Narendra Singh vs State Of M.P.
2023 Latest Caselaw 6170 MP

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     IN THE HIGH COURT OF MADHYA PRADESH
                  AT GWALIOR
                        BEFORE
         HON'BLE SHRI JUSTICE RAVI MALIMATH,
                     CHIEF JUSTICE
                           &
      HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE

             CRIMINAL REVISION No.849 OF 2005

BETWEEN: -

NARENDRA SINGH S/O SHRI KARAN SINGH JAAT,
AGED 36 YEARS, R/O VILLAGE PACHKHORA,
POLICE STATION - INDERGARH, DISTRICT
GWALIOR
                                                 ....PETITIONER
(BY SHRI S.S. CHAUHAN - ADVOCATE - ABSENT)

AND

1.    STATE OF M.P. THROUGH POLICE STATION
      BIJOLI, DISTRICT GWALIOR

2.    KUSUMA W/O SHRI DURG SINGH, R/O
      VILLAGE HUIAH, POLICE STATION BIJOLI,
      DISTRICT GWALIOR

3.    MANISHA, W/O SHRI CHARAN SINGH,
      VILLAGE JAKHARA, POLICE STATION
      HASTINAPUR, DISTRICT GWALIOR

4.    BRIJMOHAN S/O TULSIRAM, R/O VILLAGE
      HUIAH, POLICE STATION BIJOLI, DISTRICT
      GWALIOR
                                               ....RESPONDENTS

(SMT. ANJALI GYANANI - GOVERNMENT ADVOCATE FOR
RESPONDENT NO.1)
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Reserved on        :     13.03.2023
Delivered on   :     18.04.2023
____________________________________________________________

       This revision having been heard and reserved for judgment, coming
on for pronouncement this day, the Court passed the following:

                                JUDGMENT

The present Criminal Revision under Section 397, 401 of Code of Criminal Procedure, 1973 has been preferred against the judgment dated 9.9.2005 passed by Special Atrocities Additional Sessions Judge, Gwalior in Sessions Trial No.140/2004, whereby present respondents no.2 and 3 have been acquitted from the charge under sections 498A, 304B and in alternate section 302 read with section 34 IPC and present respondent no.4 has been acquitted from the charge under section 302 read with section 34 IPC.

(2) The prosecution case in nutshell is that the deceased Rekha was married to one Shailendra four years back prior to the date of incident i.e. 13.12.2003. The present respondent No.2 is mother-in-law and respondent no.3 is sister-in-law of the deceased. On 13.12.2003 at about 2:00 in the afternoon PW.6, Tulsiram Kotwar of Gram Duiya made an oral complaint to the police that on the aforesaid date in between 10 to 11 AM Rekha W/o Shailendra had burnt herself in her house at Village Duiya and due to burn injuries she died and her dead body is lying in the house.

(3) On the basis of the information given by PW.6 Tulsiram the police registered a Merg at No.13/03. On the same day PW.7 Naib Tahsildar Mahendra Bihari went to the spot on directions issued by S.D.O. Revenue and prepared the dead-body memo and issued Safina form Ex.P.2 for calling the witnesses. On an information given by the Police Station Bijoli

Dr. Dinesh (PW.8) Forensic Scientist went to the spot on 13.12.2003 itself and prepared the spot map Ex.P.12 and submitted the inspection report Ex.P.11 to the S.H.O. Bijoli. Dr. Pooranlal Gupta (PW.10) and Dr. J.N. Soni (not examined) jointly on 13.12.2003 on the representation of the Police Station Bijoli conducted the autopsy at J.A. Hospital Gwalior and submitted the autopsy report (Ex.P.19). In the said autopsy report it was opined that the death of Rekha had occurred due to failure of heart and respiratory organs and for ascertaining the nature of death whether it is suicide/homicidal/accidental, it would be ascertained on the basis of circumstantial evidence and accordingly the nature of cause of death was not shown in the aforesaid report. PW.9 Pallavi S.D.O.P. Behat conducted the merg investigation and on 13.12.2003 went to the spot and collected an empty matchbox, half burnt clothes, one plastic can vide Ex.P.10 and prepared the another Spot Map Ex.P.14.

