Ashok Kumar vs State of M.P.

S.S. Jha, J.

This appeal is filed by appellant against his conviction for an offence u/s 304-B and 498 A of I.P.C. and sentenced to Life Imprisonment and two years Rigorous Imprisonment, respectively.

According to prosecution, deceased Maya wife of appellant Ashok Kumar went to her parent''s house at Subhash Nagar, Gwalior and informed her brother that she is administered poison in the cup of tea by her husband. She told her brother that her husband has dropped three tablets in the tea. After having that tea she felt restlessness and went to the house of her parents. Her brother Kashiram (P.W. 1) took her to the Hospital and informed the police at police station, Gwalior. Deceased Maya was admitted in female ward of Kamla Raja Hospital. Police informed the duty doctor to record dying declaration. During treatment, Maya died and intimation regarding death was given by Dr. Kiran, R.M.O. of Kamla Raja Hospital on telephone at police station, Gwalior. After investigation, appellant was arrested. Charges under Sections 302, 304-B and 498 A I.P.C. were framed against the appellant and on appreciation of evidence appellant is acquitted of the changes for an offence u/s 302 of I.P.C. and sentenced to Life Imprisonment for an offence under Sections 304-B I.P.C. and 498-A I.P.C.

Counsel for appellant submitted that there is no evidence against the appellant for his conviction. Counsel for the appellant invited attention of the court to the depositioa of P.W. 1 Kashiram., Kashiram (P.W. 1) in para 2 of his deposition deposed that the appellant was demanding big vehicle in dowry and was telling his wife that instead of big vehicle a small vehicle (Luna Moped) is given in the marriage and for that reason he used to beat his sister, deceased Maya, In para 3 of his; deposition he has deposed that on 1-9-1991 appellant has mixed sulfas tablets in the tea and ran away. Thereafter, deceased, came to him and he took her to Hajeera Police station there his sister gave a statement that appellant has mixed sulfas tablets in the tea. She had brought one tablet which mixed in tea. Police told Kashiram (P.W. 1) to take his sister to the hospital immediately. He informed the lady doctor who was treating that her husband has mixed poison in the tea and after consuming that tea Maya has been brought to the hospital. She died on the same day, about 3 to. 3-15 in the afternoon. In para 5 of his deposition this witness has stated that the reason for harassment was that instead of bigger vehicle Luna Moped was given as dowry. He admitted that the appellant has not asked him to give big vehicle but he was told by his sister 3-4 months after the marriage. In the cross-examination he further admitted that he met his sister last time a month before her death. He further deposed that once his sister came weeping to his house. He admitted that he has not told anyone regarding torture by the appellant to his wife. He admitted that he has convened Panchayat which was held at the residence of appellant Ashok, but none of the panchas were examined by the prosecution. In para 5 of the deposition, this witness had admitted that 7-8 days after the death of his sister he went to T.I. Prakash Singh and C.S.P. Sharma along with 15-20 persons and lodged report that his sister has been murdered by the appellant by administering poison. He has also submitted a written complaint to that effect. However, no such document was produced by the prosecution. In cross-examination this witness had further deposed that half dissolved tablet was mixed in the tea and the evidence regarding sulfas was mixed in the tea has mistakenly stated by him.

P.W. 2 Kamal Kumar had deposed that his sister had told him that accused had mixed sulfas tablet in the tea, which resulted into her death. He has stated that accused was demanding scooter. This witness had deposed that he was informed by his sister that she is harassed on account of demand of dowry by her in laws. He admitted that these facts are not mentioned in his police statement Ex. D/2.

P.W.3. Ramdin, father of the deceased had deposed that his daughter Maya was administered poison in the tea. Thereafter, Maya was taken to the hospital by Kashiram, Murari and Sarman. He admitted that deceased was living in a rented house near their house. In spite of getting knowledge that the appellant is beating his daughter he had neither gone to the house of the appellant nor cared to pacify appellant Ashok. He admitted that he has not mentioned in the police statement that appellant Ashok has mixed tablet in the tea.

P.W. 4 Pannalal, who is elder brother of Ramdin, father of the caused, has stated that on account of less dowry Maya was harassed and tortured. P.W. 5. Beti Bai is the mother of the deceased. She has admitted that the appellant was living with her parents and separated from his parents after the marriage and Maya along with her husband was residing about 25-30 paces from their house. On 1-9-1991, at about 7 in the morning, Maya came to her house and said that her husband has mixed poison in her tea and had left the house. When she sent some person at her house he was informed that appellant has vacated the house and left, thereafter, her son Kashiram (P.W. 1) had taken (sic) to hospital where she died. On the date of incident, her son Kashiram''s wife delivered a child at 11-13 A.M. and she had taken daughter-in-law to the hospital at 10 A.M. in the morning and she had acquired knowledge about the death of her daughter Maya in the hospital. Thus, there has been contradiction in the statement of P.W. 5 Betibai. On one hand she has deposed that she had taken her daughter in-law to the hospital and on the other hand she stated that her daughter had come to her house at 7 AM. and then she sent a messenger to the house of appellant but the appellant was not found in the house. This statement is contrary to the evidence on record because seizure of the property was made in the house of the appellant and her statement that appellant has vacated the house is not true.

