Rajesh vs State of M.P.

This criminal appeal against conviction under Section 374 (2) of the Cr.P.C. filed on behalf of appellant accused Rajesh is directed against the

judgment dated 24.11.2009 passed by the Court of 4th ASJ, Sagar in Session Trial No.242/2005, whereby the accused appellant Rajesh was

convicted under Section 498-A of the IPC and was sentenced to under rigorous imprisonment for a period of 2 years and fine in the sum of

Rs.10,000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of 6 months.

The prosecution case before the trial Court may be summarized as hereunder. Accused Rajesh Tiwari had married deceased Sapna Tiwari on

24.06.2002. A sum of Rs.1,25,000/- in cash, a motorcycle and other house hold items were settled between the parties as dowry. Pursuant to

aforesaid settlement, Rs. 1,40,000/- in cash were given at the time of marriage. Out of aforesaid amount Rs. 40,000/- was for purchasing motor

cycle. Other house hold items were also given at the time of marriage. 10 days later, Sapna''s brother Jitendra had gone to matrimonial home of

Sapna at Sagar to bring her back. At that time, accused Rajesh and Sapna''s father-in-law Premnarayan, mother-in-law, Prabha and brother-in-

law, Yogesh had reminded him that Rs.14,000/- in cash and a sofa-set had not been given; whereon, Jitendra promised to make arrangement for

the same. Sapna stayed at her maternal home at Chachoda till Rakshabandhan. Thereafter, relatives of Rajesh had gone to bring her back to her

matrimonial home again reminding her brother regarding remaining dowry. Sapna stayed at her matrimonial home for about 3-4 months.

Thereafter, when Jitendra had gone to her matrimonial home to bring her back, aforesaid accused persons told him that Sapna would be sent back

to her maternal home only if remaining dowry was paid; whereon, Jitendra arranged for Rs.30,000/- and went back to Sagar and paid remaining

amount. Only then he was allowed to take his sister home. Sapna complained that her in-laws harassed her excessively. Her father-in-law abused

her, brother-in-law fought with her and husband beat her on number of occasions. Her husband had consumed liquor and had poured kerosene

upon her; therefore, Jitendra had kept his sister with him. When Rajesh had gone to bring her back, Jitendra refused to sent her. The relatives tried

to make Rajesh see reason; whereon, he promised that henceforth, they would not harass her. Consequently, Sapna was sent to her matrimonial

home with Rajesh. However, her matrimonial relatives lapsed back into old ways and started to persecute the deceased again. They would not

allow Sapna to speak to her relatives on telephone. Sapna used to privately complain to her relatives about the behaviour of her in-laws. She used

to tell her relatives that if she were not taken back to her maternal home, her in-laws would kill her. Ultimately, she committed suicide by

consuming poison on 24.01.2004.

After investigation, final report under Section 173 of the Cr.P.C. was filed and a charge under Section 304-B of the IPC was framed against

father-in-law Premnarayan, mother-in-law Prabha, brother-in-law Yogesh and husband Rajesh. After the trial, the trial Court recorded a finding to

the effect that the prosecution had failed to prove any offence against Premnarayan, Prabha and Yogesh. The prosecution had also failed to prove

the offence under Section 304-B of the IPC against accused/appellant Rajesh because it was not proved that the deceased was subjected to

cruelty or harassment by her husband or any of his relatives in connection with any demand for dowry made soon before her death. Therefore,

offence under Section 304-B of the IPC was not made out against appellant Rajesh. Consequently, all four accused persons were acquitted of the

offence under Section 304-B of the IPC; however, it was held to be proved beyond reasonable doubt that after marriage, appellant Rajesh had

persecuted the deceased by beating her and had inflicted cruelty upon her by pouring kerosene upon her. Likewise, it was also proved beyond

reasonable doubt that Rajesh had demanded Rs.30,000/- in cash and he had inflicted physical cruelty upon her. Consequently, he was convicted

for the offence punishable under Section 498-A of the IPC.

Learned counsel for appellant Rajesh has challenged the findings recorded by the trial Court mainly on the grounds that the trial Court failed to

properly appreciate the prosecution evidence. It failed to take note of the fact that it had held that there was no live link between the demand for

dowry and the suicide of the deceased because demand for dowry was made in November, 2002. Thereafter, no demand was made for a period

of about a year and a quarter and the suicide was committed in January, 2004. Therefore, appellant Rajesh was acquitted of the offence

punishable under Section 304-B of the Indian Penal Code and was convicted only under Section 498- A of the Indian Penal Code. Thus, the

cause of death of deceased Sapna Tiwari was not in question any more. Therefore, whatever was told by deceased Sapna regarding harrassment

