Madhya Pradesh High Court
Hari Prasad vs The State Of M.P. on 23 October, 2017
Cr.A. No. 580 / 1999 1
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
SINGLE BENCH : Hon'ble Shri Justice Ved Prakash Sharma
Cr.A. No. 580 / 1999
Hari Prasad & Ors.
Vs.
The State of M.P.
-x-x-x-x-x-x-x-x-x-x-x-
Shri P.K. Shukla, learned counsel for the appellants.
Shri P.M. Bhargava, learned Public Prosecutor for the
respondent-State.
-x-x-x-x-x-x-x-x-x-x-x-
JUDGMENT
(Delivered on 23rd day of October, 2017) This appeal is directed against judgment and order dated 15/04/1999 rendered by 3rd Additional Sessions Judge, Mandsaur in S.T. No.119/1995, whereby each of the appellants has been found guilty under Section 304-B and 498-A of IPC and has been sentenced to undergo 10 years R.I. and a fine of Rs.1000/- under Section 304-B of IPC and 2 years R.I. and a fine of Rs.500/- under Section 498-A of IPC with usual default stipulation. Apart this, appellants have also been convicted under Section 201/34 of IPC and each has been sentenced to undergo 3 years R.I. and to pay a fine of Rs.500/- with default stipulation.
02. The appellants during their examination under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code') did not dispute that Nilima Sharma Cr.A. No. 580 / 1999 2 (deceased) - the daughter of Kailash Narayan Sharma (P.W.17) was married sometimes in 1993 to appellant Sunil Sharma. Appellants Hariprasad Sharma, Shakuntala Bai and Mrunalini are respectively father, mother and sister of Sunil Sharma. Sunil and Nilima had a love affair sometimes in February 1993 and ultimately parents of Sunil and Nilima agreed for their marriage regarding which a formal function was held on 29.06.1993. It is further not a matter of dispute that at the time of incident which occurred in March, 1995, family of appellant- Hariprasad Sharma was residing at 41, Kitiyani Mohalla, Mandsaur, Narottamlal Padwar (P.W.1), his wife Dropadi Bai (P.W.2), Chanchal Tripathi (P.W.4), Chhaya Singh (P.W.5), Shobha Sen (P.W.6), Rameshwar Sen (P.W.7), Sunil @ Pappu (P.W.9) and M.A. Qureshi (P.W.11), all were also residing at the relevant time in Kitiyani Mohalla, Mandsaur and thus were neighbours of appellant Hariprasad Sharma. The appellants have not further disputed that in the evening of 17th March, 1995, Ambassador car No.M.P.-U- 1395 hired by appellant- Hariprasad Sharma from Yashwant Singh Solanki (P.W.18) came to his house in which appellant- Hariprasad Sharma and his son Sunil Sharma had taken Nilima Sharma to some place. Due to some mechanical fault in the car about 7 kilometers away from Mandsaur, appellant- Hariprasad Sharma called another car bearing registration No.C.P.F. 617 from Yashwant Singh Solanki (P.W.18) in which Nilima Sharma was shifted. Appellants Hariprasad Sharma and Sunil Sharma also accompanied her. The Cr.A. No. 580 / 1999 3 car which was being driven by Naveen Bairagi (P.W.19) was intercepted by police near Daulada police post. Omprakash Sharma (P.W.14), the then A.S.I., Police Post-Daloda tried to speak to the women lying on the rear seat of the car, however, he could not speak to her as her condition was serious. Omprakash Sharma (P.W.24) thereafter got Nilima Sharma admitted in the District Hospital, Mandsaur, where same day i.e. 17.03.1995 she died because of burn injuries.
