Full Judgment Text
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CASE NO.:
Appeal (crl.) 452 of 2001
PETITIONER:
Arvind Kumar & Anr
RESPONDENT:
State of Madhya Pradesh
DATE OF JUDGMENT: 24/07/2007
BENCH:
R.V. Raveendran & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
Lokeshwar Singh Panta, J.
1. Appellants have filed this appeal against the judgment
dated the 23rd June, 2000 passed by a learned Single Judge of
the High Court of Madhya Pradesh at Jabalpur, confirming
the conviction and sentence of 7 years\022 R.I. imposed upon each
of the appellants in respect of offences punishable under
Section 306 of the Indian Penal Code [for short \023IPC\024] and 6
months R.I., each under Section 4 of the Dowry Prohibition
Act, 1961 and fine of Rs. 5,000/- each with default stipulation
for 6 months R.I., awarded by the learned Third Additional
Sessions Judge, District Sagar dated 29th August, 1989 in
Criminal Case No. 517/82.
2. Brief facts, which led to the trial of the appellants, are
as follows:-
3. Arvind Kumar\026accused No.1 is the son of Prem Bai @
Gulabrani\026accused No.2. On April 26, 1982 Arvind Kumar
married Sadhna, daughter of Bhag Chand (P.W.9) and sister of
Sudarshan Kumar Jain (P.W. 5). After the marriage of
Sadhna, the accused started harassing and humiliating her for
not bringing adequate dowry articles. Prosecution alleged that
on 29th June, 1982 both the accused demanded one table fan,
one automatic watch and one almirah from Sadhna. The
demand of the articles was again repeated on 2nd July, 1982.
Sadhna was unable to satisfy the persistent demand of the
accused. She was constantly tortured and harassed by the
accused and as a result thereof Sadhna committed suicide by
pouring kerosene oil on her person and setting her body on
fire on 2nd July, 1982. The incident of suicide had taken place
after one month and seven days of the marriage of the
deceased Sadhna with Arvind Kumar\026accused. On 3rd July,
1982, the crime report (Ex. P-10) of the death of Sadhna was
reported by Santosh Kumar (P.W. 7), brother of Arvind Kumar
\026accused, to the Police at Check Post Barha, Police Station
Banda. After receiving the report and preparing First
Information Report, P.W. 12 Rameshwar Prasad, Head
Constable went to the place of incident and held the necessary
Panchnama like seizure of certain articles found near the
scene of offence, got the spot map (Ex. P-11) prepared from
Ram Sewak Khare, Patwari. The dead body of Sadhna was
sent for post mortem to District Hospital, Khargaon. After
recording the statements of the material witnesses and after
receipt of post mortem report Ex. P-16 of Dr. J.C. Jain, Medical
Officer, District Hospital Khargaon (P.W. 14) and letter (Ex. P-
14) of the District Magistrate granting sanction of prosecution
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of the accused for an offence under Section 4 of the Dowry
Prohibition Act, 1961, charge sheet was filed against the
accused for offences punishable under Section 306 IPC and
under Section 4 of the Dowry Prohibition Act.
4. The Prosecution examined as many as 14 witnesses in
support of its version. In their statements recorded under
Section 313 of the Code of Criminal Procedure, the accused
denied their involvement in the crime. Arvind Kumar\026
accused stated that Sadhna committed suicide on her own by
pouring kerosene oil on her body because she was mentally
disturbed. He stated that he is innocent and has been falsely
implicated in the present case. Smt. Prem Bai\026accused stated
that she used to treat her daughter-in-law (Sadhna) very
affectionately and she had never demanded any dowry article
from the brother or the father of the deceased. The accused
examined Mohanlal Pathak (D.W. 1) and Chandra Kumar
(D.W. 2) in their defence. Both these witnesses stated that
Sadhna was a simple girl but was mentally disturbed.
5. Initially both the accused were acquitted on 27th
September, 1983 by the Additional Sessions Judge, Sagar.
The appeal filed by the State against the acquittal order came
to be allowed by the High Court. The High Court directed the
Trial Court to record further evidence in the case. The Trial
Court after considering the evidence on record, recorded
conviction and awarded sentence as aforesaid. The High
Court on reappraisal and re-appreciation of the entire evidence
on record confirmed the conviction and sentence imposed
upon the accused. Hence this appeal by the accused persons.
