Madhya Pradesh High Court
Rakesh Tiwari vs The State Of M.P. Judgement Given By: ... on 17 May, 2013
Author: Vimla Jain
Bench: Vimla Jain
1 Cr.A.No.1429/2005
Cr.A.No.1431/2005
HIGH COURT OF MADHYA PRADESH: JABALPUR AFR
Division Bench:Hon'ble Shri Justice Rakesh Saksena
Hon'ble Smt. Justice Vimla Jain
CRIMINAL APPEAL No.1429/2005
Rakesh Tiwari,son of Ramesh Tiwari,
aged 29 years, Resident of House No.
9/24, Police Line, Khandwa,District
Khandwa (M.P.)
....Appellant
-Versus-
State of Madhya Pradesh through
Police Station City Kotwali,
Khandwa District Khandwa (M.P.)
....Respondent
----------------------------------------------------
For the appellant: Shri Prakash Upadhyay Advocate.
For the respondent: Shri Amit Pandey, Panel Lawyer.
For the complainant:Shri Anand Nayak, Advocate.
----------------------------------------------------
CRIMINAL APPEAL NO.1431/2005
1. Ramesh Tiwari, son of Makhanlal
Tiwari aged 54 years.
2. Smt. Kusumlata Tiwari, wife of
Ramesh Tiwari,aged 50 years.
3. Ku. Snehlata Tiwari, daughter of
Ramesh Tiwari, aged 25 years.
All residents of House No.9/24,
Police Line, Khandwa (M.P.)
....Appellants
-Versus-
State of Madhya Pradesh through
Police Station City Kotwali, Khandwa
District Khandwa (M.P.)
...Respondent
----------------------------------------------------
For the appellants: Shri Prakash Upadhyay, Advocate.
For the respondent: Shri Amit Pandey, Panel Lawyer.
For the complainant:Shri Anand Nayak, Advocate.
----------------------------------------------------
2 Cr.A.No.1429/2005
Cr.A.No.1431/2005
Date of hearing: 09/05/2013
Date of Judgment: 17/05/2013
**********
J U D G M E N T
Per: Rakesh Saksena,J.
Since both the appeals arise out of the common impugned judgment, this judgment shall govern disposal of both the appeals.
2. Appellants have filed the above appeals against the judgment dated 12th July,2005 passed by I Additional Sessions Judge, Khandwa East Nimad (M.P.) in Sessions Trial No.23/2003 convicting appellant Rakesh Tiwari under section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs.5000/-. In default of payment of fine further rigorous imprisonment for one year, and convicting appellants Ramesh Tiwari, Smt.Kusumlata Tiwari and Ku.Snehlata Tiwari under section 498-A of the Indian Penal Code and sentencing them to rigorous imprisonment for 2 years with fine of Rs.1000/-. In default of payment of fine, further rigorous imprisonment for 6 months. Appellants Smt. Kusumlata Tiwari and Ku. Snehlata Tiwari have further been convicted under section 4 of the Dowry Prohibition Act and sentenced to rigorous imprisonment for 3 years. All the jail sentences have been directed to run concurrently. 3 Cr.A.No.1429/2005 Cr.A.No.1431/2005
3. In short, the prosecution case is that Jyoti, the daughter of Naval Kishore (PW-13) was married to appellant Rakesh Tiwari on 30.6.2002. After marriage, Rakesh Tiwari, her father-in-law Ramesh Tiwari, mother-in-law Kusumlata Tiwari and sister-in-law Snehlata Tiwari made demand of dowry and on not meeting the said demand, subjected her to cruelty. On 30.9.2002, early in the morning in the room of husband Rakesh Tiwari, Jyoti was found dead. On the same day, at about 6:45 a.m., accused Rakesh went to police Kotwali, Khandwa and tendered information that in the night of 29.9.2002, he slept with his wife in the same room, but in the morning at about 6:15 a.m. when he woke up he saw that his wife Jyoti had committed suicide by hanging on the ceiling fan with the help of her saree. On this information, head constable Gulab Singh Kajle (PW-12) recorded marg intimation Ex.P/13. When this information was sent to Sub Divisional Magistrate, Khandwa, on his direction Additional Tehsildar/ Executive Magistrate Smt. Usha Singh (PW-6) reached house No.9/24 Police line Khandwa where accused persons resided and prepared inquest memorandum Ex.P/2. Investigating Officer, after inquest, sent the dead body to district hospital Khandwa for postmortem examination. In the course of inquiry, 4 Cr.A.No.1429/2005 Cr.A.No.1431/2005 statements of witnesses including brothers and brother-in-law of deceased were recorded.