03. Prosecution story, briefly stated, is that sometimes in February 1993, appellant Sunil Sharma met with Nilima Sharma in a marriage function. They developed affinity towards each other and in view of the love affair; both fled away and thereafter discretely conducted a marriage in a temple at Chittaurgarh. The parents of Sunil and Nilima on coming to know about this affair held discussions and finally agreed for their marriage, which was ultimately solemnized at Mandsaur on 29.06.1993. Thereafter, Nilima was residing with the appellants at their residence situated at Kitiyani Mohalla, Mandsaur. As per prosecution right from the very beginning the appellants started demanding dowry from Nilima and their parents and in this regard they also started inflicting physical and mental cruelty upon Nilima Sharma. Allegedly, Nilima Sharma was being ill-treated by the appellants, who used to frequently assault her. Narottamlal Padwar (P.W.1), Dropadi Bai (P.W.2), Chanchal Tripathi (P.W.4), Chhaya Singh (P.W.5), Shobha Sen (P.W.6), Cr.A. No. 580 / 1999 4 Rameshwar Sen (P.W.7) all used to hear cries coming from the house of the appellants. As per prosecution on 26.02.1995, Nilima Sharma was subjected to cruelty by the appellants and she told about this incident to Chanchal Tripathi (P.W.4) and Smt. Shobha Sen (P.W.6) another such incident took place on 03.03.1995. After 03.03.1995, Nilima Sharma was not sighted in the locality by the neighbours. When neighbors of appellant Hariprasad Sharma enquired from Shakuntala Bai about her condition and wanted to see her, allegedly, Shakuntala Bai refused access to them, stating that Nilima Sharma is suffering from typhoid. Allegedly, on 14.03.1995, Prashant Sharma (P.W.29)- the brother of Nilima Sharma came to meet her, however, he too was not permitted by the appellant to meet Nilima on the pretext that she is seriously ill. On 17.03.1995 Nilima Sharma was taken by appellant Hariprasad Sharma and Sunil Sharma in a car to some other place. On a suspicion being entertained by the neighbours someone informed Vijay Kumar Sharma (P.W.3) a close relative of Nilima Sharma about the same. Vijay Sharma (P.W.3) in turn informed S.P. Mandsaur about the same, whereupon the vehicle was intercepted by police near Daulada police post. Nilima Sharma was found lying on the rear seat of the car, while Hariprasad Sharma with a small child in his lap and Sunil Sharma were found sitting on the front seat. Nilima Sharma was immediately taken to District Hospital, Mandsaur for treatment, where same day she succumbed to the burn injuries.
Cr.A. No. 580 / 1999 504. In this regard, a 'Merg' was registered by the police. On enquiry, it was revealed that the appellants were subjecting Nilima Sharma to cruelty and harassment in connection with demand of dowry and that her death occurred in unnatural circumstances. Accordingly, First Information Report (Ex.P/51) was registered against the appellants for offences under Section 304-B and 498-A of IPC. The dead body was sent for post-mortem examination. A team comprising of three doctors including Dr. R.K. Mishra (P.W.22) conducted the autopsy on the dead body and vide postmortem report (Ex.P/34) found 70% ante-mortem burns all over the body with infected granulation tissue. As per opinion tendered by the autopsy surgeons, the burn injuries were caused within a period of fortnight. There was toxicemia and septicemia in the body because of burn injuries and that the death occurred due to asphyxia within 20 hours of the postmortem. Witnesses were interrogated. On the basis of disclosure statement said to have been made by appellant Sunil Sharma vide Ex.P/8, semi-burnt clothes - petticoat, saree and blouse were recovered on 20.03.1995 at his instance, vide seizure memo (Ex.P/9). The clothes so seized were sent for forensic examination to State Forensic Laboratory, Sagar. The Assistant Chemical Examiner, vide report dated 19.10.1995 (Ex.P/55) found presence of hydro- chloric acid on the clothes. The Assistant Chemical Examiner further reported about absence of smell of kerosene oil on the Cr.A. No. 580 / 1999 6 clothes.
05. After usual investigation, a charge-sheet was filed before the Court of Competent Magistrate, who after complying with Section 207 of 'the Code' committed the case to the Court of Sessions from where it was made over to learned 3rd Additional Sessions Judge, Mandsaur. The learned trial Court framed charges under Section 302 of IPC, in alternate S.304-B, 498-A and 201 r/w Section 34 of IPC. The appellants abjured the guilt and claimed to be tried.
