{"id":215309,"date":"2004-02-04T00:00:00","date_gmt":"2004-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/yashoda-and-another-vs-state-of-madhya-pradesh-on-4-february-2004"},"modified":"2016-12-10T10:42:44","modified_gmt":"2016-12-10T05:12:44","slug":"yashoda-and-another-vs-state-of-madhya-pradesh-on-4-february-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/yashoda-and-another-vs-state-of-madhya-pradesh-on-4-february-2004","title":{"rendered":"Yashoda And Another vs State Of Madhya Pradesh on 4 February, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Yashoda And Another vs State Of Madhya Pradesh on 4 February, 2004<\/div>\n
Author: B Singh<\/div>\n
Bench: N. Santosh Hegde, B.P. Singh<\/div>\n
           CASE NO.:\nAppeal (crl.)  431 of 1997\n\nPETITIONER:\nYashoda and another \t\t\t\t \n\nRESPONDENT:\nState of Madhya Pradesh \t\t\t\t\n\nDATE OF JUDGMENT: 04\/02\/2004\n\nBENCH:\nN. SANTOSH HEGDE & B.P. SINGH\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
B.P. Singh, J.\n<\/p>\n
\tThe appellants in this appeal are the parents of
\nKalicharan, who was married to Gangabai (deceased) about 4
\nyears before the date of occurrence.  Her death in circumstances
\nnot considered normal within seven years of her marriage led to
\nthe prosecution of the appellants as well as Kalicharan and eight
\nother relatives and villagers charged variously of the offences
\nunder Sections 498A, 304B and 201 IPC.  The trial of
\nKalicharan, husband of the deceased, was separated as he was
\nfound to be a juvenile and his case transferred to the Juvenile
\nCourt for his trial.  The appellants alongwith eight other
\naccused persons were put up for trial before the Fourth
\nAdditional Sessions Judge, Morena in Sessions Case No. 252 of
\n1989.  The learned Sessions Judge by his judgment and order of
\nFebruary 4, 1992 found the appellants guilty of the offences
\nwith which they were charged but acquitted the remaining
\naccused persons who were charged of the offence under Section
\n201 IPC finding no evidence to support the charge.   The
\nappellants herein were sentenced to undergo one year rigorous
\nimprisonment and to pay a fine of Rs.500\/- under Section 498A
\nIPC; to ten years rigorous imprisonment and a fine of
\nRs.1,000\/- under Section 304B IPC and two years rigorous
\nimprisonment and a fine of Rs.500\/- under Section 201 IPC.
\nThe appellants challenged their conviction and sentence before
\nthe High Court of Madhya Pradesh, Bench at Gwalior in
\nCriminal Appeal No. 31 of 1992 but the High Court, finding no
\nmerit in the appeal, dismissed the same upholding their
\nconviction and sentence.\n<\/p>\n
\tIt is not in dispute that deceased Gangabai was married to
\nKalicharan about 4 years before the occurrence which occurred
\non May 19, 1989.  While the prosecution contended that the
\ndeath of Gangabai occurred under circumstances otherwise than
\nnormal and she was earlier subjected to cruelty and harassment
\nby the appellants as well as by her husband and soon before her
\ndeath also she was meted out such treatment by them in
\nconnection with demand for dowry, the defence contended that
\nGangabai died on account of an attack of diarrhoea and
\nvomiting, and inspite of the fact that the appellants had taken
\nher for medical treatment to the hospital at Morena where she
\nwas treated by the doctors.  According to the defence the
\nallegation against the accused that they had made persistent
\ndemand of dowry was false and that they had been falsely
\nimplicated on account of the fact that some amount had been
\nadvanced to Shankar Lal (father of the deceased) by them
\nwhich remained unpaid.\n<\/p>\n
\tThe trial court as well as the High Court have subjected
\nthe prosecution evidence to critical scrutiny and have
\nconcurrently reached the conclusion that so far as the appellants
\nherein are concerned, the charges under Sections 498A;  304B
\nand 201 IPC are fully established.\n<\/p>\n
\tShri S.K. Gambhir, Senior Advocate, appearing on behalf
\nof the appellants vehemently contended before us that there was
\nreally no substance in the allegation made by the prosecution.
