Bassu @ Shiv Pd. vs The State Of M.P.
2023 Latest Caselaw 4218 MP

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                                                                        CRIMINAL APPEAL No.554 of 1998




              IN THE HIGH COURT OF MADHYA PRADESH
                           AT JABALPUR
                               BEFORE
                SHRI JUSTICE RAJENDRA KUMAR (VERMA)
                        CRIMINAL APPEAL NO.554 OF 1998
BETWEEN :-
BASSU ALIAS SHIV PRASAD, SON
OF TULSIRAM GAWAL, AGED
ABOUT 25 YEARS, RESIDENT OF
VILLAGE     PIPARWANI,    P.S.
TENDUKHEDA,         DISTRICT
NARSINGHPUR

                                                                        ....APPELLANT
(BY SHRI NEERAJ ASHAR - ADVOCATE)


AND


STATE OF M.P.
                                                                        ....RESPONDENT

(BY SHRI A.K. VERMA - PANEL LAWYER)
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         Reserved on                         :         18/01/2023
         Pronounced on                       :         17/03/2023
-------------------------------------------------------------------------------------------------------


     This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Shri Justice Rajendra
Kumar (Verma) pronounced the following :
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                                                  CRIMINAL APPEAL No.554 of 1998




                           JUDGMENT

This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, has been preferred by the appellant being aggrieved by the judgment of conviction and sentence dated 31.01.1998 in S.T. No. 56/1997 passed by learned Additional Sessions Judge, Gadarwara, District-Narsinghpur, whereby the learned Judge has convicted the appellant for the offence punishable under Section 304-B of the Indian Penal Code (hereinafter referred to as 'IPC') and sentenced him to undergo R.I. for seven years.

2. According to prosecution story, on 22.02.1997, at about

03:00 P.M., the appellant/accused was going somewhere and his wife

Lalta Bai (deceased) was trying to stop him which resulted into

altercation between them and the appellant/accused took her into room

beating. Kamla Bai and Vinita saw the whole incident. Thereafter, Kamla

Bai, Bhoori Bai and Vinita saw the appellant/accused going towards

village by bicycle. Being suspicious of Lalta Bai's silence, Vinita and

Kamla Bai went towards the house of the appellant/accused and found

that the door was locked from inside and there was sound of flapping and

on peeking inside the room, Lalta Bai was found to be hanged in thatch

wood. On receiving the information regarding unnatural death of

deceased, police registered the marg intimation report and enquired the

CRIMINAL APPEAL No.554 of 1998

matter. During enquiry, police conducted post-mortem of the deceased so

also recorded statements of the witnesses whereby it was revealed that

marriage of deceased-Lalta Bai was solemnized 8 months prior to the

incident and the deceased was brought to her matrimonial house only 8

days prior to the incident by her father-in-law, namely, Tulsiram. On

account of demand of dowry, the deceased was subjected to harassment

by the appellant/accused. Due to said harassment, she went her parental

home and on getting assurance of her well-keeping, she returned back to

her matrimonial house alongwith her father-in-law Tulsiram. Being

annoyed from non-fulfillment of desire, the appellant started torturing the

deceased and on the date of the incident, he assaulted her by means of axe

and caused her death.

3. After completing the investigation, police filed the charge-

sheet. The appellant/accused abjured his guilt and claimed to be tried and

took the plea of alibi. In order to substantiate the prosecution case, the

prosecution has produced 12 prosecution witnesses. The trial Court also

recorded the statements of accused under Section 313 of Cr.P.C. The

defence has also examined one witness. After considering the evidence

CRIMINAL APPEAL No.554 of 1998

adduced by the parties, the learned trial Judge, came to the conclusion

that the appellant is guilty for the offence as mentioned above.

