I’Wiulzaaaggwlzmw %E@@§@ gawk (UM ,T . G IN THE HIGH COURT OF MADHYA PRADESH : AT‘JABALPUR. g5£ CRIMENAL AFPEL A mi /l994 a g Tak‘natraxw‘ged 35 yars son of Barmu Sahu, Agriculturist, Resident " f Mohabnatagfglice station Saja, District: Burg” (MP) . APPELLANT. (IN JAIL) Vs. The state of Madhya, Pradesfn u. REl SPOmENT. CRLMINAL APPEAL UNDER SECTLON 374g2) 0F_-1:_HE CODE OF CRmINAL PRocmp§g4 SE WEB NCB z 3 / R L; Q. Lo D. EL Ufh‘i‘tw CO EWICTIO N: U/s. 304- L.P.C. .I. for seven years. 07.... . o w N HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal. No. 352 of 1994 Takhatram APPELLANT ; a ‘ VERSUS RESPbNDENT ' State of Madhya Pradesh i Shri Avinash Mishra Counsel for the appellant. Shri Vaib‘hav Goverdhan PL for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2t OF THE CODE OF 1' CRIMINAL PROCEDURE. J u Q G M E N T (16.06.2010) This appeal is directed against the judgment and order dated 29‘“ March, 1994 passed by Additional Sessions Judge, Durg in Sessions Trial No. 24 of 1990 convicting the accused/appellant for the offence punishable under Section 304~B IPC and sentencing him to undergo rigorous imprisonment for Seven years. 2. Case of the prosecution in brief is that on 19.10.1Q§8 the wife of the accused/appellant namely Sukhwatibai diedby setting herself ablaze in her matrimonial house. On 19.10.1988 itself merg intimation was recorded vide EX. P-6 and on 24.10.1988 a written complaint Ex. P-1 was also made byvthe father of the deceased (PW-1) and after investigation chall'an was filed by the police and accordingly the accused/appellant was prosecuted for the offence under section 304>B of IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined 11 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and , ._ 2- pleaded his innocence and false implication in‘the case. This apart, one Ramlal (DW—1) has also been examined by the defence in support of its Case. 6 4. After hearing the parties the trial Court has convicted and sentenced the ac¢used/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellant submits that there is no V‘ admissible evidence available on record to show that the deceased i Sukhwatibai has died within seven years of her marriage and therefore the accused/appellant cannot be convicted for the offence under section 304-8 IPC. l-le further submits that there is no evidence on record to show that soon before death the deceased was subjected to crueltfi and harassment 3.: and In thesecircumstances-”the accused/appellant deserves to be ”acquitted. He further submits that the other evidence adduced by the prosecution in respect of the cruelty and demand of dowry is also not very cogent and reliable and therefore the same may be ignored According to the counsel for the appellant as the appellant has not been charged With the offence under Section 498A IPC this Court cannot saddle the conVIction on him under the sald section. On the other hand supporting the impugned judgment it has been argued by the State counsel that though the prosecution~has failed to give the exact date and year of the marriage of the accused/appellant with the deceased but there is evidence available on record on the basis of which it may be presumed that the marriage of the accused/appellant with the deceased was solemnized within seven years from the date‘ of incident i.e. 7. 19.10.1988. He further submits that apart from the offence under section i 304-3 IPC the accused/appellant is also liable to be convicted for the offence-under section 498-A of IPC and to‘this effect categorical statement has been made by the father of the deceased (PW-1), brother of the deceased (PW-8) and uncle of the deceased (PW—10). i‘ j ,3, 8. First of all, it is necessary to deal with the offence said to have been committed by the accused/appellant under section 304-B IPC. in this regard, it has to be noted that none of the prosecution witnesses including father and brother of the deceased has given either the date Or year of marriage of the deceased along with the accused/appellant. Thanwar - father of the deceased (PW-1) in his examination-in-chief has stated that 4 the marriage of the deceased was solemnized with the accused/appellant about 4-5 years back but he states that the deceased died about 5—6 years after her marriage in cross-examination this witness has stated that the marriage of the deceased took ptace wrth the accused/appellant about 6 7 years prior to the date of inordent He has very categorically stated that he does not remember the year of the marriage of the deceased wrth the accused/appellant. The other piece of evidence in respect of the marriage of the deceased with the accused/appellant is the statement of Guha Ram, the brother of the deceased (PW-8). This witness has‘ stated that the marriage of the deceased was solemnized with the accused appellant ~-about 1O years back and about 4-5 years thereafter she expired. This witness has also not stated the exact date or year of the marriage of the deceased with the accused/appellant. Miiap (PW-10) ~ uncle of the deceased has stated that the marriage of the deceased took place about 12 years back. Apart from the statements of these three witnesses there is no other evidence available on record showing the date or the year of the marriage of the deceased with the accused/appellant and this being the situation, it will not safe for this Court to presume thatethe marriage of accused/appellant was solemnized with the deceased within seven years fr the date of incident i.e. 19.10.1988. 