Sunil Sahu vs The State Of Madhya Pradesh
2023 Latest Caselaw 18210 MP

                                   1



      IN THE HIGH COURT OF MADHYA PRADESH
                            AT I N D O R E
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                                   &
                 HON'BLE SHRI JUSTICE ANIL VERMA
                   CRIMINAL APPEAL No. 948 of 2014

BETWEEN:-
 SUNIL SON OF ANANDILAL JI SAHU, AGE 26
YEARS, OCCUPATION AUTO GARAGE,
RESIDENT OF VILLAGE BAKHATGARH,
TEHSIL BADNAWAR, DISTRICT DHAR
(MADHYA PRADESH) POLICE STATION
BADNAWAR DISTRICT DHAR
                                                       .....APPELLANT
(BY SHRI YOGESH KUMAR GUPTA - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION BADNAWAR
DISTRICT DHAR (MADHYA PRADESH)
                                                     .....RESPONDENT
(BY SHRI SANTOSH SINGH THAKUR - GOVERNMENT ADVOCATE)


Reserved on             :     26/10/2023
Pronounced on           :     01/11/2023


      This appeal having been heard and reserved for orders, coming on
for pronouncement this day, the JUSTICE ANIL VERMA pronounced
the following:
                            JUDGMENT

The appellant has preferred present criminal appeal under Section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the

impugned judgment dated 28.4.2014 passed by 3rd Additional Sessions Judge, Dhar District Dhar (M.P.) in Sessions Trial No. 143/2013, whereby the appellant has been convicted and sentenced as under:-

Conviction                            sentence
Section         Act           Imprisonment fine                imprisonment
                                                               in lieu of fine
302             IPC           Life            Rs. 2,000/-      1 years RI
                              imprisonment
498-A           IPC           2 year‟s RI     Rs. 1,000/-      3 months RI
201             IPC           5 years RI      Rs. 2,000/-      6 months RI
4               Dowry         1 year‟s RI     Rs. 1,000/-      3 months RI
                Prohibition
                Act

The jail sentence has been directed to run concurrently. 2 It is admitted fact that marriage of deceased Shweta was solemnized with appellant on 14.4.2012 and she has been died on 3.2.2013.

3. As per prosecution story after the marriage appellant Sunil used to harass her wife deceased Shweta for non fulfillment of demand of dowry, as a result of which either she committed suicide or she was murdered by appellant. On 3.2.2013 Shewata was brought dead at government hospital Badnawar. Her postmortem was conducted by Dr. Sheela Mujalda (PW-6) and Dr. M.M. Upasani (PW-9) and as per their report cause of death of deceased was determinate strangulation and

failure of heart and lungs. SDOP Smt. Pratima Patel (PW-7) inspected the spot and prepared spot map and Executive Magistrate also prepared Laash Panchanama. During the investigation Nylon rope and prescription slip were recovered from possession of appellant and death of deceased was found unnatural. Query report has been also obtained from the concerned doctors.

4. After completion of investigation, charge sheet was filed before the JMFC Badnawar, who has committed the case to the Court of Sessions. Thereafter the case was transferred to the court of 3rd Additional Sessions Judge Dhar for trial. The trial Court on the basis of the allegations made in the charge sheet framed charges under Section 498-A, 304-B of IPC, in alternative section 302,306 and 201 of IPC and section 4 of Dowry Prohibition Act against the appellant. Appellant abjured the guilt and pleaded complete innocence.

5 In order to bring home the charges, the prosecution has examined as many as 11 witnesses but defence did not examine any witness. The trial Court after appreciating the evidence available on record, convicted and sentenced the appellant as mentioned herein above. Hence, the appellant has preferred this appeal.