4. On 30.9.2002, Gajendra Narvariya (PW-8), Scientific Officer of Crime Mobile Unit, Khandwa, along with a photographer also reached the spot . He drew up a map of the spot and also got the scene of the crime photographed. PW-8 sent his report to police Kotwali, Khandwa.
5. On 1.10.2002 at about 8:30 a.m. Dr.S.B.Jain (PW-7), Dr.N.K.Jain and Dr.Hemlata Gupta conducted postmortem examination of the dead body of Jyoti in district hospital, Khandwa. In their opinion, the death of Jyoti was due to strangulation and was homicidal in nature.
6. After completing marg inquiry, DSP Manoj Shrivastava (PW-16) registered first information report Ex.P/29 against the accused persons under sections 302 & 498-A/34 of the Indian Penal Code. After completion of investigation, charge sheet, against the accused persons, was filed in the Court of Chief Judicial Magistrate, Khandwa and the case was thereafter committed for trial.
7. During trial,accused persons abjured their guilt and denied the charges. Accused Rakesh Tiwari denied commission of murder of his wife; according to him, in the morning when he woke up he saw his 5 Cr.A.No.1429/2005 Cr.A.No.1431/2005 wife hanging with the help of her saree on the fan. Though he removed her string and made her to lie on the bed but she was not alive. He then reported the matter to police. According to Ramesh Tiwari, in the night he was on duty at the office of Superintendent of Police. Kusumlata and Snehlata pleaded false implication. According to them, they never harassed deceased.
8. To substantiate its case, prosecution examined 16 witnesses. In their defence, accused Ramesh examined Omkarprasad Sharma (DW-1) and Kailash Patidar (DW-2). After appreciating the evidence on record, learned Additional Sessions Judge convicted and sentenced the accused persons as mentioned earlier. Aggrieved by the impugned judgment of conviction and sentence, accused/ appellants have preferred these appeals.
9. Shri Prakash Upadhyay, learned counsel for the appellants,submitted that learned trial Judge mis-appreciated the evidence on record and committed error in holding that appellants Ramesh Tiwari, Smt. Kusumlata Tiwari and Ku. Snehlata Tiwari subjected deceased to cruelty and made demand of dowry. He submitted that learned trial Judge further mis- appreciated the evidence of Dr.S.B.Jain (PW-7) and erred in holding that death of deceased was 6 Cr.A.No.1429/2005 Cr.A.No.1431/2005 homicidal in nature. On the other hand, Shri Amit Pandey, learned Panel Lawyer for State and Shri Anand Nayak, learned counsel for complainant, submitted that the trial Court committed no error in holding accused/appellants guilty and convicting them. The evidence on record is sufficient to prove guilt of the appellants. Finding of conviction recorded by the trial Court does not call for any interference.
10. We have heard the learned counsel for the parties at length, perused the impugned judgment and the evidence on record carefully.
11. The first and foremost question in the case is whether the death of deceased Jyoti was homicidal? Admittedly the death of deceased took place in the room in which she slept with her husband/accused Rakesh Tiwari. Rakesh, in the morning at 6:45 a.m. on 30.9.2002, gave intimation at police Kotwali, Khandwa that in the night he slept with his wife in the room. At about 6:15 a.m. when he woke up he saw that his wife committed suicide by hanging with a saree on the ceiling fan. This report Ex.P/13 was recorded as Marg No.44/2002 by head constable Gulab Singh (PW-12). After receipt of this information, Sub Divisional Magistrate, Khandwa directed Additional Tehsildar/ Executive 7 Cr.A.No.1429/2005 Cr.A.No.1431/2005 Magistrate Smt. Usha Singh (PW-6) to inspect the spot. PW-6 went at the house of accused persons and found dead body of deceased kept on the bed. On inspection of the body, she observed bluish marks on the left arm, right hand, neck and chest of deceased. She prepared a "Naksha Panchnama" Ex.P/2 and directed body of the deceased to be sent to district hospital, Khandwa for postmortem examination. She stated that accused Rakesh told to her that he removed the body of Jyoti from the fan. On the same day, at about 8:00 a.m., Scientific Officer of Crime Unit Khandwa Gajendra Narvariya (PW-8) inspected the spot and drew a sketch Ex.P/12 of the spot. He also got the photographs Ex.P/5 to Ex.P/11 taken by a photographer. PW-8 deposed that the knot of the saree was tied about 1 feet away from the fan. The distance between the bed and the knot was 7 feet and 8 inches. The height of the bed, on which the body of deceased was lying, was 1 feet and 7 inches. The stool having height of 1 feet and 8 inches was kept about 4 feet away from the bed. On opening the lips of deceased, he saw traces of blood under the teeth. There was slight bluish swelling on the right cheek. There was mild redness in the eyes. Both the hands of the deceased were bluish. 8 Cr.A.No.1429/2005 Cr.A.No.1431/2005
