-1- Cri.A.2199/03 & 690/04 HIGH COURT OF MADHYA PRADESH: JABALPUR DB: HON'BLE SHRI JUSTICE RAJENDRA MENON & HON'BLE SHRI JUSTICE ANIL SHARMA, JJ. Criminal Appeal No. 2199 / 2003. Sunil Kumar S/o. Ram Krishna Dubey Versus The State of Madhya Pradesh -------------------------------------------------------------------------------------------------- Shri S. K. Dwivedi, Shri S. K. Mishra, Shri A. P. Sharma and Shri R. N. Mishra, Advocates for the Appellant. Shri Sanjeev Singh, learned Panel Lawyer, for the respondent / State. -------------------------------------------------------------------------------------------------- AND Criminal Appeal No. 690 / 2004 The State of Madhya Pradesh Vs. Ram Kishan and Others --------------------------------------------------------------------------------------------------- Shri Sanjeev Singh, learned Panel Lawyer, for the appellant / State. Shri S. K. Dwivedi, Shri S. K. Mishra, Shri A. P. Sharma and Shri R. N. Mishra, Advocates for the respondents. --------------------------------------------------------------------------------------------------- JUDGMENT
(24/04/2014) This common judgment shall govern the disposal of aforesaid both criminal appeals namely Criminal Appeal No. 2199/03 filed by the appellant / accused Sunil Kumar Dubey, and another Criminal Appeal No.690/2004 filed by the State of M.P., against the judgment dated 17.12.2003, passed by 3rd Additional Sessions Judge (Fast Track Court) Katni, in S. T. No.49/98.
2. Criminal appeal No. 2199/03 has been filed by the appellant / accused Sunil Kumar Dubey, challenging his conviction for the offence punishable under Sections 302, 304-B and 498-A of IPC, by the impugned judgment, by which, learned Trial Court has sentenced him to undergo RI for life for offence punishable under Section 302 IPC; RI for 10 years for offence punishable under Section 304-BIPC and RI for 3 years for offence
-2- Cri.A.2199/03 & 690/04 punishable under Section 498-A IPC. While, criminal appeal no. 690/2004 has been filed by the State, challenging acquittal of the respondents / accused namely Ram Kishan Dubey, Sushil Kumar Dubey, Smt. Rajkumari Dubey and Smt. Sunita Gautam, from the aforesaid charges.
3. Brief facts of the case are that, appellant Sunil Kumar Dubey was married to Shobha @ Premila (deceased) on 26.4.1995. On 5.10.1997 Shobha @ Premila died due to 100% burn injuries in the house of her husband and after Merg intimation and lodging of FIR, it has been found that she was harassed for dowry by her husband and in-laws and she was killed by her husband and in-laws, who are respondents in criminal appeal no. 690/04. Learned Trial Court, after trial of the accused persons for the offence punishable under Sections 302, 304-B and 498-A of IPC, has convicted the appellant Sunil Kumar Dubey (husband) as mentioned in para 2 of the judgment and acquitted remaining accused nos. 2 to 5 who are respondent nos. 1 to 4 in Criminal appeal no. 690/04. Being aggrieved by the impugned judgment, appellant Sunil Kumar Dubey has filed criminal appeal no. 2199/03, challenging his conviction on the ground that the learned Trial Court is not justified in convicting him, overlooking unreliable evidence of prosecution. There was no evidence available on record relating to demand of any dowry.
4. Criminal appeal no. 690/04 has been filed by the State against impugned judgment challenging finding of acquittal against the remaining accused persons on the ground that there were ample evidence available for demand of dowry on record, therefore, learned trial court is not justified in acquitting them.
5. Main point for consideration in both these appeals is as to whether the learned Trial Court is justified in passing the impugned judgment, by which, appellant Sunil Kumar Dubey has been convicted and other accused have been acquitted.
-3- Cri.A.2199/03 & 690/04
6. There is no dispute as to the fact that deceased Shobha @ Premila was married to accused / appellant Sunil Kumar on 26.4.1995 and she died on 5.10.1997, due to burn injuries, which is an unnatural death, and therefore, we have to see that whether death of Shobha @ Premila was homicidal or it was “dowry death” and that, whether the deceased was ill- treated for fulfilling the demand of dowry by her husband or in-laws.
7. Learned Trial Court has appreciated the evidence regarding death of dowry from Paragraphs 15 to 26 in the impugned judgment and considered each evidence regarding demand of dowry alleged, out of which, demand of colour T.V. had been told by the deceased to her mother, father and sisters when she came to her maternal house third time after her marriage, but appreciating the evidence, the learned Trial Court has rightly held that there is no evidence that she had talked to her in-laws and husband regarding demand of colour T.V. after giving dowry, at the time of her Court statement, between them. In no letter, the deceased has told that she had been harassed for fulfillment of demand of colour T.V., even husband Sunil never made demand of colour T.V. from her father-in-law. Sisters of the deceased have not mentioned the fact of ill-treatment for demand of colour T.V. in their statements Ex.D/3 & D/4 and Ku. Sushma (PW-6), who is sister of the deceased, has admitted that her sister never told her when she was beaten or abused for fulfillment of demand of colour T.V. Therefore, the learned Trial Court is justified in rejecting the allegation regarding demand of colour T. V. in dowry and harassing the deceased for fulfillment of said demand.
