1
AFR
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 744/2002
1. Ram Bhadra Tiwari, aged about
24 years, son of Shri Sukhdeo
Prasad Tiwari, Occupation
Agriculturist.
2. Deowati, w/o Shri Sukhdeo
Prasad Tiwari, aged about 65
years, Occupation Agriculturist.
Both are residents of village
Bharphandiya, Police Station
Dhanpuri, district Shahdol (MP).
Versus
The State of Madhya Pradesh
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For the Appellant: Shri Akhil Singh and Shri Praveen Dubey, Advocates
For the Respondent: Shri J.K. Jain, Dy. Advocate General.
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PRESENT:
HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE N.K. GUPTA
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Date of hearing: 06/05/2010
Date of Judgment: 14/05/2010
JUDGMENT
Per: Rakesh Saksena, J.
Appellants have filed this appeal against the judgment dated 3.5.2002,
passed by Special & Additional Sessions Judge, Shahdol, in Sessions Trial
No.179/2001, convicting them under Sections 302/34, 304-B/34 and 498-A of
the Indian Penal Code and sentencing them to imprisonment for life, rigorous
imprisonment for 10 years and rigorous imprisonment for 2 years with fine of
Rs.500/-, on each count respectively.
2. Facts, as alleged by the prosecution, are that Sonika, the deceased, was
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married to appellant Ram Bhadra on 4th June 1997. Appellant Deowati was the
mother-in-law of Sonika. After marriage, Sonika went to her nuptial house and
kept on visiting her mother’s house. After sometime, she complained about
harassment meted out to her by her husband and mother-in-law for not
bringing a scooter in dowry. On 3.6.2001, at about 5.15 in the morning, Vidya
Sagar (PW-1), brother of Sonika, received information on telephone that
Sonika had died. Vidya Sagar alongwith his elder brother Rajaram Pathak went
to village Garfandia where accused resided and saw the dead body of Sonika
lying in the courtyard of their house. There were injuries on her face. None
disclosed to them how Sonika died. On the same day, at about 8.30 a.m.,
Vidya Sagar (PW-1) lodged a report with Police Dhanpuri. Sub Inspector M.S.
Karchuli (PW-11) registered a Murg (Ex.P/1). Police, in the presence of
Executive Magistrate, Jaithpur, conducted the inquest of the dead body and
prepared memorandum (Ex.P/3). Executive Magistrate sent the dead body to
community Health Centre, Dhanpuri for postmortem examination. Dr.
K.K.Gautam (PW-5) alongwith Dr. B.N. Sharma and Dr. Richa Gupta conducted
postmortem examination at about 5.00 p.m. on the same day. He found that
deceased was carrying pregnancy of 32 to 36 weeks. She had injuries on her
face. There was bleeding from her nose and mouth. The injuries found on the
body of the deceased were ante mortem in nature and were caused within 24
hours of the postmortem examination. Postmortem examination reports are
Ex.P/9-A and Ex.P/10.
3. In the course of investigation, investigating officer prepared the spot
map, arrested the accused persons and at the instance of accused Ram Bhadra
on 7.6.2001 seized a stone and a ‘Danda’ kept under his cot. In the Murg
enquiry, it was revealed that accused persons subjected the deceased to
cruelty for not meeting the demand of a scooter in dowry and that on some
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dispute, on not allowing her to go to her parents’ house, assaulted her, as a
result of which she died.
4. After investigation, charge sheet was filed in the Court of Judicial
Magistrate First Class, Budhar and the case was committed for trial to the
Court of Sessions, Shahdol.
5. On charges being framed, accused abjured their guilt and stated that
witnesses spoke false against them due to enmity. They were falsely
implicated. No evidence in their defence was adduced.
6. Relying on the evidence of Vidya Sagar (PW-1), Pushpa Pathak (PW-2),
Kalpana (PW-3), Hirawati (PW-6), Chintamani Yadav (PW-7), Suryakant Tiwari
(PW-8), Rajnikant (PW-12), Dr. K.K. Gautam (PW-5) and the Investigating
Officer M.S. Karchuli (PW-11), learned trial judge held accused persons guilty
and convicted and sentenced them as mentioned above.
7. We have heard the learned counsel for the parties.
8. Learned counsel for the appellant submitted that it was not established
by the prosecution evidence that the deceased met with a homicidal death.
According to him, she had fallen down from the staircase and contracted
injuries, which resulted into her death.
