Madhya Pradesh High Court
Shambhu Dayal & Anr. vs State Of M.P. on 6 January, 2015
Author: Sushil Kumar Gupta
Bench: Sushil Kumar Gupta
1 Cr.A. No.13/2000
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH AT GWALIOR
DIVISION BENCH: HON'BLE SHRI JUSTICE S.K.GANGELE
HON'BLE SHRI JUSTICE SUSHIL KUMAR GUPTA
CRIMINAL APPEAL N0.13/2000
Shambhudayal & another
Vs.
State of M.P.
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Appellants by Shri Rajesh Shukla and Shri Anand Purohit, Advocates.
Respondent/State by Shri Prabal Solanki, Public Prosecutor.
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&
CRIMINAL APPEAL N0.300/2000
State of M.P.
Vs.
Shambhudayal & another
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Appellant/State by Shri Prabal Solanki, Public Prosecutor.
Respondents by Shri Rajesh Shukla and Shri Anand Purohit, Advocates.
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&
CRIMINAL REVISION N0.711/2004
Mahavir Prasad
Vs.
State of M.P. & another
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Revisionist by Shri M.M.Tripathi, Advocate.
Respondent No.1/State by Shri Prabal Solanki, Public Prosecutor.
Respondent No.2 by Shri Rajesh Shukla and Shri Anand Purohit,
Advocates.
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JUDGMENT
(06.1.2015) AS PER JUSTICE SUSHIL KUMAR GUPTA:-
The judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No.300/2000 (State of M.P. Vs. Shambhudayal & another) and Criminal Revision No.711/2004 (Mahavir Prasad Vs. State of 2 Cr.A. No.13/2000 M.P. & another) since they have arisen from the same incident.
2. Criminal appeal No.13/2000 has been filed by the appellants under Section 374 of the Code of Criminal Procedure, 1973 (for brevity 'the code of 1973') being aggrieved with the judgment of conviction and order of sentence dated 20.12.99 passed by the Ist ASJ, Bhind, in S.T.No.63/99 convicting the appellants under Section 498-A of the Indian Penal Code, 1860 (for brevity 'the code of 1860') and sentencing them to undergo 3 years R.I. with fine of Rs.3,000/- and Criminal Appeal No.300/2000 has been filed by the State of Madhya Pradesh under Section 378 of the code of 1973 after taking leave of this Court against the same judgment acquitting accused-Shambhudayal and Ashok Kumar of the charge under Section 304-B in the alternative under Section 302 of the code of 1860.
3. Criminal Revision No.711/2004 has been preferred by the revisionist/ complainant being aggrieved with the judgment of acquittal dated 10.9.2004 passed by the First ASJ, Bhind, in separate S.T.No.63/99 acquitting accused/Vidya Devi of the charges under Sections 498-A and 304-B in the alternative under Section 302 or 302/34 of the code of 1860.
4. In brief, the case of prosecution is that on the information of informant Pannalal dated 28.11.98 that daughter-in-law of Shambhudayal has died, Merg Intimation No.43/98 was registered at police Station, Mehgaon. During enquiry, it was found that marriage of deceased Manjesh Kumari was solemnized with Ashok Kumar son of Shambhudayal. After marriage, husband Ashok Kumar, father-in-law Shambhudayal and mother- in-law of the deceased started harassing her on demand of one Motorcycle in dowry. It was also found that the accused persons have committed the murder of the deceased. Hence, FIR at Crime No.293/98 was registered for the offence punishable under Section 302, 498-A, 34 of the code of 1860 3 Cr.A. No.13/2000 against Shambhudayal, Ashok Kumar and mother-in-law of the deceased (Vidyadevi).
5. After investigation, police submitted the charge-sheet against Shambhudayal and Ashok Kumar showing Vidyadevi as absconding in the committal Court which committed the case to the court of Session and from where it was received by the trial court for trial.
6. The learned Trial Court framed the charges under Section 304-B in the alternative under Section 302 of the code of 1860 against accused Shambhudayal and Ashok Kumar. The accused persons denied the charges and pleaded for trial.
7. In the trial of the aforesaid accused Shambhudayal and Ashok Kumar in order to prove the charges, prosecution examined as many as 18 witnesses and placed Ex.P/1 to P/17, the documents on record. Accused pleaded defence of alibi. The accused persons also In support of their defence, examined two witnesses namely Ramswaroop (DW.1) and Hargovind (DW.2).