8. Other alleged demands are that of demand of money of Rs.20,000/- for construction of house and demand of Rs.10,000/- after Sunil, husband of the deceased, became jobless. Out of which, Rs.10,000/- was paid for construction of house and Rs.5000/- was paid to the husband after he lost his job. Although, there are contradictions regarding demand of even
-4- Cri.A.2199/03 & 690/04 amount and learned counsel for the appellant / accused has submitted that the demand of money for extending help in construction of the house and monetary help for livelihood cannot be termed as demand of dowry. In support of his contention, he has cited a judgment of Hon’ble Apex court passed in the matter of Appasaheb and another vs. State of Maharashtra (2007) 9 SCC 721, in which, it has been held that the demand made by the appellant / accused from the parents of the deceased (wife) to meet domestic expenses and for purchasing manure, cannot be said to be a demand of dowry. Since, essential ingredients of Section 304-B IPC viz. demand of dowry is not established, the conviction of the appellants under Section 304-B r/w. S. 34 IPC cannot be sustained. It has been further held that demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure, cannot be termed as a demand of dowry. Therefore, even if, demand of Rs.10,000/- or Rs.5000/- was made by the parents of the appellant / accused from the deceased or her parents, for construction of the house or as monetary help to a jobless husband of their daughter, the said payment cannot be termed as a demand of dowry and further, after making such payment, there is no evidence that demand had been existing till the death of the deceased, has not been established. Therefore, in the absence of necessary ingredients of “demand of dowry”, conviction of the appellant / husband Sunil for the offence under Sections 304-B and 498-A, IPC, is not sustainable and acquittal of other respondents / accused no. 1 to 4 in criminal appeal no. 690/04, is proper.
9. So far as the death of deceased Shobha @ Premila is concerned, it is an admitted fact that Shobha @ Premila was living with her husband in the quarter which was allotted to her father-in-law and other members of the family were residing in separate house nearly 200 meters away from the quarter, in which, the deceased was living. Therefore, the learned Trial
-5- Cri.A.2199/03 & 690/04 Court is further justified in acquitting the respondents / accused nos. 2 to 5 who are respondents no. 1 to 4 in Criminal appeal no. 690/2004 from the charges of offence punishable under Sections 498-A, 304-B of IPC and also from the charge of offence punishable under Section 302IPC, as there is no evidence that the deceased was put to fire by the respondents no. 1 to 4 in criminal appeal no. 690/04.
10. So far as conviction of the appellant Sunil Kumar Dubey for the offence punishable under Section 302 IPC is concerned, Dr. R.H. Asrani (PW-9) has found 100% post mortem burn on the body of the deceased. In para 5 of his statement, he has confirmed that he was unable to mention the reason of death, therefore, he had preserved viscera and sent it for chemical examination. In cross-examination, he has further admitted that he had not examined density of blood of the deceased. He has stated that burn injuries found on the body of the deceased were post mortem but he has admitted in cross-examination that he had not preserved mucus from trachea, larynx and lungs and he had not conducted blood level test of the deceased. He has further admitted that he had not conducted any test for presence of carbon in blood, although he has stated that such test might be conducted by chemical examination but no blood was preserved for chemical examination which would reveal the presence of carbon particle in the blood. In fact, no examination has been made after conducting post mortem regarding injury sustained by the deceased whether they were post mortem or ante mortem, even chemical examination conducted by FSL, only mentions absence of poisonous substance in viscera. In fact, the doctor has not given any positive opinion whether the death of the deceased was homicidal, suicidal or accidental. Therefore, other circumstances are to be seen.
11. Learned counsel for the appellant / accused has drawn attention towards the statement of Dr. Subhash Pathak (PW-16), who has seen the
-6- Cri.A.2199/03 & 690/04 spot as a Senior Scientist of FSL Team and on seeing spot, he has been stated that the quarter was having 3 rooms, out of which, doors of front were closed from inside at the time of incidence as told to him. He has found blackening in all 3 rooms of the quarter. He has also found pieces of burn cloths in kitchen and other two rooms and this is only possible when the victim moved in all 3 rooms while she caught fire. The dead body never moves, therefore, movement of the victim in all 3 rooms of the quarter, suggests that she was not put to fire after killing.
