Latu @ Latori vs State of M.P.

U.C. Maheshwari, J.—The appellant/accused has preferred this appeal being aggrieved by the judgment dated 10.5.1996 passed by IVth Additional Sessions Judge Jabalpur, in Sessions Trial No. 637/95, convicting the appellant u/s 304B of I.P.C. for RI 7 years. The facts giving rise to this appeal in short are that on dated 27.8.1995, on receiving the information from the informer, younger brother of the appellant namely; Kissu regarding unnatural death of Ujiyari Bai @ Bhuri Bai the wife of the appellant, an inquest report u/s 174 of Cr.P.C. (Ex. P./1), was registered at Police Station Bhedaghat, Jabalpur. In it''s inquiry after preparing the spot map and the seizure memo of the articles found at the place of the incident, the Panchnama of the dead body (Ex. P./3) was prepared. The dead body of the deceased was sent to the hospital where autopsy was carried out. According to post-mortem report (Ex-P/7), the cause of death of Ujiyari Bai was found to be shock due to antemortem burn injuries. In further enquiry of the inquest, on interrogating the parents and the grand-mother of the deceased on establishing the prima facie circumstances of the offence of Sections 498A and 304B/ 34 of I.P.C. against the appellant and his mother Giraja Bai, the First Information Report was registered against them for such offence. The appellant and his mother were arrested. The interrogatory statements of the witnesses were recorded. On completion of the investigation, the appellant and his mother were charge-sheeted for the aforesaid offences.

After committing the case to the Sessions Court, on framing the charges against the appellant and his mother for the offence of Sections 498A and 304B of I.P.C., they abjured the guilt. On which, the trial was held. On appreciation the co-accused Giraja Bai, was acquitted from both the charges while, extending the acquittal to the appellant from the charge of Section 498A of I.P.C., he was held guilty for the offence u/s 304B of I.P.C. and was punished with the above mentioned punishment on which, the appellant has come to this Court with this appeal.

Shri Ravindranath Sahu, learned appearing counsel of the appellant after taking me through the record of the trial Court argued that on appreciation of available evidence after extending the acquittal to the appellant from the charge of Section 498A of I.P.C., he ought to have been acquitted by the trial Court from the charge of Section 304B of I.P.C. also. According to him, in the charge of Section 498A of I.P.C. the alleged act of the appellant regarding cruelty, harassment and torture towards the deceased Ujiyari Bai on account of demand of dowry or otherwise, were included, therefore, after holding that the prosecution has failed to prove such charge and acquitting the appellant from such charge he would not have been convicted u/s 304B of I.P.C. He further argued that keeping in view the material ingredients of Section 304B of I.P.C. and of Section 113B of the Evidence Act, if the impugned case is examined then, it is apparent that the prosecution has utterly failed to prove that subsequent to marriage of the deceased with the appellant till her death at any point of time, the appellant has committed any act of cruelty, harassment or torture towards her either oh account of demand of dowry or otherwise. In continuation he said that, on taking into consideration the evidence led by the prosecution as accepted in it''s entirety even then, it could not be said that the deceased Ujiyari Bai, was subjected to any cruel treatment or harassment on account of demand of dowry by the appellant in her matrimonial home. In this respect, the prosecution had neither made any effort to interrogate any witness of the locality of the matrimonial home of the deceased or to examine any of them to prove such act of the appellant. By referring the deposition of the parents and grand-mother of the deceased namely; Chandu (PW-1), Kamla Bai (PW-2) and Chironjibai (PW-3), he argued that on going through the same, it is apparent that on the date of making the demand of Rs. 5000/- by the appellant in presence of his wife from the parents and grand-mother of the deceased on his visit their respective home or prior to it, or even subsequent to that, the deceased was never subjected to any cruelty or harassment on account of demand of any dowry in the matrimonial home, the same has not been proved by their testimonies. At this juncture, by referring the case diary statement of Kamla Bai (Ex. D/2), the counsel argued that in such interrogation, she stated only simple version that Ujiyari Bai was facing the problem in the matrimonial home because of some activity of her husband and mother-in-law but earlier, she was not subjected to any cruelty or harassment on account of demand of dowry. So, in the lack of such material ingredients of alleged cruelty in the interrogatory statement of the mother of the deceased mere on the basis of that the deceased being married with the appellant within seven years from the date of the alleged incident and died due to burn injuries in other word by unnatural death, the appellant''s conviction could not be sustained. Unless all material ingredients of Section 304B of I.P.C. are proved by cogent and admissible evidence. It was also argued that in the available circumstances this possibility could not be ruled out that on refusing by the parents and grand-mother of the deceased to give them Rs. 5000/-, as per their demand of necessity and not dowry, the deceased became aggrieved from her parental family and after returning the matrimonial home, on such account, had committed the suicide. In continuation, he also argued that prosecution has not adduced any evidence showing that even after returning the deceased to her matrimonial home with the appellant till her death at any point of time she remained under any cruelty, harassment or torture of the appellant on account of dowry or otherwise. So, in such premises, it could not be said that soon before the death, the deceased was subjected to any type of cruelty on account of demand of dowry by the appellant. In such premises, prayed for extending the acquittal to the appellant by setting aside the impugned judgment of conviction by allowing this appeal.

