1
AFR
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Revision No.820/1995
R.K. Agrawal, son of Shri Gaya
Prasad Agrawal, Serviceman, r/o
Birsinghpur, Police Station,
Sakhaganj, district Satna, M.P.
versus
1. State of Madhya Pradesh.
2. Subhash, s/o Shri Baddhelal
Agrawal, aged 33 years, r/o
Oujara, Police Station and Tahsil,
Amarpatan, district Satna (M.P.).
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For the petitioner: Shri S.K. Dwivedi, advocate.
For the Resp./State: Shri Prakash Gupta, Panel Lawyer.
For the Resp.No.2: Shri Ahadulla Usmani, Advocate.
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Criminal Revision No.821/1995
R.K. Agrawal, son of Shri Gaya
Agrawal, Serviceman, r/o
Birsinghpur, Police Station,
Sakhaganj, district Satna, M.P.
versus
1. The State of Madhya Pradesh.
2. Smt. Meena, wife of Shri
Foolchand Agrawal, aged 32 years.
3. Ramdhar, s/o Shri Buddhelal
Agrawal, aged 48 years.
4. Premchandra, s/o Shri
Buddhelal Agrawal, aged 28 years.
5. Smt. Droupadi, wife of Shri
Ramadhar Agrawal, aged 46 years.
All residents of village Ovara, Police
Station and Tahsil Amarpatan,
district Satna (M.P.).
2
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For the petitioner: Shri S.K. Dwivedi, advocate.
For the Resp./State: Shri Prakash Gupta, Panel Lawyer.
For the Resp.No.2 to 5: Shri Ahadulla Usmani, Advocate.
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Criminal Appeal No.1188/1995
Subhash son of Buddhelal Agrawal,
M.Sc. Lecturer in the Government
Higher Secondary School, Maihar,
resident of Obera Police Station,
Amarpatan, Tahsil Amarpatan,
district Satna, at present in Maihar
Jail.
versus
The State of Madhya Pradesh.
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For the appellant: Shri S.C.Datt, Sr.Advocate with Shri Siddharth Datt
and Shri Ahadulla Usmani, Advocates.
For the Resp./State: Shri Prakash Gupta, Panel Lawyer.
For the Complainant: Shri S.K. Dwivedi, Advocate.
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PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE T.K. KAUSHAL
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Date of hearing: 25/01/2011
Date of Judgment: 02/02/2011
JUDGMENT
Per: Rakesh Saksena, J
Since the aforesaid revisions and the appeal arise out of common
judgment, this judgment shall govern the disposal of all the above revisions
and appeal.
2. Appellant Subhash has filed Criminal Appeal No.1188/1995 against the
judgment dated 26.8.1995, passed by Additional Sessions Judge, Maihar,
district Satna, in Sessions Trial No.71/1995, convicting him under Sections
304B and 498A of the Indian Penal Code and sentencing him to rigorous
imprisonment for seven years under Section 304 of the Indian Penal Code. No
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separate sentence has been passed for the offence under Section 498-A of the
Indian Penal Code.
3. Complainant R.K. Ragrawal has filed Criminal Revision No.821/1995
against the same impugned judgment whereby accused Smt. Meena,
Ramadhar, Premchandra and Smt. Droupadi have been acquitted. He has also
filed Criminal Revision No.820/1995 against accused/respondent Subhash for
enhancement of his sentence.
4. In brief, the prosecution case is that Meena, the deceased, was married
to accused/appellant Subhash in the year 1990. After marriage she was
residing with her husband and in-laws in village Birsinghpur. Relations between
Meena on one side and the accused persons on the other side were not
cordial. On 19.4.1995, at about 6-6.30 in the morning, in the house of her
husband, Meena got burnt and died. It is said that though the door latch of
the room, in which her dead body was found, was bolted from inside. Accused
Ramadhar, elder brother of Subhash, lodged the report about the incident in
police station at about 7.25 a.m. Police registered Murg and proceeded for
enquiry. Family members of the deceased were informed. Dead body of
deceased was then sent for postmortem examination to Community Health
Centre, Amarpatan, where Dr. P.K. Sharma (PW-8) conducted autopsy and
found that deceased had died due to burn injuries. The postmortem
examination report is Ex.P/5.
