Rakesh vs State of M.P.

Sheela Khanna, J.—Appellant/accused has preferred this appeal being aggrieved by the judgment dated 15.2.1999 rendered by Additional Sessions Judge, Bhind in S.T. No. 57/97, whereby the appellant has been convicted under Sections 304B and 302 of I.P.C and sentenced to undergo seven years rigorous imprisonment, again to undergo life imprisonment with a fine of Rs. 5,000 respectively, and in default of payment of fine the appellant is further directed to suffer further one year''s rigorous imprisonment.

Undisputed facts of the case are that deceased Aarti was daughter of complainant-Prakash Chand Verma (PW 1). The marriage of the deceased was solemnized on 19.11.1995 with the appellant-Rakesh. Kanhaiyalal and Vidhyadevi (co-accused) are parents of appellant-Rakesh. The deceased died on 31.7.1996.

The case of the prosecution in brief is that at the time of marriage of his daughter Aarti, the complainant-Prakash Chand Verma (PW 1) had given cash of Rs. 29,000, ornaments and houseold goods worth. Rs. 45,000 and also spent Rs. 4,000 on Baratis. But the appellant and his father Kanhaiyalal were not satisfied with the above dowry and they demanded a scooter, mixer, gas and cash of Rs. 11,000 more in dowry. At that time the complainant-Prakash Chand Verma assured the appellant and his father that the demand would be fulfilled in future. On this assurance the deceased was brought by the appellant to home at Bhind. Thereafter, appellant and his parents started harassing deceased to fulfil the above demand of dowry. The appellant sent several letters to the complainant to fulfil the demand of the above articles. The deceased Aarti whenever came to her parental house, she used to inform her parents about the harassment by the appellant and her in-laws.

It is further the case of the prosecution that after marriage Prakash Chand Verma (PW 1) sent his son Atul (PW 7) to Bhind for Vidai of the deceased and at that time also the appellant demanded scooter, gas, mixy and cash. Atul was also threatened that in future if the demand is not fulfilled then the appellant would not allow the deceased to go to her parental house. Then Atul brought her sister and informed his father, i.e. complainant about the demand made by the appellant and his parents. When appellant came to the house of the complainant to take the deceased for Vidai, at that time the complainant had given gas cylinder and mixy. After that the appellant was constantly making a demand of scooter and cash of Rs. 11,000.

On 26.7.1996 on the invitation of appellant, the brother of the deceased Atul went to Bhind to attend birthday ceremony of the appellant. But again the appellant demanded a scooter and cash. After returning home Atul Verma (PW7) narrated the incident to his parents. It is alleged that due to non-fulfilment of the said demand, the appellant-Rakesh forceably administered insecticide capsule to the deceased to swallow it. On 30.7.1996 the deceased Aarti was taken to District Hospital, Bhind in an unconscious condition. On this information the father of the deceased Prakash Chand Verma came to District Hospital, Bhind. The condition of the deceased was serious and she was referred to J.A. Hospital, Gwalior, where on 31.7.1996 in the evening the deceased died. The report of the death of the deceased was sent to Police Station Kampu Lashkar where Marg Report (Ex. P/7) was written. Panchayatnama Lash (Ex. P/6) was prepared. The deadbody of the deceased was sent for post-mortem examination.

Dr. Madhup Kumar (PW 12) conducted autopsy on the dead body of the deceased. On external appearance Dr. Madhup Kumar found that the eyes were semi-opened, cornea hazy, mouth semi-opened, tongue inside. All extremities straight, fists semi-opened, hypostasis was fixed on back and R.M present all over the body in stationary phase. On internal examination it was found that (i) Ecchymoses present on and either side of manubrium sterni, left sternociedom astroid muscle was also ecchymoses. (ii) Ecchymoses present in mid-clavicular line from 2nd to 5th ribs on right side, (iii) Ecchymoses present on left side of chest from clavicle to 7th rib and on left costal margins to the anterior axillary line. According to the opinion of the doctor the death was due to cardio-respiratory failure as a result of suspected poisoning. The viscera were preserved for chemical analysis and bottles of viscera in a packet along with sample of preservation and packet of the clothes of the deceased were handed over to the police. The doctor also opined that the pressure has been used over neck and chest. As the incident occurred within the jurisdiction of Police Station City Kotwali, Bhind, the Marg Report and all the connected papers were sent to Kotwali Bhind for further investigation where case was registered against the appellant and his parents Kanhaiyalal and Vidhyadevi.

