Madhya Pradesh High Court
Mahendra Sahu vs State Of Madhya Pradesh on 14 May, 2004
Equivalent citations: 2005CRILJ873, II(2005)DMC90, 2005 CRI. L. J. 873, (2005) 2 DMC 90, (2004) 4 MPLJ 130, (2004) 24 ALLINDCAS 766 (MP)
JUDGMENT Ashok Kumar Tiwari, J.
1. Three accused persons namely-Mahendra Sahu s/o Kruparam Sahu, Niranjan Sahu s/o Kruparam Sahu and Devi Bai w/o Kruparam Sahu were tried before the 2nd, Additional Sessions Judge, Ujjain in Sessions Trial No. 93/97 and by judgment and order dated 27-7-2000 passed by him in the aforesaid sessions trial, accused Mahendra has been convicted under Section 304B of Indian Penal Code and Niranjan Sahu and Dev Bai were acquitted of the charge under Section 304B of Indian Penal Code, but they were convicted under Section 498A of Indian Penal Code.
2. Feeling aggrieved by the conviction and sentence awarded, accused Mahendra has filed Criminal Appeal No. 897/2000 and other convicted accused persons Niranjan Sahu, and Dev Bai have Jointly filed Criminal Appeal No. 860/2000. Since all the above-mentioned appeals arise out of one and the same judgment and order of conviction, therefore, they are being disposed of by this common judgment.
3. Briefly stated, the prosecution's case is that deceased was married to Niranjan Sahu alias Raju. Their marriage was solemnized on 27-4-1995. At the time of marriage, bed, fan and other household articles, silver and gold ornaments, jewellery and clothes were given in dowry, but bridegroom Niranjan alias Raju asked to give a scooter, which his in laws promised to give after some time in future whenever they could arrange money for that purpose. After the marriage, deceased informed through a letter that appellants have assaulted her in connection with the demand of scooter. Thereafter, the parents of the deceased arranged money for purchase of scooter.Thereafter, appellants also made demand for colour T.V. and refrigerator and they used to harass deceased in connection with the demand of dowry. Being fed up with cruelty of appellants and due to their harassment, deceased committed suicide by pouring kerosene oil on her and setting herself to fire. On the death of deceased, police registered murg No. 4/97 under Section 174 of Criminal Procedure Code and after enquiry, a Crime No. 32/97 under Section 304B of Indian Penal Code was registered against the appellants. After due investigation, charge-sheet was filed against the appellants.
4. Trial Court framed charges under Section 304B of Indian Penal Code against the appellants. Appellants abjured their guilt and demanded trial thereby they were tried for the commission of offence punishable under Section 304B of Indian Penal Code and after trial appellant Mahendra was convicted under Section 304B of Indian Penal Code and sentenced to undergo rigorous imprisonment for 8 years and to pay a fine of Rs. 200/-. Appellant Niranjan Sahu and Dev Bai were acquitted of the charges under Section 304B of Indian Penal Code, but they both were convicted under Section 498A of Indian Penal Code and each of them were sentenced to undergo 3 years' R.I. and to pay a fine of Rs. 200/-. Appellant Mahendra has preferred Criminal Appeal No. 897/2000 feeling aggrieved of his conviction and sentence while Niranjan Sahu and Dev Bai have preferred Criminal Appeal No. 860/2000.
5. On the basis of the letters (Ex. P/1 and P/2) learned trial Court has reached to the conclusion that deceased-Rekha was subjected to cruelty and harassment in connection with the demand of dowry. There appears no specific allegation against appellant Mahendra Sahu in these letters. There is no mention in these letters that particularly appellant-Mahendra made demand of dowry and that it was he who alone was harassing and maltreating her in connection with the demand of dowry. Allegations levelled in the letters allegedly written by deceased Rekha seems to be of general nature. When other accused namely appellants-Niranjan Sahu and Dev Bai Sahu who are respectively the husband and the mother-in-law of deceased-Rekha, there seems no justification to. hold appellant-Mahendra Sahu guilty of causing dowry death of Rekha who was his sister-in-law (Bhabhi). It does not appeal to reason that husband or mother-in-law did not make demand for dowry and younger brother of the husband only made demand of dowry and subjected the deceased to cruelty and harassment for and in connection with demand of dowry.
