Madhya Pradesh High Court
Yogesh Sunare vs The State Of Madhya Pradesh on 10 November, 2014
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Mr. Justice N.K.Gupta,J.
CRIMINAL APPEAL NO.1400 OF 2010
Yogesh Sunare & others.
Vs.
State of Madhya Pradesh.
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Shri R.S.Patel, Advocate for the appellants.
Shri G.S.Thakur, Panel Lawyer for the respondent/ State.
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JUDGMENT
(Delivered on the 10th day of November, 2014) This criminal appeal is filed by the appellants being aggrieved by the judgment dated 24/07/2010 passed by the 12th Additional Sessions Judge, Jabalpur in ST No.545/2009 whereby each of the appellants was convicted of offence punishable under Sections 304-B/34, 498-A/34 of IPC and Section 4 of Dowry Prohibition Act and sentenced to seven years' RI, three years' RI with fine of Rs.2000/- and two years' RI with fine of Rs.1000/-. The default sentence was also imposed in lieu of payment of fine.
2. Prosecution case, in short, is that deceased Kanchan was the wife of appellant No.1 and daughter-in-law of remaining appellants. The marriage of deceased Kanchan took place on 6.5.2006. On 10.6.2009 she was found hanged in her room situated at the house of the appellants in the jurisdiction of Police Station Ghamapur, Jabalpur. On Merg 2 Criminal Appeal No.1400/2010 intimation given by the appellant Yogesh Sunare, the Police Officers went to the spot and removed the dead body of the deceased from the piece of Sari and kept the dead body of the deceased on the floor of the room and thereafter the room was closed and sealed. The memo Ex.P-7 relating to sealing of the room was prepared. Thereafter the room was opened before the parents and relatives of the deceased and memo Ex.P-5 was prepared to open the door. Thereafter the dead body of the deceased was sent for the postmortem. Dr. Chandra Shekhar Waghmare (PW-5) had performed the postmortem on the body of the deceased and gave his report Ex.P-4. He found that the deceased died due to asphyxia caused by hanging. Thereafter the parents and relatives of the deceased have stated that the deceased was being tortured by the appellants for dowry demand etc. After due investigation, the charge sheet was filed before the JMFC Jabalpur, who committed the case to the Sessions Court, Jabalpur and ultimately it was transferred to the 12 th Additional Sessions Judge, Jabalpur.
3. The appellants-accused abjured their guilt. They took a plea that the deceased was kept with comfort. There was no dowry demand from the side of the appellants and after the death of the deceased they were falsely implicated in the matter. In defence Sharad Wagdare (DW-1), Kusum Bai (DW-2) and Shyam Bai (DW-3) were examined.
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4. After considering the evidence adduced by the parties, the learned Additional Sessions Judge, Jabalpur convicted and sentenced the appellants as mentioned above.
5. I have heard the learned counsel for the parties at length.
6. In the present case Dr. Chandra Shekhar Waghmare (PW-5) has proved his postmortem report Ex.P-4. He has stated before the trial Court that the deceased died due to hanging and the death could be suicidal in nature. There was no allegation against the appellants that they killed the deceased. Under these circumstances, the opinion given by Dr. Chandra Shekhar Waghmare (PW-5) appears to be acceptable and it appears that deceased Kanchan had committed suicide by hanging.
7. It is also admitted position that the marriage of the deceased took place in the year 2006 and she died on 10.6.2009, and therefore she died within seven years of her marriage. Therefore, presumption under Section 113-A and 113-B of the Evidence Act is applicable. However, there is no charge framed against the appellants under Section 306 of IPC, and hence presumption under Section 113-A of the Evidence Act is not relevant in the present case. The prosecution had examined Gulab Rao Maski (PW-1)-father of the deceased, Smt. Sushila Maski (PW-2)-mother of the deceased, Pradeep Maski (PW-3) and Manish Kumar (PW-6)-
4 Criminal Appeal No.1400/2010 brothers of the deceased and Meera Bai (PW-7)-aunt of the deceased to prove that the deceased was being harassed by the appellants for dowry demand etc. alongwith and other reasons. These witnesses are not the eye-witnesses, but they have stated about the facts told by the deceased from time to time, and therefore the evidence given by these witnesses is admissible under Section 32 of the Evidence Act relating to the cause of the death. Out of these witnesses, Gulab Rao (PW-1) and Sushila (PW-2) have stated about the two incidents where the deceased complained about the dowry demand and harassment, whereas Pradeep (PW-3) has stated about one phone call received with a demand that she wanted to meet witness Pradeep, whereas Manish (PW-6) and Meera Bai (PW-7) have stated that they were informed by the deceased from time to time about the dowry demand and harassment in three years of her married life. Looking to the nature of circumstances in the case, the evidence of each witnesses is to be examined minutely.
