"\ CF0000057928 l'r'^ ^iOi }^WI^ fc ? IN THB HIGH COURT OF MADHYA PRABESH AT JABALPUR Crlmlnal Appeal No.'^5' y /95 APPSLLANTS . . 1 RISHIKU'MAR son of Nankl Sahu '(In Jall) aged aboiit_28 years .^ SHANTgEN BAI w/o Nanlcl Sahu aged 45 years^ ^^<" ^ W ^ Both residenfes'of Bohardlh^ Chaukl ''^•a/v e'c^is,\>^ ^, Pachpedhi, P.s. Musturi, Distt. Bllaspar ^ s? ° Versus RESPOKDENT ". . ^ 'State of M.P. ^\^u CRIMINM. APPSAL UNDBR SECTION 374(2) OF THE CGDE OF CRIMINAL j SROCSIXJRE HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI MANINDRA MOHAN SHRiVAST^A^ Criminal Appeal N0.254 of 1995 Appellantfln Jail) Respondent Rishi Kumar Versus State of Madhya Pradesh POST FOR JUDGMENT ON ^^ JANUARY. 2011 Sd/- Manindra Mohan Shrivastava Judge K^' r^, HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench: Hon'ble Shri IVIanindra Mohan Shrivastava, J. Criminal Appeal N0.254 of 1995 Appellantdn Jail) Respondent Rishi Kumar Versus State of Madhya Pradesh Criminal Appeal under Section 374 (21 of the Code of Criminal Procedure Present:- Smt. Anju Ahuja, counsel for the appellant. Shri Satish Gupta, Govt. Advocate for the State. JUDGMENT (Delivered on J^-01-2011) This appeal is directed against judgment of conviction and order of sentence dated 24-01-1995 passed by the 7 Additional Sessions Judge,- Bilaspur in Sessions Trial No.49/1992, by which, the Court below after holding the appellants guilty for commission of offence punishable under Section 304-B of the I.P.C. and has sentenced to undergo R.l. for 10 years. 2. Case of the prosecution is that the deceased Kanti Bai was married to appellant-Rishi Kumar in the year 1989. Kartik Ram, P.W.1, father of the deceased lodged a report on 25-09-1991 in Police Station - Pachpedi stating that his daughter-Kanti Bai was married to Rishi Kumar in the year 1989 and he had given dowry according to his capacity, but thereafter, the appellant-Rishi Kumar used to tell his daughter that he has not been given Cycle, Watch and Radio. The appellant has sent a tetter, in which, he had ^ fe demanded Watch and Radio. On 16-09-1991, he had gone to Village Bohardih to see his daughter, then, his daughter told him that she has been scolded by the appellants by saying that in the marriage, Radio, Watch and Cycle is not given and due to which, she always feels harassed, uponwhich, he told her daughter that after reaping crop, he will send the items. On 19-09-1991 at about 10.00 A.M. in the morning, he received information from Manikpuri and Thandaram of Village-Bohardih that Kanti Bai died in the well. On such written report Ex.P-1, F.I.R. Ex.P-2 was registered in Police Outpost-Pachpedi. After investigation, the police of Police Station, Pachpedi filed charge sheet alleging commission of offence under Section 304-B of the I.P.C. The same was committed to Sessions Judge, Bilaspur and was received on transfer by 7th Additional Sessions Judge, Bilaspur for trial in Sessions Trial No.49/1992. The learned trial Court framed charges against the appellants for commission of offenceunder Section 304-B of I.P.C. The appeltants abjured guilt. In order to prove its case, the prosecution relied upon the prosecution witnesses i.e. Kartik Ram, P.W.1, Mathura Bai, P.W.2, Jhadu Das, P.W.3, Thanda Ram, P.W.4, Shiv Prasad, P.W.5, Budheshwar Prasad, P.W.6, Salik Ram, P.W.7, Ishwar Singh, P.W.8 Purushottam Lal Yadav, P.W.9, Tularam Todar, P.W.10, Rajendra Tandon, P.W.11 and D. C. Choudhary, P.W.12. 3. In his examination under Section 313 of the Cr.P.C., the appellants denied the evidence and circumstances appearing against them and stated that the deceased died on account of accidental death, as she //^•- \ J'lr..;,^ 1 1 ^^..^i, j slipped into the well and that there was no quarrel between the husband and the deceased and further that they were living happily. 4. In his defence, the appellants examined Rasika, D.W.1 and Ramchandra Sahu, D.W.2. 5. Learned counsel for the appellant argued that the conviction of the appellants under Section 304-B of the I.P.C. is unsustainable in law as it has been proved from independent evidenceon record, the circumstances in which accident took place and was also proved by the prosecution witnesses that the deceased died in an accident as she slipped into the well. Learned counsel submitted thatthe presumption, therefore, could not have been drawn regarding dowry death. Further submission of learned counsel for the appellant is that the prosecution has failed to prove beyond reasonable doubt that the deceased was subjected to cruelty soon before her death and in the absence of definite, cogent and reliable evidence of ill-treatment having immediate proximity to the date of death of the deceased, no case for conviction under Section 304-B of the I.P.C. is made out. Learned counsel for the appellant argued that there was unexplained delay of six days in lodging the F.1.R., though Father of the deceased was informed on the very date of the incident. Learned counsel also argued that evidence of Rasika, D.W.1, who is an independent witness, has established that the deceased met accidental death, and therefore, the presumption is clearly disproved. Learned counsel further arguedthat the evidence of Rasika, D.W.1 and RamchandraSahu, D.W.2 regarding cruelty and harassment in connection with demand of dowry is not at all reliable nor is there any definite evidence of cruelty soon before /ys^"^ %^-^^, I y .