Madhya Pradesh High Court
Ajay vs State Of M.P. on 21 April, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 21st OF APRIL, 2025
CRIMINAL APPEAL No. 4161 of 2021
AJAY
Versus
STATE OF M.P.
Appearance:
Dr. Khuzema Kapadia, learned counsel for the appellant.
Shri H.S.Rathore, learned GA for the respondent/State.
JUDGMENT
Per: Justice Gajendra Singh
This appeal under section 374 of the Cr.P.C is preferred being
aggrieved by the conviction under section 304-B of the IPC and section 4 of
the Dowry Prohibition Act, 1961 and sentence of life imprisonment and fine
of Rs.5,000/- with default stipulation of 6 months simple imprisonment and
one year RI and fine of Rs.1,000/- with default stipulation of two months
simple imprisonment vide judgment dated 13.02.2021 in Sessions Trial
No.18/2017 by Additional Sessions Judge, Indore. Both the sentences of
imprisonment were ordered to run concurrently.
2. Facts in brief are that appellant was married to Savita on
21.05.2015 and she died by hanging on 04.09.2016 at her matrimonial home
situated at 115, Pancham Ki Phel, Indore. Marg no.37/16 was registered at
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police station Tukoganj, Indore and after enquiry a case under section 304-B
r/w section 34 of the IPC was registered on 06.09.2016 at crime no.498/2016
in PS Tukoganj, Indore against the appellant/husband Ajay Vadiya and in-
lawas Gopilal and Mangibai and sister-in-law Sangita and brother-in-law
Mukesh. After investigation a final report under section 304-B r/w section
34 of the IPC and sections 3 & 4 of Dowry Prohibition Act, 1961 was filed
in the Court of A.C.J.M, Indore where criminal case no.44102/16 was
registered and vide order dated 29.12.2016 the case was committed to the
Court of Sessions Judge, Indore.
3. Charges under section 304-B alternatively 302 of IPC and section
4 of the Dowry Prohibition Act, 1961 were framed and all the accused along
with appellant abjured the guilt and claimed for trial pleading innocence.
4. To bring home the guilt, prosecution examined as many as 20
witnesses. In the examination under section 313 of the Cr.P.C all the facts
were either denied or pleaded innocence and took the defence that due to the
death of Savita, they have been falsely implicated. No evidence was adduced
in defence.
5. Appreciating the evidence, trial court acquitted all the co-accused
and also acquitted the appellant from the alternative charge under section 302
of the IPC and convicted the appellant Ajay under section 304-B of the IPC
and section 4 of the Dowry Prohibition Act, 1961 and awarded sentence as
per para-1 of the judgment.
6. This appeal has been preferred on the ground that independent
witnesses did not support the prosecution witnesses. The statement of the
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witnesses relied by the trial court are self contradictory. The trial court
ignored the variations, contradiction and omissions in the statement of the
witnesses. The investigation is tainted and partial. The documents and
medical reports were not in support of the deceased. The trial court ignored
the judgments relied by the defence.
7. Heard.
8. Learned Govt. Advocate submitted that the trial court has
convicted the appellant/accused after appreciating the evidence in proper
perspective. It does not warrant interference. Considering the nature, the
sentence also does not warrant interference.
9. Perused the record.
10. It is not in dispute that Savita was married to appellant Ajay on
31.05.2015 and Savita died by hanging on 04.09.2016 at her matrimonial
home situated at 115, Pancham Ki Phel, Indore. Thus, it is established that
Savita died only after a period of one year 3 months and 4 days of her
marriage.
11. Trial Court has taken note of the fact that mother Shantibai
(PW/4) and sister-in-law Sangita (PW/5) have turned hostile and father
Prakash Chandra Sethi (PW/3) have supported the prosecution case in
examination-in-chief but did not support the prosecution in cross
examination but brother Yogesh (PW/2) and sister Sunita (PW/17) and friend
Hemlata (PW/20) have supported the prosecution case and appreciating their
testimony it was found proved that Savita was subjected to cruelty for
fulfilling the unlawful demand of Rs.2 lakhs and due to this she committed
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suicide on 04.09.2016 which comes under the category of otherwise than in
normal circumstances and attracted the presumption under section 113-A of
the Evidence Act and convicted the appellant.
12. Perusal of testimony of Prakash Chandra Sethi (PW/3) discloses
that his examination-in-chief was recorded on 12.01.2018 wherein he
supported the prosecution case but he changed his version to 360 degree in
cross examination that was conducted on 05.05.2018.
13. When we consider the fact that change of version in cross
examination is due to the fact that his cross examination was deferred on
12.01.2018 and was conducted after 4 months then it does not efface the
facts stated in examination-in-chief.
