Madhya Pradesh High Court
Shashi Kumar vs The State Of Madhya Pradesh on 27 August, 2007
Equivalent citations: 2007CRILJ4121
Author: K.S. Chauhan
Bench: K.S. Chauhan
JUDGMENT K.S. Chauhan, J.
1. This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 29.06.1993 passed by the Additional Sessions Judge, Dindori in Sessions Trial No.21/92 whereby the appellant has been convicted under Section 306 and 498A of IPC and sentenced to R.I. for 3 years and 6 months respectively to run concurrently.
2. The prosecution case is that Chhatar Singh Rathore, Ward Boy, P.H.C., Dindori submitted a written report given by Dr. R.M. Mishra, Assistant Surgeon, P.H.C., Dindori on 12.11.1991 to Station House Officer, Police Station Dindori that Smt. Anita Namdeo W/o Shashi Kumar, aged about 29 years was admitted in hospital. It was a case of finite poisoning. She expired on 12.11.1991 at 6:45 p.m. On this report, the marg intimation No.4/91 was registered and the inquiry was made. It was found that Smt. Anita Namdeo committed suicide on account of harassment and ill-treatment for demand of dowry by husband and his relatives and not conceiving the child. The crime No.210/91 was registered under Section 306 of I.P.C. The dead body of deceased was sent for postmortem examination which was conducted by Dr. R.M. Mishra on 13.11.1991. He opined that the death was due to asphyxia as a result of some poisoning. The container of Begon spray was seized from the spot. The statement of Smt. Anita Namdeo was recorded. Her brother submitted some letters which were seized by the police for proof of her handwriting. A copy was also seized. Her brother Umesh Kumar Namdeo also submitted a written report to the police. After completing the investigation, the charge sheet was filed in the Court of Judicial Magistrate First Class, Dindori wherein the Criminal Case No.813/91 was registered and the case was committed to the Sessions Court on 31.01.1992.
3. The accused persons were charged under Section 498A, 304B and 306 of I.P.C. The charges were that before 12.11.1991 within 7 years of marriage at Civil Lines, Dindori the accused Shashi Kumar being the husband of Smt.Anita Namdeo and other accused persons being the relatives of her husband subjected to cruelty for demand of dowry and for not conceiving the child as a result of which she committed suicide by taking poison on account of abetment.
4. The accused abjured the guilt and claimed to be tried. However, they have contended that Smt. Anita Namdeo came to know that she will not conceive the child in future, therefore, on account of frustration she committed suicide.
5. The prosecution examined as many as 13 witnesses and the accused persons 7 witnesses. After considering the evidence concluded that the prosecution has failed to prove the offence under Sections 498A, 304B and 306 of IPC against Beni Bai, Satendra Kumar and Shraddha @ Naina and hence acquitted them from the charges levelled against them. The trial Court also acquitted Shashi Kumar from the charge of 304-B of IPC but convicted and sentenced under Section 498A and 306 of IPC as stated in para No.1 of this judgment. Being aggrieved by the judgment finding and sentence of the trial Court, the instant appeal has been preferred by the appellant under Section 374(2) of Cr.P.C. on the grounds mentioned in the memo of appeal.
6. The learned Counsel for the appellant has submitted that the trial Court has not appreciated the evidence in the proper perspective. Smt. Anita Namdeo died on account of the frustration as her two children died and further she left the hope for conceiving the child in future. The prosecution has not proved that Smt. Anita Namdeo committed suicide on account of the abetment of the appellant. Further he has submitted that the appellant himself carried the deceased at hospital and Smt. Anita Namdeo also gave the statement Ex.P/6 to the police which indicates that she committed suicide on account of the death of her two children and nobody has harassed her. Therefore, on the basis of this dying declaration, appellant ought not to have been convicted.
7. On the other hand, Shri R.S. Patel, learned Addl. A.G. appearing on behalf of the respondent/State supported the judgment, finding and sentence passed by the trial Court and submitted that the appellant and his family members used to harass her after marriage, therefore, she committed suicide. The prosecution clearly established the guilt against the appellant, therefore, the trial Court has rightly convicted him under Section 306 and 498A of IPC and sentence thereunder.
8. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under Section 498A and 306 of IPC.
9. I have perused the entire case and evidence adduced therein.
10. Smt. Anita Namdeo was married with Shashi Kumar, the appellant on 12.03.1986 and she died on 12.11.1991. Her death occurred within the span of seven years of her marriage. Dr. R.M. Mishra (PW-1) has conducted the postmortem examination of deceased and submitted the report Ex.P/1. According to him, the death was due to asphyxia as a result of some poisoning. Shri R.P. Garg (PW-13), A.S.I. has seized Bagon spray vide Ex.P/5. Sukal Kumar Namdeo (PW-3) has also supported the fact that a container of Bagon spray was seized by the police officer. From the evidence of prosecution, it is established that Smt.Anita Namdeo has committed suicide.
