Madhya Pradesh High Court
Manendra Singh vs The State Of Madhya Pradesh on 17 March, 2023
Author: Rajendra Kumar (Verma)
1 CRA NO.1786 OF 2014
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
ON THE 17th OF MARCH, 2023
CRIMINAL APPEAL No. 1786 of 2014
BETWEEN:-
1. MANENDRA SINGH S/O MOHAN
SINGH, AGED ABOUT 29 YEARS,
OCCUPATION: JAIL SUPERINTENDENT
VILL. KHUTEHI, DISTRICT REWA,
(MADHYA PRADESH)
2. HARI SINGH S/O AMAR SINGH, AGED
ABOUT 29 YEARS, 62-B VANDANA NAGAR
INDORE (MADHYA PRADESH)
3. MOHAN SINGH S/O RAM PRATAP
SINGH, AGED ABOUT 56 YEARS,
OCCUPATION: TAHSILDAR, TAHSIL ROUN,
DISTT. BHIND, M.P. R/O VILL. KHUTEHI
DISTT. REWA, (MADHYA PRADESH)
2 CRA NO.1786 OF 2014
4. JAGENDRA SINGH S/O MOHAN SINGH
PARIHAR, AGED ABOUT 37 YEARS,
OCCUPATION: PATWARI AMALKI VILL.
KHUTEHI DISTT. REWA (MADHYA
PRADESH)
5. SMT. SHRADDHA SINGH W/O
JAGENDRA SINGH, AGED ABOUT 31 YEARS,
OCCUPATION: EXCISE SUB INSPECTOR
DISTT. SATNA VILL. KHUTEHI DISTT. REWA
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI MANISH DATT - SENIOR ADVOCATE WITH SHRI SIDDHARTH K
SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH,
THROUGH P.S. CITY KOTWALI, DISTRICT
KHANDWA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ADITYA GUPTA - PANEL LAWYER FOR THE STATE)
&
(SHRI SHIVAM SINGH - ADVOCATE FOR THE OBJECTOR)
Reserved on : 02.03.2023
Pronounced on : 17.03.2023
3 CRA NO.1786 OF 2014
This Criminal appeal having been heard and reserved for judgment, coming on for
pronouncement this day, Hon'ble Shri Justice Rajendra Kumar (Verma) delivered
the following :
JUDGMENT
This criminal appeal has been preferred under Section 374 (2) of the Cr.P.C,
1973 against the judgment dated 30.06.2014 passed by First Additional Sessions
Judge, Khandwa District Khandwa (M.P.) in ST No.169/2010 whereby, learned
Sessions Judge found the appellants guilty for the offence punishable as under :-
S.NO. NAME OF CONVICTION SENTENCE FINE IMPRISONMENT
APPELLANT UNDER SECTION IN LIEU OF FINE
1 MANENDRA 306 OF IPC RI FOR 10 YEARS Rs.50,000/- 1 YEAR RI
SINGH
304-B of IPC RI FOR 10 YEARS NA NIL
498-A OF IPC RI FOR 2 YEARS Rs.10,000/- 3 MONTHS RI
120-B OF IPC RI FOR 10 YEARS Rs.50,000/- 1 YEAR RI
3 / 4 OF DOWRY RI FOR 1 YEAR Rs.10,000/- 1 MONTH RI
PROHIBITION
ACT
2. HARI SINGH 306 OF IPC RI FOR 7 YEARS Rs.50,000/- 6 MONTHS RI
304 - B RI FOR 7 YEARS NIL NIL
498 - A RI FOR 1 YEARS Rs.10,000/- 1 MONTH RI
120-B RI FOR 7 YEARS Rs.50,000/- 6 MONTHS RI
4 CRA NO.1786 OF 2014
3 / 4 OF DOWRY RI FOR 1 YEAR Rs.10,000/- 1 MONTH RI
PROHIBITION
ACT
3 MOHAN 306 OF IPC RI FOR 10 YEARS Rs.50,000/- 1 YEAR RI
SINGH
304 - B of IPC RI FOR 10 YEARS NA NIL
498-A OF IPC RI FOR 2 YEARS Rs.10,000/- 3 MONTHS RI
120-B OF IPC RI FOR 10 YEARS Rs.50,000/- 1 YEAR RI
3 / 4 OF DOWRY RI FOR 1 YEAR Rs.10,000/- 1 MONTH RI
PROHIBITION
ACT
4 JAGENDRA 306 OF IPC RI FOR 10 YEARS Rs.50,000/- 1 YEAR RI
SINGH
304-B of IPC RI FOR 10 YEARS NA NIL
498-A OF IPC RI FOR 2 YEARS Rs.10,000/- 3 MONTHS RI
120-B OF IPC RI FOR 10 YEARS Rs.50,000/- 1 YEAR RI
3 / 4 OF DOWRY RI FOR 1 YEAR Rs.10,000/- 1 MONTH RI
PROHIBITION
ACT
5. SHRADDHA 306 OF IPC RI FOR 7 YEARS Rs.50,000/- 6 MONTHS RI
SINGH
304 - B RI FOR 7 YEARS NIL NIL
498 - A RI FOR 1 YEARS Rs.10,000/- 1 MONTH RI
5 CRA NO.1786 OF 2014
120-B RI FOR 7 YEARS Rs.50,000/- 6 MONTHS RI
3 / 4 OF DOWRY RI FOR 1 YEAR Rs.10,000/- 1 MONTH RI
PROHIBITION
ACT
2. The case of the prosecution in nutshell is that on dated 05.05.2009, the
engagement ceremony was organized of the appellant No.1 with the deceased
Shweta Singh wherein amount of Rs.10,00,000/- was demanded from PW-1 and
was given by him thereafter again an amount of Rs.5,00,000/- and Bolero Jeep was
given on dated 16.06.2009 on the occasion of Tilak Ceremony, thereafter, marriage
of the appellant No.1 was solemnized with the deceased at Bhopal on dated
22.06.2009. After solemnization of marriage deceased Shweta Singh went to Rewa
with her in-laws wherein appellants No .2 to 5 is alleged to have taunted her for not
bringing 50 tola gold jewellery and amount of Rs.2,00,000/- and Rs.1,00,000/-,
thereafter, it was alleged that illicit relation of the appellant No.1 was there with
one Smriti Singh and after the harassment meted out to the deceased in the hands
of the appellants, it is so alleged that deceased committed suicide by hanging
herself at the District Khandwa residence where appellant No.1. On the basis of
aforesaid, Merg No.86/2009 (Ex. P-106C) was registered thereafter statements
were recorded and accordingly police of Police Station City Kotwali, District
Khandwa registered an FIR (Ex.P-29) on Crime No.750/2009 for the offence
punishable under Section 306, 498-A of IPC and 3/4 of Dowry Prohibition
Act,1961. During investigation, the investigating agency prepared spot map,
recorded the case diary statements of the witnesses and after following the due
process, filed the charge-sheet before the competent Court of law against the
appellants.
6 CRA NO.1786 OF 2014
3. Appellants were charged for offence punishable under Sections120-B, 304-B
in alternative 302, 306, 498-A of IPC and Section 3/4 of Dowry Prohibition Act,
1961. The appellants abjured their guilt and took a plea that they have been falsely
implicated in the present crime and prays for trial.
4. In support of the case of the prosecution, the prosecution has examined as
many as 24 witnesses namely (PW-1) Raghvendra Singh (Father of deceased),
(PW-2) Piyush Kumar Singh (Brother of deceased), (PW-3) Sushila Singh (Mother
of deceased), (PW-4) Dr. T.P. Singh (Uncle of deceased and Son of real Maternal
Uncle of father of deceased), (PW-5) Sudhir Singh, Forest Officer (Ranger)
(Subordinate employee of deceased's father PW-1), (PW-6) Ku. Bhawna Patidar
(Friend of deceased), (PW-7) Dr. Bhushan (Medical Officer), (PW-8) Akhilesh Ku.
Khare, SDO (Forest) (Neighbour and Departmental Friend of father of deceased),
(PW-9) Ramesh Kumar Channa, (PW-10) Govardhan Prasad (Waiter of Hotel
Kalindi Palace, Bhopal), (PW-11)Firdiyus Toppo (Head Constable), (PW-12)Balvir
Singh, (PW-13)Dr. M. Ubeja (Pregnancy Check-up Dr. of deceased at Khandwa),
(PW-14) Ravindra Bhagat, Constable, (PW-15) Bhakti Soni (Junior Telecom
Officer of BSNL, (PW-16) K.S. Bhooriya, D.S.P. (Investigating Officer), (PW-17)
Hushain Chacha, (PW-18) Balram Singh Pandav, Constable, (PW-19) Phooldar,
Additional Tehsildar, (PW-20) Mukesh Kumar Vaishya, C.S.P.,Khandwa, (PW-21)
Suresh Kumar Nasheene, D.S.P., (PW-22) Saiyad Ajajuddin, Senior Scientist
Officer, (PW-23) Champalal Solanki, Head Constable and (PW-24) Ramvishal
Tiwari, ASI. Thereafter, examination of appellants were done under Section 313 of
Cr.P.C. The appellants have pleaded their false implication in the matter. In support
of their defence, they examined 13 witnesses namely (DW-1) Umesh Gandhi, DIG
(Jail), (DW-2) Diwakar Singh Sikarwar, Psychologist, (DW-3) Ramesh Kumar
Nigam (Retired Sub Engineer), (DW-4) Rajkumar Tripathi, Sub Jail
Superintendent, Circle Jail Seoni, (DW-5) Laxmi Bai (Maid of appellant), (DW-6)
7 CRA NO.1786 OF 2014
Pooran Singh, Jail Prahri, (DW-7) Umakant Sharma, Revenue Inspector, (DW-8)
Shri V.K. Pandey, Assistant District Excise Officer, (DW-9) Shri Sanjay Tiwari,
Assistant Excise Commissioner, Gwalior, (DW-10) Shri Sohail Ali, Secretary,
Revenue Board, (DW-11) Shri Radheshyam Vijayvargi, Jail DIG (Law), (DW-12)
Shri Sudheer Saryam, Assistant Grade-III, Jail Headquarter, Bhopal, (DW-13) Shri
Anant Kumar Pandey, Accountant, Jail Headquarter, Bhopal.
5. Learned trial Court after appreciating the oral as well as documentary
evidence available on record, convicted the appellants as mentioned above in para
1. Being aggrieved by the said judgment and sentence, appellants have preferred
this appeal for setting aside the impugned judgment and sentenced them from the
charges levelled against them.
