Ashok vs The State of Madhya Pradesh

B.D. Rathi, J.—The appellant stands convicted under Sections 498A of the Indian Penal Code (for short "the IPC") and Section 4 of the Dowry Prohibition Act and sentenced to undergo R.I. for 3 years and 1 year respectively, though he has been acquitted u/s 304B of the IPC. The impugned judgment dated 4/3/1998 was passed by VII Additional Sessions Judge, Jabalpur in Sessions Trial No. 694/94. By that judgment, co-accused Mahendra, Devendra and Subhash were acquitted of the offences charged with. According to the prosecution case, Sangeeta (since deceased) was married to Ashok on 12/7/1989 at Village Belkheda. Despite taking Rs. 27,000/- in dowry, Ashok and his family members, used to subject Sangeeta to cruelty and harassment persistently for bringing more dowry even after marriage, and in the process succeeded in obtaining Godrej Almirah, Sewing Machine and a Television from her parents. Sangeeta was also accused of stealing a necklace, which later on, was found in the possession of appellant only. On 3rd of October, Kailash, younger brother of Sangeeta brought her back from her matrimonial home, where she informed about the cruelty being inflicted upon her. On 20th October, when appellant came for taking Sangeeta back to her matrimonial home, she denied to go, but the respondent stealthily took their daughter with him and after some days, on much persuasion and assurance of her father-in-law, Sangeeta was sent to her matrimonial home. On 23/11/92, between 8 to 9 p.m., Sangeeta having suffered burn injuries, was admitted to Government Hospital, Belkheda, from where she was referred to Medical College Hospital, Jabalpur, where Executive Magistrate S.C. Beohar (PW4) recorded her dying declaration on 24/11/92 and during treatment she died on 30/11/92.

Charges u/s 304B of the IPC and Section 4 of the Dowry Prohibition Act were framed. Appellant pleaded false implication and not guilty.

Learned counsel for the appellant argued that the impugned judgment was passed without proper appreciation of evidence on record. He submitted that even if the entire prosecution case is accepted at its face value, then too the appellant could not be convicted.

In response, learned Panel Lawyer, while making reference to the incriminating pieces of evidence on record, submitted that the conviction was well merited and the impugned judgment does not deserve to be interfered with.

Having regard to the arguments advanced by the parties, record of the trial Court was perused.

Trial Court, after discussing the material and evidence available on record at length, has found that dying declaration (Ex. P/3) had been recorded at the instance of the deceased by Executive Magistrate on 24/11/1992. In this dying declaration, not a single allegation was leveled against the appellant and co-accused persons. It was stated therein that, while all the in-laws were available at home and she was making tea, she got burnt by stove. Again, in answer to very specific question that wasn''t there used to be any quarrel with her in-laws, she replied in the negative. She also did not level any allegation in regard to demand of dowry or any assault against the appellant and co-accused persons.

It is an admitted fact that the incident had taken place on 23/11/1992 and she succumbed to the injuries on 30/11/1992 and during the intervening period, she was hospitalized, where her sister, brother and parents used to visit her. As per the evidence of Nirmala Sahu (PW 1), Prahlad Sahu (PW 2), Kailash (PW 3), Savita (PW 5), respectively mother, father, brother and sister of the deceased, during their visit to hospital, deceased had informed them that appellant and his family members used to subject her to cruelty and harassment for non satisfaction of demand for dowry, and due to this reason, she had set herself ablaze for committing suicide.

The whole evidence of abovementioned prosecution evidence is not at all trustworthy because of the fact that neither they stated anything before the police immediately nor lodged any FIR. Statements of the said witnesses, containing the aforesaid allegations for the first time, were recorded on 22/12/92, almost one month after the incident and no explanation has been given by the Investigating Officer for the delay. Besides this, a written complaint (Ex. P/20) was also sent by the parents of the deceased to the Additional Superintendent of Police, Jabalpur on 5/12/92 after a period of 11 days.

The principle on which dying declaration is admitted in evidence is indicated in the legal maxim "Nemo moriturus praesumitur mentire"-a man will not meet his Maker with a lie in his mouth. In dying declaration (Ex. P/3), allegations were not made against the appellant and other acquitted accused that they ever subjected the deceased to cruelty and harassment for non fulfillment of demand for dowry or that they had set her to fire.

10 Therefore, in the aforesaid premises, neither the evidence of witnesses testified in Court nor the bills produced to show that some articles were purchased to fulfill demand for dowry, are trustworthy. In the result, the appeal stands allowed. Appellant is acquitted of all the offences. Appellant is on bail. His bail bonds stand discharged.

Copy of the judgment be sent to the trial Court for compliance.