11. The parents, brothers and other relatives of Smt. Anita Namdeo have deposed that the appellant subjected Smt. Anita Namdeo to cruelty for demand of dowry and ill-treated that she was unable to conceive the child. He also threatened to expel her from house and to remarry. Thus, he caused the mental torture to the deceased.
12. Shiv Kumar Namdeo (PW-5) has deposed that the appellant started harassing her after six months of marriage by demanding dowry articles such as portable T.V. set and motorcycle. The portable T.V. set was provided to him by Umesh Kumar Namdeo (PW-11) but the demand of motorcycle could not be fulfilled because they were not in a position to purchase the motorcycle and to provide him.
13. Shyamwati (PW-8) has also deposed that the behaviour of appellant changed after 3-4 years of the marriage of her daughter because her two children died and he was thinking to expel her from house and also to remarry. Her mother-in-law and sister-in-law were used to demand dowry articles.
14. Sitaram Namdeo (PW-12) has also deposed that after two years of marriage his daughter used to complaint her mother that she is being misbehaved in her in-laws house and they pressurize for providing the dowry articles. The father-in-law of deceased wrote a letter (Ex.P/12) to him demanding motorcycle and T.V. set. He has stated that his daughter was being harassed.
15. Umesh Kumar Namdeo (PW-11) has also stated that his sister told him that she is ill-treated in her in-laws house for demand of dowry.
16. Pushpa Namdeo (PW-9) has also stated that the demand of golden ring and T.V. set was made by the appellant and his relatives.
17. Sudha Namdeo (PW-10) has also stated that Anita Namdeo told her that she is being harassed in her in- laws house in connection with the dowry. She also stated that she should not be sent to her in laws house.
18. Rampyari Bai (PW-7) has also stated that Smt.Anita Namdeo told her that the demand of golden ring, Luna vehicle etc are being made in her in-laws house. It was also told by her that they have said that if demanded articles were not provided, she will be killed.
19. Apart from the oral evidence regarding the demand of dowry and harassment, the letters written by deceased has also been produced which have been seized by the police officer. Shiv Kumar Namdeo (PW-5) has deposed that Ex.P/4 is the last letter written by his sister. It is written in Ex.P/4 that she is being harassed for last six years in connection with demand of dowry. The appellant has also stated that since she is unable to conceive the child and, therefore, he is going to remarry. The appellant as well as his relatives have committed atrocities on her. Now she can not tolerate more and therefore, she has no option except to commit suicide for which the entire family of Krishndayal Namdeo is responsible.
20. Some other letters have also been produced, noticeable are Ex.P/9 which is written on 21.07.1988 wherein she has made request to his elder brother to take her back to the parental house so that she can live comfortably for some days of her life. Ex.P/11 is the letter dated 01.06.1989 wherein she has stated that she is now not in a position to tolerate the misbehaviour being done with her. In Ex.P/13 it is written that they were firstly not demanding any dowry but now they want this thing and that thing. These are some letters in which Smt.Anita Namdeo has written that she is being harassed for the demand of dowry by the appellant and his relatives.
21. The letter Ex.P/12 is said to be written by the father-inlaw of Smt. Anita Namdeo, wherein it is clearly mentioned that Luna, utensils, almirah, Mangalsutra etc were not given at the time of second marriage. It clearly indicates that the demand of dowry persisted even after the marriage. Thus, by oral and documentary evidence, the prosecution tried to establish that Smt.Anita Namdeo was subjected to cruelty and harassment for demand of dowry.
22. The evidence of Suresh Chand Gupta (DW-2), Niranjan Singh (DW-3), Gaya Prasad (DW-4), Rajkumar Pachori (DW-5), Jaiprakash (DW-6), Balmukund (DW-7) have been adduced on behalf of the appellant. Some letters Ex.D/2 to Ex.D/10 have also been referred to Shiv Kumar Namdeo (PW-5) to show that there were cordial relations in between the husband and wife but the letter Ex.P/4 which was her last letter outweighs such defence of appellant.
23. It also transpires that Smt. Anita Namdeo used to write letters confidentially to her parental house with the request not to disclose to the appellant which clearly goes to show that she was not even free to write letters. Moreover, the subsequent conduct of the appellant does not appear to be bona fide because he did not intimate to the concerned police as well as to her parents that Smt.Anita Namdeo has committed suicide. The police came to know about this incident only at the intimation given by the doctor for recording the dying declaration, therefore, subsequent conduct of the appellant is not bona fide.
24. The main defence of the appellant is document Ex.P/6, dying declaration which is recorded by R.P. Garg (PW13) A.S.I. on 12.11.1991 at 3:30 p.m. before two witnesses Prashant Dubey and Greesh Tiwari.