6. Learned Senior Counsel for the appellants submitted that learned trial Court
had framed seven points for consideration. The point No.1 relates to nature of
death of deceased. The learned trial Court from para 29 to 34 gave a finding that
the deceased had died on account of strangulation which was found to be suicidal
in nature which is clear from the post mortem report (Ex.P-4) as well as deposition
of PW-7. Autopsy Surgeon wherein it is opined that no external injury was found
on the person of deceased, which proves that no marpeet was done by accused
persons. In regard to point No.2, the learned Senior Counsel submits that offence
punishable under Section 306 of IPC, the learned trial Court from para 35 to 50 has
found that ingredients of Section 306 of IPC are found to be proved. However, as
per the deposition which is recorded before the learned trial Court which states that
appellants were abetting the deceased to commit suicide (although the
contradictions, omissions and improvements cannot be ignored which are carved in
their testimony), the offence under Section 306 of IPC is not made out against the
appellants. It is further submitted that it may be cause to commit suicide on
account of sexual jealousy etc. but it cannot be equated with the abetment to
8 CRA NO.1786 OF 2014
commit suicide. In this regard, learned Senior Counsel for appellants placed
reliance on the law laid down by the Hon'ble Apex Court in cases of Pinakin
Mahipatray Rawal Vs. State of Gujarat; (2013) 10 SCC 48, Ghusabhai
Raisangbhai Chorasiya Vs. State of Gujarat; (2015) 11 SCC 753 and K.V.
Prakash Babu Vs. State of Karnataka; (2017) 11 SCC 176.
7. It is further contended by the learned Senior Counsel for appellants that
appellant No.2 is not to be covered under Section 498-A of IPC because he is not
relative of the appellant No.1 by blood, marriage or adoption. As referred to in
Section 498-A of IPC in this regard, reliance is being placed on the judgment of
Hon'ble Apex Court passed in case of U. Suvetha vs. State By Inspector of Police
and another; (2009) 6 SCC 757 and Vijeta Gajra Vs. State of NCT of Delhi;
(2010) 11 SCC 618. It is further submitted by the learned Senior counsel that a
demand of dowry was made in the shape of cash as well gold ornaments is
concerned it has been submitted in detail that the said finding of the learned Trial
Court cannot said to be in accordance to the law for the simple reason that learned
Trial Court has taken into account only examination in-chief of prosecution
witnesses by totally ignoring the contradictions, omissions and improvements that
have arrived at in their cross examination. That after going through the each and
every prosecution witness has been drawn up wherein contradictions, omissions
and improvements are shown. Thus, looking to the contradictions, omissions and
improvements came in the testimony of prosecution witnesses, it is not proved that
soon before her death, the deceased was subjected to cruelty or harassment by her
husband or any relative of her husband for or in connection with any demand of
dowry.
8. Learned counsel for the appellant has placed heavy reliance on the law laid
down by the Hon'ble Apex Court in cases of Meka Ramaswamy Vs. Dasari
Mohan and others; (1998) SCC (Cri) 604, Smt. Sarla Prabhakar Waghmare vs
9 CRA NO.1786 OF 2014
State Of Maharashtra And Others; 1990 Cr.L.J. 407, State of Himachal Pradesh
Vs. NikkuRaml; (1995) 6 SCC 219, Biswajit Halder @ Babu Halder &
Ors.vs. State of West Bengal, (2008) 1 SCC 202, Madivallappa V. Marabad and
others; (2014) 12 SCC 448, S. Anil Kumar Alias Anil Kumar Ganna V. State of
Karnataka; (2013) 7 SCC 219, Hiralal and another Vs. State (Government LCT)
Delhi (2003) 8 SCC 80, Gurdeep Singh V. State of Punjab and others; (2011) 12
SCC 408, Shindo Alias Sawinder Kaur V. State of Punjab; (2011) 11 SCC 517,
Baijnath and Others V. State of Madhya Pradesh; (2017) 1 SCC 101, Bibi
Parwana Khatoon alias Parwana Khatoon and another V. State of Bihar; (2017)
6 SCC 792, Harjit Singh Vs. State of Punjab; (2006) 1 SCC 463, M. Srinivasulu
V. State of A.P.; (2007) 12 SCC 443, Amar Singh Vs. State of Rajasthan; (2010) 9
SCC 64, Ananda Bapu Punde Alias Koli Vs. Balasaheb Anna Koli and others;
(2017) 4 SCC 642, Bhola Ram V. State of Punjab; (2013) 16 SCC 421, Sher
Singh Alias Partapa Vs. State of Haryana; (2015) 3 SCC 724 and Girish Singh
V. State of Uttarakhand; (2020) 18 SCC 423.
9. It is further contended by the learned senior counsel that under the
provisions of the section 479 of Cr.P.C , 1973, the presiding officer who has passed
the impugned judgment and sentence was the interested party as where the
appellant No.3 was posted as Tehsildar proceedings under the provisions of section
114 of MPLRC, 1959 were pending wherein presiding officer who has passed the
impugned judgment and sentence was himself a party No. 1 and in this regard
documents have been filed with I.A No.5089/2023 to show that presiding officer
was demanding favour and the said impugned judgment and sentence has resulted
in failure of justice to the appellants.
10. Per contra, it is submitted by the learned counsel for the State as well as
counsel for Complainant/objector that prosecution has proved beyond reasonable
doubt that death of the deceased took place within seven years of marriage and it is
10 CRA NO.1786 OF 2014
further submitted that the cogent reasons have been assigned by the learned trial
Court by placing reliance upon the evidence of prosecution witnesses. The
deceased was harassed and maltreated by the appellants because of non-fulfilment
of their demand of dowry and the deceased was treated with cruelty just soon
before her death.
11. I have heard learned counsel for the parties at length and perused the
materials available on record.
12. In the present case, the learned trial Court framed seven points for -
consideration. The point No.1 relates to nature of death of the deceased. As far as
with regard to point No.3 and 7 are concerned, these two points relate to dowry
death as envisaged under Section 304-B of IPC. So far as the dowry death is
concerned, the prosecution is obliged to prove that soon before her death, the
woman was subjected to cruelty by her husband or any relative to her husband for,
or in connection with demand of dowry. In explanation to this section, the
legislature has explained that the term "dowry" has the same meaning as envisaged
under Section 2 of Dowry Prohibition Act. It is settled principle of criminal
jurisprudence that until and unless the prosecution places cogent and convincing
evidence in such a manner that all the essential ingredient of alleged
offence/section are made out, the accused/appellant cannot be liable for the same.
By testing the above said ingredients under Section 304-B of IPC whether the
findings recorded by the learned trial Court from para 51 to 69 can be said to be in
accordance with law. Thus in order to appreciate the verdict of impugned
judgement, it is profitable to go through the entire record of trial court and certain
important aspects are as follows:-
13. Findings of learned trial Court regarding the testimony of PW/1
Raghvendra Singh
11 CRA NO.1786 OF 2014
While considering Point No.3 and 7, in para-52 of the impugned judgment,
the testimony of (PW-1) Raghvendra Singh, who is the father of deceased, the
learned trial Court arrived at a conclusion that there is no effective cross-
examination on behalf of the accused persons upon this witness.
14. Appreciation of testimony of (PW-1) Raghvendra Singh -
I. The learned trial Court has not at all considered the statement of
Raghvendra Singh (PW-1), who is the father of the deceased Shweta
Singh. In para 19 of his cross-examination this witness has admitted
that he is not having receipt of purchasing the gold ornaments which
he gifted to his daughter in the marriage. Although he has stated that
when ornaments were purchased, he did not remember because he
often used to come to Rewa. The ornaments which he bought and
which are mentioned in Ex. D/1, he is not having its bill.
II. The suggestion which was given to him that the ornaments which
have been described in (Ex.D-1) were in the ownership of appellant
No.1 Manendra Singh were desired by him. That without preparing
the seizure memo in that regard by police, the ornaments was given
back to PW-1.
III. PW/1 has admitted that the ornaments were given by police officers
without obtaining any order from the Court. Further this witness has
admitted on 18.12.2009 (The date when the deceased was found in
hanging position in the official premises of Jailor in which the
appellant No.1 Manendra Singh was serving ) he did not give any list
to the investigating agency by saying that he gave these ornaments to
his deceased daughter Shweta Singh.
12 CRA NO.1786 OF 2014
IV. In para 22 of his cross-examination Raghvendra Singh PW/1 further
admitted that it is in his personal knowledge that appellant No.1
Manendra Singh (husband of the deceased) is having his own Swift
Car.
V. Though in examination in chief PW/1 Raghvendra Singh (Father of
the deceased) in his examination in chief has deposed that the accused
persons made a demand to provide Bolero Jeep which was provided to
them, however, the Jeep is in the name of Raghvendra Singh (PW/1)
the other papers of Bolero Jeep are also in his name. In para - 22 PW/1
has admitted that appellant No.3 Mohan Singh is having his own
Ambassador Car as well as official government vehicle is provided to
him. Mohan Singh (father-in-law of deceased) is serving on the post
of Tahsildar and he is having his own Ambassador Car prior to the
marriage of deceased and appellant No.1 Manendra Singh (husband)
is having his own Swift Car. This witness has admitted that
3rdappellant Mohan Singh is serving on the post of Tahsildar but he
has put his ignorance that government vehicle is provided to Tahsildar.
VI. In para 23 of his cross-examination PW/1 Raghvendra Singh admitted
that he bought TVS Scooty in 2008 or 2009 earlier to the marriage of
his daughter deceased Shweta Singh, which was being used by Shweta
regularly as well as by family members of PW/1. Similarly the
computer which was given to the appellants was an old one and was
being used by the family members of PW/1, namely, Piyush (Son of
PW/1) and Shweta (deceased) before her marriage. In same para 23
PW/1 has further admitted that one year prior to the marriage of the
deceased he was having one computer in his house and this old
13 CRA NO.1786 OF 2014
computer was given to Manendra Singh (husband), Mohan Singh
father- in- law of deceased. In the same para he has stated that in the
month of July or August 2009 when appellant No.1 Manendra Singh
was posted at Bhopal at that juncture PW/1 gave fridge and TV.
VII. In para-24 of his cross-examination PW/1 has deposed that Rs.
10,00,000/- were given to accused persons by taking loan from
relatives and friends. Further he has deposed in same para 24 that so
as to give Rs. 5,00,000/- to the accused persons, he withdrew some
amount from GPF part final and some money was withdrawn from
LIC and some of the money he withdrew by taking loan from post
office and PPF final part. In the same para 24 PW/1 Raghvendra
Singh has admitted that he did not inform the investigating agency
how he managed the amount of Rs. 10,00,000/- and 5,00,000/-
because the investigating agency did not ask any question from me in
this regard. He has categorically admitted that how he managed to
collect Rs.10,00,000/- and Rs.5,00,000/- is being stated in the Court
very first time.