^' '"^s-; her death. He further submits that the prosecution is not entitled to any benefit of letter, Article-A, seized vide Ex. P-3, as the prosecution has failed to prove that it was written by the appellant-Rishi Kumar, husband of the deceased. 6. On the other hand, learned State counsel supported the impugned judgment of conviction and order of sentence and argued that from the evidence of Father of the deceased, Kartik Ram, P.W.1 and Mother of the deceased, Mathura Bai, P.W.2, it has been proved that after marriage, the deceased was subjected to harassment and cruelty which was in connection with demand of dowry in the form of various items. He further submits that mother of the deceased clearly deposed that her daughter stated that Fan, Cycle and Radio may be provided, otherwise, her life would be in danger. Learned State counsel further argued that the deceased died in unnatural circumstances and as the death occurred within seven years of her marriage, cruelty and harassment in connection with demand of dowry having been proved, dowry death is clearly proved in view of the statutory presumption under Section 304-B of the I.P.C. as also in view ofthe provisions contained in Section 113-B of the Evidence Act. He furtherargued that Rasika, D.W.1 and Ramchandra Sahu, D.W.2 are not reliable witnesses. Rasika, D.W.1 has stated that she has not seen as to how the deceased-Kanti Bai slipped in the well. He further submits that Ramchandra Sahu, D.W.2 is neighbour of the accused- appellants, and therefore, his evidence is not reliable to prove that it was a case of accidental death. In order to bring home the charges, the prosecution has mainly relied upon the evidence of the father-Kartik Ram, ii •« ^. P.W.1, Mother-Mathura Bai, P.W.2, Uncle-Salik Ram, P.W.7 and Sarpanch, Ishwar Singh, P.W.8. Kartik Ram, P.W.1 has stated that in the marriage of his daughter, he had given Fan and Watch and his daughter used to tell him that the appellants were demanding Cycle, Stove and Radio. He further deposed that 3-4 days before her death, when he had gone to meet his daughter, she told him regarding the demand of Cycle and Watch, on which, he assured her that after reaping the crop, demanded items would be sent. He also stated that when Jachki (ceremony of birth of child) was performed, his daughter stated that he should bring clothes and suit, .otherwise, she fears and stated that she was threatened by her husband and mother-in-law. He has also stated that the appellants used to harass his daughter by saying that she has not brought dowry. He has further deposed that at the time of marriage, he had given Watch to his Son-in-law, which had been thrown by him, then, he had given him hl.M.T. Watch. He has also produced a letter alleged to be written by the appellant, which was seized vide Ex. P-3 as Article-A. In his cross-examination, he has stated that after marriage, his daughter has come to her parental house only once and resided in her matrimonial house for about two months, thereafter, she had gone to her matrimonial house at the time when she was blessed with child. The evidence of Kartik Ram, P.W.1 does not disclose that the deceased was subjected to cruelty in a particular manner that too soon before her death. In respect of his meeting with his daughter 3-4 days before the date of incident, he states that his daughter had asked whether he would give Watch, Cycle etc. However, he does not say that his daughter complained about any particular act of cruelty by the appellants so as to make out a case of cruelty and harassment in connection with demand of dowry soon before her death. There is general and vague allegation that the husband and mother-in-law used to harass her as she had not brought dowry. However, in what manner, she was harassed, there is no precise act constituting harassment or cruelty. Thus, while the evidence regarding cruelty and harassment is vague and not specific, there is hardly any evidence of cruelty soon before death. In his cross-examination, he has stated that after his daughter fell in the well, the appellant had sent one Manikpuri and one Doctor to his house for informing him regarding the incident whereafter he reached at the spot, by which time, postmortem was also conducted. He further says that he did not make any enquiry from any other person in the village as to how her daughter was treated by the appellants. With regard to delay in lodging the report, explanation which is given is that as he was not having the letter Article-A, therefore, he did not lodge the repprt immediately. 