Surendra Singh And Others vs State Of Madhya Pradesh

This appeal under section 374(2) of the Cr.P.C is directed against the judgment dated 17.01.2006 passed by the Addl. Sessions Judge Umaria in

S.T.No.273/02 convicting the appellants for offences punishable under section 498-A and 304-B of the IPC for R.I 1 year with fine of Rs.1000/- each

in first count while R.I. 10 years with fine of Rs.5000/- to appellant No.1 and R.I. 7 years with fine of Rs.2000/- to appellants No.2 and 3 in last count.

At the outset, learned counsel for the parties informed that appellant No.1 has undergone the entire sentence and is released from jail on

10.12.2010. Thus, the parties mainly confined their arguments in relation to conviction and sentence of appellant No.2 (father-in-law) and appellant

No.3 (mother-in-law) of deceased.

Briefly stated, the story of the prosecution is that on 26.01.2002, appellant No.2 lodged a written report (Ex.P/7) in Police Station Naowrozabad that

his daughter-in-law Shyamkala committed suicide by strangulating herself. On the basis of this report, the death intimation (Ex.P/6) was recorded. The

body of deceased Shyamkala was recovered by preparing a Panchanama (Ex.P/2) and a Spot-map (Ex.P/4) was prepared. The body of deceased

was sent for postmortem where Dr. B.K.Jain and Baghel conducted the postmortem and submitted its report. As per the postmortem report, the

reason of death is suicide. The appellants categorically denied the charge alleged against them under section 498-A and 304-B IPC. After the matter

was committed before the competent court, the prosecution led its evidence and thereafter statement of accused were recorded. The court below

framed the question whether death of deceased is within seven years of her marriage. After recording the statement of prosecution witnesses, the

court below came to hold that the death of deceased Shyamkala had taken place within seven years from the marriage. It was further held that the

prosecution has successfully established that the appellants used to demand motorcycle, colour T.V etc. from the deceased. Since the court below

opined that the death of Shyamkala Bai had taken place within seven years of her marriage, it applied the presumption mentioned in section 304-B of

IPC and held that appellants are deemed to have caused death of the deceased. In support of this finding, the court below considered the statement of

Khelawan Singh (P.W.1) brother of the deceased, who deposed that marriage of deceased Shyamkala Bai had taken placed three years before the

date of death. Similar statement was made by Balram (P.W.4) father, Batti Bai (P.W.5) mother and Phukki Bai (P.W.6). On the strength of these

statements, the court below came to hold that it is established by the prosecution that marriage of deceased had taken place within seven years from

the date of death.

In defence, Jagannath Pathak Purohit (D.W.1) deposed that he is ""Purohit"" and he solemnized marriage of the deceased with appellant 11-12 years

before. He produced the ""lagan patrika"" (Ex.P/5) which contains the description regarding marriage including the year i.e Samvat 2051 which means it

was held in the year 1994. The court below disbelieved the statement of this witness on the ground that signature of this witness is not there on

Ex.P/5. There exists an over writing on this document. The name of appellant No.1 and deceased Shyamkala is mentioned in the ""Patrika"" but names

of their parents were not mentioned. This witness admitted that he himself was not present when marriage had taken place.

The court below specifically held that the reason of death of deceased is because of strangulation and it is established that she committed suicide.

Since the court below opined that marriage had taken place within seven years from the date of death of deceased, it invoked section 304-B of IPC.

In addition, in view of statements made by various prosecution witnesses, the court below held that it was established by the prosecution that

appellants have consistently demanded dowry from the deceased which became the reason for her death.

Ms. Mamta Dubey, learned amicus curiae, pointed out the discrepancies/ contradictions in the statement of the prosecution witnesses in relation to

date of marriage of the deceased and further pointed out that the demand of dowry is mainly related with appellant No.1. She strenuously contended

that the prosecution has failed to establish that marriage had taken place within seven years.

Per contra, Shri Ashutosh Tiwari, GA supported the prosecution story and argued that there is no error in the judgment of the court below which

warrants interference by this court.

No other point is pressed by learned counsel for the parties.

I have heard the parties at length and perused the record.

