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2004 Supreme(MP) 99
2005(3) JLJ 120
(SUPREME COURT)
N. Santosh Hegde and B.P. Singh, JJ.
Yashoda and another v. State of M.P.
Criminal Appeal No. 431 of 1997: against the judgment of M.P. High Court passed in Criminal Appeal No. 31 of 1992;
Decided on 4.2.2004.
S.K. Gambhir with M.P. Jha for appellants;
Ms. Vibha Datta Makhija for State.
Headnote:(1) Penal Code, 1860--S.304B--Evidence Act, 1872--S.113B--death in abnormal circumstances after 4 years of marriage--persistent demand of dowry, cruel treatment and harassment established--Court may presume commission of offence of dowry death in absence of rebuttal.
Gangabai was married to Kalicharan about 4 years before her death. At the time of marriage, some amount in cash and some ornaments were given by the parents of the deceased. Gangabai went to her matrimonial home after the marriage but returned after 5-6 days. She reported to her parents and brother that her father-in-law, mother-in-law as well as her husband were demanding a gold chain, a ring and a phool (earring) and had threatened her that if she did not bring those items, she will not be ever sent to her parents‘ house again. The evidence on record also establishes the fact that on two other occasions the deceased had gone to her matrimonial home and on both occasions the appellants persisted in their demand for gold ornaments and harassed the deceased and treated her with cruelty. [Para 7
The defence case is that the deceased suffered a bout of vomiting and diarrhoea and was therefore removed to the Morena Hospital for treatment. It is true that the deceased was removed to the Morena Hospital for treatment on May 19, 1989. It is equally true that the appellants did not inform the parents of the deceased about her death and they came to know about it from another source. PWs 3, 4 and 5 had rushed to the matrimonial home of the deceased but they found that her body had already been cremated in the night. [Para 9
Held: The prosecution has successfully established that the deceased was married to Kalicharan about 4 years before her death, The facts also reveal that the death was not under normal circumstances. There was also evidence to show that the deceased was persistently subjected to cruelty and harassment by her husband as well as by his parents in connection with demand for dowry, in particular the demand for gold ornaments. Once it is held that these facts stand established, under section 304B, IPC a presumption mises that it is a case of dowry death, and that her husband or relatives who subjected her to cruelty and harassment shall be deemed to have caused her death. No doubt this is a rebuttable presumption, but in the absence of any evidence in rebuttal, the Court may, with the aid of the presumption, convict the accused of that charge. [Para 13
(2) Penal Code, 1860--Ss. 498A, 304B and 201--persistent demand of dowry and ill-treatment established--demand was also made 15 days before abnormal death of woman--presumption not rebutted -- dead body disposed of at night without intimation to her parents -- offences proved.
There is clear evidence on record that the demand for gold ornaments persisted and so did harassment and cruelty meted out to the deceased. Every time she came to her parents she wept and narrated her miserable plight. The last demand was made only fifteen days before the death. In these circumstances it cannot be said that there is no evidence on record to support the finding that soon before her death she was subjected to cruelty and harassment by the appellants and her husband in connection with demand of dowry. [Para 18
If she had really died a natural or accidental death, the appel1ants were the best persons to disclose the relevant facts which were solely within their knowledge. Indeed whenal1 the conditions of section 304B were fulfil1ed and a presumption arose against the appellants, they were required to rebut that presumption in order to successfully defend themselves. They did not do so. ....The manner in which the dead body was disposed of at night has further added to the‘ incriminating circumstances proved against the appel1ants. Judgment of High Court affirmed. [Para 19