8. The learned trial Court after appreciating and marshalling the evidence convicted the accused persons under Section 498-A of the code of 1860 and sentenced them as mentioned above, however, the learned trial Court acquitted the accused persons of the charge under Section 304-B in the alternative under Section 302 of the code of 1860.
9. After arrest of accused Vidyadevi, police submitted supplementary charge-sheet against her in the committal Court which committed the case to the court of Session and from where it was received by the trial court for trial.
10. The learned Trial Court framed the charges under Sections 498-A, 304-B, in the alternative under Section 302 or 302/34 of the code of 1860 4 Cr.A. No.13/2000 against accused Vidyadevi which she denied and pleaded for trial.
11. In a separate trial in order to prove the charges, prosecution examined as many as 16 witnesses and the accused Vidyadevi In support of her defence, examined one witness namely Ramesh Chand (DW.1).
12. The learned trial Court after appreciating and marshalling the evidence acquitted accused Vidyadevi of all the charges.
13. In this manner, present appeal and Criminal Appeal No.300/2000 and Criminal Revision No.711/2004 have been filed.
14. Before considering factual aspect of these cases, it would be profitable to reproduce relevant provisions of dowry, dowry death and the presumption as well as case laws.
15. Definition of dowry has been given in Section 2 of the Dowry Prohibition Act 1961 (for brevity 'the act of 1961') which reads thus:.-
"2. Definition of Dowry.-In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."
16. The provisions of Section 498-A of the code of 1860 read as under :-
"498A. Husband or relative of husband of a woman subjecting her to cruelty.Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty"
means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or 5 Cr.A. No.13/2000
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any properly or valuable security or is on account of failure by her or any person related to her to meet such demand."
17. The definition of dowry death given in Section 304-B of the code of 1860 reads as under:-
"304B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, "dowry"
shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
18. Section 113-B of the Evidence Act reads as under :-
"113-B. 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.
Explanation.-For the purposes of this section "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code (45 of 1860)]."
19. With regard to the relevant provisions, the Apex Court in the case of Suresh Kumar Singh v. State of Uttar Pradesh, (2009) 17 SCC 243 observed as under :-
23. The harassment which is said to have been caused in connection with the demand of dowry other than the incident in question, as noticed hereinbefore, was one year prior to the incident. Would a gap of one year would answer the description of term "soon before her death" is the question. We may, at the outset, notice some case laws operating in the field.
24. In Satvir Singh and Ors. vs. State of Punjab and Anr.6 Cr.A. No.13/2000
[(2001) 8 SCC 633], this Court held:
"22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened "soon before her death". The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasis the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon before her death".
{See also Harjit Singh vs. State of Punjab [(2006) 1 SCC 463]}
25. Indisputably, in order to attract the said provision, it is imperative on the part of the prosecution to establish that the cruelty or harassment has been meted out to the deceased `soon before her death'. There cannot be any doubt or dispute that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fix period can be indicated therefor. It, however, must undergo the test known as `proximity test'. What, however, is necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim."
20. The Apex Court in Gurdeep Singh v. State of Punjab and others, (2011) 12 SCC 408 held as under :-
12. We first take up the argument relating to Section 304B and the presumption drawn under Section 113B. A bare reading of Section 304B pre- supposes several factors for its applicability, they being:- (i) death should be of burns or bodily injury or has occurred otherwise than under normal circumstances:(ii) within seven years of the marriage; and
(iii) that soon before her death she had been subjected to 7 Cr.A. No.13/2000 cruelty or harrassment by her husband or her relatives.
This Cr.A. No. 1085 of 2003 REPORTABLE 6 Court in Suresh Kumar Singh's case (supra) has held that even if one of the ingredients is not made out, the presumption under Section 113B of the Evidence Act would not be available to the prosecution and the onus would not shift to the defence.
