sustained.
4. Shri Wakil Khan, the learned Panel Lawyer for the State, in reply, submitted that the conviction and sentence of the appellants are well founded on the basis of evidence brought on record.
5. I have heard the learned counsel for the parties at length and perused the record. I have also minutely examined the original record of the trial Court and critically analysed the statements of witnesses produced by the prosecution.
6. It is a well settled principle of law that in order to convict an accused for an offence under Section 304B of the Indian Penal Code, the following essentials must be satisfied:--
(a) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.
(b) Such death must have occurred within seven years of her marriage.
(c) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.
(d) Such cruelty or harassment must be for, or, in connection with demand of dowry.
7. In the present case, the learned Senior Counsel for the appellants did not dispute that the first two ingredients mentioned above are satisfied. He, however, vehemently asserted that there was absolutely no evidence on record to suggest that the deceased Poonam Dubey was subjected to cruelty or harassment by the appellants soon before her death and that such cruelty or harassment was for, or, in connection with the demand of dowry. In view of this, I shall focus my attention in particular to the last two ingredients of the offence.
8. As regards appellant No. 1, Tarkeshwar, there is no evidence worth the name which could be made the basis for his conviction. Urmila Pandey (P.W. 3), in her entire evidence, has not deposed anything against him. Bindra Devi (P.W. 4), mother of deceased Poonam Dubey, has stated in her evidence before the Court that when Poonam Dubey had visited her with her husband and appellant No. 2, Ram Pyari, she disclosed that appellants were not satisfied with the dowry and were asking more money but admittedly in her police case diary statement recorded during investigation, she did not utter even a single word against the appellant No. 1, Tarkeshwar, R. S. Upadhyaya (P.W. 5), father of deceased Poonam Dubey has also not deposed anything in his evidence against him. Chandra Shekhar Upadhyaya (P.W. 6), brother of deceased Poonam Dubey, has not stated that any demand was made before him. Further, he has not been able to explain as to why this fact that appellants wanted Rs. 10,000/- for the celebration of "Chowk" Ceremony was not recorded in his police case diary statement. The evidence of neighbour, A. M. Das (P.W. 7) that the deceased Poonam Dubey had told him and her parents about the demand of Rs. 10,000/- for the celebration of "Chowk" Ceremony by the appellants and co-accused Bharti is too vague and omnibus to be relied upon more particularly when the appellants themselves did not depose anything against the appellant No. 1, Tarkeshwar. Needless to mention that on his same evidence, co-accused Bharti has been acquitted by the trial Court. Resultantly, I set aside the conviction and sentence of the appellant No. 1, Tarkeshwar, and acquit him of the charge under Section 304B of the Indian Penal Code.
9. Now coming to the evidence of prosecution, as against the appellant No. 2 Ram Pyari; witness Urmila Pandey (P.W. 3) has stated that when deceased Poonam Dubey had visited her on "Rakhi" after marriage, she disclosed that her mother-in-law (appellant No. 2 Ram Pyari) and Nanad (co-accused Bharti) were not happy with the dowry and they irritated her. According to her, she was told: by the) deceased Poonam Dubey that appellant No. 2 Ram Pyari used to ask for more money and ornaments at the time of delivery of her child. In the cross-examination, when she was confronted with her police case diary statement, she could not explain as to why these facts that appellant No. 2 Ram Pyari and Nanad were not happy with the dowry and that appellant No. 2 used to ask for more money and ornaments at the time of delivery of her child, were_ not mentioned in it.
10. Bindra Devi (P.W. 4) has deposed in her evidence that when the deceased Poonam Dubey had visited her during the "Mundan" Ceremony, she had disclosed that the appellants wanted money and they used to say that dowry was not sufficient. She has also deposed that the deceased Poonam Dubey lived with her husband at Siligudi for about nine months where she became pregnant and after which she returned to her in-laws. She has further deposed that after the delivery of child, their relations with the appellants improved and both the families started visiting each other. She has also deposed that the accused persons had asked her to fulfil their demand of Rs. 10,000/-and also of gold and silver. In her entire evidence, Bindra Devi (P.W. 4) has no where deposed that the appellants subjected the deceased Poonam Dubey with cruelty or harassment for the said demand. Further, in the Court she deposed against both the appellants with regard to making of aforesaid demand but in her police case diary statement she had made allegations only against appellant No. 2, Ram Pyari, and co-accused Bharti, who has been acquitted by the trial Court. The evidence of Bindra Devi (P.W. 4), having not been found reliable as against co-accused Bharti by the trial Court and appellant No. 1 Tarkeshwar by me, her evidence, in my opinion, cannot be relied upon as against appellant No. 2 Ram Pyari also. Not only this, in her cross-examination also, when she was confronted with the police case diary statement, she could not explain as to why the fact that appellant No. 2 Ram Pyari was not satisfied with the dowry and used to demand for more dowry, was not mentioned in it.