9. On perusal of the evidence of Dr. K.K. Gautam (PW-5), it is revealed
that on postmortem examination of the dead body of the deceased he found
following injuries:
(1) Haematoma on left side forehead with black eye left in
area of 10 cms x 12.5 cms.(2) Multiple abrasions over both cheeks, chin with clotted dark
red blood.(3) Fracture of clavicle bone, left lateral with dislocation of left
shoulder.(4) Abrasion at left forearm near wrist .4 cm x 1 cm.
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On dissection- Dark tan clotted blood under haematoma.
Brain tissue left frontal injured, sub dural clotted blood at middle
and left side frontal cranial cavity. Heart right full, lung
congested. Fracture of left clavicle and lateral with collection of
blood.32-36 weeks’ size, full term female child found cynosed in uterus.
In the opinion of doctor, the injuries were ante mortem in nature.
Head injury was caused by hard and blunt object within 24 hours.
Cause of death was coma due to anti mortem head injury.Cause of death of foetus was anorexia due to cessation of blood
supply.The head injury of the deceased was sufficient in ordinary course
of nature to cause her death.In cross examination, Dr. K.K. Gautam (PW-5) admitted that injuries found on
the body of deceased might have been accidental if she struck against some
stone or fallen down from stairs.
10. It is true that Dr. K.K. Gautam (PW-5) did not specifically state that the
injuries found on the body of the deceased were homicidal in nature and
expressed the possibility of them being caused in an accident, but, in our
opinion, it can be gathered from the nature of injuries that they could be
homicidal also. Since doctor is not an eyewitness, for establishment of the fact
that the injuries were homicidal or accidental in nature, appreciation of the
surrounding circumstances is essential.
11. In the statement of accused under Section 313 of the Code of Criminal
Procedure, none of the accused stated that the deceased had fallen down from
any staircase. It was not even reflected from the spot map (Ex.P/21) drawn
by Inspector M.S. Karchuli (PW-11) that there had been any staircase in the
courtyard. On the contrary, it was revealed from the spot map that the house
where the incident took place was a ‘Kachcha’ house having roof of earthen
tiles (Khaprel). There was nothing on record to indicate that the house of the
appellants was a double storeyed house.
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12. Suryakant (PW-8) and Rajnikant (PW-12) though in cross-examination
admitted that they heard in village that deceased had died by a fall from the
staircase, but they did not disclose from whom they heard it. They were
declared hostile. Thus, in the absence of any evidence on record to the effect
that deceased fell from stairs coupled with the statement of accused wherein
they did not say that deceased fell from stairs, it cannot be held that the
deceased suffered injuries by an accidental fall. Therefore, the natural corollary
is that the injuries and the death of deceased were homicidal in nature.
13. In Trimukh Maroti Kirkan vs. State of Maharashtra-(2006) 10
SCC 681 the Apex Court observed that:
If an offence takes place inside the privacy of a house
and in such circumstances where the assailants have all
the opportunity to plan and commit the offence at the
time and in circumstances of their choice, it would be
extremely difficult for the prosecution to lead evidence
to establish the guilt of the accused if the strict principle
of circumstantial evidence is insisted upon by the courts.
A judge does not preside over a criminal trial merely to
see that no innocent man is punished. A judge also
presides to see that a guilty man does not escape. The
law does not enjoin a duty on the prosecution to lead
evidence of such character which is almost impossible to
be led or at any rate extremely difficult to be
led……….Where an offence like murder is committed in
secrecy inside a house, the initial burden to establish the
case would undoubtedly be upon the prosecution, but
the nature and amount of evidence to be led by it to
establish the charge cannot be of the same degree as is
required in other cases of circumstantial evidence. The
burden would be of a comparatively lighter character. In
view of Section 106 of the Evidence Act there will be a
corresponding burden on the inmates of the house to
give a cogent explanation as to how the crime was
committed. The inmates of the house cannot get away
by simply keeping quiet and offering no explanation on
the supposed premise that the burden to establish its
case lies entirely upon the prosecution and there is no
duty at all on an accused to offer any
explanation………Where an accused is alleged to have
committed the murder of his wife and the prosecution
succeeds in leading evidence to show that shortly before
the commission of crime they were seen together or the
offence takes place in the dwelling home where the
6husband also normally resided, it has been consistently
held that if the accused does not offer any explanation
how the wife received injuries or offers an explanation
which is found to be false, it is a strong circumstances
which indicates that he is responsible for commission of
the time.”14. Now, the question before us is whether on the basis of facts brought on
record, the husband of the deceased viz. Ram Bhadra only or both the accused
would be liable for causing injuries to deceased. The indication given by the
Apex Court in Trimukh Maroti (supra) appears to be that where an accused
is alleged to have committed murder of his wife and prosecution succeeds in
leading evidence to show that shortly before commission of crime they were
together in the dwelling home, it has to be held that if accused husband does
not offer any explanation, how the wife received injuries or offers a false
explanation, it would be a strong circumstance indicating that he is responsible
for commission of the crime. Thus, it appears to indicate the responsibility of
the husband only and not of other members of the family except where there
is clear evidence of their involvement. In the opinion of doctor, the cause of
death of deceased was coma due to ante mortem head injury. The head injury
was a haematoma on the left side of forehead with black left eye. On the
basis of the evidence adduced in the case, it is not possible for us to hold all
the persons in the house including Deowati liable for causing injuries to
deceased in view of the ratio of Trimukh Maroti (supra). However, it can
safely be held that the injury was caused by accused Ram Bhadra as his
presence in the house stood established by the evidence of Rajnikant (PW-12).
