Madhya Pradesh High Court
Kanai @ Kanhaiya vs The State Of Madhya Pradesh on 27 September, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
Cr.A. No. 2309/2009
THE HIGH COURT OF MADHYA PRADESH : JABAPLUR
D.B.-Hon'ble Shri Justice Vijay Kumar Shukla &
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.A.No. 2309/2009
Kanai @ Kanhaiya & others
Vs.
State of M.P.
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Shri Madan Singh, Advocate, Advocate for the appellants.
Ms. Anjana Kurariya, G.A. for the respondent-State.
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JUDGMENT
( .09.2019) Per:-Rajendra Kumar Srivastava J.
This Criminal Appeal under Section 374 (2) Cr.P.C. has been preferred by the appellants being aggrieved by the judgment of conviction and sentence dated 19.11.2009 in S.T. No. 168/2003 passed by learned 4 th ASJ (F.TC.), Damoh whereby the learned ASJ has convicted the appellants for the offence punishable under Section 498-A, 304-B, and 201 of IPC and as the offence under Section 498-A of IPC was occurred in same course of transaction, the trial Court sentenced them under Section 304-B and 201 of IPC to undergo for life imprisonment and R.I. for two years with fine of Rs. 1000/-, respectively to each appellants. Default stipulation has also been imposed by trial Court. 2 Cr.A. No. 2309/2009
2. During pendency of this appeal on 04.04.2014, the appellant No.1-Kanai @ Kanhaiya has died and on account of his death, this appeal has been abated in relation to appellant No.1. Therefore, this Court shall consider the appeal only in relation to appellants No. 2 to 5.
3. According to prosecution case, on 19.01.2001, marriage of deceased Prijesh was solemnized with appellant No.5 Manoj. Accused-Kanai was father- in-law, whereas appellant No.4/Bhagwati is mother-in-law and appellant Nos. 2 & 3 are brother-in-law of deceased, respectively. The marriage of deceased was performed by her brothers Manoj (P.W.-6) & Madan (P.W.-7) and during marriage, they had given sufficient articles to her sister (deceased) but they could not give motorbike. Appellant No.5-Manoj and appellant No.4-Bhagwati used to demand motorcycle as a dowry. On the event of first Vida, they had sent message to family members of deceased through her to give the motorcycle. On 03.05.2001, in the night at about 11 P.M. quarrel was made by Manoj & Bhagwati with deceased. Thereafter, on the same night, deceased Prijesh had died. Father-in-law Kanhaiyalal had informed to police station about the incident and police has registered the marg intimation vide Ex. P-11. Thereafter, Savita Suhane SDO Police (PW-8) reached on the spot and found burnt dead body of the deceased on the roof of appellant's house. She issued notice to the witnesses under Section 175 of Cr.P.C. to appear in inquiry proceeding and vide Ex. D-1, she prepared the document. She also prepared spot map vide Ex. P-5. Some articles were also seized from the spot vide Ex. P-6. The dead body of deceased was sent for post mortem and Dr. R.K. Bhardwaj (PW-2) and Dr. P.D. Kargaiya (PW-9) conducted post mortem and prepared the report vide Ex. P-1, burn injuries found on person of deceased are postmortem in nature. Police has registered the FIR for the offences punishable under Section 304-B, 34 & 201 of IPC vide Ex.P-9. Seized article were also sent for chemical examination to FSL 3 Cr.A. No. 2309/2009 Sagar vide Ex. P-14 and report is marked as Ex. P-16. Statements of witnesses were also recorded and thereafter police has filed the charge sheet.
4. In trial, the learned trial court has framed the charges under Sections 304- B, 498-A & 201 of IPC, the appellants-accused have abjured their guilt and want trial. They took the defence that on the day of incident, deceased was carrying chimney and due to sudden death, she got burn.
5. Thereafter, the trial court has examined as many as 9 prosecution witnesses and one defence witness in trial. The trial Court has also recorded the statements of accused-appellants under Section 313 of Cr.P.C and after considering the evidence of the case, the learned trial Judge, came to conclusion that the appellants found guilty for the offence punishable under sections 304-B, 498-A & 201 of IPC. While pronouncing sentence, the learned trial court has found that the offence under Sections 304-B and 498-A are made out in the same course of transaction of incident, thus, the appellants have been sentenced for the offence under Section 304-B of IPC. Therefore, the trial Court has convicted the appellants for the offence punishable under Section 304-B & 201 of IPC and sentenced as aforesaid. It is also to be necessary to mention that the trial Court has acquitted the accused Sangita (sister-in-law of the deceased) with the finding that the prosecution has failed to establish its case against her.