06. The prosecution in order to bring home the charges, examined as many as 33 witnesses before the learned trial Court including Kailansh Narayan Sharma (P.W.17), Ramesh Chandra Sharma (P.W.27) and Prashant Sharma (P.W.29) respectively, the father, uncle and brother of deceased Nilima Sharma. B.N. Swarnakar (P.W.32) has conducted investigation, while Dr. R.K. Mishra (P.W.22) is the autopsy surgeon. Apart this, documents Ex.P/1 to Ex.P/55 were also marked in evidence. The incriminating circumstances appearing in the prosecution evidence were brought to the notice of the appellants during their cross- examination under Section 313 of 'the Code'. Except for the admitted facts referred to hereinabove in para-2, the appellants either denied or expressed innocence with regard to rest of the circumstances and claimed that they have been falsely implicated in this case. The defence of the appellants Cr.A. No. 580 / 1999 7 has been that on 03.03.1995 Nilima Sharma caught fire while cooking meals in the house on the stove. She was treated at home till 17.03.1995 and on 17.03.1995 because of her critical condition, she was being taken to hospital at Indore and that while on way, police intercepted their vehicle. It has further been stated in defence that appellant Mrunalini was studying at the relevant time at Ujjain and, therefore, she is not in any manner connected with the alleged incident. As many as 6 witnesses including Banshilal (D.W.1) and Omprakash Sharma (D.W.2) were examined in defence. Apart this, documents Ex.D/1 to Ex.D/34 were also marked in defence evidence. The learned trial Court on the basis of evidence adduced before it vide the impugned judgment acquitted the appellants for offence under Section 302 of IPC, however, each of them was convicted and sentenced under Sections 304-B, 498-A, 201/34 of IPC as stated herein above.
07. The conviction and sentence has been challenged on the ground that the learned trial Court has committed serious error of law and facts in recording conviction against the appellants. It is submitted that no specific role has been attributed to any of the accused persons and that all the material witnesses are interested, therefore, the learned trial Court has committed serious error of law in placing reliance upon their testimony. The contention is that the marriage of Sunil Sharma, Nilima Sharma was love marriage, therefore, question of demanding any dowry or inflicting cruelty or Cr.A. No. 580 / 1999 8 harassment against the deceased did not arise in the facts and circumstances of the case. It is further submitted that the deceased sustained burn injuries because of accidental fire, while cooking meals, therefore, the case will not come within Section 304-B of IPC. Lastly, it is submitted that the testimony of various witnesses suffers from serious omissions and contradictions, therefore, the same ought not to have been relied upon by the learned trial Court for recording conviction against the appellant persons, therefore, the impugned judgment is liable to be reversed and the appellants deserve to be acquitted.
08. Per contra, it is submitted by the learned Public Prosecutor that there is more than sufficient evidence on record establishing guilt of the appellants for offences under Section 304-B, 498-A & 201/34 of IPC beyond reasonable doubt. It is further submitted that the prosecution witnesses have clearly supported the prosecution version with regard to infliction of cruelty and harassment by the appellants upon the deceased and her death in suspicious circumstances. The submission is that it was for the appellants to come forward with the explanation as to how the deceased suffered burn injuries and why she was not taken to the hospital for treatment immediately. The contention is that the appellants have not only committed the crime, but also they were involved in eliminating evidence with regard to the crime, therefore, it cannot be said that the learned trial Court has Cr.A. No. 580 / 1999 9 committed any error in recording conviction against them for offences under Section 498-A, 304-B and 201 r/w Section 34 of IPC.
09. Heard the learned counsel for the parties and perused the record.
10. The question for consideration is whether the conviction and sentence recorded by the learned trial Court is in accordance with law and facts of the case and is sustainable?
11. Section 304-B of 'IPC' which was brought on the Statute Book, by way of Dowry Prohibition (Amendment), Act 1986 stipulates culpability regarding offence of 'dowry death' against husband or his relatives subject to proof of the conditions stated therein. Section 304-B of 'IPC' when read in conjunction with Section 113-B of the Indian Evidence Act requires following facts to be proved:
i. Death of a married woman by burns or bodily
injury or otherwise then under normal
circumstances within 7 years of her marriage. ii. That, soon before death she was subjected to cruelty or harassment by her husband or any relative of her husband.
iii. Such cruelty or harassment was for or in connection with any demand for dowry.
Cr.A. No. 580 / 1999 1012. Section 113-B of the Evidence Act which creates a presumption regarding offence of dowry death runs as under:-
"113B. Presumption as to dowry death:- 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 has 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."
Thus, if it is established that soon before her death a married woman had been subjected by husband or his relatives to cruelty or harassment for or in connection with any demand of dowry, the Court shall presume that such person had caused the dowry death.