(4) During investigation statement of Narendra, Mahadevi, Meera, Kishan Singh, Hari Singh, Lalla and others were recorded by the police and it was found that the deceased Rekha was harassed by accused Shailendra, Kusuma and Manisha for demand of dowry. It was also found that Kusuma and Manisha were having illicit relationship with their neighbor accused Brijmohan to which deceased Rekha used to object and for the said reason Manisha, Kusuma and Brijmohan had burnt Rekha alive.

(5) On the basis of merg investigation on 23.12.2003 at about 6:30 PM FIR was registered against present respondents accused vide Crime No.115/2003 Ex.P.13 under section 302, 304B, 498A/34 of IPC. PW.9 Pallavi S.D.O.P. Behat after recording of the FIR conducted the investigation and recorded the statement under section 161 of Cr.P.C. of Meera and Kishan Singh on 23.12.2003 and statements of Narendra,

Mahadevi, Hari Singh and Lalla on 24.12.2003 and later-on on 25.12.2003 accused Brijmohan was arrested, likewise on 28.12.2003 accused Kusuma and on 11.2.2004 accused Manisha were arrested vide arrest memo Ex.P.15, Ex.P.16, Ex.P.17 respectively. On 26.12.2003 on memo of accused Brijmohan under section 27 of Evidence Act one gold ring was recovered from his house vide property seizure memo Ex.P.4 and likewise on the disclosure of accused Kusuma one iron rod was recovered from her house vide Ex.P.7 and absconsion memo of accused Shailendra was prepared vide Ex.P.18. The gold ring recovered at the instance of accused Brijmohan was got identified by PW.1 Meera, sister of the deceased Rekha who identified the said gold ring to be of deceased Rekha.

(6) After completion of the investigation, a challan was filed before the competent Magistrate and since the matter was triable by the Court of Session it was committed to the Sessions Court where it got registered at Sessions Trial No.140/2004.

(7) After a detailed scrutiny of the evidence available on record documentary as well as testamentary evidence the learned Trial Court held the offence under the aforesaid sections to be not proved against the present respondents and acquitted them from the aforementioned offence. Hence, the present revision has been filed by the petitioner i.e. the brother of the deceased.

(8) Learned counsel for the petitioner is absent. However, since this revision is of the year 2005, therefore, it is not appropriate to adjourn the matter.

(9) Heard learned Government Advocate for the State and perused the record.

(10) It is the case of the petitioner that the impugned judgment is perverse and illegal and deserves to be set aside. It is stated in the petition that since deceased Rekha had died within seven years of her marriage presumption as to dowry death was there under section 113B of the Evidence Act, which the learned Trial Court had not considered and thus erred in acquitting the accused respondents. It is further averred that learned Trial Court erred in not relying on statement of PW.1 Meera wherein she had specifically stated that whenever deceased Rekha used to come to her house, she used to tell her about the demand of Rs.50,000/- towards dowry made by respondents/accused no.2 and 3 and used to threat her that if she will not accept to their demand they will burn her alive, rather had treated the aforesaid testimony to be of general character, as there was no specific incident mentioned in her statement.

(11) It is also submitted therein that the learned Trial Court erred in disbelieving the statements of PW.1 Meera only on account of non- registration of any complaint with regard to demand of dowry with the police. It is further asserted that apart from the burn injuries in the postmortem report there is also mention of injury on the scalp by means of hard and blunt object and though respondent accused Manisha had confessed of causing injury by means of an iron rod which was recovered from her which makes it a fit case of her involvement in the incident, but learned Trial Court has ignored this aspect also. It is stated that the term "soon before" mentioned in section 304B IPC and section 113B of Evidence Act would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence and even if the demand of Rs.50,000/- was told by the deceased to her sister PW.1 Meera four months prior to the incident it cannot be said that it would not attract the term "soon before" as