12. Postmortem examination of the body of deceased was conducted by Dr. S.B.Jain (PW-7) on 1.10.2002 along with Dr. N.K.Jain and Dr.Hemlata Gupta. According to Dr. Jain, Rigor mortis was present all over the body of deceased. The eyes of the deceased were closed and there was swelling on the face. There were marks of petechial haemorrhage over her neck, upper part of chest and both the arms. Bleeding was present from both the nostrils. A transverse ligature mark was present on the anterior aspect of the neck below thyroid cartilage. Postmortem lividity was present on the back. No other external injury was seen on the body. On internal examination, he found thyroid cartilage of the trachea broken. There were blood clots beneath the ligature mark. Trachea was congested. Left chamber of heart was empty; right chamber was filled with blood. Brain, spinal cord, diaphragm, ribs, trachea, right and left lungs, membranes of the eyes, intestine, liver, spleen and kidneys were congested. In his, and in the opinion of his colleague doctors, deceased had died of asphyxia due to strangulation within 48 hours prior to postmortem. The nature of death of deceased was homicidal. Postmortem report Ex.P/3-A was written and signed by him and also by his colleague doctors. 9 Cr.A.No.1429/2005 Cr.A.No.1431/2005
13. Dr. Jain was subjected to a lengthy cross- examination. He stated that in cases of strangulation and throttling struggle marks may or may not come. The ligature marks found on the neck could have been caused by saree, rope or a 'Dupatta'.
14. Learned counsel for the appellants submitted that since the tongue of deceased was found inside the mouth, it was wrongly opined by the doctor that it was a case of strangulation. He submitted that if it would have been a case of strangulation, the struggle marks would have been found on the body of deceased as well as on the body of accused, but since no such marks were found, it was quite probable that deceased might have committed suicide by hanging. Dr. Jain remained firm in his finding and firmly stated that it was not a case of hanging since the dribbling of saliva from the mouth was not present and ligature marks were straight in the front whereas in case of hanging the ligature marks are found going upwards from both sides of the neck. He also indicated that there was bleeding from the nose. Learned counsel for the appellants placing reliance on the ratio of the Apex Court decisions rendered in Subramaniam vs.State of T.N. and Anr.-2009 CRI.L.J.3002 and Dasari Siva 10 Cr.A.No.1429/2005 Cr.A.No.1431/2005 Prasad Reddy vs. Public Prosecutor, High Court of A.P.-(2004) 11 SCC 282 submitted that though it is a strong circumstance against accused if death of wife occurs in the matrimonial home and no explanation as to cause of death is given by accused-husband, but it cannot be made basis for conviction in absence of any evidence of violence on deceased and further if the symptoms usually found in death by asphyxia are not found, the opinion of doctor that the cause of death was asphyxia cannot be relied upon.
15. In the case of Subramaniam (supra), Apex Court observed:
"14. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefor."
Apex Court further observed: "Despite noticing that some of the usual symptoms that would be available in the case of death due to asphyxia by smothering were necessary still a purported formal opinion was arrived at that the prosecution had definitely established the cause of death."
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16. On examining the evidence adduced by the prosecution in the instant case, we find that a team of doctors minutely examined the body of deceased and found that it was a case of homicidal death by strangulation. Had it been a case of hanging the ligature marks on the neck would not have been found transverse on the neck, instead they would have gone upwards. When a team of doctors opined with certainty that it was a case of strangulation and not of a death by hanging, it would be difficult for this Court to substitute its opinion and hold that the death of deceased was not homicidal in nature. Though in cross-examination, Dr.Jain (PW-7) admitted that the Medical Jurisprudence of Taylor and Modi are recognized treatise in the medical field, but he was not confronted with any particular portion of the book expressing any inconsistent opinion under similar circumstances. For discrediting a doctor, who conducted postmortem examination and gave his opinion, it would be necessary that the portion of any other authoritative text books be put to him with a view to give him an opportunity to explain his stand.