5. On 21.4.1995, Jeevanlal Agrawal, the maternal grand father of the
deceased, submitted a written report (Ex.P/4) to Station Officer of Police
Station, Amarpatan, alleging that after marriage when deceased had come
back to her parents’ house, she had disclosed to her parents and other family
members that her husband and other accused persons were angry because of
not giving sufficient dowry in the marriage and they used to extend taunts to
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her about that. She had also disclosed that her husband used to say that he
did not marry her out of his own wish, he had married under the influence of
his elder brother. Deceased was made to understand that everything would be
alright with the passage of time, but her husband used to manhandle and
insult her. When she conceived, he asked her to go to her uncle’s house and
get her pregnancy aborted. She was also intimidated for not doing so.
However, she delivered a female child. Even thereafter, the relations between
them could not be improved. On 13.3.1995, when her brother Sanjay went to
her house to invite her for some family function, she complained to him about
her harassment. According to Jeevanlal, on 19.4.1995, at about 8.30 a.m., a
police constable informed him that her grand daughter had died. All the family
members went to the house of accused persons and saw that deceased was
burnt to death by them. According to him, police did not record their
statements. Therefore, the written report was submitted.
6. After investigation, police filed charge sheet against five accused
persons.
7. Trial Court framed charges against accused persons u/s 304B and 498A
of the Indian Penal Code.
8. During trial, the defence of the accused persons was that accused
Subhash was posted as Lecturer in Government Higher Secondary School,
Maihar. Deceased was residing at Amarpatan in joint family house. She insisted
Subhash to keep her also at Maihar, but since she was suffering with disease
of hiccups, he did not yield to her demand. She did not want to live in joint
family. She was frustrated because her cousin Sanjay, though invited them in
some function, but he did not took her with him. In the morning, she went to
take bath in their other house, which was situated in front of a residential
house. When she did not return, other persons went there and found her lying
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burnt in the room, which was bolted from inside. She was already dead. Family
members of deceased came and attended the inquest and the funeral, they did
not make any complaint to anybody, but, subsequently, Jeevanlal lodged
report with the police making false allegation of demand of dowry. Parents of
deceased also took away his daughter.
9. In order to bring home the charge against the accused persons,
prosecution examined 15 witnesses. Accused also examined 3 witnesses to
substantiate their defence.
10. Learned Additional Sessions Judge, after trial and upon appreciation of
the evidence adduced in the case, acquitted accused Ramadhar, Premchandra,
Smt. Droupadi and Smt. Meena of all the charges, however, finding appellant
Subhash, the husband of deceased, guilty of the offence under Section 304B
and 498A of the Indian Penal Code convicted and sentenced him, as
mentioned above. Appellant Subhash has challenged the impugned judgment
of his conviction in his appeal, whereas complainant has challenged the
acquittal of other accused persons in revision.
11. We have heard the learned counsel for the parties and perused the
impugned judgment and evidence on record.
12. It is no longer disputed that deceased Anupam @ Meena died of burn
injuries. It is also reflected from the evidence of Dr. P.K. Sharma (PW-8) that
the dead body of deceased Meena was brought to Community Health Centre,
Amarpatan, where he had conducted the postmortem examination of her body
with a team of doctors. According to him, smell of kerosene was present on
the body. Deep burns were present over scalp, hair were singed, face was
dark, it was charred and deformed, tung was protruding out. Whole of the
chest including breast and upper 2/3rd of abdomen was deeply burnt, charred
and black. Back of trunk was burnt deeply up to hips and continued over the
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back of thighs. Arms were also burnt. The areas of umbilical abdomen and
perineum interiorly were escaped from burns. Burns were ante-mortem in
nature. No other mark of injury was found on the body. In the opinion of
doctors, cause of death was shock due to extensive ante-mortem burns. Her
postmortem report (Ex.P/5) written and signed by Dr. P.K. Sharma, R.K. Jain
and A.K. Awadhiya is placed on record. Investigating Officer K. Mahendra
Singh (PW-11) deposed that on receiving information about the death of
deceased, he had recorded Murg report (Ex.P/9) and conducted inquest
proceedings. He had recorded inquest memo (Ex.P/1) and sent the dead body
for postmortem examination. It was thus clearly evident that deceased Meena
died of burn injuries.