13. As regards evidence to establish cruelty and harassment, in the case of State of West Bengal vs. Orilal Jaiswal & Anr., AIR 1994 SC 1418, it has been held (Para 14) that the abuse and insult hurled on the daughter-in-law usually are not expected to be made public, so that the neighbors may have occasion to criticize the improper conduct of the accused and hold them to disrespect and contempt. It was further held that ordinarily evidence in this regard has to come from mother, brother and other close relatives of the deceased which cannot be discarded simply on the score of absence of corroboration by independent witnesses because the acts of cruelty are expected to be within the knowledge of close Cr.A. No. 580 / 1999 11 relatives like mother, brother and sister of the deceased.
14. The evidence adduced by the prosecution requires to be analysed and appreciated in the light of afore-stated legal principles governing the applicability of Section 304-B of the IPC read with Section 113-B of Indian Evidence Act. In this connection, first of all it has to be seen whether the death of Nilima Sharma occurred within 7 years of her marriage with appellant - Sunil Sharma ?
15. Here, it is pertinent to state that the defence side has not disputed about the factum of marriage of Nilima Sharma with Sunil Sharma. The defence version in this regard happens to be that the marriage of Sunil Sharma and Nilima Sharma was solemnized sometimes in February, 1993 in a temple at Chittaurgarh. In this regard, Bansilal (D.W.1) has deposed in Para 1 that Sunil Sharma was married to Nilima Sharma on 24.2.1993 in Khardia Mahadev Mandir and that the marriage was performed by Omprakash Sharma (D.W.2). Omprakash Sharma (D.W.2) has also corroborated the version put forth by Bansilal (D.W.1) In this regard, reference can be made to the testimony of Vijay Kumar Sharma (P.W.3) who is a close relative of Nilima Sharma. This witness has stated that Nilima Sharma was taken away by appellant Sunil Sharma and that lateron, it was revealed that they are in Chittaurgarh. This witness further states that he made efforts for their marriage by arranging the function with consent of parents of Cr.A. No. 580 / 1999 12 both the parties and accordingly, the marriage was held on 29.6.1993. Thus, as per defence, the marriage of Sunil Sharma with Nilima Sharma was held in February 1993 while as per prosecution, they were married to each other on 29.06.1993. The fact remains that in 1993, Nilima Sharma was married to Sunil Sharma. As she died on 17.3.1995, therefore, it does not make any difference as to whether the marriage took place in February, 1993 or June, 1993 because in both the situations, the death occurred within 7 years of marriage. Hence, for the purpose of Section 304-B, it is found proved that the death of Nilima Sharma who was married to Sunil Sharma in 1993 occurred on 17.3.1995 i.e. within 7 years of marriage. Therefore, the identical finding recorded by the learned trial Court on this point cannot be said to be contrary to evidence.
16. The next question which requires consideration is with regard to mode and manner of death of Nilima Sharma. In this connection, we can advert to the testimony of Dr. R.K. Mishra (P.W.22), who was member of the panel of three doctors, which conducted autopsy of deceased Nilima Sharma on 18.3.1995 at District Hospital, Mandsaur. As per Dr. Mishra (P.W.22), on examination, he found 70% ante-mortem burns on the body of the deceased; some of the wounds were infected and in some other wounds, granulation tissues were present. As per Dr. Mishra (P.W.22), Nilima Sharma died because of toxicemia and septicemia due to burn injuries. On a further query made by the investigating agency, Dr. Mishra Cr.A. No. 580 / 1999 13 (P.W.22) vide report Ex. P/36 had opined that though it cannot be affirmatively said as to whether bodily burns were chemical burns or burns caused by fire, however, looking to the fact that hairs were not burnt, the opinion goes in favour of chemical burns. The testimony of Dr. Mishra (P.W.22), who is an expert witness, has remained intact during cross- examination. Otherwise also, the same is found to be clear, cogent and consistent, therefore, there is no reason to discard the same. The testimony of Dr. Mishra (P.W.22) and post- mortem report Ex. P/34 prepared by the panel of the doctors eloquently show that the death of Nilima Sharma occurred because of bodily burn injuries which were caused to her about a fortnight back from 17.3.1995 i.e. the date of her death.