11. R. S. Upadhyaya (P.W. 5) has admitted in his evidence that appellants initially did not make any demand but alleged that later on they started making the demand. He also admitted that the deceased Poonam Dubey passed her B.Ed. examination from the house of appellants. He further admitted that in the letters, Exs. P-4 and P-5, which were written by the deceased Poonam Dubey she did not make any allegation whatsoever against the appellants. Letter, Ex. P-5, is dated 16-5-92 i.e. a month prior to the date of incident. From the perusal of the said letter, it becomes clear that she was happy with the appellants and her husband had come on leave for 20 days and there was a "Pooja" in their house. In fact, she had a grievance against her brother Chandra Shekhar Upadhyaya (P.W. 6) that despite request on telephone by the appellant No. 2, Ram Pyari, he did not attend the "Pooja". Her another letter, Ex. P-4, is dated 9-6-91 which she had written from Siligudi. From the perusal of the said letter, it becomes clear that she did not like the Siligudi town and its climate and that she had developed some urinary infection because of which she felt depressed. In both these letters, the deceased Poonam Dubey did not allege even a single word against the appellants regarding any cruelty and harassment on her by them. R. S. Upadhyaya (P.W. 5) has deposed in his evidence that the appellant No. 2 Ram Pyari and co-accused Bharti used to irritate the deceased Poonam Dubey for dowry and whenever he used to meet her, she complained about her harassment for the ornaments, etc. He has not stated as to who had harassed the deceased and on his same evidence the trial Court acquitted co-accused Bharti. According to R. S. Upadhyaya (P.W. 5), appellant No. 2, Ram Pyari, used to tell him that he should celebrate the birth of grandchild by spending money liberally. In my opinion, this was only a suggestion to celebrate the custom liberally and does not amount to demand of dowry. Further, he too in his cross-examination, when confronted with his police case diary, could not explain as to why the fact that the deceased Poonam Dubey had disclosed to him that the appellant No. 2, Ram Pyari, and co-accused Bharti were demanding ornaments, clothes and money, was not stated in it. His evidence in the Court has been Substantially contradicted by the police case diary statement on all the major points.
12. Chandra Shekhar Upadhyaya (P.W. 6) in his evidence has not stated anything that the deceased Poonam Dubey was subjected to cruelty by anyone and that the demand was ever made before him. He has only deposed that 3/4 months prior to the date of incident, a child was born to the deceased Poonam Dubey and for the celebration of "Chowk" Ceremony of the child, the appellants had asked for Rs. 10,000/-. Whatever it may be he has riot stated even a single word against the appellant No. 2 Ram Pyari that she subjected the deceased Poonam Dubey with cruelty or harassment for the said demand. A. M. Das (P. W. 7} has deposed in his evidence that the deceased Poonam Dubey had disclosed to her parents and him about the demand of Rs. 10,000/-for the celebration of "Chowk" Ceremony by the appellants and co-accused Bharti and that the appellant No. 2 Ram Pyari and co-accused Bharti often used to taunt her regarding transactions in the relationship. As already stated above, on the same evidence, co-accused Bharti has been acquitted by the trial Court. Further, his allegation is too vague and omnibus to be relied upon. According to him, the deceased had asked him to provide her an employment so that she may live happily.
13. In Sunil Bajaj v. State of Madhya Pradesh, AIR 2001 SC 3020 : (2001 Cri LJ 4700) the Supreme Court has held that normally, in a criminal case accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304B, I.P.C. an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the ingredients of the offence are proved by the prosecution.
14. Thus, as seen from the evidence on record, in my opinion, the trial Court committed serious is and manifest error in concluding that the appellants were guilty of the offence with the, crucial and necessary ingredient that the deceased Poonam Dubey was subjected to cruelty or harassment by them soon before her death for, or, in connection with the demand of dowry, was not established and also looking to the evidence of circumstances cumulatively. In Satvir Singh v. State of Punjab, AIR 2001 SC 2828 : (2001 Cri LJ 4625) the Supreme Court has held that customary payments in connection with the birth of a Child or other ceremonies are prevalent is different societies and such payments are not enveloped within the ambit of dowry. Dowry should be any property or valuable property given or agreed to be given in connection with, the marriage. The letters, Exs. P-4 and P-5, particularly Ex. P-4, which was written by the deceased Poonam Dubey only a month prior to the date of incident on which reliance is placed by the trial Court, she did not mention even a word about the demand of dowry and cruelty. If the deceased Poonam Dubey was apprised by the appellants to get money and if that was the cause for her sadness or difficulty, she could not have missed to write about the same particularly when she was highly educated as she had passed her B.Ed. examination while living with the appellants. On the contrary, she had a grievance that none from her side particularly her brother Chandra Shekhar Upadhyaya (P.W. 6) had attended the "Pooja" despite invitation by the appellant No. 2 Ram Pyari while her husband had come on leave. In Sunil Bajaj v. State of Madhya Pradesh (2001 Cri LJ 4700) (SC) (supra) the Supreme Court held that non-mention of demand of dowry in her letter by the deceased to her parents, written soon before her death, is an important circumstance for disbelieving the prosecution story regarding cruelty and dowry death. Consequently, I set aside the conviction and sentence of the appellant No. 2 Ram Pyari also and acquit her of the offence under Section 304B of the Indian Penal Code.
15. The appeal succeeds and is allowed.