6. In this present appeal, learned counsel for the appellants submits that the judgment passed by the learned Trial Court is bad-in-law and contrary to facts and evidence of the case. The conviction and sentence awarded by the trial Court merely on the basis of circumstantial evidence, which suffers from non corroboration of any independent evidence. The judgment of trial court is based upon the evidence of interested witnesses i.e. Manoj Chourasiya ( PW-6) and Madan Chourasiya (PW-7), who are brother of the deceased. These witnesses were also present at the time of police proceeding, but they had not alleged 4 Cr.A. No. 2309/2009 anything against the appellants with regard to demand of dowry. Their police statements were also recorded after delay of more than 15 days on 20.05.2001 and this was the first occasion when they had alleged against the appellants. The learned trial court ought to have seen that there is no independent witness supporting prosecution case and most of the witnesses are either interested and hearsay to speak against the appellants. There is no such prior report or complaint with regard to making demand of dowry and cruelty with the deceased has ever been made by the deceased herself or by her relatives. The appellants-accused themselves informed the police about the incident and the deceased died in natural incident. There is no specific allegation made by the deceased relatives with regard to demand of dowry and cruelty against the appellants. In support of his contention, he has relied upon various judgments of Hon'ble Apex Court as well as this High Court, same are mentioned hereinunder:-
(1) V.K. Mishra Vs. State of Uttarakhand, 2015 Cri. L.J. 4021.
(2) Thakkan Jha & others Vs. State of Bihar, (2006) 1 Supreme Court Cases (Cri.) 309.
(3) S. Anil Kumar @ Anil Kumar Ganna Vs. State of Karnatka, 2013 (7) SCC 219.
(4) In the case of Kailash Vs. State of M.P. in Cr. A. No. 1275/2005 passed by High Court of M.P. (5) In the case of Raju @ Rajesh and another Vs. State of M.P. in Cr.A. No. 595/2007 passed by High Court of M.P.
7. On the other hand, learned counsel for the respondent-State opposes the argument of appellant's counsel and submits that the prosecution has succeed to prove its case beyond reasonable doubt. There is specific allegation against the appellants for demand of dowry and cruelty soon before death of deceased. The 5 Cr.A. No. 2309/2009 deceased was 20 years and 4 months old and she died of unnatural death within the period of four months from her marriage. The appellants had narrated false story of incident whereas the medical report of deceased clearly reflects that she was burnt after death, thus, the trial court has also convicted them for the offence under section 201 of IPC. There is no contradictions and omissions in the statements of the prosecution witnesses and they have duly supported the case of prosecution. Therefore, the learned trial court has rightly considered the evidence of the case and conviction and sentence imposed by the trial court is proper and not interferable. With the aforesaid submissions, he prays for dismissal of this appeal.
8. The accused were convicted for the offence punishable under Section 304-B, 498-A and 201 of IPC and the allegation which was proved against them that soon before death of deceased they had demanded dowry from her and due to its non-fulfillment, the death of the deceased was caused by burn otherwise than under normal circumstances. Before dealing with the merits of the case, it would be appropriate to discuss the legal aspect of Sections 304-B & 498-A of IPC.
"304B. 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."
498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be 6 Cr.A. No. 2309/2009 liable to fine. Explanation.--For the purpose of this section, "cruelty" means--
(a)any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
9. Section 304-B of IPC does not categorize death as homicidal or suicidal or accidental. On careful reading of the Section, it appears that any death occurring 'otherwise then under normal circumstances be called as dowry death' and the women's husband or his relative shall be deemed to have caused her death. Likely Section 498-A of IPC provides that any willful conduct of the husband or the relatives of the husband of a woman is of such in nature as is likely to drive the women to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman, is offence under Section 498-A of IPC. The evidentiary value of the aforesaid sections is provided under Sections 113-A & 113-B of Indian Evidence Act, 1872.
