Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Smt. Kattu Bai vs The State Of Madhya Pradesh on 21 November, 2017

                                                1                                   CRR No.2574/2017




  HIGH COURT OF MADHYA PRADESH : AT JABALPUR

                        Criminal Revision No.2574/2017

     1. Kattu Bai,
     W/o Kishorilal Ahirwar
     Aged about - 42 years,

     2. Kishorilal,
     S/o Chhimna Ahirwar,
     Aged about - 51 years,

     3. Vimla,
     W/o Rakesh Ahirwar,
     Aged about - 23 years,

     4. Rakesh S/o Kishorilal Ahirwar
     Aged about - 28 years,

     5. Rajesh, S/o Kishorilal Ahirwar,
     Aged about 21 years
     All are Rs/o- Patharikala,
     P.S. Bijawar,
     District Chhatarpur (MP)

                                                                                  Petitioners


     1. The State of M.P.
     Through - Police Station Bijawar,
     District- Chhatarpur (MP)

                                                                               Respondent
.................................................................................................................

Present:- Hon'ble Shri Justice C.V. Sirpurkar
..................................................................................................................
          Shri Anoop Saxena, counsel for the petitioners.
          Shri Manish Kumar Soni, Government Advocate for the
respondent/State.
..................................................................................................................
                            2                   CRR No.2574/2017




                          ORDER

(21-11-2017)

1. This criminal revision is directed against the order dated 15.09.2017 passed by the Court of Shri D. K. Nagle, Additional Sessions Judge, Bijawar, District Chhatarpur in Sessions Trial No.200/2017; whereby a charge under Sections 302, 304-B and 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, 1961 was framed against petitioners/accused persons Kattu Bai, Kishorilal, Vimla, Rakesh and Rajesh.

2. The prosecution case before the trial Court may briefly be stated thus: Deceased Roshni had married petitioner Rajesh on 26.04.2016. Petitioner Kattu Bai is mother of Rajesh, petitioner Vimla is his sister-in-law (Bhabi), Kishorilal is father and Rakesh is younger brother. At the time of marriage, petitioners did not make any demand for dowry; however, Kamla, father of the deceased had given dowry as per his capacity. After the marriage, the deceased used to tell her parents that her husband Rajesh was telling her that her father had not given anything in dowry; therefore, she should bring a motorcycle, a gold chain and Rs.50,000/- from her father. He threatened that if she failed to bring aforesaid items, he would kill her. After that, Devendra, brother of the deceased had gone to her matrimonial home to pacify her in-laws. On 08.02.2017, father-in-law Kishori had gone to the maternal home of the deceased to take her to her matrimonial home; whereon, Kamla had given a gold ring and gold danglers to him. At about 06:00 p.m. on 11.02.2017, the deceased caught fire in front of hearth. She was 3 CRR No.2574/2017 taken to Bijawar hospital by her in-laws. From Bijawar hospital, she was taken to Chhatarpur. At 10:45 p.m. she made a dying declaration to the Executive Magistrate, wherein she stated that she was sitting in front of the hearth cooking meals and somehow caught fire. Her in-laws ran to her rescue and took her to the hospital. There was no dispute with anyone. However, Kamla, father of the deceased and Devendra, brother of the deceased stated under section 161 and in their marg statements that in Chhatarpur hospital that Roshni had told them that at about 06:00 p.m. she was cooking meals. At that time, Rajesh came from behind, picked up a bucket filled with kerosene, poured it upon the deceased, pulled out a burning log from the hearth and set her afire. She ran outside; however, Rajesh had bolted the door. At that time, father-in-law Kishori, mother-in- law Kattu, brother-in-law Rakesh and sister-in-law Vimla were sitting outside the room. Devendra and Kamla also stated that all of them had conspired and got the deceased burnt by petitioner Rajesh. Thereafter, the deceased was taken to Gwalior; however, since her condition did not improve she was brought back to Chhatarpur, where she breathed her last on 19.02.2017.

3. Learned counsel for the petitioners has challenged the order of framing charge mainly on the ground that the deceased had admittedly given a dying declaration at 10:45 p.m. on 11.02.2017 to Executive Magistrate, wherein she categorically stated that she caught fire while she was sitting in front of hearth cooking meals and her in-laws took her to the hospital.