17. In the case of Trimukh Maroti Kirkan vs. State of Maharashtra-(2006)10 SCC 681, the Apex Court held that "where an accused is alleged to have 12 Cr.A.No.1429/2005 Cr.A.No.1431/2005 committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling house where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
18. Learned counsel for the appellants submitted that since prosecution did not prove motive on the part of appellant Rakesh Tiwari to commit murder of his wife, merely on the basis of circumstance of last seen together, he cannot be held guilty for committing murder of his wife. In this regard, learned counsel for the appellants placed reliance on the case of Dasari Siva Prasad Reddy (supra). With due respect the facts of the said case are different than the facts of the case in hand. In case of Dasari Siva Prasad Reddy (supra), Apex Court observed that "High Court agreed with the trial Court that there was no immediate motive that prompted the accused to kill his wife, the allegation of accused demanding additional dowry 13 Cr.A.No.1429/2005 Cr.A.No.1431/2005 or suspecting the fidelity of his wife was not established beyond doubt and the evidence relating to deceased last seen in the company of accused was not reliable. Therefore, merely because death of deceased had taken place by asphyxia due to strangulation, the High Court ought not to have reversed the finding of acquittal of accused recorded by the trial Court since it was based on possible view.
19. In the instant case, it is admitted case of accused Rakesh Tiwari that he was alone with his wife in the night. Scientific Officer Gajendra Narvariya (PW-8) deposed that knot of saree tied with the fan was about 1 feet away from the fan. On perusal of photographs of the scene of occurrence, it is apparent that there was a long gap between the portion of the saree lying under the neck of deceased and the part of saree tied with the fan. It does not appear possible for deceased to have shortened the string allegedly made by saree. Apart from it, it is quite improbable that accused Rakesh, who was sleeping on the same bed could not wake up when deceased made preparation of hanging and pushed away the stool from the bed, since without removing the stool she could not have hanged herself. It is also significant to note that Executive Magistrate 14 Cr.A.No.1429/2005 Cr.A.No.1431/2005 Smt. Usha Singh (PW-6) when inspected the body of deceased, she found blue marks on the hand, cheek, chest and back of deceased and further that no dribbling of saliva was found from the mouth.
20. In the light of aforesaid circumstances, we are of the view that learned trial Judge rightly held that the death of deceased was due to asphyxia by strangulation and was homicidal in nature, and further that it was only accused Rakesh Tiwari who caused the death of deceased Jyoti.
21. As far as question of motive is concerned, it is not always possible for the prosecution to prove the same by direct evidence since motive often remains hidden in the heart and mind of accused, yet the trial Court found that when demands of saree and other articles were made from deceased by the mother and sister of accused Rakesh, it was disclosed by her to her father and brother in front of him at Betul. She also disclosed the conduct of his parents and sister about meeting out cruelty to her in his presence. He therefore, feeling insulted must have entertained grudge against her, and because of that, in the night, he strangulated her to death. The explanation given by appellant that in the morning when he woke up he found deceased hanging with the fan, appears blatantly false and unreliable. We, 15 Cr.A.No.1429/2005 Cr.A.No.1431/2005 therefore, affirm the conviction of appellant under section 302 of the Indian Penal Code.
22. As far as the question of conviction of appellants Ramesh Tiwari, Smt. Kusumlata Tiwari and Ku. Snehlata Tiwari under section 498-A I.P.C. and conviction of appellants Smt. Kusumlata Tiwari and Ku. Snehlata Tiwari under section 4 of the Dowry Prohibition Act is concerned, it rests mainly on the evidence of Naval Kishore (PW-13), Shyam Kishore (PW-1), Ramkishore (PW-9) and Basant Kumar Dixit (PW-11). These witnesses are respectively, the father, brothers and brother-in-law of deceased.
23. It is undisputed that marriage of deceased with accused Rakesh Tiwari took place on 30.6.2002 and deceased died of homicidal death on 30.9.2002. The death of deceased thus took place exactly within three months after her marriage. On appreciation of the evidence of aforesaid witnesses, learned trial Judge in paragraphs 19 & 23 of its judgment found that before 8.7.2002 none of the accused demanded dowry or anything else. Whatever was given to deceased in marriage were voluntary and customary gifts. However, after 8.7.2002, aforesaid accused persons started making demand of articles and subjected deceased to cruelty.