Rajnikant, though did not toe the line of prosecution, but he stated that after
return from the house of Ganga Singh in the night, Ram Bhadra went to his
house. Apart from that, from the evidence of Kalpana (PW-3) also, the
presence of Ram Bhadra in the house is clearly established. It is true that
circumstances give rise to suspicion against appellant Deowati also, but the
7suspicion howsoever great; cannot take place of proof. Merely a single stray
line appearing in the evidence of Kalpana (PW-3), a child witness of 8 years,
that Deowati grappled with the deceased cannot be accepted because of it
being merely a suggestion by the prosecution to which she innocently yielded.
15. In these circumstances, we are of the definite view that it has been
satisfactorily established by the prosecution evidence that it was only accused
Ram Bhadra, who caused the death of deceased. The evidence however does
not appear to us sufficient against accused Deowati to hold her guilty under
Section 302 of the Indian Penal Code. As such she deserves to be acquitted.
16. Learned counsel for the appellant strenuously urged that the conviction
of accused Ram Bhadra under Section 302 IPC is not justified as the origin or
the genesis of the occurrence, which resulted into the death of deceased, has
not been proved. It is true that no evidence has been adduced by the
prosecution to indicate, under what circumstances injuries were caused to
deceased. There was only one injury on the forehead, which was the cause of
death. There were some abrasions on the cheek and chin and a fracture of
clavicle bone of the shoulder. It can, therefore, be inferred that there must
have been a scuffle between deceased and the accused. Since accused did not
offer any explanation for that, and there is no evidence on record from which
the exact situation under which the incident occurred can be gathered, this
Court is left with the option only to conjecture the probabilities. It is also
significant to note that at the time of death the deceased was carrying
pregnancy of 32-36 weeks. There was a full term foetus in her womb.
Therefore, it does not stand to reason that her husband would take up in his
mind to deliberately kill her. The prosecution has tendered no evidence to
establish motive on the part of the accused to kill his wife. In these
circumstances, we are of the definite opinion that the conviction of
8accused/appellant Ram Bhadra under Section 302 IPC is not justified.
However, since the act by which he caused the death of the deceased was
done by him with the intention of causing such bodily injury to deceased as
was likely to cause her death, he is liable to be convicted under Section 304-I
of the Indian Penal Code.
17. As far as conviction of accused/appellants under Section 304-B and 498-
A of the India Penal Code is concerned, from the evidence of Vidya Sagar
(PW-1) and Pushpa Pathak (PW-2) it stands established that deceased Sonika
was married to accused Ram Bhadra on 4 th June 1997 and she died a homicidal
death in the house of her husband during the intervening night of 2 nd and 3rd
June 2001. Thus, it has been proved that deceased died otherwise then under
normal circumstances in the house of her husband within seven years of her
marriage. The question now remains to be answered is whether soon before
her death she was subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with any demand of dowry. Vidya
Sagar (PW-1), brother of deceased deposed that whenever deceased came to
his house, she told that her in-laws used to manhandle her and ask her to
bring a scooter. This demand was being made by her husband, mother-in-law
and father-in-law. The evidence of Vidya Sagar (PW-1) finds support from the
evidence of Pushpa Pathak (PW-2), mother of the deceased, who deposed that
for about one year after the marriage of Sonika, her in-laws kept her well, but,
thereafter, whenever she came to her house, she complained that accused
persons made demand of a scooter. There is nothing in the evidence of these
witnesses to indicate that the accused persons caused the death of deceased
for not meeting the demand of dowry. There is also no evidence on record to
indicate that the accused persons harassed or subjected the deceased to
cruelty for or in connection with any demand of dowry soon before her death.