9. Bare reading of Section 304—8 IPC makes it clear that Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under norma/ circumstances Within 7 years of her marriage 1 andJt is shown that soon beforesher death she was subjected to crue/ty or harassment by her husband or any relative of her husband for, or in i connection with, any demand of dowry, such death shall be cal/ed as ’dowry death’. Thus it is clear that in order to make out a case under Section 304-B IPC, one of the requisites is that the death of the deceased should have taken place within seven years from the date of marriage. In om IA\\O ’44- the present case admitted/y there is no concrete evidence available on record to show that the marriage of the deceased took place Within seven years of her marriage, rather some of the Witnesses have stated that it took place about 10 years back and in these circumstances, prima facie Section 304-B IRC is not attracted and the presumption under section 1 13-B of the Evidence Act can be invoked only in a case Where death had taken place Within seven years from the date of marriage. t 10. In tview of What has been discussed above findings recorded by the Court below holding the accused/appellant responsible for the death of the deceasedwappears to be Wholly unjustified. Accordingly, conviction of the tappe/lant under Section 304-B IPC is set aside. 1 1. As regards othef limb of contention of the counsel for the appellant that as the charge under Section 498-A IPC has not been framed by the Court his conviction by this Court for the said offence is'out of question, this Court is not in agreement with the same. A reference to the statements ”of Thanwar (PW-1), Guharam (PW-8) and Mi/ap (PW-10) clearly suggests that the accused/appellant used to harass the deceased for demand of dowry and even soon before death she was subjected to cruelty by him. Thanwar (PW-1) categoricjly states that just two-four days prior to the date of incident he had dropped his daughter (the deceased) at the house of the accused/appellant and had told him about his poor financial condition to fulfill the demand of Rs. 5,000, radio and watch, made by him. Statements of other witness are also in the similar tune. Keeping this categorical evidence of the witnesses and the legal position in mind that the ingredient of cruelty is common to section‘s 304-B and 498—A IPC but f the parameters of two sections are a bit different i.e. under Section 304~B the death has to be within 7 years of marriage whereas Section 498—A covers the wider spectrum of the cases relating to cruelty by husband or his relatives, this Courthas no hesitation to say that act of the appellant falls within the ambit of Section 498—A IPC irrespective of the fact that no such charge was made against him at the time of trial. It is a settled legal position that the Court can always convict a person for the offence involving the punishment of lesser magnitude. According/y, the accused/appellant stands convicted under Section 498—A IPC. Q I ,5”, 12. Now the last but important aspect of the case to be dealt with in this case is as to what wouid‘ be the appropriate sentence which can be imposed on the accused/appeiiant Counsei for the accused/appellant pornts out that the appeHant has already remained In Jail for about three months and the ends of Justice would be met If the sentence awardable comes to the period already undergone by him. Consrdenng the fact that the deceased had left for the heaven in the year 1988 i.e. 22 years back hence-before, l do not think that thisprayer made by the coUnsel for the appellant is un-reasonable and the same is allowed as such. Meaning thereby, the appellant is sentenced to the period already undergone by him ln lieu thereof he Is directed to pay a fine of Rs 3 000 Within a period of three months from the date of receipt of copy of this order Failure to depOSit the amount within the time stipulated would make the appellant liable fo‘r imprisonment for two months. 13. Result of this appeal is success in part. ’//// Sdl- r :.:.’v:/ ’2‘; ’t Pntmker Judge D‘W"k /