Tiwari Singh vs The State of Madhya Pradesh

This criminal appeal has been preferred against the judgment dated 7.9.1999 passed by Second Additional Sessions Judge, District Raisen in S.T.No.239/99 whereby the appellant has been convicted for the offence under Section 498 (A) of the IPC and sentenced to undergo 1 year RI alongwith fine of Rs. 2,000/-in case of default further three months RI.

Facts giving rise to this appeal, briefly stated, are that on 2. 4.1996, deceased Rupa Bai sustained burn injuries and on account of the injuries she died on 13.4.1996. She was wife of the appellant. Marg inquiry was conducted at police station Talaiya, Bhopal. After inquiry it was revealed that the appellant poured kerosene oil on the deceased and set her ablaze and death took place within seven years of marriage and soon before the death she was subjected to cruelty in connection with demand of dowry by the appellant and his mother, father and grand father. Against the appellant's mother, father and grand father, trial Court framed charge for the offence under Sections 302, 306, 304-B and 498-A of IPC and after trial all the accused persons except the appellant were acquitted and the appellant was also acquitted of the charge under Section 302, 306 and 304-B of IPC however convicted and sentenced for commission of offence punishable under Section 498-A of IPC. Hence this appeal.

This appeal has been preferred on the ground that there is neither the eye witness to the incident nor any circumstantial evidence with regard to commission of cruelty with the deceased before her death in connection with demand of dowry. Merely on the statement of deceased father Bakar Singh (P.W.4) appellant has been convicted while the statement of Bakar Singh (P.W.4) is not reliable and comes within the preview of hearsay evidence as when the question of death of deceased has not remained relevant, the statement given by the deceased before her death cannot be considered as a dying declaration. Therefore, in this case, there is no evidence against the appellant for commission of the alleged offence, hence the appellant be acquitted.

Learned Government Advocate opposed the aforesaid contention and prayed for rejection of the appeal.

Having gone through the record, in view of this court, there is no evidence against the appellant to hold him guilty for the alleged offence as Sundar Bai (P.W.5), sister of the deceased and Suri (P.W.6) brother of the deceased, who were residing nearby the house of the deceased have not stated that the deceased was subjected to cruelty before her death. They have not stated that any overt act had taken place before them or anything against the appellant was disclosed by the deceased to them. As far as Bakar Singh (P.W.4) father of the deceased is concerned, he has stated that accused demanded 2 or 3 times cash and TV and threatened that if the demand was not fulfilled, he would face the consequences. But he has admitted that this fact was not disclosed by him at the time of recording statement Ex.D/1 by the police. In such circumstances, the aforesaid statement cannot be considered to be reliable and the statement that before death the deceased told him that the appellant used to demand money and harassed her cannot be used as evidence as it is a hearsay evidence and after acquittal under Sections 302, 306 and 304-B of IPC, the same statement cannot be considered as dying declaration and not admissible evidence to prove the offence under Section 498 (A) of IPC. Therefore, in this case there is no evidence to prove the offence and the finding of the learned trial Court cannot be upheld.

In view of the foregoing discussion, this appeal is allowed and the conviction and sentence under Section 498-A of IPC is set aside. The appellant is in custody since 24.12.2018. He be released forthwith if not required in any other case and fine amount, if paid be returned to the appellant.

A copy of this judgment along with record be sent to the trial court concerned and the jail authority for information and its compliance.