A careful reading of statement of P.W.1 Khilawan Singh (brother) shows that in examination-in-chief, he deposed that marriage had taken place

three years before death of the deceased. However, during cross-examination, he candidly admitted that he does not remember the exact date of

marriage but marriage had taken place in the year 1994. Bihari Lal Kol (P.W.2) did not depose anything about date of marriage. P.W.3 Dhaneshwar

Singh (brother) deposed that marriage had taken place in the year 1999. P.W.4 Balram (father), P.W.5 Batti Bai (mother) and P.W.6 Phukki Bai

deposed that marriage had taken place three years before the death. Thus, there is serious contradiction amongst the statement of the prosecution

witnesses. Both the brothers of deceased have given different version about date of marriage. The question is whether on the basis of this kind of

statements, it can be safely concluded that marriage had taken place within seven years. This point is no more res integra. This court in Ratanlal and

another Vs. State of M.P- 1993 Cr.L.J-3723 held that when the prosecution wants to bring the case within the purview of Section 304-B of IPC, it is

its duty to prove to the hilt that death was caused within seven years of the marriage. There is no reliable and cogent evidence to prove the date of

marriage. Even the marriage card has not been produced to prove the exact date of marriage. It was further held that P.W.5 in the said case, deposed

that marriage was performed in summer. This witness was declared hostile and he was not cross-examined on this point. For these reasons it was

held that the case of prosecution goes out of the purview of section 113-B of the Evidence Act and presumption under section 304-B of IPC can also

not be drawn. As per settled principles of criminal jurisprudence, the prosecution must prove its case to the hilt and for this purpose, prosecution must

lead cogent and reliable evidence which may prove the circumstances sufficient for raising such a presumption. Where prosecution has utterly failed

to do so, the judgment of conviction cannot be upheld.

Pausing here for a moment, in the present case P.W.1 and P.W.3, brother of the deceased, have deposed that marriage had taken place in the

year 1994 and 1999 respectively. These witnesses were not declared hostile. The marriage card is also not produced by the prosecution. In a recent

judgment passed in Cr.A.(SJ) No.636/2002 (Ram Bahadur Yadav & others Vs. State of Bihar) decided on 05.01.2018, Shri Justice Rajendra Menon,

Chief Justice of Patna High Court, held that no specific date with regard to marriage is indicated either in the ""fard bayan"" or in the statement

recorded in the court. It was incumbent upon the prosecution to prove the date on which marriage was solemnized. In absence thereof, the question of

applicability of section 304-B of IPC becomes very doubtful. The judgment of the court below was criticized as ""absurd"" and based on perverse

findings which cannot be countenanced. In absence of any iota of material to establish the date of marriage, the statement of witnesses were

disbelieved. The statement of father of deceased (P.W.8) was disbelieved by the High Court because he made a vague statement that marriage was

solemnized five years back.

If the present case it tested on the anvil of judgment of Ratanlal and Ram Bahadur Yadav (supra), it will be clear that the principles laid down in

the said case are squarely applicable in the present case. The prosecution has miserably failed to establish the date of marriage. It did not produce the

marriage card. The statement of witnesses are extremely contradictory in nature. It cannot be said that prosecution has established to the hilt that

marriage had taken place within seven years from the date of death. Thus, I have no scintilla of doubt that the court below had committed an error in

holding the appellants guilty under section 304-B of the IPC.

In 1991 (3) SCC 371 (Smt. Shanti and another vs. State of Haryana), the Apex Court held that ‘cruelty’ is a common essential to both the

sections namely, Section 304-B and 498-A IPC and that has to be proved. The Explanation to Section 498-A gives the meaning of ‘cruelty’

while in Section 304-B there is no such explanation about the meaning of ‘cruelty’. But having regard to the common background to these

offences, the meaning of ‘cruelty' and 'harassment’ has to be taken to be the same as is in the explanation to Section 498-A under which

‘cruelty’ by itself amounts to an offence and is punishable. In the same judgment, it was also held that Sections 304-B and 498-A cannot be

held to be mutually exclusive. These provisions deal with two distinct offences. Under Section 304-B it is the “dowry deathâ€​ that is punishable and

such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498-A and the husband or his relative

would be liable for subjecting the woman to “crueltyâ€​ any time after the marriage.