9In Kailash vs. State of M.P. (2006) 12 SCC 667 the Apex Court, affirming
the law laid down in Kans Raj vs. State of Punjab and others (2000) 5
SCC 207, held:
“9. In Kans Raj v. State of Punjab a three-Judge Bench of
this Court dealt with the presumption available in terms of
Section 113-B of the Evidence Act, 1872 (in short “the
Evidence Act”) and its effect on finding persons guilty in terms
of Section 304-B IPC. It was noted as follows: (SCC P.217),
para 9)“9. The law as it exists now provides that where the
death of a woman is caused by any burns or bodily injury
or occurs otherwise than under normal circumstances
within 7 years of marriage and it is shown that soon
before her death she was subjected to cruelty or
harassment by her husband or any relative for or in
connection with any demand of dowry such death shall
be punishable under Section 304-B. In order to seek a
conviction against a person for the offence of dowry
death, the prosecution is obliged to prove that:(a) the death of a woman was caused by
burns or bodily injury or had occurred otherwise
than under normal circumstances;(b) such death should have occurred within
7 years of her marriage;(c) the deceased was subjected to cruelty
or harassment by her husband or by any relative
of her husband;(d) such cruelty or harassment should be
for or in connection with the demand of dowry;
and(e) to such cruelty or harassment the
deceased should have been subjected soon before
her death.”
10. No presumption under Section 113-B of the Evidence Act
would be drawn against the accused if it is shown that after
the alleged demand, cruelty or harassment the dispute stood
resolved and there was no evidence of cruelty or harassment
thereafter. Mere lapse of some time by itself would not
provide to an accused a defence, if the course of conduct
relating to cruelty or harassment in connection with the dowry
demand is shown to have existed earlier in time not too late
and not too stale before the date of death of the victim. This
is so because the expression used in the relevant provision is
“soon before”. The expression is a relative term which is
required to be considered under specific circumstances of
each case and no straitjacket formula can be laid down by
fixing any time-limit. The expression is pregnant with the idea
of proximity test. It cannot be said that the term “soon
10before” is synonymous with the term “immediately before”.
This is because of what is stated in Section 114 Illustration
(a) of the Evidence Act. The determination of the period
which can come within the term “soon before” is left to be
determined by the courts, depending upon the facts and
circumstances of each case. Suffice, however, to indicate that
the expression “soon before” would normally imply that the
interval should not be much between the cruelty or
harassment concerned and the death in question. There must
be existence of proximate and live link (see Hira Lal v. State
(Govt. of NCT), Delhi-(2003) 8 SCC 80.”
18. On examining the factual position in the present case in the light of
above proposition of law, we find that prosecution failed to establish that death
of the deceased was caused in connection with demand for dowry that too
soon before the death of deceased. Since, no nexus could be established by
the prosecution evidence between demand of scooter and the death of
deceased, the provision relating to presumption under Section 113-B can also
be not made applicable. As such the conviction of accused persons under
Section 304-B of Indian Penal Code cannot be sustained. However, from the
evidence of Vidya Sagar (PW-1) and Pushpa Pathak (PW-2) it can be gathered
that after the marriage, both the accused persons had harassed and subjected
Sonika to cruelty to meet their unlawful demand of a scooter. Therefore, their
conviction by the trial Court under Section 498-A of the Indian Penal Code
deserves to be affirmed.
19. In view of the above discussion, conviction and sentence of both the
appellants under Section 302/34 of the Indian Penal Code is set aside.
Appellant No.1 Ram Bhadra is, however, convicted under Section 304-I of the
Indian Penal Code and sentenced to rigorous imprisonment for 10 years.
Conviction of both the appellants under Section 304-B/34 of the Indian Penal
Code is set aside. They are acquitted of that charge. Conviction of both the
appellants under Section 498-A of the Indian Penal Code is affirmed. However,
in view of the old age of appellant No.2 Deowati, who must be of around 70
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years of age now, and long lapse of time after the incident, sentence of both
the appellants on that count is reduced from 2 years to rigorous imprisonment
for six months only. It has been pointed out that appellant No.2 Deowati has
already suffered custody for a period of six months, therefore, she need not
surrender.
20. Appeal partly allowed.
(RAKESH SAKSENA) (N.K. GUPTA)
JUDGE JUDGE
shukla
12
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No. 744/2002
Ram Bhadra Tiwari & Anr
Versus
The State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/05/2010
Hon'ble Shri Justice N.K. Gupta
JUDGE
__/05/2010
POST FOR /05/2010
(Rakesh Saksena)
Judge
___/05/2010