During investigation five letters written by the appellant Rakesh regarding demand of dowry were seized from complainant-Prakash Chand Verma. Spot map was prepared. Statement of the witnesses were recorded by the police u/s 161 of Cr.P.C. On 3.10.1996 appellant was arrested.

After investigation charge-sheet was filed against the appellant and his parents Kanhaiyalal and Vidhyadevi. After committal of the case the appellant and co-accused were charged for committing an offence u/s 302 of I.P.C, in alternative u/s 304B of I.P.C. Appellant and co-accused abjured their guilt and pleaded false implication. The defence of the appellant was that after the death of deceased, her father Prakash Chand Verma brought the appellant-Rakesh to his house, where he was restrained by the complainant in a room. The complainant threatened the appellant on the point of gun to write letters of demand of dowry and thus the appellant was falsely implicated in the case. At the trial prosecution has examined in all 13 witnesses. In defence appellant has examined one Puttulal (DW 1). After conclusion of trial and hearing the arguments of both the sides the trial Court held that prosecution has failed to prove the charges a gainst co-accused Kanhaiyalal and Vidhyadevi and acquitted both of them of the offence under Sections 304B and 302 of I.P.C. But relying upon the prosecution evidence, the trial Court held that prosecution successfully proved its case against the appellant-Rakesh and convicted him both under Sections 304B and 302 of I.P.C and sentenced to undergo imprisonment as mentioned earlier. Aggrieved by the judgment of his conviction under Sections 304B and 302 of I.P.C and sentence thereon the appellant has preferred this appeal.

The appellant has assailed his conviction mainly on the grounds that the conviction of the appellant is based on extra-judicial confession, which is unnatural, uncalled for and unreliable and there is no evidence to prove that the deceased was administered poison forcibly. The witnesses examined on behalf of the prosecution are all interested witnesses and there are material contradictions in their statements. The letters seized in the case are not written by the appellant as alleged. There is no proof of their posting. No envelope could be produced by the prosecution which shows that the letters were obtained on the point of gun by the complainant. Witness Rajaram (PW 2) has admitted that no dowry was fixed in the marriage of the deceased and thus the allegation of demand of dowry is an afterthought. There are material contradictions in the statements of the prosecution witnesses regarding administering the poison to the deceased. The brother of the deceased Atul Verma has not supported the prosecution case and was declared hostile by the prosecution. Compliance of Section 157 of Cr.P.C has not been proved. From the evidence no case u/s 302 of I.P.C is made out. It is prayed that alleged conviction and sentence be set aside and appellant be acquitted.

In reply, learned Public Prosecutor appearing for the State has submitted that from the evidence of complainant-Prakash Chand Verma (PW 1), Rajaram (PW 3), Ramswaroop (PW 4), Murarilal (PW5) and Atul (PW 7), it is clear that the deceased was subjected to cruelty by the appellant for demand of dowry and the evidence of these witnesses is supported by the letters written by the appellant to the complainant and that the deceased had died within nine months of her marriage under suspicious circumstances and, therefore, offence u/s 304B of I.P.C is proved. It is further submitted that from the statements of the prosecution witnesses it is proved that the appellant made extra-judicial confession that he administered insecticide capsule to the deceased, which is corroborated by medical evidence and, therefore, the trial Court was also right in convicting the appellant u/s 302 of I.P.C. It is prayed that appeal be dismissed.

It is not disputed that the marriage of the deceased was solemnized on 19.11.1995 with the appellantand that the deceased died on31.7.1996 i.e. within 8-9 months of her marriage.