On the other hand Shri Rakesh Kesherwani, learned Panel Lawyer by justifying the impugned conviction and sentence of the appellant said that the same being based on proper appreciation of the evidence, do not require any interference at this stage. He also said that mere on account of minor discrepancies or inconsistencies in the inter-se depositions of the examined prosecution witnesses, the appellant cannot be acquitted in the matter. In continuation he said that, although as per available evidence on record, it has not been proved by the prosecution by examining any independent witnesses of the locality in which the deceased was residing with the appellant that the deceased in her lifetime was subjected to any cruelty or harassment or torture by the appellant on account of demand of dowry, but on the basis of available evidence of the witnesses examined from the parental family of the deceased, the inference could be drawn that soon before death the deceased was subjected to cruelty, harassment on account of demand of dowry in her matrimonial home within 7 years of her marriage by the appellant and due to that by pouring the kerosene and setting fire on herself she committed suicide. In response of some query of the Court, learned Panel Lawyer fairly conceded that there is no specific evidence on record showing that subsequent to marriage at any point of time, the deceased was subjected to any harassment or torture on account of demand of dowry by the appellant and prayed for dismissal of this appeal.

Having heard the counsel at length, keeping in view the arguments, I have carefully gone through the record of the trial Court. It is undisputed fact on record that the deceased Ujiyari Bai got married with the appellant near about before 1 year from the date of committing the alleged suicide by pouring kerosene and setting fire on herself. In this appeal the Court has to answer the question whether on the basis of the available evidence led by the prosecution the requisite material ingredients of Section 304B of I.P.C. are made out to affirm and uphold the impugned conviction of the appellant under such Section or not. And on re-appreciation of evidence if any of material ingredients of such Section is found absent then the Court has to decide the sustainability of impugned conviction of the appellant accordingly. Before proceeding further to examine and re-appreciating the available evidence as ready reference, I would like to mention the material ingredients of Section 304B of I.P.C., the same are as under:-

(a) The death of a woman is caused by burns or bodily injury or otherwise then under normal circumstances,

(b) Such death of woman is caused within 7 years of her marriage, and,

(c) Soon before the death of such woman she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand of dowry.

On examining the deposition of Dr. Pramod Shrivastava (PW-5), who carried out the autopsy of the deceased and prepared the post-mortem report (Ex. P/7), it is apparent that the Ujiyari Bai died because of shock due to ante-mortem burn injuries on her body. Such deposition of the doctor is also supported by the deposition of the investigating Officer Anand Prakash Singh (PW-6). So in such premises, it could be said that the prosecution has successfully proved the aforesaid first material ingredients of Section 304B of I.P.C. that Ujiyari Bai died due to alleged antemortem burn injuries, in other words otherwise in a normal course.

