Raju vs State of Madhya Pradesh

S.K. Gangele, J.—This appeal has been filed against the judgment dated 30.07.1997 passed by Additional Sessions Judge, Sehore in S.T. No. 367/96. By the impugned judgment the trial court convicted the appellant for commission of offence under Section 498-A and Section 3 and 4 of Dowry Prohibition Act and awarded the jail sentence of RI two years and ten years with fine of Rs. 500/-.

The prosecution story in brief is that the deceased Puljhad got married with the appellant three years before the incident. The Gouna was performed after two years of marriage. At the time of Gouna, the appellant had demanded an electric fan and Rs. 1000/- as dowry. That was not given, hence the appellant had treated the deceased with cruelty. When the deceased returned back to her in laws house, she told that the appellant had demanded an electric fan and Rs. 1000/as cash and when the amount was not paid, he had beaten her and also he had given electric shocks. The deceased had been residing in her in laws house for the period of six months. When the family members came to the house of the deceased after some conciliation, the deceased had gone to the house of the appellant. She lived with him for a period of two months and thereafter she died. The cause of death was burn injuries.

The FIR of the incident was lodged after the period of more than one month. After registration of FIR, the Police conducted the investigation and filed the charge sheet. Before the trial court, the appellant abjured the guilt. Before the trial court two persons were tried. However, the mother of the appellant and mother in law of the deceased, Baishakhiya bai was acquitted by the trial court.

PW-1, Tikiya in his evidence deposed that the deceased was the daughter of his younger brother. She was married with the appellant three years before. The Gouna was performed after one year of the marriage and at that time the accused- appellant demanded cash of Rs. 1000/- and an electric fan. That was not given to him. The family members of the deceased had been working as labourers.

After Gouna, the deceased came to the house of in laws for 3-4 times and she told to her in laws that the appellant had been demanding an electric fan and Rs. 1000/-. Because the dowry was not given, hence appellant had beaten her. In para 14 of his cross examination, he admitted the fact that his statement was recorded after the period of 1 and 1/2 months. The Police came to his house and recorded the statement. He further deposed that no report was lodged at the Police Station after death of the deceased. The Police came to his house for enquiry. He also deposed that there was panchayat in the village when the deceased was alive and after Panchayat, the deceased had gone to her in laws house, Sasural.

PW-2, Harilal, who was Uncle, (Mama) also deposed the same fact as deposed by PW-1. He further deposed that he had gone to take the deceased to the house of the appellant and at that time demand of dowry of one electric fan and Rs. 1000/- was given by the appellant. The statement of this witness was also recorded by the Police under Section 161 of Cr.P.C. on 13.5.1996.

PW -3, Tarabai simply deposed that the deceased died after burning herself.

PW-4, Siyabai stated that the deceased was the daughter of her younger sister. She further deposed that the accused - appellant had demanded an electric fan and Rs. 1000/- dowry from the deceased and due to non payment of dowry, she died. Her statement, Ex. D-3 under Section 161 of Cr.P.C. was recorded by the Investigating Officer on 13.5.1996.

PW-5, Kashiram Dahiya is the village Kotwar and he deposed that he received the information about the death of deceased from the mother of appellant and he forwarded the same to the Police Station, Slimnabad. On the information, a merg was registered at the Police Station, which is Ex. P-1.

PW-6, Head Constable, Shiv Kumar deposed that on the information received from the village, Kotwar, Kashiram Dahiya, merg was registered at the Police Station. Thereafter he went to the spot and the Panchanamas of the body, Ex. P-2 was prepared and witnesses were also summoned.

PW-7, Mahendra Kumar, who was working at the relevant time as Patwari deposed that on 11.6.1996 on the order of Tahsildar, he had prepared the map of the spot, Ex. P-3. It was prepared on the instructions of the witnesses.

PW-8, Rameshchand Sosodiya was working as SDO (P). At the relevant time, he conducted the investigation. After registration of merg, he had seized some articles, Ex. P-4 and also prepared the map. After investigation, an FIR was registered at the Police Station, vide Ex. P-6 for commission of offence under Section 304-B and Section 3 and 4 of Dowry Prohibition Act. He further deposed that he had recorded the statements of the witnesses and arrested the accused - appellant.

PW-9, Dr. S.P. Tiwari, in his evidence deposed that he was posted as Assistant Surgeon at Government Hospital, Sehora on 8.4.1996. He also performed the postmortem of the deceased. Smell of kerosene was coming from the body of the deceased. The deceased received 95% burn injuries and the Doctor opined that the deceased died due to burn injuries.