13. From the evidence of Jeevanlal (PW-3), Kamla Devi (PW-5), Sanjay
Agrawal (PW-6), Raj Kumar Agrawal, father of deceased (PW-7) and Janak
Dulari, mother of deceased (PW-15), it has been clearly established that
deceased was married to appellant Subhash on 26.6.1990. This fact was not
disputed by the appellant. Thus, it stood established that the death of
deceased was caused by burns otherwise than under normal circumstances
within seven years of her marriage.
14. Now the question before this Court is whether soon before her death
deceased was subjected to cruelty or harassment by accused persons for, or in
connection with, any demand of dowry.
15. Learned counsel for the appellant, however, submitted that the trial
Court gravely erred in placing implicit reliance on the evidence of family
members and relatives of deceased. Their evidence was general and vague in
nature. Trial Court itself found that their evidence in respect of demand of
VCR, TV and ten Tolas of gold was not reliable. It failed to consider that by the
prosecution evidence it was not established that deceased was subjected to
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any cruelty or harassment for or in connection with any demand of dowry soon
before her death. The death of deceased took place after about four and half
years of her marriage. She had also delivered a female child. Accused persons
were falsely implicated. Learned counsel for the State, on the other hand,
justified and supported the conviction of the appellant.
16. Jeevanlal (PW-3), grand father of deceased, deposed that deceased was
married to Subhash on 26th June 1990. Other accused persons in the case were
elder brothers of Subhash and their wives. They all lived jointly in Amarpatan.
After marriage, the behaviour of accused persons with deceased was not
proper. Deceased used to tell that they passed comments and taunted her that
her father had given insufficient dowry. Subhash used to maltreat her. She
disclosed these matters to him last time about 4-5 months before her death.
Jeevanlal further deposed that cash, gold and silver etc. to be given in dowry
was negotiated before marriage and that was given. All these articles were
given by them out of their own wish. He, however, clarified that all the talks
and negotiations about dowry were done by accused Ramadhar, elder brother
of Subash. After about two years of marriage, deceased had delivered a female
child. Subhash had asked deceased to get the pregnancy aborted, but since
the deceased had given birth to a child, Subhash got annoyed. He, however,
admitted that he did not disclose this fact in the written report (Ex.P/4)
submitted by him to police and also in his police statement (Ex.D/1). Learned
counsel for the appellant submitted that since this witness admitted that the
deceased had complained him about the taunting made by accused persons
only 2-3 times and, at the last, about six months before her death, it cannot be
held that she was subjected to cruelty in connection with demand of dowry
soon before her death. Before expressing our opinion in this regard, it is also
necessary to examine the evidence of other witnesses.
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17. Kishore Kumar (PW-4), brother of deceased, stated that about 5 months
before her death deceased had come to his house and told to family members
that her in-laws used to make demand of dowry and maltreat her. She had
made this complaint against Ramadhar, Premchandra, Meena, Droupadi and
her husband Subhash. However, in para-8 of his statement he did not disclose
this fact to anybody and also did not mention these facts in his statement
before the police. According to him, deceased had complained about the said
misbehaviour and demand after about 15 days of marriage, after about one
years thereafter and about five months before her death. Kishore Kumar
further deposed that his cousin Sanjay Agrawal had gone to the house of
deceased to invite her and her in-laws, but they did not send her and made
demand of dowry saying that if their demand would not be not fulfilled, they
would not be able to see the face of deceased. Though Sanjay Agrawal (PW-6)
before the court reiterated the same things, but these facts were found
missing in his police statement (Ex.D/32). Kishore Kumar (PW-4) admitted
that the fact of demand of ten Tolas of gold, colour TV and VCR by the
accused persons was not disclosed by him to police. Kamla Devi (PW-5) stated
that Meena used to go to her parents’ house every 2-3 months. She also used
to stay at her house. She used to tell her that her in-laws used to harass her.
