Jahar Singh vs The State Of M.P on 11 January, 2013

[Cites 11, Cited by 37]

Madhya Pradesh High Court

Jahar Singh vs The State Of M.P on 11 January, 2013

1. The appellant- accused has filed this appeal being aggrieved by the judgment dated 10th March 1997 passed by the Additional Sessions Judge, Khurai, district Sagar in Sessions Trial No. 260/1994 convicting and sentencing him under Sections 304-B and 498-A of IPC for RI seven years with fine of Rs.1000/- in the earlier Section, while RI two years with fine of Rs.500/- in the later with stipulation of additional jail punishment in default of depositing the fine amount.

2. The facts giving rise to this appeal in short are that on 30.7.1994 at P.S. Malthon, district Sagar an information regarding death of Mamta bai, W/o of the appellant was received from Government Hospital, Malthon, on which the inquest report was registered. In its enquiry, after preparing the the memorandum or dead body, the same was sent for postmortem. The same was carried out and its report was prepared. In its further enquiry, it was established that the deceased in her life time and soon before death was subjected to cruelty on account of demand of dowry by the appellant and due to that she died dowry death, on which Crime No. 62/1994 was registered at the aforesaid P.S. on 29.8.1994 against the appellant and his father Daryao Singh for the offence under Section 304-B and 498-A of IPC. After arresting the appellant and the co-accused the witnesses were interrogated and other formalities of the investigation were carried out. On establishing the prima facie offence against the appellant and his father, they were charge sheeted for the offence of Section 304-B of IPC.

3. It is noted that during course of initial enquiry carried out by the Police after reaching Mamta to Hospital and before death her dying declaration, (Ex. P-3) was also recorded by Dr. K.K. Sohit, (PW-1). In such enquiry, her interrogation, (Ex. P-13) was also recorded by Gopal Singh, Head Constable (PW-3). One more dying declaration (Ex. D-1) was recorded by the Tahsildar namely Asgar Ali, (PW-1). It is apparent from all such dying declarations that the deceased had not implicated to the appellant or to the acquitted co-accused Daryao Singh in any of the offences.

4. After committing the case to the Sessions Court on evaluation of the charge sheet, the charge of Section 304 -B and Section 498-A of IPC were framed against both the accused. They abjured the guilt, on which the trial was held. On appreciation of the evidence with the assistance of the provision of presumption enumerated under Section 113-A of the Evidence Act, the present appellant was held guilty for the offence of Section 304-B and 498-A of IPC and was punished with the above mentioned punishment. While his father, Daryao Singh was acquitted from all the charges. Being dis-satisfied with such conviction and sentence, the appellant has come forward to this court with this appeal.