13. We find in the present case that there is no evidence of unnatural death. It is the prosecution story that the deceased had been poisoned. It has, however, come in the evidence, and in particular, in the report of the Forensic Science Laboratory dated 21st August, 1995, that on an analysis of the bones and ashes no poisonous substance had been found to be present. In this view of the matter, the mere fact that the deceased happened to be a young woman would not lead to the inference that she had died an unnatural death. Likewise, we find that the evidence of demand for dowry or goods soon before death is also lacking. Admittedly, the only evidence of any demand was of Rs. 25,000/- made one year prior to the incident and as per the defence evidence of D.W. 2 and D.W. 4, the money for the execution of the sale deed had been taken out from the bank a day earlier. In the light of these two factors it has been held in paragraph 25 of the above cited case as under:
"25. Indisputably, in order to attract Section 304-B, it is imperative on the part of the prosecution to establish that cruelty or harassment has been meted out to the deceased 'soon before her death'. There cannot be any doubt or dispute that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fixed period can be indicated therefor. It, however, must undergo the test known as 'the proximity test'. What, however, is necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim."
We, therefore, find that evidence clearly fails the proximity test as laid down in the aforesaid judgment."
21. In Satvir Singh and others v. State of Punjab and another, 2002 SCC (Cri) 48, the Apex Court observed as under :-
"14. Both the contentions are fallacious. The essential components of Section 304B are: (i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage. (ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under Section 304B. To 8 Cr.A. No.13/2000 be within the province of the first ingredient the provision stipulates that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances. It may appear that the former limb which is described by the words death caused by burns or bodily injury is a redundancy because such death would also fall within the wider province of death caused otherwise than under normal circumstances. The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence.
16. At the first blush we thought that there was force in the said contention but on a deeper analysis we found that the contention is unacceptable. Section 306 IPC when read with Section 113A of the Evidence Act has only enabled the court to punish a husband or his relative who subjected a woman to cruelty (as envisaged in Section 498A IPC) if such woman committed suicide within 7 years of her marriage. It is immaterial for Section 306 IPC whether the cruelty or harassment was caused soon before her death or earlier. If it was caused soon before her death the special provision in Section 304B IPC would be invokable, otherwise resort can be made to Section 306 IPC.
17. No doubt Section 306 IPC read with Section 113A of the Evidence Act is wide enough to take care of an offence under Section 304B also. But the latter is made a more serious offence by providing a much higher sentence and also by imposing a minimum period of imprisonment as the sentence. In other words, if death occurs otherwise than under normal circumstances within 7 years of the marriage as a sequel to the cruelty or harassment inflicted on a woman with demand of dowry, soon before her death, Parliament intended such a case to be treated as a very serious offence punishable even upto imprisonment for life in appropriate cases. It is for the said purpose that such cases are separated from the general category provided under Section 306 IPC (read with Section 113A of the Evidence Act) and made a separate offence."
22. In Rohtash v. State of Haryana, (2012) 6 SCC 589, the Apex Court observed as under:-
"27. The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well-settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of 9 Cr.A. No.13/2000 innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide: State of Rajasthan v. Talevar & Anr., AIR 2011 SC 2271; and Govindaraju @ Govinda v. State by Srirampuram Police Station & Anr., (2012) 4 SCC 722"
23. Firstly we would consider the factual aspect of Criminal Revision No.711/2004. Learned counsel for the revisionist submitted that there was ample and sufficient evidence against respondent-Vidyadevi for convicting her for the offence punishable under Sections 304-B, 498-A as well as Section 302 of the code of 1860. He further submitted that learned trial Court did not appreciate the evidence properly.
24. Learned trial Court after appreciation of the evidence, found that prosecution has failed to adduce evidence with regard to harassment given to the deceased. Learned trial Court in para 21 of the judgment observed that not a single witness stated about the harassment and cruel treatment given to the deceased. Kalicharan (PW-1) in para 3 of his deposition has stated that he has no personal knowledge as to how Manjesh Kumari died. The evidence of this witness is hearsay evidence. Pannalal (PW-2) and Harkanth (PW-11) stated in their statements that accused Vidyadevi did not live in house at Kheria before the death of Manjesh Kumari and had gone to her parents house due to death of her mother. These witness also did not state in their statements about the presence of accused Vidyadevi at the time of incident at village Kheriyator. Harkanth (PW-11) in his statement denied the demand of bike by Vidyadevi. These witnesses specifically stated in previous statement dated 5.5.99 in para 14 that in village Kheriyator only Ashok Kumar, husband of the deceased, and deceased Manjesh Kumari were residing. The trial Court also found that Vidyadevi was not living with Ashok and Manjesh Kumari and even she was not present in 10 Cr.A. No.13/2000 village Kheria at the time of incident, hence, she cannot be held guilty for committing cruelty and dowry death of deceased Manjesh Kumari. Trial Court also found and held in para 33 of the judgment that Kamlabai (PW-6) admitted in previous statement dated 12.7.99 that after marriage till two years Manjesh Kumari was living with comfort. The trial Court also did not find the statement of this witness reliable. The trial Court further held that statement of material witnesses has not been recorded on the date of incident although they were present and available on the spot immediately after the incident and recorded after elapse of long time and there is material omissions, contradictions and exaggeration in the statement of prosecution witnesses.
