Lal Chand and Others vs State of M.P.

Chandra Bhushan Bajpai, J.�This appeal is directed against the judgment dated 30-11-1999 passed by the Second Additional Sessions Judge, Rajnanedgaon, M.P. (Now CG) in Sessions Trial No. 123/95 whereby the appellants have been convicted and sentenced as mentioned below for the offence of committing dowry death of Anita @ Gauri. Appellant No. 3 Narayan is husband, appellant No. 1 Lalchand is father-in-law (sasur), appellant No. 2 Tarabai is mother-in-law (Saas) and Appellant No. 4 is sister-in-law (Nanad) of the deceased.

Conviction is impugned on the ground that without there being an iota of evidence, learned Court below has convicted and sentenced the appellants as aforementioned and thereby committed illegality.

Case of the prosecution in brief is that the marriage of deceased Anita @ Gauri was solemnized with appellant No. 3 Narayan on 29-11-1991. She was residing at village Suragi, Police Station Lalbag, Dist. Rajnandgaon along with her husband and other members family. On 23-5-1993 at about 10.00 am at village Suragi, she received bum injuries as a result of which she was taken for treatment to District Hospital, Rajnandgaon. Same day, after initial treatment, she was referred to Sector 9 Hospital, Bhilai for further treatment where about 4.05 p.m. she died during treatment. Death information was sent to Police Station, Bhilai vide memo Ex. P-5J. After such information. Police conducted inquest Ex. P-2 after inquest notice Ex. P-3. Dead body of deceased was sent for autopsy to Main Hospital, Durg vide Ex. P-12. P.W. 9 Dr. S.K. Fating conducted autopsy and found following injuries/symptoms:

Superficial to deep burns all over body, except private parts. Burn 90%, brain congested, lungs congested, carbon spot present in trachea, heart-right full of blood, left empty, brown coloured fluid inside abdomen, spleen liver and other organs congested. Burns are ante mortem in nature. As per opinion, cause of death is shock due to extensive ante mortem burns, time passed since death within 24 hours. Post mortem report is Ex. P-11.

During Merg inquiry, preserved viscera was seized vide seizure memo Ex. P-13. Next day of the incident i.e. 24-5-1993, Ramesh Kumar Peshwani P.W. 1, brother of the deceased submitted written complaint before the Police Superintendent, District Rajnandgaon who instructed for necessary action. After inquest report at Merg No. 17/93 of Police Station, Durg and after recording statement of P.W. 1 Ramesh Kumar, police of Lalbag registered the FIR at Crime No. 137/93 under Section 498A and 304-B of Indian Penal Code (for short ''IPC'') against all the appellants and started investigation. During the course of investigation, the police seized two post cards written by the deceased to her sister-in-law (Bhabhi). Bed head ticket of the deceased was seized vide Ex. P-5. Viscera and other articles seized and collected during investigation were sent for forensic analysis to FSL, Sagar vide Ex. P-6. Patwari map is Ex. P-7. Police also seized some burn piece of body vide Ex. P-9. Viscera and other articles were sent to investigator vide Ex. P-10. Other articles relating to Viscera were seized vide Ex. P-14. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short ''Cr.P.C.''). After investigation, charge sheet was filed on 3-7-1993 under Sections 498-A and 304-B of I.P.C. before the JMFC, Rajnandgaon who in turn committed the case to the Court of Sessions from where learned Additional Sessions Judge received the case on transfer and conducted trial. Accused/appellants were charged under sections 498-A and 304-B of the I.P.C.

The prosecution examined as many as 13 witnesses to prove the guilt of the accused persons. Statements of accused/appellants under Section 313 of the Code were recorded wherein they abjured their guilt and denied the circumstances appearing against them and pleaded false implication in the crime in question.

After affording opportunity of hearing to the parties, learned trial Court convicted the appellants under Sections 498-A and 304-B of the IPC and Section 498A being lesser, there was no necessity to sentence separately as it is included in the main offence under Section 304-B of I.P.C., learned trial Judge did not impose separate sentence under Section 498-A of I.P.C., instead he sentenced all the appellants in the major section 304-B of I.P.C.

I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court.