6. Learned counsel appearing on behalf of the accused
challenged the judgment of the High Court inter alia
contending that admittedly, Sadhna died within one and a half
month of the marriage, but there is no presumption available
under Section 113A of the Indian Evidence Act, 1872 that
Sadhna deceased committed suicide owing to harassment or
torture by the accused. He submitted that provisions of
Section 113A of the Indian Evidence Act as inserted by Act No.
43/1983 [Criminal Law Second Amendment, 1983] is not
retrospective in operation. He further submitted that the
prosecution has failed to prove the charges against the
accused by leading satisfactory, believable and convincing
evidence and the Trial Court as well as the High Court have
recorded the findings of guilt of the accused on surmises and
conjecture. Lastly, it was submitted that the deceased
committed suicide on her own by pouring kerosene oil on her
body due to her mental ailment.
7. Learned counsel for the State, on the other hand,
submitted that the prosecution has clearly established the
guilt of the accused persons and no exceptions can be taken to
the reasons indicated by the Trial Court in the well-reasoned
judgment. The evidence has also been analysed in great detail
by the High Court and, therefore, no question of any
interference is called for with the conviction recorded in the
impugned judgment of the High Court.
8. Before we proceed to consider the respective
contentions of the learned counsel for the parties, we, at this
stage, may record that during the pendency of the appeal
before this Court, Smt. Prem Bai \026 accused No.2 has died. We
have analysed the entire evidence and other material on record
and find that there is no direct or circumstantial evidence led
by the prosecution to prove the charges against deceased Smt.
Prem Bai. The evidence brought on record against accused
Smt. Prem Bai is not cogent and consistent to establish that
Prem Bai had abetted the commission of the offence of suicide
committed by deceased Sadhna or Prem Bai accused had
tortured or harassed her daughter in law \026 Sadhna for not
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bringing adequate dowry articles at the time of marriage or
thereafter before Sadhna committed suicide. Therefore, the
conviction recorded and the sentence imposed upon deceased
Prem Bai by the Trial Court and confirmed by the High Court
cannot be sustained and, accordingly, the judgment of the
High Court to that extent stands set aside. Deceased Smt.
Prem Bai shall stand acquitted of the offences under Section
306 IPC and Section 4 of the Dowry Prohibition Act. Fine, if
any, realised from deceased Smt. Prem Bai shall be refunded
to her legal heirs.
9. So far the conviction of Arvind Kumar is concerned,
we find from scrutiny of the evidence placed on record that
there is reliable, cogent and trustworthy evidence led by the
prosecution to establish his guilt beyond reasonable doubt.
Sudarshan Kumar Jain (P.W. 5) brother of the deceased
Sadhna deposed that the marriage of his sister was settled
with Arvind Kumar \026 accused in the year 1982 and in all a
sum of Rs. 18,000 \026 19,000/- was spent at the time of
marriage ceremony, but at the time of vidaai, Arvind Kumar\026
accused raised additional demand of dowry articles, namely,
one fan, one automatic watch and one iron almirah which they
were not able to meet on that occasion. He stated that they
assured the accused that after making some arrangement for
money, they would later on give the demanded articles.
However, one radio was given at the time of marriage. The
father and grandfather of Arvind-accused were not satisfied
with the dowry articles given to Sadhna at the time of her
marriage and she was humiliated and harassed by the family
members of Arvind and she was pressurized to bring
additional dowry articles from her parents\022 house. He also
stated that considering the greed of the accused, her parents
could arrange for one watch and one fan, but the accused
refused to accept those articles and he demanded valuable
watch and fan of bigger size. He deposed that his sister was
not properly treated by the accused during her stay with him.
He denied the suggestion of the defence that his sister was
suffering from mental ailment. Bhag Chand (P.W. 9) father of
the deceased corroborated the testimony of P.W. Sudershan
Kumar and further stated that he had given sufficient dowry
articles to his daughter Sadhna at the time of her marriage
and additional articles demanded by the accused at the time of
vidaai of his daughter were offered to him but the accused
refused to accept those articles as they were not found to his
liking and standard. Pritam (P.W. 10) is the landlord of P.W.
