Madhya Pradesh High Court
Mithun Suryavanshi vs The State Of Madhya Pradesh on 19 February, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
CRA No. 14917 of 2023
(MITHUN SURYAVANSHI Vs THE STATE OF MADHYA PRADESH)
Dated : 19-02-2024
Shri Vibhor Khandelwal, learned counsel for the appellant.
Shri Vinod Thakur, learned counsel for the respondent/state.
Shri Lakhan Chandel, learned counsel for the objector.
Heard.
Admit.
Also heard on IA No.620/2024, which is first application for suspension
of jail sentence under section 389 of Cr.P.C of appellant Mithun who has been
convicted under section 498-A and 304-B of IPC and sentenced to undergo RI
of 1 year and 7 year with fine of Rs.500,1000/- with default stipulations.
The admitted facts of the case are that the marriage between the appellant
and the deceased was solemnized on 06.05.2013. She died by consuming
poisonous on 13.09.2015.
Learned counsel for the applicant submits that the prosecution has failed
to establish the ingredients of section 304-B of IPC. The witness has not
deposed that the deceased was subjected to cruelty soon before the death in
relation to demand of dowry. In support of his submission, he has placed
reliance on the judgment passed in the case of Baijnath and Ors Vs. State of
MP reported in 2016 SCC Online SC 1287. Relevant para no.32 reads as
under:-
"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 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"
He also referred the judgment passed in the case of Charan singh Vs.
State of Uttarakhand reported in 2023 SCC Online SC 454. Relevant para
no.21 reads as under :-
In the aforesaid evidence led by the prosecution, none
of the witnesses stated about the cruelty or harassment
to the deceased by the appellant or any of his family
members on account of demand of dowry soon before the
death or otherwise. Rather harassment has not been
narrated by anyone. It is only certain oral averments
regarding demand of motorcycle and land which is also
much prior to the incident. The aforesaid evidence led by
the prosecution does not fulfil the pre-requisites to
invoke presumption under Section 304B IPC or Section
113B of the Indian Evidence Act. Even the ingredients of
Section 498A IPC are not made out for the same reason
as there is no evidence of cruelty and harassment to the
deceased soon before her death.
It is further submitted by learned counsel for the appellant that after
compromise between the appellant and the deceased on 17.03.2015, there is no
allegation of cruelty and harassment in relation to dowry by the prosecution
witnesses.
Learned counsel for the respondent/state and objector submits that the
prosecution has established ingredients of provision of section 304-B of IPC
and therefore, conviction and sentence does not warrant any interference and no
cases is made out for suspension of jail sentence. To appreciate the aforesaid
submission, it is relevant to reproduce the provisions of section 304-B of IPC :-
"'To attract the provision of section 304-B of IPC, the main ingredients
of the offence to be established is that :-
1. Soon before the death of the deceased, she was subjected to cruelty
and harassment in connection with demand of dowry.
2. The death of the deceased was caused by any burn or bodily injury or
some other circumstances which was not normal.
3. Such death occurs within seven years from the date of her marriage.
4. That the victim was subjected to cruelty or harassment by her
husband or any relative of her husband.
5. Such cruelty or harassment should be for or in connection with
demand of dowry and
6. It should be established that such cruelty and harassment was made
soon before her death. "
In this regard, a reference was made in the judgment passed by Apex
Court in the case of Kashmir Kaur Vs. State of Punjab reported in AIR 2013
SC 1039. The expression soon before her death used in the substantive section
304-B of the IPC and section 113-B of Evidence Act is present with the idea of
proximity test. No definite period has been indicated and the expression soon
before her death is not defined. The determination of such period which can
come within the term soon before is left to be determined by the Courts,
depending upon the facts and circumstances of each case. In this regard, a
reference may be made to the judgment passed in the case of Yashoda Vs.
State of MP reported in (2004) 3 SCC 98.
In light of the aforesaid law laid down by the Apex Court, the facts and
evidence of the present case are examined.
The contention of the appellant that after compromise on 17.03.2015,
there is no cruelty or harassment in relation to demand of dowry cannot be
accepted in view of specific allegation made by prosecution witness PW/3
Sona, sister of the deceased. She has alleged that the deceased was being
subjected to harassment after delivery of female child continuously till her death.
The father of deceased PW/2 Babulal has deposed that after the marriage
for one year the deceased was kept well by the appellant and their family. After
delivering the female child, she was subjected to Mar Pith and thereafter the
appellant and family members started harasing her. The testimony of PW/2
Babulal is well corroborated by the testimony of PW/3 Sona sister of the
deceased, PW/4 Kiran and PW/7 Vinita. They all have deposed that when she
delivered the female child on 03.02.2014, the appellant had done Mar Peet with
the deceased and thereafter they started harassing her mentally and physically.
The prosecution has proved its case by the testimony of these witnesses. It is
not in dispute that the death was taken place within the period of seven years of
marriage and her death was unnatural.
The witnesses have made specific allegation that Mar Peet was done with
her and dowry was demanded after delivering female child.
In view of the testimony of the aforesaid prosecution witnesses, prima
facie this court finds that the ingredients of section 304-B are present in the
present case. The judgments relied upon by the learned counsel for the
appellant would not apply to the facts and evidence of the present case.
In view of the aforesaid, IA No.620/2024 is dismissed.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