8. Gulab Rao (PW-1), Sushila (PW-2) and Manish (PW-6) have stated that various articles were given to the deceased in her marriage and the appellants demanded that instead of various articles, a sum of Rs.70,000/- may be given to them, and therefore cash of Rs.70,000/- was given to the appellants. However, there is a lot of contradictions and omissions between their statements and the case diary 5 Criminal Appeal No.1400/2010 statements. Gulab Rao (PW-1) and Sushila (PW-2) have stated that no dispute took place during the various ceremonies of marriage. Manish (PW-6) has accepted in para 4 of his statement that there was no talk took place relating to dowry or gifts at the time of marriage. The appellants were given a motorcycle as a gift and they have stated that if cash was given to them, then they could purchase a car. However, he has not stated that in place of motorcycle, cash of Rs.70,000/- was given, whereas no such fact has been corroborated by the evidence of Gulab Rao (PW-1) and Sushila (PW-2) that cash of Rs.70,000/- was given instead of motorcycle or motorcycle was given as a gift to the appellants. Sushila (PW-2) has accepted in her cross examination that list of gifts was prepared in a copy and it was available with her, but no such copy was submitted to the police or produced before the trial Court to show that such articles were given as dowry. Except of oral allegation made by these witnesses, there is no proof that such articles were given by these witnesses to the appellants at the time of marriage of the deceased. If the articles like motorcycle, golden chain, TV etc. were given to the appellants, then a receipt of such articles could be produced before the trial Court or police, even registration of number of the motorcycle could be intimated to the Court, but the witnesses could not inform about the registration number of the motorcycle. Under these 6 Criminal Appeal No.1400/2010 circumstances, the testimony of these witnesses cannot be accepted to the fact that sum of Rs.70,000/- in cash or a motorcycle or other articles were given to the appellants as dowry.
9. Gulab Rao (PW-1) and Sushila (PW-2) have stated that when the deceased came for the first time after her marriage, she informed her parents that the appellants demanded some dowry. Gulab Rao has stated that the deceased told him that she was not provided with a almirah by the appellants, because she did not bring any dowry from her father. In this context, the statement given by Meera Bai (PW-7) is relevant. In para 7 of her statement, she has stated that when she saw the dead body of the deceased in the room, almirah, bed etc. were found in the room at their proper places. If the appellants would not have supplied any almirah to the deceased, then it was not possible that one almirah was found in the room of the deceased when she was found dead, and therefore it appears that incident quoted by Gulab Rao (PW-1) and Sushila (PW-2) appears to be incorrect. Gulab Rao (PW-1) and Sushila (PW-2) shifted their liability upon Manish (PW-
6) and Meera Bai (PW-7) with the pretext that the deceased was more close to Manish and Meera Bai. She used to tell all the grievances to them and the parents of the deceased could know her grievances from either Manish or Meera.
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10. Pradeep (PW-3), brother of the deceased has stated that he was working at Bhopal, and he received a telephone call on 7.6.2009 from his sister that she wanted to meet witness Pradeep. Initially Pradeep did not say about the purpose of the meeting. He was declared hostile and thereafter on refreshing his memory he stated that the deceased demanded a sum of Rs.1.5 lakhs because appellant Yogesh Sunare wanted to purchase a car. The conduct of this witness Pradeep appears to be suspicious. If a phone call was there with the demand of Rs.1.5 lakhs, then he could state such a fact from the very beginning and he could not forget such a fact. However, he has accepted that his father engaged a private counsel in the case and he met with that lawyer prior to his examination before the trial Court. Witness Pradeep could not say about that demand told by the deceased on phone call in the examination-in-chief and he told such fact after refreshing his memory. It appears that his case diary statement was prepared according to the suggestion given by his counsel, and therefore he could not know as to what allegation he had made in the case diary statement, and therefore on his own he could not say that on telephone call the deceased demanded a sum of Rs.1.5 lakhs. Looking to the conduct of witness Pradeep, his testimony does not inspire any confidence.