5. Shri Surendra Singh, learned Sr. Adv assisted by Shri Manish Mishra, learned counsel for the appellant after taking me through the record of the trial court including the evidence led by the prosecution as well as defence and exhibited papers alongwith the impugned judgment argued that on taking into consideration the entire evidence led by the prosecution as accepted in its entirety, even then the person like the appellant could not have been convicted by the trial court for the offence under Section 304-B of IPC. In continuation by referring the depositions of Dr. K.K. Sohit, (PW-1) and the postmortem report of the deceased, (Ex. P-4) said that on carrying out the autopsy of the corpus of deceased by this witness, he had not found any external or internal injury on the dead body of Mamta Bai either in deposition or in the postmortem report no definite opinion regarding mode of death of Mamta was given whether she had died due to homicidal death or suicidal death of otherwise. According to further deposition of this witness, the viscera of the deceased was preserved to send to forensic lab for chemical examination, and as per record, the same was sent but its examination report has neither been placed not proved on record. So in the lack of such FSL report merely on the oral testimony of some witnesses from the parental family of the deceased, it could not be said or assumed that the deceased had died with unnatural death or in any case, it could not be said that soon before her death on account of demand of dowry, she was subjected to any cruelty by the appellant. So in such premises, firstly in the lack of medical evidence to show that she died unnatural death and secondly on the basis of vague ocular deposition of the witnesses examined from the parental family, the impugned conviction and sentence of the appellant under Section 304-B of IPC is not sustainable. In continuation, he said that the ingredients of Section 498-A of IPC are also not proved against the appellant and in any case on appreciation of available evidence if other co-accused Daryao Singh was acquitted by the trial court, then there was no occasion with the trial court to convict the appellant on the basis of same evidence. In this regard he also argued that as per deposition of Asha Ram (PW-4), the demand of the motor cycle and the alleged goods/articles was made by the appellant alongwith his father before four years from the date of death of deceased Mamta and, therefore, in view of Section 468 of Cr.P.C., there was no limitation to file the charge sheet against the appellant for the offence of Section 498-A on the date of filing the charge sheet. As such the same was filed barred by three years. Thus, the conviction and sentence of the appellant under Section 498-A of IPC is not sustainable. In continuation, he said that in any case, if the court comes to the conclusion that approach of the trial court holding conviction against the appellant under Section 498-A of IPC does not require any interference at this stage, then considering the circumstances that the incident was happened long before in the year 1994 and appellant did not possess any criminal antecedents by adopting the lenient approach, he be extended the benefit of Probation of Offenders Act. In alternate he said that by adopting the lenient approach, his awarded jail sentence under such Section be reduced upto the period for which he has already undergone in the judicial custody during pendency of the trial between 1.9.1994 to 7.9.1994, so also subsequent to passing the impugned judgment on dated 10.3.1997 till 6.5.1997, the date on which the remaining jail sentence of the appellant was suspended by this court in this appeal, i.e. near about two months by enhancing the amount of fine under discretion of the court and prayed to allow the appeal accordingly. In support of his contentions, he also placed his reliance on the decisions of the Apex Court in the matter of Tarsem Singh Vs. State of Punjab reported in AIR 2009 SC 1454 and in the matter of Sanjay Kumar Jain Vs. State of Delhi reported in AIR 2011 SC 363.

6. Responding the aforesaid arguments Shri Gitesh Singh Thakur, learned PL by justifying the impugned conviction and sentence of the appellant said that same being based on proper appreciation is in conformity with law. The same does not require any interference at this stage either for extending acquittal to the appellant or for extending the benefit of Probation of Offenders Act or in any case for reducing the awarded jail sentence in any of the aforesaid Sections. In continuation, he fairly conceded that prosecution could not prove the actual cause and mode of death of Mamta Bai either through the deposition of Doctor or any other evidence adduced on record. He also submitted that inspite sending the viscera to the FSL, its report was neither produced nor proved on record. Such submission was made by him after perusing the record of the trial court. With these submissions he prayed for dismissal of this appeal.

7. Having heard the counsel at length, keeping in view their arguments, I have carefully gone through the record of the trial court including the evidence led by the parties and the exhibited papers alongwith the impugned judgment.

8. It is apparent from the record as well as from the depositions of Asha Ram (PW-4), the father of the deceased, Kusumrani, (PW-5), mother of the deceased, Ramsewak, (PW-6), the Uncle of the deceased that the prosecution could not prove the mode of death of Mamtabai, whether she died with suicidal death or homicidal death or accidental death, as such none of them has been proved. Although the above mentioned witnesses in their respective depositions have stated that long before four years and two years from the date of the death of Mamtabai, she was subjected to demand of motor cycle by the appellant and in response of such demand Rs.12,000/- was paid by Asha Ram (PW-4), the father of the deceased to the appellant with the assurance that remaining Rs.12,000/- would be given to the appellant after two years. Besides this the allegations that whenever any person from the parental family of the deceased went to visit the matrimonial home of the deceased to bring her back, then the appellant and his family members used to refuse him to send Mamtabai to her parental home.

9. On going through the depositions of all aforesaid witnesses of parental family, it is apparent that there is no evidence to show that soon before death, the deceased was subjected to cruelty on account of demand of dowry by the appellant and due to that she died unnatural death covered under the definition of dowry death.