VIII. In Para 13 of cross examination, PW-1 stated that when the
engagement of deceased finalised, accused namely Mohan Singh was
posted at Bhind as Tehsildar, Co-accused Jagendra Singh was posted
at Rewa as Patwari and another co-accused Shradha Singh at Satna as
Sub-inspector of Excise department.
IX. In para 32 of his cross-examination PW/1 has stated that after the
engagement appellant Mohan Singh, Manendra Singh and Jagendra
Singh made demand of Rs.10,00,000/- and Rs.5,00,000/-.Eventually,
14 CRA NO.1786 OF 2014
PW/1 sent Rs.10,00,000/- through Dr Tej Pratap Singh (T.P. Singh)
PW/4 by taking loan from him by requesting him to give that amount
in the house of Manendra Singh at Rewa, but in the cross examination
PW/4 Dr. T.P. Singh has denied and stated that he has not given
Rs.10,00,000/- to PW/1 Raghvendra Singh for giving it to the accused
in Rewa. However, why this fact did not find place in his police
statement Ex. D/2 he cannot state the reason. Further, he has admitted
that in the last week of May, Mohan Singh, Jagendra Singh, Hari
Singh came to his home at Bhopal and demand of Rs. 5,00,000/- was
not stated to him in his police statement Ex. D/2.
X. Similarly, the factum of making demand of gold chain for all family
member on the occasion of 'Dwarchar', but since he could not
manage to provide gold chain to every family members at that time,
therefore, he only gave one gold chain to Mohan Singh (father in law
of deceased), does not find place in his case police statement Ex. D/2
and the reason he cannot say.
XI. In para-33 of his cross-examination PW/1 Raghvendra Singh has
admitted that 5th appellant Smt. Sharadha Singh (Jethani of deceased)
did not attend the marriage at Bhopal. This witness put his ignorance
that on 23rd June, 2009 said accused Sharadha Singh went to attend
her duty at Satna at 7 O'clock in the morning. Although he himself
stated that the deceased told him that Jeth, Jethani Saas, Sasur,
Nandoi, all of them were in the home but this fact find place in case
diary statement Ex. D/2.
15 CRA NO.1786 OF 2014
15. Findings of learned trial Court regarding testimony of Piyush
Kumar Singh PW/2-
I. In Para 57th learned Trial Court has considered only the examination in
chief part of this witness and in para 58 straightway learned trial Court
came to the conclusion that in defence no cross examination was put
forth and the defence did not put any cross examination.
II. The learned Trial Court in para 57 held that looking to the statement
made by this witness in para 2 of his examination in chief that
appellant No.1 Manendra Singh kept Smriti Singh in his official
residence at Bhopal by hiding her. This was seen by PW/2's parents
(also the parents of the deceased). Further in the same para of his
examination in chief PW/2 Piyush Kumar Singh (brother of deceased)
that when appellant No.1 Manendra Singh had gone for the
preparation of his Public Service Commission Exam at Delhi, during
that period he carried away said 6th accused Smriti Singh (who later on
discharged) with him and stayed with her for fifteen days at Delhi.
Further, PW/2 says that when his deceased sister Shweta became
pregnant at that juncture appellant No.1 deceased husband Manendra
Singh was continuously saying to her for abortion. Despite the
Doctors refused for abortion.
III. In para 58 the learned trial Court by taking into consideration of the
testimony of this Witness PW/2 Piyush Kumar Singh in para 3 of his
examination in chief was saying to the deceased to get done the
abortion and should live separately from him. The learned trial Court
by taking into consideration para 4 of the examination in chief of this
witness has given the finding that on 17.12. 2009 in between 6 to 6:30
16 CRA NO.1786 OF 2014
pm (soon before the death) the deceased on phone told this witness
that she is very much in trouble and by weeping she told that appellant
No.1 Manendra Singh told that if you do not get the pregnancy
aborted, he will kill her. Eventually, this witness PW/2 stated this fact
to his father Raghvendra Singh PW/1 on phone.
IV. The learned trial Court simply by saying that on aforesaid statements
made in examination in chief from para 1 to 4 the appellants did not
chose to cross-examine. Which is a glaring mistake on the part of the
learned trial Court? The approach so adopted by it is wholly
unwarranted under the law because the learned trial Court has not at
all considered the contradictions, omissions, and improvements.
16. Appreciation of testimony of (PW-2) Piyush Singh-
I. PW-2 has deposed that it is wrong to say accused persons never made
demand of Bolero Vehicle. He has also denied the suggestion that the
factum of making of demand of Bolero Vehicle has been thrusted. By
his own this witness has deposed that appellant No.3 Mohan Singh
made his signature on delivery chalan of vehicle on 15.06.2009 (no
delivery chalan is on record and was never exhibited) although PW/2
has admitted that said Bolero Vehicle was bought in the name of his
father and his name is being continued even today. This witness has
also admitted that the insurance of the vehicle is also in the name of
his father. Although this witness has denied the suggestion that on
delivery chalan of Bolero Vehicle Mohan Singh ever signed. It be
noted that the examination in chief of PW/2 was recorded on
17 CRA NO.1786 OF 2014
25.03.2011 and the cross-examination was deferred for the next date.
The cross-examination of this witness was started on 19.05.2011.
II. In para -12 of his cross-examination, he has admitted that earlier the
statement which he has made in Court (i.e. in examination in chief) he
did not give any statement of the list of ornaments. The factum of
handing over all the ornaments by Superintendent of Police to his
father has been admitted by this witness. This witness has further
stated that no list of ornaments was prepared by him.
III. In para-13 of his cross examination he has admitted that for three
hours neither this witness nor his father lodged any report. Further he
has admitted that Superintendent of Police entrusted the ornaments to
his father those ornaments they carried with them and came to forest
rest house. In cross examination para -13 a question were put to this
witness that who wrote the report this witness or his father? In answer
to the said question PW/2 deposed that first of all his father went
inside and lodged the report and thereafter he lodged the report.
IV. In para 15 of his cross examination this witness PW/2 Piyush Kumar
Singh has admitted that factum of making of demand of
Rs.10,00,000/- and Rs.5,00,000/-, total fifteen lacs which was given to
the accused persons did not find place in Ex. D/15 and he never stated
such a statement to police in Ex. D/15. Further this witness has
admitted that he did not state to the police in his police statement
Ex.D/15 that on the second day his sister became ready to go at the
home and eventually along with mother and father she did go the
government official residence of appellant No.1 Manendra Singh and
18 CRA NO.1786 OF 2014
she found that appellant No.1 Manendra Singh hide the presence of
discharged accused No.6 Smriti Singh in one room and locked it from
outside, as a result of which the parents of PW/2 went away without
entering inside the home. All these facts, this witness never stated to
police in his police statement Ex.D/15.
V. Although this witness admitted that his second statement was recorded
after two months on 11.02.2010. Further this witness has categorically
admitted that his sister told him that on her mobile phone accused
Smriti Singh was giving threat to her and was forcing to obtain divorce
from appellant No.1 Manendra Singh because she wants to marry him,
was never stated by this witness PW/2 to police in his police statement
Ex.D/15.
VI. This witness has admitted that he never told to investigating agency in
his police statement Ex. D/15 that his sister (deceased) told him to
install the songs in his Nokia Mobile Phone in which she has inserted
his SIM having no. 94065 - 43637. PW/2 further admitted that he
installed the software of voice recording in the phone of his sister
(deceased). This witness further admitted that in his police statement
Ex.D/15 he never told to investigating agency that whenever she
interacts with any other persons or any call is received by her, those
conversations will be saved in her mobile phone. This fact also did not
find place in case diary statement Ex. D/15 that earlier to 17.12.2009
(the date when deceased put her life to an end). Whenever Manendra
used to call his sister by sending SMS troubling her and gave threat to
his sister all those conversations and SMS were saved in said mobile.
This witness has further admitted that all these facts have been stated
19 CRA NO.1786 OF 2014
by him in his second statement to the police dated 11.02.2010 for the
first time.
VII. In para 16 of police statement Ex. D/15 this witness has admitted that
he did not state to police personnel that his sister deceased told him
that song be installed in mobile phone. He has also deposed that in
SIM number 940654 3637 he installed voice recording software but
this statement does not find place in police statement
Ex.D/16.Similarly in his police statement Ex. D/15 PW-2 told to the
officer who recorded the police statement that whoever will call his
sister (deceased) or if she interact with some other person
automatically the voice is saved in her mobile. Further he has deposed
that earlier to 17/12/2009 (date of death of deceased) appellant No.1
Manendra Singh, whenever he used to call the deceased and sent SMS
to her and give threat to the deceased all those conversations were
saved in the mobile. This witness on his own deposed that he stated to
police persons all these facts. He has admitted that for the first time on
11.2.2010 he has stated this fact to police persons.
VIII. In para 19 appellant No.1 Manendra Singh carried discharged accused
No.6 Smriti Singh to Delhi. This fact was told by his sister (the
deceased) in the month of October. On being asked by this witness to
the deceased how she came to know that her husband appellant No.1
Manendra Singh carried discharged accused No.6-Smriti Singh as his
wife, with him, the deceased told that her husband Manendra Singh
(appellant No.1) told her that he carried Smriti Singh with him and
they stayed in Delhi for 15 days.
20 CRA NO.1786 OF 2014
IX. In para- 21 this witness PW/2 has deposed that software voice
recording was installed only in the mobile having SIM number 940654
3637 when it was given to deceased. The deceased was aware that it
contains voice recording software.
X. In para-22 this witness has admitted that third accused Mohan Singh
(father-in-law of deceased) handed over horoscope to get horoscope
matched with that of deceased Shweta. Although suggestion has been
denied by this witness that Mohan Singh told his father that Manendra
Singh is 'Manglik' and if the horoscope did not match life of wife will
be put in danger. Further this witness has stated that his father did not
get horoscope match is not correct. By his own, this witness has stated
that his father got the horoscope matched with each other.
XI. However, the statement of PW/2 in para 22 is altogether different from
the statement made by his father PW/1 Raghvendra Singh. In this
regard para-28 of the testimony of PW/1 Raghvendra Singh is to be
taken into consideration in which he has stated that Mohan Singh did
not tell that after the horoscope are matched by astrologer thereafter
only the ring ceremony will be solemnised.
XII. Further PW/1 in para-28 has deposed that on account of 'Manglik'
several persons who contacted with appellant No.1 did not match on
account of Manendra Singh being Manglik. Further PW/1 has
admitted in para-28 that Astrologer matched horoscope of Manendra
Singh and Shweta and stated that they are matching with each other.
Further in the same para-PW/1 says that Manendra Singh is 'Manglik'.
This fact is incorrect.