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11. Witnesses Gulab Rao (PW-1) and Sushila (PW-2) did not say anything about the dowry demand in those three years when the deceased was alive. After the first incidence of demand which was reported 15 days after the marriage, they have stated about the demand which was done to the deceased 14-15 days prior to her death. They did not mention about any fact relating to harassment or demand in those 2-3 years when the deceased was alive and residing with the appellants.
12. Manish (PW-6) and Meera Bai (PW-7) have stated that deceased Kanchan came to her parents' house 5-6 times in her lifetime and every time she had mentioned about the harassment done by the appellants relating to dowry demand. However, it is surprising that if she had stated about the dowry demand and harassment to these witnesses, then as to why they did not inform about that fact to the parents of the deceased. Gulab Rao (PW-1) and Sushila (PW-2) did not mention about such complaints for 5- 6 times made by the deceased, and therefore it appears that Manish and Meera Bai are telling a falsehood about the regular complaint by the deceased of the dowry demand and harassment. The statement of Meera in para 2 is most important in the case. When she was asked by the prosecutor that what was the reason of death of deceased Kanchan, then Meera has stated that she did not know as to why the deceased died. If the deceased was regularly being 9 Criminal Appeal No.1400/2010 tortured by the appellants and such fact was in the knowledge of Meera Bai, then certainly she would have replied about that reason. If the deceased was tortured regularly for dowry demand etc, then Meera Bai and Manish would have lodged an FIR against the appellants in the lifetime of the deceased or she could be detained in the house of her parents till talk would have taken place between them and appellants. On the contrary, Gulab Rao (PW-1), Sushila (PW-2), Manish (PW-6) and Meera Bai (PW-
7) have accepted that when son was born to deceased Kanchan, Sushila (PW-2)-mother of the deceased remained in the house of the appellants for approximately two months without any discomfort. A function on large scale was arranged in the house of the appellants after birth of the child and witnesses Gulab Rao, Sushila Bai and Meera Bai were comfortable in that function. It is not mentioned by any of the witnesses that they gave any gift to the new born child at that time or any demand was made by the appellants at that time. According to all the witnesses, that function was very good and comfortable.
13. Looking to the conduct of the appellants during that function, it appears that after the marriage of the deceased, she was not harassed for any reason in those 1 ½ years when male child was born to the deceased. Manish and Meera have stated that the deceased was making complaint regularly about the dowry demand and 10 Criminal Appeal No.1400/2010 harassment, but they did not inform about such complaint to the parents of the deceased. Such conduct of Meera and Manish appears to be unnatural. It appears that there was no complaint from the side of the deceased, and hence nothing was brought into the knowledge of the parents of the deceased. These witnesses are telling a falsehood about the complaint of the deceased in her lifetime.
14. Witnesses Gulab Rao (PW-1), Sushila (PW-2) and Manish (PW-6) have stated that 14-15 days prior to the death of the deceased, she came to the house of her parents and demanded a sum of Rs.1.5 lakhs so that appellant No.1 Yogesh could purchase a car. It is alleged that the deceased had intimate relations with her aunt Meera Bai, but it is strange that Meera Bai (PW-7) did not say a single word about that incident that the deceased went to the house of her parents and demanded a sum of Rs.1.5 lakhs. If Meera Bai had intimate relation with the deceased, then she would have told about the demand to Meera Bai, but Meera Bai did not corroborate about such demand, and therefore it appears that witnesses Gulab Rao (PW-1), Sushila (PW-2) and Manish (PW-6) are telling a falsehood about that alleged demand to be made 15 days prior to her death. Manish has accepted in para 12 of his statement that the marriage ceremony of cousin of the deceased was fixed for 21.6.2009 and she wanted to continue to reside in her parents' house to attend that marriage, but ultimately her 11 Criminal Appeal No.1400/2010 husband took her back. If the deceased was sent to the house of her parents by the appellants for fulfillment of demand, then her husband would have persuaded her to stay there for fulfillment of such demand, if any.