10.Apart the aforesaid merely perusing the postmortem report, Ex. P-4, it is apparent that while giving the opinion regarding cause of death, Dr. K.K. Sohit, (PW-1) has stated in such report that "No definite opinion can be given about cause of death of Mamta Bai, twenty years, W/o Jahar Singh Lodhi, R/o village Gangon, P.S. Malthon, the viscera is being preserved and sealed and the same was given to the Police Constable for chemical examination. The duration of time of death is within twelve hours from the commencement of the postmortem examination." So according to aforesaid report and the depositions of said Doctor, it has not been established on record that the deceased had died due to unnatural death or suicidal death. So in such premises, on the basis of available medical evidence, it could not be deemed or assumed that the deceased died due to unnatural death. As per settled propositions to hold the conviction against the appellant under Section 304-B of IPC, the prosecution is bound to prove the fact that the deceased had died due to unnatural death and soon before death, she was subjected to cruelty by the accused and in the lack of such evidence, the person like appellant in connection of demand of dowry, the appellant could not have been convicted under Section 304-B of IPC. My such approach is based on the principle laid down by the Apex Court in the matter of Sanjay Kumar Jain Vs. State of Delhi reported in AIR 2011 SC 363 in which it was held as under:-

"48. On proper analysis of Section 304 B of the Indian Penal Code and Section 113 B of the Evidence Act, it shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution is under an obligation to rule out any possibility of natural or accidental death. Where the ingredients of Section 304 B of the Indian Penal Code are satisfied, the section would apply. If death is unnatural, either homicidal or suicidal, it would be death which can be said to have taken place in unnatural circumstances and the provisions of Section 304 B would be applicable."

11.Besides the aforesaid cited case also in view of the principle laid down by the Apex Court in the matter of Tarsem Singh Vs. State of Punjab reported in AIR 2009 SC 1454 the impugned conviction under Section 304-B of IPC could not be sustained. In this cited case the Apex Court has held as under:-

17. In Hira Lal & Ors. v. State (Govt. of NCT), Delhi (2003) 8 SCC 80) this Court held:-

9. 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.

Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the '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.

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 prosecution. 'Soon before' is a relative term and it would depend upon the circumstances of each case and no strait-jacket 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 to dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and 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 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 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 circumstances 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 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 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.

It was furthermore held :-

Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498- A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A, IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498-A gives the meaning of 'cruelty'. In Section 304-B there is no such explanation about the meaning of 'cruelty'. But having regard to the common background of these offences it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to Section 498-A under which 'cruelty' by itself amounts to an offence. Under Section 304-B it is 'dowry death' that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. A person charged and acquitted under Section 304-B can be convicted under Section 498-A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder v. The State of A. P.). (1991 Supp. (2) SCC 99). Section 498-A IPC and Section 113-A of the Evidence Act includes in their amplitude past events of cruelty. Period of operation of Section 113-A of the Evidence Act is seven years, presumption arises as to dowry death when a woman committed suicide within a period of seven years from the date of marriage.

12.Besides the aforesaid, it is also apparent on record from the deposition of Investigating Officer R.S. Badal, (PW-2) that he has not stated anything regarding FSL report of the aforesaid viscera of the deceased whether it was chemically examined or not or its report was received by the prosecution and if it was received, then there is no explanation on record to show that why the same was neither proved nor proved on record. So in the lack of such report also the court is bound to draw an inference that the prosecution has failed to prove the case of unnatural death of deceased Mamta Bai.

13.Apart the above on going through all dying declaration of the deceased Mamta Bai, (a) (Ex. P-2), recorded by Doctor K.K. Sohit while preparing the MLC report, (Ex. P-13), (b) recorded by Gopal Singh, the Head Constable, (PW-3) while recording her interrogatory statement regarding the incident and (C) (Ex. D-1) recorded by Tahsildar/Executive Magistrate, Asgar Ali, (DW-1), it is apparent that in any of such dying declarations, the deceased has not stated anything against the appellant or any person of her matrimonial family. It is apparent from those declarations and other available evidence that the deceased being sick was taken to hospital where during the course of treatment, she had died and thereafter in the enquiry of inquest intimation in view of provision of presumption enumerated under Section 113-B of the Evidence Act, the impugned crime was registered, investigated and the appellant alongwith his father was charge sheeted.

14.So firstly in view of aforesaid discussion, it is held that the prosecution has utterly failed to prove the offence under Section 304-B of IPC against the appellant and in such premises, the approach of the trial court holding guilty to the appellant under such Section is not sustainable. Consequently the same alongwith its awarded sentence deserves to be and is hereby set aside.