7. Mathura Bai, P.W.2, mother of the deceased has deposed that her daughter had come and stated that Fan, Cycle and Radio should be given; otherwise, her life would be in danger, upon which, she stated that after reaping the crop, items would be given and she may convince her husband. She has also stated that when son of the deceased was born, clothes and suit were sought to be given to the Son-in-law-appellant-Rishi Kumar, who had thrown the same. She has also deposed that her daughter used to tell her that her mother-in-law used to quarrel day and night and harassed. In her cross-examination, she has stated that after -o. '^ marriage, her daughter resided in the matrimonial house for one month, and thereafter, she had come to parental house, and after Tija festival, she had gone back to her matrimonial house. She has deposed that after marriage, when her daughter came to parental house, she stated that the appellants used to harass her in the matter of demand of dowry and she fears her life. From her evidence, it is revealed that when her daughter had come to her parental house after marriage, she stated that she was harassed in connection with demand of dowry. In her evidence, she has not stated that soon before her death, the deceased was subjected to cruelty and harassment in connection with demand of dowry. 8. Kartik Ram, P.W.1 has stated in para-7 of his cross-examination that his daughter had come to her parental house only once after marriage, therefore, allegation of harassment and cruelty in connection with demand of dowry was made by the deceased soon after a month of marriage as stated by Kartik Ram, P.W.1 and Mathura Bai, P.W.2. Therefore, there is nothing in the evidence of Mathura Bai, P.W.2 that soon before the death, the deceased was subjected to cruelty and harassment in connection with demand of dowry. In her cross- examination, Mathura Bai, P.W.2 has stated that when her son-in-law had come to take her daughter back to her matrimonial house, she has not stated that she will not send her daughter as there is threat of her life and that she did not disclose this fact to her husband as she thought that her son-in-law is demanding certain item which would be given to him sooner or later, and therefore, she did not object to deceased being taken back to her matrimonial house. She has further stated that for the first time, this /ff^. i ^"^. 1 "-'"•"^.-^ w ~s^^ '^^^/ ''^s^^y ^ fact was disclosed to her husband after death of her daughter. This fact therefore throws serious doubt that if soon after the marriage, her daughter states she fears threat of her life, natural conductwould have been to resist her return to her matrimonial house and at least, disclose such fact to the father ofthe deceased which was not done. Therefore, the evidence of the deceased that there is a threat to her life does not inspire confidence. Behaviour of the Son-in-law in not accepting gifts at the time when child was born in the shape of clothes and Suit and throwing the same, cannot be said to be positive evidence regarding cruelty and harassment in connection with demand of dowry. General allegations regarding quarrel with mother-in-law cannot be said to be in connection with demand of dowry. 9. Thus, from the close scrutiny of the evidence of Kartik Ram, P.W.1 and Mathura Bai, P.W.2, there is no cogent and reliable evidence led by the prosecution to prove that the deceased was subjected to cruelty and harassment soon before her death. The evidence of Kartik Ram, P.W.1 and Mathura Bai, P.W.2 also discloses that the Son-in-law or the Mother- in-law did not make any demand of dowry directly either from Kartik Ram, P.W.1 or Mathura Bai, P.W.2. Moreover, Kartik Ram, P.W.1 and Mathura Bai, P.W.2 have not stated regarding the manner in which the deceased was subjected to cruelty and harassment except the general allegations that the mother-in-law used to quarrel day and night. 10. There has been delay of six days in lodging F.I.R. The deceased died on 19-09-1991 whereas written report has been lodged on 25-09- r/-^ ^^•?<,-^ ^' 9 1991 vide Ex.P-1. The explanation offered by Kartik Ram, P.W.1 that as letter Article-A was not with him, therefore, he did not lodge the report immediately, is not satisfactory. He has admitted that on the date of the incident itself, he was informed about the appellants and he had also reached the place of incident when postmortem was done. 11. Salik Ram, P.W.7, says that the deceased-Kanti Bai used to tell him that she was harassed by her in-laws but he does not know what demands were made by them. He further deposed that his brother-Kartik Ram never told him regarding any such harassment and on the date when last ceremonies were performed, his brother told him that her daughter was harassed by in-laws. 12. Ishwar Singh, P.W.8 also states that Kartik Ram told him that his Son-in-law demanded dowry by sending a letter and Kartik Ram apprehended that his daughter has been murdered and therefore asked him to accompany for lodging a report. Thus, from the evidence of Salik Ram, P.W.7 and Ishwar Singh, P.W.8, it is clear that they were saying on the basis of what was stated to them by Karfik Ram, P.W.1. However, from the evidence of Ishwar Singh, P.W.8, it has come in evidence that after death of Kanti Bai, his father apprehended that her daughter was murdered. 13. The prosecution has failed to prove by leading any evidence that letter Article-A seized vide Ex. P-3 was written by appellant. Even the trial Court held that the letter is not proved to have been written by the appellant-Rishi Kumar. v ":;>.. 