PW-10, Saraswatibai is the mother of the deceased. She deposed that the appellant had demanded dowry of one electric fan and Rs. 1000/- at the time of Gouna and because the amount was not paid, the appellant had treated the deceased with cruelty. Same fact was told by the deceased when she came to her house. The statement of this witness was also recorded after the period of one month as admitted by her in para 8 of her cross examination alongwith other witnesses.

PW-11, Bhagwat Prasad deposed that he had written the Lagun of the deceased.

PW-12, Jagannath Prasad is the witness of the Panchnama, Ex. P-12 and also the Map, Ex. P-11.

The appellant also examined two witnesses in his defence, Adhari D.W.-1 and Ashram, D.W.-2. Both the witnesses have deposed that the appellant and the deceased were member of poor family. They were working as labourers. Those witnesses deposed that no demand of dowry was made from the deceased. It is an admitted fact of the case that the report, Ex. P-6 of the incident was lodged on 12.5.1996. The incident is of 8.4.1996. In the merg, it was simply mentioned that the deceased died after receiving the burn injuries. After registration of the FIR, the statements of witnesses were recorded on 13.5.1996 more than one month after the incident. No witness has deposed in the evidence that what was reason for delay in recording the statements under Section 161 of Cr.P.C. The Investigating Officer also did not offer any explanation that why the statements of the witnesses were recorded after such a long period after delay of more than one month.

The Supreme Court in Abuthagir and Others Vs. State rep. by Inspector of Police, Madurai, has held as under in regard to delay in recording the statements of prosecution witnesses:--

"9. The prosecution version has to be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the Court must be integrated and not truncated or isolated. The Court has to appreciate in reaching the conclusion about the guilt of the accused, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of the witnesses. Much emphasis has been led by learned counsel for the appellants on the alleged delayed examination of the witnesses. It is well settled that delay in examination of the prosecution witnesses by the police during the course of investigation ipso facto may not be a ground to create a doubt regarding the veracity of the prosecution''s case. So far as the delay in recording a statement of the witnesses is concerned no question was put to the investigating officer specifically as to why there was delay in recording the statement. Unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for delayed examination is plausible and possible and the Court accepts the same as plausible there is no reason to interfere with the conclusion. (See Ranbir and Others Vs. State of Punjab, , Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, , Banti @ Guddu Vs. State of Madhya Pradesh, and State of U.P. v. Satish ( AIR 1004 SC 261). It is seen that the PWs 3 and 4 disclosed that they had witnessed the incident. Before PW-22 their evidence was recorded. The incident took place on 29.8.1997 and the accused persons were arrested after about 8 months. Till the arrest of the accused the statements of PWs 3 and 4 were not recorded under Section 161 of Code. After arrest because their photos were published in the newspapers, that is how PWs 3 and 4 came to the police station on their own accord on two different occasions and gave statements. It has been submitted by learned counsel for the appellants that PWs 3 and 4 did not disclose the incident to any one. They have no interest either for prosecuting the accused or making a statement in the defence. They are independent witnesses. In such a case it is absurd to hold that investigating officer had erred in recording the statement of PWs 3 and 4. The investigating agency was making all possible efforts to know the names of the witnesses. This factor cannot be doubted. If really as contended by learned counsel for the appellants the prosecution wanted to tamper some witnesses they could have immediately done so after the incident." 19. The judgment of the Supreme Court clearly states that in the case of delay in examination of the witness the prosecution has to offer explanation for delay, if the explanation is plausible and possible the court can accept the same. In the present case no explanation has been offered by the Investigation Officer neither the witnesses in regard to delay in recording the statement of the witnesses. It is also a fact that the witnesses had knowledge about the death of the deceased.

In the case of Azeez v. State of Kerala reported in MPWN 80 the Supreme Court has observed that delay of sixteen days after the incident in lodging the FIR is not convincing to convict the accused. In the present case there is delay of more than one month in recording the FIR and also recording the statements. The appellant has signed the Panchanama of death of his wife in the merg, which was recorded by the Police on the basis of information received from the Kotwar, there is no mention of the fact that the deceased had died due to demand of dowry or there was any cruelty practiced with the deceased.

If the statements of the witnesses which were recorded after delay of one month may not relied on then there is no evidence that any cruelty was practiced with the deceased by the appellant. In such circumstances, a presumption can not be drawn against the appellant in accordance with Section 113 of the Evidence Act.

The trial court has not considered at all the delay in recording the statements. The trial court has relied on the statements of the prosecution witnesses without considering the fact of delay, hence the judgment of the trial court suffers from material irregularity. Consequently, the appeal filed by the appellant is hereby allowed. The appellant is acquitted from the charge of Section 304-B and Section 498-A of IPC. The jail sentence awarded to the appellant is hereby set aside. The fine amount deposited by the appellant be returned back to him. The appellant is in jail. He be released from the jail immediately, if his presence is not required in any other case.