4. Learned counsel for the appellant has submitted that the

judgment passed by learned trial Court is bad in law and contrary to the

facts and evidence of the case. The evidence led by the prosecution

witnesses suffers from serious infirmity. There is no eye-witness of the

incident and the case of prosecution is based upon circumstantial

evidence. It is further submitted that the learned trial Court has wrongly

relied upon the testimony of PW-2 and PW-3 who are child witnesses and

have seen nothing which incriminates the appellant. It is submitted that

the statements of parents of the deceased i.e. PW-8 and PW-9 are also not

reliable and are after-thoughts. As per prosecution, the appellant assaulted

the deceased with axe but no blood stain was found thereupon. It is also

submitted that the prosecution has completely failed to establish that the

deceased was subjected to harassment for demand of dowry, even then

the learned trial Judge recorded the conviction. No such prior report or

complaint with regard to demand of dowry and cruelty committed with

the deceased, has ever been made by her or by her relatives. So far as the

injuries on the body of the deceased are concerned, same were occurred

CRIMINAL APPEAL No.554 of 1998

due to falling down while setting her loose from hanging rope. Learned

trial Judge also committed error in not accepting the testimony of defence

witness. It is submitted that no ingredient is present to constitute the

offence under Section 304-B of IPC.

5. On the other hand, learned counsel for the respondent-State

opposed the submissions made by the appellant's counsel submitting that

the prosecution succeeded to prove its case beyond any reasonable doubt.

There is specific allegation against the appellant for demand of dowry

and cruelty soon before death of the deceased. The deceased suffered

unnatural death within a period of one year from her marriage, thus,

presumption of Section 113-B comes into play which is against the

appellant. It is further submitted that the prosecution witnesses have

stated sufficient against the appellant to secure his conviction. They have

duly supported the case of prosecution. Learned trial Court has rightly

considered the evidence of the case. With the aforesaid submissions, he

prays for dismissal of the instant appeal.

6. Heard and perused the record.

7. While arguing the instant appeal, learned counsel for the

appellant has raised the following grounds -

CRIMINAL APPEAL No.554 of 1998

"(1) That, the prosecution failed to prove that there was a demand of dowry as statement of important witnesses including family members of deceased are suffering from material contradictions and omissions. Being family members, the statement of parents of deceased is not reliable.

(2) That, the prosecution failed to prove that the deceased was subjected to cruelty soon before her death.

(3) Lastly, the conviction of appellant is based only upon presumption and evidence available on record is not sufficient to permit the same."

8. Before dealing with the merits of the case, it would be appropriate to discuss the legal aspects first.

9. The offence involved in the case under the IPC is Section

304-B of IPC which is reproduced herein-under -

"304-B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.

--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

CRIMINAL APPEAL No.554 of 1998

10. Under the Indian Evidence Act, 1872, there is presumption

of Section 113-B which is related to Section 304-B of IPC. These

provisions are also quoted hereinunder -

"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 304B, of the Indian Penal Code, (45 of1860)"

11. Further, by passing various decisions, the Hon'ble Supreme

Court has summed-up the principle to constitute the offence under

Section 304-B IPC. In the case of Kansraj Vs. State of Punjab reported

in (2000) 5 SCC 207, the Hon'ble Supreme Court has elucidated the

following ingredients to prove dowry death -

"(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 years of her marriage;

(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

CRIMINAL APPEAL No.554 of 1998

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected to soon before her death. "

12. Further, in the case of Suresh Kumar v. State of Haryana

reported in (2013) 16 SCC 353, the Hon'ble Supreme Court also has held

as under -

27. Importantly, Section 304-B IPC does not categorize death as homicidal or suicidal or accidental. This is because death caused by burns can, in a given case, be homicidal or suicidal or accidental. Similarly, death caused by bodily injury can, in a given case, be homicidal or suicidal or accidental. Finally, any death occurring "otherwise than under normal circumstances" can, in a given case, be homicidal or suicidal or accidental. Therefore, if all the other ingredients of Section 304-B IPC are fulfilled, any death (whether homicidal or suicidal or accidental) and whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances shall, as per the legislative mandate, be called a "dowry death" and the woman's husband or his relative "shall be deemed to have caused her death". The section clearly specifies what constitutes the offence of a dowry death and also identifies the single offender or multiple offenders who has or have caused the dowry death

28. The evidentiary value of the identification is stated in Section 113-B of the Evidence Act, 1872 (the Act). The key words in this section are "shall presume" leaving no option with a court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable. Section 113-B of the Act

CRIMINAL APPEAL No.554 of 1998

enables an accused to prove his innocence and places a reverse onus of proof on him or her."