It is an admitted position that the deceased was admitted in the hospital and was treated by Dr. Kiran. Dr. Kiran was also asked to record the dying declaration of the deceased. Dr. Kiran is not examined by the prosecution though summons were sent to her. On her failure to appear before the court, the witness was not examined. Investigating officer R.B. Sharma (P.W. 16) in para 3 has also admitted that he has not recorded statement on the same day but the statements of witnesses were recoreded much later, i.e. on 8th, 9th and 10th September, He admitted that he has not seized any paper pertaining to the treatment of the deceased. He further stated that no dying declaration of the decased was recorded by the doctor. He admitted in para 8 that he has not seized any record pertaining to the treatment of the deceased. In para 12 he has stated that he arrested the appellant from Aara Mill, Gwalior in presence of Kashiram and Gyan singh. Sulfas tablets were kept on a rack in the house, which were seized. He also admitted that along with challan he has not submitted statement of Betibai, which was recorded during marg and statements which are mandatory to be filed along with the challan.

P.W. 18 Rant Deo Sharma had deposed that on receiving information on phone that deceased had consumed some poisonous material and she was admitted in Kamla Raja Hospital he has recorded intimation in the rojnamcha and went to Kamla Raja Hospital for investigation and requested R.M.O. to record dying declaration and returned back.

Counsel for the appellant submitted that there are material inconsistencies in the statements of the witnesses. He further pointed out that in Ex. P/17, report of Forensic Laboratory no poison is found in the viscera. Therefore, prosecution case that Maya had died on account of administering sulfas tablet is not established and appellant is liable to be acquitted. He submitted that from Ex. P/17 it is clear that no poison was found in the viscera of the deceased. It may be mentioned that Betibai (P.W. 5) in para 7 of deposition admitted that the deceased had not complained about torture by the appellant for demand of dowry till son of the deceased attained the age of seven months, which means that the relations between husband and wife were cordial for more than 1 and 1/2 years after marriage. Even from going through the provisions of Section 304-B I.P.C. it has to be seen that whether there was any demand of dowry at the time of marriage. Explanation to Section 304 B I.P.C. is to the effect that the word "Dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. None of the witnesses had deposed that there was any demand of dowry at the time of marriage. On the contrary, witnesses had categorically deposed that the marriage was solemnized in a peaceful atmosphere. It has come in the evidence of the witness Kashiram that the matter was taken before the Panchayat, but none of the panchas were examined. P.W. 9 Jayvantibai has stated that deceased came to her house and said that she has found a tablet in the ginger. She came to her house at 7 in the morning. Since her brother''s wife was admitted in the hospital and her mother was at the hospital, she returned back to her husband''s house.

On going through the report, Ex. P/17, of Asstt. Chemical Examiner, Govt. of M.P. ES.L. Sagar, no poisonous substance in the viscera of the deceased i.e. article "A" and article "B" was found. Therefore, it is not safe to maintain conviction of the appellant, as it is not established that the poison was found in the stomach of the deceased. Appellant''s conviction for offence u/s 304-B I.P.C. is therefore set aside and he is acquitted of the charge.

As regards conviction u/s 498-A I.P.C. is concerned, there is no specific evidence that on account of dowry deceased was tortured. P.W. 7 Malti Devi, wife of the elder brother of the deceased in para 2 of her deposition stated that Maya came to her house after consuming poison and she was having one tablet in her hand. This witness has not deposed that Maya was administered poison by the appellant. There is nothing on recorded to demonstrate that on account of demand of dowry and torture by the appellant, deceased has committed suicide. Considering the facts and circumstances of the case, prosecution has failed to prove the ingredients of Section 498-A of I.P.C. The appellant''s conviction for offence u/s 498-A I.P.C. is therefore set aside and he is acquitted of the charge.

In the result, appeal succeeds and is allowed and conviction and sentence of the appellant for offence under Sections 304 (part-II) and 498-A of I.P.C is set aside. His bail bond and surety bond are discharged.

Before we part, we must record that there is material lacuna in the investigation and it appears that the Investigating Officer has made the evidence to disappear with an intention to shield the accused or give benefit to the accused. Viscera of the deceased was prepared on 1-9-1991. On perusal of document, Ex. P/17 it appears that though the letter was written to Forensic Science Labor: lory on 10.9.1991 but the same was sent by massager on 25.11.91. Thus, evidence of poison in the viscera was caused to disappear by sending the viscera after two months

Secondly, statement of the doctor who treated the deceased was not recorded by the Investigating Officer knowing that some other person may have committed offence or to shield the present appellant. Though, (P.W. 16) R.B. Sharma, Investigating Officer has denied in para 8 that he has not seized any paper regarding treatment of the deceased in the hospital but on going through the challan-papers it is found that the treatment paper is on the record, which was filed along with the challan. At serial no. 8 in the challan it is clearly mentioned that medical report is annexed with the challan. But this witness has specifically denied this fact which shows his intention of shielding the main accused or bringing false case before the court. Therefore, it will be appropriate for the State to investigate the matter whether Investigating Officer with an intention to shield the accused has caused disappearance of evidence of offence by not sending the viscera in time and has given false evidence to shield the offender and shall file challan after proper investigation against the person concerned.