Santosh Singh and Others vs State of M.P.

M.A. Siddiqui, J.—This appeal has been preferred by the appellants against the judgment dated 15.9.04 delivered by the then 3rd Addl. Sessions Judge (Fast Track), Guna in Sessions Trial No. 214/98 whereby each of the appellants have been Cr.A. 585/2004, Decided on 10.2.2012 from the Judgment dated 15.9.2004 passed by Addl. Sessions Judge (Fast Track) Guna in S.T. No. 214/98. Whereby Each Of The Appellants have been convicted under Sections 304B of IPC and sentenced to undergo R.I. for ten years and fine of Rs. 1,000/- in default of payment of fine, the appellant were directed to undergo RI for 6 months. No sentence u/s 498A was imposed being a lesser offence of Section 304B IPC according to Section 71 of IPC. In short the prosecution case is that Kamlesh Bai (since dead) was married to Chandrapal on 2.6.96 and she started living with Chandrapal (husband), Santosh Singh (father-in-law) and Rabadbai (mother-in-law). They were residing at Village Nagda it is alleged the accused persons were demanding Rs. 50,000/- in cash as dowry and they started beating and ill treating Kamlesh Bai. Even demand was made from the family members of Kamlesh Bai on 29.4.98 Kamlesh Bai met her father Badal Singh (PW 1) and made complaint that accused persons were demanding cash and dowry and they were doing Marpeet with her and they were also not providing her food and clothes. On 3.7.98 at 7 PM, Kamlesh Bai was brought in burnt condition to the District Hospital, Guna. On the request of police, on 4.5.98 at 1.45-2 AM dying declaration of Kamlesh Bai (Ex. D/2) was recorded by Naib Tahsildar which was found to be under the influence of accused persons. On 4.5.98 Kamlesh Bai expired. So, her death was intimated vide Ex. P/3, and the Police Station-Kotwali, Guna recorded Marg (P/7). Marg Case No. 044/98 was sent to Police Station-Sirsi where on 6.5.98 Marg (P/4) was recorded. On 5.5.98 dead body of Kamlesh Bai was sent for postmortem examination and postmortem report vide Ex. P/1 was received. On 6.5.98, spot map (P/9) was prepared and burnt pieces of blouse and an iron chimney were seized vide Ex. P/10 from accused Chandrapal. After investigation, PS Sirsi registered FIR (P/6) vide Crime No. 17/98 under Sections 304B and 498A IPC against the accused persons. Accused persons were arrested and after usual investigation, charge sheet was filed. On 11.12.98, charges u/s 304B and 498A were framed against the accused persons by the then learned Sessions Judge, Guna.

Accused persons abjured the guilt contending that they have been falsely implicated. It was pleaded by them that the incident was accidental and deceased herself made dying declaration (Ex. D/2) to Naib Tahsildar Lachhiram (DW. 4). In defence other witnesses Brajbhan Singh (DW. 1), Shivcharan (DW. 2) and Krapan Singh (DW. 3) were examined.

To substantiate its case, prosecution examined Badal Singh (PW. 1) father of deceased, Bhura (PW. 2) cousin of deceased, Shishupal (PW. 3) brother of deceased, Anita (PW. 4) elder sister of deceased, Dr. Sudhir Rathore (PW. 5), Krapan Singh (PW. 6), Dr. Y.S. Raghuvanshi (PW. 7), Banwarilal (PW. 8) Head Constable, Mahesh Chandra Shukla (PW. 9) Asstt. Sub-Inspector of Police, Bhagwan Singh (PW. 10) neighbour of accused persons, Hazarilal Verma (PW. 11) Head Constable and Pankaj Shrivastava (PW. 12) SDOP and Investigating Officer of the case.

I have heard both the sides and perused the record of trial Court.

Badal Singh Yadav (PW. 1) Bhura (PW. 2), Shishupal (PW. 3) and Anita (PW. 4) stated that accused persons were treating deceased Kamlesh Bai with cruelty and they were not providing her food and clothes, they were beating and ill treating her and were also demanding R. 50,000/- in cash, though they have stated that no demand was made at the time of marriage, but demand was started after the marriage. According to Badal Singh (PW. 1), on 22.12.97 accused Santosh asked him to give Rs. 50,000/- but as he was not in a position to fulfill the demand of dowry, he could-not bring his daughter with him. At that time, accused Chandrapal gave beating to Kamlesh Bai and accused Santosh was also there. After about 2-3 months from this incident Kamlesh Bai came to the house of the witness and made complaint that accused persons were demanding money from her. Bhura (PW. 2) also stated that demand of Rs. 50,000/- was made from Kamlesh. Though Shishupal (PW. 3) has not stated the Figure of Rs. 50,000/- in his statement, but he stated that demand of money was made.