to her relatives, would not amount to oral dying declaration but would fall under the category of hearsay evidence and; therefore, would not be

admissible. As such, the conviction of appellant Rajesh under Section 498-A of the Indian Penal Code, was principally based upon inadmissible

hearsay evidence. It has also been contended that the trial Court has recorded the finding in paragraph no.30 of the judgment that the prosecution

witnesses had resorted to exaggerations in respect of travails of the deceased in her matrimonial home; therefore, their evidence was not reliable. It

has not been disputed that deceased was suffering from tuberculosis of both lungs, since before her marriage and she was treated for the same. In

these circumstances, it appears that the deceased had committed suicide not because she had been subjected to any demand for dowry or cruelty

but because she was suffering from tuberculosis. It has also been urged that after conviction of appellant Rajesh under Section 498-A of the Indian

Penal Code, the parties had entered into a compromise outside the Court and an application in this regard, was filed in the High Court; however,

since, Section 498-A is non-compoundable, the application was dismissed on 01.08.2011 and it was observed that the factum of compromise

shall be taken into consideration at the time of final hearing of the case. In aforesaid circumstances, it has been prayed that the appeal be allowed,

conviction be set aside and appellant Rajesh be acquitted of the offence under Section 498-A of the Indian Penal Code.

Learned Government Advocate for the respondent/State on the other hand has supported the impugned judgment.

On perusal of record and due consideration of rival contentions, the Court is of the view that this appeal against conviction must succeed for the

reasons hereinafter stated:

It is an admitted fact that deceased Sapna had lost her father before her marriage. In these circumstances, her brother Jitendra Sharma (PW-5)

and mother Saroj (PW-7) are the most important witnesses. They have stated that at the time of her marriage on 24.06.2002 with appellant

Rajesh, they had given television, fridge, cooler, dressing table, double bed, Almirah, gold chain, gold ring, utensils, clothes and other articles in

dowry. They had also given Rs.1,11,000/- in cash and in addition thereto Rs.40,000/- for purchasing a vehicle. Ten days after the marriage, when

Jitendra (PW-15) had gone along with his cousin Amit to bring his sister back, Rajesh''s father accused Prem Narayan had reminded him that

Rs.14000/- out of amount of dowry settled, remained to be given and a sum of Rs.16000/- for buying sofa set was also due. On that occasion,

Jitendra (PW-15) had promised to pay the amount after making arrangement and had gone back taking his sister with him. On that occasion,

Sapna stayed in her maternal home till Raksha Bandhan. After that, relatives of Rajesh had taken Sapna back to her matrimonial home, where she

stayed for a period of about 3-4 months. When Jitendra again went to Sapna''s matrimonial home to bring her back, accused persons had told him

that unless he paid remaining Rs.30,000/- they would not send Sapna with him. Therefore, he had returned and went back after making

arrangement of Rs.30,000/-. He had given that amount to appellant Rajesh.

Jitendra (PW-15) has further stated that his sister had told him that her father-in-law used to abuse her and brotherin- law used to fight with her.

Her husband used to beat her and once had poured kerosene upon her after consuming liquor. Therefore, his sister had stayed with them at

Chanchoda. After that, at the time of house warming ceremony of Jitendra''s uncle Ramesh, appellant Rajesh had gone. All relatives of Sapna had

tried to make him see reason; whereon, he had assured that henceforth, there would be no complaint. After that, he had taken Sapna to Sagar but

Sapna had complained to her brother that her in-laws did not allow her to speak on telephone. She also implored her relatives to take her back.

She warned that otherwise, her in-laws would kill her. Thereafter on 3-4 occasions, Jitendra had gone to Sapna''s matrimonial home to bring her

back but the accused persons declined to send her on one pretext or the other. Jitendra had further stated that on 24.01.2004, they had learnt that

Sapna had died.

Saroj (PW-7), mother of the deceased, has stated that Sapna suffered from tuberculosis and they had got her treated at Rajgarh and Guna. She

further stated that if they had known before her marriage that Sapna was suffering from tuberculosis, they would not have married her. She admits

that the marriage was performed in good atmosphere and at that time there was no dispute. Sapna''s brother-in-law used to taunt that Saroj had

passed off a sick girl to them. She has further admitted that after the death of the deceased, the accused persons had declined to return the articles

given in dowry; therefore, they had filed a separate case against the accused persons. She has clearly admitted that if the accused persons had

returned the dowry, there would have been no dispute. She has categorically stated that in fact they had filed this case against the accused persons

for the purpose of recovering the articles given in dowry.