6. Learned counsel for the appellant contended that the judgment of the trial Court is contrary to law and facts on record. It is neither legal nor proper nor correct. There is material contradiction and omission in the statement of Bhikarilal Sahu (PW-1) , Sarla Sahu (PW-2) and Sunita Sahu (PW-3) regarding the demand of dowry. Dr. M.M. Upasani (PW-9) categorically stated in his cross examination that cause of death of deceased appears to be suicidal , no external injury was found over

the person of the deceased. There is no evidence on record which shows that soon before the death of the deceased, she was harassed by her husband for demand of dowry. Prosecution has failed to prove the motive of incident. Prosecution has failed to examine the independent witness. The trial court was wrong in drawing unwarranted inference in not considering the material contradictions and omissions in the statement of prosecution witnesses. Prosecution could not prove its case beyond reasonable doubt. He has placed reliance upon judgments in the cases of Pradyumnasahu Vs. State of Odisha reported in 2022 Legal Eagle (ORI) 382 and order dated 1.2.2023 passed by Madras High court in the matter of Simsonyabez Vs. State passed in Crl.A.(MD) No. 430 of 2021. Hence, he prays that the appeal be allowed and the impugned judgment of conviction and sentence passed by the trial Court be set aside and appellant be acquitted from all the charges.

7. Per contra, learned counsel for the respondent / State opposes the prayer by supporting the impugned judgment passed by the trial Court and prays for dismissal of this appeal by submitting that trial Court after appreciating the entire evidence available on record in detail convicted the appellant. The trial Court has not committed any error in holding that the appellant is guilty for the offence under Section 302 of IPC. Hence, no interference in the impugned judgment is warranted, therefore, present appeal deserves to be dismissed.

8. We have heard learned counsel for both the parties at length and perused the entire record of the trial Court with due care.

9. Considering the plea raised at bar, we are required to examine as to whether learned trial court has committed any factual or legal error

in arriving at the finding of the guilt of appellant regarding section 302 of IPC. We find that the following questions have emerged for consideration before this court:

i) Whether the death of deceased is homicidal in nature or not?

ii) Whether the appellant has committed the murder of deceased or not?

10. Dr. M.M. Upasani (PW-9) has performed the postmortem of deceased on 3.2.2013. On examination of dead-body of deceased Shweta, he deposed as under:-

2- e`frdk dk 'kjhj lkekU; dn] dkBh] dkys jax dk ;qok efgyk dk 'ko FkkA e`frdk ds v/kksoL= isVhdksV ds mij tes gq, [kwu ds laHkkfor egkokjh ds jDr ds /kCcs mifLFkr FksA e`frdk dk 'kjhj iw.kZr;k dMk iM+ pqdk FkkA psgjk fyfoV FkkA vkW[ks can FkhA dkjfu;k Li"V FkkA vkW[k dh iqryh iw.kZr;k Qsyh ,oa QhDl voLFkk esa FkhA vkW[k dh datuVk;ck vR;f/kd datsLVsM voLFkk esa gksdj ,oa nkfguh ,oa ck;ha vkW[k ds cycj datuVk;ck ds fupys fgLls esa tes gq, jDr ds isfVdh mifLFkr FkhA nkar iw.kZr;k Hkhps gq, FksA thHk eqWg ds vanj esa FkhA gksV Hkh uhys iM+ pqds FksA xnZu ,oa gkFk&iSj esa Hkh jk;xjekfVZl fo?keku Fkh] gkFk ,oa iSj ds uk[kwu Hkh uys iM+ pqds FksA e`frdk ds nk;sa ,oa ck;sa dku ds xqfgdk esa yky tek gqvk jDr mifLFkr FkkA nksuksa dku ds ck;sa fiUuk vR;f/kd datsLVsM voLFkk esa FksA egkokjh dk jDr teh gqbZ voLFkk esa e`frdk ds ckg~; tuukax ,oa tuukax ds ckyks ij ,oa nksuks tka?kks ds mijh fgLls esa vxz van:uh {ks= esa teh gqbZ voLFkk esa mifLFkr FkkA 3- e`frdk ds xnZu ij ,d e`R;q iwoZ dh fyxspj ekdZ mifLFkr Fkk] tks fd xnZu ds mijh e/; fgLls esa fLFkr gksdj iwjh xnZu dks ?ksjrs gq, djhc 30 ls-eh- dh yackbZ dk gksdj ,oa pkSM+kbZ varj ysrs gq, ,d ls Ms<+ ls-eh- dh jsta esa tks fd xnZu ds ck;sa fgLls esa ck;sa tcM+s ds esfa Moy ds fupys fgLls ls gksdj xnZu ds usi okys fgLls esa gksrs gq, ihNs rd tk jgh FkhA fyxspj ekdZ dk jax ,oa lrg lq[kh] xgjh

