HIGH COURT OF MADHYA PRADESH : JABALPUR SINGLE BENCH : HON. SHRI JUSTICE G.S. SOLANKI CRIMINAL APPEAL NO.528/2007 Seshnarayan and 2 others Vs. State of M.P. Shri Surendra Singh, Sr. Advocate with Shri Sanjay Patel, Advocate for the appellants Shri Sameer Chile, G.A. for respondent/State. ____________________________________________________________ Date of hearing : 01.10.2013 Date of posting : 08.10.2013 JUDGMENT
This appeal has been preferred under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 27.02.2007 passed by Second Additional Sessions Judge, Mandla in S.T.No.89/2005 whereby the appellants have been convicted under Sections 304-B and 498-A of the I.P.C. and sentenced to R.I. for 10 years and R.I. for one year with fine of Rs.500/- respectively with default stipulations. The sentences shall run concurrently.
2. It is undisputed that appellant No.1 is husband of deceased Babli and appellants No.2 and 3 respectively are father-in-law and mother-in-law of deceased Babli. It is also undisputed that marriage of appellant No.1 was solemnized in the year 2000 with Babli at Village Samaai, P.S. Nawabganj, District Allahabad.
3. Facts in short are that on 30.12.2004, Brahma Prakash Dwivedi (P.W.-2) father of deceased Babli received a telephone call that his daughter Babli committed suicide, then he rushed to Mandla on 31.12.04 and found that his daughter Babli was found in hanging condition. Some how, the matter was reported to the Police Station Maharajpaur. Police came there and prepared the inquest panchnama (Ex.P-3) and prepared the spot map (Ex.P-5). Dead body of Babli was sent for post mortem examination. Dr. Manoj Muraali (P.W.-6) has performed the post mortem examination on the dead body of Babli and opined that Babli died due to asphyxia, as a result of hanging. The post mortem report is Ex.P-13.
4. Brahma Prakash Dwivedi (P.W.-2) filed an application (Ex. P-4) with the allegation that appellants were harassed the deceased and demanded Rs.50,000/- for the purpose of getting the service of appellant No.1.
5. Initially a merg was registered and after enquiry, offence under Sections 498-A and 304-B of the I.P.C. has been registered against the appellants. After due investigation, they have been charge sheeted before Judicial Magistrate First Class, Mandla, who committed the case to the Court of Sessions. The Sessions Court made over the case to the trial Court. The trial Court framed the charge under Sections 498-A and 304-B of the I.P.C. against the appellants.
6. Appellants abjured the guilt and pleaded false implication. The defence of appellants under Section 313 of Cr.P.C. was that the marriage of Babli was solemnized with appellant No.1, without her consent, therefore, she was not happy at her matrimonial house at Mandla. Ultimately, she committed suicide in depressed state of mind. Appellants have examined Dhansingh Dhurve (D.W.-1), in their defence,
7. After appreciation of the evidence on record, the Additional Sessions Judge convicted and sentenced the appellants as mentioned hereinabove. Hence, this appeal.
8. Learned counsel appearing on behalf of the appellants submitted that the trial Court committed illegality in not appreciating the evidence on record in its proper perspective. He further submitted that deceased Babli was not happy with appellant No.1, therefore, she committed suicide in depressed state of mind. He further submitted that this fact disclosed by Babli herself in her letters Ex.Q-1 to Q-3. He further submitted that Babli has not made any allegation in aforesaid letters regrading harassment or cruelty committed by the appellants on her in connection with demand of dowry. He further submitted that none of the witnesses have stated that any cruelty was committed at the time of demand of aforesaid Rs.50,000/-. He further submitted that demand of some rupees for the purpose of the expenditure to get the government service of appellant No.1, such demand even if made, may not necessarily be demand of dowry. He has placed reliance upon the decision of the Supreme Court in Rohtash Vs. State of Haryana AIR 2012 SC 2297, therefore, he prays for setting aside the conviction and sentence recorded by the trial Court and further prays for acquittal of the appellants.
9. Learned Government Advocate appearing on behalf of respondent/State has supported the conviction and sentence recorded by the trial Court and prays for dismissal of the appeal.