envisaged under section 304B of IPC. It is also stated that the learned Trial Court erred in not appreciating that there was enough evidence to convict the respondent accused persons under section 498A of IPC as the prosecution witnesses i.e. PW.1 Meera, sister of the deceased and PW.2 Narendra, brother of the deceased had specifically stated about demand of Rs.50,000/- towards dowry. Reliance has been placed upon a judgment in the case of Ram Briksh Singh and others Vs. Ambika Yadav and another, (2004) 7 SCC 665 for the proposition that the Revisional Court can set aside an order of acquittal and remit the case for retrial where the Trial Court overlooked material evidence placed before it and had passed the order which had occurred in the present case. Further reliance has been placed upon the judgment in the case of Kunhiabdulla and another Vs. State of Kerala, reported in (2004) 4 SCC 13 for the proposition that no straight jacket formula can be laid down as to what constitutes a period of soon before the occurrence and it has to be determined by the Courts depending upon the facts and circumstances of each case. Reliance has also been placed upon the judgment in the case of State of Uttar Pradesh Vs. Sughar Singh and others, reported in 1978 CAR 62 (SC) for the proposition that burden of substantiating such plea and making it reasonably probable is upon the accused and when the accused could not substantiate his plea of alibi beyond reasonable doubt his plea is to be rejected and lastly the judgment in the case of State of A.P. Vs. Raj Gopal Asawa and another, reported in (2004) 4 SCC 470 has been relied upon to contend that proof of demand can be based on circumstantial evidence and inferences drawn from evidence that could be direct or indirect. Thus, the petitioner has prayed for setting aside the judgment dated 9.9.2005 and for directing to remand the matter to the Trial Court for fresh adjudication of the matter.

(12) It is a settled principle of law that for attracting the provisions of section 304B of IPC and section 113B of Evidence Act it is required to be proved that the death of a woman is caused by any burn or bodily injury or otherwise than other normal circumstances within seven years of her marriage and soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband or in connection with demand of dowry and it is only in such a case where the woman who is soon before her death has been subjected to cruelty or harassment in connection with any demand of dowry that the court shall presume that such person has caused the dowry death. In that context if the evidence which has been adduced by the prosecution is scrutinized it would be evident that prosecution witnesses PW.1 Meera sister of the deceased and PW.2 Narendra Singh brother of the deceased had made omnibus statement regarding demand of Rs.50,000/- against the respondents no.2 and 3 and it is stated that whenever she used to come to their house she used to tell them about the aforesaid demand and if demand is not fulfilled they would burn her to death, but in their cross-examination both the witnesses have admitted the fact that they have not reported any incident to the police previously with regard to the alleged harassment for demand of dowry and they had also admitted that they had never called any Panchayat of the community and tried to get the matter solved. PW.1 Meera had also admitted in her cross-examination that gold ring which he had identified as to that of her sister was brought by the police to her where she had made its identification.

(13) Thus, from the statements of PW.1 Meera and PW.2 Narendra it is very much evident that the prosecution utterly failed to prove that soon before the death the deceased was subjected to harassment with regard to demand of dowry. So far as other prosecution witnesses i.e. PW.3 Lalla

who was cousin of the deceased, PW.4 Kishan Singh, PW.5 Hari Singh and PW.6 Tulsiram had not utterd a single word with regard to any demand of Rs.50,000/- by the accused/respondents no.2 and 3 from the deceased.

(14) Thus, from the evidence available on record it is amply clear that the ingredients of section 304B of IPC are not attracted as prosecution has utterly failed to prove harassment of the deceased for demand of dowry soon before death. Thus, the learned Trial Court has rightly concluded that the provisions of section 304B are not attracted.

(15) So far as the involvement of present respondent no.4 in the incident is concerned Meera PW.1 had stated that the respondent no.2 and 3 were having illicit relations with the respondent no.4 and since her sister deceased Rekha used to object the same, the present respondent no.2 to 4 had burnt her alive. The statement of PW.1 Meera does not inspire confidence for the reason that it was for the first time that she had narrated the entire incident in her court statement. She had not stated anything before the police in her statement under section 161 of Cr.P.C. Also with regard to the identification of the gold ring which was alleged to have been recovered from respondent no.4 she had stated that police had brought it to her for identification where she had identified the said ring.

