Moti Lal
Vs. State of M.P. (Now Chhattisgarh) [2004] Insc 32 (20 January 2004)
Doraiswamy
Raju & S. B. Sinha. D. Raju, J.
The
above appeal has been filed against the judgment of a learned Single Judge of
the Chhattisgarh High Court dated 30.1.2003 in Criminal Appeal No.931 of 1989
wherein the learned Judge, while affirming the conviction and sentence imposed
on the appellant, dismissed his appeal.
The
appellant, accused No.1 in Sessions Trial No.228 of 1985 on the file of the
Additional Sessions Judge, Raipur, then part of the Madhya Pradesh State, is
the husband of one Shakuntla Bai @ Amrika Bai having been married to each other
during the year 1976-1977. The second accused Surja Bai is the wife of Rajaram,
the elder brother of the appellant. Rajaram, the elder brother, was said to be
residing away from the Village being a Government Servant, leaving his wife to
live in the joint family house in the village where the appellant was said to
have also been living with his wife. The case of the prosecution was that the
appellant used to harass his wife from the beginning on the ground that she had
not brought sufficient dowry and often used to pester her to bring more gold
and money from her father. Whenever she used to remind the appellant that the
status and economic position of her father did not permit further dowry being
given as demanded, the deceased used to be not only taunted and harassed but
also threatened and beaten and at times even driven out of the house. In the
month of December, 1984, the appellant appears to have called Suryamani, the
elder brother of the deceased, and demanded payment of Rs.3,000/- saying that
if he really was interested in the welfare of his sister he must immediately
pay the amount. The father of the deceased appears to have arranged for the
money from his brother-in-law and through his son paid the sum to the
appellant. About 3 or 4 months prior to the occurrence resulting in the death
of Shakuntla Bai, the servant of the appellant appears to have, at the behest
of the appellant, called the father of the deceased and when he went to the
house of the appellant he told him that he did not want to keep his daughter
any longer in the house and he may take her with him. On that, with great
difficulties he was able to persuade the appellant and leave the deceased with
her husband, in the house.
Immediately
thereafter during March-April when once the father of the deceased was in the
house of his brother-in-law, the deceased was said to have come accompanied by
a servant from the village where she was living, with broken utensils in a bag
to her Uncle's house at Mahasamund, telling her father that her husband has
broken all utensils saying that the brass utensils given by her father, instead
of giving modern age steel utensils, have become old and, therefore, get them
substituted with new stainless steel utensils. Her father, finding the pitiable
condition of his daughter, has purchased new utensils from the shop at Mahasamund
and sent her back with new utensils.
While
matters stood thus, the ill-treatment and harassment by the appellant of his
wife continued unabated also for further reason that she found out on many
occasions the appellant having illicit relations with his Bhabhi Surja Bai. In
the background of such events and strained relations, it appears that on
18.6.1985 in the marital home at the Village Deori the deceased consumed poison
pesticide and died on the same day as a result thereof, in the house of the
appellant. The vomiting made before her death, which the Police seems to have
seized under a seizure memo Ex.P-7 and got tested also proved to contain
pesticide. On coming to know of the occurrence at about 10.00 p.m. in the night, the father of the deceased filed the
next day a written complaint to the Police on the basis of which an FIR was
said to have been recorded and crime registered and investigation commenced.
After completing the formalities of the investigation including the spot
inspection, the seizure of the vomiting material and sending the same for
laboratory test and arranging for the post mortem examination of the body, the
prosecution laid charge against the appellant under Section 498-A and both the
appellant and Surja Bai under Section 306 read with Section 34, IPC. PWs.1 to 9
seem to have been examined besides marking documents and material objects for
the prosecution and for the defence also witness was examined and document
marked. The defence side also seems to have attempted to show that there was
enough money available and no need for demanding money at any time from the
complainant side existed. On consideration of the materials placed on record
and the stand taken for defence, the learned Trial Judge came to the conclusion
that the prosecution was able to substantiate the charges against the appellant
under Section 498A as well as under Section 306 read with Section 34 and
sentenced him to 3 years R.I. for the offence under Section 498A, IPC, and 7
years R.I. under Section 306, IPC, both of which to run concurrently. So far as
the other accused Surja Bai, A-2, is concerned, in the absence of concrete
material and the very statement of PW-1 the father of the deceased that she did
not harass his deceased daughter, the learned Trial Judge acquitted her of the
charge against her.
Aggrieved,
the appellant alone pursued the matter, as noticed earlier, unsuccessfully
before the High Court and thereafter filed this appeal. The learned counsel for
the appellant strenuously contended that the materials on record are not
sufficient to prove the necessary ingredients to constitute the offences for
which the appellant has been charged with, and held proved.