25. After hearing learned counsel for the parties and perusal of the impugned judgment & also the evidence of prosecution witnesses as well as facts and circumstances of the case, we also find that learned trial Court has rightly appreciated the evidence and judgment of the trial Court is impeccable and does not call for any interference. Sound and valid reasons have been given for the judgment of acquittal. Merely because another view is possible, the judgment of acquittal cannot be set aside. As observed by the Apex Court in Rohtash (supra) the law of interfering with the judgment of acquittal is well-settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found `to be perverse, the appellate court can interfere with the order of the acquittal.
26. Considering the fact that powers of this Court are undoubtedly limited in exercise of revisional jurisdiction, evidence on record have been properly scrutinized, finding of acquittal does not call for any interference and it is a settled principle of law that unless the judgment of acquittal is palpably 11 Cr.A. No.13/2000 wrong and grossly unreasonable, interference in revision by the complainant is not called for and it is also not a case where retrial is warranted, Criminal Revision No.711/2004 is without merits and it is hereby dismissed as such.
27. Now we would consider the factual aspect of Criminal Appeal No. 300/2000.
28. Pannalal (PW-1), was the neighbour of deceased Manjesh Kumari, who informed the police about the death of deceased and who has been declared hostile, and Harkanth (PW-2) (uncle of Mahavir Parasad), Beniram (PW-3) [Phoofa (husband of father's sister) of the deceased], Kamla (PW-5) (mother of the deceased), Munnalal (PW-6) and Rustam Singh (PW-18) (maternal uncles of the deceased), Munnalal son of Gopilal (PW-7) (uncle of the deceased), and Kalicharan (PW-15) (maternal grand-father of the deceased) are relatives of the deceased and Premsingh (PW-14), who has also been declared hostile, is the witness who informed about the death of the deceased to Pannalal.
29. Beniram (PW-3), Kamla (PW-5), Munnalal (PW-6), Mohansigh (PW-11) and Kalyan Singh (PW-12) stated in their statements that deceased had come to her matrimonial house 10-15 days before her death. Therefore, it is proved that before 15 days of her death, she was not present at her matrimonial house and she was living with her mother at her parental house. Learned trial Court in para 16 of the judgment considered this aspect and observed Þe`frdk eaxs'k dqekjh vius e`R;q ds djhc 15 fnu iwoZ llqjky vkbZ mlds ckn ls ysdj mldh eqR;q rd ;k e`frdk dh e`R;q ds dqN le; iwoZ vkjksihx.k }kjk e`frdk ds ngst dh ekax dh x;h ;k ekax dks ysdj mlds lkFk dwzjrkiw.kZ O;ogkj fd;k x;k ;k mls rax fd;k x;k ;k ijs'kku fd;k ,slk ekuus ds fy, izdj.k esa dksbZ lk{; ugha gSÞ The learned trial Court again observed in the 12 Cr.A. No.13/2000 same para Þeaxs'kdqekjh tc viuh e`R;q ds 15 fnu iwoZ vkjksihx.k ds ;gka vkbZ bl chp vkjksihx.k }kjk eaxs'kdqekjh ls ngst dh ekax dh x;h vkSj ekax dks ysdj mls lrk;k x;k ;k izrkfMr fd;k x;k D;ksafd fdlh Hkh lk{kh us ;g dFku ugh fd;k gS fd bu 15 fnukas ds Hkhrj eaxs'k dqekjh ls mudh dksbZ eqykdkr gqbZ FkhA vkSj eaxs'k dqekjh us mUgsa crk;k gks fd vkjksihx.k mls ngst dh ekax dks ysdj ijs'kku dj jgs gS ;k fd;s gksAÞ
30. In view of the above statements and observation made by learned trial Court, learned trial Court has rightly appreciated the evidence and come to the conclusion that there is no cogent evidence on record against the appellants/accused that "soon before her death" there was any demand of dowry or that any of them harassed or meted out cruelty to the deceased for or in connection with any such demand. In this regard, in Keshab Chandra Panda v. State of Orissa, 1995 Cr.L.J.174 it has been held as under :-
"that in order to prove offence under Section 304-B of IPC with the aid of presumption under Section 113-B of the Evidence Act, the prosecution must show that soon before the death there was cruelty or harassment and only in that case the presumption would operate. It is further observed that 'soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period soon before the occurrence. The expressions 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment 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 concerned death. If the 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. "
In Shyamlal Vs. State of Haryana, 1997 (1) Crimes 245 (SC) it has been held as under :-