6. In the dying declaration (Ex. P/18) made by deceased Rekha, it has been deposed by her that her brother-in-law (Dewar) used to quarrel with her on trifling matters and at the Monday night, he came to assault her and on 16-12-1996 after quarrel, she set herself to fire at about 5.00 a.m. In her statement, she has not made any allegation against appellant-Mahendra that he subjected her to cruelty for or in connection with demand of dowry. Ex. P/18 also does not indicate that the quarrel or the assault made by appellant-Mahendra before one day of the incident of committing suicide by deceased-Rekha, was made in connection with any demand of dowry. The reasoning and the findings of the learned trial Court given in paragraphs 28 and 29 of the impugned judgment seems to be misconceived and palpably wrong. Had the deceased been harassed or assaulted in connection with any demand for dowry, she certainly would have stated in her dying declaration and she would not have referred the cause of quarrel or harassment as "trifling matters" (Chhoti Chhoti Banto Par).
7. On the basis of dying declaration (Ex. P/18), learned trial Court has drawn the conclusion that deceased was subjected to cruelty one day prior to her committing suicide, but learned trial Court has refused to draw a conclusion that cruelty was not in connection with any demand of dowry. In paragraph 28 of the impugned judgment, learned trial Court has observed that burden to prove that aforesaid quarrel or assault one day prior to the incident was not in connection with any demand of dowry, lies on appellant-Mahendra. This approach of the learned trial Judge is against well settled and established principles of law.
8. Section 113B of Evidence Act does not make any provision to make two types of presumptions. The aforesaid section runs like this -
Section 113B. 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 had 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 purpose of this section, "dowry death" shall have the same meaning as in Section 304B of Indian Penal Code (45 of 1860).
The aforesaid Section clearly provides that when a woman has been subjected to cruelty or harassment for, or in connection with, any demand of dowry. Court shall presume regarding causing of the dowry death by the person who subjected her to such cruelty or harassment. Section 113B of Evidence Act does not provide that if such a woman is shown to be subjected to cruelty or harassment soon before her death, then Court shall or may also presume that cruelty or harassment was for, or in connection with, any demand of dowry. The conviction of appellant-Mahendra under Section 304B of Indian Penal Code is not based on proper appreciation of evidence and on sound principles of law. Hence, it deserves to be quashed. However, harassment and cruelty meted out to the deceased by him is established on the basis of the dying declaration, therefore, he is convicted under Section 498A instead of that under Section 304B of Indian Penal Code. As regards sentence, it appears that appellant-Mahendra has already undergone imprisonment for about more than 3 years and 8 months while the maximum jail sentence awardable under Section 498A of Indian Penal Code is 3 years. Therefore, no fruitful purpose will serve in inflicting sentence of imprisonment for a term lesser than three years.
9. Appellants Niranjan Sahu and Dev Bai Sahu have been acquitted of the charge under Section 304B of Indian Penal Code for which they were tried and learned trial Court had convicted them under Section 498A of Indian Penal Code. There is no specific evidence to the effect that they subjected any cruelty or harassment to deceased-Rekha. In the dying declaration (Ex. P/18) made by deceased-Rekha, no allegation against these appellants has been made. There is no sufficient and satisfactory evidence on record to sustain the conviction of these appellants and they deserve to be acquitted of the offence.
10. Consequently, Criminal Appeal No. 897/2000 partly succeeds. Conviction of the appellant-Mahendra Sahu is altered from Section 304B to Section 498A of Indian Penal Code and he is sentenced to undergo rigorous imprisonment for a term of three years and pay fine of Rs. 1,500/- (one thousand five hundred only); in default of payment of fine, he shall undergo rigorous imprisonment for 2 months. Criminal Appeal No. 860/2000 is allowed and appellants Niranjan Sahu and Dev Bai are acquitted of the charge under Section 498A of Indian Penal Code. Their bail bonds shall stand discharged. A copy of this judgment be kept in the record of Criminal Appeal No. 860/2000, Record be return.