THE HIGH COURT OF MADHYA PRADESH BENCH GWALIOR. DIVISION BENCH (1)Hon'ble Shri Justice Rajendra Mahajan. (2)Hon'ble Shri Justice Ashok Kumar Joshi. CRIMINAL APPEAL NO.630 of 2000. State of M.P. Through Police Station Kailaras, District Morena (M.P). Appellant. Versus 1. Kedar S/o Shankar Lal Agrawal Aged 64 years. 2. Kalyan Chand S/o Kedar Lal Agrawal Aged 26 years. 3. Kamla Bai W/o Kedar Lal Agrawal Aged 47 years. All are the residents of Kailaras Police Station Kailaras District Morena (M.P). Respondents. ------------------------------------------------------------ -- For Appellant/State : Shri J.M.Sahni, learned Panel Lawyer. For Respondent : Shri Pradeep Shrivastava learned counsel. ------------------------------------------------------------ -- JUDGMENT
(Pronounced on the 2nd day of November, 2017). Per: RAJENDRA MAHAJAN, J.
-2- CRA.630/2000 Appellant-State has preferred this appeal being aggrieved by and dissatisfied with the judgment and order of acquittal dated 8.3.2000 passed by the Additional Sessions Judge Sabalgarh, District Morena in Sessions Trial No. 232 of 1997, whereby the respondents have been acquitted of the charges under Sections 498A and 304B of the I.P.C. (2) The prosecution case as emerged out before the trial Court during the trial, in nut shell, is as under:-
(2.1) On 27.4.1997 Dr. F.C.Bansal (PW1), the Assistant Surgeon Primary Health Centre, Kailaras informed in writing vide letter Ex.P/3 to the S.H.O. Police Station Kailaras that Mamta W/o Kalyan Chand had been brought to the hospital for treatment in a burn condition. She had 60% burn injuries. She was to be referred to the District hospital, Morena for further treatment.
(2.2) On 27.4.1997 Dr. S.C.Agrawal (PW2), the Assistant Surgeon District Hospital Morena, informed in writing vide letter Ex.P/6 to the S.H.O. Kailaras, Morena that injured Mamta succumbed to burn injuries in the course of treatment.
(2.3) On 27.4.1997, B.L.Ahirwar (not examined), the sub Divisional Police Officer Morena,
-3- CRA.630/2000 held an inquest inquiry in the presence of the public witnesses on the dead body of deceased Mamta and prepared inquest report Ex.P/8.
(2.4) On 28.04.1997, Rameshwar Dayal (PW5), the father of deceased Mamta, lodged a written report Ex.P/9A at Police Station Kailaras stating therein that deceased Mamta got married to respondent Kalyan Chand near about one year before her death on 27.4.1997. Respondent Kedar and Kamla Bai are her in-laws. During the period of one year of her marital life, deceased Mamta came to her native town Ambah four to six times. She used to tell him and his family members that the respondents would taunts her that her parents looted them. Had respondent Kalyan Chand been married in another family, they would have got dowry as per their demands. They would torture and harass her physically and mentally forcing her to bring 40,000/- (forty thousand) rupees in cash and other articles as per their demands in dowry from her parents. Thereupon, he gave them one gold ornament. However, he could not fulfill their remaining demands because he has to marry his one more daughter. As a result, deceased Mamta had to suffer often torture and harassment at their hands.
-4- CRA.630/2000 He doubts that deceased Mamta died of burn injuries under abnormal circumstances. On 28.4.1997, the police of Police Station Kailaras recorded the F.I.R Ex.P/9 and registered a case at Crime No.96 of 1997 against the respondents under Section 304B I.P.C.
(2.5) S.A.Khan (PW7), the Sub Divisional Police Officer Kailaras, investigated the case. On 28.4.1997, he visited the place of occurrence and upon his instructions, Head Constable Chand Kumar Singh (PW10) prepared spot map Ex.P/12. He recorded case diary statements of Rameshwar Dayal Ex.D/3, Angoori Bai (PW4) Ex.D/1, the mother of deceased Mamta, Chhotelal (PW3) Ex.P/7, the Maternal Grandfather of deceased Mamta, and Meena (PW6) Ex.P/10, the real elder sister of deceased Mamta, arrested the respondents and sent the seized articles for forensic examination to FSL Sagar which gave the report Ex.P/18 and P/19.