\nHe further submitted that the deceased suffered a bout of
\nvomiting accompanied with diarrhoea and when they found that
\nher condition was not stable, the appellants immediately
\nremoved her to the Morena Hospital where she was treated by
\nthe doctors concerned, but inspite of the their best efforts, she
\ndid not survive.  He also submitted that in any event the
\nprosecution has failed to establish the charge under Section
\n304B IPC since there was no evidence to prove that the
\ndeceased had been subjected to harassment and cruelty by the
\nappellants soon before her death in connection with any
\ndemand of dowry.  It, therefore, followed that the presumption
\nunder Section 304B could not be drawn against them and there
\nwas no other evidence to prove that the appellants had caused
\nthe death of deceased Gangabai.\n<\/p>\n
\tThe prosecution has examined several witnesses to prove
\nits case which includes Lalaram (PW-3), brother of the
\ndeceased; Kalicharan (PW-4), uncle of the deceased; Shankarlal
\n(PW-5), father of the deceased and Ramdei (PW-7), mother of
\nthe deceased.  The prosecution also examined as PW-2, Natthi
\nDevi who was a nurse attached to the Morena Hospital.  This
\nwitness was declared hostile but we shall notice her evidence at
\nthe appropriate place.  The defence examined only one witness,
\nnamely  Vijay Singh (DW-1).  Shri R.N. Pachori (PW-6), who
\npartly investigated the case has also deposed with regard to the
\nsteps taken by him after he received the information about the
\nadmission of Gangabai in the Morena Hospital in suspicious
\ncircumstances.\n<\/p>\n
\tWe have carefully scrutinized the evidence on record
\ndespite the concurrent findings of fact recorded by the courts
\nbelow but we find no reason to differ from the findings
\nrecorded by them.\n<\/p>\n
The evidence on record disclosed that Gangabai was
\nmarried to Kalicharan about 4 years before her death.  At the
\ntime of marriage some amount in cash and some ornaments
\nwere given by the parents of the deceased.  Gangabai went to
\nher matrimonial home after the marriage but returned after 5-6
\ndays.  She reported to her parents and brother that her father-in-
\nlaw ; mother-in-law as well as her husband were demanding a
\ngold chain ; a ring and a phool (earing) and had threatened her
\nthat if she did not bring those items, she will not be ever sent to
\nher parents house again.  The evidence on record also
\nestablishes the fact that on two other occasions the deceased
\nhad gone to her matrimonial home and on both occasions the
\nappellants persisted in their demand for gold ornaments and
\nharassed the deceased and treated her with cruelty.  The
\nevidence on this aspect of the matter is consistent.  The mother
\nof the deceased namely, Ramdei (PW-7) to whom the deceased
\nreported her sufferings in detail stated that whenever the
\ndeceased came back from her matrimonial home she told her
\nthat the appellants were demanding the ornaments and that they
\nassaulted her and threatened her for not bringing those
\nornaments.  They used to assault her with fists and kicks and
\nalso with a ‘danda’.  According to PW-7 she had seen the marks
\non her body supporting the version of her daughter that she was
\nassaulted by them on account of the failure of her parents to
\ngive the ornaments demanded.  Lalaram (PW-3), brother of the
\ndeceased, has also deposed on the same lines.  In particular, he
\nhas mentioned that when he had gone to bring his sister from
\nher matrimonial home, the appellants had demanded from him
\nthose three items of jewellery and he had somehow or the other
\nmanaged to pacify them by assuring that their demands will be
\nfulfilled.  He has also stated about the reports made by deceased
\nGangabai about her ill treatment at the hands of the appellants.
\nThe evidence of Kalicharan (PW-4), uncle of the deceased is
\nalso to the same effect.  He has stated that once when Lalaram
\n(PW-3) went to bring back his sister the appellants refused to
\nsend her back on the ground that their demands had not been
\nmet.  Lalaram (PW-3) came back and reported the matter to his
\nfather Shankarlal (PW-5), brother of Kalicharan.  Shankarlal
\nthen persuaded his brother Kalicharan (PW-4) to go and bring
\nthe deceased and deal with the appellants in a suitable manner.
\nAccording to Kalicharan (PW-4) he went to the matrimonial
\nhome of the deceased and in view of the resistance of the
\nappellants, he had to assure them that all their demands will be
\nmet and that he will take personal responsibility for the same.