10. On reading of the above mentioned Sections, it appears that when the married woman has committed suicide within a period of seven years of her marriage, then presumption of Section 113-A comes into role whereas when a person has committed the dowry death of a woman and soon before the death such woman has been subjected by such person to cruelty or harassment for any demand of dowry, presumption of Section 113-B comes into effect. According to case of prosecution, the death of the deceased was not suicidal in nature and same was occurred in other than normal circumstances, thus, the presumption of Section 113-A does not comes into existence and we shall first consider the Section 113-B which provides the presumption for dowry death. The Section 113-B of Indian Evidence Act is also quoted as under:-
7 Cr.A. No. 2309/2009
"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)."
11. By passing various decision, the Hon'ble Apex Court has described the ingredients of Section 304-B IPC. One of it Kansraj Vs. State of Punjab, (2005) 5 SCC 207, the Hon'ble Apex Court has held as under:-
"....................In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:
(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;
(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.
12. A two stage process is required to be followed in respect of an offence punishable under Section 304-B IPC, first to make sure whether the ingredients of the Section have been made out against the accused and if the findings are affirmative then secondly to ascertain that the accused is deemed to have caused to death of the woman.
13. In Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577, a Bench of three Judges of the Hon'ble Apex Court explained the requirements of Section 304-B IPC read with Section 113-B of the Act. Paras 27 and 28 are important in this context and are reproduced below:
"27. The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal 8 Cr.A. No. 2309/2009 circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading Section 113-B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances ''the court shall presume that such person had caused dowry death'."
28. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved". So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross- examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both."
14. In another case Yashoda Vs. State of M.P., reported in (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 prove that the death was in the normal course and the accused were not connected. Relevant para No. 13 is quoted as under :
"13.................Once the prosecution proves the facts which give rise to 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 the 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. Thus, on careful reading of above cited provisions and principles, we sum up the principle mentioning that when the death of a woman is caused by burns or bodily injury or occurred otherwise than under normal circumstances within a period of seven years of her marriage and the woman was subjected to cruelty or 9 Cr.A. No. 2309/2009 harassment by her husband or any relative of her husband and such cruelty of her husband should be for or in connection with the demand of dowry and such cruelty or harassment, the deceased should have been subjected to soon before her death. In such circumstances, court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden lies upon him.
16. The learned trial court has given its finding with regard to nature of death of deceased occurred under the otherwise then normal circumstances, thus, we will examine the findings of the learned trial court is correct or not?
17. Dr. R.K. Bhardwaj (PW-2) has deposed in his deposition that he has performed the postmortem of deceased alongwith Dr. P.D. Kargaiya (PW-9). In examination, he found several injuries on her body, postmortem report of deceased is mentioned as under:
"Received dead body of an average built female lady, body lying supine, both lower limbs flexed at knee joints and both upper limbs flexed at elbow joints and interphalangeal joints. Right Upper limbs flexed at wrist joint. Body attain pugilistic appearance. Body is blackened, eyes closed tongue is protruded out and bitten between teeth, protruded portion of tongue is burnt, blood mixed froth present over left nostril. Whole body except both soles and foot are burnt, singing of hairs over posterior scalp & part of anterior scalp hairs present. Hairs of middle of the scalp are not burnt, eyebrows are burnt. Grade I & II burns present over face, neck and both legs. Grade III & IV burns present over both upper limbs, chest, back & upper part of abdomen. Grade V to VI burns out over lower abdomen, both gluteal region perineum & both thighs. Percentage of burns is about 97%. Blister present over lower part of Rt. Fore arms & hand. Blister contains air base of blister is hard, dry & yellow. Line of redness and signs of inflammation are absent. Burns describe appears to be postmortem in nature."
18. Further in his report, he mentioned that in trachea of deceased, no carbon soots were found and both the lungs were found congested and healthy. Further, in the left chamber of heart, dark blood was found whereas the right chamber 10 Cr.A. No. 2309/2009 was found empty. In his statement, he has stated that the injuries sustained on the body of deceased is postmortem in nature. Further in his cross-examination, he stated that if someone is burnt after his death then in such circumstances, carbon soot cannot be appeared in trachea. The appellants took the defence that when the deceased was going for urination carrying chimney, she suffered from heart failure and due to which she got burn and died but PW-9 Dr. P.D. Kargaiya has specifically stated that if the death of person occurred due to heart failure, same can be identified in postmortem examination.