(2.6) Upon completion of the investigation of the case, the police filed a charge-sheet against the respondents for their prosecution under Section 304B I.P.C in the court of J.M.F.C Sabalgarh. On 4.8.1997, the learned J.M.F.C passed the committal order. Thereafter, the case was registered as Sessions Trial
-5- CRA.630/2000 No.232 of 1997 and was made over to the Additional Sessions Judge, Sabalgarh.
(3) The learned Additional Sessions Judge framed the charges against the respondents under Sections 498A and 304B I.P.C. They pleaded not guilty to the charges. Thereupon, they were put to trial. In the statements under Section 313 Cr.P.C., they denied all the incriminating evidence and circumstances appearing against them in the prosecution evidence. Respondent Kalyan Chand took the defence that he would sell the chaat (spicy preparations) on a handcart. On the fateful morning of the day of incident, deceased Mamta was boiling potatoes, which is a staple part of the chaat, on kerosene stove. At that time, she came accidentally into contact of flames of the stove, and she sustained burn injuries. He made an attempt to douse the fire. In the course of which, he got burn injuries on his hands and feet. In the meantime, his neighbour Gendalal (DW1) came to his house. Thereafter, he, his parents and Gendalal took her to local government hospital Kailaras for treatment and thereafter to the District Hospital Morena, where she died of burn injuries. Respondents Kedar and Kamla Bai took the defence that they live
-6- CRA.630/2000 separately from their son/respondent Kalyan Chand and deceased Mamta, and they have been falsely implicated in the case.
(4) The learned Additional Sessions Judge after analyzing and appreciating the evidence on record in the impugned judgment, has held that the prosecution has failed to prove its case beyond reasonable doubt. On the basis thereof, he acquitted the respondents of the charges under Sections 498A and 304BI.P.C. Feeling aggrieved by the impugned judgment of acquittal, the appellant/State has filed this appeal under Section 378 (2) of the Cr.P.C. (5) Learned Panel Lawyer for the Appellant-State submitted that deceased Mamta’s parents namely Rameshwar and Angoori Bai have testified that deceased Mamta was subjected to dowry related cruelties at the hands of the respondents and she died of burn injuries in abnormal circumstances in her matrimonial home. But, the learned A.S.J. has disbelieved their testimonies on minor contradictions and inconsistencies. Thus, the learned A.S.J has gravely erred in acquitting the respondents of the charges under Sections 498A and 304B I.P.C, whereas all the ingredients of the aforesaid Sections have been
-7- CRA.630/2000 proved by the prosecution. Thus, the impugned judgment and order of acquittal is based upon erroneous appreciation of evidence. Therefore, it is liable to be set-aside and the respondents be punished suitably for the offences punishable under Sections 498A and 304B I.P.C.
(6) On the other hand, learned counsel for the respondents submitted that the learned Additional Sessions Judge has disbelieved the testimonies of the deceased’s parents upon just and proper appreciation of evidence. Therefore, no interference with the impugned judgment and order of acquittal by this court is called for and this appeal is liable to be dismissed.
(7) We have earnestly considered the rival submissions made at the Bar and perused the impugned judgment and the material on record. (8) Before considering the evidence of present case, it would be pertinent to refer to some illuminating judgments as to when the appellate court ought to interfere with the order of acquittal. (9) In Chandppa and Others Vs. State of Karnataka (2007) 4 SCC 415, the apex court has culled out the general principles regarding powers of an appellate
-8- CRA.630/2000 court while dealing with an appeal against the order of acquittal on the basis of its earlier pronouncements, which are as under:-
(i) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(ii) The code of criminal procedure 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on question of fact and of law.