21 CRA NO.1786 OF 2014
XIII. In para-28 PW/2 has deposed and admitted that appellant No.2 Hari
Singh is a resident of Indore but he has put his ignorance that he is
dealing with real property. However, PW/1 Raghvendra Singh in his
cross-examination para- 43 has put his ignorance that appellant No.2
Hari Singh is the resident of Indore.
XIV. In para-29 of cross examination of PW/2, he has admitted that
appellant No.2 Hari Singh is not the real son- in- law of appellant No.3
Mohan Singh (father-in-law of the deceased). On being cross
examined by the Counsel for the appellant No.5 Smt. Shraddha Singh
in para-31 PW/2 has admitted that on the festival of Bhaidooj of
Deepawali, the deceased did not come to Bhopal.
XV. In para-32 this witness has admitted that appellant No.5 Smt. Shraddha
Singh is serving on the post of Excise Sub-Inspector. This witness put
his ignorance that w.e.f. 24.11.2009 to 29.11.2009 appellant No.5 Smt.
Shraddha Singh was on leave to appear in PSC examination. This
witness has categorically admitted that w.e.f 25.11.2009 sister of
deceased was residing with him at Bhopal. This suggestion was put to
him that during this period, appellant No.1 Manendra Singh was at
Rewa was denied by this witness, however this witness has put his
ignorance that he had no knowledge that the appellant No.1
examination centre was at Rewa and he did go to appear in the
examination at Rewa.
XVI. By confronting his case diary statement Ex.D/15 this witness has
admitted that he did not say this fact to police that appellant No.1
Manendra Singh was pressurizing deceased to do a job.
22 CRA NO.1786 OF 2014
17. Findings of learned trial Court regarging testimony of Sushila
Singh (PW-3) -
I. In para 59 it has been held by learned Trial Court that there is no cross
examination upon testimony of Sushila Singh which is all together
incorrect because there are several contradictions, omission and
improvements came in the statement of PW/3 Sushila Singh which are
given in detail in below paras. In para -3 of the deposition of PW/3
Sushila Singh that deceased Shweta came to his Nuptial (Maika)
home on the festival of Raksha Bandhan and told that her husband,
father in law insisted to bring gold chain, necklace and mangalsutra
otherwise she is not required to come. PW/3 has stated that she gave
all these items to the deceased.
II. In para 4 of his examination- in- chief PW/3 has deposed that her son-
in- law was posted as Superintendent in Khandwa. She has further
deposed that Manendra Singh and Mohan Singh made demand of
Scooty and computer and this demand was fulfilled. On 6th October
deceased telephoned PW/3 that husband and father in law is teasing
her. Her sister also told this witness that her sister- in- law (Nanad)
Bindu and her brother- in- law (Nandoi) Hari Singh came to
Khandwa. Eventually her father- in- law told to give her own room to
Nanad and Nandoi and she should sleep outside the room. This
witness also stated in para-4 about the illicit relations of her son - in -
law with Smriti Singh who is younger sister of appellant No.5 Smt.
Sharadha Singh.
18. Appreciation of testimony of (PW-3) Sushila Singh-
23 CRA NO.1786 OF 2014
I. In para 11 of her cross examination, this witness has deposed that
payment of Rs. 10 lacs was fulfilled in the last week of May. This
witness has denied suggestion that they are not having any capacity to
give Rs. 10 lacs and therefore sum of Rs. 10 lacs were never given to
accused persons. According to her statement Rs. 10 lacs her husband
managed by taking loan from bank, some money was taken form his
friend and some amount was withdrawn from G.P.F. and LIC. The
question was put to this witness that her husband was not having any
capacity to pay Rs. 10 lacs. In answer to this question she has
admitted that at that juncture her husband was not having capacity to
give the said amount, but, because in laws were making demand to
pay , eventually her husband managed to give Rs. 10 lacs to them.
II. In para 12 of her cross examination this witness has deposed that she
did not say to her husband that because the accused persons are
demanding Rs. 10 lacs, therefore marriage be broken out should not
be solemnized. She has also deposed that till Rs. 10 lacs was given,
the ring ceremony was not performed. This witness did not say to her
husband that because accused persons are making demand of Rs. 10
lacs therefore ceremony 'Tilak' should not be performed.
III. In para 13 of her cross examination she has admitted that making of
payment of Rs. Ten lacs and five lacs and a vehicle was demanded
earlier to 'Tilak' ceremony. In same para this witness has deposed that
after giving Rs. 10 lacs when again demand of Rs. Five lacs and
vehicle was made she did not insisted her husband, that now the
accused persons are making demand further of Rs. Five lacs and a
vehicle, therefore we should not perform the ceremony of 'Tilak'. She
24 CRA NO.1786 OF 2014
has further deposed that my husband took loan of Rs. Five lacs but
from whom it was taken she cannot say.
IV. In para- 15 of her cross examination this witness has deposed that her
police case diary statement was taken on 27.12. 2009. A question was
put to PW/3 that did she explain to police that why she is giving
statement after delay of 10 days. In answer to this question, this
witness has deposed that when she came to Khandwa at that time she
gave her statement to police. The explanation was given in the answer
that on account of ritual ceremony of the death of the deceased she did
not give her statement to the police but why this fact did not find place
in her police statement Ex. D/16, she cannot state the reasons.
V. In para- 16 she has deposed that on 27.02.2009 she gave her statement
to police and on that day her husband and son Piyush also came. She
has also deposed that on 27.10 2009 Dr. J.P. Singh and one Advocate
Agarwal Sahab also accompanied them to Khandwa. On being
confronted to her that Advocate Agarwal Sahab is the same person
who is present in the Court, she admitted and stated that advocate
Agarwal has come along with her from Bhopal. She has further stated
that Advocate Agarwal is her 'Samdhi' and has not come to give any
statement. She has admitted that Advocate Agarwal is present in the
Court as her Counsel. In cross examination in para-20 this witness has
deposed that I.G. Police Shri P.L. Pandey also came in the marriage of
deceased. She has further admitted that I.G. Shri P.L. Pandey is having
sweet and cordial relation with complainant party and with her
because he was classmate of her 'Jeth'.
25 CRA NO.1786 OF 2014
VI. In para-20 of her deposition she has deposed that although she was
having knowledge that accused persons were making payment of Rs.
Five lacs from them which they gave on 16.06.2009 but she did not
state this statement to police in her police case diary statement Ex.
D/16 although she has stated these facts to police, but why it was not
written by the Investigating Officer she cannot say.
VII. In para-25 of her cross-examination she has put her inability that
appellant No.5 Smt. Shraddha Singh is serving in Excise Department.
Before the marriage of her daughter and at the time of death of
deceased, Shraddha Singh was posted in Satna district. A question was
put to this witness in para 25 that by her own she has stated that Smt.
Shraddha Singh was coming oftenly but this fact was stated on
27.12.2009 to police?. In answer to this question she has admitted if
this fact was not written by police in her police statement Ex.D/16 and
she cannot state any reason.
VIII. In cross-examination para-26 this witness has deposed that ring
ceremony was solemnized on 5.5.2009 and a demand of Rs. Ten lacs
was made on 7 or 8 May and demand of Rs. Five Lacs was made in
the last week of May. She has further deposed that at the time of
making demand of Rs. Five Lacs, AC, Bolero Vehicle was demanded.
IX. A question was put to her that at the time when Rs. Ten Lacs was
demanded at that time only A.C., Vehicle Bolero was demanded. In
answer to this question, she deposed that demand of vehicle was
made.
26 CRA NO.1786 OF 2014
X. In para-30 of her cross examination this witness has admitted that
demand of vehicle, scooty and a computer which was made by first
accused Manendra Singh and 3rd accused Mohan Singh, but they were
not brand new and were old and were being used by her family
members earlier to the marriage the deceased. She has further
admitted that her husband PW-1 Raghvendra and all the three sons
were using these items.
XI. In para 31 of her cross examination a question was put to this witness
that in the transcript of voice recording which took place between
15.12. 2009 and 17.12.2009, the factum of staying outside the room
stated by Mohan Singh to the deceased to give her room to Mohan
Singh. In answer, she has admitted that this incident occurred on
06.10.2009. The transcripts are exhibited D/17 to D/20. Again
question was put to her that in Exs.D/17, 18, 19, 20, the factum that
any accused was harassing deceased Shweta on 17.12.2009 and she
was in fear did not find place. In answer to this question it has been
deposed by her in the transcript that Shweta did not say this fact.
Again, a question was put to her that in the transcript, the factum of
carrying some girl by accused Manendra Singh and they stayed in a
hotel and a hotel bill was recovered from the bag did not find place. In
answer to this she has deposed that all these facts were stated by
deceased to her father. Again a question was put to her that on
17.12.2009 at 6 PM Shweta was under fear did not find place in
transcript Ex.D/19 and D/20. In answer to this question this witness
deposed that when she interacted with the deceased on 17/12/2009 an
impression was given to her that deceased was under fear.
27 CRA NO.1786 OF 2014
XII. In para 32 of her cross-examination she deposed that she did not
remember as to whether she is okay. In reply she told that she is okay.
A question was put to her on 17/12/2009 she asked the deceased
whether she is O.K., in reply deceased told that she is okay and PW/3
stated that okay all is well now ? In answer to this question this
witness stated that if she would have asked the deceased about her
welfare she must have told it but she did not remember this fact today.
XIII. In para-33 she has admitted in her cross examination that in transcript
Ex. D/20 from portion A to A, B to B, C to C, D to D and E to E was
exhibited. A question was put that in Ex. D/20 B to B, C to C and D to
D are correctly written. In answer to this question, she has deposed if
it is in the tape recorded version it must be correct.
XIV. In her cross examination para 37 on being cross examined by Counsel
of 5th accused Smt.Shraddha Singh she has admitted in her police
statement in Ex. D/16 that on 13/11 2009 accused Manendra Singh
sent deceased through her driver at home but why this fact did not
find place in Ex.D/16 she can't state the reasons.
XV. In her cross examination at para 38 this witness has put her ignorance
that from 17/ 12/ 2009 to 19/ 12/ 2009 first accused Manendra Singh
was required to attend the training at lok Nayak Jaiprakash Institute of
Criminology and Forensic Science at Delhi.
XVI. In para 39 this witness has put her ignorance that fourth accused
Jagendra Singh was required to appear in PSC examination. She has
put her ignorance that Manendra Singh and Jagendra Singh were to
appear in the interview of MPPSC on 7/9/2010 she has also put her
28 CRA NO.1786 OF 2014
ignorance that roll number of Jagendra Singh was 129544 and that of
Manendra Singh was 129521.
