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2009 Supreme(MP) 514
R.S Garg, J.
Gulab Singh and another v. State of M.P.
Criminal Appeal No. 124 of 2000 (Jabalpur) : against the judgment of
First Additional Sessions Judge, Sidhi, passed in
Sessions trial No. 121 of 1996; Decided on 28.4.2009.
S.C. Datt with Siddharth Datt for appellants;
T.K. Modh for State.
Headnote:(1) Penal Code, 1860 -- Ss.304B -- Evidence Act, 1872 -- S.113B -- dowry death -- presumption -- death not resulting from burns or bodily injury or under circumstances not normal -- presumption not attracted.
The prosecution case further is that within the period between marriage and the death, the deceased had come to her parental house on three occasions and she had informed her parents and other relations that she was being ill-treated and harassed in connection with demand of dowry and she was facing danger to her life and limb. According to the prosecution the deceased conceived after the marriage and all of sudden they received information that the deceased had expired. The prosecution witnesses reached the house of accused persons and found that the body of the deceased was blackened, she had vomited and according to the statement of one of the witnesses, she had asked that the body be not cremated. Before her elder brother could come, the body was cremated and thereafter ashes were thrown in the river. [Para 3
Held : In the present matter the prosecution failed in bringing on record that the death was either because of burns or because of bodily injury or was not under normal circumstances. If the death is because of burns or bodily injury or is not under the normal circumstances then only the Court can deem that the death was a dowry death.
Taking into consideration the totality of the circumstances, I hold that the prosecution has failed in proving the commission of the offence by the accused, punishable under section 304B IPC. AIR 1991 SC 1142 followed. [Paras 12 & 13
(2) Penal Code, 1860 -- S.498A -- threats and injuries by in-laws proved -- offence proved.
In the present case it has come on the record that the husband and his relatives were extending threats to the deceased and were also causing injury or danger to the mental health of the deceased with their willful conduct.
In the present case, clause (b) of section 498A shall also be applicable because it has come on record that the deceased, on, coming to her parental house, had informed number of persons that she was being harassed with a view to coerce her to meet any unlawful demand for any property or valuable security, etc.
[Paras 17 & 18
¼1½ naM lafgrk] 1860 && /kkjk 304[k && lk{; vf/kfu;e] 1872 && /kkjk 113[k && ngst e`R;q && mi/kkj.kk && e`R;q tyus vFkok ‘kkjhfjd {kfr;ksa ds ifj.kke Lo:i vFkok ,slh ifjfLFkfr;ksa ea ugha tks lkekU; ugha && mi/kkj.kk vkd`"V ughaA
vfHk;kstu dk vkxs i{kdFku ;g gS fd fookg vkSj e`R;q ds e/; dh vof/k ds Hkhrj e`rd rhu voljksa ij vius ek;ds vkbZ Fkh rFkk mlus vius ekrk&firk vkSj vU; ukrsnkjksa dks lwfpr fd;k Fkk fd ngst dh ek¡x ds laca/k esa mlls nqO;Zogkj fd;k tk jgk gS vkSj rax fd;k tk jgk gS rFkk mls vius thou vkSj vax ds Áfr [krjk gSA vfHk;kstui{k ds vuqlkj e`rd us fookg ds i‘pkr~ xHkZ/kkj.k fd;k vkSj vpkud mUgsa Kkr gqvk fd e`rd dk nsgkolku gks x;k gSA vfHk;kstu lk{khx.k vfHk;qDr O;fDr;ksa ds ?kj igq¡ps vkSj mUgksaus Ikk;k fd e`rd dk "ko dkyk iM+ x;k Fkk] mlus myVh dh Fkh] rFkk ,d lk{kh ds dFku ds vuqlkj mlus dgk Fkk fd "ko nkg ugha fd;k tk,A ijarq mldk vxzt vk lds mlds iwoZ gh "ko nkg dj fn;k x;k vkSj rRi‘pkr~ HkLe unh esa cgk nh xbZA ¼iSjk 3
vfHkfu/kkZfjr % ÁLrqr ekeys esa vfHk;kstui{k vfHkys[k ij ;g ykus esa foQy jgk gS fd e`R;q tyus ds dkj.k vFkok ‘kkjhfjd {kfr ds dkj.k Fkh vFkok lkekU; ifjfLFkfr;ksaa ugh gqbZ FkhA ;fn e`R;q tyus ls vFkok ‘kkjhfjd {kfr;ksa ds dkj.k gks vFkok lkekU; ifjfLFkfr;ksa esa ugha Fkh] dsoy rc gh U;k;ky; le> ldrk gS fd og e`R;q] ngst e`R;q FkhA
lexz ifjfLFkfr;ksa ij fopkj djrs gq, eSa vfHkfu/kkZfjr djrk gw¡ fd vfHk;kstui{k vfHk;qDrksa }kjk naM lafgrk dh /kkjk 304[k ds v/khu naMuh; vijk/k fd;k tkuk lkfcr djus esa foQy jgk gSA , vkb vkj 1991 ,l lh 1142 vuqlfjrA
¼2½ naM lafgrk] 1860 && /kkjk 498d && llqjkyi{k }kjk /kefd;k¡ nh tkuk vkSj {kfr;k¡ dkfjr dh tkuk lkfcr && vijk/k lkfcrA