10 14. Rasika, D.W.1, who is an independent witness, has deposed that on the date of incident, she and the deceased Kanti Bai had gone to the well belonging to Noni Bai, which is situated after 3-4 houses from the house of the appellant. She has stated that Kanti Bai had kept one container. She has also stated that the well is on the level of the ground and there is no parapet wall surrounding the well and that well was full of water. She has further stated that after cleaning their pots, Kanti Bai had sunk the bucket in the well and the moment, she kept her foot on the step of the well, she slipped into the well and cried for help, whereafter Rasika ran to call the appellant-Rishi Kumar to rescue her, then, on the way, Ramchandra and Raju met her and she told them regarding the said incident and thereafter, she reached the house of Rishi Kumar and narrated about the incident. After that, both of them came near the well. By that time, Kanti Bai had sunk into the well and she was taken out with the help of villagers.In her cross-examination, she has also stated that there was no parapet wall surrounding the well and wood was kept in the centre across the well. She has stated that while cleaning her utensil, she heard the sound and saw Kanti Bai falling into the water and she could not save her because she had no rope for rescue. She further submits that she narrated the incident to Ramchanra and Raju, who were in the near vicinity. The evidence of Rasika, D.W.1, who is an independent witness, appears to be natural and inspires confidence. In the inquest prepared vide Ex.P-6, it has come that Rasika told that Kanti Bai slipped into the well. -^•' '" •'^. 11 15. Thandaram, P.W.4 has stated in para-4 of his deposition that Rasika, daughter of Kanhaiya informed that Kanti Bai slipped into the well. He also stated at the spot, there was one potlying. Tularam Todar, P.W.10, Patwari has stated in para-4 of his cross-examination that well is at the level of the ground and there is no boundary wall around the well and well is such that any person can slip into the well. He also stated that witnesses told him that Kanti Bai slipped into the well at the time of fetching water and he has further stated that other ladies and landlords have also stated that Kanti Bai fell into the well while fetching water. 16. Ramchandra Sahu, D.W.2 has also corroborated the testimony of Rasika, D.W.1 while stating that the well is at the level of the ground and when he was crossing by the side ofthe well, Rasika Bai cried that wife of Rishi Kumar has fallen into the well, upon which, villagers gathered at the spot. He further deposed that when he reached near the well, Santu and Devdas also reached and he saw that Kanti Bai had sunk into the well whereafter Rishi Kumar came and made an attempt to take her out and by that time Kanti Bai was taken out, she had died. He has also stated that body was lying outside the village. 17. Merely because, Rasika, D.W.1, whose evidence is otherwise natural and inspires confidence and also corroborated by other witnesses, states that the appellants asked her to give evidence so that they would be saved, does not impeach credibility of her evidence. There is no suggestion that she was brought in the witness box at the instance of the appellant to give false evidence. Therefore, from such cogent and reliable 12 evidence on record that Kanti Bai died in accidental death on account of falling into the well cannot be ruled out and on the contrary appears to be highly probable. 18. From the examination of theevidence as discussed above, 1 am of the opinion that the prosecution has failed to prove that the deceased was subjected to cruelty and harassment soon before her death which is an essential ingredient for conviction under Section 304-B of the I.P.C. The statutory presumption is also disproved from cogent and reliable evidence that the deceased, in all probability, met with an accidental death while fetching water from the well. 19. In the case of State of A.P. vs. Raj Gopal Asawa and Another, 2004(4) SCC 470, the Supreme Court held:- "10. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows: "113-B. Presumption as to dowry death.— When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Explanation.—Forihe purposes ofthis section 'dowry death' shall have the same meaning as in Section 304-B of the Indian PenalCode(45of1860)." The necessity for insertion of the two provisions has been amply 13 (^ analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for, or in connection with, the demand for dowry". Presumption under Section 113-B is a presumption of law. On proof ofthe essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with, any demand for dowry. (4) Such cruelty or harassment was soon before her death. 11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence 14 ^ '^-^^'•' ~%^s^^ there was cruelty or harassment and only in that case the aforesaid presumption operates. Evidence in that regard has t6 be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B