As analyzed above, the prosecution has failed to establish the offence under Section 304-B of IPC. Now the question is whether offence under

Section 498-A could be established. PW/10 and PW/3 are brothers of the deceased who categorically deposed that the deceased informed them that

appellant No.2 and 3 used to demand television and motorcycle. They harassed and assaulted the deceased because of said demand. Father and

mother of the deceased PW/4 and PW/5 stated that the deceased informed that that husband of deceased and appellant No.2 and 3 used to demand

television and motorcycle. Mother of deceased categorically deposed that the husband used to assault the deceased and appellant No.2 and 3 used to

abuse her for not bringing television and motorcycle. Learned Amicus Curiae argued that there is no independent witness which may support the story

of the prosecution. The aforesaid witnesses were also cross-examined on the point whether they lodged any report regarding demand of dowry in the

police station and whether this factual story was brought to the notice of Sarpanch, etc. In the Indian society, in normal circumstances, demand for

dowry or harassment for the same takes place within the boundary of the house. Even the parents or relative of the girl will not be aware about all

these unless they are informed either by the girl herself or demand is made directly to them.

The police officials or others cannot depose anything about the harassment in connection with the demand of dowry in absence of any complaint or

statement made by the witness under Section 161 Cr.P.C. Seldom, villagers, neighbours may come to know of the same. In this background,

statement of family members of the deceased lady cannot be discarded on the ground that they are relatives and are interested witnesses. {See 2015

(4) SCC 215 (Rajinder Kumar vs. State of Haryana} In the deposition of P.W.5, there is no such material contradiction which may be a reason to

disbelieve the statement of the family members of the deceased. The court below has rightly held that evidence of the family members were recorded

after considerable long time from the date of incident and therefore certain minor variations may take place which are immaterial if deposition are

examined in entirety. I find no flaw in the said finding given by the court below.

In Explanation to Section 498-A, the 'cruelty' is divided into two parts namely (a) and (b). Explanation (a) shows that mental cruelty which has

ingrained in the first limb of Section 498-A has nothing to do with the demand of dowry- it is associated with mental cruelty that can drive a woman to

commit suicide and depend upon the person concerned. See 2017 (11) SCC 176 (K.V. Prakash Babu vs. State of Karnataka). In 2017 (1) SCC 433

(Guurcharan Singh vs. State of Punjab), the Supreme Court held that though for the purposes of the case in hand, the first limb of the Explanation to

Section 498-A IPC is otherwise germane, proof of the willful conduct actuating the woman to commit suicide or to cause grave injury or danger to life,

limb or health, whether mental or physical, is the sine qua non for entering a finding of cruelty against the person charged. As per this judgment, any

mental or physical cruelty which may likely to drive the woman to commit suicide or to cause grave injury for danger to life of a woman attracts

Section 498-A. Clause (b) covers the cases of harassment of woman with a view to coercing her or any person related to her to meet any unlawful

demand. A careful reading of clause (b) shows that it covers harassment of woman or crossing her or even any person related to her to meet any

unlawful demand for property, security, etc. Clause (b) is applicable on such harassment and coercion which is based on failure by woman to fulfill the

said demand. In view of difference of language employed in clause (a) and (b), I am of the considered view that both the clauses deal with different

eventualities. Clause (a) is wide enough to cover any kind of cruelty, injury or willful conduct which is likely to drive the woman to commit suicide or

to cause injury or danger to life, limb or health whereas clause (b) is related with such harassment with a view to coerce her in relation to unlawful

demand or for not fulfilling the demand by a married woman.

16 In the instant case, the prosecution witnesses have established beyond reasonable doubt that there has been a harassment of deceased in relation to

demand of television and motorcycle, etc. The deceased was harassed, threatened and assaulted for not fulfilling the said demand. Thus, the court

below has rightly held the appellants as guilty under Section 498 IPC.

In view of aforesaid analysis, the impugned judgment dated 17.1.2006 passed by Additional District Judge, Umaria in S.T. No.273/2002 is liable to

be interfered with so far appellants were held guilty under Section 304-B IPC. The impugned judgment to this extent is set aside. The judgment of

court below to the extent appellants were held guilty under Section 498-A IPC is affirmed.

As noticed, the informed that appellant No.1 has already undergone the punishment. Hence, appellant No.2 and 3 shall undergo the remaining part

of sentence imposed by court below under Section 498 IPC.

The appeal is partly allowed.