(iii) An appellate court, however, must bear in mind that in a case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(iv) If, two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
(10) Almost similar legal principles were propounded by the Supreme Court in the recent decisions in Gangabhavani Vs. Rayapati Venkat Reddy & Ors. 2013 Cri.L.J. 4618, Jagadevappa and Ors. Vs. State of Karnataka, 2013 Cri.L.J., 2658, Anjanappa Vs. State
-9- CRA.630/2000 of Karnataka, 2014 Cri.L.J. 368, and Sadhu Saran Singh Vs. State of Uttar Pradesh and Others, (2016) 4 SCC 357.
(11) On the basis of the aforestated principles of law, we shall proceed to decide this appeal. (12) Upon the perusal of evidence on record, it appears to us that following are the uncontroverted and admitted facts of the case :
(I). Deceased Mamta died of burn injuries in a year’s time after her marriage in her matrimonial home;
(ii). Deceased Mamta’s husband/ respondent Kalyan Chand sustained burn injuries.
(iii). Deceased Mamta died of burn injuries on the following day of the
incident in the course of treatment in the District Hospital Morena where postmortem on her dead body was conducted.
(13) In order to bring home the charges against the respondents, the prosecution has examined deceased Mamta’s father Rameshwar Dayal (PW5), mother Angoori Bai (PW4), Nana (maternal grandfather) Chhotelal (PW3) and elder sister Meena (PW6). Chhotelal and Meena have not supported the prosecution case. Thereupon the prosecution
– 10 – CRA.630/2000 declared them hostile and confronted them with their case diary statements Ex.P/7 and P/10 respectively and also subjected them to gruelling cross- examination. But the prosecution has had failed to elicit even an iota of evidence in support of its case. As such, the prosecution case rests with the evidence of deceased Mamta’s parents Rameshwar Dayal and Angoori Bai. Since deceased Mamta’s maternal grandfather Chhotelal and elder sister Meena have not supported the prosecution case despite having blood relations with them, we have to meticulously analyze and appreciate the evidence of her parents in order to know how far their testimonies are truthful, reliable and trustworthy.
(14) Upon the perusal of examinations-in-chief of deceased Mamta’s parents Rameshwar Dayal (PW5) and Angoori Bai (PW4), we hold that they have given vague and omnibus statements by saying that the respondents used to torture, harass and taunt deceased Mamta with an objective to force her to bring 30,000/- to 40,000/- rupees in dowry from them and whenever deceased Mamta visited them, she would tell them about the cruelties being committed upon her by the respondents.
- 11 - CRA.630/2000 (15) Rameshwar Dayal and Angoori Bai in para 5
of their cross-examinations have admitted that at the time of engagement of deceased Mamta with respondent Kalyan Chand, the respondents had not demanded any dowry nor had they demanded any dowry at the time of her marriage. Both the witnesses have also admitted that the marriage of deceased Mamta was performed in the “mass marriage function” of his caste. They have also admitted that respondent Kalyan Chand would earn his livelihood by selling chaat on a handcart. Angoori Bai has stated in para 8 of her cross-examination that her husband/Rameshwar would sell gur (jaggery), rice and cooking oil as a street vendor and her family is poor. From the aforesaid admissions and facts, we strongly entertain a suspicion that the respondents would harass and torture deceased Mamta demanding dowry. In the cross-examinations, Rameshwar and Angoori Bai could not satisfactorily reply as to why they have not lodged the police report during the life time of deceased Mamta or called panchayat of their caste regarding the dowry harassment meted out to deceased Mamta at the hands of the respondents.
