Madhya Pradesh High Court
Manoj vs The State Of M.P. on 30 July, 2018
1 Cri.A.No.707/1999
HIGH COURT OF MADHYA PRADESH, INDORE
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
Criminal Appeal No. 707/ 1999.
Manoj and 2 others
Vs.
State of Madhya Pradesh
------------------------------------------------------------------------------------------------------------------------
Shri Virendra Sharma, Advocate for appellants.
Shri Koustubh Pathak, Government Advocate for the Respondent/State.
------------------------------------------------------------------------------------------------------------------------
Whether approved for reporting : (Yes/No).
JUDGMENT
(02.08.2018) This appeal has been filed against the impugned judgment of conviction and order of sentence dated 21/05/1999 passed by XIVth Additional Session Judge, Indore in Sessions Trial No.395/1997 whereby the appellants have been convicted for the offence punishable under sections 304-B and 498A of the I.P.C. and sentenced to R.I. for 10 years along with fine of Rs.2000/- and to R.I. for 6 months, respectively, with default stipulation as mentioned in the impugned judgment.
2. The facts giving rise to this appeal are that the marriage of the de- ceased Jamuna Bai was solemnized with the appellant no.1 Manoj on 24/04/1993 and she died due to burn injury on 05/08/1997 in the suspi- cious circumstances. After the incident she was shifted to M.Y. Hospital, Indore where treating Dr. Surendra Dubey (PW-11) also recorded dying declaration Ex.P-16 in which the deceased disclosed that she herself set ablaze on her body on account of demand of dowry and cruel behaviour of the appellants. Thereafter Executive Magistrate Sm. Meena Pal (PW-
13) also recorded dying declaration of the deceased Ex.P-17 in which she stated that the appellants set ablaze her. During the investigation, statement of the parents of the deceased namely Raghunath (PW-5) 2 Cri.A.No.707/1999 and Kalawati Bai (PW-6) were recorded by the police and after comple- tion of the investigation of crime No.473/1997 registered at police sta- tion M.I.G Colony, Indore, the charge sheet was filed against the appel- lants and the appellants were tried for commission of the offence under sections 302, 304B, and 498A read with section 34 of IPC. The accused persons abjured their guilt and claimed to be tried. The defence fo the appellants are that they are innocent.
3. After completion of the trial, learned trial court acquitted the ap- pellants of the charge under section 302 of IPC. However convicted the appellants under sections 304B and 498A of IPC and sentenced them as mentioned earlier.
4. The findings of the learned trial court are mainly based on dying declaration Ex.P-16 recorded by Dr. Surendra Dubey (PW-11) and state- ment of the parents of the deceased Raghunath (PW-5) and Kalawati Bai (PW-6). The aforesaid findings have been assailed on the ground that the deceased has given two dying declarations and dying declara- tion Ex.P-16 is not reliable. The statements of the parents of the de- ceased are also not reliable. There is no specific averment about the de- mand of dowry and harassment by the appellants and before the date of incident appellant no.2 and appellant no.3 were residing separately as admited by Raghunath (PW-5). There is no corroboration of the statements of parents. Apart from it, there is no material on record to indicate that soon before the death the deceased was subjected to cru- elty. Without proving the necessary ingredient of offence punishable under section 304B of IPC, the appellants can't be convicted for com- mission of the offence. Further submitted that when the offence pun- ishable under section 304B is not established, the evidence in the form of dying declaration can't be considered to prove the offence punish- able under section 498A of IPC as than the evidence of dying declara- tion would be considered hearsay evidence and cannot be used under 3 Cri.A.No.707/1999 section 32 of the Evidence Act. Therefore, appellants can also not be punished under section 498A of IPC. Hence the appeal be allowed and appellants be acquitted. Further it is submitted that in case of uphold- ing of the offence under section 498A of IPC. Hence the appellants be acquitted.
5. Learned Government Advocate opposed the aforesaid con- tention and supported the finding of the learned trial court and prays to dismiss the appeal.
6. Having heard contention of learned counsel for the parties and on perusal of the record, in this case it is not disputed here that the mar- riage of appellant no.1 Manoj with the deceased was taken place on 24/04/1993 and the deceased was died on 05/08/1997 on account of burn injury in her matrimonial house. Appellant no.2 Kallu is fa- ther-in-law and appellant no.3 is mother-in-law of the deceased. Initially she was treated by Dr. Surendra Dubey (PW-11) and after that autopsy was conducted by Dr. M.N. Unda (PW-3), who prepared postmortem re- port Ex.P-3 and opined that the deceased died on account of burn injury sustained to her. Hence, the aforesaid evidence is unimpeachable and establishes the fact that the death of the deceased taken place within 7 years of her marriage on account of her burning in her matrimonial house.
