Madhya Pradesh High Court
Mangal Ram And Anr. vs State Of M.P. on 5 November, 1998
Equivalent citations: 1999(1)MPLJ505
JUDGMENT V.K. Agrawal, J.
1. Accused/appellants stand convicted under Sections 304B and 498A of the Indian Penal Code and have been sentenced as under : both the accused/appellants have been sentenced to undergo R.I. for seven years and to pay fine of Rs. 1,000/- (One thousand) for offence punishable under Section 304B of Indian Penal Code while they have been sentenced to undergo R.I. for three years and to pay fine of Rs. 500/- (Five hundred) for offence punishable under Section 498A of Indian Penal Code, by judgment dated 2-8-1997 in Sessions Trial No. 78/95 by Sessions Judge, Sidhi.
2. The deceased Sudha was the second wife of Ramayan Prasad, son of appellants and was married to him in the month of May 1991. 'Gauna' ceremony was performed in October 1991. Ramayan Prasad, the husband of the deceased was employed in the Army and was posted at Ahmedabad. His parents - the appellants resided at Mawai where the incident occurred. Sudha died of burn injuries on 7-4-1995, i.e., within about four years of her marriage.
3. The prosecution case briefly stated is that, the accused/appellants used to demand four tolas of gold from deceased Sudha which was promised to be given at the time of marriage and also share in the earnings of their son Ramayan Prasad. They used to harass, maltreat and beat her. She had complained to her parents about the demand and harassment meted out to her by the appellants. Sudha thereafter stayed with her parents at Duari, whenever her husband Ramayan Prasad went away on his duty. In the month of March 1995 just prior to the incident Ramayan Prasad (P.W. 8) wrote a letter to his wife Sudha asking her to come to Mawai where he also would be reaching in the month of March-April 1995. Upon receiving letter of Ramayan Prasad, deceased Sudha went to her in-laws at Mawai on 5th of April, 1995. In the morning of 7th April, 1995 she sustained severe burn injuries, which proved fatal.
4. Intimation of the said incident (Ex.P-19) was given on 7-4-1995 by accused/appellant No. 1 Mangal Ram at Police Station Churhat, Distt. Sidhi, which was recorded as merg intimation. Padrnadhar Dwivedi (P.W.2) the father of deceased Sudha thereafter submitted an application (Ex.P-21) dt. 8-4-1995 addressed to S.H.O. Churhat alleging that his daughter has been burnt by the appellants with the request to take action against the culprits. After enquiry, F.I.R. (Ex.P-20) was recorded by S.H.O. Sidhi and offence was registered.
5. Inquest report (Ex.P.-16) on the dead body of Sudha was prepared. It was sent for postmortem examination. Dr. D. P. Agrawal (P.W.5) held autopsy and found 100% antimortem burn injuries on it. According to him the death was due to asphyxia and shock due to burn injuries. It was opined that the death was homicidal in nature. Postmortem report is (Ex. P-10/A). During investigation letters (Ex.P-1) to (Ex.P-9) written by Ramayan Prasad (P.W.8) to the deceased were seized. After concluding investigation, chargesheet was filed against the accused/appellants.
6. The learned trial Court framed charges for offence punishable under Sections 304B and 498A of Indian Penal Code against both the accused/appellants. They abjured guilt. Their defence is that at the time the deceased committed suicide, they were not at home and had gone to pick 'Mahua' fruits.
7. Learned trial Court found that the charge for both the offences punishable under Sections 304B and 498A of Indian Penal Code has been proved beyond reasonable doubt against the accused/appellants and they were accordingly convicted and sentenced therefor, as mentioned earlier.
8. Learned counsel for appellants has mainly urged that deceased Sudha committed suicide by self immolation, when the accused/appellants were out of the house; and that the immediate cause for suicide was quarrel with Ramayan Prasad, Ram Nihore and Ramdas, who had abused her shortly before the incident. Therefore, it is submitted that the accused/appellants cannot be held liable under Section 304B of Indian Penal Code. It has also been submitted that at most the appellants can be held liable under Section 498A of Indian Penal Code. It was further submitted that as the appellants are old persons, consideration in the matter of sentences deserves to be shown to them.
9. From the statement of Padmadhar Dwivedi (P.W.2) the father of deceased, it would appear that the deceased was married to Ramayan Prasad, son of appellants in the month of May 1991 and thereafter 'Gauna' ceremony took place in the month of October 1991. It is also abundantly clear from the evidence on record that Sudha died of burn injuries on 7-4-1995. Dr. D. P. Agrawal (P.W.5) conducted postmortem examination on the dead body and has opined that she died of shock and asphyxia, due to 100% burns, as would also appear from postmortem report (Ex.P-10/A).
10. Therefore, it is clear that the deceased Sudha died of burn injuries within 7 years of marriage. Therefore, the questions that arise for consideration are :
(a) Whether the deceased soon before her death was subjected to cruelty by appellants? and
(b) Whether the cruelty was meted out to her by the appellants for or in connection with demand of dowry?