\nIt was only thereafter that the deceased was permitted to go to
\nher parents.\n<\/p>\n
The evidence of these witnesses also prove that about 15
\ndays before the occurrence, Kalicharan, the husband of the
\ndeceased, had himself come to fetch the deceased.  On that
\noccasion also he had reiterated his demand for the gold
\nornaments and to him also an assurance was given by the father
\nof the deceased Shankarlal (PW-5) that he would arrange for
\nthe said articles within a month.  On the basis of the evidence of
\nPWs. 3, 4, 5 and 7 we are satisfied that the prosecution has
\nsuccessfully proved its case that there was a persistent demand
\nfor gold ornaments ever since the marriage of the deceased with
\nKalicharan, which demand was reiterated on many occasions
\nand the demand last made was just 15 days before the
\noccurrence.\n<\/p>\n
We shall now consider the evidence relevant to the
\nconduct of the appellants.  The defence case is that the deceased
\nsuffered a bout of vomiting and diarrhoea and was therefore
\nremoved to the Morena Hospital for treatment.  It is true that
\nthe deceased was removed to the Morena Hospital for treatment
\non May 19, 1989.  It is equally true that the appellants did not
\ninform the parents of the deceased about her death and they
\ncame to know about it from another source.  PWs. 3, 4 and 5
\nhad rushed to the matrimonial home of the deceased but they
\nfound that her body had already been cremated in the night.
\nThere is neither any evidence nor any suggestion to the
\nprosecution witnesses that the appellants had made any attempt
\nto send intimation to the parents of the deceased regarding her
\ndeath, nor is there any dispute that the body of the deceased was
\ncremated on the same night and, therefore, it was not possible
\nto hold post-mortem examination to ascertain the cause of
\ndeath.\n<\/p>\n
The evidence of the nurse at the Morena Hospital,
\nnamely Natthi Devi (PW-2) is to the effect that the deceased
\nhad been brought to the hospital in an unconscious condition.
\nShe was admitted in the hospital on the basis of a slip given by
\nthe doctor.  When she found that the condition of the patient
\nwas critical she immediately gave a call to the doctor on duty
\nwho responded immediately.  However, within 5-6 minutes of
\nthe arrival of the doctor, namely – Dr. Srivastava, the patient
\ndied.  According to her the death of the deceased took place
\nwithin = an hour of her being brought to the hospital.  The
\nwitness could not say what medicines were given to the
\ndeceased and what was the nature of her ailment.  In fact this
\nwitness had to be declared hostile since she went back on the
\nstatements made by her in the course of investigation.\n<\/p>\n
We have then the evidence of the Investigating Officer
\n(PW-6).  According to him it came to his knowledge that the
\ndeceased had been admitted in the hospital in suspicious
\ncircumstances and she had been cremated without giving
\ninformation.  On the basis of the said information he registered
\nMarg No.5\/1989 and proceeded to enquire into the matter.  He
\nwent to the cremation ground and had seized ashes and some
\nbones of the deceased.   During enquiry he recorded the
\nstatement of the father and brother of the deceased as well as
\nKotwar.  His enquiry revealed that the deceased had been done
\nto death by her in-laws who had been demanding dowry and
\nthat for non fulfillment of demand the deceased used to be
\nreprimanded and beaten.  He, therefore, registered Case No. 26
\nof 1989 under Sections 304B ; 498A ; 201 ; 176 \/34 IPC.  He
\nhad arrested the appellants and some of the other accused.\n<\/p>\n
The evidence on record, therefore, reveals that the
\ndeceased was taken to the Morena Hospital in a critical
\ncondition when she was about to die and in fact she died within
\n= an hour of her admission in the hospital.  The appellants
\nmade no effort to inform the parents of the deceased about her
\ndeath and on the contrary cremated the body of the deceased the
\nsame night in a suspicious manner.\n<\/p>\n
Shri Gambhir seriously contended that it was for the
\nprosecution to prove that the deceased had died in
\ncircumstances otherwise than normal.  He contended that the
\nprosecution ought to have examined the doctor and produced
\nthe relevant documents from the hospital to establish the cause
\nof death of the deceased.  We cannot uphold this contention.
\nThe prosecution has successfully established that the deceased
\nwas married to Kalicharan about 4 years before her death.  The
\nfacts also reveal that the death was not under normal
\ncircumstances.  There was also evidence to show that the
\ndeceased was persistently subjected to cruelty and harassment
\nby her husband as well as by her parents in connection with
\ndemand for dowry, in particular the demand for gold
\nornaments.  Once it is held that these facts stand established,
\nunder Section 304B IPC a presumption arises that it is a case of
\ndowry death, and that her husband or relatives who subjected
\nher to cruelty and harassment shall be deemed to have caused
\nher death.  No doubt this is a rebuttable presumption, but in the
\nabsence of any evidence in rebuttal, the Court may, with the aid
\nof the presumption convict the accused of that charge.  Once the
\nprosecution proves the facts which give rise to the presumption
\nunder Section 304B IPC, the onus shifts to the defence and it is
\nfor the defence to produce evidence to rebut that presumption.