Learned counsel for the appellants vehemently argued that appellant Narayan was living at village Suragi along with deceased Anita. He was doing his business along with his younger brother. Other appellants Lalchand, Tarabai and Shobha were residing at Rajnandgaon at the time of incident. They were not present at the village Suragi in the said house. Even the husband of the deceased was not present at the time of incident. He went for bathing in river. Appellant Narayan took the deceased after incident to District Hospital, and thereafter with the help of family members she was shifted for better treatment to Sector 9 Hospital, Bhilai. Though written application was given on 24-5-1993 but the FIR Ex. P-8 lodged after two days i.e. 26-5-1993. As per statement of P.W. 1 Ramesh Kumar, brother of the deceased, about after 15 months, his sister told him regarding torture. As per this witness, husband Narayan demanded Rs. 50,000/- for grocery shop. As per him, for about 1 1/2 year, relations were cordial. This witness deposed role of brother-in-law of the deceased. According to this witness, when deceased Anita and accused Narayan came to his house at Raipur for celebrating Holi festival, appellant Narayan went alone leaving Anita in her maternal house while other witnesses deposed that Anita and Narayan went for Rajnandgaon together. As per this witness some Sadarangmal telephoned from Rajnandgaon. In his police statement he said to have received phone call, but in court statement he has said that his brother has received the call. As per this witness in the hospital he talked to P.W. 3 Premibai, mother and P.W. 13 Laxmandas and informed them regarding the incident. As per him, his mother told that Anita disclosed her that there was petrol in the bathroom and she received fire due to presence of petrol. P.W. 3 does not say anything regarding oral dying declaration by Anita at Hospital. This witness also says that about 2-3 days, probably he typed the letter but as per written report Ex. P-l it was written on next day of the incident. In his police statement nothing is mentioned regarding the fact that Anita was killed by burning by the family members of her husband Narayan. As per argument, alleged Rs. 50,000/- demanded by Narayan was for business. It has nothing to do with demand of dowry. There is no specific demand of dowry. The incident was narrated by guess. In para 15, this witness deposed that before marriage only demand for gold was made and he fulfilled such demand. No other demand was made prior to marriage. P.W. 2 Bhagwati deposed at para 4 that she along with Anita proceeded at about 2.00 pm for taking part in a marriage at Bagbahara and other family members left for Bagbahara at 5.00 a.m. but thereafter she said that all family members had gone to Bagbahara together. This is a material contradiction. There are no oral dying declaration. P.W. 3 Premibai deposed that during one year there was no complaint and thereafter the general allegations were made that she is being tortured on account of dowry. This witness also specifically not said anything regarding the demand of dowry. P.W. 4 Basant has not said anything specific against the appellants. P.W. 11 Bhagwandas has not complained regarding the demand of dowry before Sudama or anybody else. As per this witness, Anita told him only against her husband, not against other appellants. In his examination-in-chief, P.W. 11 Bhagwandas deposed that husband of the mother-in-law tortured her on account of dowry. P.W. 13 Laxman made general allegations. As per this witness, Anita personally did not tell him anything. This witness is a hearsay witness. Whatever Ramesh told him he simply narrated. Cruelty and demand of dowry is not proved. I.O. P.W. 8 P.C. Tiwari admitted that the other co-accused appellants were residing at Rajnandgaon. Appellants are convicted as per the presumption under Section 113-B of the Evidence Act but it is nowhere proved that soon before the incident whether any cruelty or harassment was made. Proximity of cruelty and element of ''soon before'' are not proved. There are vague allegations and the report was lodged after discussion. Family members of deceased had not complained in the Panchayat including mediator who fixed marriage. As per submission, prosecution has failed to prove the case against the appellants.

Learned counsel for the appellant placed reliance on the judgment of Hon''ble Supreme Court in the matter of Bhola Ram Vs. State of Punjab, , where it is held that merely making a demand of dowry is not enough to convict the appellant. Demand must be coupled with cruelty or harassment. Mere facts of all family members living together does not lead to conclusion that each one of them was actively involved in the crime, ingredients of Section 304-B are not established. Presumption under Section 113-B of the Evidence Act cannot be attracted. He also placed reliance on the judgment of Hon''ble Supreme Court in the matter of Gurnaib Singh Vs. State of Punjab, , where it has been held that only on account of bald statement that the accused persons were not satisfied with dowry and were asking to bring a sum of Rs. 50,000/- and letters written by the deceased were not brought in evidence, in view of such evidence, harassment pertained to such a demand cannot be accepted and offence under Section 304-B is not made out. In that case Hon''ble Supreme Court held that this is not a case that she incidentally consumed poison, there is no material on record to support defence plea that she was suffering from depression as would force her to commit suicide, held that offence under Section 498A made out. The Supreme Court converted the conviction under Section 304B to 306 of IPC as ingredient of Section 306 established as death occurred within 7 years in abnormal circumstances and deceased was meted out with mental cruelty. He Also placed reliance in the judgment of Hon''ble Supreme Court in the matter of Gurdip Singh Vs. State of Punjab, , where, it has been held that if prosecution failed to establish that the death occurred within 7 years of marriage, conviction of accused under Section 304-B are set aside. He also placed reliance judgment of Hon''ble Supreme Court in the matter of Vipin Jaiswal (A-I) Vs. State of A.P. rep. by Pub. Prosecutor, , in which it has been held that demand for purchase of computer for starting business cannot be said to be demand in connection with marriage and not dowry demand. No specific act of cruelty is alleged. Conviction of accused husband is set aside. Further reliance is placed in Bakshish Ram and Another Vs. State of Punjab, , where Hon''ble Supreme Court has held that on the basis of hearsay evidence, harassment is not proved. In absence of evidence as to dowry demand, harassment or cruelty, conviction of appellant is unsustainable. He also placed reliance in Panchanand Mandal @ Pachan Mandal and Another Vs. State of Jharkhand, , where Hon''ble Supreme Court has held that if there is no evidence to prove that the deceased was subjected to cruelty and harassment soon before her death in connection with demand of dowry, author who recorded dying declaration was not produced by prosecution for examination or cross-examination, dying declaration was not certified by any medical expert stating about medically fit condition of deceased for giving statement, moreover deceased had not made any statement in dying declaration indicating demand of dowry, thus prosecution miserably failed to prove case beyond reasonable doubt and conviction under Section 304-B set aside. Placing reliance on above case laws, learned counsel submits that in this case also, prosecution has failed to prove its case beyond reasonable doubt and benefit may be given to the appellants and they may be acquitted of the charges.