(3) Penal Code, 1860--S.304B--Evidence Act, 1872--S.113B--words ‘soon before‘ u/s 304B-- persistent cruelty or harassment or demand of dowry--no intervening circumstance showing non-existence of such treatment brought on record--it shall be deemed to be ‘soon before death‘. AIR 1997 SC 1873 distinguished. (2000) 5 SCC 207 relied on. [Para 16
¼1½ naM lafgrk] 1860&/kkjk 304[k&lk{; vf/kfu;e] 1872&/kkjk 113[k&fookg ds pkj o"kZ i‘pkr~ vLokHkkfod ifjfLFkfr;ksa esa e`R;q&ngst dh ckj&ckj ek¡x] funZ;krkiwoZd O;ogkj rFkk ijs‘kku fd;k tkuk LFkkfir&[kaMu ds vHkko esa ngst e`R;q dk vijk/k fd, tkus dh U;k;ky; }kjk mi/kkj.kk dh tk ldrh gSA
xaxkckbZ dk fookg mldh e`R;q ls yxHkx pkj o"kZ iwoZ dkyhpj.k ls gqvk FkkA fookg ds le; e`rd ds ekrk&firk }kjk dqN udnh jde rFkk dqN vkHkw"k.k fn, x, FksA fookg ds i‘pkr~ xaxkckbZ vius llqjky xbZ ijarq 5&6 fnu i‘pkr~ ykSV vkbZA mlus vius ekrk&firk vkSj HkkbZ dks crk;k fd mlds llqj vkSj lkl ds lkFk gh mldk ifr Hkh lksus dh ,d tathj] ,d v¡xwBh vkSj ,d d.kZQwy dh ek¡x dj jgs gSa rFkk mUgksaus mls /kedh nh gS fd ;fn og ;g oLrq,¡ ugha ykbZ rc mls iqu% dHkh&Hkh mlds ek;ds ugha Hkstk tk,xkA vfHkys[kxr lk{; ls Hkh ;g rF; LFkkfir gksrk gS fd nks vU; voljksa ij e`rd vius llqjky xbZ Fkh rFkk nksuksa voljksa ij vihykFkhZ Lo.kZ vkHkw"k.kksa dh viuh ek¡x ij vM+s jgs vkSj mUgksaus e`rd dks ijs‘kku fd;k rFkk mlls funZ;rkiwoZd O;ogkj fd;kA ¼iSjk 7½
çfrj{kk i{kdFku gS fd e`rd dks myVh vkSj nLr dk nkSjk iM+k Fkk blfy, og mipkj gsrq eqjSuk vLirky ys tkbZ xbZ FkhA ;g lR; gS fd 19 ebZ 1989 dks e`rd mipkj gsrq eqjSuk vLirky ys tkbZ xbZ FkhA ;g Hkh leku :i ls lR; gS fd vihykFkhZx.k us e`rd dh e`R;q ds ckjs esa mlds ekrk&firk dks lwfpr ugha fd;k x;k Fkk rFkk mUgsa mlds ckjs esa vU; L=ksr ls Kkr gqvkA v lk 3] 4 vkSj 5 rqjar e`rd dh llqjky x, ijarq mUgksaus ik;k fd mlds ‘ko dh jkf= esa gh vaR;sf"V dj nh xbZ gSA ¼iSjk 9½
vfHkfu/kkZfjr % vfHk;kstui{k us lQyrkiwoZd LFkkfir dj fn;k gS fd dkyhpj.k ls e`rd dk fookg mldh e`R;q ls yxHkx pkj o"kZ iwoZ gqvk FkkA rF;ksa ls ;g Hkh çdV gksrk gS fd e`R;q LokHkkfod ifjfLFkfr;ksa esa ugha gqbZ FkhA ;g n‘kkZus ds fy, Hkh lk{; gS fd e`rd ls ngst dh ek¡x] fof‘k"Vr% Lo.kZ vkHkw"k.kksa dh ek¡x ds laca/k esa mlds ifr ds lkFk gh mlds ekrk&firk us ckj&ckj funZ;rkiwoZd O;ogkj fd;k vkSj mls ijs‘kku fd;kA ;g vfHkfu/kkZfjr gksus ij fd ;g rF; LFkkfir gks x, gSa] naM lafgrk dh /kkjk 304[k ds v/khu mi/kkj.kk mn~Hkwr gksrh gS fd ;g ngst e`R;q dk ekeyk gS rFkk mlls funZ;rkiwoZd O;ogkj djus vkSj mls ijs‘kku djus okys mlds ifr ;k ukrsnkjksa }kjk mldh e`R;q dkfjr dh xbZ le>h tk,xhA fu%lansg ;g [kaMuh; mi/kkj.kk gS] rFkkfi [kaMu esa fdlh Hkh lk{; ds vHkko esa U;k;ky;] mi/kkj.kk dh lgk;rk ls] vfHk;qDr dks ml vkjksi ds fy, fl)nks"k Bgjk ldrk gSA ¼iSjk 13½
¼2½ naM lafgrk] 1860& &/kkjk 498d] 304[k rFkk 201&ckj&ckj ngst dh ek¡x rFkk nqO;Zogkj LFkkfir&ek¡x L=h dh vLokHkkfod e`R;q ls 15 fnu iwoZ Hkh dh xbZ Fkh&mi/kkj.kk [kafMr ugha&mlds ekrk&firk dks lwfpr fd, fcuk] jkf= esa gh ‘ko dh vaR;sf"V dj nh xbZ&vijk/k lkfcrA
vfHkys[k ij Li"V lk{; gS fd Lo.kZ vkHkw"k.kksa ds fy, ckj&ckj ek¡x dh tkrh jgh rFkk e`rd dks ijs‘kku fd;k tkrk jgk vkSj mlls funZ;rkiwoZd O;ogkj fd;k tkrk jgkA tc&tc og vius ekrk&firk ds ikl vkbZ] mlus jks&jks dj viuh n;uh; nqnZ‘kk dk o`Ùkkar lquk;kA vafre ek¡x mldh e`R;q ls dsoy ianzg fnu iwoZ dh xbZ FkhA bu ifjfLFkfr;ksa esa ;g ugha dgk tk ldrk fd vfHkys[k ij bl fu"d"kZ ds leFkZu ds fy, dqN ugha gS fd mldh e`R;q ls Bhd igys ngst dh ek¡x ds laaca/k esa vihykFkhZx.k vkSj mlds ifr us mlls funZ;rkiwoZd O;ogkj fd;k Fkk vkSj mls ijs‘kku fd;k x;k FkkA ¼iSjk 18½
;fn okLro esa mldh LokHkkfod :i ls ;k nq?kZVuk ds dkj.k e`R;q gqbZ gksrh rc vihykFkhZx.k gh og O;fDr Fks tks lqlaxr rF; çdV dj ldrs Fks] tks dsoy mudh tkudkjh esa FksA okLro esa] tc /kkjk 304[k dh leLr ‘krs± iw.kZ gks xbZ rFkk vihykFkhZx.k ds fo#) mi/kkj.kk mn~Hkwr gks xbZ rc lQyrkiwoZd viuh çfrj{kk djus ds fy, muds }kjk ml mi/kkj.kk dk [kaMu fd;k tkuk visf{kr FkkA mUgksaus ,slk ugha fd;kA-----ftl jhfr ls jkf= esa ‘ko dh vaR;sf"V dj nh xbZ mlls vihykFkhZx.k ds fo#) lkfcr] vijk/k esa Q¡lkus okyh ifjfLFkfr;ksa esa vkSj o`f) gqbZ gSA mPp U;k;ky; dk fu.kZ; vfHkiq"VA ¼iSjk 19½