11. In the above context Padmadhar Dwivedi (P.W.2) father of the deceased has stated that in the month of March 1992 'Ramna' ceremony of deceased had taken place, whereafter she remained with her in-laws for sometime and came back after about a month without being called. She had informed him that the appellants used to beat her and did not provide her with proper meals and have turned her out and asked her to bring from her parents, whatever was promised to be given to her at the time of her marriage. She also informed that the appellants threatened her that they would kill her, in case the commitment as above was not fulfilled by the father of the deceased.
12. Padmadhar Dwivedi (P.W.2) has further stated that in July 1992 his elder son Sukhender Dwivedi (P.W.1) was blessed with a son. On that occasion Ramayan Prasad (P.W. 8) had come to his house. Padmadhar Dwivedi (P.W.2) complained to Ramayan Prasad about the demand and maltreatment as above by appellants, upon which Ramayan Prasad had taken Sudha with him to Ahmedabad. She remained there for sometime with Ramayan Prasad and then had come back to her parents. Padmadhar Dwivedi (P.W. 2) has also stated that whenever Ramayan Prasad (P.W.8) used to come home on leave, he would take Sudha to his parents' home at Mawai and when he went back to join his duties, he would leave Sudha at her parents' home. He further states that during April 1992 to February 1995 Sudha did not complain against the appellants.
13. The statement of Padmadhar Dwivedi (P.W.2) further is that at the time of Shivratri in the year 1995 when Ramayan Prasad came on leave, he had taken Sudha to Mawai. Thereafter he proceeded on duty. On the third day after Ramayan Prasad had left for duties Sudha had again come back to her parents and told her father Padmadhar Dwivedi that the appellants had again beaten her and they have turned Sudha out of the house. Sudha informed that the appellants had demanded the articles committed to be given in the marriage by Padmadhar Dwivedi (P.W.2). He has further explained that accused/appellant Mangal Ram had asked for 4 tolas of gold more in the marriage, but since Padmadhar Dwivedi (P.W.2) was not in a position to give it, he had assured that he would be giving the gold later on.
14. It further appears from the statement of Padmadhar Dwivedi (P.W.2) that later on at around the end of March 1995 Ramayan Prasad wrote a letter to the deceased to come to Mawai as he wished to construct a house at Mawai. Thereupon though the parents of the deceased - Padmadhar Dwivedi (P.W.2) and Manwati (P.W.3), asked her not to go to Mawai, but Sudha did not pay heed to their advice and went to Mawai. Thereafter on 7th April they received information that Sudha had died of burn injuries. Padmadhar Dwivedi (P.W.2) has stated that (Ex.P-1) to (Ex.P-6) are the letters written by her husband Ramayan Prasad. Ramayan Prasad (P.W.8) has also admitted that (Ex.P-1) to (Ex.P-9) are the letters written by him.
15. The statement of Manwati (P.W.3) and Sukhender Dwivedi (P.W.1), the mother and brother of the deceased corroborate the above statement of Padmadhar Dwivedi (P.W.2), and it appears therefrom that the appellants demanded 4 tolas of gold and used to beat her and had turned her out as the demand as above, was not met. It also appears from their statements that on the last occasion about 3 days prior to her death Sudha had gone to Mawai on receiving a letter from her husband Ramayan Prasad (P.W.8), who had asked her to come there, as he wanted to construct a house. Above statements are supported by statement of Ramayan Prasad (P.W.8) the husband of deceased also, who has admitted that he wrote a letter to Sudha asking him to come to Mawai, as the house was to be constructed.
16. From the above evidence on record it would appear that the appellants used to demand 4 tolas of gold, and since that demand was not being met, they used to maltreat the deceased Sudha and had even turned her out of their house due to which Sudha was forced to go back to her parents. It would also appear that due to the harassment by the appellants the deceased was forced to live with her parents. She would visit her matrimonial house at Mawai only whenever her husband Ramayan Prasad (P.W.8) used to come there. When Ramayan Prasad (P.W.8) used to go back to his duties, he used to leave Sudha at her parents' house. It also appears that Sudha had gone to Mawai on 5th April, 1995 before her death on receiving a letter from Ramayan Prasad asking her to come there, as he wanted to construct a separate house.
17. It is clear from above that the accused/appellants who are in-laws of deceased Sudha had harassed Sudha with a view of coercing her and her father to meet their demand of 4 tolas of gold and had beaten and turned her out, as their demand as above was not met. Therefore, deceased Sudha was subjected to cruelty for or in connection with demand of dowry by the appellants, is abundantly clear from the above evidence on record. Accordingly, the appellants were rightly held guilty under Section 498A of Indian Penal Code, by the trial Court.
18. Learned counsel for appellants has however urged that the suicide by the deceased was not on account of cruelty as above on the part of appellants, but the cause for her suicide appears to be the quarrel with Ramprakash, Ram Nihore and Ramhit. In this context mention has been made to the statement of Shivmohan (P.W.6) and Rambhauwan (P.W.7). It would appear from the above statements of Shivmohan (P.W.6) and Rambhauwan (P.W.7) that in the morning of the day on which the incident occurred, Ramprakash, Ramnihore and Ramhit were abusing the deceased. Rambhauwan (P.W.7) also stated that Ramhit and Ramprakash had not only abused the deceased, but had also beaten her, in his presence, whereafter he had returned back, shortly thereafter deceased committed self-immolation.
