Shiv Kumar Sharma vs State of Madhya Pradesh

A.K. Shrivastava, J.—Feeling aggrieved by the judgment of conviction and order of sentenced dated 13-5-2003 passed by learned Special Judge and Additional Sessions Judge, Guna, in Sessions Trial No. 232/2000 convicting appellant under Sections 304B and 498A of IPC and thereby sentencing him to suffer imprisonment as mentioned in the impugned judgment, the appellant has knocked the doors of this Court by preferring this appeal u/s 374(2) of Code of Criminal Procedure, 1973.

In brief, the case of prosecution is that on 25-4-2000 Dr. K.K. Shrivastava of Primary Health Centre, Aaron sent an information to Police Station, Aaron about the unnatural death of Rakshabandhan Sharma (hereinafter referred to as "the deceased") and on the basis of said information a merg was registered and the investigation was made.

After the investigation was over, a charge-sheet was submitted in the Committal Court, which committed the case to the Court of Sessions and from where it was received by the Trial Court for the trial.

The learned Trial Judge on the basis of allegations made in the charge-sheet, framed charges punishable u/s 304B, in the alternative u/s 302 and also u/s 498-A of IPC, which the appellant denied and requested for the trial.

In order to bring home the charges the prosecution examined its witnesses and proved the documents.

The defence of appellant/husband is that the deceased wanted to get herself married with some other boy and no demand of dowry was made by him and the deceased committed suicide and in support of his defence he also examined his brother Sonu (D.W. 1) and one photographer namely Neeraj Jain (D.W. 2).

Learned Trial Judge on the basis of the evidence placed on record came to hold that charge u/s 302 of IPC has not been proved against the appellant, but the charges under Sections 304 and 498-A of IPC have been proved against him, as a result of which convicted the appellant and passed the sentence which is mentioned in the impugned judgment.

In this manner, the present appeal has been filed by the appellant assailing the impugned judgment of conviction and order of sentence.

The contention of Shri Atul Gupta, learned Counsel for appellant is that the marriage between appellant and the deceased took place on 4-12-1999 and she died on 25-4-2000. By inviting my attention to the testimony of the prosecution witnesses, it has been contended by learned Counsel that barring few days throughout the deceased remained present in her nuptial house along with her parents. Further, it has been contended by him that there is no evidence on record that soon before her death the deceased was subjected to cruelty and harassment for demand of dowry, and therefore, the learned Trial Court erred in convicting the appellant. In support of his contention learned Counsel has placed reliance on the decision of the Supreme Court in Appasaheb and Another Vs. State of Maharashtra, . By placing reliance on the decision of the Supreme Court in P. Mani Vs. State of Tamil Nadu, it has been contended that since it is borne out from the testimony of the prosecution witnesses that the deceased hanged herself in a room, which was bolted from inside, and therefore, apparently she has committed the suicide. According to learned Counsel since it is a defence of appellant that deceased wanted to marry with some other boy, therefore, if she had committed suicide, the appellant cannot be made responsible in any manner and he has been unnecessarily convicted for the charges framed against him.

On the other hand, Shri B.D. Mahore, learned Public Prosecutor has argued in support of the impugned judgment.

Having heard learned Counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part.

So far as the conviction of appellant u/s 304B is concerned, in the testimony of the father of the deceased namely Laxminarayan Sharma (P.W. 6), as well as mother and brothers of the deceased namely Laxmi Bai (P.W. 7), Chandresh Kumar Sharma (P.W. 8) and Manoj Kumar Sharma (P.W. 9) respectively, it is borne out that soon after the marriage she came to her nuptial house where throughout she stayed with her parents and she came back to the house of appellant only on 21-4-2000, viz., four days earlier to the date of incident and there is no evidenced on record that during these four days the appellant made any demand of dowry. In order to attract the provisions u/s 304-B, IPC it is imperative on the part of prosecution to prove that soon before death the deceased was subject to cruelty or harassment for or in connection with the demand of dowry. In this context, I may profitably placed reliance on the decision of the Supreme Court in P. Mani (supra), relied by the learned Counsel for appellant.

I do not find any merit in the contention of learned Public Prosecutor that it is borne out from the testimony of prosecution witnesses that the appellant was insisting deceased to request her father for sending Rs. 2,000/- per month if appellant goes to search the job at Bhopal, and therefore, this demand of appellant would come within the purview of Section 304-B of IPC for two reasons. Firstly, it is not borne out from the testimony of any of the prosecution witness that this alleged demand of Rs. 2,000/- per month was made by the appellant soon before the death of the deceased and secondly since it is borne out from the testimony of the prosecution witnesses that appellant was desirous to have a job at Bhopal and because he was unemployed and in that situation if he has requested the deceased to make a request to her father to send Rs. 2,000/- per month while he is at Bhopal, according to me, this would not amount to demand of dowry, but for maintaining himself at Bhopal during the search of the job. In this context, I may profitably placed reliance on the decision of the Supreme Court in Appasaheb (supra), which has been followed by this Court in Criminal Appeal No. 347/02, Ramesh Singh and Ors. v. State of M.P., decided on 8-1-2010, at Gwalior Bench. In this view of the matter, I am of the view that the charge u/s 304-B of IPC is not at all been made out, hence the appellant is acquitted from the said charge.

Now, I shall consider whether appellant has rightly been convicted u/s 498-A of IPC. It is borne out from the testimony of the relevant prosecution witnesses namely Laxminarayan Sharma (P.W. 6), Laxmi Bai (P.W. 7), Chandresh Kumar Sharma (P.W. 8) and Manoj Kumar Sharma (P.W. 9) that appellant was not liking the deceased and was saying that he would marry with some other girl, and therefore, according to me, this amounts to torture and mental harassment to the deceased and would come within the purview of Section 498-A of IPC. Hence, the conviction of appellant u/s 498-A of IPC is hereby affirmed. It is borne out from the judgment of the learned Trial Court that appellant has already suffered jail sentence for more than three years. The learned Trial Court has sentenced appellant for three years and fine of Rs. 1000/- for the charge u/s 498-A of IPC. The contention of learned Counsel for appellant is that amount of fine Rs. 1,000/- has already been deposited. Since the custodial sentence of the charge u/s 498-A of IPC has already been undergone by the appellant, the appellant who is on bail need not to surrender.

For the reasons stated hereinabove, this appeal succeeds in part. The judgment of conviction and order of sentence passed by learned Trial Court convicting appellant u/s 304-B of IPC is hereby set aside and he is acquitted from the said charge, however, his conviction u/s 498-A is hereby affirmed. The appellant is on bail, his bail bonds are discharged.