¼3½ naM lafgrk] 1860&/kkjk 304[k&lk{; vf/kfu;e] 1872&/kkjk 113[k&‘‘kCn ^dqN iwoZ*&yxkrkj funZ;rkiwoZd O;ogkj fd;k tkuk ;k ijs‘kku fd;k tkuk ;k ngst dh ek¡x&,slh dksbZ Hkh e/;orhZ ?kVuk vfHkys[k ij ugha ftlls ,slk O;ogkj ugha fd;k tkuk nf‘kZr gks&^e`R;q ls dqN iwoZ* le>k tk,xkA , vkb vkj 1997 ,l lh 1873 çHksfnrA ¼2000½ 5 ,l lh lh 207 voyafcrA ¼iSjk 16½
Singh, J.--1. The appellants in this appeal are the parents of Kalicharan, who was married to Gangabai (deceased) about 4 years before the date of occurrence. Her death in circumstances not considered normal within seven years of her marriage led to the prosecution of the appellants as well as Kalicharan and eight other relatives and villagers charged variously of the offences under sections 498A, 304B and 201, IPC. The trial of Kalicharan, husband of the deceased, was separated as he was found to be a juvenile and his case transferred to the Juvenile Court for his trial. The appellants alongwith eight other accused persons were put up for trial before the fourth Additional Sessions Judge, Morena in Sessions Case No. 252 of 1989. The learned Sessions Judge by his judgment and order of February 4, 1992 found the appellants guilty of the offences with which they were charged but acquitted the remaining accused persons who were charged of the offence under section 201, IPC finding no evidence to support the charge. The appellants herein were sentenced to undergo one year ligorous imprisonment and to pay a fine of Rs. 500/- under section 498A, IPC; to ten years rigorous imprisonment and a fine of Rs. 1,000/under section 304B, IPC and two years' rigorous imprisonment and a fine of Rs. 500/- under section 201 IPC. The appellants challenged their conviction and sentence before the High Court of Madhya Pradesh, Bench at Gwalior in Criminal Appeal No. 31 of 1992 but the High Court, finding no merit in the appeal, dismissed the same upholding their conviction and sentence.
2. It is not in dispute that deceased Gangabai was married to Kalicharan about 4 years before the occurrence which occurred on May 19, 1989. While the prosecution contended that the death of Gangabai occurred under circumstances otherwise than normal and she was earlier subjected to cruelty and harassment by the appellants as well as by her husband and soon before her death also she was meted out such treatment by them in connection with demand for dowry, the defence contended that Gangabai died on account of an attack of diarrhoea and vomiting, and in spite of the fact that the appellants had taken her for medical treatment to the hospital at Morena where she was treated by the doctors. According to the defence the allegation against the accused that they had made persistent demand of dowry was false and that they had been falsely implicated on account of the fact that some amount had been advanced to Shankarlal (father of the deceased)' by them which remained unpaid.
3. The trial Court as well as the High Court have subjected the prosecution evidence to critical scrutiny and have concurrently reached the conclusion that so far as the appellants herein are concerned, the charges under sections 498A; 304B and 201, IPC are fully established.
4. Shri S.K. Gambhir, senior Advocate appearing on behalf of the appellants, vehemently contended before us that there was really no substance in the allegation made by the prosecution. He further submitted that the deceased suffered a bout of vomiting accompanied with diarrhoea and when they found that her condition was not stable, the appellants immediately removed her to the Morena Hospital where she was treated by the doctors concerned, but in spite of the their best efforts, she did not survive. He also submitted that in any event the prosecution has failed to establish the charge under section 304B, IPC since there was no evidence to prove that the deceased had been subjected to harassment and cruelty by the appellants soon before her death in connection with any demand of dowry. It, therefore, followed that the presumption under section 304B could not be drawn against them and there was no other evidence to prove that the appellants had caused the death of deceased Gangabai.
5. The prosecution has examined several witnesses to prove its case which includes Lalaram (PW 3), brother of the deceased; Kalicharan (PW 4), uncle