It may be noted in this regard that all accused persons including present appellant Rajesh had been acquitted of the offence punishable under

Section 304-B of the Indian Penal Code. Appellant Rajesh had been convicted only under Section 498-A of the Indian Penal Code. As such, the

cause of death of deceased Sapna is no longer in question in the case. The Supreme Court has held in the case of Inderpal v. State of M.P.,

(2001) 10 SCC 736 that :

Unless the Statement of a dead person would fall within the purview of Section 32 (1) of the Indian Evidence Act, there is no other provision

under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the

statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the

cause of death comes into question. By no stretch of imagination can the Statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those

quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing

with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for

consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.

Likewise in the case of Bhairon Singh v. State of M. P., AIR 2009 SUPREME COURT 2603 it has been held that:

The moot question is: whether the statements attributed to the deceased could be used as evidence for entering upon a finding that the accused

subjected Ranjana Rani @ Raj Kumari to cruelty as contemplated under Section 498-A, IPC. In our considered view, the evidence of PW-4 and

PW-5 about what the deceased Ranjana Rani @ Raj Kumari had told them against the accused about the torture and harassment is inadmissible

under Section 32(1) of the Evidence Act and such evidence cannot be looked into for any purpose. Except Section 32(1) of the Indian Evidence

Act, there is no other provision under which the statement of a dead person can be looked into in evidence. The statement of a dead person is

admissible in law if the statement is as to the cause of death or as to any of the circumstance of the transactions which resulted in her death, in a

case in which the cause of death comes into question. What has been deposed by PW-4 and PW-5 has no connection with any circumstance of

transaction which resulted in her death. The death of Smt. Ranjana Rani @ Raj Kumari was neither homicidal nor suicidal; it was accidental. Since

for an offence under Section 498-A simpliciter, the question of death is not and cannot be an issue for consideration, we are afraid the evidence of

PW-4 and PW-5 is hardly an evidence in law to establish such offence. In that situation Section 32(1) of the Evidence Act does not get attracted.

In view of aforesaid authoritative pronouncements of the Supreme Court, it is clear that whatever was told by Sapna to her relatives regarding

maltreatment at her matrimonial home would fall under the category of hearsay evidence and would; therefore, not be admissible. Thus, the

statement of Jitendra (PW-5) to the effect that his sister had told him that her fatherin- law used to abuse her, brother-in-law used to fight with her

and husband used to beat her and on one occasion, had poured kerosene upon her after consuming liquor, would not amount to oral dying

declaration but would fall under the category of hearsay evidence. Likewise, the allegation that his sister had told him that appellant and her in-laws

did not allow her to speak on telephone and they would kill her if she was not taken to her maternal home, would also not be admissible and these

allegations cannot be considered for the purpose of offence punishable under Section 498-A of the Indian Penal Code.

In aforesaid circumstances, only admissible evidence against appellant Rajesh is that television, cooler, fridge, dressing table, double bed,

Almirah, gold chain, gold ring, clothes and Rs.1,51,000/- were given in cash in dowry and Prem Narayan demanded remaining amount of

Rs.30,000/-. There is an omnibus allegation that the accused persons had demanded Rs.30,000/- and had told Jitendra that unless that amount

was paid they would not let Jitendra take his sister to her maternal home. Therefore, he had given Rs.30,000/- to Rajesh. It may be noted that

there is no allegation that any cruelty was inflicted upon the deceased for extracting Rs.30,000/- from her brother. Moreover, aforesaid allegation

cannot be taken at its face value in view of categorical admission of Saroj (PW-7), mother of deceased, to the effect that if the accused persons

had returned the articles given in dowry there would have been no dispute and in fact the present case was instituted for the sole object of

recovering the articles given in dowry. The theory that the present case has been instituted for the sole purpose of recovering articles given in

dowry, is fortified by the fact that no sooner the articles were returned, the case instituted for recovering the articles given in dowry was withdrawn

by the complainants and a compromise was entered into in the present case.

In aforesaid circumstances, in the opinion of this Court, bulk of evidence on which the trial Court had based the conviction was inadmissible for

the purpose of offence punishable under Section 498-A of the Indian Penal Code and remaining evidence does not appear to be reliable.

Therefore, in the opinion of this Court, appellant Rajesh deserves the benefit of doubt so far as offence punishable under Section 498-A of the

Indian Penal Code is concerned. As such, the trial Court erred in placing reliance upon the evidence of Jitendra (PW-5) and Saroj (PW-7) and

convicting appellant Rajesh under Section 498-A of the Indian Penal Code.

Accordingly, the conviction of appellant Rajesh under Section 498-A of the Indian Penal Code is liable to be set aside.

Consequently, this appeal against conviction succeeds. The conviction of appellant Rajesh under Section 498-A of the Indian Penal Code and

the sentence imposed upon him is set aside. He is acquitted of the offence punishable under Section 498-A of the Indian Penal Code.