Dr. Mahup Kumar (PW 12) has deposed that he has conducted postmortem examination of deceased Aarti on 1.8.1996 at 10.30 a.m. He stated that on external appearance he found that the eyes were semi-opened, cornea hazy, mouth semi-opened, tongue inside. All extremities straight, fists semi-opened, hypostasis was fixed on back and R.M. present all over the body in stationary phase. On internal examination it was found that (i) Ecchymoses present on and either side of manubrium sterni, left sternociedom astroid muscle was also ecchymosed. (ii) Ecchymoses present in mid-clavicular line from 2nd to 5th ribs on right side, (iii) Ecchymoses present on left side of chest from clavicle to 7th rib and on left costal margins to the anterior axillary line. According to him the death was due to cardiorespiratory failure as a result of suspected poisoning. Preserved Viscera for chemical analysis and handed over the bottles (A) and (B) and sealed packets of the sample of preservation and clothes of the deceased to police constable.

Investigating Officer Yogendra (PW 9) has stated that seized bottles of viscera and sealed packets of clothes--Sari, Blouse and Petticoat of the deceased and sealed packets of sample of preservative were sent for chemical analysis to Vidhi Vigyan Prayogshala, Sagar vide letter of S.P. dated 11.9.1996 (Ex. P/25). The report of FSL is Exhibit P/68 and in the report in viscera bottles A1 and A2 aluminum phosphide was found. Learned Counsel for the appellant does not challenge at this stage the said post-mortem report (Ex. P/30) and FSL, report (Ex. P/86). Therefore, looking to the post-mortem report and FSL report, it is fully proved that the deceased died due to cardio-respiratory failure as a result of poisoning and thus she had died in a suspicious circumstances and otherwise than under normal circumstances.

Next question for consideration is as to whether the deceased was subjected to cruelty or harassment by the appellant in connection with demand of dowry soon before her death?

Complainant-Prakash Chand Verma (PW 1) has deposed that after marriage at the time of Vidai the appellant was demanding cash of Rs. 11,000. Mixy, Scooter and Gas. At that time he assured the appellant to manage and give these articles in future. He stated that at that time Jodharam, Mannilal, Ramswaroop (PW 4) and Murarilal (PW5) were also present and they pacified and thereafter the deceased was taken by the appellant. Witnesses Rajaram (PW 3), Ramswaroop (PW4) and Murarilal (PW 5) have supported the version of the complainant Prakash Chand Verma. This witness Prakash Chand Verma further stated that after 3-4 days after the marriage of the deceased, he sent his son Atul for Vidai of the deceased and when his son brought the deceased at that time Atul also informed that the appellant was demanding cash of Rs. 11,000, scooter, gas and mixy. Deceased Aarti also gave a letter written by the appellant in which the appellant demanded the said articles. Prakash Chand Verma further stated that he gave gas and mixy to the deceased at the time of Vidai. He stated that the appellant has written letters (Ex. P/13 to Ex. P/17) in which he has demanded the articles mentioned above. He further stated that on 26.7.1996 on the occasion of the birthday of appellant and on his invitation his son Atul had gone to appellant''s home and when he returned back he informed that appellant is demanding a scooter. Atul Verma (PW 7) has fully corroborated the statement of his father Prakash Chand Verma.

The appellant has not denied that the letters (Exs. P/13 to P/17) have been written by him but his defence is that after the death of the deceased the complainant Prakash Chand Verma called him in his house and on the point of gun he got all these letters written by him by using force. But it is pertinent to note that if the complainant had used force and on the point of gun these letters were got written then the appellant could have lodged the report against the complainant but he never tried to make any complaint against the complainant. In cross-examination of the complainant Prakash Chand Verma (PW 1) nothing has come out to discredit his testimony. The version of the complainant-Prakash Chand Verma is corroborated not only by his son Atul (PW7) but also by other witnesses Rajaram (PW 3), Ramswaroop (PW 4) and Murarilal (PW5) and also from the letters (Ex. P/13 to Ex. P/17).

Thus on the basis of the statements of the above prosecution witnesses and the letters written by the appellant, learned trial Court has rightly concluded and held that the deceased was subjected to cruelty and harassment by the appellant for demand of cash of Rs. 11,000, scooter and other articles soon before her death and on 26.7.1996 when Atul Verma came to the house of appellant on the occasion of his birthday, appellant reiterated his demand of the above articles. The deceased has died within nine months of her marriage otherwise than under normal circumstances and, therefore, offence u/s 304B of I.P.C is fully established. We confirmed the conviction of the appellant u/s 304B of I.P.C.