13. Further, in the case of Bansi Lal v. State of Haryana

reported in (2011) 11 SCC 359, the Hon'ble Supreme Court observed as

under -

"19. It may be mentioned herein that the legislature in its wisdom has used the word "shall" thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with any demand of dowry. It is unlike the provisions of Section 113-A of the Evidence Act where a discretion has been conferred upon the court wherein it had been provided that court may presume abetment of suicide by a married woman. Therefore, in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused. The only requirements are that death of a woman has been caused by means other than any natural circumstances; that death has been caused or occurred within 7 years of her marriage; and such woman had been subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry.

20. Therefore, in case the essential ingredients of such death have been established by the prosecution, it is the duty of the court to raise a presumption that the accused has caused the dowry death............"

14. Bare reading of the above mentioned provisions and verdicts

given by the Hon'ble Supreme Court, it appears that when death of a

CRIMINAL APPEAL No.554 of 1998

married woman is caused by burns or bodily injuries or occurs otherwise

than under normal circumstances within a period of seven years of her

marriage and the woman was subjected to cruelty or harassment by her

husband or any relative of her husband and such cruelty of her husband

should be for or in connection with the demand of dowry and such cruelty

or harassment, the deceased should have been subjected to soon before

her death be called as dowry death and the woman's husband or his

relative shall be deemed to have caused her death. Section 304-B of IPC

does not categorize death as homicidal or suicidal or accidental.

15. Further, two things have to be seen in respect of offence

punishable under Section 304-B IPC; first, to make sure whether the

ingredients of the Section have been made-out against the accused and if

the findings are affirmative, then secondly, to ascertain that the accused is

deemed to have caused the death of the woman.

16. Further, when a married woman dies of unnatural death

either suicidal or homicidal, due to harassment or cruelty made in

connection to any dowry demand soon before her death by her husband or

relative of husband, presumption of Section 113-B comes into effect and

under such circumstance, the Court shall presume that such person had

CRIMINAL APPEAL No.554 of 1998

caused the dowry death. Once the ingredients of Section 304-B IPC are

fulfilled by the prosecution, the onus shifts to the defence to produce

evidence to rebut the statutory presumption and to prove that the death

was in the normal course and the accused was not connected.

17. Since, learned trial Court has given its affirmative finding

with regard to dowry death of the deceased by the appellant, therefore,

this Court has to examine whether the findings of learned trial Court are

correct or not?

18. Now, I am embarking upon to examine the evidence

available on record.

19. On perusal of record, it is undisputed that marriage of

deceased Lalta Bai was solemnized with the appellant and she died of

unnatural death within one year of her marriage.

20. With respect to cause of death, the prosecution has produced Dr. N.K. Pandey (PW-7) who noticed following injuries on the body of deceased -

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CRIMINAL APPEAL No.554 of 1998

3- cksuh duky rFkk b;j duky esa tek gqvk [kwu Hkjk Fkk A

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8- mijksDr ds vfrfjDr lHkh vkarfjd vax ihrkHk Fks A 9- 'ko ijh{k.k eSus ,oa MkWDVj lh-,l-pkSgku usa la;qDr :i ls fd;k Fkk A eSus 'ko ijh{k.k ij izfrosnu fy[kk Fkk ftlds voyksdu esa ikbZ xbZ lHkh fooj.k ;Fkkor fy[ks Fks A MkWDVj lh-,l-pkSgku esjs voyksdu ls ,oa vfHker ls lger Fks A 10- e`rdk ds 'kjhj ij ikbZ xbZ lHkh migfr;ka e`R;q iwoZ dh Fkh o izd`fr ds lkekU; dze esa e`R;q dkfjr djus i;kZIr Fkh A mldh e`R;q mls 'kjhj ij fo'ks"kr% efLr"d esa vfLFk Hkax ds dkj.k mrdksa ds dqpy tkus dks fLFkfr ls mRiUu dksek ds dkj.k gqbZ Fkh A e`R;q ijh{k.k ls 36 ls 48 ?kaVs ds Hkhrj vof/k esa gqbZ A izfrosnu iz-ih- 12 ij d ls d ,oa [k ls [k Hkkx ij esjs gLrk{kj ,oa x ls x MkDVj lh-,l-pkSgku ds gLrk{kj gS A 11- fnukad 8-3-97 dks vkj{kd f'kodqekj dzekad 259 esjs ikl Fkkuk izHkkjh dk vkosnu iz-ih-13 lfgr ,d dqYgkM+h ysdj vk;k Fkk A ;g vfHker pkgk x;k Fkk fd D;k e`rdk yfyrk ckbZ ds 'kjhj ij ikbZ xbZ pksVas dqYgkM+h ls vkuk laHko Fkh o mlds xnZu ij Qkalh yxkus ds fu'kku ik;s x, Fks A

Since, the deceased succumbed to bodily injuries caused with blunt

object on her head, that too within seven years of marriage under other

than normal circumstances, it clarifies that first two ingredients of Section

304-B are satisfied.

