The State of Madhya Pradesh vs Surendra Vishwakarma

Heard on the question of admission.

On behalf of the State of M.P. this petition is preferred u/s 378(III) of Cr.P.C. for grant of leave to appeal against the judgment dated 08.12.2010 passed by 6th Additional Sessions Judge (FTC), Chattarpur in S.T. No. 125/2008, whereby the respondent herein has been acquitted from the charge of Section 304B of I.P.C. and 3/4 of Dowry Prohibition Act.

As per the case of prosecution, the deceased Santoshi got married with the respondent on 26th June, 2006 and on dated 17.07.2007 she died unnatural death due to burn injuries. According to the prosecution subsequent to the marriage, in her lifetime she was subjected to cruelty and harassment by the respondent. Consequently, by pouring kerosene on her by setting the fire she has ablazed herself. Subsequent to sustain burn injuries she was taken to the hospital where she remained admitted as indoor patient between 6th July, 2007 till her death. During this period her dying declaration was also recorded. Subsequent to death, the inquest intimation was registered, in the course of its inquiry, the deposition of some witnesses including the parents of the deceased namely Dayaram Vishawakarma and Smt. Muliya Vishawakarma were also recorded. In the course of such enquiry so also after receiving the postmortem report, on establishing the ingredients of the offence of Section 304B of I.P.C. and Section 3/4 of Dowry Prohibition Act, Crime No. 56/2008 was registered at Police Station Gadhimalhara, District Chhatarpur, against the respondent.

After holding the investigation, the respondent was charge sheeted by the prosecution under the aforesaid offences. After committing the case to the Sessions Court, after assessing the papers of the charge-sheet upon framing the charges of aforesaid Sections 304B of I.P.C. and 3/4 of Dowry Prohibition Act, against the respondent, he abjured the guilt on which the trial was held, in which as many as 14 prosecution witnesses were examined while one witness Ratiram (DW-1) was examined on behalf of respondent in his defence.

On appreciation of the evidence, taking into consideration the dying declaration of the deceased Santoshi Vishwakarma (Ex. P/5) recorded in the hospital, after obtaining the fitness certificate, in which she categorically stated that while preparation to make the food, she was trying to take out some cooking implement (Zhhara) from the Almirah, at that moment, the can of kerosene kept in such Almirah was fell down on the flames of fire and due to that she sustained burn injuries and thereafter her sister-in-law and her husband rescued her with further averments such fire was not set by any other person on her, alongwith the statement of the father of the deceased Dayaram Vishwakarma (PW-1) recorded in the inquest inquiry in which he had also stated that his daughter sustained the burn injuries while cooking the food. The trial Court has held that the alleged incident had taken place accidentally and was not the case of committing the suicide by the deceased.

True it is that after recording the aforesaid dying declaration of the deceased and the statement of her father Dayaram Vishawakarma (PW-1) (Ex-D/1) in the inquiry of the inquest intimation, on the basis of unnatural death of Santoshi Bai and the statement of other witnesses in the inquest enquiry the aforesaid crime was registered against the respondent. After such registration on recording the interrogatory statement of said Dayaram, had changed his entire version stated in the aforesaid statement and made the allegations against the respondent regarding the alleged offence.

It is also apparent from the record that on recording the deposition of the parents of the deceased such Dayaram and Muliya Bai they have stated with respect of the cruelty committed by the respondent in regular course of the life with the deceased whenever she was resided with him in the matrimonial home. But even on taking into consideration the depositions of both the witnesses as accepted in its entirety, even then all requisite material ingredients of offence 304-B of I.P.C. and Section 3/4 of Dowry Prohibition Act are not made against the respondent. In order to prove the charge of Section 304B of I.P.C. the prosecution is bound to prove that soon before the death the deceased was subjected to any cruelty or harassment by the accused on account of demand of dowry. In this regard no averments have been stated by any of such witnesses.

It is also apparent that the parents of the deceased were not present at the time of the incident at the matrimonial home of the deceased. No independent witnesses of the locality of the matrimonial home of the deceased and the respondent have supported the aforesaid depositions of the parents of the deceased. So in the lack of such material evidence to prove the material ingredient of the alleged offence of dowry death defined and made punishable u/s 304B of IPC so also the offence of demand of dowry defined and made punishable u/s 3/4 of the Dowry Prohibition Act, the trial Court has not committed any error in extending the acquittal to the respondent.

After going through the entire record of the trial Court including the evidence adduced by the prosecution, we have not found any material circumstance or evidence on which the aforesaid dying declaration of the deceased could be discarded or disbelieved because the same was recorded by some doctor of the hospital, who was the impartial person and was not related in any manner either with the parental family of the deceased or with the matrimonial family of the deceased and such version of the dying declaration of the deceased that she sustained the burn injuries accidentally while cooking the food was accepted by the father of the deceased Dayaram at the first instance on recording his statement in the inquest inquiry. So in such situation firstly we are of the view that there was no option with the trial Court except to extend the acquittal to the respondent.

For the sake of the arguments, if it is deemed that there are two versions on the record, one is based on the aforesaid dying declaration and the statement of Dayaram Vishwakarma (PW-1) in the inquest inquiry and another version is in the interrogatory statement of the witnesses and the depositions of the witnesses mainly of the parents of the deceased in which they categorically stated an oral dying declaration was also given to them by the deceased in which she had stated about the act of cruelty committed by the respondent with her and thereby implicated the respondent with the alleged offence. Even then firstly in the lack of the material ingredients of the alleged offence as stated above, the trial Court has not committed any error in extending the acquittal to the respondent and, secondly if two views, one is favourable and another is against the accused were available before the trial Court, then as per the settled preposition of law out of such views, the trial Court was bound to adopt the view which was favourable to the respondent-accused and the same was adopted by the trial Court. In such premises also, the impugned judgment does not requires any interference at this stage.

In view of the aforesaid, we have not found any prima facie circumstance in the matter on which the impugned judgment extending the acquittal to the respondent from the aforesaid charge, requires any interference at this stage. Consequently, this petition being devoid of any merits, deserved to be and is hereby dismissed at the motion hearing stage.