Learned counsel for appellants submitted that the statement of these witnesses are omnibus and it is very much clear from their statements that demand was not made soon before death of Kamlesh Bai, though as per their statements it was made some months before her death. Counsel submitted that according to Section 304B IPC where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death under this section. He relied upon the decisions of Apex Court in Sunil Bajaj Vs. State of M.P., Durga Prasad and Another Vs. State of M.P., Satvir Singh and Others Vs. State of Punjab and Another, and in Biswajit Halder alias Babu Haider and others Vs. State of W.B. (2008) 1 SCC (Cri.) 172. It has been held in the aforesaid decisions that basic ingredients to attract the provisions of Section 304B IPC are necessary before presumption could be drawn u/s 113B of Evidence Act.

It is not disputed that Incident had taken place within seven years of marriage. According to prosecution, it was a dowry death and according to defence, it was an accidental death. From perusal of prosecution evidence, it appears that though there are omnibus statements of demand of dowry, but there is no specific allegation that soon before death of Kamlesh Bai she was subjected to demand of dowry. Though it was alleged that Shishupal (PW. 3) visited the house of deceased and accused persons just few days before her death, but on this point Shishupal has not stated anything and he gave statement only to the extent that demand of dowry was there. Time may be certainly in months and not in days. Unless there is evidence to show that soon before death victim was subjected to cruelly by husband or In-laws in connection with demand of dowry, conviction cannot be based.

Moreover, it is pertinent to note that dying declaration (D/2) was ''recorded by Lacchiram (DW. 4) on request of police on 4.5.98 in which Kamlesh Bai narrated that Chimney was lightening and as Chimney was not functioning, to keep it in proper place, she extended her hand and during this process, the Chimney fell on her by which her clothes started burning and her In-laws took her to Guna hospital.

Leaned counsel for appellants submitted that Brajbhan Singh (DW. 1) also stated that Kamlesh burnt accidentally as Chimney fell down and he and Chandrapal tried to save her by throwing water. Shivcharan (DW. 2) stated that when he reached at the house of accused Santosh Singh, he asked Kamlesh Bai how she burnt, on which Kamlesh replied to the witness that she was burnt accidentally by fall of Chimney Same is the version of Krapan Singh (DW. 3).

In my opinion, there is no justification for disbelieving the dying declaration (D/2) recorded by a Naib Tahsildar. Learned trial Court has disbelieved the dying declaration recorded by Naib Tahsildar on the ground that statement was not properly certified by the doctor, while Dr. Sudhir Rathore (PW. 5) stated in para 6 of his cross-examination that Tahsildar recorded the dying declaration (Ex. D/2) before him and Smt. Kamlesh was throughout conscious while giving her statement. He had certified this at the bottom of Ex D/2. Learned trial Court has rejected this dying declaration on the ground that doctor has not certified in the beginning and in the end.

Learned counsel for appellants submitted that there is no specific proforma for certifying the dying declaration and when the doctor had certified it at the end about the consciousness and capability of giving statement it ought not to have been disbelieved and trial Court was erroneous in disbelieving it. I am fully agree with the above submission made by learned counsel for appellants.

As far as dowry death is concerned, the case of prosecution is not proved beyond reasonable doubt but so far as case u/s 498A IPC is concerned, there is specific allegation that within 2 years of marriage of Kamlesh Bai she was subjected to cruelty by appellants for demand of dowry. Though trial Court has not convicted the accused persons u/s 498A IPC separately, but the Court has found them guilty. By applying section 71 of IPC, the trial Court has convicted and sentenced the appellants for 10 years'' R.I. and fine of Rs. 1,000/- u/s 304B IPC only.

Looking to the circumstances of the case, the accused-appellants are acquitted of the offence punishable under Section. 304B IPC, but they are held guilty u/s 498A IPC. The incident is of the year 1998. Accused Santosh Singh remained in jail from 29.5.98 to 24.6.98 (27 days) and accused Mst. Rambai alias Rabadbai and Chandrapal Singh remained in jail from 28.5.98 to 24.6.98 (28 days). So, they are punished for the period already undergone by them and fine of Rs. 1,000/- each u/s 498A IPC. Fine of Rs. 1,000/- on each appellant has already been imposed u/s 304B IPC, but as the appellants are acquitted of the offence punishable u/s 304B PC, that fine amount of Rs. 1,000/- imposed on each appellant may be adjusted towards the fine amount imposed u/s 498A IPC. In case the amount of fine is not deposited by the appellants, they, will have to undergo R.I. for three months. Appeal is partly allowed to the aforesaid extent.