"that for invoking legal presumption of dowry death under Section 113-B of the Evidence Act, it is imperative to prove that the deceased was subjected to cruelty or harassment soon before her death. In the said case there was persisting dispute between the two sides regarding the dowry and on account of failure to meet the demand 13 Cr.A. No.13/2000 of dowry of appellant the deceased was taken by the parents to her house about 1 ½ years prior to her death. A panchayat was held in which it was resolved that the deceased would go back to the nuptial home pursuant to which she was taken to his house by the husband, 15 days before the incident. Thereafter she committed suicide by self-immolation. It was held therein that since there was no evidence on record to show that she was either treated with cruelty or harassment for or in connection with the demand of dowry during the period between her having been taken to her parental home and her death; hence, it was not permissible to take recourse to the legal presumption envisaged in Section 113-B of the Evidence Act. It was observed in that context that above rule of evidence was prescribed in law to obviate the difficulty of the prosecution to further prove that the offence was perpetrated by the husband or her relatives, as then it would be the burden of the accused to rebut the presumption. As a result, the accused in that case was acquitted of the charge under Section 304-B of IPC., though he was convicted under Section 498-A of IPC."
See also Suresh Kumar Singh, Gurdeep Singh and Satvir Singh (supra)
31. Therefore, there is no cogent evidence against the appellants/accused that they subjected the deceased to cruelty or harassment for demand of dowry soon before her death. Hence, accused/appellants cannot be held guilty for the offence of causing dowry death of deceased Manjesh, and therefore, learned trial Court has rightly acquitted the appellants/accused of the charge under Section 304-B of IPC and the judgment of acquittal cannot be set aside.
32. Appellants/accused were also charged for the offence punishable under Section 302 of IPC and there is also no direct evidence against the appellants/accused that they have committed murder of the deceased.
33. So far as circumstantial evidence against the appellants/accused for committing the murder of the deceased is concerned, Dr. B.S.Kushwah (PW-17) and Dr. Radha Agrawal (PW-13), who conducted the postmortem of the deceased, opined that death of the deceased was homicidal. When they were cross-examined on the aspect of homicidal death, there is 14 Cr.A. No.13/2000 difference of opinion in their statements.
34. Body of the deceased was found in the house of appellant/accused Ashok, husband of the deceased, but only on this count, they cannot be held guilty for causing death of the deceased, hence, it would be proper to see whether at the time of death appellants/accused were present in the house or not.
35. On the aforesaid aspect, appellants/accused examined Ramswaroop (DW-1) and Hargovind (DW-2). Hargovind (DW-2) stated in his deposition that from 17.11.1998 he had called appellant-Ashok to village Ruariya police Station Ambah Distt. Morena and Ramswaroop (DW-1) stated in his deposition that on receiving the information about the death of his wife, appellant-Shambhudayal had come to Bhawanipur and stayed there on 27th and 28th. Statements of both the defence witnesses have been supported by Harkanth (PW-2), uncle of deceased's father Mahavir Prasad, in para 13 of his statement as well as by Pannalal (PW-1) and they have not been declared hostile. Therefore, from the statements of the defence witnesses which is also supported by the prosecution witnesses, it is proved that at the time of death of deceased Manjesh Kumari appellants/accused were not present in the house. However, it was the duty of the prosecution to prove that appellants/accused were present, at the time of death of the deceased, in the house, but prosecution failed to prove the same. In the circumstances, merely because the dead-body of the deceased was found in the house of appellants/accused itself is not a sufficient ground to convict the appellants for an offence punishable under Section 302 for causing the death of the deceased, therefore, learned trial Court has rightly acquitted the appellants/accused of this charge. Hence, Criminal Appeal No.300/00 fails and is hereby dismissed.