\nThe defence may adduce evidence in support of its defence or
\nmay make suggestions to the prosecution witnesses to elicit
\nfacts which may support their defence.  The evidence produced
\nby the defence may disclose that the death was not caused by
\nthem, or that the death took place in normal course on account
\nof any ailment or disease suffered by the deceased or that the
\ndeath took place in a manner with which they were not at all
\nconnected.  In the instant case if the defence wanted to prove
\nthat the deceased had suffered from diarrhoea and vomiting and
\nthat resulted in her death, it was for the defence to adduce
\nevidence and rebut the presumption that arose under Section
\n304B IPC.  The defence could have examined the doctor
\nconcerned or even summoned the record from the hospital to
\nprove that in fact the deceased has suffered such ailment and
\nhad also been treated for such ailment.\n<\/p>\n
The evidence adduced by the prosecution, therefore,
\nclearly establishes that the appellants made a persistent demand
\nfor some gold ornaments and the first demand was made when
\nthe deceased went to her matrimonial home on the first
\noccasion and returned after 5-6 days.  She complained to her
\nmother about the treatment meted out to her.  She also narrated
\nher woes to her brother and father.  The evidence of her mother
\nRamdei (PW-7) is clear and categoric that her daughter had
\nbeen assaulted by the appellants in her matrimonial home and
\nshe had seen signs of violence on the person of the deceased.
\nThe evidence on record also discloses that on other occasions
\nalso when the deceased went to her matrimonial home the
\ndemand was repeated.  The evidence of her brother Lalaram
\n(PW-3) and her uncle Kalicharan (PW-4) in this regard is
\neloquent.  Even on the last occasion when she was about to
\nleave for her matrimonial home and her husband had come to
\nfetch her, he again made the demand but with a view to pacify
\nhim, Shankarlal (PW-5), father of the deceased, assured him
\nthat he will make necessary arrangement.  While leaving her
\nparental home, the deceased had wept and told her uncle that if
\nthe demand of the appellants was not met, they will not let her
\nlive.  About 15 days after her last departure the parents of the
\ndeceased suddenly came to know that she had died.  The
\nevidence on record, therefore, clearly establishes that there was
\npersistent demand for gold ornaments and she was being
\npersistently ill treated by the appellants for not bringing those
\ngold ornaments, and her death occurred in circumstances which
\ncannot be considered to be normal.\n<\/p>\n
Mr. Gambhir, however, submitted that there is no
\nevidence to show that soon before her death she had been
\ntreated with cruelty and had been harassed by the appellants.
\nAccording to him the words “soon before” in Section 304B IPC
\nare material and there must be evidence to show that soon
\nbefore her death she had been subjected to cruelty or
\nharassment by her husband in connection with demand for
\ndowry.\n<\/p>\n
The words “soon before” found in Section 304B IPC
\nhave come up for consideration before this Court in large
\nnumber of cases.  This Court has consistently held that it is
\nneither possible nor desirable to lay down any straitjacket
\nformula to determine what would constitute “soon before” in
\nthe context of Section 304B IPC.  It all depends on the facts and
\ncircumstances of the case.  Learned counsel for the appellant
\nrelied upon a decision of this Court rendered by two Learned
\nJudges reported in AIR 1997 SC 1873 : Sham Lal  vs.  State of
\nHaryana and<\/a> submitted that as in that case, so in the present
\ncase, there was no evidence to suggest that after the deceased
\nwent to her matrimonial home, she had been subjected to
\ncruelty and harassment before her death.  The facts of Sham
\nLal’s  case are clearly distinguishable and they have been so
\ndistinguished in the case of Kans Raj  vs.   State of Punjab and
\nothers<\/a> : (2000) 5 SCC 207 by a Bench of 3 Learned Judges of
\nthis Court.  This Court observed :-\n<\/p>\n
“It is further contended on behalf of the
\nrespondents that the statements of the deceased
\nreferred to  the instances could not be termed to be
\ncruelty or harassment by the husband soon before
\nher death.  “Soon before” is a relative term which
\nis required to be considered under specific
\ncircumstances of each case and no straitjacket
\nformula can be laid down by fixing any time-limit.
\nThis expression is pregnant with the idea of
\nproximity test.  The term “soon before” is not
\nsynonymous with the term “immediately before”
\nand is opposite of the expression “soon after” as
\nused and understood in Section 114,  Illustration\n<\/p>\n
(a) of the Evidence Act.  These words would imply
\nthat the internal should not be too long between the
\ntime of making the statement and the death.  It
\ncontemplates the reasonable time which, as earlier
\nnoticed, has to be understood and determined
\nunder the peculiar circumstances of each case.  In
\nrelation to dowry deaths, the circumstances
\nshowing the existence of cruelty or harassment to
\nthe deceased are not restricted to a particular
\ninstance but normally refer to a course of conduct.