They used to taunt her that nothing was given in dowry. Even TV, VCR and ten
Tolas of gold was not given. Subhash used to beat her. According to her,
when deceased became pregnant, her husband Subhash asked her to get the
pregnancy terminated because he did not want child. Kamla Devi (PW-5)
admitted that everything whatever was to be given in dowry was already given
and nothing remained to be given in dowry. Kamla Devi also disclosed that
husband of deceased was lecturer in Maihar and used to up and down daily.
Meena wanted to live with him at Maihar, but Subhash did not agree for that.
9
When Meena asked him to live at Obra, Subhash did not agree for it too and
insisted her to live in joint family. Similar types of statements were given by
Sanjay Agrawal (PW-6), cousin, Naryan Prasad (PW-12), uncle, Dr. Aditya
Vansh Mishra (PW-13) and Anita Mishra (PW-14), neighbours of deceased’s
family.
18. Rajkumar Agrawal (PW-7), father of deceased, deposed that whenever
his daughter came to his house, she told that she was married in a wrong
family. Their demand of dowry remained ever existing and they used to harass
her. Her husband used to abuse and beat her. Other in-laws used to make
demand of TV, VCR and ten Tolas of gold. Her husband wanted her pregnancy
terminated because he did not want a child. However, when confronted with
his police statement (Ex.D/33), he could not explain as to why these facts were
not mentioned by him there. His statement was recorded twice. He admitted
that he did not disclose all the above facts in his police statement also, which
was recorded on 21.4.1994. He also admitted that Meena used to write letters
to him regarding his agony in her nuptial home, but he did not keep any letter
safe. Similarly, deceased’s mother Janak Dulari (PW-15) admitted that in her
police statement (Ex.D/2) she did not disclose that accused persons demanded
gold, VCR and TV. She also did not disclose that Subhash used to beat her and
others harassed her. According to her, she had not given the statement (Ex.D/
2) to police. Police had obtained her signatures on the blank paper. Janak
Dulari (PW-15) stated that she had met the deceased last time about 5-6
months before her death. She also admitted that she had written letter
(Ex.D/35) on 1.2.1995 to deceased. Learned counsel for the appellant
referring to said letter and also to letters (Ex.D/5 to D/28), proved by Sanjay
Agrawal (PW-6), written by Raj Kumar, father of deceased, and post cards
(Ex.D/29, D/30 and Ex.D/31) written by uncle of deceased Mukut Bihari to the
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in-laws of deceased, submitted that in none of these letters any resentment or
complaint was expressed by parents and the uncle of deceased about the
harassment or any cruelty, if meted out to deceased by them.
19. Anita Mishra (PW-15), a neighbour of father of deceased, though
deposed that deceased told to her that her husband and the in-laws used to
harass and subject her to cruelty, but these facts were also found missing in
her police statement (Ex.D/37). She, however, deposed that husband of
deceased insisted her for miscarriage of pregnancy. She admitted that she had
talked to deceased only about 5-6 months before her death.
20. After scanning and critically scrutinizing the evidence of aforesaid
witnesses, we find that the evidence adduced by the prosecution is not enough
to compel us to hold that appellant Subhash had made demand of gold, VCR,
TV or any other thing in dowry. Whatever was given in dowry by the family
members of the deceased was given voluntarily at the time of marriage, which
took place in the year 1990. The evidence in respect of dowry was discrepant
and contradictory besides the improvements in the evidence of almost all the
prosecution witnesses. We find that on the basis of vague and general kind of
evidence no fact can be held proved. Trial Court itself in para-30 and 31 of the
impugned judgment held, and, in our opinion rightly, that the evidence of
prosecution witnesses regarding demand of TV, VCR and ten Tolas of gold in
dowry was not reliable. It is true that the trial court held that from the
evidence of Jeevanlal (PW-3) it was established that in-laws of deceased
taunted her as to what was given by her parents in dowry, but, in our opinion,
such comments and taunts cannot be deemed to be the demand of dowry or
subjection of deceased to cruelty for not meeting the demand of dowry.