CRIMINAL APPEAL No.554 of 1998

21. As far as demand of dowry is concerned, the evidence on

record suggests that Prem Bai (PW-8) mother of deceased and Jagdish

(PW-9) father of deceased as well as Baseer Mohd. (PW-10) are found

unanimous on the point of demand of Rs.10,000 /- to start a business and

threatening to dire consequences on non-fulfillment thereof by the

appellant/accused. These witnesses seem to be consistent in their cross-

examination on the said point. Moreover, PW-8 and PW-9 deposed that

the deceased had disclosed that the appellant used to harass her on

account of demand of money. Being tortured, the deceased also returned

back to her parental house and did not want to go again to her

matrimonial house, however, on the assurance of well-keeping by the

father of accused, she got ready to go there.

22. However, being family members of the deceased, the

credibility of PW-8 and PW-9 has been doubted by the appellant's

counsel and in that context, in the case of Rohtash Kumar v. State of

Haryana reported in (2013) 14 SCC 434, the Hon'ble Supreme Court has

held as under :-

"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and

CRIMINAL APPEAL No.554 of 1998

cross-examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof.

26. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360 : 1996 SCC (Cri) 1278 : AIR 1996 SC 2766] this Court held, that evidence of a hostile witness would not be rejected in entirety, if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny, and thereafter, that portion of the evidence which is consistent with either the case of the prosecution, or that of the defence, may be relied upon.

27. Therefore, the law permits the court to take into consideration the deposition of a hostile witness, to the extent that the same is in consonance with the case of the prosecution, and is found to be reliable in careful judicial scrutiny."

23. The principle relating to interested witnesses/close relatives

has also been laid-down by the Hon'ble Supreme Court in the case of

Surinder Singh Vs. State of Haryana reported in (2014) 4 SCC 129,

relevant para is reproduced herein:-

"33. Before closing, the most common place argument must be dealt with. In all cases of bride burning it is submitted that independent witnesses have not been examined. When harassment and cruelty is meted out to a woman within the four walls of the matrimonial home, it is difficult to get independent witnesses to depose about it. Only the inmates of the house and the relatives of the husband, who cause the cruelty, witness it. Their servants, being under their obligation, would never

CRIMINAL APPEAL No.554 of 1998

depose against them. Proverbially, neighbours are slippery witnesses. Moreover, witnesses have a tendency to stay away from courts. This is more so with neighbours. In bride burning cases who else will, therefore, depose about the misery of the deceased bride except her parents or her relatives? It is time we accept this reality. We, therefore, reject this submission."

24. Therefore, the evidence of witnesses (PW-8 and PW-9)

cannot be discarded merely because they are relatives of the deceased.

Relationship is not a factor to affect credibility of a witness. However,

close scrutiny is required before accepting their evidence.

25. Learned counsel for the appellant has also argued that there

is no evidence to show that any demand of dowry was made soon before

the death of the deceased. In this context, in the case of Kans Raj

(supra), the Hon'ble Supreme Court has defined the meaning of phrase

'soon after' used in the provision of Section 304-B of IPC, relevant para

is quoted as under:-

"15.It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term "soon before"is not synonymous with the term "immediately before" and is opposite of the expression

CRIMINAL APPEAL No.554 of 1998

"soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."

26. Therefore, now it becomes clear that the phrase 'soon before

her death' in Section 304-B IPC does not mean 'immediately prior to

death of deceased'. However, the prosecution must establish the existence

of "proximate and live link" between the dowry death and cruelty or

harassment for dowry demand by the husband or his relatives.

CRIMINAL APPEAL No.554 of 1998

27. In the present case, the incident took place within one year

of marriage and only within eight days when the deceased returned to her

matrimonial house from her parental house on assurance of well-keeping

by her father-in-law. Therefore, this is not a case where the allegation was

leveled after lapse of more than enough time which would fatal the case

of prosecution. The aforesaid chain of circumstances proves that there

existed a live and proximate link between the instances of demand of

dowry and the death of deceased.

