Manoj Shrivastava vs State Of M.P. on 1 October, 2014

[Cites 14, Cited by 9]

Madhya Pradesh High Court

Manoj Shrivastava vs State Of M.P. on 1 October, 2014

Criminal Appeal No. 198/2001 and Criminal Appeal No. 119/2002 have arisen out of the same judgment dated 30th March, 2001 passed by the Sessions Judge, Bhind in S.T. No. 13/92, whereby the learned trial Court has convicted appellant Manoj under Section 304-B and 498-A of IPC. At the same time acquitted the accused Ramkishan and Sharda Devi on the same charges.

2. Feeling aggrieved by the judgment of conviction, appellant, Manoj has filed appeal under Section 374 of Cr.P.C assailing and requesting for setting aside the judgment. Whereas, the State of Madhya Pradesh has filed 2 Cr.A No.119/02 and Cr. A. 198/01 Criminal Appeal No. 119/2002 under Section 378 of Cr. P.C challenging the judgment of acquittal of respondents Ramkishan and Sharda Devi.

3. It is not disputed that Rajni Saxena was married to appellant Manoj Shrivastava in June 1987 and respondents Ramkishan and Sharda Devi are the parents of the appellant Manoj Shrivastava. It is also not disputed that the accused persons are taken into custody on 22nd September, 1997 by memo of arrest Ex. P/23.

4. The facts transpired before the learned Trial Court are that on 10.9.1991 an information was sent by the District Hospital, Bhind to the Police Chowki of the District Hospital that Smt. Rajni Saxena wife of Manoj Shrivastava aged about 24 years, resident of Jain Mandir, Bhind has been brought dead to the Hospital. Merg No. 36/91 was registered under Section 174 of Cr.P.C. Dead body was sent for postmortem. Viscera received by police was sent for chemical examination.

5. During investigation, it was found that on 30.6.1987 marriage of Rajni Saxena was performed with accused Manoj Shrivastava. The accused Manoj Shrivastava was demanding scooter from the father of the deceased Rajni since the time of marriage. As the demand was not fulfilled, accused Manoj, his father and mother were harassing Rajni and she was subjected to cruelty. They have threatened her that she will be divorced, if the demand is not fulfilled. Despite the fact that several persons tried to resolve but the accused persons did not pay any heed. Because of this, deceased Rajni Saxena died in suspicious circumstances on 10.9.1991. Then, father of the deceased was sent a message about her death. Police City Kotwali, Bhind registered a case under Sections 498-A 3 Cr.A No.119/02 and Cr. A. 198/01 and 304-B read with Section 34 of IPC. After due investigation, charge sheet has been filed against accused persons.

6. Charges framed and explained to the accused persons under Sections 498-A and 304-B read with Section 34 of IPC. Accused persons abjured guilt. In their examination under Section 313 of Cr.P.C they contended that they have been falsely implicated. Accused / appellant, Manoj claimed that the deceased Rajni Saxena died due to illness and on that day he was not at home. They claimed that, father of the deceased Ramprakash claimed the expenses borne by him, at the time marriage, from the accused persons. When this demand was not met, he lodged the report on false ground.

7. The learned Trial Court after adducing the evidence, pronounced the impugned judgment, acquitted the respondents Ramkishan and Sharda Devi and convicted appellant, Manoj Shrivastava under Section 498-A and 304- B of IPC. He is sentenced 7 years RI under Section 304-B IPC and under Section 498-A, he has been sentenced to undergo two years RI with fine of Rs. 1000/-. In lieu of fine, he has to undergo RI for another period of six months.

8. Appellant, Manoj has assailed the judgment on the grounds that the impugned judgment is not in accordance with law. The evidence has not been evaluated and analyzed properly. There was no demand of dowry. The deceased Rajni Saxena and the appellant had gone to her parent's place to attend marriage of her younger brother Rajiv they stayed there 10 to 15 days. No such demand 4 Cr.A No.119/02 and Cr. A. 198/01 was ever made by him. The finding of the learned trial Court is, therefore, erroneous. The letters Ex. P/2 to Ex. P/ 12 on which the Trial Court based its conviction are merely photo copies. The original letters were not produced. The expert, who examined the letters and viscera were not examined. Witnesses Ramprakas and Laxmi Devi, the father and mother of the deceased exaggerated the prosecution story and there is not an iota of evidence regarding treatment of cruelty.

9. In Criminal Appeal No. 119/2002, just contrary to the above. The State of Madhya Pradesh has assailed the judgment and requested for conviction of accused Ramkishan and Shard Devi. It is contended that Rajni Saxena died within seven years of her marriage by consuming sulphas a kind of insecticide.

10. We have gone through the record of the learned trial Court. It would be pertinent to mention here that the learned Trial Court relied on the letters Ex. P/4 to Ex. P/12. These documents are exhibited, whereas these letters have not been examined by any Handwriting Expert. Original letters have also not been produced. Photo copies of these documents have been exhibited. From the record, it does not show that the original documents are placed before the trial Court. During investigation also prosecution has not obtained permission of the trial Court for taking these documents as secondary evidence.

11. Before the document can be allowed to be led, as secondary evidence, two things have to satisfy-

1. That original document is admissible in evidence.

2. That one of the condition enumerated in 5 Cr.A No.119/02 and Cr. A. 198/01 Section 65 of the Evidence Act entitling to secondary evidence has been established. Secondary evidence by document can be given if failure to produce the original document is supported by proper reasons. But in the present case the same is not followed. At least, judgment does not express so.