Next question for consideration is as to whether appellant administered insecticide or poisoning capsule to the deceased to swallow it and thus the appellant has committed murder of the deceased?

The prosecution in support of its case has relied upon the alleged extra-judicial confession made by the appellant regarding administering the poisonous capsule to the deceased and on the post-mortem report (Ex. P/30).

So far as extra-judicial confession is concerned, Prakash Chand Verma (PW 1) has stated that after the death of the deceased, in night, he asked appellant Rakesh as to how the deceased died, then Rakesh told that he had brought capsules which are kept in wheat and he mixed the capsule in water and gave the deceased to drink and he himself also consumed the same. Rajaram (PW 3), Ramswaroop (PW 4), Murarilal (PW 5) and Atul Verma (PW 7) have supported the statement of complainant. Learned Counsel for the defence has taken us through the evidence of all the above witnesses and vehemently argued that the evidence of all these witnesses are not only inconsistent in material particulars but also unnatural, unreliable, uncalled for and not trustworthy. It is argued that all these witnesses are related and interested witnesses and the conduct of these witnesses is also not natural. We have carefully examined the evidence of all the above witnesses and we find that the story of confessional statement by the appellant is not trustworthy due to following reasons:

(i) Witness Rajaram (PW 3) in his earlier statement before the police in Exhibit D/1, Murarilal (PW 5) in his police statement (Ex. D/2) and Atul Verma (PW 7) in his police statement (Ex. P/11) have not stated that appellant had made any confession before them regarding administering the poisonous capsule to the deceased. Investigating Officer Yogendra (PW 9) had admitted in paras 19, 20 and 21 that the witnesses Rajaram and Murarilal in their police statement (Exs. D/1 and D/3) respectively have not disclosed that the appellant made any confession before them. Thus, these witnesses have made improved version in the Court that the appellant had confessed before them.

(ii) Complainant-Prakash Chand Verma (PW 1) states that after the death on 31.7.1996 in the evening itself the appellant made confession before him (see para 38 of his statement). On the contrary his son Atul Verma (PW 7) has stated in para 4 that after post-mortem of his sister next day in Gwalior Hospital the appellant told him that he had administered insecticide capsule to his sister.

(iii) According to Prakash Chand Verma (PW 1), the appellant told him that he brought capsule which are to be kept in wheat and administered the capsule after mixing it in water to the deceased and that he himself also consumed it. But Rajaram (PW 3) states that appellant told that he himself consumed capsule and also administered the capsule to the deceased to swallow it. This witness does not state about mixing the capsule in water and then administered the deceased to drink it.

(iv) Prakash Chand Verma (PW 1) in para 38 of his statement, has stated that appellant had not disclosed as to why he administered capsule to deceased. It is also surprising that the complainant-Prakash Chand Verma (PW 1) did not dare to ask the appellant as to why he administered the capsule to deceased. On the other hand Rajaram (PW 3) in para 5 states that appellant told that his father had rebuked him and, therefore, he had consumed capsule and also administered to the deceased. But no other witness has stated like this that the father of the appellant had rebuked and so the appellant himself consumed capsule and administered to the deceased. Prakash Chand Verma (PW 1) for the first time has stated before the Court that appellant told him that he had also consumed the capsule but in his earlier statement before police in Exhibit D-4 this witness has not disclosed that the appellant has also consumed the capsule. It is again surprising that if the appellant had consumed capsule that nothing had happened to him.

(v) If on 31.7.1996 the appellant had confessed to have administered poisonous capsule to the deceased then why the complainant-Prakash Chand Verma (PW 1) did not inform the police immediately about the confession made by the appellant. If on that day due to night it was not possible to go to police then on next day i.e. on 1.8.1996 the appellant could have informed the police. But the complainant did not make any complaint for two days and on third day gave the report (Ex. P/29) to the police and his statement has been recorded after four days on 5.8.1996. Learned defence Counsel has pointed out to the statement of the complainant in para 41 where this witness admitted that he had gone to Court and got the letter (Ex. P/29) typed in the Court. Though, this witness has denied the suggestion given by the defence that he got the letter (Ex. P/29) prepared by a criminal lawyer. But the argument of learned defence Counsel in this connection cannot be said to be totally baseless that the letter (Ex. P/29) was prepared after three days after due deliberation and to implicate the appellant.