21. It is also important to note that marriage of the deceased with appellant
Subhash took place in the year 1990 and the unnatural death of deceased by
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burning took place in the year 1995 i.e. around four and half years of the
marriage. In this span of time, number of letters were written by parents and
other relatives of deceased to her and her in-laws, but not even a single time
any resentment or anguish was expressed about the alleged demand of dowry
made by or cruelty done by the accused persons to deceased. It is also
noteworthy that Rajkumar (PW-7), father of deceased did not produce any
letter written by deceased to him. There appeared not much difference
between the evidence given by the prosecution witnesses against all the
accused persons including appellant Subhash, but trial Court, in our opinion,
without any valid reason assumed that except appellant there was no evidence
against others that they taunted or harassed the deceased contributing to her
suicide.
22. From the aforesaid circumstances, we are of the opinion that it was not
established beyond doubt that appellant Subhash subjected the deceased to
cruelty or harassment for, or in connection with, any demand of dowry.
23. For bringing home the charge under Section 304B of the Indian Penal
Code and for raising the presumption under Section 113B of the Evidence Act,
the proof of following essentials is necessary:-
(1) The question before the court must be whether the
accused committed dowry death of a woman.
(2) The woman was subjected to cruelty or harassment by
her husband or 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.
If any of the constituent ingredient is not established or is found missing, the
accused cannot be convicted for the charge under Section 304B of the Indian
Penal Code.
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24. In Harjit Singh v. State of Punjab-AIR 2006 SC 680, the Apex
Court held :
“19. ……………………………………
……………………………………………
It is not enough that harassment or cruelty was caused to
the woman with a demand for dowry at some time, if
Section 304-B is to be invoked. But it should have
happened ‘soon before her death’. The said phrase, no
doubt, is an elastic expression and can refer to a period
either immediately before her death or within a few days
or even a few weeks before it. But the proximity to her
death is the pivot indicated by the expression. The
legislative object in providing such a radius of time by
employing the words ‘soon before her death’ is to
emphasis the idea that her death should, in all
probabilities, have been the aftermath of such cruelty or
harassment. In other words, there should be a perceptile
nexus between her death and the dowry related
harassment or cruelty inflicted on her. If the interval
elapsed between the infliction of such harassment or
cruelty and her death is vide the Court would be in a
position to gauge that in all probabilities the harassment or
cruelty would not have been the immediate cause of her
death. It is hence for the Court to decide on the facts and
circumstances of each case, whether the said interval in
that particular case was sufficient to snuff its cord from the
concept ‘soon before her death’.
20. Yet again in Hiralal and others v. State (Govt. of NCT)
Delhi (2003) 8 SCC 80), this Court observed that ‘The
expression ‘soon before her death’ used in the substantive
Section 304-B IPC and Section 113-B of the Evidence Act is
present with the idea of proximity test. No definite period
has been indicated and the expression ‘soon before’ is not
defined. A reference to the expression ‘soon before’ used
in Section 114 Illustration (a) of the Evidence Act is
relevant. It lays down that a Court may presume that a
man who is in the possession of goods“soon after the theft, is either the thief or has received the
goods knowing them to be stolen, unless he can account
for their possession”. The determination of the period
which can come within the term “soon before” is left to be
determined by the Courts, depending upon 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 a proximate and live link between
the effect of cruelty based on dowry demand and the
death concerned. If the alleged incident of cruelty is
remote in time and has become stale enough not to
13disturb the mental equilibrium of the woman concerned, it
would be of no consequence.”
25. On examining the facts and circumstances of the instant case in the light
of the above legal proposition, we find that it was not established that
deceased was subjected to harassment or cruelty for, or in connection with,
demand of dowry. Apart from it, from the evidence of prosecution witnesses it
appears that they heard about the harassment or cruelty at the hands of
accused persons to deceased only about 5-6 months before the death of
deceased. There was no specific evidence that deceased was subjected to
harassment by the appellant in connection with demand of dowry immediately
or soon before her death. In these circumstance, in our opinion, the
presumption under Section 113B of the Evidence Act cannot be raised and the
appellant cannot be convicted for the offence under Section 304B of the Indian
Penal Code.