She has also clearly stated that there was no dispute in the house. It has also been contended that statements of her father Kamla and brother Devendra were recorded on 11.03.2017, i.e., about a month after the date of the incident. They claimed that the deceased had made an oral dying declaration on 11.02.2017 in Chhatarpur hospital wherein she had blamed her husband Rajesh of pouring kerosene upon her and setting her afire. Such oral dying declaration has no credibility in the face of the written dying declaration made in the presence of Executive Magistrate. It has also been submitted that a careful reading of the statements of Devendra and Kamla reveals that even in the oral dying declaration she did not level any allegation against Kattu Bai, Rakesh, Vimla or Kishori. That they had conspired with Rajesh to set the deceased afire is imagination of these two witnesses. It has also been urged that there is no allegation that Kishori, Kattu Bai, Rakesh and Vimla also made any demand for dowry and had in any manner inflicted cruelty upon the deceased due to non-fulfillment of aforesaid demand. In these circumstances, the trial Court grievously erred in framing charge against the petitioners. Therefore, it has been prayed that the petitioners be discharged.

4. Learned Government Advocate for the respondent/State on the other hand has opposed the revision petition and supported the impugned order.

5. After perusal of the record and due consideration of rival contentions, the Court is of the view that this criminal revision must succeed in part and petitioners Kishori, Kattu Bai, Rakesh 5 CRR No.2574/2017 and Vimla deserve to be discharged for the reasons hereinafter stated:

6. The Supreme Court has held in the case of Niranjan Singh Karam Singh vs Jitendra Bhimaraj Bijje and others, AIR 1990 SC 1962 that it is well settled that at the stage of Sections 227 and 228 of the Code of Criminal Procedure, that is the stage of framing of charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face-value, discloses the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

7. In the case of Union of India vs. Prafulla Kumar Samal, AIR 1979 SUPREME COURT 366 the Supreme Court held that in exercising his jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge, which under the present Code is a senior and experienced Court, cannot act merely as a Post- Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, and any basic infirmities appearing in the case and so on. The Supreme Court; however, cautioned that this does not mean that the Judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

8. In the case of State of Madhya Pradesh vs S.B. Johari and others, AIR 2000 SC 665, the Supreme Court held that the Court would not be justified in appreciating material produced by the prosecution at the stage of framing of the charge. At the stage of framing of charge, the trial Court is not required to marshal the material on record but only has to prima facie consider whether there is sufficient material against the accused.

9. In the light of aforesaid legal position, when we examine the material available on record i.e. the charge-sheet and the documents filed therewith by the prosecution, we may take note that so far as petitioner husband Rajesh is concerned, on one hand there is a written dying declaration recorded by the Executive Magistrate after certification by doctor, which was recorded first in point of time and on the othre, we have oral dying declaration allegedly made to the brother and father of the deceased. The written dying declaration entirely exonerates all petitioners and discloses that the deceased had died an accidental death; whereas the oral dying declaration explicitly implicates petitioner Rajesh in the murder. Thus, so far as petitioner Rajesh is concerned, we have two conflicting sets of material, one in his favour and other against him. The principles that where two views are possible, the one favouring the accused should be adopted, would have no application at the stage of framing of the charge. Here, if we have conflicting materials, one favouring the accused and other implicating him, the case will have to be put to trial. At this stage, the Court 7 CRR No.2574/2017 cannot, on the basis of arguments, decide which of the two conflicting sets of material may be relied upon. The oral dying declaration is also admissible piece of evidence. If during the trial, the written dying declaration is discredited and the witnesses testifying about oral dying declaration withstand cross-examination, the oral dying declaration would have potential to form sole basis of conviction of petitioner Rajesh not only under section 498-A or 304-B of the Indian Penal Code but also under section 302 of the Indian Penal Code. Thus, regardless of the written dying declaration, there is sufficient material available on record to frame a charge against husband Rajesh under section 302 and in the alternative under section 304-B and 498-A of the Indian Penal Code. Thus, the charge, as framed against petitioner Rajesh, warrants no interference.