15.Coming to consider the question whether the impugned conviction of the appellant under Section 498-A of IPC is sustainable or the same requires some interference for extending acquittal at this stage, as argued by appellant's counsel. On going through the deposition of Asha Ram, (PW-4), father of the deceased, Kusumrani, (PW-5), mother of the deceased, Ramsewak, (PW-6), the Uncle of the deceased, it is apparent that each of them have categorically stated that subsequent to marriage of Mamtabai with the appellant, she was subjected to demand of motor cycle. Initially such demand was made by the appellant before four years from the date of the alleged incident and subsequently after two years again such demand was made by him, on which Rs.12,000/- was given to him by Asharam, (PW-4). Simultaneously, the assurance to pay remaining sum of Rs.12,000/- within two years was also given. In this regard the depositions of Asharam is further supported by the aforesaid Kusumrani, (PW-5), the mother of the deceased.

16.True it is that in view of Section 468 of Cr.P.C., charge sheet of the offence defined and made punishable under Section 498 -A of IPC should have been filed within three years from the date of committing such offence, but it is apparent from Section 468 of Cr.P.C. that there is no limitation to file the charge sheet for the offence of Section 304-B of IPC in which also the charge sheet was filed against the appellant alongwith the averments of the offence of Section 498-A of IPC. So firstly, in such a situation, the charge sheet could not be dismissed partially or by holding the same as barred by time. Besides this, it is apparent from the deposition of Asha Ram, (PW-4) as well as Kusumrani, (PW-5) that the demand of motor cycle was lastly made by the appellant from the deceased-Mamta before two years from the date of her death. So in such premises, also the alleged demand being made within two years from the date of filing the charge sheet, the same could not be said to be barred by limitation. Thus, I am of the considered view that the prosecution has successfully proved the offence defined under Section 498-A of IPC against the appellant but has failed to prove the material ingredients of the offence of Section 304-B of IPC, as stated above. In such premises, the findings and approach of the trial court holding guilty to the appellant for the offence under Section 498-A of IPC is hereby affirmed.

17.Coming to consider the arguments of learned Senior Counsel for extending the benefit of Probation Of Offenders Act to the appellant is concerned, in the available scenario of the matter even after nineteen years from the date of incident, I am not inclined to extend such benefit to the appellant. Consequently such prayer is hereby failed.

18.Refusing the prayer for extending the benefit of Probation of the Offenders Act to the appellant does not mean that the appellant is not entitled to get the benefit of reduction of the awarded jail sentence. I have found some substance in such prayer of learned senior counsel. It is apparent on record that the alleged incident was happened long before in the year 1994 and alleged demand of motor cycle was made before two years from the date of the incident and subsequent to alleged incident in last near about nineteen years, the appellant has suffered mental agony of this case. During this period he has appeared before the trial court as well as in compliance of the direction before this court and in the last nineteen years, he might have been settled with his family and besides this as per record he had already suffered near about two months in the judicial custody during trial and subsequent to the impugned judgment till passing the order for suspension of his remaining jail sentence. So considering all these circumstances, instead to send him again jail by affirming his awarded jail sentence under Section 498-A of IPC, I deem fit to reduce the same from two years RI to the aforesaid period of two months for which he has already undergone in the judicial custody during trial and subsequent to passing of the impugned judgment till passing the order for suspension of his remaining jail sentence but by enhancing some amount of fine. The same is ordered.

19.In view of the aforesaid discussion by allowing this appeal in part, the impugned conviction and sentence of the appellant under Section 304-B of IPC is hereby set aside and he is acquitted from such charge while his conviction under Section 498-A of IPC is hereby affirmed and in view of aforesaid discussion, the impugned awarded jail sentence of such Section from two years to the aforesaid period of near about two months for which the appellant has already undergone by enhancing the amount of fine from Rs.500/- to Rs.7500/-. The remaining fine amount is to be deposited by the appellant within 45 days from today with the trial court failing which he has to suffer further six months RI. The amount of fine deposited in connection of the offence of Section 304-B of IPC shall be adjusted in the aforesaid enhanced amount of fine. On depositing the aforesaid sum of the fine, out of it, Rs.7000/- be given to the child of the deceased who has probably now become major by calling him through the summons in the trial court. The bail bond of the appellant is hereby discharged and cancelled.

20.The appeal is allowed in part as indicated above.

( U.C. Maheshwari ) Judge bks

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Madhya Pradesh High Court