19. Therefore, it appears in the above circumstances of the case that the abuses and assault by the above persons namely Ram Prakash, Ramhit and Ram Nihore was the immediate and direct cause for the commission of suicide by the deceased.
20. Learned counsel for the appellants has submitted that prior to the occurrence Sudha had willingly gone to Mawai to her in-laws house after receiving a letter around the end of March 1995 from her husband Ramayan Prasad, in which he had informed her that he is also reaching Mawai and he intended to construct a separate house for themselves. It has further been submitted that there is no evidence that after Sudha had gone to Mawai as above, there was any maltreatment or demand of dowry by the appellants. It has therefore been submitted that, there is no evidence that 'soon before' her death, there was any demand of dowry by the appellants or that any of them harassed or meted out cruelty to the deceased, for or in connection with any such demand. In this connection he has relied upon the decisions of Orissa High Court in the case of Keshab Chandra Panda v. State, 1995 Cri. L.J. 174 and also a decision of Calcutta High Court in case of Samir Samanta v. State, 1993 Cri. L.J. 134.
21. In Sham Lal v. State of Haryana, AIR 1997 SCW1614 it has been laid down that, for invoking legal presumption of dowry death under Section 113B of the Evidence Act, it is imperative to prove that the deceased was subjected to cruelty or harassment soon before her death. In the said case there was persisting dispute between the two sides regarding the dowry and on account of failure to meet the demand of dowry of appellant, the deceased was taken by the parents to her house about l 1/2 years prior to her death. A panchayat was held in which it was resolved that the deceased would go back to the nuptial home pursuant to which she was taken to his house by the husband, 15 days before the incident. Thereafter she committed suicide by self- immolation. It was held therein that since there was no evidence on record to show that she was either treated with cruelty or harassment for or in connection with the demand of dowry during the period between her having been taken to her parental home and her death; hence, it was not permissible to take recourse to the legal presumption envisaged in Section 113B of the Evidence Act. It was observed in that context that above rule of evidence was prescribed in law to obviate the difficulty of the prosecution to further prove that the offence was perpetrated by the husband or her relatives, as then it would be the burden of the accused to rebut the presumption. As a result, the accused in that case was acquitted of the charge under Section 304B of Indian Penal Code, though he was convicted under Section 498A of Indian Penal Code.
22. In Samir Samanta's case (supra) the Division Bench of Calcutta High Court, while considering the scope and circumstances in which presumption under Section 113B of the Evidence Act can be invoked for proof of offence of dowry death under Section 304B of the Indian Penal Code, has observed that Section 113B is pregnant with the idea of proximity test and the cruelty and harassment must be shown to have taken place soon before the death of deceased. It has further been observed that the question as to what length of time will answer the requirement of the words - soon before the death, may depend upon the facts and circumstances of the case. But the legislative intent is clear that the compelling presumption of Section 113B of the Evidence Act is confined only to cases where proximity of time by itself lends a safe assurance about the existence of a proximate relation between torture over dowry demand and unnatural death, as cause and effect.
23. Similary in Keshab Chandra Panda's case (supra) the Orissa High Court has observed that in order to prove offence under Section 304B of Indian Penal Code with the aid of presumption under Section 113B of the Evidence Act, the prosecution must show that soon before the death there was cruelty or harassment and only in that case the presumption would operate. It is further observed that 'soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period soon before the occurrence. The expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
24. It may be recapitulated that, in the instant case, the deceased Sudha, who was with her parents for quite some time, after receiving the letter of her husband Ramayan Prasad (P.W.8) willingly went to her matrimonial house at Mawai, about a couple of days prior to the incident. There is no evidence to show that after she went to Mawai any ill-treatment or cruelty was meted out to her by the appellants. Thus there is no material on record to infer that deceased was subjected to cruelty 'soon before' her death. In fact there is positive evidence on record that the probable and immediate cause of suicide by deceased Sudha was the quarrel on the date of incident, with Ramprakash, Ram Nihore and Ramhit.
25. In the above circumstances the legal presumption under Section 113B of the Evidence Act cannot be drawn against the accused/appellants. Therefore, the appellants cannot be held guilty for the offence of causing dowry death of deceased Sudha. Therefore their conviction under Section 304B of the Indian Penal Code for the foregoing reasons does not appear to be justified and deserves to be set aside.
26. Accordingly, the appeal is partly allowed. The accused/appellants are acquitted of the charge under Section 304B of the Indian Penal Code and also their sentence therefor is set aside. However, the conviction and sentence of accused/appellants under Section 498A of the Indian Penal Code is maintained. Accused/appellant No. 2 - Smt. Terasi is on bail. She shall surrender before the trial Court on 11-12-1998 for undergoing the remaining part of sentence.