This non-explanation on their parts makes the - 12 - CRA.630/2000
truthfulness of their statements doubtful. (16) Rameshwar has stated in para 10 of his cross-examination that they kept deceased Mamta near about three months with them. Thereafter, respondent Kalyan Chand took her from their house at about 3 PM. On the same day at about 9 PM, he left deceased Mamta in an unconscious state outside of her house after beating her. He took her for treatment and she regained consciousness in the late night. Rameshwar has failed to explain why he had not mentioned this fact in his F.I.R and case diary statements and why he had not lodged the F.I.R against respondent Kalyan Chand at the relevant time of the said incident. He has stated in para 6 of his cross-examination that deceased Mamta told her about dowry related cruelties, torture and harassment by the respondents in the presence of her maternal grandfather Chhotelal. However, Chhotelal has not supported the said statement of Rameshwar in para 3 of his evidence. On the other hand, he has stated that deceased Mamta used to live in her in-laws house happily, and she had never complained him about outrageous behaviour of the respondents towards her. Thus, non-corroboration of evidence of Ramesahwar
– 13 – CRA.630/2000 by Chhotelal makes the evidence of him totally unreliable.
(17) Head constable Chand Kumar Singh (PW10) has stated that on the date of incident i.e. 27.4.1997, he visited the place of occurrence. There, he saw that potatoes were kept in a utensil over a stove for boiling with water. He found the water was warm. The capacity of tank of the stove was near about four liters and it was filled to its capacity with kerosene oil. Deceased Mamta’s mother Angoori Bai has stated in paras 5 and 12 of her cross-examination that her son-in-law/respondent Kalyan Chand would sell chaat and deceased Mamta used to help him in the preparation of chaat. It is an uncontroverted fact that respondent Kalyan Chand sustained burn injuries. If the aforesaid facts and evidence are weighed meticulously, then it is highly probable that deceased Mamta accidentally came into contact with the flames of burning stove and got burn injuries. Therefore, it may be stated that deceased Mamta died of burn injures in a accident.
(18) Rameshwar has stated in para 6 of his cross-examination that deceased Mamta had education up to 12th standard and she wanted to
– 14 – CRA.630/2000 pursue her further education to get a government job. But the respondents did not allow her to pursue her studies as respondent Kalyan Chand has education up to 8th standard. In view of the aforesaid facts, there is a strong possibility of the maladjustment and incompatibility between respondent Kalyan Chand and deceased Mamta and for the said reason, she might committed suicide in depression and frustration. (19) Meena (PW6) is the elder sister of deceased Mamta. As per her deposition, she is a married woman, and that she lives with her husband in Ambah town where her parents Rameshwar and Angoori Bai also live. They have stated that deceased Mamta visited them at Ambah 4 to 6 times in a period of one year of marriage and she used to narrate them dowry related cruelties and harassment being committed upon her by the respondents, whereas Meena has stated that deceased Mamta never met her after her marriage. It is very surprising that deceased Mamta never met her despite Meena is a resident of Ambah town itself. Thus, the non- corroboration of evidence of Rameshwar and Angoori Bai by Meena also makes dents into the veracity of their testimonies.
- 15 - CRA.630/2000 (20) As per reports of FSL Sagar Ex.P/18 and P/19, deceased Mamta got burn injuries due to
kerosene oil. Since it is an admitted fact, the reports have no evidentiary value.
(21) Defence witness Gendalal (DW1) has stated that he and respondent Kalyan Chand live on rent in the same house in different-portions. At the time of incident, deceased Mamta was boiling potatoes on stove for the preparation of chaat. Upon shrieks of deceased Mamta, he went to her house and saw respondent Kalyan Chand extinguishing her fire in the course of which he also got burn injuries. There is nothing in his cross-examination to disbelieve his evidence. Thus, from his evidence, it is also proved that deceased Mamta got burn injuries accidentally. (22) From the aforesaid meticulous examination of evidence on record, we hold that the prosecution has utterly failed to prove its case against the respondents. Thus, the learned Additional Sessions Judge has rightly acquitted the respondents of the charges framed against them. Consequently, there is no ground to interfere with the impugned judgment and order of acquittal.
(23) For the foregoing reasons and discussions, - 16 - CRA.630/2000
we uphold the impugned judgment and the order of acquittal and dismiss this appeal being devoid of merits and substance. The bail-bonds furnished by the respondents shall stand discharged.
(Rajendra Mahajan) (Ashok Kumar Joshi) Rks. Judge Judge