15 Cr.A. No.13/2000
36. Now, we would consider the factual aspect of Criminal Appeal No.13/2000 by which conviction and sentence of the appellants/accused under Section 498-A of IPC has been challenged.
37. Learned trial Court has discussed the evidence of Kamla (PW-5), mother of the deceased, in para 30 of its judgment in which learned trial Court has observed that Kamla (PW-5) in her statement stated that after two years of marriage of her daughter Mangesh, appellants/accused used to beat and harass her for not meeting the demand of motorcycle in dowry, then she took her to Jhabua. Appellant Ashok Kumar also came to Jhabua and raised the demand for motorcycle, then she gave Rs.10,000/- to him with an assurance that she will give the motorcycle later on. She further stated that after some time appellants/accused again used to beat deceased Mangesh, then she took her to her village and keep her for 5-6 months. Statement of Kamla (PW-5) is supported by Harikanth (PW-2), Beniram (PW-3), Munnalal (PW-6), Munnalal son of Gopilal (PW-7), Mahavir Prasad (PW-9), Mohar Singh (PW-11) and Kalyan Singh (PW-12). Although all the witnesses are relatives of the deceased, but only on this count, their evidence cannot be discarded and disbelieved.
38. The learned trial Court in para 46 of the judgment has observed that ße`frdk eaxs'k dqekjh dks vkjksihx.k }kjk eksVj lk;dy dh ekax ysdj ijs'kku fd;s tkus ,oa ijs'kku fd;s tkus ds dkj.k eats'k dqekjh viuh eka deyk ds ;gka o vius ekek dY;k.k flag ds ;gka 5&6 ekg rd jgh vkSj e`frdk eats'k dqekjh viuh e`R;q ds 10&15 fnu ds vanj llqjky x;h Fkh bl laca/k esa fn;s x;s deyk ¼v-lk-5½ eksgj flag ¼v-lk-4½ dY;k.k flag ¼v-lk-12½ ds dFkuks dks muds izfrijh{k.k esa dksbZ pqukSrh ugha nh x;h gSA e`frdk eaxs'k dqekjh }kjk ngst dh ekax o ngst dh ekax dks ysdj vkjksihx.k }kjk ijs'kku fd;s tkus dh ckr viuh eka o vU; xokgksa dks crk;k tkuk lk{; esa xzkg; gSA bl laca/k esa vkjksihx.k }kjk voyafcr fof/k fu.kZ; ";keyky cuke gfj;k.kk jkT; 1997 fdzfeuy yk tujy 1927 ¾ 1997 ¼1½ dzkbZEl 245 okys ekeys esa ekuuh; mPpre U;k;ky; us vfHkfu/kkZfjr fd;k 16 Cr.A. No.13/2000 gSAß
39. Therefore, after minute scrutiny of the statement of Kamla (PW-5), mother of the deceased, which is also supported by the other prosecution witnesses, it is found that there is sufficient material available on the record to prove the demand of motorcycle in dowry. Hence, learned trial Court has rightly convicted the appellants/accused under Section 498-A of the Code of 1860.
40. Corollary of the aforesaid finding is that appellants/accused cannot be convicted for the offence under Section 304-B of the Code of 1860, but this would not save them under Section 498-A of the Code of 1860 for which there is overwhelming evidence. As the trial Court has found the evidence of prosecution witnesses reliable, we hold that prosecution has succeeded in proving the offence under Section 498-A of the Code of 1860. In this regard, in Keshab Chandra Panda (supra) it has been observed that :-
"Section 304-B and 498-A IPC cannot be held to be mutually exclusive. 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 common background to 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."
41. Therefore, we have no reason to interfere with the finding of conviction under 498-A of the Code of 1860. We hereby confirm the conviction of the appellants under Section 498-A of the Code of 1860. 17 Cr.A. No.13/2000
Consequently, Criminal Appeal No.13/2000 fails and is hereby dismissed. The appellants are on bail, they are directed to surrender before the trial Court on or before 10.2.2015 for undergoing their remaining jail sentence.
42. Resultantly, both the appeals and Criminal Revision No.711/2004 fail and are hereby dismissed.
(S.K.Gangele) (Sushil Kumar Gupta)
Judge Judge
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