Kailash
Vs. State of M.P [2006] Insc 633 (9 October 2006)
Arijit
Pasayat & Lokeshwar Singh Panta
(Arising
out of SLP (Crl.) No. 5592 of 2005) ARIJIT PASAYAT, J.
Leave
granted.
Challenge
in this appeal is to the judgment rendered by a learned single Judge of the
Madhya Pradesh High Court at Jabalpur dismissing the appeal of the appellant
and maintaining his conviction and sentence as recorded by the trial Court.
Appellant
faced trial for alleged commission of offences punishable under Section 498-A
and 304-B of the Indian Penal Code, 1860 (in short the 'IPC') relatable to the
death of He was found guilty by the trial Court and was sentenced to undergo
rigorous imprisonment for ten years for the offence relatable to Section 304-B
IPC but no separate sentence was imposed for the offence relatable to Section
498-A IPC though he was found guilty of the said offence. Smt. Shyam Bai who
faced trial with the appellant was acquitted by the trial Court.
Prosecution
case in a nutshell is as follows:
Appellant
got married with the deceased on 4.5.1997.
Acquitted
accused Smt. Shyam Bai is the aunt of appellant.
In the
wee hours of 18.3.1999 the dead body of deceased was found floating in a well
located in the house of the appellant.
Thus,
the death of Uma Devi occurred otherwise then under normal circumstances. The
deceased was subjected to cruelty or harassment by her husband and acquitted
accused in connection with demand for dowry.
Inquest
was conducted and the dead body of Uma Devi was sent for post mortem examination.
The post mortem examination was conducted by Dr. R.G. Kotia (PW1) who found an
anti-mortem lacerated wound on occipital region of the body and blood was
oozing out from the wound. Dr. Kotia opined that cause of death of Uma Devi was
asphexia due to drowning. In his opinion approximate time of death was within
12 to 24 hours of the post-mortem examination. Ex.P-1 is the report of Dr. Kotia.
During investigation a rope and one steel gund were recovered from the spot. Jamuna
Prasad (PW- 3), Mainda Bai (PW4), Desh Raj (PW5) Sheel Kumar (PW6), Parwati
(PW7), Mukundi (PW8) and Dashrath (PW9) were examined to prove the dowry
demand, harassment and torture. Placing reliance on their evidence, trial Court
convicted the appellant. Matter was carried in appeal before the High Court.
Before the High Court, it was contended that the evidence was not sufficient to
prove the dowry demand, torture or harassment. The High Court did not accept
the plea and affirmed the conviction and sentence.
In
support of the appeal learned counsel for the appellant submitted that the
evidence of the witnesses who were examined to prove alleged dowry demand,
torture and harassment, is not sufficient to prove commission of offence by the
appellant. It is full of exaggerations and trial Court and the High Court
should not have placed reliance on them. It was submitted that the sentence, as
imposed, is high. With reference to the material on record it is submitted that
the accused has already undergone nearly eights years of the sentence.
Learned
counsel for the respondent-State on the other hand supported the order.
On
reading of the evidence of the witnesses who have spoken about dowry demand,
torture and harassment nothing substantially discrepant can be noticed. The
witnesses, though cross-examined at length, stated in clear terms about the
dowry demand, the torture and the harassment. In that view of the matter the
trial Court and the High Court was justified in holding the accused guilty.
In Kans
Raj v. State of Punjab (2000 (5) SCC 207) a three-Judge Bench of this Court
dealt with the presumption available in terms of Section 113-B of the Evidence
Act, 1872 (in short "the Evidence Act") and its effect on finding
persons guilty in terms of Section 304-B IPC. It was noted as follows:
(SCC
p. 217, para 9) "9. The law as it exists now provides that where the death
of a woman is caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within 7 years of marriage and it is shown that soon
before her death she was subjected to cruelty or harassment by her husband or
any relative for or in connection with any demand of dowry such death shall be
punishable under Section 304-B. In order to seek a conviction against a person
for the offence of dowry death, the prosecution is obliged to prove that:
(a) the
death of a woman was caused by burns or bodily injury or had occurred otherwise
than under normal circumstances;
(b) such
death should have occurred within 7 years of her marriage;
(c) the
deceased was subjected to cruelty or harassment by her husband or by any
relative of her husband;
(d) such
cruelty or harassment should be for or in connection with the demand of dowry;
and (e) to such cruelty or harassment the deceased should have been subjected
soon before her death." The law as it exists now provides that where the
death of a woman is caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within 7 years of marriage and it is shown that
soon before her death she was subjected to cruelty or harassment by her husband
or any relative for or in connection with any demand of dowry such death shall
be punishable under Section 304-B. In order to seek a Conviction against a
person for the offence of dowry death, the prosecution is obliged to prove
that:
(a) the
death of a woman was caused by burns or bodily injury or had occurred otherwise
than under normal circumstances;
(b) such
death should have occurred within 7 years of her marriage;
(c) the
deceased was subjected to cruelty or harassment by her husband or by any
relative of her husband;
(d) such
cruelty or harassment should be for or in connection with the demand of dowry;
and (e) to such cruelty or harassment the deceased should have been subjected
soon before her death.
No
presumption under Section 113-B of the Evidence Act would be drawn against the
accused if it is shown that after the alleged demand, cruelty or harassment the
dispute stood resolved and there was no evidence of cruelty or harassment
thereafter. Mere lapse of some time by itself would not provide to an accused a
defence, if the course of conduct relating to cruelty or harassment in
connection with the dowry demand is shown to have existed earlier in time not
too late and not too stale before the date of death of the victim. This is so
because the expression used in the relevant provision is "soon
before". The expression is a relative term which is required to be
considered under specific circumstances of each case and no straitjacket
formula can be laid down by fixing any time- limit. The expression is pregnant
with the idea of proximity test. It cannot be said that the term "soon
before" is synonymous with the term "immediately before". This
is because of what is stated in Section 114 Illustration (a) of the Evidence
Act. The determination of the period which can come within the term "soon
before" is left to be determined by the courts, depending upon the facts
and circumstances of each case. Suffice, however, to indicate that the
expression "soon before" would normally imply that the interval
should not be much between the cruelty or harassment concerned and the death in
question. There must be existence of a proximate and live link [see Hira Lal v.
State (Govt. of NCT), Delhi (2003 (8) SCC 80].
The
factual position of the present case goes to show that the death was not in
normal circumstances. The expression "normal circumstances"
apparently means natural death. In other words the expression "otherwise
than under normal circumstances" means death not being in the usual course
but apparently under suspicious circumstances if not caused by burns or bodily
injury. This position was noted before this Court in Shanti v. State of Haryana (1991 (1) SCC 371).
These
aspects were highlighted in Thakkan Jha v. State of Bihar (2004 (13) SCC 348).
The
conviction as maintained by the High Court needs no interference. Coming to the
question of sentence, on considering the background facts, it would be
appropriate to reduce the custodial sentence to eight years which the appellant
claims to have undergone including remissions. If the appellant had already
undergone custodial sentence including remission for eight years, he shall be
immediately released from custody unless required to be in custody in
connection with any other case.
The
appeal is partly allowed so far as it relates to quantum of sentence.
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