Per contra, the learned counsel for the State opposed the arguments advanced by the counsel for the appellant and submitted that the deceased died within 7 years in an unnatural circumstance. There was demand of Rs. 50,000/- which was not fulfilled on account of inability of P.W. 1 Ramesh Kumar. P.W. 11 Bhagwan Das has deposed that there was demand of golden bangles, fridge etc. Learned Trial Court convicted the appellants on the basis of evidence of P.W. 1 Ramesh Kumar, P.W. 2 Bhagwanti and P.W. 3 Premibai duly supported by post mortem report. The appellants mentally tortured the deceased and due to such torture, harassment and cruelty, she committed suicide which was other wise than normal circumstances. The prosecution has proved its case against the appellants. Learned trial Court has rightly convicted and sentenced the appellants. The appeal has no merit and it may be dismissed as not maintainable.

In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence adduced on behalf of the parties.

Relation between the deceased and the appellants and prosecution witnesses are not in dispute. Marriage between accused Narayan and the deceased solemnized on 29-11-1991 is not in dispute. Anita died on account of 90% burn injury on 23-5-1993 at about 10.00 a.m. at village Suragi Distt. Rajnandgaon within 7 years is also not in dispute. As per defence/appellants'' case, this is a case of suicide. As per entire evidence adduced death by burning of the deceased is not substantially challenged by the appellants and even otherwise as per post mortem report Ex. P-11 done on 24-5-1993 by P.W. 9 Dr. S.K. Fating who noticed burn injuries on all over the body upto 90% cause of death was shock due to extensive ante mortem burn, it is established that the deceased died on account of 90% burn at the house of her husband at village Suragi. Since this is a case of death within 7 years of marriage due to cruelty and harassment for demand of dowry by the appellants, presumption provided under Section 113 of the Indian Evidence Act are attracted. The Court has to see whether this provision is applicable to the fact of this case or not.

P.W. 1 Ramesh Kumar in para 18 of his statement has stated that all other appellant except Narayan were residing at Rajnandgaon. Undisputedly, the incident took place at village Suragi where the deceased was living along with her husband who was running a grocery shop. Shop and the house was situated adjacent. As per statement of P.W. 3 Premibai, deceased was sent to village Suragi. There is no evidence that at the time of death, other appellants were also present at village Suragi. It goes to show that at the time of incident, appellants excluding Narayan were at Rajnandgaon and Narayan was at village Suragi. P.W. 4 Basant has also deposed in para 2 that though the matrimonial house of Anita was situated at Rajnandgaon but her husband took her to village Suragi. As per Patwari map, the incident took place at village Suragi in the house of appellant Narayan. P.W. 8 P.C. Tiwari, IO also deposed in para 5 that all other appellants were residing at Rajnandgaon. Narayan along with his, wife was living at village Suragi. Therefore, case of Narayan and that of other appellants has to be assessed separately.