28. Therefore, looking to the evidence as discussed above, this

Court is of the considered view that learned trial Court rightly found that

the appellant/accused was demanding money from the deceased and

constantly torturing her for the same.

29. Now, the only issue which arises to be decided by this Court

is as to whether learned trial Court was right in presuming that the

appellant/accused caused dowry death of the deceased.

30. From the above analysis, it is clear that the prosecution was

able to successfully prove that the death of deceased occurred due to

bodily injuries within seven years of her marriage under other than

normal circumstances. It has further been proved that soon before her

CRIMINAL APPEAL No.554 of 1998

death, she was subjected to harassment and cruelty pursuant to demand of

dowry by the appellant. Since, the ingredients of Section 304-B of IPC

stand satisfied, the presumption under 113-B of the Inidan Evidence Act

operates against the appellant, who is deemed to have caused the offence

specified under Section 304-B of IPC, therefore, the burden shifts on the

accused to rebut the aforesaid presumption.

31. On perusal of record, it appears that the appellant took the

plea of alibi stating that on the day of incident, he was not present on the

spot, indeed, he went to her sister's house and on the next day, he came to

know about the incident. The appellant/accused also produced Choti Bai

(DW-1) in support of his plea. In this regard, the evidence given by

Kamla Bai (PW-2), Bhoori Bai (PW-5) and Kundan (PW-4) are

important. As per Kamla Bai (PW-2), on the day of incident when she

was coming from school, she saw appellant/accused was going

somewhere saying he is going to his sister's house on his bicycle and the

deceased was stopping him. Thereafter, she saw accused was going

towards village. Feeling different from daily affairs of deceased, on

suspicion, Kamla Bai went to house of the deceased where she saw

deceased was hanging. Bhoori Bai (PW-5) also supported the statement

CRIMINAL APPEAL No.554 of 1998

of Kamla Bai to the extent that they saw the accused was going towards

the village and thereafter, deceased did not come out from her house and

ultimately found dead. Kundan (PW-4) was the person who got the

deceased off from hanging. Therefore, considering the evidence given by

PW-2, PW-4 and PW-5, it can be said abundantly that the appellant was

seen lastly with the deceased prior to the incident.

32. Learned counsel for the appellant questioned the credibility

of Kamla Bai (PW-2) being child witnesses. In this regard, the law is very

clear that a child witness if found competent to depose to the facts and

reliable one, such evidence could be the basis of conviction. In other

words, even in absence of oath, the evidence of a child witness can be

considered under Section 118 of the Evidence Act provided that such

witness is able to understand the questions and able to give rational

answers thereof. The evidence of a child witness and credibility thereof

would depend upon the circumstances of each case. The only precaution

which the Court should bear in mind while assessing the evidence of a

child witness is that the witness must be a reliable one and his/her

demeanor must be like any other competent witness and there is no

likelihood of being tutored.

CRIMINAL APPEAL No.554 of 1998

33. In the case at hand, the statement of Kamla Bai (PW-2)

to the extent that she saw the appellant/accused going towards the

village after the incident, has not been challenged by the defence.

34. Therefore, the presumption given under Section 113-B

of Evidence Act goes against the appellant and he failed to rebut the

same herein. Learned trial Court rightly disbelieved the evidence

given by Choti Bai (DW-1). The finding given by the trial Court

regarding conviction under Section 304-B of IPC, is hereby,

affirmed.

35. So far as the sentence is concerned, the trial Court has

imposed the minimum sentence under section 304-B of the I.P.C.

Thus, the sentence imposed by the trial Court is affirmed.

36. The appeal sans merit and is hereby dismissed.

Impugned judgment of conviction and sentence, as passed by the

trial Court is affirmed. The appellant is on bail. His bail bonds are

cancelled and he is directed to immediately surrender before the trial

Court for undergoing the remaining jail sentence.

CRIMINAL APPEAL No.554 of 1998

37. Let a copy of this judgment along with its record, be sent

to the Court below for information and compliance.

38. The appeal fails and is, hereby, dismissed.

(RAJENDRA KUMAR (VERMA)) JUDGE Prachi

PRACHI PANDEY 2023.03.17 18:04:34 +05'30'