19. In para 60 to 69 the Trial Court gave a finding that deceased was having
pregnancy of about three and half months and it appears that deceased came to
know about the illicit relation of Manendra Singh and discharged accused Smriti
Singh. The illicit relation between them is proved from the evidence which is
produced by the prosecution. However, the learned trial court has totally ignored
the cross examination of PW/1, PW/2 and PW/3 and has given said finding only on
the basis of the statement made by the witnesses in their examination- in- chief by
completely ignoring the contradictions, omissions and improvements which are
carved from the testimony of above said witness which dismantles the entire
structure of alleged illicit relation between appellant No.1 Manendra Singh and
discharge accused Smriti Singh.
20. That, as per the statement of PW-1 Raghvendra Singh wherein he has stated
that amount of Rs.10,00,000/- was taken from PW/4 for giving to the appellants
whereas PW-4 Dr. T.P. Singh in para 6 of his cross examination has admitted that
amount of Rs. 10,00,000/- was never given by him to the PW-1 for giving to the
appellants.
21. The learned trial Court on the basis of testimony of Lakshmi Bai (defence
witness no. 5) who was employed as domestic help in the official residence given
to Manendra Singh at Khandwa, has not been relied upon for the simple reason
that she used to come only for one or two hours in the morning and for one or two
hours in the evening and therefore it is difficult to hold that the relations between
the deceased and appellant No.1 Manendra Singh were bad. Although, it has come
in the testimony of witness Lakshmi Bai that during her presence both husband and
wife were interacting with each other and the interaction was full of love and
affection and they were also exchanging laughter with each other.
29 CRA NO.1786 OF 2014
22. By placing reliance upon the testimony of (PW-12) Balvir Singh as well as
Govardhan Prasad (PW/10), the learned trial Court has come to the conclusion
from the testimony of these witnesses also the factum of illicit relation between
Manendra Singh and Smriti Singh stands proved. However, at this juncture it
would be condign to state that without considering the contradictions, omissions
and improvements the trial Court has bluntly placed reliance upon the testimony of
these two witnesses Balvir Singh (PW -12) and Govardhan Prasad (PW-10).
23. Balvir Singh (PW/12) is residing in Delhi and is property broker and this has
been admitted by him in para-4 of his cross examination as well as it has been so
stated in the column of occupation after taking oath. In answer to the examination-
in- chief this witness has stated that in August, 2009 Manendra Singh and Shweta
Singh, who is wife of Manendra Singh, came to meet him. Since this witness has
stated name of deceased Shweta Singh, therefore, his statement cannot be ignored
which dismantles the entire case of prosecution. This witness was never declared
hostile and no question was put to him that Smriti Singh and not Shweta Singh
who came to Delhi. The Hon'ble Apex Court in the case of Rajaram Vs. State of
Rajasthan, reported in (2005) SCC (Cri.) 1050 has held that in case the witness is
not declared hostile by the prosecution, then the evidence of such witness would be
binding on the prosecution. In answer to the question in examination- in- chief this
witness specifically stated that Shweta Singh who is wife of Manendra Singh came
to take room. Although, in para 2 of his examination-in-chief this witness has
stated that investigating agency consisting of one double star Police Officer and a
Constable came to Delhi and showed 4 to 5 photographs and asked whether he can
identify these photos. By identifying two photographs this witness told that these
two persons came and were residing at the place where Mr. Channa told. On
showing Ex. P/6 photograph to him a question was put to this witness that affixed
photographs are of Smriti Singh? This witness told that she is Shweta and by
30 CRA NO.1786 OF 2014
seeing photograph of Manendra Singh he told that this photograph is of Manendra
Singh. Ex. P/6 bears his signatures.
24. In para -8 of his cross examination, This witness has put his ignorance and
has deposed that he cannot say in the month of September to whom he gave the
rooms to other persons nor he cannot state the names of those persons because in
Delhi, since he is property broker, he often provides rooms on rent. He could not
remember to whom the rooms were given in the month of October and November,
2009 and from where the guests staying in those rooms came. In the month of
December 2009 and January, 2010 to how many customers he provided rooms to
them he cannot say. Thus, when for other persons he cannot say and he did not
remember to whom room on rent was given and where those persons were coming
from, how with certainty this can be said that in August, 2009 by naming
Manendra Singh and fictitious name of Shweta Singh two persons came and stayed
in the room which was provided by him.
25. The factum of referring name of (Rajendra Singh not examined) and further
the fact that the customer was sent by Rajendra Singh to provide house on rent, this
witness has admitted all these facts/were stated by him in his statement under
Section 161 of Cr.P.C. to the police which is Ex. D/25. Although he has insisted to
record all these facts but the Investigating Officer told that he has already written
the entire statement and now they are not required to rerecord the new version.
26. In para-10 of his cross examination this witness has stated this fact that the
police showed four to five photographs to him and out of those photographs he
identified two photographs. But why this fact is not mentioned in his statement
recorded under Section 161 Cr.P.C. statement Ex. D/25 he cannot say. In para 11 of
his cross examination this witness has admitted that the customer (Smriti Singh
and Manendra Singh) was never brought to Delhi and showed by investigating
agency to him. He has stated that only photograph of these two persons were
31 CRA NO.1786 OF 2014
shown to him. In para 12 of his cross-examination this witness has admitted that
the law prevailing in Delhi is that if any new tenant is inducted the necessary
information of that tenant is to be given in concerning police station. Further he has
also admitted that necessary 'IDs' are also taken from them and they are forwarded
to concerning police station because in police, the name of tenant, his permanent
residence, how many room are given to them and what are ID proofs are
mandatory, but why this was not done this can only said to Mr. Channa.
27. So far as the statement of Ramesh Kumar Channa (PW/9) is concerned, it
transpires that he is resident of Delhi and is doing his service to serve the human. A
question was put by Public Prosecutor to this witness whether he knows any person
by the name of Manendra Singh. In answer to this, he deposed one person from
Bhopal came to us who was brought by property dealer one Sardar Ji and he does
not remember the name of that Sardar Ji. Rs. 6,000/- rent was fixed for one month
to the premises which was being provided to them. The said Sardar Ji took Rs.
6,000/- from him and Rs. 3,000/- was given to this witness by said SardarJi
towards his commission. In para-2 of his examination in chief this witness has
deposed that no police verification of those two persons who came to reside was
done. He was not earlier acquainted to the person to whom he gave the house on
rent and now he cannot identify him because on account of duration of two years
by showing the accused persons who were standing in dock, this witness stated that
he cannot identify the person to whom he gave house on rent. In para-3 of his
examination in chief again he deposed that today he cannot identify the accused
person in the dock.
28. It is condign to mention that since neither appellant No.1 Manendra Singh
nor discharged co-accused Smriti Singh were earlier known to this witness,
therefore, it was incumbent upon investigating agency to hold TIP so as to take out
32 CRA NO.1786 OF 2014
grain from chaff that appellant Manendra Singh and Smriti Singh are the same
persons who came together at Delhi.
29. This witness was declared hostile; however, merely because this witness was
declared hostile his statement cannot be straightway thrown away. In cross-
examination para-5 this witness has admitted that the SardarJi who brought the
said person who came to obtain the house on rent, no rent agreement was executed
nor any receipt was given to them. He has admitted that in Delhi there is law if new
tenant is inducted police verification is to be performed to concerning police
station. He has deposed that he did not inform to concerning police station about
staying of two persons to whom the house was provided.
30. The (PW-10) Govardhan has been cited to identify appellant No.1 Manendra
Singh and discharged co-accused No.6 Smriti Singh. This witness has stated that
he is serving on the post of waiter in Hotel Kalindi Palace, New Market, Malviya
Nagar, Bhopal for last 10 to 12 years. In this regard para -1 of his Examination- in-
Chief is to be seen. The Public Prosecutor by showing two photographs to this
witness put a question to him that whether he identifies these two photographs, in
answer he replied in affirmative and stated they were staying in Room No. 106 and
he served them for two days. He has deposed that they stayed in the said room
from 13 to 15 November, 2009. The name of male was Manendra Singh and his
wife's name was Neha Singh. Upon Panchama Ex. P/7, he put his signatures which
are A to A, B to B and C to C.
31. It is very important and pertinent to mention here and which goes to root of
the matter that learned Public Prosecutor did not get appellant Manendra Singh
identified who was present and brought from jail on 06.08.2011, the date when the
statement of this witness was recorded why dock identification was not made. It
raises heavy doubt upon the truthfulness of this witness. In para-2 of his cross
examination certain questions were put to him so as to test his memory because in
33 CRA NO.1786 OF 2014
very definite version this witness is deposing in his examination in chief that
appellant No.1 Manendra Singh and discharged co-accused Smriti Singh came on
13th of November and stayed in the hotel up to 15, but in the question put to this
witness in cross examination in para 2 so as to testify his memory, he totally failed.
In this para this witness has stated and admitted that on 11th and12th, November,
2009 in how many rooms of the hotel he served, he cannot say. He also stated that
he does not remember that on 16th and 17th November, 2009 he served in which
room of hotel. Further he put his inability and said that he did not remember that
on 11, 12, 16 and 17 of November, he served for how many customers and he
cannot say their names. Further, he was cross examined that he cannot say on
11thand 12th for how many customers he arranged room and kept their luggage he
put his inability. He has admitted that on 16 th and 17th November 2009 for how
many customers he arranged the rooms and kept their luggage he cannot say.
Although this witness remembers the date 13th to 15th November when appellant
Manendra Singh and discharged co-accused Smriti Singh stayed but he does not
remember about other customers and their names also. Hence this witness cannot
be said to be reliable witness.
32 In para 3 of his cross examination, this witness has admitted that if any
customer stays in a hotel first of all identity card is demanded and thereafter room
is given to him. By his own he has deposed that the customer who is having no
identity card or any luggage, the room is provided to him without identity card. He
has further admitted that he did not see ID of Manendra Singh and Smriti Singh.
33. Hence, the findings which have been arrived by the learned trial Court from
paras 60 to 69 holding that the appellant No.1 Manendra Singh was having illicit
relations with discharged accused No.6 Smriti Singh and they were staying in hotel
room at Bhopal and Delhi, although it is not at all proved and by ignoring the
contradictions, omissions and improvements which are carved out from the above
34 CRA NO.1786 OF 2014
said witness it has been emphatically proved that factum of illicit relations between
Manendra Singh and Shweta Singh are not at all proven. The learned trial Court
has given its own assumption and presumption rather the evidence on record to
hold about alleged illicit relationship. The findings of the learned trial Court are
thus perverse.