\nSuch conduct may be spread over a period of time.
\nIf the cruelty or harassment or demand for dowry
\nis shown to have persisted, it shall be deemed to be
\n“soon before death” if any other intervening
\ncircumstance showing the non-existence of such
\ntreatment is not brought on record, before such
\nalleged treatment and the date of death.  It does
\nnot, however, mean that such time can be stretched
\nto any period.  Proximate and live link between the
\neffect of cruelty based on dowry demand and the
\nconsequential death is required to be proved by the
\nprosecution.  The demand of dowry, cruelty or
\nharassment based upon such demand and the date
\nof death should not be too remote in time which,
\nunder the circumstances, be treated as having
\nbecome stale enough”.\n<\/p>\n
(emphasis supplied)<\/p>\n
\tNoticing the earlier judgment of this Court in Sham Lal
\ncase it held that the facts were distinguishable as in that case
\nthere was evidence to show that an attempt had been made to
\npatch up between two sides for which a Panchayat was
\nconvened in which the matter was settled.  The Panchayat was
\nheld about 10-15 days before the occurrence.  There was
\nnothing on record to show that the deceased was either treated
\nwith cruelty or harassed with the demand of dowry during the
\nperiod between her having been taken to the nuptial home and
\nher tragic end.\n<\/p>\n
\tIn the instant case as well there is nothing to show that
\nthe demand had been given up or had been satisfied by the
\nparents of the deceased.  On the contrary there is evidence to
\nprove that even 15 days before the occurrence such a demand
\nwas reiterated and while leaving for her matrimonial home the
\ndeceased had wept and told her uncle that if the demand was
\nnot met, they will not let her live.  The facts of this case are
\nsimilar to the facts in the case of Kans Raj.  In our view the
\nsame principle must apply.  There is clear evidence on record
\nthat the demand for gold ornaments persisted and so did
\nharassment and cruelty meted out to the deceased.  Every time
\nshe came to her parents she wept and narrated her miserable
\nplight.  The last demand was made only fifteen days before her
\ndeath.  In these circumstances it cannot be said that there is no
\nevidence on record to support the finding that soon before her
\ndeath she was subjected to cruelty and harassment by the
\nappellants and her husband in connection with demand of
\ndowry.\n<\/p>\n
Learned counsel also submitted that the prosecution
\nevidence did not rule out natural or accidental death.  As we
\nhave noticed above, the deceased was a young girl and there is
\nno evidence even to suggest that she was suffering from any
\nailment.  15 days before her death she had gone to her
\nmatrimonial home in good health.  Suddenly one day her
\nparents came to know that she had died.  Her death was
\ntherefore, clearly in circumstances which cannot be considered
\nto be normal.  If she had really died a natural or accidental
\ndeath, the appellants were the best persons to disclose the
\nrelevant facts which were solely within their knowledge.
\nIndeed when all the conditions of Section 304B were fulfilled
\nand a presumption arose against the appellants they were
\nrequired to rebut that presumption in order to successfully
\ndefend themselves.  They did not do so. The evidence of DW-1
\nhas been rightly discarded by the courts below.  In these
\ncircumstances and in the absence of any acceptable evidence
\nwhatsoever, to suspect that the death may have been accidental
\nor on account of natural causes, will be speculative.  Law does
\nnot permit a Court to speculate or conjecture so as to imagine
\nevents about which there is absolutely no evidence on record.
\nThe manner in which the dead body was disposed of at night
\nhas further added to the incriminating circumstances proved
\nagainst the appellants.\n<\/p>\n
 We are, therefore, satisfied that the prosecution has
\nsuccessfully proved its case against the appellants.  We,
\ntherefore, concur with the view of the courts below and
\naffirming the conviction and sentence of the appellants, dismiss
\nthis appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Yashoda And Another vs State Of Madhya Pradesh on 4 February, 2004 Author: B Singh Bench: N. Santosh Hegde, B.P. Singh CASE NO.: Appeal (crl.) 431 of 1997 PETITIONER: Yashoda and another RESPONDENT: State of Madhya Pradesh DATE OF JUDGMENT: 04\/02\/2004 BENCH: N. SANTOSH HEGDE & B.P. SINGH JUDGMENT: J U […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-215309","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nYashoda And Another vs State Of Madhya Pradesh on 4 February, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/yashoda-and-another-vs-state-of-madhya-pradesh-on-4-february-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Yashoda And Another vs State Of Madhya Pradesh on 4 February, 2004 - 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