10. However, the situation is different so far as other petitioners namely Kattu Bai, Kishorilal, Rakesh and Vimla are concerned.

11. It may be noted in this regard that the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, 2014(8) SCC 273, observed that:

"4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bedridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested.

12. It has been observed by the Supreme Court in Preeti Gupta v. State of Jharkhand , AIR 2010 SC 3363 that:

"The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."

"When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants."

13. Likewise, in the case of Neelu Chopra & anr. v. Bharti, AIR 2009 SC(Supp) 2950, Supreme Court held as follows:

"It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants."

14. A three judge bench of Supreme Court in the case of Kans Raj vs. State of Punjab, AIR 2000 SC 2324 observed that:

"For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusation are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in- laws of the deceased wives in the matters of dowry deaths which, if not 9 CRR No.2574/2017 discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."

15. It may be seen from the aforesaid judgments that the Supreme Court has expressed its concern with regard to false implication of husband and his relatives in the cases under section 498-A of the Indian Penal Code by disgruntled wives. It has also been held that the tendency of falsely implicating even those relatives of husband, who lived separately and in different cities is also growing. It has been held that if there are no specific and credible allegations, with necessary particulars against the relatives of the husband, they should not be made to suffer the ignominy of a criminal trial.

16. A perusal of the statements made by Devendra and Kamla reveals that there is no allegation that any of aforesaid four petitioners have made any demand for dowry. There is also no allegation that deceased Roshni ever told her father or brother that any of the aforesaid four petitioners ever inflicted any cruelty upon her. The only allegation against petitioner Kishori is that when he had gone to bring Roshni back to her matrimonial home, Roshni's father Kamla had purchased and given him one gold ring and one pair of gold danglers; however, without any demand, it would not constitute offence under section 498-A of the Indian Penal Code.

17. So far as offence under section 302 and in the alternative 304-B of the Indian Penal Code are concerned, both of aforesaid witnesses have leveled allegations against Rajesh. They have 10 CRR No.2574/2017 stated that Roshni had told them that Rajesh had poured kerosene upon her and had set her afire. She had run out but Rajesh had bolted the door from outside. Then they stated that Roshni had given the statement to Tehsildar in Chhatarpur hospital and after that they have stated that other members of the household namely Kishorilal, Kattu, Rakesh and Vimla were sitting outside in the veranda. All of them had conspired and got Rajesh pour kerosene upon her and set her afire. They further stated that Rajesh had killed Roshni by pouring kerosene upon her and set her ablaze and Kishorilal, Kattu Bai, Rakesh and Vimla were also complicit in the affair. It appears from the aforesaid statements that firstly deceased Roshni had not told Devendra and Kamla that other family members were also complicit in the matter. She had merely stated that other family members were sitting outside in the veranda. Even if it is assumed for the sake of arguments that Roshni had told them that others had also conspired with Rajesh to kill her, it is clear that it was merely her assumption. She did not disclose any basis for such assumption. Thus, there is no material available on record against petitioners Kishorilal, Kattu Bai, Rakesh and Vimla, which is capable of being converted into admissible evidence to sustain conviction of any of the aforesaid petitioners for any offence.

18. In aforesaid circumstances, petitioners Kattu Bai, Kishorilal, Rakesh and Vimla deserve to be discharged. The charge against aforesaid petitioners framed by the trial Court under sections 302 read with section 34, 304-B read with 11 CRR No.2574/2017 section 34 and 498-A read with section 34 is not sustainable in the eyes of law and deserves to be quashed.

19. Consequently, this criminal revision partly succeeds. The charge framed against the aforesaid petitioners by the trial Court by order dated 15.09.2017 is quashed. The aforesaid four petitioners namely, Kattu Bai, Kishorilal, Rakesh and Vimla are discharged.

20. The trial Court shall proceed with the trial against petitioner Rajesh as per law for the charge as framed by impugned order dated 15.09.2017.

(C.V. Sirpurkar) Judge b HIGH COURT OF MADHYA PRADESH : AT JABALPUR Criminal Revision No.2574/2017 Kattu Bai and others

-Vs-

State of Madhya Pradesh ORDER Post for : 21/11/2017 (C.V. Sirpurkar) Judge