26. It is true that the evidence for the proof of charge under Section 304B
of the Indian Penal Code has been found insufficient, but, from the same set of
evidence, it stands established that appellant Subhash subjected deceased to
cruelty by manhandling and beating her. It also stands established that he
forced deceased for abortion of her pregnancy and ill treated her for her not
yielding to his demand. According to Narayan Prasad (PW-12), it was only the
appellant who compelled her for abortion. Dr. Aditya Mishra (PW-13) deposed
that his wife Anita had told to him that deceased had informed her that
appellant threatened her that if she would not terminate her pregnancy, he
would do away with her. This fact was corroborated by the evidence of Anita
Mishra (PW-14) also, who deposed that she told to her husband about the
above facts, which were disclosed to her by the deceased.
27. Section 498-A of the Indian Penal Code reads as under:
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“498A. Husband or relative of husband of a
woman subjecting her to cruelty.-whoever, being the
husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punishable with
imprisonment for a term which may extend to three years
and shall also be liable to fine.”
A bare perusal of explanation (a) to Section 498A of the Indian Penal Code
provides that any wilful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical) of the woman would also amount to
cruelty. In view of the facts and circumstances established in the case against
the appellant, we find that appellant was liable to be convicted under Section
498A of the Indian Penal Code.
28. In view of the above discussion, conviction and sentence of appellant
under Section 304B of the Indian Penal Code is set aside. He is acquitted of
that charge, instead he is convicted under Section 498A of the Indian Penal
Code.
29. As far as the question of sentence of appellant is concerned, Shri
S.K.Dwivedi, learned counsel for R.K. Agrawal, the petitioner of Criminal
Revision No.820/1995 and Criminal Revision No.821/1995, submitted that
respondent/accused Subhash is son in-law of Raj Kumar Agrawal. He has one
daughter, whose future is fully dependent on him. Though initially he had filed
Criminal Revision No.820/1995 for enhancement of sentence of accused
Subhash, but due to understanding developed between the two families, he
decided to withdraw the said revisions. Shri Dwivedi submitted that he had
also moved applications for withdrawal of both the revisions, but such
permission was not granted. However, in the interest of daughter of accused
Subhash, who has attained the age of about 16 years now, he again seeks to
withdraw the aforesaid revisions. The complainant and appellant have again
15
filed a joint application indicating that they have compounded the matter.
Learned counsel for the appellant submitted that appellant is a lecturer in
Government Higher Secondary School. He has already suffered incarceration
for a period of about five and half months. If he is sent back to jail again, it
would adversely affect his career as well as future of his daughter.
30. We find substance in the submissions made by the learned counsel for
the appellant. Accordingly, under Section 498A of the Indian Penal Code
appellant is sentenced to imprisonment for the period of sentence already
undergone by him. However, he is directed to pay a fine of Rs.3000/-. In case
of default in payment of fine, he shall suffer rigorous imprisonment for a period
of three months. Fine shall be deposited in the trial Court within two months.
31. Appeal (Criminal Appeal No.1188/1995) partly allowed.
32. In view of the submissions made by Shri S.K. Dwivedi, learned counsel
for the petitioner Rajkumar Agrawal, Criminal Revision No.820/1995 and
Criminal Revision No.821/1995 are dismissed as withdrawn.
33. A copy of this judgment be kept in the record of aforesaid criminal
revisions.
(RAKESH SAKSENA) (T.K. KAUSHAL)
JUDGE JUDGE
Shukla
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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Revision No.820/1995
R.K. Agrawal
versus
The State of Madhya Pradesh & Anr
Criminal Revision No.821/1995
R.K. Agrawal
versus
The State of Madhya Pradesh & ors
Criminal Appeal No.1188/1995
Subhash
versus
The State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/02/2011
Hon'ble Shri Justice T.K. Kaushal
JUDGE
__/02/2011
POST FOR /02/2011
(Rakesh Saksena)
Judge
___/02/2011