9. He is an independent witness. He deposed that at the time
of vidaai of Sadhna after marriage, her parents offered one
watch and one fan to Arvind accused, who declined to accept
the same as those were not of higher value and of good make.
He stated that he came to know from P.W. 5 that the accused
used to beat Sadhna.
10. From the narration of the facts and evidence on
record, it is not in dispute that Sadhna committed suicide and
died due to injuries as certified by P.W. 14 Dr. J.C. Jain in his
post mortem report (Ex. P-16). The testimony of P.Ws. 5, 9 and
10 are consistent, reliable and trustworthy to prove that it was
Arvind-accused who constantly harassed, humiliated and
tortured his wife Sadhna for bringing insufficient dowry
articles. He persistently made demand of sophisticated watch,
fan and iron almirah. Sadhna was forced to commit suicide
because of the cruel behaviour of the accused. The defence of
the accused that Sadhna was suffering from mental ailment is
belied by P.W. 2 Sushila Bai, who was a teacher in Naveen
School, Banda where Sadhna was studying. P.W. 2 Sushila
Bai stated that the behaviour of Sadhna during her student
life in the school was proper and normal. P.W. 14 Dr. J.C.
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Jain was examined by the Trial Court after remand of the case
by the High Court. His deposition is that there were 100 per
cent burn marks on the body of deceased Sadhna. Sadhna
had already died before Dr. Shrivastav could reach at the
house of the accused. The extent of burn injuries found on
the body of the deceased would go to show that no effort
whatsoever was made by the accused to save his wife from
committing suicide though he was present in the house when
such incident took place. He has not even bothered to call the
doctor and it was his elder brother P.W. 7 Santosh Kumar,
who came from another house and immediately contacted Dr.
Shrivastav and informed him about the precarious condition of
Sadhna. On scrutiny of the entire evidence on record, we are
of the view that the conduct of the accused-husband was
apathetic, which is an additional circumstance in the link of
the ocular version of PWs.5, 9 and 10 who have supported the
prosecution case in its entirety. The evaluation of the finding
recorded by the learned Trial Court and accepted by the High
Court does not suffer from any illegality, manifest error or
perversity, nor have the Courts overlooked or wrongly
discarded any vital piece of evidence appearing against the
accused. Therefore, we hold that the findings of fact as
recorded by the courts below do not call for any interference in
this appeal.
11. The contention of the learned counsel for the
accused that the presumption enumerated under Section
113A of the Indian Evidence Act is not attracted in the present
case does not merit acceptance. It is well-settled law that
presumption with respect to the procedural matters is
normally to be construed as prospective. Section 113A does
not create any new offence or make it punishable. It only
deals with presumption which the Court may draw in
particular facts situation. This Court in Gurbachan Singh v.
Satpal Singh reported in AIR 1990 SC 2009 held in para 36 as
under:-
\02336. The provisions of the said Section do
not create any new offence and as such it
does not create any substantial right but it is
merely a matter of procedure of evidence and
as such it is retrospective and will be
applicable to this case. It is profitable to refer
in the connection to Halsbury\022s Laws of
England, (Fourth Edition), Volume 44 page
570 wherein it has been stated that:
The general rule is that all statutes,
other than those which are merely
declaratory or which relate only to matters or
procedure or of evidence, are prima facie
prospective and retrospective effect are not to
be given to them unless, by express words or
necessary implication, it appears that this
was the intention of the legislature\005.\024
12. In view of the above settled position, the
presumption contemplated under Section 113A is clearly
attracted in the facts of the present case and the accused has
not led any evidence to rebut the said presumption.
13. No other point was urged by the learned counsel for
the parties.
14. In the result, the conviction recorded and the
sentence imposed upon Arvind Kumar\026accused No.1 by the
Trial Court and confirmed by the High Court are maintained.
Arvind Kumar-accused No.1 is on bail. He is directed to
surrender before the Trial Court forthwith and to suffer the
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remaining period of sentence. The appeal of Arvind Kumar is,
accordingly, dismissed. The conviction and sentence of
second accused is, however, set aside. Bail/surety bonds in
respect of Smt. Prem Bai shall stand discharged.