From the depositions of Chandu (PW-1), the father of the deceased, Kamla Bai (PW-2), the mother of the deceased and of Chironji Bai (PW-3), the grand-mother of the deceased, it has been established that Ujiyari Bai, got married with the appellant near about before one year from the date of committing the suicide by pouring the kerosene and setting fire on herself. So, accordingly the aforesaid second ingredient (b) of Section 304B of I.P.C. has been proved by cogent and reliable evidence that deceased got married with the appellant within 7 years from the date of her marriage.

Now, I proceed to examine the matter to consider the aforesaid third material ingredients (c) of Section 304B of I.P.C.

Chandu (PW-1), the father of the appellant, on recording his deposition categorically stated that before some days from the date of the incident on the festival of Raksha Bandhan he brought his daughter Ujiyari Bai from her matrimonial home to his home. Thereafter, on the festival of Harchat, the appellant came to his residence to bring Ujiyari Bai, on such occasion, he made the demand of Rs. 5000/- from him, on which he replied him that the grand-mother of Ujiyari Bai, is residing at Ujiyarpur and he may go there and take such money from her. It is apparent from para 3 and 4, of his chief that such demand was not made on account of or in connection of dowry. Even otherwise, he has not stated that such demand was ever made by the appellant as dowry or otherwise from his daughter. He did not state any specific incident on which the alleged demand was made by the appellant from his daughter or on account of any such incident she was ever subjected to any cruelty or harassment in her matrimonial home by the appellant. I would like to mention here that in the entire in-chief, not a single word regarding demand of dowry has been stated by this witness.

Smt. Kamla Bai (PW-2), the mother of the deceased also initially stated that she has doubt that her daughter has been killed by the appellant and her mother, but in subsequent deposition, she stated that at the time of Raksha Bandhan, her daughter came to her residence and after some days, the appellant came to take her back to matrimonial home, on such occasion he made the demand of Rs. 5000/-, but on account of non-availability of such sum, she asked him and her daughter to go and take the same from the grandmother Chirongi Bai. On this deposition she was cross-examined in the light of her case diary statement (Ex. D/2) in which she categorically stated regarding omission of some material facts in her interrogatory statement. In such case diary statement (Ex. D/2), she categorically stated that on the festival of Raksha Bandhan, the appellant and his wife both were at his residence for two-three days and during that period her daughter did not say anything to her. While, the aforesaid demand of Rs. 5000/- was made by the appellant. But in such part of interrogatory statement, it is not stated by her that such demand was made by the appellant on account of demand of or in connection of dowry. So, in the light of such case diary statement of this witness mere on her deposition the inference could not be drawn that such demand of Rs. 5,000/- was made by the appellant on account of or in connection of dowry.

Coming to consider the deposition of Chironja Bai, (PW-3), the grandmother of the deceased, she stated that on the festival of Raksha Bandhan, Ujiyari Bai was brought by his father from her matrimonial home. Subsequent to that, such daughter and the appellant came to his house on the festival of Harchat and appellant demanded Rs. 5000/- from her on which, she asked them that at present she did not have such amount but she will make arrangement for the same. As per further deposition, on such reply, the appellant became aggrieved and went away from her residence along with Ujiyari Bai and subsequent to that, after some days, Ujiyari Bai committed suicide. Besides the aforesaid, no other independent witness of the locality, in which the deceased was residing with the appellant and his mother, to prove the fact that in the matrimonial home the deceased was subjected to cruelty, harassment or torture on account of demand of dowry by the appellant at any point of time has been examined by the prosecution.