According
to the plea on behalf of the appellant, there was no proper or concrete proof
of the further demand for dowry as alleged or as to the payment of such amounts
and that the deceased Shakuntla Bai consumed poisonous substance to commit
suicide on her own, due to apparently the stomach pain with which she was said
to be suffering for the past one year prior to her death. It was pointed out
that once in the year 1982 also the deceased consumed rat killing pesticide
though she was saved at that time and consequently the conviction of the
appellant, though concurrent, was not based on acceptable evidence and
consequently is liable to be set aside. The learned counsel also made a
grievance about non-compliance with the provisions of Section 235(2), Cr.P.C.,
[(1976 (4) SCC 190. Per contra, the learned counsel appearing for the
respondent-State contended that the concurrent findings recorded by the courts
below are well merited and borne out on the materials placed on record and they
do not suffer from any infirmity whatsoever to call for interference in an
appeal filed under Article 136 of the Constitution of India. The learned
counsel on either side invited our attention extensively to the relevant
portions of the judgment of the courts below to substantiate their respective
standpoint.
We
have carefully considered the submissions of the learned counsel appearing on
either side. The grievance sought to be made on the alleged non- compliance
with the provisions in Section 235(2), Cr.P.C., does not merit countenance and
the decision relied upon, as noticed above, does not help to support the claim
as well. The decision in Santa Singh's case (supra) was one where the sentence
imposed was of death the maximum and in such circumstances this Court thought
fit to set aside the sentence alone and remand the same to give a hearing on
the same. It was indicated even therein in the concurring judgment of S. Murtaza
Fazl Ali, J. that no grievance can be made where minimum sentence under the
provisions of law has been awarded. As a matter of fact, the same Bench while
dealing with the case reported in Narpal consideration afresh of the Sessions
Judge the question of sentence after giving opportunity only in respect of the
accused on whom death sentence was imposed and straight away disposed of and
dismissed the appeal in respect of those accused who were sentenced to life
imprisonment only on being convicted of an offence of murder under Section 302,
IPC. In Ramdeo Chauhan alias Judges had an occasion to consider the question in
the light of the amendment made by introducing third proviso to Sub-section (2)
of Section 309, Cr.P.C., and observed that the plea made as to the sentence and
conviction being recorded on the same day resulting in contravention of Section
235(2), Cr.P.C., cannot be accepted and that though the normal rule be that
after pronouncing the verdict of guilt the hearing should be made on the same
day and sentence also should be pronounced that day itself, in cases where the
Judge feels or if the accused demands more time for hearing on the question of
sentence especially when the Judge proposes to impose death penalty, the third
proviso to Section 309, Cr.P.C., would be no bar for affording such time and if
for any reason the Court was inclined to adjourn the case after pronouncing the
verdict of guilt in grave offences, the person convicted should be committed to
jail till the verdict on the sentence is pronounced.
So far
as the case on hand is concerned, the order of the Trial Court would disclose
that the verdict of guilt was pronounced on 4.10.1989 and on that day itself
after hearing perhaps the learned counsel for the accused the order sentencing
the appellant was separately passed. So far as the conviction under Section
498A, IPC, is concerned, as against the permissible sentence of life
imprisonment or imprisonment which may extend to ten years and fine, a sentence
of three years R.I. and for conviction under Section 306, IPC, as against the
permissible sentence of imprisonment up to ten years and fine, seven years R.I.
have been found imposed. It is not the case of the appellant that he sought for
an adjournment or grant of further time for making submission on the sentence
but the same was refused. Even no grievance in that behalf by the appellant
appears or shown to have been made before the High Court either in the
memorandum of appeal or at the time of argument. In the light of the above, the
appellant cannot make any legitimate grievance at any rate on the alleged
non-compliance with Section 235(2), Cr.P.C. The contention in this regard shall
stand rejected.
So far
as the challenge sought to be made on merits as to the conviction of the
appellant is concerned, we find that both the courts below have undertaken an
independent consideration of the materials on record in the light of the
contentions urged on behalf of the appellant and yet found the prosecution case
fully substantiated on the basis of concrete and relevant materials brought on
record. The defence plea as to want of sufficient proof for demand of
additional dowry and harassment on that account and as to the appellant being
possession of sufficient resources in Bank have been considered elaborately and
found rejected for valid and relevant reasons supported by concrete materials
produced. The ample materials on record overwhelmingly support the factual
findings concurrently recorded by both the courts below and they are not shown
to be vitiated for any infirmity whatsoever to call for or justify the
interference of this Court in the appeal filed under Article 136 of the
Constitution of India. The evidence on record, to which our attention has also
been drawn by the learned counsel, sufficiently makes out the case of
persistent and unabated harassment and acts of cruelty meted out to the
deceased by not only pestering her and her relatives to give more and more by
way of additional dowry from time to time, but that she has been ill-treated
physically and consequently the challenge made to the concurrent findings is
not only bereft of substance but does not merit countenance in our hands. The
quantum of sentence, keeping in view the serious nature of the offences, also
cannot be said to be on the higher side, for showing any further leniency.
The
appeal, consequently, fails and shall stand dismissed.
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