10. I have perused the impugned judgment alongwith the record of the trial Court. It is not disputed on record that deceased Babli has died by hanging which is otherwise than under normal circumstances, within seven years of her marriage. This fact is duly corroborated by Dr.Manoj Muraali (P.W.-6) and further find support by his post mortem report (Ex.P-13).
11. The main question arises for consideration before this court is that whether deceased Babli, soon before her death, was subjected to cruelty or harassment by appellants in connection with demand of dowry.
12. Complainant Brahma Prakash Dwivedi (P.W.-2) has stated that in the year 2004, his son Satyendra visited the house of Babli. After returning from her matrimonial house, he told the complainant that in-laws of Babli were discussing the demand of Rs.50,000/- for the purpose of establishing the business or getting the service of Seshnarayan, husband of Babli. He further stated that Satyanarayan has not told him anything in regard to cruelty or harassment committed to Babli by the appellants. Satyanarayan Dwivedi (P.W.-4) has stated in his statement that there was no demand of dowry made by the appellants to him. In this way, he has not supported the prosecution case, therefore, the prosecution has declared him hostile. He admitted in his cross-examination that the nature of his sister was very emotional. He further admitted that when he visited her matrimonial house, he found nothing as to the effect that Babli was in trouble.
13. If all these evidence has been considered with the letters Ex. Q-1 to Q-3, which have been sent to the handwriting export alongwith the standard writing of Babli, handwriting expert A.C. Namdeo, in his report opined that the exhibits Q-1 to Q-3 have been written by the person who wrote the standard writing in N-1 to N-3. Though, these documents were not exhibited before the trial Court but it is the established principle of law that if any document produced by the prosecution and find place in the record, same can be read in evidence without any formal exhibition, for the purpose of defence of the accused.
14. On bare perusal of Exhibit Q-1 to Q-3, it is clear that deceased Babli herself wrote these letters to her parents that none of her in-laws has harassed her. She was disturbed in herself and committed suicide under depression. It further reveals that she has not made any allegations for committing any cruelty in connection with demand of dowry. The trial Court has failed to consider the aforesaid important piece of evidence on record. Therefore, the conviction recorded by the trial Court is liable to be set aside.
15. Subhash Kumar Dwivedi (P.W.-7), uncle of deceased Babli has stated in his evidence that Babli told her aunt Sushiladevi that her husband Seshnarayan has demanded Rs.50,000/- for getting the government service and Sushiladevi told this fact to Subhash Kumar Dwivedi (P.W.-7). Primarily Sushila Devi has not examined before the trial Court. In these circumstances, the statement of Subhash Kumar Dwivedi (P.W.-7) comes under the category of hearsay evidence. Further he admitted in his cross-examination that Babli had not told that she has been subjected to any cruelty in connection with aforesaid demand of Rs.50,000/-. He further stated that the fact of demand of Rs.50,000/- was also confirmed by his sister-in-law (Bhabhi), Shantidevi (P.W.-8), but this very fact is not find place in his previous statement recorded by police. In this way, it is exaggeration before the trial Court and same is amount to omission.
16. Shantidevi (P.W.-8), mother of deceased Babli herself stated in her statement that appellants were not harassed Babli but they were only demanding Rs.50,000/- for the purpose of the expenditure to get the government service of appellant No.1
17. After careful scanning of the statement of Shantidevi (P.W.-8), if it is found proved that appellants were demanding Rs.50,000/- for the purpose of establishing the business or for the expenditure of getting the government service of appellant No.1, Sheshnarayan, such demand could not be necessarily comes under the definition of demand of dowry, as held by the Apex Court in Rohtash Vs. State of Haryana (supra). In these circumstances, trial Court committed an illegality in recording the conviction under Sections 304-B and 498-A of the I.P.C.
18. Considering the aforesaid discussions on record, alongwith the letters, said to have been written by the deceased herself, the trial Court committed illegality in recording the conviction and sentence under Sections 304-B and 498-A of the I.P.C. against the appellants, which is not sustainable in the eye of law, same is liable to be set aside.
19. In the result, appeal is allowed. Conviction and sentence recorded against the appellants under Sections 304-B and 498-A of I.P.C. is hereby set aside and they are acquitted from the aforesaid charge.
Appellants are on bail. Their bail bonds and surety bonds stand discharged.
Record of the trial Court be sent back alongwith copy of this judgment immediately for compliance and necessary action.