17. The learned counsel for the appellant has contended that the death of Nilima Sharma occurred because of accidental burn injuries sustained by her during accidental fire while cooking food on the stove. The defence plea raised in this regard has not been found plausible by the learned trial Court. In this connection, it is noticeable that except Laluram (D.W.6), none of the defence witnesses has deposed that Nilima Sharma sustained burn injuries due to accidental fire from stove. Obviously, Laluram (D.W.6) is not an eyewitness of alleged stove accident. The testimony of Laluram (D.W.6) is also quite vague because he simply states that Sunil's wife told her that she has got burns by stove, however, no details Cr.A. No. 580 / 1999 14 with regard to the date, time, place and manner of the incident have been stated by this witness nor the accused persons in their examination u/s. 313 of 'the Code' have specifically stated anything in this regard. Therefore, it cannot be said on the basis of testimony of Laluram (D.W.6) that Nilima Sharma sustained burn injuries due to accidental fire while cooking food on stove.
18. As per prosecution, after the arrest of Sunil Sharma, he was interrogated by the police and on the basis of information provided by him which was recorded vide memo Ex. P/8, semi-burnt clothes of Nilima Sharma were recovered by the police vide Ex. P/9 from beneath the earth from a place situated behind the house of the appellant. Yashwant Singh Jhala (P.W.34) - the investigating officer has deposed in this regard in Para 4 of his statement. His testimony, which stands corroborated by the testimony of Narottamlal Padiyar (P.W.1), in whose presence, allegedly, the said proceedings were conducted, has remained unchallenged during cross- examination. Otherwise also, the same does not suffer from any anomaly, therefore, it can well be concluded that on the basis of information furnished by the appellant - Sunil Sharma, semi-burnt clothes - 'Sari', Petticoat and blouse of Nilima Sharma were recovered from a place situated behind the house of the appellant. The evidence in this regard is admissible u/s. 27 of the Evidence Act.
Cr.A. No. 580 / 1999 1519. As per B.M. Swarnakar (P.W.32), the articles so seized were sent to the State Forensic Laboratory vide Ex. P/31. The Assistant Chemical Examiner of the Laboratory vide report dated 19.10.1995 (Ex. P/55) has opined about the presence of Hydrochloric Acid on the semi-burnt clothes and has further opined that smell of kerosene oil was absent. The scientific evidence so adduced by the prosecution with regard to clothes of the deceased seized at the instance of appellant - Sunil Sharma goes to indicate that the bodily burns sustained by the deceased were chemical burns caused by Hydrochloric Acid and not firm burns. Thus, the plea raised by the defence that Nilima Sharma sustained bodily burns due to accidental fire while cooking food on the stove cannot be accepted and, therefore, the identical finding arrived at by the learned trial Court deserves to be upheld.
20. The next and the most important aspect which needs to be examined is whether soon before her death, deceased Nilima Sharma was being subjected by the appellants to cruelty and harassment in connection with demand of dowry? In this regard, the prosecution has adduced two sets of evidence. One set of evidence comprises of the testimony of witnesses, who were neighbours of the appellant, while another set of evidence comprises of the testimony of Kailash Narayan Sharma (P.W.17), the father of the deceased, Ramesh Narayan Sharma (P.W.27) - the uncle of the deceased, Prashant Sharma (P.W.29) - the brother of the Cr.A. No. 580 / 1999 16 deceased and Vijay Kumar Sharma (P.W.3) - a close relative of the deceased. As stated earlier, appellants have not disputed that Narottamlal Padwar (P.W.1), his wife Dropadi Bai (P.W.2), Chanchal Tripathi (P.W.4), Chhaya Singh (P.W.5), Shobha Sen (P.W.6), Rameshwar Sen (P.W.7), Sunil @ Pappu (P.W.9) and M.A. Qureshi (P.W.11) are all their neighbours. Chanchal Tripathi (P.W.4) and Shobha Sen (P.W.6) both have deposed that on 26.02.1995 they heard the cries coming out of the house of the appellants. Shobha Sen (P.W.6) has further stated that she heard the voice of Nilima saying "Bachao Bachao". Chanchal Tripathi (P.W.4) has also