7. Now the question is that whether the deceased was subjected to cruelty soon before her death in connection with demand of dowry by the appellants. The learned trial court has relied on the statement of Dr. Surendra Dubey (PW-11) who recorded the dying declaration Ex.P-16 and also partly relied on dying declaration Ex.P-17 recorded by Executive Magistrate Smt. Meena Pal (PW-13) and also placed reliance on the statements of Raghunath (PW-5) and Kalawati Bai (PW-6). But on care- ful scanning of the aforesaid statements of prosecution witnesses and dying declarations Ex.P-16 and Ex.P-17, it is found that there is no iota or 4 Cri.A.No.707/1999 material to indicate that soon before her death the deceased was sub- jected to cruelty in connection with demand of dowry. There is general averment with regard to demand of dowry after two years of the mar- riage and general averment with regard to harassment without disclos- ing the date or period where such harassment was taken place and that why the learned trial court has not given any finding on the aforesaid point but the learned trial court has ignored the aforesaid infirmity with- out considering it as a essential ingredient of the offence. In such cir- cumstance, presumption under section 113B of Evidence Act does not attract, when the prosecution has not proved necessary ingredient of the presumption. In the aforesaid circumstance, there is no hesitation to hold that the prosecution has failed to establish the necessary ingre- dient of the offence of dowry death. Accordingly, the finding of trial court with regard to conviction of the appellants under 304B of IPC can't be upheld.
8. So far as the appellants' conviction under section 498A of IPC is concerned, it is also not sustainable. Raghunath (PW-5) father of the de- ceased has categorically admitted that the appellant no.2 and 3 were re- siding separately from before 1 ½ months of the incident and there is no specific allegation against them with regard to demand of dowry and harassment. Apart from it, in this regard there is no direct evidence, there is hearsay evidence of Raghunath (PW-5) and Kalawati Bai (PW-6) and dying declarations Ex.P-16 and Ex.P-17, which is not admissible un- der section 32 of the Evidence Act purely to prove the ingredient of the offence punishable under section 498A of IPC as when the question of death of the deceased ceased, the evidence in the nature of dying dec- laration can't be considered under section 32 of the Evidence Act for rest of the offence.
9. In other words, when appellants accused are acquitted un- der section 304-B of the I.P.C. then the evidence which come in the 5 Cri.A.No.707/1999 purview of dying declaration under section 32 of the Evidence Act can- not be read with regard to evidence under section 498-A of the I.P.C. as in the offence under section 498-A of I.P.C. question of death of de- ceased does not come in the purview of consideration. Therefore, the statements which are admissible under section 32 of the Evidence Act as relevant to the death of deceased is not admissible with regard to of- fence under section 498-A of the I.P.C., as it has been held by the Apex Court in the case of Gananath Pattnaik Vs. State of Orissa, (2002)2 SCC
619. The relevant para 10 is reproduced hereinbelow :-
"10. Another circumstance of cruelty is with respect to tak- ing away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW 5, who is the sister of the deceased. In her deposition recorded in the court on 4-5-1990 PW 5 had stated:
"Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfilment of balance dowry amount of a scooter and a two-in-one."
and added:
"On 3-6-1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima Apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usu- al and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from her, and that her mother-in-law has come and some conspiracy is going against her (the deceased). She further told that 'mate au banchei debenahin'."
Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence un- der Section 304-B and such statement was admissible under clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transac- tion which resulted in her death. Such a statement is not ad- missible in evidence for the offence punishable under Sec- tion 498-A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the hearsay rule and deals with the statements or declara- tions by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule 6 Cri.A.No.707/1999 does not fall within the exceptions of Section 32 of the Evi- dence Act, the same cannot be relied upon for finding the guilt of the accused.
10. In the case of Inder Pal Vs. State of M.P., reported in 2001(10) SCC 736 wherein the apex court considered the matter and held as under :-
"7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision un- der which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the cir- cumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagina- tion can the statements of Damyanti contained in Exhibit P-7 or Exhibit P- 8 and those quoted by the witnesses be connected with any circum- stance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.
11. Relying upon this judgment, the Apex court further confirmed the same view in the case of Bhairon Singh Vs. State of M.P., reported in (2009) 13 SCC 80.
12. In view of the aforesaid propositions of law, the evidence in the nature of dying declaration came under the purview of hearsay evidence and on the basis of that evidence, the ingredient of offence under section 498A of IPC cannot be proved and the same remain unestablished.
13. In view of the aforesaid discussion, the findings of the learned tri- al court are not sustainable as the prosecution has failed to prove the charges beyond reasonable doubt. Hence, this appeal is allowed and the impugned judgment of conviction and order of sentence passed against the appellants no. 1 to 3 are hereby set-aside. Appellants no. 1 to 3 are acquitted of the charges under section 304B and 498A of IPC. Ap- pellants no. 1 to 3 are on bail. Their bail bonds are discharged. Fine amount, if any deposited by the appellants, the same be returned back to them.7 Cri.A.No.707/1999
14. A copy of this judgment be sent to the trial court for informa- tion and compliance.
(J.P.Gupta) JUDGE tarun signed by Digitally TARUN KUMAR SALUNKE Date: 2018.08.03 17:28:40 +05'30'