16 Cr.A.No.1429/2005Cr.A.No.1431/2005
24. Shyam Kishore Shukla (PW-1), the brother of deceased, deposed that after about 1 month 11 or 12 days of the marriage his brother Rajesh Shukla took Jyoti to village Kesiya where his parents resided. His another brother Sanjay when came to Betul, informed him that Jyoti told to him that her husband, father-in-law and sister-in-law made demand of 20 banarasi sarees, four daily wear sarees, other clothes, ornaments and full makeup articles. The same facts were reiterated by Ramkishore (PW-9), another brother of deceased. Ramkishore (PW-9) stated that when accused Rakesh came to Betul, Jyoti, in front of him, told that the behaviour of her father-in-law, mother-in-law and sister-in-law was not good. She also disclosed that these persons also told that she (Jyoti) was mad and they would marry Rakesh again. Rakesh then assured them that the mistake committed by his family members shall not be repeated.
25. Naval Kishore (PW-13), the father of deceased, stated that after about 1½ months, father- in-law of Jyoti sent her to village Kesiya where he lived. At that time his daughter was in pitiable condition. She told him that her in-laws have made her to swear that she should not tell anything happened in their house, to her parents otherwise 17 Cr.A.No.1429/2005 Cr.A.No.1431/2005 her all the four brothers shall die. She disclosed about the intimidation given by them that they will kill her. They only gave left over food to her to eat and taunted her. Naval Kishore stated that deceased told to him that her in-laws made demands of 20 banarasi sarees, other clothes, wheat, rice and other articles from her. They also intimidated her to leave their house after packing her luggage. Naval Kishore stated that Jyoti narrated all the facts about cruelty meted out to her by her in-laws, at Betul before accused Rakesh when he came there. He admitted that Rakesh apologised for the same and assured that there shall be no complaint in future. Though, certain contradictions and omissions were pointed out by the learned counsel in the statement of Naval Kishore (PW-13), but after perusal of his police statement Ex.D/15 we find that there were no such omissions, but the facts were recorded in somewhat different manner.
26. After a careful scrutiny of the evidence of aforesaid prosecution witnesses, we find that the learned trial Judge committed no error in holding that appellants Ramesh Tiwari, Smt. Kusumlata Tiwari and Ku.Snehlata Tiwari subjected deceased to cruelty punishable under section 498-A of the Indian Penal Code, and that Smt.Kusumlata Tiwari and Ku. Snehlata 18 Cr.A.No.1429/2005 Cr.A.No.1431/2005 Tiwari also committed offence under section 4 of the Dowry Prohibition Act. Their conviction on the aforesaid charges is, therefore, affirmed.
27. Learned counsel for the appellants submitted that the incident had occurred in the year 2002 since then about 10 years have elapsed. Appellants Ramesh Tiwari, Smt.Kusumlata Tiwari and Ku.Snehlata Tiwari have already remained in jail for a period of over three months. Appellants Ramesh Tiwari and Kusumlata Tiwari have now grown old attaining age above 60 years. Snehlata Tiwari has been married and is now living with her husband and family members. If they are sent back to jail after so many years again, it shall serve no useful purpose. In these circumstances, he prayed that their sentence of imprisonment for 2 years under section 498-A I.P.C. be reduced to the period of sentence already undergone by them. We find substance in the submission made by learned counsel for the appellants.
28. For the aforesaid reasons:
(i) Criminal Appeal No.1429/2005 of appellant Rakesh Tiwari is dismissed. His conviction and sentence awarded by the trial Court under section 302 I.P.C. is affirmed.19 Cr.A.No.1429/2005 Cr.A.No.1431/2005
(ii) Criminal Appeal No.1431/2005 is partly allowed. Conviction of appellants No.1 Ramesh Tiwari, No.2 Smt.Kusumlata Tiwari and No.3 Ku.Snehlata Tiwari under section 498-A I.P.C. is affirmed. However, sentence of rigorous imprisonment for 2 years awarded to them by the trial Court is reduced to the period of sentence already undergone by them. Sentence of fine is affirmed.
Conviction and sentence awarded to
appellants No.2 Smt. Kusumlata
Tiwari and No.3 Ku.Snehlata Tiwari
under section 4 of the Dowry
Prohibition Act is affirmed. Their
bail bonds and surety bonds stand
discharged.
A copy of this judgment be kept in the
record of Criminal Appeal No.1431/2005.
(Rakesh Saksena) (Smt. Vimla Jain)
Judge Judge
b
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Cr.A.No.1431/2005