stated that she frequently heard the noise of "Marpit" coming from the house of the appellants and it also happened on 25/26-02- 1995. Chanchal Tripathi (P.W.4) and Dropadi Bai (P.W.2) have also narrated with regard to an incident witnessed by them on 03.03.1995. As per Chanchal Tripathi (P.W.4) on 03.03.1995, a day of Eid festival, a lot of noise of "Marpit" was coming from the house of the appellant and thereafter Nilima was not sighted in the locality. Dropadi Bai (P.W.2) has also deposed in para-5 that on 03.03.1995 around noon, she heard the noise of "Marpit" coming from the house of appellants and that she also asked her husband as to why he did not advise the appellants to conduct in a decent manner and that thereafter her husband Narottamlal Padwar (P.W.1), who was Assistant Commissioner in the Sales Tax Department advised Sunil to conduct family affairs in a decent manner. Chanchal Tripathi (P.W.4), Shobha Sen (P.W.6) and Dropadi Cr.A. No. 580 / 1999 17 Bai (P.W.2) have been subjected to detailed cross-examination in this regard, however, except for trifling contradictions, nothing material has emerged in their cross-examination so as to discredit them. The apex Court in Ousu Varghese v. State of Kerala, (1974) 3 SCC 767, held that minor variations in the accounts of the witnesses are often the hall mark of the truth of their testimony. In Jagdish vs. State of Madhya Pradesh, (1981) SCC (Crl.) 676, it was explained that when the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Again in State of Rajasthan vs. Kalki & Anr., (1981) 2 SCC 752, it has been held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be, which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental deposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
21. Referring to a catena of decisions the apex Court in Leela Ham vs. State of Haryana and Anr., JT (1999) 8 SC 274, observed :
"There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence Cr.A. No. 580 / 1999 18 in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore, should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence......"
22. In view of the aforesaid legal position, the minor nature of omissions and contradictions pointed out in the testimony of Chanchal Tripathi (P.W.4), Shobha Sen (P.W.6), Dropadi Bai (P.W.2) cannot be given undue importance. Apart this, these witnesses do not have any axe to grind against the appellants and nothing has emerged in their testimony so as to indicate that they are having any enmity or ill-will against the appellants and, therefore, want to falsely implicate them in the matter, therefore, the criticism levelled against their testimony with regard to alleged incident on 03.03.1995 cannot be accepted.
23. Regarding incident of 03.03.1995, we can further advert to the testimony of Sunil @ Pappu (P.W.9), a boy of about 12 years. On due scrutiny this witness has been found to be truthful witness. It has emerged in his testimony that he not only understands the importance of speaking truth but has also the capacity to understand the question and to give a rational answer to such questions. This witness has stated that on 03.03.1995, appellant Sunil Sharma came to their house. As Cr.A. No. 580 / 1999 19 the mother of this witness was to be administered an injection and he too wanted to have dressing in his leg, therefore, he at the instance of Sunil Sharma went to the house of Sunil Sharma to pick attachi having syringe etc. According to this witness when he reached the house of Sunil Sharma, he saw Nilima Sharma weeping outside her house in the garden, while in-laws and appellant was inside the house. As Nilima asked him to call Sunil Sharma to pick the attachi himself, therefore, he came back to his house and told about this incident to Sunil Sharma. Despite being subjected to grilling cross-examination nothing material can be elicited in his statement so as to discredit him in respect of the aforesaid testimony. Not even a suggestion has been thrown upon this witness that he is having any grudge against the appellants and, therefore, deposing against them. Considering the maturity of understanding which this witness has displayed during his examination so also the fact that the testimony is free from any material omission or contradiction, his testimony deserves acceptance.