czkmu gksdj ikpZesaV tSlh gksdj vfu;fer xgjkbZ ysrs gq, ck;ha xnZu ds e/; fgLls ls gksdj ck;sa dku ds ihNs ls gksrs gq,] xnZu ds usi okys fgLls ls gksdj nkfguh xnZu rd ?ksjrh gqbZ mifLFkr FkhA fyxspj ekdZ dh peM+h vR;f/kd datsLVsM voLFkk esas FkhA e`frdk ds ckg~; :Ik esa mlds xnZu ij xkB ds fu'kku ckcn tkudkjh tks fd esjs }kjk iwoZ esa foLr`r mYysf[kr dj fn;k ;k gSA e`frdk ds flj dh peM+h vR;f/kd lwth gqbZ Fkh ,oa efLr"d dh fNYyh vR;f/kd datsLVsM voLFkk esa Fkh ,oa efLr"d] es:jTtq vR;f/kd datsLVsM voLFkk esa FkkA 4- e`frdk ds inkZ] ilyh] dkseyLo vR;f/kd datsLVsM voLFkk esa FkhA QwlQwl vR;f/kd datsLVsM voLFkk esa FkhA e`frdk dh daB ,oa okl uyh ds fMlsD'ku djus ij xnZu dh peM+h ds fups okys Vh'kw esa vR;f/kd datsD'ku ik;k x;k ,oa xnZu dh Fkk;jkbZM dkWV~yst ds ck;sa dkjuks ij QzSDpj ik;k x;kA xnZu dh fgfiXykfVl vR;f/kd datsLVsM voLFkk esa Fkh ,oa 'olu uyh dh van:uh 'ys'kek fNYyh Hkh ykyhek fy;s gq, vR;f/kd datsLVsM voLFkk esa FkhA nkfguk vkSj ck;ka QsQsM+s vR;f/kd datsLVsM voLFkk esa gksdj Qwys gq, Fks] mudks dkVus ls jDrh; jax dk flje @[kwu fudy jgk FkkA g`n; dh fNYyh vR;f/kd datsLVsM voLFkk esa FkhA g`n; vR;f/kd datsLVsM voLFkk esa gksdj g`n; ds nkfguh rjQ ds nksuks psEcj xsgjs izokgh yky jDr ls Hkjs gq,s Fks ,oa iyequjh vkVjh ,oa foukdsok Hkh xgjs ykyjax ds jDr ls Hkjs gq, FksA g`n; ds nksuks psEcj jDr ls [kkyh FkhA isV dk inkZ vR;f/kd datsLVsM voLFkk esa FkkA vkarks dh fNYyh datsLVsM FkhA eqWg] xzkluyh] xzluh datsLVsM FkhA isV dh ck;ha fNYyh ,oa van:uh fNYyh vR;f/kd datsLVsM voLFkk esas gksdj isV dh xqfgdk esa gksdj mlesa cgqr gh de v/kipk [kkuk FkkA NksVh vkar ,oa cM+h vkar esa v/k ipk [kkuk ,oa xSl ,oa ipk gqvk [kkuk mifLFkr FkkA ;d`r] Iyhgk] xqnkZ vR;f/kd datsLVsM voLFkk esa FksA e`frdk ds Hkhrjh ,oa ckgjh tusfUnz;k esa ;g ik;k x;k fd e`frdk dh cPpsnkuh esa dksbZ xHkZ ugha gksus ds izek.k Fks vkSj og egkokjh esa Fkh] ftlds dkj.k mldh ckg~;

tusfUnz;ka ds mij [kwu tek gqvk FkkA 5- e`frdk dh e`R;q ne ?kqVus ds QyLo:Ik g`n; ,oa QsQM+s Qfy;j gksus ds Qy:o:i] tks fd e`R;q iwoZ dh gSfxax ds dkj.k gksuk izrhr gksrh gSA esjs ijh{k.k ls 6 ls 24 ?k.Vs ds vanj gksuk izrhr gksrh gSA

bl e`R;q iwoZ ds gSfxax dh ifjfLFkfrtU; xokgksa ds }kjk osfjQk; djus dh lykg dh tkrh gSA e`frdk dk 'kjhj dks iksLVekVZe djus ds mijkar esjk er ;g gS fd e`R;q dk izdkj e`R;w iwoZ ds ne ?kqVus ds dkj.k gq, g`n;] QsQM+s ds Qsfy;j gksus ds QyLo:Ik gksuk izrhr gksrh gS] tks fd e`R;q iwoZ ds gSfxax ds dkj.k vkuk izrhr gksrh gSA 6- e`R;q dh izd`fr lqlk;My gksuk izdV gksrh gS] ftls ifjfLFkfrtU; lk{; ls izekf.kr djus dh lykg nh tkrh gSA iksLVekVZe fjiksVZ izn'k ih 5 gS] ch ls ch Hkkx ij esjs gLrk{kj gSA