ÁLrqr ekeys esa vfHkys[kxr gS fd ifr vkSj mlds ukrsnkj e`rd dks /kefd;k¡ ns jgs Fks rFkk tkucw> dj vius vkpj.k ls e`rd ds ekufld LokLF; dk {kfr vFkok [krjk Hkh dkfjr dj jgs FksA
ÁLrqr ekeys esa] /kkjk 498d dk [kaM ¼[k½ Hkh ykxw gksxk D;ksafd vfHkys[kxr gS fd e`rd us vius ek;ds vkus ij vusd O;fDr;ksa dks crk;k Fkk fd mls laifRr vFkok ewY;oku ÁfrHkwfr vkfn dh fof/kfo#) ek¡x iwjh djus ds fy, ÁihfM+r djus dh n`f"V ls rax fd;k tk jgk FkkA
1. The appellants Gulab Singh and Smt. Durga Devi, father-in-law and mother-in-law of deceased Gaitri have filed this appeal being aggrieved by the judgment dated 6.1.2000 passed in ST No.121/96 by the learned First Additional Sessions Judge, Sidhi, convicting the appellants under section 498A and section 304B of IPC, sentencing them to undergo RI for two years and pay fine of Rs.500/- in default of payment of fine to undergo RI for 3 months, under the first count and to undergo RI for 7 years under the second count.
2. The prosecution case in brief is that Gaitri was married to Kamal Bhan Singh son of the present appellants. The marriage was performed somewhere in the summer of 1995 and she had died within one year on 31.1.1996. It is not disputed before me that Kamal Bhan Singh was also prosecuted alongwith the present appellants but the trial Court vide its order dated 22.7.1998 directed that said Kamal Bhan Singh being a juvenile should be dealt with by the juvenile Court. It is also not disputed before me that one of the appellants Smt. Durga Devi has died during the pendency of the appeal.
3. The prosecution case further is that within the period between marriage and the death, the deceased had come to her parental house on three occasions and she had informed her parents and other relations that she was being ill-treated and harassed in connection with demand of dowry and she was facing danger to her life and limb. According to the prosecution the deceased conceived after the marriage and all of sudden they received information that the deceased had expired. The prosecution witnesses reached the house of accused persons and found that the body of the deceased was blackened, she had vomited and according to the statement of one of the witnesses, she had asked that the body be not cremated. Before her elder brother could come, the body was cremated and thereafter ashes were thrown in the river. A written report was made by Jaan Bahadur of Police Station Amiliya. After receiving the report, the prosecution agency entered in the arena of investigation, it recorded statements of the witnesses and after collecting other materials filed the charge-sheet.
4. As observed above, accused Kamal Bhan Singh was directed to be tried by the juvenile Court but, however, the present appellants were tried by the Court below and were convicted and sentenced as referred to above.
5. Shri Datt learned counsel for the appellants submitted that for purposes of section 304B the prosecution is required to establish each and every ingredient which constitute an offence punishable under section 304B and if any constituent is missing then in absence of a complete chain the accused cannot be convicted.
6. After taking me through the evidence it was submitted by him that some of the prosecution witnesses were saying that the dead body of the deceased was black in colour while other witness PW3 Bhagwanti, was stating that deceased had vomited, her lips only were black, while rest of the body was not and thereafter she died. It is submitted that death could be for any reason but the prosecution has failed in proving that the death was unnatural.
7. It is also submitted by him that there is no evidence on the record that the deceased soon before her death was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with demand of dowry. It is also submitted by him that if the prosecution evidence is taken to be absolute gospel truth then it would only prove that soon after the marriage certain ill-remarks were made against the deceased but that would not mean that what was done soon after the marriage would become soon before the death. He also submitted that in the case like present if independent witnesses are not examined and the statements of the prosecution witnesses suffer with contradictions, vice of omissions amounting to contradictions and the statements cannot be reconciled then th