14. Now we appreciate the testimony of Yogesh (PW/2), Snita
(PW/17) and Hemlata (PW/20) then the findings of the trial court regarding
discharge of initial burden of proving demand of Rs.2 lakhs in connection
with marriage and subjecting Sunita with cruelty for fulfilling the unlawful
demand of Rs.2 lakhs and subjecting her with cruelty soon before the death
is also proved to the standard of burden of proof in civil cases i.e.
preponderance of probability as laid down in Sher Singh @ Partapa vs. State
of Haryana (2015) 3 SCC 724 which is being reproduced as below:
17 Keeping in perspective that Parliament has employed the amorphous
pronoun/noun "it" (which we think should be construed as an allusion to
the prosecution), followed by the word "shown" in Section 304B, the
proper manner of interpreting the Section is that "shown" has to be read
up to mean "prove" and the word "deemed" has to be read down to mean
"presumed". Neither life nor liberty can be emasculated without
providing the individual an opportunity to disclose extenuating or
exonerating circumstances. It was for this reason that this Court struck
down the mandatory death sentence in Section 303 IPC in its stellar
decision in Mithu vs. State of Punjab, AIR 1983 SC 473. Therefore, the
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burden of proof weighs on the husband to prove his innocence by
dislodging his deemed culpability, and that this has to be preceded only
by the prosecution proving the presence of three factors, viz. (i) the
death of a woman in abnormal circumstances (ii) within seven years of
her marriage, and (iii) and that the death had a live link with cruelty
connected with any demand of dowry. The other facet is that the
husband has indeed a heavy burden cast on his shoulders in that his
deemed culpability would have to be displaced and overturned beyond
reasonable doubt. This emerges clearly as the manner in which
Parliament sought to combat the scourge and evil of rampant bride
burning or dowry deaths, to which manner we unreservedly subscribe. In
order to avoid prolixity we shall record that our understanding of the law
finds support in an extremely extensive and erudite judgment of this
Court in P.N.Krishna Lal vs. Government of Kerala, 1995 Supp (2) SCC
187, in which decisions spanning the globe have been mentioned and
discussed. It is also important to highlight that Section 304B does not
require the accused to give evidence against himself but casts the
onerous burden to dislodge his deemed guilt beyond reasonable doubt. In
our opinion, it would not be appropriate to lessen the husband's onus to
that of preponderance of probability as that would annihilate the deemed
guilt expressed in Section 304B, and such a curial interpretation would
defeat and neutralise the intentions and purposes of Parliament. A
scenario which readily comes to mind is where dowry demands have
indubitably been made by the accused husband, where in an agitated
state of mind, the wife had decided to leave her matrimonial home, and
where while travelling by bus to her parents' home she sustained fatal
burn injuries in an accident/collision which that bus encountered. Surely,
if the husband proved that he played no role whatsoever in the accident,
he could not be deemed to have caused his wife's death. It needs to be
immediately clarified that if the wife had taken her life by jumping in
front of a bus or before a train, the husband would have no defence.
Examples can be legion, and hence we shall abjure from going any
further. All that needs to be said is that if the husband proves facts which
portray, beyond reasonable doubt, that he could not have caused the
death of his wife by burns or bodily injury or not involved in any manner
in her death in abnormal circumstances, he would not be culpable under
Section 304B.
We are aware that the word 'soon' finds place in Section 304B; but we
would prefer to interpret its use not in terms of days or months or years,
but as necessarily indicating that the demand for dowry should not be
stale or an aberration of the past, but should be the continuing cause for
the death under Section 304B or the suicide under Section 306 of the
IPC. Once the presence of these concomitants are established or shown
or proved by the prosecution, even by preponderance of possibility, the
initial presumption of innocence is replaced by an assumption of guilt of
the accused, thereupon transferring the heavy burden of proof upon him
and requiring him to produce evidence dislodging his guilt, beyond
reasonable doubt.
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15. Trial court has referred to the presumptions under section 113-A
of the Evidence Act, 1872 but the ingredients as proved certainly attracts the
presumptions under section 113-B of the Evidence Act, 1872. The
presumption attracted under section 113-B of the Evidence Act, 1872 is not
rebutted through cross examination of the witnesses to the standard as
mentioned in Sher Singh (supra). Accordingly, the trial court committed no
illegality in convicting the appellant under section 304-B of the IPC and
section 4 of the Dowry Prohibition Act, 1961, hence the conviction of the
appellant under section 304-B of the IPC and section 4 of the Dowry
Prohibition Act, 1961 is hereby affirmed.
16. Trial Court had convicted the appellant for life imprisonment
under section 304-B of the IPC. Before awarding the sentence of life
imprisonment, trial court has recorded the reasons in para-56 of the judgment
that appellant Ajay has no criminal antecedents but at the time of suicide
Savita was carrying pregnancy of three months, therefore, his act deserves no
leniency.
17. Apex Court has discussed the applicability of awarding extreme
punishment in Hem Chand vs. State of Haryana - (1994) 6 SCC 727 as
below:
------------As mentioned above Section 304-B I.P.C only
raises presumption and lays down that minimum sentence
should be seven years but it may extend to imprisonment for
life. Therefore awarding extreme punishment of
imprisonment for life should be in rare cases and not in every
case.
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18. Committing of suicide by the wife when she was carrying
pregnancy of 10-12 weeks satisfy the crime test but the reasoning recorded
by the trial Court in para-56 of the judgment does not satisfy the criminal
test. Accordingly, present case does not fall in the category of rare case
attracting maximum sentence of life imprisonment.
19. Considering all the facts brought on record in this case, it is not a
fit case to be awarded minimum sentence of 7 years RI also in this case.
Applying the principle of proportionality, a sentence of 10 years RI under
section 304-B of the IPC would serve the purpose.
20. Accordingly, this appeal is partly allowed and sentence under
section 304-B of the IPC is altered from life imprisonment and fine of
Rs.5,000/- to 10 years rigorous imprisonment and fine of Rs.5,000/- with
default stipulation as ordered by the trial Court. The sentence under section
4 of the Dowry Prohibition Act, 1961 requires no interference.
21. Copy of the judgment be supplied to the appellant through
concerned jail Superintendent. Record be remitted to the trial Court for
preparing supersession warrant.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
hk/