19. The crucial question before this court is whether the medical evidence of the doctor is reliable or acceptable or not when the appellants took the defence that the deceased was burnt accidentally ?
20. In this regard in the case of Mukul Raj etc. Vs. Satish Kumar & ors. reported in (1992) 3 SCC 43, the Hon'ble Apex Court has discussed various medical jurisprudence to distinct the ante-mortem and post-mortem burn injuries, relevant para is quoted as under:-
"13. Regarding the distinction between ante-mortem and post-mortem burns, he pointed out the lines of redness, of vasication and reparative processes as distinctive features. He elaborated the same later. A reading of it gives the distinction and would be concluded thus:
(1) Ante-mortem burn injuries are characterised by the presence of burnt carbon particles (soot) in the trachea which is absent in the case of post-mortem burn injuries.
(2) Carbodyhaemoglobin is present in the heart blood in ante- mortem burning which is absent in case of post-mortem burning. (3) Ante-mortem burns are usually red owning to the tendency of the system to rush blood towards the injured parts for repairs, which is distinctly different from post-mortem burns which are hard and yellowish in colour.
(4) Blisters are prominently present in ante-mortem burns. Some blisters may appear in post-mortem burns, but they are distinctly different from ante-mortem burns, where blisters are full of protein rich fluid that contains a substantial amount of white cells, caused by the tendency of the system to rush in white cells to fight against infection. The presence of protein is so high that it becomes solid on heating. Post-mortem blisters hardly contain any protein in their fluid and whatever fluid is contained has so little protein that on heating only a faint opalescence is seen. The fluid in post-mortem blisters does not contain any white blood cells.11 Cr.A. No. 2309/2009
(5) In ante-mortem burns, reparative enzymes are present in the vicinity of burnt areas as the reparative enzymes would try to repair the burnt areas. Their presence could also be used for predicting the time since the person was burnt. Various enzymes appear at the following time:
(a) Enzyme esterase -- 30 minutes.
(b) Leucine aminopeptidase -- 2 hours approx.
(c) Acid Phosphatase -- 3 hours approx.
(d) Alkaline Phosphatase -- 5 hours. Reparative enzymes are not detected in post-mortem burns.
(6) Signs of infection in a burn injury only lead to the conclusion that the burn injury is ante-mortem in nature as there cannot be infection in a post-mortem burn injury, only putrefaction. Since infection occurs roughly 36 hours after the burn, one can easily predict the time since the burn injuries occurred.
21. Therefore, on reading of the above citation and on perusal of injuries sustained to deceased as well as evidence, this court has found that admittedlly, the death of deceased was occurred within 4-5 months from her marriage and she had not died of natural death. Her death was occurred in other than normal circumstances, thus, the findings of the trial court in this regard is found correct.
22. Now the next considerable question is that soon before her death, she had subjected to cruelty and harassment by accused in connection with any demand of dowry. Let we first examine the marg intimation registered by the police on the basis of information given by Kanai @ Kanhaiya (PW-1). On perusal of the same, it is found that he had informed to police that on the night of the incident, his son Manoj-appellant No.5 and deceased were sleeping in the middle room of the house wheres other appellants were sleeping in the ground floor. When the wife of the accued-Kanai woke up to drink water, she saw fire on 3 rd floor of house when she reached there she found that the deceased was burning and her son Manoj was sleeping in his room. The FIR was registered on 03.05.2001 and it is found that the parental family members of the deceased has alleged that the appellants were demanding motorcycle as a dowry and they have expressed their suspicion that due to non-fulfillment of the same, appellants had killed and burnt the deceased.
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23. Manoj Chourasiya (PW-6) brother of the deceased has deposed in his examination that when his sister came to her parental house, she told him that the appellants-accused were stating to bring a motorcycle and for which they were torturing her. The accused persons had brought her from his house 5-6 days before the incident. Thereafter, he came to know that the deceased has died. In his cross-examination, in para 9, he stated that when he went to matrimonial house of deceased for doing Vida ceremony, the accused persons told him to bring motorcycle. He further stated that he did not lodge any report at that time because he want to make cordial relation continue with appellants and he was ready to give the motorcycle subject to improvement in his financial condition. In para 18, he stated that at the time of incident, he did not say anything against the appellants to police because he was under nervousness. Further, he has denied the suggestion of defence counsel with regard to compromise.