So far as the case against other appellant Lalchand, Tarabai and Shobha is concerned, P.W. 1 Ramesh Kumar in para 3 states that deceased was harassed by father-in-law, mother-in-law and brother-in-law. It is pertinent to note that the brother-in-law is not the accused in the present case. Even in the written application Ex. P-1, his name for committing the offence is not found place. One more point to be noted is that P.W. 1 Ramesh Kumar has not deposed anything regarding the act of sister-in-law appellant Shobha. As per P.W. 2 Bhagwanti, the deceased was harassed by father-in-law, mother-in-law and sister-in-law. This witness has not deposed anything regarding harassment and torture by brother-in-law. P.W. 3 Premibai included one more name in the harassment and commitment of cruelty i.e. maternal-grand-mother of appellant Narayan who is also not accused in the present case nor his name was mentioned by other witnesses P.W. 1. P.W. 2, P.W. 4, P.W. 11 and P.W. 13. P.W. 4 Basant, brother-in-law of the deceased in his evidence has made general allegation that family members of husband of the deceased Anita are complaining regarding not giving bed and admiral, otherwise this witness has not made any specific allegation against the appellants. P.W. 11 Bhagwan Das has deposed in para 3 that her mother-in-law and husband both harassed her on account of articles given at the time of marriage and tortured her that fridge or no other big items were given in dowry. This witness has not said anything against the father-in-law and sister-in-law of the deceased. In para 7, this witness has deposed that Anita complained to him only against Narayan. P.W. 13 Laxman Das, uncle of the deceased has deposed that father-in-law of the deceased stated at the time of marriage that it would be better if golden bangles would have been given in place of cooler. As per this witness, appellant demanded for bed and Almira and on account of not giving these articles, family members of the husband harassed the deceased. This witness made general allegations against other appellants. If we conclude, this entire exercise goes to show that there are variations, improvement and contradictions regarding the role of appellants Lalchand, Tarabai and Shobha. They were not residing along with the deceased, therefore, there are less opportunities of torture by them. General and vague allegations are made against these appellants. There is no specific evidence as to how and when they tortured. In these circumstances, it would not be safe to convict these appellants on the basis of evidence adduced by them.

So far as the case of appellant Narayan, husband is concerned, he was living along with deceased. As per defence witness D.W. 2 Laxman, at the time of incident, he went for bathing towards river and returned after intimation given. At the time of incident, he was sitting in the shop along with brother of appellant namely Jeeven. Both heard cry, they went inside and ultimately they opened the door of bathroom and noticed Anita was burning. They anyhow managed to keep her out and thereafter they informed Narayan then took Anita to hospital at Rajnandgaon for treatment. This witness categorically admitted in cross-examination that whatever he was deposing in the court is deposing for the first time and before this, he never told this incident to anything. If what he is saying about the incident is true, he must have told all the facts to the police and he might be important witnesses for the prosecution but his statement is not trustworthy and reliable and cannot be accepted. One more point to be taken care is that appellant No. 3 Narayan never informed the police regarding the incident neither he lodged merg intimation nor any sort of report. In normal course, he must have informed the incident to police. This creates suspicion on the conduct of appellant Narayan. Written report was lodged within time. Appellant Narayan also did not inform the brothers and other relatives of Anita and no reason has been assigned for it. When appellant Narayan was living with the deceased at village Suragi, it was her duty to offer an explanation at the very beginning of the investigation as to where he was at the time of incident, when he got intimation and thereafter why he did to help her wife, why he did not inform the incident to police or family members of the deceased. All these facts and circumstances of the case go to show that death of the deceased occurs otherwise than the normal circumstances.

Upon assessment of entire evidence, I am of the view that Anita died on account of burning other than normal circumstances. There was harassment and torture for demand of dowry for business. Due to 90% burn injury, deceased Anita was not in a position to give dying declaration. There is no straight jacket formula regarding time limits that what shall be the prescribed time limit for the words ''soon before''. In the present case, two or three times, Anita visited her mother''s house and she disclosed the elements of torture and harassment. It is a case of demand of dowry followed by cruelty on non-fulfillment of the same. Therefore, I am of the view that the trial Court has rightly convicted appellant Narayan on account of torture immediately before her death and she was subjected to continuous cruelty for demand of dowry.

The case laws cited and relied on behalf of the appellants are not of any help to accused Narayan on account of different facts of this case. They are not applicable specifically for accused Narayan as there are sufficient admissible, credible and clinching evidence available against accused Narayan.

Consequently, the appeal filed by the accused appellants Lalchand, Tarabai and Shobha is allowed. The order of conviction and sentence passed against them are hereby set aside. They are on bail. Their bail bonds shall continue for a period of six months from today as per requirement of Section 437-A of Cr.P.C.

So far as conviction and sentence against appellant Narayan is concerned, same is affirmed. Appeal filed on his behalf is hereby dismissed. He is stated to be on bail. His bail is canceled. He is directed to surrender immediately before the trial Court to serve the remaining part of sentence. The trial Court is also directed to do needful for serving the remaining jail sentence by appellant Narayan. Appeal partly allowed.