Madhya Pradesh High Court
Shanti Bai vs The State Of M.P. on 12 September, 2017
CRA-438-1998
(SHANTI BAI Vs THE STATE OF M.P.)
12-09-2017
HIGH COURT OF MADHYA PRADESH:BENCH AT
INDORE
Single Bench: Hon'ble Shri Justice Virender Singh
Criminal Appeal No.438/1998
Shanti Bai W/o Ratanlal and others
Vs.
State of Madhya Pradesh
Ms. Bhagyashree Sugandhi, learned counsel for the
appellants.
Shri Abhishek Soni, learned Deputy Government Advocate
for the respondent/State.
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JUDGMENT
(Delivered on 12/09/2017) Being aggrieved by judgment and order dated 10/03/1998 passed in S.T. No.120/1994 by V th Additional Sessions Judge, Ujjain whereby the learned Sessions Court held the appellants guilty for the offence punishable under Section 304-B of IPC and imposed 10 years Rigorous Imprisonment, the appellants has preferred the present appeal.
2. Sans unnecessary details, facts of the case are that deceased-Sarita married to appellant No.3-Ashok 3-4 years back to the incident. On 27/08/1992, she was found dead by burn injuries; otherwise then under normal circumstance in the toilet of her house. During investigation, it was revealed that the appellants demanded dowry and subjected her to cruelty for not meeting their demand. They also abetted her to commit suicide. Nandram/Father of the deceased filed a written report. The police registered a case, investigated the same and filed the charge-sheet.
3. The accused were charged under Section 304-B, 498-A and 306 of IPC. After trial they were found guilty for the offence under Section 304-B and 498-A of IPC. Offence under Section 306 of IPC was not found proved. They were sentenced for the offence under Section 304-B of IPC and no separate punishment was awarded under Section 498-A of IPC, as the same was included in the offence under Section 304-B of IPC.
4. The appellants have come before this Court on the grounds that the impugned judgment is erroneous and contrary to law and facts of the case. Initially the appellants were charged and tried for an offence under Section 306 of IPC but later charge was altered and they were charged additionally under Section 304-B and 498-A of IPC vide order dated 22/04/1997. After framing of additional charge, the learned trial Court did not afforded them any opportunity of cross-examining the prosecution witnesses, who were already examined before alteration of charge dated 22/04/1997, thus they were deprived from their valuable legal right of further cross examination after alteration of charge, which prejudiced the trial. The evidence recorded prior to alteration, cannot be used for their conviction. The trial Court committed error in convicting them for the offence under Section 304-B of IPC as the prosecution has failed to prove the above charge against them beyond reasonable doubt by legal, admissible, reliable and unimpeachable evidence.
5. It is further contended that Demand of dowry and cruelty could not be established by reliable and convincing evidence. There was no specific allegation about demand of dowry or cruelty, all the allegations in this regard are fake and despite that the learned trial Court has believed them. Statement of witnesses are full of infirmities and contradictions. There is no independent or reliable evidence in support of the charge, judgment of trial Court is based on assumption, surmises and inadmissible in evidence.
6. Nandram, father of the deceased (PW/9) and Satyanarayan (PW/6) have stated that they received letters about allegations of cruelty and demand of dowry from the deceased but the same were not produced before the trial Court. The trial Court committed error in relying upon oral evidence regarding contents of these letters was inadmissible but the trial court has used the same for the purpose of conviction. The application/written report given by father of the deceased â Nandram to the Inspector Anil Bhatt does not bear the date of its submission. Provisions of Section 157 of Cr.P.C. were not complied with. All this shows that the whole prosecution story is suspicious. The prosecution did not state the story as mentioned in Ex.P/10 and concocted a new story about demand of dowry, a scooter and other things. The prosecution has failed to prove even a single instance of cruelty of the appellants from the evidence on record, therefore, presumption under Section 113-B of the Evidence Act could have not been drawn up by the learned trial Court.
7. In view of the facts and circumstances of the case, the statement of Anil Bhatt (PW/10) is unreliable and suspicious and should have not been acted upon by the learned lower Court. All the investigation is tainted. All the prosecution witnesses are interested witnesses being father, sister and brother of the deceased, they all were present at police station-Nagda on the date of the incident but did not lodge the report. It is alleged by these witnesses that they were examined on the same day and on the basis of their statements offence was registered but these statements have not been produced by the prosecution, therefore, the statements reported are makes the whole case suspicious and concocted. There are material contradictions in the case-diary statement and Court statement of witnesses, which the learned trial Court did not consider in right perspectives. Learned trial Court could have not relied upon on their testimony. The whole prosecution case is suspicious, evidence produced by the prosecution is not acceptable and inadmissible, therefore, on the basis of such evidence, they could not have convicted; therefore, they prayed for quashing of the judgment and their acquittal from the charges.
8. The prosecution has supported the judgment of the trial Court.
9. The appellants/accused persons has not disputed the facts that Sarita was found dead in the toilet of the house of the appellants on 27/08/1992 within 7 years of her marriage with Ashok (appellant No.3) by burn injuries; otherwise then under normal circumstance.
10. Admittedly, the appellants are husband, mother-in- law and brother-in-law of the deceased Sarita, who married to Ashok 3-4 years prior to her death.
11. It is well established that presumption under Section 113-B of the Evidence Act is only available to the prosecution, if it is proved that soon before her death, the deceased was subjected to cruelty or harassment by her husband or other relatives of her husband in connection with or for not meeting out the demand of dowry. In this regard we can refer Dhobilal vs. State of M.P. 1998 Cri.L.J. 4108, Ramesh vs. State of Haryana 1998 Cri.L.J. 165, Meka Ramaswamy vs. Dasari Mohan and others 1998 Cri.L.J. 1105, Mangal Ram and another vs. State of M.P. 1999 Cri.L.J. 4342, Keshab Chandra Panda vs. State of M.P. 1995 Cri.L.J. 174 and many other judgments.