24. Madan Chourasiya (PW-7) who is brother of deceased has stated almost same version as stated by Manoj Chourasiya (PW-6).
25. The defence has also examined Pramod @ Virendra Rajput as DW-1. He stated in his deposition that he is well introduced with the accused persons. He stated that he had managed meeting of accused Kanhaiya and Manoj (PW-6) and Manoj was demanding huge amount to make compromise in the case. Kanhaiya was ready to give 2-3 lakhs rupees for compromise but Manoj, brother of the deceased did not agree and demanding more.
26. The learned counsel for the appellants argued before the court that there is no independent witness in the case to prove the case of prosecution whereas the learned trial court has passed the judgment of conviction only on the basis of statements of interested witnesses PW-6 & 7. In this regard, in the case of Surinder Singh Vs. State of Haryana, (2014) 4 SCC 129, the Hon'ble Apex Court expressed its anxiety to the same context and held as under:- 13 Cr.A. No. 2309/2009
"33. Before closing, the most commonplace argument must be dealt with. In all cases of bride burning it is submitted that independent witnesses have not been examined. When harassment and cruelty is meted out to a woman within the four walls of the matrimonial home, it is difficult to get independent witnesses to depose about it. Only the inmates of the house and the relatives of the husband, who cause the cruelty, witness it. Their servants, being under their obligation, would never depose against them. Proverbially, neighbours are slippery witnesses. Moreover, witnesses have a tendency to stay away from courts. This is more so with neighbours. In bride burning cases who else will, therefore, depose about the misery of the deceased bride except her parents or her relatives? It is time we accept this reality. We, therefore, reject this submission."
27. The learned counsel for the appellants has also argued that there is no evidence shows that any demand of dowry was made soon before the death even in their deposition, PW-5 & 6 have stated that the deceased told them about the demand of dowry when she came to their house. There is no evidence which indicates that on the day of incident, any demand of the dowry was made by the appellants and for which quarrel took place. In the case of Kans Raj (supra), the Hon'ble Supreme Court has defined the meaning of phrase 'soon after' used in the provision of Section 304-B of IPC, relevant para is quoted as under:-
"15. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term "soon before"
is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.
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16. No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty and harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman..................."
28. In the present case, the incident was taken place after four or five days when she returned back to her matrimonial house from her parental house where she had disclosed about the cruelty and demand of dowry, thus, this is not a case where the allegation was leveled after lapse of more than enough time which fatal the case of prosecution.
29. So far as conviction for the offences under sections 498-A, 304-B and 201 of IPC with regard to appellant No. 5 Manoj (husband of deceased) are concerned, as above discussed, when the incident was taken place, appellant No. 5 was with the deceased in second floor of building whereas other appellants were sleeping on the ground floor. Though, allegation with regard to demand of dowry is concerned, the relatives of deceased had made general allegations against all the appellants, but the appellant No. 5 has failed to rebut and explain that how and under which circumstances deceased had died whereas he was sleeping with her. Since, the death of deceased was occurred within the period of seven years from her marriage even only within 4-5 months under other than normal circumstances and demand of dowry was made some days prior to incident, presumption under Section 113B of Indian Evidence Act shall be drawn against the appellant No. 5. Though, he took the defence that the deceased died and burnt due to heart failure when she was going for urination but Dr. A.K. Bhardwaj (PW-2) and Dr. P.D. Kargaiya (PW-9) do not support his defence, thus, the same is discarded. Further, evidence with regard to offence under Section 201 IPC is concerned, since, the appellant No. 5 was with the deceased when the incident was occurred and according to medical examiners, 15 Cr.A. No. 2309/2009 the injuries sustained on the person of deceased are post mortem in nature, therefore, it seems that the appellant No. 5 had not disclosed the true incident and he has suppressed the evidence. Therefore, after considering the evidence on record, it shall be presumed that appellant No. 5 Manoj, husband of deceased made demand of dowry soon before her death and due to which death of deceased was caused by burns in otherwise than normal circumstances within a period of seven years of marriage. Hence, conviction imposed by the trial Court for the offence punishable under Sections 498-A, 304-B and 201 of IPC is found proper.