15. Manish (PW-6) has accepted that the deceased was in contact with him with the help of mobile phone and she was telling every thing to him from time to time. She used to give missed call and thereafter he was calling back to the deceased on mobile phone. It is strange that Manish did not say anything about the calls of the deceased in last 15 days of her lifetime. If she would have come to the house of her parents with a demand of Rs.1.5 lakhs, then certainly if the demand was not fulfilled, then she would have been harassed in those 15 days prior to her death and when she was in contract with her brother Manish on mobile phone then she would have informed about her harassment in those 15 days, but witness Manish kept silent about the allegations of the deceased during those 15 days. When witness Manish was in closed contact with the deceased on telephone then when he did not say anything about any harassment done by the appellants in those 15 days, then it would be an admission from the side of witness Manish that in those 15 days there was no reporting from the side of the deceased about any harassment done by the appellants. If the appellants were harassing the deceased for dowry demand etc., then as to why the deceased did not give any 12 Criminal Appeal No.1400/2010 information to her brother Manish on mobile phone about the harassment in last 15 days during her lifetime. The conduct of the deceased indicates that there was no demand of Rs.1.5 lakhs, and therefore there was no consequential harassment from the side of the appellants. Under these circumstances, the testimony of witnesses Gulab Rao (PW-1), Sushila (PW-2) and Manish (PW-6) cannot be accepted that there was a demand of Rs.1.5 lakhs from the side of the appellants 15 days prior to the death of the deceased. It is also pertinent to note here that the appellant No.1 was operating a small flour mill and he did not have any status to maintain a car. Under these circumstances, there was no possibility of demand of Rs.1.5 lakhs from the appellants to purchase a car. It appears that such pretext is imagined by the witnesses to implicate the appellants in the case otherwise if the demand was made by the appellants, then the deceased would have tortured her for the last 15 days during her lifetime for fulfillment of that dowry demand and then the deceased would have informed her brother Manish on mobile phone about such harassment.
16. A strange fact appears from the cross examination of various witnesses that their case diary statements were not recorded on any machine. Witnesses Gulab Rao (PW-1), Sushila (PW-2), Manish (PW-6) and Meera Bai (PW-7) have stated that their statements were 13 Criminal Appeal No.1400/2010 recorded by the Investigation Officer for once and those statements were written manually whereas the case diary statements of various witnesses brought on record were prepared by the computer sheet. The Investigation Officer Guru Prasad Parashar (PW-12) has accepted that merg statements of the witnesses were written manually whereas their case diary statements were recorded with the help of computer. When the witnesses did not confirm that their evidence was recorded with the help of computer, then possibility may not be ruled out that their case diary statements were recorded by the police according to the direction of their Advocate and the merg statements of these witnesses were not filed by the Investigation Officer with the charge sheet. The possibility cannot be ruled out that the case of dowry demand was prepared with the help of legal advice. It is true that the statements were recorded on the same day when the Panchanama-lash was prepared. However, in the same day the prosecution witnesses got an advice of a lawyer and then their statements were prepared with the help of computer, without examining them. Their previous statements which were recorded during the merg enquiry were not placed before the trial Court to show as to whether they stated about the harassment of the deceased in those statements or not.
17. The appellants had examined three defence witnesses viz. Sharad Wagdare (DW-1), Kusum Bai (DW-2) 14 Criminal Appeal No.1400/2010 and Shyam Bai (DW-3). Sharad Wagdare is brother-in-law of appellant No.1, who was residing in Village Patakheda District Betul and who has stated that he never received any complaint from deceased Kanchan. Kusum Bai (DW-2) was the neighbourer of the appellants. She has stated that the deceased Kanchan was kept with comfort. However, Kanchan was a fair woman whereas the appellant No.1 had a dark complexion, deceased Kanchan was not happy with her husband due to his complexion and income. Shyama Bai (DW-3) is also resident of same locality, who has stated that the deceased was unhappy because her husband was not handsome and was having lesser income. However, these witnesses may be tutored witnesses, and therefore their testimony cannot be accepted for the reason of annoyance of the deceased. However, it is not necessary for defence to prove the cause of suicide committed by the deceased, but the witnesses have stated that there was no harassment to the deceased Kanchan from the side of the appellants.