24. The testimony of Sunil @ Pappu (P.W.9) finds corroboration from the testimony of M.A. Qureshi (P.W.11), who has narrated the incident of 03.03.1995 in para-3 of his statement. M.A. Qureshi (P.W.11) has further deposed in para- 6 that about 6 months prior to 03.03.1995 around 9.30 p.m. Nilima came to his house and told that the appellants have assaulted her and that while Mini (Mrunalinini) has caught Cr.A. No. 580 / 1999 20 hold of her neck, the rest of the accused persons have assaulted her and have driven her out of the house. This witness has further stated that at that time, he saw scratch marks on the neck, abdomen and back of Nilima. The testimony of this witness has remained unshaken during cross-examination. This witness, who is a lawyer by profession has denied that he wanted to be engaged as lawyer by Sunil and that on being denied an opportunity in this regard, he has deposed against the appellants. In fact no evidence in this regard has been brought by the appellants on record. Even, the appellants have not stated anything on this point in their examination under Section 313 of 'the Code'. The testimony of Sunil @ Pappu (P.W.3) and M.A. Qureshi (P.W.11) when read together goes to indicate that Nilima was being subjected to ill-behaviour by the appellants on 03.03.1995 who forced her to come out to the house and ventilate her grievance by weeping. From the testimony of aforesaid witnesses, who are close neighbours of the appellants, it can well be discerned that Nilima Sharma was being subjected by the appellants to harassment and cruelty.
25. As regards demand of dowry, we can look into the testimony of Kailash Narayan Sharma (P.W.17) - the father of the deceased, Ramesh Narayan Sharma (P.W.27) - uncle of the deceased, Prashant Sharma (P.W.29) - the brother of the deceased and Vijay Kumar Sharma (P.W.3) - a close relative of the deceased.
Cr.A. No. 580 / 1999 2126. Kailash Narayan Sharma (P.W.17) has deposed that just after 'Vida' of the bride, the appellants came at the marriage place and demanded Rs.2,00,000/- by way of dowry for raising a hospital for appellant - Sunil and for procuring a shop in auction from Municipality. This witness has further deposed that it was settled that both the parties will bear 50-50 percent expenses of marriage, however, the appellants did not pay their share of expenses. In Para 10, this witness has further deposed that around 20-25 days prior to 'Holi' festival, appellant - Sunil Sharma came with Nilima Sharma to his house at Baroda and demanded Rs.20,000/-. The testimony of this witness on these points could not be shaken during cross- examination nor the same suffers from any material contradiction or omission. In Para 23 of cross-examination, this witness has denied that he did not pay half of the expenditure of reception organized at the time of marriage and has further denied that the appellants had only demanded from him half of the expenditure of the reception. In totality, there appears to be no reason to reject the testimony of this witness on the aforesaid points.
27. The testimony of Kailash Narayan Sharma (P.W.17) stands corroborated by the testimony of Ramesh Narayan Sharma (P.W.27) who was not only present in the marriage but being brother of Kailash Narayan Sharma (P.W.17) had important role to play in making the Cr.A. No. 580 / 1999 22 arrangements for the marriage. In Para 3, this witness has deposed that after the marriage, in the presence of Vijay Kumar Sharma (P.W.3), he paid a sum of Rs.50,000/- to appellant - Hariprasad Sharma who handed over the list Ex. P/41 to make payments. The testimony of this witness on this point could not be shaken during cross-examination, rather the same has remained unchallenged, therefore, the same deserves acceptance. In this regard, reference can also be made to the testimony of Vijay Kumar Sharma (P.W.3) who has corroborated the testimony of Ramesh Narayan Sharma (P.W.27) on the point that 50,000/- rupees was paid by Ramesh Narayan Sharma (P.W.27) in his presence to appellant
- Hariprasad Sharma (Para 6). The testimony of the aforesaid witnesses clearly indicates that soon after the marriage, dowry was being demanded from the father- uncle and other relatives of Nilima Sharma.
28. Prashant Sharma (P.W.29), who is the brother of deceased Nilima Sharma, has deposed that on 14.3.1995, meaning thereupon, 3 days prior to the death of Nilima Sharma, he went to the appellants' house to meet Nilima Sharma and also to bring her with him to the parental house at the festival of 'Holi' which did fall on 17.3.1995, however, he was denied meeting with Nilima Sharma by the appellants and, therefore, he has to go back. As per this witness, the appellants told him that Nilima Sharma is seriously ill and, therefore, he cannot be allowed to meet her. The testimony of Cr.A. No. 580 / 1999 23 this witness on this point stands well corroborated by the testimony of Kailash Narayan Sharma (P.W.17) and Vijay Kumar Sharma (P.W.3). Here, it is pertinent to state that the appellant - Hariprasad Sharma in his examination u/s. 313 of 'the Code', has not disputed that on 14.3.1995, Prashant Sharma (P.W.29) came to their house, though in this regard, it is stated by appellant - Sunil Sharma in reply to Question No.138 that Prashant Sharma met with Nilima Sharma and also dined with her, however, she was not allowed to go with him (Question No.141). As a matter of fact, there appears to be no reason to disbelieve the version put forth by Prashant Sharma (P.W.29) which is free from any anomaly.