25. The incident is of 12.11.1991 at 9:00 a.m. She was admitted in hospital at 10.45 a.m. at P.H.C. Dindori. Dr. S.K. Khare informed the S.H.O. at 11:00 a.m. A.S.I. R.P. Garg (PW-13) recorded her statement at 3:30 p.m. but he has not taken any certificate from the doctor that she was in a fit mental condition to depose the statement. He himself has admitted in his deposition that she was not in a fit state to depose the statement otherwise her statement might have been recorded by the Tehsildar in question and answer form. He has clearly stated that the statement is not recorded in the question and answer form by him. On perusal of document, it is apparently clear that he has inserted the recital of note in the red ink in between the statement and thumb impression of deceased which clearly indicates that this recital has been added later on after recording her statement. From the record, it is apparently clear that Smt.Anita Namdeo was an educated woman and used to write several letters and sign. If she might have been conscious in the fit condition to give statement, then she would have signed on this statement and, therefore, there was no occasion to affix thumb impression. Thus, the police officer has not properly recorded her statement.
26. It is true that the dying declaration recorded by the Police Officer is admissible in evidence but the practice of investigating officer himself in recording dying declaration should not be encouraged as held in Vashir Shah and Ors. v. State of Rajasthan 1994 Cr.L.J. 2526. The following cases may also be seen in this respect:
Munna Raja v. State of MP A 1976 SC 2199;
Khushal Rao v. State of Bombay A 1958 SC 22;
Ramavati v. State A 1983 SC 164;
Navratan v. State 1985 CrLR(Raj) 644;
State v. Lichma Devi 1986(1) WLN 106;
Kishore v. State 1988 CrLR(Raj) 376;
Pratap v. State of Rajasthan 1989(1) PLR 594.
In case the doctor is available, he should also remain present when such a statement is recorded as has been held in the case of Bhag Singh v. State of H.P. 1994 Cr.L.J. 1398 H.P. In the case of Kake Singh v. State of M.P. 1982 SC 1021, it has been held that where the deceased unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
In Ram Manorath v. State of UP 1981 SCC (Cri) 281, it has been held that a dying declaration which suffers from infirmity can not form the basis of a conviction.
27. No doubt, the statement Ex.P/6 is the document which has been produced by the prosecution itself which contains that Smt. Anita Namdeo gave the statement that she has consumed the finite poison because her two children died but this statement has not been properly recorded by the police officer. The infirmities are there. This is not the true and voluntary statement in the light of the several letters written by her complaining about the harassment and ill-treatment by appellant and his family members. Her last letter Ex.P/4 outweighs the defence of innocence of the appellant and his family members. In Ex.P/4 she has described the troubles and miseries being faced by her in her in-laws house. The trial Court after giving reasons has not placed any reliance on this document and has rejected. The conclusion of trial Court is reasonable proper and correct.
28. There is overwhelming evidence in this case regarding the demand of dowry articles and to harass her in connection with the dowry demand, and there is also the evidence that the appellant threatened her to expel from his house because she was unable to conceive the child and to remarry. She has been constantly tortured mentally and harassed by the appellant and his family members.
29. Section 498A of IPC runs as follows:
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 liable to fine.
Explanation.-For the purposes of this section, 'cruelty' means-
(a) any willful 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 is on account of failure by her or any person related to her to meet such demand.
30. There is ample evidence in this case that Smt. Anita Namdeo was subjected to cruelty by the appellant and his family members in connection with the dowry demand, therefore, the finding of the trial Court that prosecution has proved the charge under Section 498A IPC against the appellant is correct. Such finding is affirmed being based on evidence.
31. So far as the offence under Section 306 IPC is concerned, the evidence of the prosecution is that the appellant persistently harassed his wife Smt. Anita Namdeo in connection with demand of dowry articles and also used to threaten her to expel from his house and to remarry. But the defence of the appellant is that Smt. Anita Namdeo was frustrated on account of the fact that she was not going to conceive child in future and, therefore, on that frustration she committed suicide. It has not been brought on record as to what was happened on the day of incidence because this fact that she is not going to be conceived child in future was well known to her before this incident. Actually something was happened which was within the knowledge of the deceased and the appellant himself. It increased the intensity of her harassment and consequently she committed suicide.
32. From the oral and documentary evidence adduced by the prosecution, it is clearly established that the deceased was being harassed by the appellant in connection demand of dowry and also threatening to expel her from house and to remarry. She has clearly mentioned in her last letter Ex.P/4 that she will commit suicide because now she is not in a position to tolerate more the miseries practiced upon her, therefore, the defence of the appellant that Smt.Anita Namdeo died on account of the frustration of not conceiving the child, is not acceptable. By the persistent misbehaviour, ill-treatment and harassment the appellant abetted the commission of suicide as a result of which she committed suicide.
33. The learned Counsel for the appellant placed the reliance on the judgment rendered by the Apex Court in the case of Sunil Bajaj v. State of M.P. but the facts and circumstances of this case are quite distinguishable on facts because in this case there is ample evidence regarding persistent demand of dowry articles and harassment.
34. The trial Court has properly appreciated the evidence and rightly came to the conclusion that the guilt under Section 306 of I.P.C. has been proved beyond reasonable doubt against the appellant. There is no any infirmities in the judgment of trial Court hence interference is unwarranted.
35. Consequently the appeal fails and is dismissed accordingly. The appellant is on bail. His bail bonds are cancelled. He be directed to surrender before C.J.M., Dindori on 24.09.2007 to serve out the remaining part of sentence.