34. Hence, it cannot be said that on account of illicit relations between appellant
No.1 Manendra Singh and discharged co-accused Smriti Singh (who is sister of 5 th
accused Smt. Shraddha Singh w/o Jagendra Singh), the deceased put her life to an
end, hence the findings of the learned trial Court is not only perverse but it had
deviated from well settled law to marshal the evidence of prosecution witness vis-
a- vis other witness and defence witness as well as ignoring the contradictions,
omission and improvements which have come in the testimony of PWs and thus
said finding cannot stand in the eye of law. In this regard it would be profitable to
refer the law laid down by the Hon'ble Hon'ble Supreme court in the case of
Pinakin Mahipatray Rawal Vs. State of Gujarat; (2013) 10 SCC 48, Ghusabhai
Raisangbha iChorasiya Vs. State of Gujarat; (2015) 11 SCC 753 and K.V.
Prakash Babu Vs. State of Karnataka; (2017) 11 SCC 176. In K.V. Prakash Babu
Case held that:-
"15. Slightly recently in Ghusabhai Raisangbhai Chorasiya v. State
of Gujarat[4], the Court perusing the material on record opined that
even if the illicit relationship is proven, unless some other accept-
able evidence is brought on record to establish such high degree of
mental cruelty the explanation (a) to Section 498-A of the IPC which
includes cruelty to drive the woman to commit suicide, would not be
attracted. The relevant passage from the said authority is repro-
duced below:-
35 CRA NO.1786 OF 2014
"True it is, there is some evidence about the illicit relationship and
even if the same is proven, we are of the considered opinion that
cruelty, as envisaged under the first limb of Section 498A IPC would
not get attracted. It would be difficult to hold that the mental cruelty
was of such a degree that it would drive the wife to commit suicide.
Mere extra-marital relationship, even if proved, would be illegal and
immoral, as has been said in Pinakin Mahipatray Rawal (supra),
but it would take a different character if the prosecution brings some
evidence on record to show that the accused had conducted in such
a manner to drive the wife to commit suicide. In the instant case, the
accused may have been involved in an illicit relationship with the
appellant no.4, but in the absence of some other acceptable evidence
on record that can establish such high degree of mental cruelty, the
Explanation to Section 498-A which includes cruelty to drive a
woman to commit suicide, would not be attracted."
16. The concept of mental cruelty depends upon the milieu and the
strata from which the persons come from and definitely has an indi-
vidualistic perception regard being had to one's endurance and sen-
sitivity. It is difficult to generalize but certainly it can be appreciated
in a set of established facts. Extra-marital relationship, per se, or as
such would not come within the ambit of Section 498-A IPC. It
would be an illegal or immoral act, but other ingredients are to be
brought home so that it would constitute a criminal offence. There is
no denial of the fact that the cruelty need not be physical but a men-
tal torture or abnormal behavior that amounts to cruelty or harass-
ment in a given case. It will depend upon the facts of the said case.
To explicate, solely because the husband is involved in an extra-
36 CRA NO.1786 OF 2014
marital relationship and there is some suspicion in the mind of wife,
that cannot be regarded as mental cruelty which would attract men-
tal cruelty for satisfying the ingredients of Section 306 IPC."
Therefore, in this instant case if this Court presume for the sake of arguments,
there is an illicit relationship between Manendra Singh and Smridhi Singh even
then such presumption of so called illicit relationship is not a ground to convict the
appellants u/s 306 of IPC.
35. So far as the findings of learned trial Court that a demand of dowry was
made in the shape of cash as well as gold ornaments is concerned, it has been
submitted in detail that the said finding of the learned Trial Court cannot said to be
in accordance to the law for the simple reason that learned Trial Court has taken
into account only examination in-chief of prosecution witnesses by totally ignoring
the contradictions, omissions and improvements that have arrived at in their cross
examination. Hence it is evident from the above paragraphs of each and every
prosecution witness wherein contradictions, omissions and improvements are
shown. Thus, looking to the contradictions, omissions and improvements which
came in the testimony of prosecution witnesses, it is not proved that soon before
her death, the deceased was subjected to cruelty or harassment by her husband or
any relative of her husband for or in connection with any demand of dowry.
36. Learned trial Court in para 69 gave a finding that the deceased was beaten
but neither in the post mortem report nor autopsy surgeon Dr. Bhushan (PW/7)
found any external injury on the person of the deceased. Hence, the finding of the
learned Trial Court that deceased was beaten soon before her death is perverse.
37. Although under Section 113-B of the Evidence Act which speaks about
presumption as to dowry death, there is presumption that a woman was subjected
to cruelty or harassment for or in connection with any demand of dowry the Court
37 CRA NO.1786 OF 2014
shall presume that such person had caused dowry death, but at the same time it is
to be remembered that this is presumptive evidence only which is always rebuttal.
That apart the initial burden to prove the case rest upon the shoulders of the
prosecution and if prosecution successfully proves beyond all reasonable doubt,
then only burden shifts upon shoulders of defence to rebut presumption. However,
in the present case as stated hereinabove in great detail, the prosecution has utterly
failed to prove its case beyond all reasonable doubt and, therefore, presumption as
envisaged under Section 113-B of the Evidence Act has no relevance in the present
factual scenario. The Hon'ble Apex court in the cases of Baijnath and Others V.
State of Madhya Pradesh; (2017) 1 SCC 101held that:-
"(35) This Court while often dwelling on the scope and
purport of Section 304B of the Code and Section 113B of the Act
have propounded that the presumption is contingent on the fact that
the prosecution first spell out the ingredients of the offence
of Section 304B as in Shindo Alias Sawinder Kaur and another
Vs. State of Punjab - (2011) 11 SCC 517 and echoed in Rajeev
Kumar Vs. State of Haryana - (2013) 16 SCC 640. In the latter
pronouncement, this Court propounded that one of the essential
ingredients of dowry death under Section 304B of the Code is that
the accused must have subjected the woman to cruelty in
connection with demand for dowry soon before her death and that
this ingredient has to be proved by the prosecution beyond
reasonable doubt and only then the Court will presume that the
accused has committed the offence of dowry death under Section
113B of the Act. It referred to with approval, the earlier decision of
this Court in K. Prema S. Rao Vs. Yadla Srinivasa Rao - (2003) 1
SCC 217 to the effect that to attract the provision of Section
38 CRA NO.1786 OF 2014
304B of the Code, one of the main ingredients of the offence which
is required to be established is that "soon before her death" she
was subjected to cruelty and harassment "in connection with the
demand for dowry".
Thus, in the light of above pronouncement, first of all prosecution is obliged
to prove its case beyond all reasonable doubt and thereafter only onus of proof will
shift upon defence. In details herein above it has already been considered that the
prosecution has utterly failed to prove its case and hence initial burden of proving
has not been discharged by the prosecution and therefore the onus is never shifted
upon the defence.
38. The learned Trial Court on the points for consideration no. 2 has found that
ingredients of Dowry Prohibition Act, 1961 is proved. In detail it has been
considered herein above while considering the submissions in respect to points
nos. 3 and 7 for consideration which relates to dowry death. The contradictions,
omissions and improvements which have come in the testimony of prosecution's
witnesses have to be treated for the purpose of point for consideration which
relates to Dowry Prohibition Act, 1961. That apart, when there is no evidence on
record to show that the demand of dowry was made by the appellants, and the
appellants were harassing by their cruelsome behaviour with the deceased, charges
are not proved. Merely because certain articles were given in marriage as a
customary and rituals that cannot be equated with demand of dowry.
39. That the finding of the Learned Trial Court as regards to para 22 is
concerned that since the requisite certificate was not obtained therefore
conversation which took place between deceased and his family members as well
as transcript of the conversation which took place between them which are
exhibited documents cannot be taken into consideration. However, in this regard it
would be profitable to refer the law laid down by the Hon'ble Supreme Court in
39 CRA NO.1786 OF 2014
the case of Vikram Singh @ Vicky Walia and another Vs. State of Punjab and
others; (2017) 8 SCC 518 and Arjun Pandit Rao Khotkar v.
KailashKushanRaoGorantyal and ors reported in 2020 (7) SCC 1. The decision
in the case of Arjun Pandit Rao Khotkar(supra) is of three judge bench decision.
In this decision in para 73.2 on page 63 the Apex Court has made clarification
referred to above is that the required certification under Section 65-B (4) is
unnecessary if Original Document itself is produced. This can be done by the
owner of a laptop computer, computer, tablet or even a mobile phone to be placed
in Court.
40. Looking to the above said decision of three judge of Supreme Court, no
certificate was required, since admittedly, the mobile phone of the deceased was
seized seizure memo is (Ex.P/2) and mobile phone produced in the Court is
marked as Article B. Looking to the transcript of the conversation of the deceased
which took place between her and PW/2 Piyush as well as PW/3 Sushila Singh
which are exhibited documents (Ex. P/32-46). Nowhere it has come that appellants
were mal-treating her and were harassing for or in connection with the demand of
dowry.
41. Thus, from every angle exhibited documents in respect to the conversation
which took place by deceased with her family members and their transcript which
are exhibited documents, no where she has stated that just before suicide that she is
being harassed for or in connection with dowry by the accused persons. Even
unproved documents of prosecution can be relied upon by the accused persons in
this regard reliance is being placed upon the law laid by this Hon'ble court 1992
(1) MPVB (Madhya Pradesh Vidhi Bhaskar) 290 para-6,1997 (2) MPWN 214,
decision has been reproduced in toto,1993 (2) MPLJ 532 para 3,1994 MPLJ
879,ILR (2012) MP 135 (DB) and 2014 (3) MPJR 146 wherein it has been
categorically held that with respect to a document which is prosecution document
40 CRA NO.1786 OF 2014
but remains unproved, the legal position appears to be that prosecution cannot
utilise that document for proof of its story but it would be wrong to deny the
defence its user if it supports the defence in the manner.
42. One important fact which cannot be marginalized and blinked away that on
the person of the deceased not even single external injury was found and the story
put forth by the prosecution that she was beaten before her death cannot be allowed
to remain stand. In this regard the evidence of autopsy of surgeon (PW/7) Dr.
Bhushan has been seen. That apart witness of Panchnama of the dead body is
Phooldar (PW/19), who is additional Tahsildar, who in his examination-in-chief
has stated that no external injury was found upon the person of the deceased.
43. The prosecution has examined Balram Singh, Constable (PW/18) who has
proved transcripts etc. Ex.P-32 to Ex.P-46 and for that it has already been stated
herein above that all those transcripts are not at all against accused persons.
44. That as per the statement of (PW-21) Dy. SP Suresh Kumar (who is another
investigating officer) in his cross-examination this Investigating Officer has
admitted that whatever was deposed by the witnesses as it is, was recorded by him
and whatever they have stated apart from the statement which this I.O. has
recorded, that statement they have not given in 161 Cr.P.C. recorded by this I.O.