(16) With regard to illicit relationship of Respondents No.2 and 3 with Respondent no.4 the statements of PW.4 Kishan Singh had also been recorded, who had stated that respondent no.4 was having illicit relationship with the respondents no.2 and 3 and for that reason only they have killed Rekha, but in his cross-examination he had stated that story of illicit relationship has been narrated for the first time by him before the Court. Therefore, his statement also cannot be relied upon and learned

Trial Court had rightly rejected his testimony on the count of illicit relationship between respondent No.4 and the respondents No.2 and 3 which was said to be a cause of murder of deceased Rekha.

(17) With regard to the injury on the scalp of the deceased Rekha as mentioned in the postmortem report which is said to have been caused by accused Kusuma is concerned, PW.10 Dr. Pooran Lal Kushwah had specifically stated that such injury on the scalp was simple in nature and could have been caused due to fall on the ground after suffering burn injuries. Also the attesting witness to the seizure memo Hari Singh had refused that the iron rod was recovered in front of him. Thus, without any concrete proof it cannot be said that the deceased Rekha had suffered injury from the said iron rod on her scalp.

(18) Two defense witnesses DW.1 Santosh and DW.3 Surendra Singh were examined on behalf of the respondent no.2 to prove the plea of alibi that at the time of the incident respondent no.2 was not in the house and was in the field plucking vegetables. This fact had been corroborated by the statements of PW.6 Tulsiram Kotwar that at the time of incident respondent no.2 was on her agricultural field and he had called Kusuma from the field and had told her about the incident. Contradicting the aforesaid evidence witnesses there is no evidence by the prosecution on record that the deceased Rekha was forcibly burnt by present respondent no.2. Neither there is any evidence in the postmortem that the deceased Rekha had not died due to the burn injuries or was not alive at the time when she was burnt, as it could have been the best evidence which the prosecution could have gathered by getting examination of the wind pipe of the deceased Rekha and finding traces of carbon therein, which could have established as to whether she was alive or dead at the time when she

got burnt but nothing of that sort of examination was got conducted by the prosecution.

(19) Therefore, the learned Trial Court had rightly concluded that it is also not a case where the provisions of section 302 of IPC would be attracted.

(20) In the light of the above discussion the conclusion arrived at by the learned Trial Court that the prosecution had utterly failed to prove any demand of dowry, harassment with regard to demand of dowry soon before the death or the death being homicidal in nature cannot be faulted with and therefore, the judgment passed by the learned Trial Court needs no interference.

(21) So far as the judgment in the matter of Ram Briksh Singh (supra) relied upon by the petitioner is concerned since this Court has concluded that learned Trial Court has not committed any illegality or have not overlooked any material evidence available on record the proposition of law as made by the Hon'ble Supreme Court in the aforesaid matter is not attracted in the present case.

(22) So far as the judgment in the matter of Kunhiabdulla (supra) which relates to facts attracting the provisions of section 304B IPC read with section 113-B of Evidence Act is concerned the prosecution since could not lead any evidence that soon before her death the deceased was subjected to harassment with relation to demand of dowry the present case has no applicability.

(23) With regard to the judgment rendered in the case of Sughar Singh (supra) the plea of alibi taken by the respondent no.2 so far as her involvement under section 302 of IPC is concerned the statement of the

defense witnesses since being duly supported by PW.6 Tulsiram it can be said that the accused/Respondent No.2 had substantiated her plea of alibi beyond reasonable doubt. Thus, the aforesaid judgment is also not applicable in the present facts and circumstances of the case. With regard to the judgment in the matter of Raj Gopal Asawa (supra) the prosecution could not prove the fact nor the complainant could place any circumstances which could demonstrate the fact of demand of any dowry soon before the death of the deceased. Hence, it is also not applicable in the present case.

(24) In the light of the aforesaid discussion, the revision fails and is hereby dismissed.

                       (RAVI MALIMATH)                (MILIND RAMESH PHADKE)
                         CHIEF JUSTICE                         JUDGE


Pawar/-

    ASHISH PAWAR
    2023.04.25
    11:41:58 +05'30'