12. It is held in Maya Devi and Anr. vs. State of Haryana AIR 2016 SC 125 that to attract the provisions of Section 304-B, one of the main ingredients of the offence which is required to be established is that 'soon before her death' she was subjected to cruelty or harassment 'for, or in connection with the demand for dowry'.
13. Para 7 of the judgment of the Honâble Apex Court passed in V. K. Mishra and Anr. vs. State of Uttarakhand and Anr. AIR 2015 SC 3043 is relevant here, which reads thus:
7. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:-
1. The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
2. Such a death should have occurred within seven years of her marriage.
3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
4. Such cruelty or harassment should be for or in connection with demand of dowry.
5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
On proof of the essential ingredients mentioned above, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. â¦.
14. Keeping in view the above set principles, I have examined the statement of sister-Rekha (PW/3), brother - Satyanarayan (PW/6) and Vishnu (PW/8) and father- Nandram (PW/9) and find that none of them have alleged that before or at the time of marriage appellants ever demanded any dowry. On the contrary, father-Nandram has specifically deposed in para 1 of his examination-in- chief that the appellants started demand of dowry after almost one year of the marriage. Sister- Rekha (PW/3) has stated in para 9 of her cross examination that no dowry was demanded at the time of marriage. After marriage Sarita visited 2-4 times between her matrimonial and maternal home but never complained about demand of dowry during this period. Thus, it creates doubt about the allegation of demand of dowry made later-on.
15. All the four star witnesses of the prosecution, Rekha, Satyanarayan, Vishnu and Nandram have made omnibus statement that after the marriage; the accused/appellants started demanding dowry. They did not say as to what exactly they have demanded or they have demanded any specific article. Similarly, no specific allegation that on which specific date or time or on which specific occasion, the appellants have demanded dowry. These all made statement by these witnesses vulnerable and unreliable. Only brother-Satyanarayan (PW/6) has stated that the deceased told him that the appellants demand scooter but no other witness has supported this statement and no such demand is mentioned in his police statement Ex.D/2, therefore, being stated first time in the Court, it becomes undependable.
16. It is mentioned in the written report filed by father Nandram (PW/9) that deceased narrated her difficulties to him through the letters. She used to write letters to her parents. He further stated in para 6 & 10 of his statement that the appellants posted a card demanding âRashanâ and dowry. Satyanarayan (PW/6) has also stated that his sister had sent a letter to him mentioning her difficulties. He further stated in para 7 of his cross- examination that his sister had also sent two post cards contenting her perplexities and demand of dowry made by and cruelty extended by the appellants but all these documents were not produced by the prosecution on record. Nandram has stated that he handed over all these letters to the police. The Investigating Officer-Anil Bhatt (PW/10) has admitted that he has seized post cards but the same has not been produced with the charge-sheet. Withholding of these letters raises presumption that if these letters would have been produced, they would have gone against the prosecution. This also creates doubts that no complaint as alleged by the prosecution made by the deceased in these letters/cards.
17. All the prosecution witnesses have admitted that prior to the present report, they have never complained about harassment or cruelty of the appellants towards the deceased to anyone. They have never raised this issue on any social platform or never complained the police nor issued notice through counsel or have taken any action at any forum. First time after the death of the deceased, they complained to the police regarding alleged demand of dowry or harassment.
18. Satynarayan (PW/6) and Nandram (PW/9) have alleged that the appellants used to beat the deceased. They demanded Rashan and scooter but the same is not mentioned in the FIR or in the police statements of the witnesses and revealed in the Court first time. Investigating Officer Anil Bhatt has admitted that Satyanayan and Nandram did not disclose these facts before him at the time of recording of their police statements.
19. There are contradiction in the statements of the witnesses as to when and where the written report was filed by Nandram or the witnesses made allegation, report does not bear any date of filing and there is no evidence of compliance of provisions of Section 157 of Cr.P.C. All these fact also made the prosecution story suspicious and benefit of doubt always goes to the accused.
20. Thus, it is clear that there is no evidence that soon before her death the deceased was subjected to cruelty, no dowry was demanded or agreed at the time of the marriage, allegations regarding demand of dowry or cruelty are not specific, statements of the witnesses in this regard are vague and omnibus, no action had ever been taken by the relatives of the deceased prior to the incident, no supporting documents like post cards or letters sent by the deceased have been produced even after their availability. All these facts make the case of the prosecution suspicious. Evidence produced by the prosecution falls short of credibility. In such circumstance, it can be said the evidence of the prosecution is not sufficient to establish the case of the prosecution beyond reasonable doubt or held the appellants guilty for such a heinous offence of dowry death or for a lesser offence of cruelty as defined under Section 498-A of IPC.
21. Learned trial Court failed to consider all these facts in right perspective and committed error in relying upon the omnibus and vague statement of witnesses. Learned Trial Court further committed error in not considering the fact that the prosecution could not establish that soon before her death the deceased was subjected to cruelty and in holding that on the basis of statement of father of the deceased, the fact of cruelty or demand of dowry is established, therefore, the judgment is not sustainable in the eyes of law. The case of the prosecution is doubtful. The appellants are entitled for benefit of doubt. Consequently, extending the same, I acquit them from the charges under Section 304-B and 498-A of IPC by allowing the present appeal.
22. The bail bonds furnished by the appellants stand discharged.
23. Order of the trial Court regarding disposal of property is hereby confirmed.
(VIRENDER SINGH) JUDGE