12. It would be pertinent to mention here that the marriage of the deceased was solemnized with accused Manoj Shrivastava in the year 1987 and incident took place on 10.9.1991. There is no allegation of demand of scooter as dowry earlier. But it is stated by the witnesses that the deceased visited her parental house on 17th February, 1991 to attend marriage of her younger brother Rajiv, but at that time also, it is alleged that the accused persons placed their demand of scooter before Rajni, who in turn told her parents to give a scooter. It would be appropriate to mention here that the death of the deceased Rajni occurred in the month of September 1991 ie almost after seven months. There is no evidence as to so-called subjective of cruelty soon before the death. There is no definite evidence of ill-treatment, having immediate proximity date of death of deceased.

13. As to presumption under Section 113-B of Evidence Act the Hon'ble Supreme Court has stated that proximate test applies and expression soon before the death occurring in this section does not indicate any fixed period. But it means that there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and concerned death. In this regard the reference can be made to the judgment of Supreme Court in Hira Lal Vs. State of (NCT) of Delhi, AIR 2003 SC 2865. That means there should be reasonable, if not direct nexus 6 Cr.A No.119/02 and Cr. A. 198/01 between her death and the dowry related cruelty or harassment inflicted on her. There is to be reasonable time gap between cruelty inflicted and death in question.

14. Thus, the cruelty, harassment and demand of dowry should not be so ancient, whereafter the couple and family members have lived happily as that it would result in abuse of said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence led to show to the contrary. Ashok Kumar Vs. State of Haryana (2010) 12 SCC 350.

15. In the present case, dowry demand was made as early as four years back, even if presumed that the demand was reiterated at the time of marriage of Rajiv, brother of the deceased, that too was made, almost seven months back when the deceased and her husband stayed at her parent's house for 10 to 15 days during the marriage. After this demand there has been no allegation of demand of dowry or treatment of cruelty till the incident took place.

16. The action of respondents Ramkishan and Sharda Devi has not been clearly stated. The deceased died on 10 th September, 1991. Merg was lodged on the same day, but the statements of the father and mother of the deceased were recorded on 22nd September, 1991. That means, almost after 12 days their statements are recorded. Till then they remained silent. In this regard the judgment rendered by the Supreme Court can be referred in Tkummala Venkateswar Rao Vs. State of Andhra Pradesh (2014) 2 SCC 240, the Apex Court has held that:

7 Cr.A No.119/02 and Cr. A. 198/01

"Soon before death" does not mean "at any time before" nor "immediately before"

- It has been used with reference to cruelty or harassment which were meted in proximity to death that has to be considered as cause of death".

17. Postmortem was conducted by Dr. R.K. Gandhi (PW-3). He has not found any bodily injury on the person of the deceased. No definite opinion about death has been given. The chemical test report received from the Forensic Laboratory has been shown to this witness, who has not examined the same. According to the report death has been caused due to consuming of "aluminum phosphide", which is a pesticide.

18. Ex. D-1 is the letter dated 5.4.1988, father of the deceased Ramprakash admitted that this letter was written by her daughter and she has mentioned that she was not keeping well, but her treatment is being done properly. She is not taking medicines but used to throw the medicines. This also creates suspicious in the prosecution case, so as to give rise to probability that the deceased might have consumed poison because of other reasons.

19. In Ex. P/4, P/5, P/6, P/8, there is neither mention of any demand of scooter nor that she was subjected to cruelty. In Ex. P/10 there is no mention of scooter. In Ex.P/11 there is mention of scooter but that was done at the instance of brother-in-law Vinod. There is no mention of Ramkishan or Sharda Devi or her husband appellant Manoj regarding demand of scooter or so called harassment.

20. The Hon'ble Supreme Court expressed in case of Hira Lal Vs. State of (Govt. of NCT), Delhi (2003) 8 SCC 80 (Supra) 8 Cr.A No.119/02 and Cr. A. 198/01 "A Conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of 'death occurring otherwise than in normal circumstances'.

The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. 'soon before' is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to the expression 'soon before' used in Section 114 illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession'. The determination of the period which can come within the term 'soon before' is left to be determined by the courts, depending upon facts and circumstance of each case.

Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the cruelty or harassment 9 Cr.A No.119/02 and Cr. A. 198/01 concerned 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 death concerned. If the alleged incident of cruelty is remote in time and has become state enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."

21. With the above observations, we find the ingredients "soon before her death she was subjected with cruelty or harassment by her husband or any of his relative" is lacking in this case. We allow the appeal filed by appellant Manoj Shrivastava (Cr. Appeal No. 198/2001). Consequently, disallow the Appeal filed by the State (Appeal 119/2002).

22. Accordingly, the impugned judgment dated 30th March, 2001 is hereby set aside and the appellant, Manoj Shrivastava is acquitted for the offence under Sections 304- B and 498-A of IPC. His bail bonds and surety bonds discharged. If fine amount is deposited by him, the same be refunded to appellant Manoj Shrivastava. Bail bonds of respondents Ramkishan and Shards are also discharged.

           (S.K. Gangele)                             (S.K. Palo)
            JUDGE                                     JUDGE

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Madhya Pradesh High Court