18. If the entire evidence of the prosecution is considered simultaneously, then it would be apparent that some of the witnesses have stated about the continuous complaint done by the deceased about the dowry demand and harassment, but no such complaint was informed to her parents. No FIR was lodged during the lifetime of deceased Kanchan. No Panchayat was called for redressal of the dispute. The witnesses have accepted that one Mahadev 15 Criminal Appeal No.1400/2010 was mediator for arrangement of the marriage, but no complaint was made to the mediator in those three years about the dowry demand and harassment. It was alleged that one almirah was demanded within 15 days of her marriage, but it is established that she already had an almirah in the room and there was no such demand. Similarly, there was no specific demand found in three years of her lifetime. It is alleged that 15 days prior to her death, she went to the house of her parents with a demand of Rs.1.5 lakhs so that appellant No.1 could purchase a car. However, there was no status of the appellants to maintain a car and it is also found that after coming back from the house of the appellants, she did not inform her brother Manish on mobile phone that she was being harassed relating to that demand, and therefore in last 15 days during her lifetime, no harassment could be proved by the witnesses done by the appellants to the deceased relating to dowry demand and otherwise. In this context, the judgment of this Court in the case of "Shivkumar Sharma Vs. State of MP" [2010 (3) MPHT 418] may be perused, in which it is held that if in last few days of her lifetime, no harassment from the side of the accused persons is proved, then offence under Section 304-B of IPC shall not be made out. Also Hon'ble the Apex Court in the case of "Harjit Singh Vs. State of Punjab" [2006(I) MPWN 125] that for conviction of offence under Section 304-B of IPC, it is to be 16 Criminal Appeal No.1400/2010 established that cruelty or harassment relating to dowry demand must have been done soon prior to death of the deceased. In the present case, it could not be proved beyond doubt that any demand of Rs.1.5 lakhs was made 15 days prior to the death of the deceased. Also there is no allegation from the side of the witness Manish that in last 15 days of her lifetime, she made any complaint on mobile phone about the dowry demand or harassment.
19. On the whole it appears that the deceased was kept with comfort. There was no specific dowry demand from the side of the appellants. In the function relating to birth of the child, nothing was demanded from the parents of the deceased. The demand of Rs.1.5 lakhs prior to the death of the deceased is not proved beyond doubt, and therefore the prosecution has failed to prove that there was any demand of dowry or the deceased was harassed due to that dowry demand prior to her death. Therefore, the appellants cannot be convicted of the offence under Section 304-B of IPC or Section 4 of Dowry Prohibition Act. The learned Additional Sessions Judge has committed an error of law in convicting the appellants of the aforesaid offences.
20. So far the offence under Section 498-A of IPC is concerned, it appears that false implication of dowry demand was created by the prosecution witnesses though no demand could be proved beyond doubt. The deceased was not held in the house of her parents for redressal of her 17 Criminal Appeal No.1400/2010 complaint. The deceased resided in the house of her husband. She got a separate portion of rooms. She gave birth to a male child and birth of that child was celebrated in a pleasant environment. Meera Bai (PW-7) intimate to the deceased could not show any reason as to why the deceased had committed suicide, and therefore it would be apparent that the evidence given by Gulab Rao, Sushila and Manish about the harassment done by the appellants bears no truth, but such allegations are made on the basis of advice given to them by some Advocate. The prosecution could not prove that the appellants had harassed the deceased on any count. No FIR was lodged by the deceased in her lifetime. No panchayat was called by her parents in her lifetime. On the contrary, it appears that she wanted to reside in her parents' house till 21.6.2009 so that she could attend the marriage of her cousin, but she was taken by her husband 15 days prior to her death. Such activity of the appellant No.1 does not fall within the ambit of cruelty or harassment. Under these circumstances, the prosecution has failed to prove that the deceased was harassed by the appellants or she was subjected to cruelty by the appellants for demand of dowry or otherwise. The appellants could not be convicted of the offence under Section 498-A of IPC. The learned Additional Sessions Judge has committed an error in convicting the appellants for that offence.
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21. On the basis of the aforesaid discussion, the present appeal filed by the appellants may be accepted. Consequently, it is hereby accepted. The conviction as well as sentence imposed on the appellants by the trial Court of the offence punishable under Sections 304-B/34, 498-A/34 of IPC and Section 4 of Dowry Prohibition Act is hereby set aside. The appellants are acquitted of all the charges appended against them. The appellants would be entitled to get the fine amount back, if they have deposited before the trial Court.
22. At present the appellants are in custody, therefore it is directed that they be released forthwith. The Registry is directed to issue a release warrant in this regard without any delay.
(N.K.Gupta) Judge 10/11/2014 Ansari.