12. Police has not prepared any Panchnama regarding condition of the house when the police reached on spot whether the doors of the house were closed from inside or they were open. However, it is an admitted position that appellant Sunil Kumar Dubey was not present at the time of incident in the house. Further, statement of Dr. Subhash Pathak (PW-16) reveals that doors of front and backside were closed from inside and this fact might have gone against the Prosecution agency for implicating the accused persons for offence punishable under Section 302 IPC and further considering the fact that the father of the deceased is a Police Constable, Shivcharan (PW-1), a detailed spot map has either not been prepared or if prepared, it has not been produced, as the factum of closure of doors from inside, might have gone against the theory created by the prosecution agency.
13. Learned Trial Judge has also created different story in para 47 of its judgment, in which, it has been held that the deceased might have been killed by putting pillow on her face or by pressing throat as tongue was found protruded which may be the result of strangulation. Although, the Judge can use experience of the life by considering the evidence of judgment but such experience does not include hypothetical inference. Where the Doctor has stated that the burn injuries were post mortem and failed to collect blood or fluid for confirming the same, Modi’s Medical
-7- Cri.A.2199/03 & 690/04 Jurisprudence and Toxicology (Ed.23,Page-595), mentions that in homicidal smothering, affected by the forcible application of the hand over the mouth and the nostrils, bruises and abrasions are often found on the lips and on the angles of the mouth, and alongside the nostrils. The inner mucosal surface of the lips may be found lacerated from pressure on the teeth. It further mentions that in case of suffocation, the lips are livid, and the tongue sometimes protruded. Bloody froth comes out of the mouth and the nostrils. Therefore, merely on the basis of protruded and in the absence of any mark of hypothecation it cannot be said that death of the deceased was result of hypothecation particularly when she was alone in the house and doors of the house were closed from inside and was removed in all 3 rooms of the house in burning condition. Learned Trial Court is not justified in holding that the death of the deceased was homicidal in the absence of any proper evidence either medical or circumstantial. The witnesses had seen the deceased cleaning the house in the morning and after sometime, fume was seen coming out from the house while she was inside. Therefore, the death of the deceased may be either accidental or suicidal but in the absence of any evidence regarding demand of dowry and further, in the absence of any evidence in quarrel between the deceased and her husband and further considering the fact that immediately before the incident, the deceased was seen cleaning her house in normal way, it cannot be said that death of the deceased was due to any abetment by her husband. The possibility of abetment for suicide is also not available from the evidence on record.
14. Therefore, there is no evidence against the respondents no. 1 to 4 / accused in criminal appeal no. 690/04 regarding demand of dowry or harassment for dowry and also their presence at the time of incident where deceased was living in the house. Therefore, the acquittal of the respondents no. 1 to 4 in criminal appeal no. 690/04 is proper. There is no
-8- Cri.A.2199/03 & 690/04 force in the appeal filed by the State against acquittal and learned Trial Court is justified in acquitting them. Therefore, criminal appeal no. 690/2004 filed by the State against the acquittal of the respondents no. 1 to 4 is hereby dismissed.
15. According to Modi’s Medical Jurisprudence and Toxicology, (Ed.23, Page-633) persons removed from houses destroyed by fire are often found dead from suffocation due to the inhalation of smoke, carbon monoxide and other irrespirable gases, which are the products of combustion. In such a case, burns found on the body are usually post- mortem. Therefore, it is also possible that after death of the victim, due to suffocation, burn injuries, which are result of continuous burning, may appear post-mortem in nature and the fact that tongue of the deceased was found protruded it is possible that victim might have died due to suffocation, entire damage caused by complete burning. Therefore, merely on the basis of the statement of Doctor that burn injuries were post- mortem, it cannot be held that her death was homicidal. Further, no chemical examination of viscera has been done for confirmation of presence of carbon particle or trachea, larynx or blood and above all, doors were found closed from inside, in which, deceased was found in burnt condition, therefore, it cannot be held that her death was homicidal. Thus, learned Trial Court is not justified in convicting the appellant Sunil Kumar Dubey for offence punishable under Section 302 IPC.
16. Consequently, criminal appeal no. 2199/2003 filed by the appellant Sunil Kumar Dubey is allowed and impugned judgment of conviction and sentenced awarded by the Trial Court is set-aside and he is acquitted of the charges of offence punishable under Sections 302, 304-B and 498-A of IPC as no demand of dowry has been established from the evidence produced by the prosecution. The appellant is in jail; therefore, he is directed to be released from jail forthwith.
-9- Cri.A.2199/03 & 690/04
17. Criminal Appeal No.690/04 preferred by the State against the acquittal of the respondents, Ram Kishan, Sushil Kumar, Smt. Rajkumari and Smt. Sunita, is hereby dismissed. They are on bail, their bail bonds as well as surety bonds, stand discharged.
(Rajendra Menon) (Anil Sharma) Judge Judge Parouha/-