So, in the foresaid premises, it is apparent that the story putforth by the prosecution and above mentioned three witnesses of the parental family of the deceased, that the deceased was subjected to cruelty or harassment on account of demand of dowry by the appellant, has not been proved by any cogent and admissible or, in any case, by independent source of the evidence.

In view of the aforesaid depositions of the witnesses examined from the parental family of the deceased, it is apparent that subsequent to marriage till the aforesaid festival of Rakshabandhan or subsequent to it, the deceased was never subjected to any act of cruelty or of harassment on account of demand of dowry in her matrimonial home by the appellant. It is also apparent from the record that prosecution has failed to prove that after brining the deceased from her parental home to her matrimonial home by the appellant till committed the alleged suicide by her at any point of time in any manner, she was subjected to any cruelty or harassment on account or in connection of dowry by the appellant. In the lack of such material evidence, it could not be deemed that soon before the death, the deceased Ujiyari Bai was subjected to cruelty or harassment on account of demand of dowry by the appellant.

At this juncture, I would like to mention that Chirongi Bai (PW-3) in para 10 of her cross-examination categorically stated that my grand-daughter and grand son-in-law the appellant being in scarcity of the money asked me to give them Rs. 5000/-. In view of such clear deposition of this witness, the demand of money on account of necessity by the appellant and deceased both could not be termed to be the demand of dowry.

Apart the above, in the available set of facts and evidence this possibility could not be ruled out that on denying or refusing the aforesaid demand of the deceased accompanied with the appellant for their necessity by the parental family feeling aggrieved Ujiyari Bai, without any act or intervention of the appellant committed suicide and thereafter under the garb of provision of presumption enumerated u/s 113B of the Evidence Act, by registering the impugned offence by the Police, the appellant and his mother were implicated in the matter. It is also apparent fact on record that at any point of time either during the course of inquiry of inquest report or prior to it or even any subsequent stage, no First Information Report or the complaint in this regard was made by any member of the parental family of the deceased. This circumstance shows that only under the garb of aforesaid provision of presumption, the appellant along with his mother was implicated in the matter. So, this Court has to answer the question also whether the provision of presumption enumerated u/s 113B of the Evidence Act was applicable to the present matter or not. At this juncture as ready reference, I would like to reproduce Section 113B of the Evidence Act the same is as under:-

Section 113B. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person or cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presumed that such person had caused the dowry death.

According to aforesaid Section, the prosecution is bound to prove beyond reasonable doubt that soon before the death, the deceased woman was subjected to cruelty, harassment or torture on account of demand of dowry by the accused. In view of aforesaid elaborate discussion, it has been established that the prosecution has failed to prove by cogent and reliable evidence that the deceased was subjected to any cruelty, torture or harassment by the appellant on account of demand of dowry then, in such premises, the aforesaid provision of presumption of Section 113B of Evidence Act, could not be invoked in the matter against the appellant.

In the aforesaid premises, it is held that the prosecution has failed to prove the aforesaid third material ingredients (c) of Section 304B of I.P.C. that the deceased soon before her death, was subjected to any cruelty of harassment on account of or in connection of dowry by the appellant.

Apart the above, I would like to mention here that when on appreciation of the evidence of the prosecution, the trial Court had concluded in para 14 of the impugned judgment that the prosecution has failed to prove that subsequent to marriage, the deceased was subjected to any cruelty on account of demand of dowry then, after giving such finding, there was no occasion before the trial Court to say or to hold that soon before the death or at any point of time subsequent to marriage, the deceased was ever subjected to any cruelty on account of demand of dowry. So, in such premises also, the approach of the trial Court holding the impugned conviction against the appellant is not sustainable and deserve to be set aside.

Therefore, by allowing this appeal, the impugned judgment holding the conviction and sentence against the appellant u/s 304B of I.P.C. is hereby set aside and the appellant is acquitted from such charge of Section 304B of I.P.C. The bail bond of the appellant are hereby discharged. Appeal is allowed as indicated above.