11 Dr. Shila Mujalda (PW-6) also conducted the postmortem of deceased and opined that blood found on the private part of the deceased was menstrual blood and no injury mark has been found over her private part. Although Dr. M.M. Upasani (PW-9) has formed an opinion that cause of death was suicidal in nature but this conclusion has been controverted by the Presiding officer who after considering the manner of the death and considering the fact that blood was oozing out from both the ears, that there was an absence of salivation and other features, concluded that death was result of murder and not suicide. After considering this aspect it is proved that death of deceased Shweta was not natural and occurred due to the asphyxia. Even assuming that it to be a case of suicide the incident has occurred in the house in which the appellant Sunil the husband also resided, as per section 106 of Evidence Act it was for him to explain the circumstances leading to death of his wife. Although learned counsel for appellant submits that deceased used to keep unwell, therefore, she may have committed suicide and has pointed out to medical prescription.

12 However, a perusal of the cross examination of the witness shows that no such suggestion has been given to any of the prosecution witnesses that the deceased had committed suicide, even the appellant in

his examination under section 303 of Cr.P.C did not take a plea that deceased had committed suicide. It is also noteworthy that Tehsildar Srikant Sharma (PW-7) who has visited the spot and prepared Lash Panchanama (Ex.P-2) did not state anything that deceased was found hanged condition on any rope. Therefore, no symptom of hanging of deceased was found on the spot. SDOP Pratima Patel (PW-8) who has prepared the spot map (Ex.P-6) did not find any symptom of hanging of deceased on the spot, therefore, in absence of aforesaid evidence the appellant has failed to prove that deceased has committed suicide by hanging herself.

13 In view of the oral evidence as well as medical evidence available on record, it appears that ligature mark has been found all around the neck of deceased.

14 Dr. M.M. Upasani (PW-9) who examined the rope seized from possession of appellant has opined that ligature mark found over the neck of deceased may be caused by hanging of the aforesaid rope and his query report is Ex.P-12. Blood was oozing out from both the ears of deceased. The oral as well as medical evidence is sufficient to prove that death of deceased was homicidal in nature and cause of her death is strangulation. It is also clear that in the instant case, there is no eye witness and entire case of prosecution is based upon circumstantial evidence.

15 In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116, the Hon‟ble Apex Court has held as under:-

"1. The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely „may be‟ fully established;

2. The facts so established should be consistent with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of a conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

16 In the present case the trial court has relied upon the testimony of Bhikarilal Sahu (PW-1) and Sarla Sahu (PW-2) who happens to be parents of the deceased and Sunita Sahu (PW-3) and Jyoti Sahu (PW-4) who happens to be sisters of deceased. All these witness categorically stated in their statement that appellant used to frequently quarrel with his wife and demanded Rs. 2 lakhs cash as dowry. When they saw the dead body of deceased they found some black marks over her eye and neck and swelling on her face. All these witnesses stated that due to non fulfillment of demand of dowry appellant has murdered the deceased by strangulating her neck.

17 Learned counsel for appellant submits that there are so many omission and contradiction of PW-1 to PW-4 in their court statement and police statement, all these witnesses belong to same family and are close relatives of deceased, therefore, their statement cannot be relied

upon.

18 From perusal of the statement of all these witness, this court is of the considered view that the trial court has rightly considered that such contradictions and omissions in the statement of all these witnesses are trivial in nature and same is neither material nor sufficient to discard their testimony which has been duly corroborated by the statement of each other. The Hon'ble Apex Court in the case of State of M.P. Vs. Chhaakkilal and others and Ramveer and Chhaakki Lal and another reported in 2018 (4) Crimes 238 (SC) has observed that finding recorded by trial Court is entitled to great weight. The same cannot be interfered with unless vitiated by serious error. It is also observed that the evidence as a whole having a ring of truth cannot be discarded merely because the maker is a related witness. Conviction can be based on evidence of solitary eye witness. It is further observed that omissions or lapses in investigation cannot be a ground to discard the prosecution case which is otherwise credible and cogent.