Hence, it can be safely inferred that testimony of Investigating Officer will
override the evidence of prosecution witnesses deposing that they deposed to the
Investigating Officer certain facts in their police case diary statement and if those
statement do not find place in their 161 Cr.P.C. statement they cannot say.
Contradictions, omissions and improvements which have come in the testimony of
prosecution witnesses create heavy doubt and no credence can be given to these
statements and the benefit would go in favour of the accused.
41 CRA NO.1786 OF 2014
45. It is well settled law that due consideration should be given to the defence
witnesses. It is also equally well settled law that defence is not obliged to prove its
case beyond all reasonable doubts. Defence is found probable; therefore, benefit
will always go to the accused persons.
46. Diwakar Singh (DW/2) is the witness who has deposed that the relation
between the deceased and accused were cordial and they were enjoying their
matrimonial life with full joy. The deceased became pregnant and in this regard
both of them were quite happy. In para-8 this witness has deposed that in Barat
ceremony the ladies did not go therefore the participation of appellant No.5
Shraddha Singh in Barat is not at all proved.
47. Ramesh Kumar Nigam (DW/3) is the witness so as to prove that appellant
No.5 Shraddha Singh was residing at Satna as she was serving on the post of
Excise Sub-Inspector and appellant Jagendra Singh was also residing with her and
was serving on the post of Patwari at Rewa and was travelling up and down to
discharge his official duties. This witness is the landlord of appellant No.5
Shraddha Singh.
48. This witness has further deposed that appellant No.5 Shraddha Singh did not
go to Bhopal in marriage ceremony although one week earlier to the marriage
ceremony, 'Tilak' ceremony was performed at Rewa where the appellant No.5
Shraddha Singh had gone in the evening to Rewa and came back in the morning to
Satna.
49. Rajkumar Tripathi (DW/4) is Deputy Superintendent Jail. He has deposed
that relation between appellant Manendra Singh and Shweta Singh was quite
cordial. They used to interact with each other in the drawing room. They were not
quarrelling with each other. When deceased was residing at Khandwa, she told him
that she is having certain skin problem and treatment of some Doctor at Bhopal is
42 CRA NO.1786 OF 2014
being taken by her. Not only this, upon asking by the deceased, he suggested the
name of Dr. Shroff who was Skin Specialist and the deceased being treated by said
doctor. The deceased also told this witness earlier to 4-5 days of her death if
husband or wife is having 'mangal dosh' what would happen. She further told her
husband that Manendra Singh had 'Mangal dosh'. In para-6 of his deposition this
witness has deposed that because Manendra Sigh was going to Delhi for training
he was carrying the deceased with him, however, since he came to know that his
training has been cancelled they cancelled their reservation.
50. Another defence witness is Laxmi Bai (DW/5) although the prosecution was
obliged to examine this witness because her statement was recorded u/s. 161 of
Cr.P.C but it has already stated hereinabove that the prosecution did not examine
her. This witness has deposed that the relations between accused and deceased
were quite cordial and they were eating the meals in one thali where they were
exchanging laughter also between them. Her testimony cannot be thrown away
merely because this witness used to visit only for one or two hours. It is submitted
that if the relation were very bad and not cordial, during this period also they will
quarrel in presence of domestic servant.
51. Another defence witness is Pooran Singh DW/6. This witness is serving on
the post of Jail Parhari and was residing where deceased and accused persons were
residing in the jail premises. This witness has also deposed the relation between
accused and deceased were quite cordial and they were residing with love and
affection by enjoying their matrimonial bondage. They were also going for
roaming in the evening. In this regard paras- 2 to 6 of the testimony of this witness
is to be seen. In para- 6 again he deposed that accused and deceased used to go to
purchase different types of items in the market.
52. Other witness is V.V. Pandey (DW/8) who is serving on the post of Assistant
Excise Inspector. This witness has proved that throughout appellant No.5 Shraddha
43 CRA NO.1786 OF 2014
Singh while serving on the post of Deputy Excise Inspector was residing in Satna
and in this regard this witness has also given his certificate. The testimony of this
witness in para 2 to 5 is to be seen which proves the innocence of appellant No.5
Sharadha Singh.
53. Sanjay Tiwari DW/09 is another witness serving on the post of Assistant
Commissioner Excise. This witness has also deposed that appellant No.5 Shraddha
Singh was throughout in Satna where she was residing where she served on the
post of Excise Inspector.
54. Other witness Radhe Shyam Vijaywargiya (DW/11). This witness has also
proved that appellant No.1 Manendra Singh was throughout in Khandwa.
55. The arguments raised by the learned senior counsel as regards to conviction
of appellant No.2 as mentioned above is concerned, in this regard, relation of
deceased is to be seen with the appellant No.2. The argument is undoubtedly
correct because to be covered under section 498-A of IPC one has to be relative of
the husband by blood, marriage or adoption. In this regard the law laid down by the
Hon'ble Apex court in the case of U. Suvetha vs. State By Inspector of Police and
another; (2009) 6 SCC 757 and VijetaGajra Vs. State of NCT of Delhi; (2010) 11
SCC 618 is relevant wherein it has been categorically held that reference to the
word relative in section 498- A of IPC would be limited only to blood relations or
the relations by marriage. As the appellant No.2 was not the relative of the husband
nor he is having any blood relation or the relation by marriage, therefore, there is
no question of prosecution under Sections 306, 304-B, 498-A, 120-B of IPC and 3/
4 Dowry Prohibition Act, 1961.
56. It is further contended by the Senior Counsel for the appellants that the
prosecution has failed to prove that the deceased was subjected to cruelty soon
before her death. In this respect, it is necessary to go through the following
44 CRA NO.1786 OF 2014
important verdict on this point. Essential ingredients of Section 304-B of IPC as
noticed by the Hon'ble Apex Court in case of Major Singh and another Vs. State
of Punjab; AIR 2015 SC 2081has held as under:-
"to attract conviction under Section 304-B of the IPC, the
prosecution should adduced evidence to show that soon
before her death the deceased was subjected to cruelty on
her aspect". There must always be proximate and live-link
between the effects of cruelty based on dowry demand and
the concerned death."
57. Once this Court has already come to a conclusion that the prosecution has
failed to prove that the deceased was subjected to cruelty or harassment soon
before her death for or in connection with any demand for dowry, therefore, the
question of harassment or cruelty soon before her death, would not arise. It would
be profitable to refer the judgment of Hon'ble Supreme Court in the case of
Baijnath and others Vs. State of Madhya Pradesh, reported in (2017) 1 SCC
101 has held as under :-
(29) Noticeably this presumption as well is founded on the
proof of cruelty or harassment of the woman dead for or in
connection with any demand for dowry by the person charged
with the offence. The presumption as to dowry death thus would
get activated only upon the proof of the fact that the deceased
lady had been subjected to cruelty or harassment for or in
connection with any demand for dowry by the accused and that
too in the reasonable contiguity of death. Such a proof is thus
the legislatively mandated prerequisite to invoke the otherwise
statutorily ordained presumption of commission of the offence of
dowry death by the person charged therewith.
(30) A conjoint reading of these three provisions, thus
predicate the burden of the prosecution to unassailably
substantiate the ingredients of the two offences by direct and
convincing evidence so as to avail the presumption engrafted in
Section 113B of the Act against the accused. Proof of cruelty or
harassment by the husband or her relative or the person
charged is thus the sine qua non to inspirit the statutory
45 CRA NO.1786 OF 2014
presumption, to draw the person charged within the coils
thereof. If the prosecution fails to demonstrate by cogent
coherent and persuasive evidence to prove such fact, the person
accused of either of the above referred offences cannot be held
guilty by taking refuge only of the presumption to cover up the
shortfall in proof.
58. The Supreme Court in the case of Bakshish Ram and another Vs. State of
Punjab reported in (2013) 4 SCC 131 has held as under :
"16. The High Court, as a first Court of appeal, on facts must
apply its independent mind and record its own findings on the
basis of its own assessment of evidence. Mere reproduction of
the assessment of trial Court may not be sufficient and in the
absence of independent assessment by the High Court, its
ultimate decision cannot be sustained. The same view has been
reiterated by this Court in Sakatar Singh v. State of Haryana
2004 (11) SCC 291.
17. In Arun Kumar Sharma v. State of Bihar 2010 (1) SCC 108,
while reiterating the above view, this Court held that: (SCC pp.
115-16, para 30) "30....In its appellate jurisdiction all the facts
were open to the High Court and, therefore, the High Court was
expected to go deep into the evidence and, more particularly,
the record as also the proved documents. Contrary to the above
principle, we are satisfied that in the case on hand, the High
Court failed to delve deep into the record of the case and the
evidence of the witnesses. The role of the appellate Court in a
criminal appeal is extremely important and all the questions of
fact are open before the appellate Court. The said recourse has
not been adopted by the High Court while confirming the
judgment of the trial Court.
59. The Hon'ble Supreme Court in the case of Hiralal and another Vs. State
(Government LCT) Delhi (2003) 8 SCC 80 in para 9 as here under:-
"9. A conjoint reading of Section 113-B of the Evidence Act and
Section 304-B IPC shows that there must be material to show
that soon before her death the victim was subjected to cruelty or
harassment. The prosecution has to rule out the possibility of a
natural or accidental death so as to bring it within the purview
of "death occurring otherwise than in normal circumstances".
46 CRA NO.1786 OF 2014
The expression "soon before" is very relevant where Section
113-B of the Evidence Act and Section 304-B IPC are pressed
into service. The prosecution is obliged to show that soon before
the occurrence there was cruelty or harassment and only in that
case presumption operates. Evidence in that regard has to be
led by the prosecution. "Soon before" is a relative term and it
would depend upon the circumstances of each case and no
straitjacket formula can be laid down as to what would
constitute a period of soon before the occurrence. It would be
hazardous to indicate any fixed period, and that brings in the
importance of a proximity test both for the proof of an offence of
dowry death as well as for raising a presumption under Section
113-B of the Evidence Act. The expression "soon before her
death" used in the substantive Section 304-B 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 disturb the mental equilibrium of the woman
concerned, it would be of no consequence."
60. In the back drop of the aforesaid discussion, this Court finds support from
the law laid by the Hon'ble Apex court as well as by this Hon'ble court related to
the factual position of this present case, this Court disbelieve the said incidence as
47 CRA NO.1786 OF 2014
according to them, the statement of witnesses qua the establishment of committing
guilty for demand of dowry against the deceased are not reliable and trustworthy.