29. Thus, on a close and careful scrutiny of the testimony of Kailash Narayan Sharma (P.W.17), Vijay Kumar Sharma (P.W.3) and Ramesh Narayan Sharma (P.W.27), it is revealed that after the marriage, the appellants started demanding dowry from Kailash Narayan Sharma (P.W.17). It is further revealed from the evidence available on record that Nilima Sharma was being subjected to harassment and cruelty in this regard by the appellants and that even soon before her death, she was subjected to cruelty and harassment in connection with demand of dowry.
30. The appellants in their examination u/s. 313 of 'the Code', have not disputed that on 17.3.1995, appellant - Hariprasad Sharma hired a taxi from Yashwant Singh Solanki Cr.A. No. 580 / 1999 24 (P.W.18), in which Nilima Sharma was being taken by him and his son - Sunil Sharma to some place. It has further not been disputed that on way, his vehicle was intercepted by the police and Nilima Sharma was found lying in the car in a very critical state and, therefore, she was admitted to District Hospital, Mandsaur by Omprakash Sharma (P.W.24), the then Assistant Sub Inspector of Police, where she succumbed to the burn injuries. It has also not been disputed that on way, the vehicle developed some mechanical fault, whereupon, another vehicle was called by the appellant - Hariprasad Sharma from Yashwant Singh Solanki (P.W.18). Yashwant Singh Solanki (P.W.18) has deposed that appellant - Hariprasad Sharma asked for a car stating that the same is needed to take a woman to the hospital for a delivery case. Salim Khan (P.W.23) and Naveen Bairagi (P.W.19), both drivers, have also stated that appellant - Hariprasad Sharma hired the vehicle stating that the same is required for taking the patient in a case of delivery. Obviously, Nilima Sharma's case was not a case of delivery, rather it was a case of burn injuries, which shows that appellant - Hariprasad Sharma concealed about the factual details of illness from Yashwant Singh Solanki (P.W.18), Naveen Bairagi (P.W.19) and Salim Khan (P.W.23), which indicates that appellants - Hariprasad Sharma and his son - Sunil Sharma did not act with clean hands. The fact remains that Nilima Sharma was being discretely taken in the car to some unknown place.
Cr.A. No. 580 / 1999 2531. The defence plea has been that Nilima Sharma sustained burn injuries on 3.3.1995 while cooking food on stove. In post-mortem examination, 70% ante-mortem burns have been found on the body of the deceased. It has further been found from the evidence that there were no traces of kerosene oil on the body or on the clothes of the deceased recovered at the instance of appellant - Sunil Sharma. This again shows that a false plea has been taken by the appellants to screen themselves. Apart this, the real incident leading to death of Nilima Sharma which would have been within the exclusive knowledge of the appellants has been concealed which goes to show that the appellants in order to screen themselves from the punishment have concealed the evidence with regard to incident which ultimately led to the death of Nilima Sharma.
32. In view of the aforesaid, it is found proved beyond reasonable doubt that Nilima Sharma died within 7 years of her marriage in unnatural circumstances, particularly due to burn injuries and resultant septicemia/toxicemia. It is further found proved that soon before her death she was subjected by the appellants to cruelty and harassment in connection with demand of dowry, therefore, the presumption u/s. 113-B of the Evidence Act is very much available against the appellants. Hence, it cannot be said that the learned trial Court has committed any error in convicting the appellants for offences u/s. 304-B, 498-A and Section 201/34 of the IPC.
Cr.A. No. 580 / 1999 2633. The sentence awarded to each of the appellants by the learned trial Court with regard to aforesaid offences in the peculiar facts and circumstances of the case, cannot be said to be unreasonable, therefore, this appeal being devoid of merit deserves to be and accordingly hereby dismissed. The appellants who are on bail are directed to surrender to their bail bonds before the learned trial Court within 30 (thirty) days from today, else the learned trial Court will secure their presence by coercive means to send them to prison to suffer the sentence imposed against each of them.
(Ved Prakash Sharma) Judge Soumya