Kumar & Anr Vs. State of Madhya Pradesh  Insc 757 (24 July 2007)
R.V. Raveendran & Lokeshwar Singh Panta
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 R.I.
imposed upon each of the appellants in respect of offences punishable under
Section 306 of the Indian Penal Code [for short IPC] 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 Kumaraccused No.1 is the son of Prem Bai @ Gulabraniaccused 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 Kumaraccused.
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 accused, 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 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
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
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 Baiaccused
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
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 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 Sadhna for not 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 accused in the year
1982 and in all a sum of Rs. 18,000 19,000/- was spent at the time of marriage
ceremony, but at the time of vidaai, Arvind Kumar 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 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
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
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.
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:-
36. 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 Halsburys 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.
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 Kumaraccused No.1 by the Trial Court and confirmed by the High Court are
Arvind Kumar-accused No.1 is on bail. He is directed to surrender before the
Trial Court forthwith and to suffer the 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.