There is nothing on record to elicit any positive action of possibility proximity
done by the appellants against the deceased soon before her death. To bring home
an offence under Section 304-B of IPC. It is an obligation of the prosecution to
prove in those cases where death of a woman occurs within seven years of her
marriage, that soon before her death, she was subjected to cruelty or harassment by
her husband or any other relative, in connection with a demand of dowry. Mere
making of a demand is not only the pre requisite for proving an offence under
Section 304-B of IPC. The prosecution was thus supposed to prove that the
demand made by the appellant was coupled with a harassment or cruelty in
connection with demand. Unnatural death can be called a dowry death only if, after
making a demand of dowry, the appellants perpetuates cruelty on the victim so that
the demand made by him is got fulfilled by perpetuation of cruelty on the victim. If
the alleged demand of dowry is not coupled with cruelty, harassment or any other
such act on the part of appellant, section 304-B of IPC would not be made out. In
this case, none of the three-witness stated that cruelty was perpetuated on deceased
or she was harassed by the appellants or by any other relative for not fulfilling the
demand soon before her death.
61. Moreover, the learned trial Court has totally overlooked the omissions and
contradictions of prosecution witnesses which are material in nature. The evidence
on record qua the cruelty and alleged illicit relations are not a direct evince , on the
contrary, hearsay evidence which are not admissible in accordance of law.
62. The best evidence in this instant case is recording of the conversation of the
deceased through her mobile phone wherein the recording software installed by
PW-2 brother of deceased. Since it is the best evidence to get the truth and learned
trial Court has rejected due non compliance of procedural requirement of section
48 CRA NO.1786 OF 2014
65-B of the Evidence Act, 1872. It is settled principle of law that procedural law is
only to aid in justice not an obstruction for the administration of justice. In this
aspect Hon'ble Supreme Court laid down the principles:-
63. In Saiyad Mohd. Bakar El-Edroos v. Abdulhabib Hasan Arab, (1998) 4
SCC 343, [DB] The Supreme court held that :-
8. A procedural law is always in aid of justice, not in
contradiction or to defeat the very object which is sought to be
achieved. A procedural law is always subservient to the
substantive law. Nothing can be given by a procedural law
what is not sought to be given by a substantive law and nothing
can be taken away by the procedural law what is given by the
substantive law.
Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272, [5 J.
CONSTI. BENCH]
26. Laws of procedure are meant to regulate effectively, assist
and aid the object of doing substantial and real justice and not
to foreclose even an adjudication on merits of substantial rights
of citizen under personal, property and other laws. Procedure
has always been viewed as the handmaid of justice and not
meant to hamper the cause of justice or sanctify miscarriage of
justice...
31. .....With the march and progress of law, the new horizons
explored and modalities discerned and the fact that the
procedural laws must be liberally construed to really serve as
handmaid, make it workable and advance the ends of justice,
technical objections which tend to be stumbling blocks to defeat
and deny substantial and effective justice should be strictly
viewed for being discouraged, except where the mandate of law
inevitably necessitates it. ...
49 CRA NO.1786 OF 2014
In the backdrop of aforesaid judgements, Even if the conversation of deceased
will take as it is, the essentials ingredients of section 304-B of IPC" soon before
her death she was subjected to cruelty or harassment" is missing and in such
situation this court consider conviction of appellants under Section 304-B of IPC
was totally illegal and unjust, the conviction seems to be result of a callous
criminal justice system where neither prosecutor discharge his duty in an impartial
manner nor the judge consider it as his duty to see what offence was made out and
everyone acted in a mechanical manner.
64. The other question arises whether appellants could be convicted under
Section 306 of IPC i.e. for the offence of abetment of suicide since the deceased
committed suicide within six months of her marriage. In order to convict a person
for abetment of suicide, a part from providing suicide, it has to be proved that
appellant/accused was instrumental in commission of suicide. Section 113-A of the
Evidence Act which raises a presumption regarding abetment of suicide in respect
of a married woman read as under:-
"113A. Presumption as to abetment of suicide by a married
woman. --When the question is whether the commission of
suicide by a woman had been abetted by her husband or any
relative of her husband and it is shown that she had committed
suicide within a period of seven years from the date of her
marriage and that her husband or such relative of her husband had
subjected her to cruelty, the court may presume, having regard to
all the other circumstances of the case, that such suicide had been
abetted by her husband or by such relative of her husband.
A perusal of above section would show that abetment of suicide of a married
woman by relatives would be presumed by the Court if it is shown that her
husband or such other relative of her husband had subjected her to cruelty. In the
present case, there is not an iota of evidence in respect of cruelty perpetuated upon
the victim either medical or oral evidence. And proceeding with the above
50 CRA NO.1786 OF 2014
understanding law and applying the ratios to the facts in the present case, what is
apparent is that no overt act or illegal omission is seen from the appellant's side, in
taking due care of his deceased wife. The evidence also does not indicate that the
deceased face persistent harassment from husband. Nothing to this effect is
testified by the parents or any prosecution witnesses. The learned trial court
speculated on the unnatural death and without any evidence concluded only
through conjectures, that the appellants are guilty of abetting the suicide of his
wife. I therefore consider that the appellants could not have been convicted even
under Section 306 of IPC.
65. Every suicide after marriage cannot be presumed to be a suicide due to
dowry demand. The tendency of the Court should not be that since a young bride
has died after marriage, now, somebody must be held culprit and the noose must be
made to fit some neck.
66. I have already noted Section 304-B IPC and its essential ingredients.
Section 113-B of the Evidence Act is also relevant for the case in hand. Both
Sections 304-B and 113-B of the Evidence Act were inserted by Dowry Prohibition
(Amendment) Act 43 of 1986 with a view to combat the increasing menace of
dowry deaths. Section 113B of the Evidence Act reads as under:
"113-B. Presumption as to dowry death.- When the question is
whether a person has committed the dowry death of a woman and it
is shown that soon before her death such woman has been subjected
by such person to cruelty or harassment for, or in connection with,
any demand for dowry, the Court shall presume that such person
had caused the dowry death.' Explanation.- For the purposes of this
section, 'dowry death' shall have the same meaning as in section
304-B of the Indian Penal Code (45 of 1860)' As per the definition
of 'dowry death' in Section 304-B IPC and the wording in the
presumptive Section 113-B of the Evidence Act, one of the essential
ingredients amongst others, in both the provisions is that the woman
concerned must have been 'soon before her death' subjected to
51 CRA NO.1786 OF 2014
cruelty or harassment 'for or in connection with the demand for
dowry'.
67. Adversarial system of trial being followed in this country has turned most of
the trial court judges into umpires and despite having sufficient power to ask
questions to the witnesses and to find out truth, most of them do not ask questions
to the witnesses to know the truth. In fact, the witnesses are left to the Advocates
and the Judges just sit and watch. This tendency of being only umpires works
heavily against the poor who are normally not defended by Advocates of
competence and standing, as they cannot afford their fee. The Trial Courts,
therefore, must shed their inertia and must intervene in all those cases where
intervention is necessary for the ends of justice. In order to convict the appellant
u/s 306 of IPC, there must be an instigation which is intentional to bring the case
under the privy of section 306 of IPC. In the instant case, there is nothing on record
to instigate the deceased to commit suicide.
68. The appellants can be convicted and punished only when by leading cogent
evidence, the prosecution proved its case to the hilt. As noticed above, the
prosecution could not establish its case beyond reasonable doubt. The evidence
must be of sterling quality and should be of a nature that a conclusion can be drawn
that appellants and appellants alone 'must' have committed the offence and not that
appellants perhaps/might have committed the offence. The prosecution could not
satisfy the aforesaid litmus test in the instant case.
69. The order of conviction can be based only on legal evidence and not on
hypothetical propositions or unwarranted inference. A moral conviction regarding
the guilt of an individual has no place in criminal jurisprudence. In this case, there
is no satisfactory proof to make out the charges against the appellants. Therefore,
the appellants are entitled for acquittal.
52 CRA NO.1786 OF 2014
70. After perusal of evidence on record, this court has considered view that the
prosecution has utterly failed to meet out the essential ingredients of section 304-B,
306, 498-A, 120-B, 3/ 4 Dowry Prohibition Act, 1961 since the evidence lead by
prosecution is mostly hearsay evidence and the best evidence i.e. conversation of
deceased "soon before her death" nothing depicts any sort of demand of dowry and
cruelty thereof. Moreover, the other relative of husband of deceased like Co-
accused Jogendra Singh was posted at Rewa, M.P. and Shradha Singh was posted
at Satna, M.P. which are far place from the place of incident. There are no specific
allegations against such co- accused persons. It is also true that in such type of
cases, there is a tendency to falsely implicate other relatives of husband and this
case is also not an exception of such tendency. Moreover, there is no specific
evidence lead by the prosecution relating to conspiracy hatched by the appellants.
In the aforesaid circumstances the allegations of criminal conspiracy punishable u/s
120-B is also cannot sustained. It is pertinent to mention here that in the absence of
essential ingredients of convicted section, the learned trial court has ignored the
omission and contradictions of oral evidence lead by prosecution as well as
wrongly rejection the conversation of deceased which was recorded before her
death particularly when the mobile phone itself submitted before the trial Court. In
Such a situation, there is no requirement of furnishing the certificate of section 65
-B of The Evidence Act, 1872.
71. Thus, considering the evidence which has been led by the prosecution as the
learned trial court committed grave error in ignoring and glossing over various
contradictions in the testimonies of the witnesses, this Court is of the considered
opinion that the prosecution has failed to establish any charge against the
appellants, beyond reasonable doubt, accordingly, they are acquitted of charges
under Sections306, 304-B, 498-A, 120-B, 3/ 4 Dowry Prohibition Act, 1961. The
appellants are acquitted from all the charges appended against them.
53 CRA NO.1786 OF 2014
72. Resultantly, the judgment and sentence dated 30.06.2014 passed by First
Additional Sessions Judge, Khandwa in S.T. No. 169/2010 is hereby set aside.
73. The appellants are on bail. Their bail bonds and surety bonds stand
discharged and the fine amount paid, if any, be returned to the appellants.
74. The appeal succeeds and is hereby allowed.
75. A copy of this order is sent to the court below concerned.
76. Record is sent back to the concerned trial court.
77. Certified copy, as per rules.
(RAJENDRA KUMAR (VERMA))
JUDGE
DevS
DEVESH
Digitally signed by DEVESH K
SHRIVASTAVA
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH, ou=HIGH
K
COURT OF MADHYA PRADESH,
postalCode=482001, st=Madhya
Pradesh,
2.5.4.20=f9f9fd534b488e99cc3978
1431e66e6f9ab730d08ba53688e7b
SHRIVA
fceb51e910309,
pseudonym=189C30593CA67DDF
17E656B56C0460BDDD05B290,
serialNumber=AB2E2619A26EF3A2
STAVA
6F61D56D9B887CD260345F7158F
373E8FB42DAE3E07A154F,
cn=DEVESH K SHRIVASTAVA
Date: 2023.03.17 18:28:26 +05'30'