(vi) It is again pertinent to note that if the appellant had admitted to have administered poisonous capsule to the deceased then why the appellant was not handed over to the police and why the complainant-Prakash Chand Verma (PW 1) set him free. Thus, the conduct of the complainant is quite unnatural in as much as he did not inform the police immediately and also allowed the appellant to leave his house.

(vii) It is clear from the evidence that the deceased was first admitted in District Hospital, Bhind on 30.7.1996 and from there she was referred and brought to J.A. Hospital, Gwalior on 31.7.1996 and in the evening she died. There is no evidence on record to show that the deceased was unconscious throughout. No attempt has been made by the prosecution to record the dying declaration of the deceased, who was alive for more than 24 hours. It has also come in the evidence that on 30.7.1996 itself the father of the deceased Prakash Chand Verma (PW 1) came to District Hospital, Bhind and he was also present when the deceased was brought to J.A. Hospital, Gwalior. But during that period the deceased never disclosed to his father about administering poison by the appellant.

(viii) It has also come on record that the deceased was admitted to District Hospital, Bhind by his father-in-law Kanhaiyalal and from Bhind the deceased was brought to J.A. Hospital, Gwalior. Thus, the deceased was provided medical facilities immediately and attempts were made to save her life. The appellant was also present in J.A. Hospital and after the death of the deceased at the time of post-mortem also the appellant was present throughout in hospital. If the appellant intended to murder his wife then perhaps no attempts would have been made to save the life of the deceased.

Thus, keeping in view the infirmities and inconsistencies in the statement of the prosecution witnesses and the other circumstances as pointed out above, we feel that the story of confessional statement by the appellant is not reliable and not trustworthy.

The other circumstance relied upon by the prosecution is that as per post-mortem report (Ex. P/30), it was found that physical pressure was applied over neck and chest of the deceased and the reason given by Dr. Madhup Kumar (PW 12) is that Ecchymoses was present on chest and neck. But in para 9 Dr. Madhup Kumar admitted that there was no external injury over neck and chest and that he cannot say as to since when the Ecchymoses was present before death. Learned defence Counsel has contended that in case of physical pressure on chest and neck at least some minor injury could have been caused on these places. He further contended that in case of physical pressure even ribs or internal bone could have been fractured but neither any external injury nor any internal injuries were found on neck and chest. Otherwise also there is no other evidence to show that any physical pressure was used against the deceased. Under these circumstances simply because Ecchymoses was present over neck and chest that itself is not conclusive proof that any physical force was used with the deceased. There is no other evidence to prove that the appellant has intentionally caused the death of the deceased by giving poisonous capsule. Thus, the prosecution has failed to prove beyond doubt that the appellant caused the murder of the deceased and, therefore, conviction of the appellant u/s 302 of I.P.C is not sustainable in law.

So far as sentence for the offence u/s 304B of I.P.C is concerned, learned trial Court has sentenced the appellant to undergo seven years rigorous imprisonment. The appellant in this case is in custody since 30.10.1996. Thus, he has suffered more than 10 years and 6 months imprisonment and after remission the sentence could have been 13 years or more. The State has not preferred any appeal for enhancement of the sentence imposed upon the appellant for offence u/s 304B of I.P.C. Therefore, we confirm the sentence of seven years rigorous imprisonment imposed by the trial Court for offence u/s 304B of I.P.C.

In the result, this appeal is partly allowed. The conviction of the appellant u/s 304B of I.P.C and sentence of seven years rigorous imprisonment by the trial Court is hereby confirmed and maintained but the conviction of the appellant u/s 302 of I.P.C and sentence thereon is set aside and the appellant is acquitted of the offence u/s 302 of I.P.C. Since the appellant has already suffered the sentence of seven years rigorous imprisonment, therefore, he is directed to be set at liberty if not needed in any other case.