19 Section 106 of Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him, if appellant was alone with her wife/deceased inside his bedroom, burden of proof lies upon appellant to explain certain circumstances in respect of his plea regarding the suicidal death. But the appellant did not produce any evidence in his defence, even he did not inform the police authorities about the incident. Therefore, his conduct just after the incident appears to be very suspicious. He tried to hide the rope, which is also suspicious circumstances against him. Recovery of incriminating material rope on his disclosure statement is a

duly proved positive circumstances against him.

20 It is noteworthy that unnatural death of deceased occurred within 10 months of her marriage. Considering the aspect of demand of dowry from the evidence of father, mother and sister of deceased it appears that although no dowry was taken or demanded by appellant at the time of marriage, however, there is evidence to suggest that on and after Makar Sankranti, the deceased had complained to her family members of the parentaly house that she was being harassed for dowry of Rs. 2 lakhs by appellant. There of course has to be some major cause for resorting to extreme steps by the deceased, this being an instance of unnatural death within very short period of her marriage and with no explanation under section 106 of the Evidence Act by appellant. Thus, the following circumstances are proved against appellant.

i)     Failure to prove alibi;
ii)    Cause of death of his wife was by strangulation and homicidal in
nature;

iii) Recovery of incriminating rope from his possession;

iv) Attempt to destroy the evidence by appellant;

v) Presence of motive for causing murder of his wife.

vi) Mentally and physically harassed her wife for non-fulfillment of demand of dowry.

21 It is also noteworthy that appellant has been convicted under section 498-A of IPC for harassment and cruelty with his wife. Death of his wife has taken place within 10 months of their marriage. Therefore, presumption under section 113-B of Evidence Act has been also drawn against the appellant. In the instant case, prosecution has successfully

proved that soon before her death deceased has been subjected by appellant to cruelty or harassment, therefore, the court should presume that such person has caused the dowry death.

22 In the case of State of Punjab Vs. Baldev Singh 1997 Crl.J. 2133, it has been held that accused was charged to have caused death of newly wed wife by pouring poison in her mouth but the conviction under section 302 of IPC could not be sustained for want of evidence, however since the death was occurred within 7 month of marriage same was considered as dowry death and the accused was convicted under section 304B as he could not produce any evidence which could rebut the presumption that death was deemed to have been caused by accused husband or his relatives.

23 In view of the above legal position, this court is of the considered view that accused made persistent demand of dowry due to which deceased unnaturally died within 10 months of her marriage therefore, the conviction of the appellant under section 302 IPC is not appropriate and death of deceased is considered as dowry death therefore, it will be appropriate that appellant is convicted for offence under section 304B IPC instead of Section 302 of IPC.

24 In view of the aforesaid discussion, this appeal is partly allowed. The appellant‟s conviction under section 302 of IPC is hereby set aside, but appellant is convicted for offence under sections 304B, 498A, 201 of IPC and section 4 of Dowry Prohibition Act. The sentence awarded by the trial court for offence under sections 498A and 201 IPC is upheld. Appellant has been convicted for offence under section 304B of IPC and sentenced to 10 years RI with fine of Rs.

2,000/-. Since the appellant has completed more than 10 years in custody, therefore, on deposit of fine amount, the appellant be released forthwith if not required in any other case.

25 Registry is directed to send a copy of this judgment to the jail authority as well as the trial court concerned for information and necessary compliance.

(VIVEK RUSIA) (ANIL VERMA) J U D G E J U D G E BDJ

Digitally signed by BHUNESHWAR DATT

BHUNESH DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092ee5a 74a94a5534aed3a66d9385cfcfc201e0,

WAR DATT postalCode=452001, st=Madhya Pradesh, serialNumber=89FD75A8D0C99E05779A32797 4E46BC85102826CE0604B211E4C91102B4D126 9, cn=BHUNESHWAR DATT Date: 2023.11.02 17:06:06 -07'00'