30. So far as conviction for the offence under Sections under Sections 498-A, 304-B and 201 of IPC with regard to appellants No. 2 to 4 are concerned, it appears that they are mother-in-law and brother-in-law of the deceased. The accused/Kanai had informed to police about the incident and according to him, when the incident was taken place, appellant No.5 was with the deceased whereas all other appellants were sleeping on the ground floor. Further, after scrutinization of evidence available in the record, it is found that no specific allegations were made by the relatives of the deceased against the family members of husband/appellant No.5. On perusal of spot map as well as dehati nalsi, it appears that in two storied building, appellant No.5 Manoj and deceased were residing in first floor and on the night of the incident, they were sleeping there whereas other appellants were sleeping in ground floor. In almost similar circumstances, in the case of Raja Lal Singh Vs. State of Jharkhand reported in (2007) 15 SCC 415, the court found that the accused of that case lived with his wife on the first floor of the building whereas other co-accused of the case were living on the ground floors. The deceased was found dead due to hanging on the first floor in the room of her husband. The Hon'ble Apex Court found that there was no evidence to show that the other co-accused of that case had any 16 Cr.A. No. 2309/2009 hand in the incident which led to death to deceased. The Hon'ble Court has given benefit of doubt to the co-accused persons as they were living in the ground floor.
31. Admittedly, in the present case, appellant No. 5 Manoj was residing with deceased wife on first floor whereas other family members were living in ground floor, dehati nalishi itself shows this fact. Madan Chourasiya (PW-7) admitted in his cross examination that house of appellants is three story building and his sister deceased Prijesh and appellant No. 5 Manoj were residing in first floor of that house. Investigation Officer Savita Suhane (PW-8) admitted in her cross examination that the bedroom of deceased was at first floor after that stairs and then the roof comes. The dead body of deceased was found on the roof which is marked as No. 1 in spot map. The father-in-law and mother-in-law of the deceased were sleeping on ground floor which is marked as No.3 in spot map. So it is evident that appellants No. 2 to 4 were sleeping on the ground floor of that house. So far as allegation with regard to demand of dowry is concerned, the relatives of deceased had made general allegations against all the appellants and it is seen that in general tendency, in matrimonial cases, the family members of husband are being made as accused to create pressure upon them. Therefore, presumption of section under Section 113-B of Indian Evidence Act shall not be drawn against the appellant No.2 to 4. As the accused/Kanai had informed himself to police about the incident, we do not find any evidence which shows that appellants No. 2 to 4 have disappeared of evidence of offence or giving any false information. Therefore, the benefit of doubt should be given to the appellants No. 2 to 4.
32. With the aforesaid discussion, we sum up our conclusion observing that on perusal of statements of the witnesses as well as medical and oral evidence available on record, it is found that there is no specific evidence regarding 17 Cr.A. No. 2309/2009 cruelty, demand of dowry and suppression of any evidence are found proved against the appellant Nos. 2 to 4 and looking to the circumstances of the case, as at the time of incident, they were sleeping separately in ground floor, the benefit of doubt shall be given to them. Thus, appellants No. 2 to 4 namely Narayan, Vinay and Bhagwati are acquitted from the offence punishable under Sections 304-B, 498-A & 201 of IPC and they are in bail, thus, their bail bond shall be discharged.
33. As far as appellant No. 5 is concerned, we found that the presumption of Section 113-B goes against him and the findings of the learned trial judge is found correct, thus, the judgment passed by trial court with regard to appellant No.5 Manoj is hereby affirmed. So far as quantum of awarded sentence of undergoing life imprisonment to appellant No. 5 Manoj is concerned, looking to the evidence of the case, the same also does not warrant any interfere. Hence, this appeal with regard to appellant No. 5 Manoj is hereby dismissed.
34. Accordingly, this appeal is partly allowed.
(Vijay Kumar Shukla) (Rajendra Kumar Srivastava)
JUDGE JUDGE
pallavi
Digitally signed by PALLAVI SINHA
Date: 2019.09.30 17:14:08 +05'30'
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