Baijnath & Others v. State of Madhya Pradesh
AMITAVA ROY, J. I. The appellants, the in-laws of the
deceased Saroj Bai, being aggrieved by the conversion of their acquittal
into conviction by the High Court under Sections 498A and 3048 of the
Indian Penal Code (for short hereinafter referred to as the "Code") seek
defeasance of this verdict in the present appeal.
2. Heard Mr. Siddhartha Dave, learned counsel for the appellants
and Mr. Naveen Sharma, learned counsel for the respondent.
3. The genesis of the prosecution case lies in the info1mation lodged
by appellant Baijnath, the elder brother of the appellant No.2, Shivraj, the
F father-in-law of the deceased. The information disclosed that on
09.06. I 996 at about 8 p.m. the family had dinner together and after
watching television, retired to the respective rooms for the night. The
deceased was married to Rakesh, son ofappellant No.2. According to
the informant, in the next morning she was found dead, hanging from the
G fan by a ligature.
4. On this information Merg No.20/1996 was registered with the
Chanderi Police Station and on the completion of the investigation charge
sheet was laid against the appellants together with Rakesh, husband of
the deceased and Prem Bai, wife of the appellant No. I under Sections
H 302, 304B, 498A, 201 read with Section 34 of the Code. According to
BAIJNATH & OTHERS v. STATE OF MADHYA PRADESH
[AMITAVAROY,J.]
the prosecution, the investigation revealed that the husband of the deceased
along with the appellants had been demanding dowry and in pursuit thereof
had subjected the deceased to harassment and torture in the proximate
past of the incident.
5. At the trial, the learned Additional Sessions Judge concerned
framed charges against the accused persons under Sections 3048 and
498A of the Code, which were denied by the accused persons. Subsequent
thereto Rakesh committed suicide on 09 .06.1998 by consuming poison
and therefore he was deleted from the array of the persons indicted.
6. The prosecution at the trial examined 12 witnesses including
the Investigating Officer and the Doctor who had performed the
postmortem examination. The defence, after the recording of the
statements of the appellants under Section 313 Cr.P.C., examined 4
witnesses.
7. The Trial Court on an exhaustive assessment of the evidence
adduced, acquitted the accused persons of the charges against which
the respondent/State preferred appeal before the High Court. The
impugned decision has been rendered thereby upturning the acquittal.
8. The learned Trial Court while recording the admitted fact of
marriage between the deceased and Rakesh and also that the incident
had occurred in the matrimonial home of the wife within 7 years of the
alliance, dismissed the evidence with regard to demand of motorcycle in
dowry and the imputation of torture, cruelty and harassment as projected
by the prosecution and thus exonerated the accused persons of the
charges levelled holding that in the attendant materials on record, the
statutory presumption as envisaged in Section 1138 of the Evidence Act,
I 872 (hereinafter referred to as the "Act, I 872") was not available for
invocation.
9. The High Court however being of the opinion that the deceased
had died an unnatural death in suspicious circumstances in her matrimonial
home within 7 years of marriage and that the same was preceded by
persistent demands for a motorcycle as dowry in marriage accompanied
by cruelty, returned the finding of guilt against the appellants but
exonerated Prem Bai, the wife of appellant No. I i.e. Baijnath. It accepted
the evidence adduced by the prosecution qua the charge of dowry demand,
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harassment and cruelty in connection therewith and applied the deeming
prescription/statutory presumption contained in Section 3048 of the Code
and Section 1138 of Act, 1872.
I 0. The learned counsel for the appellants has in this backdrop
insistently urged that the evidence in suppoti of the charge of demand
for a motorcycle as dowry in marriage by the husband and his family
members being patently inadequate and unconvincing to furnish the
ingredient relating thereto qua the charges levelled against the appellants,
their conviction is utterly unsustainable and ifallowed to stand would
amount to travesty of justice. According to Mr. Dave, the imperative
essentials of Sections 498A and 3048 of the Code not having been proved,
the High Court had fallen in error in applying the deeming edict/statutory
presumption mandated by Section 3048 of the Code and Section 1138
of Act, 1872 in convetiing their acquittal to conviction. The learned
counsel contended that as the medical evidence as well did not disclose
with certainty the cause of death-homicidal or suicidal, there was as
such no incriminating evidence on record to prove the culpability of the
appellants. As not only the testimony of the prosecution witnesses with
regard to demand for a motorcycle as dowry in marriage is visibly
inconsistent, mutilating each other, the defence evidence to the contrary
formidably establish the falsity of this charge, he urged. According to
Mr. Dave the analysis of the evidence on record by the High Court has
been erroneous leading to findings not borne out by the materials on
record and thus are indefensible in any view of the matter warranting
the acquittal of the appellants.
F 11. In emphatic refutation, the learned counsel for the respondent
has argued that as admittedly the unfortunate incident had occurred within
seven years of marriage in the matrimonial home and that too in suspicious
circumstances, all the prerequisites of the offences under Sections 498A
and 3048 were proved beyond reasonable doubt and thus the impugned
0 decision does not merit interference. The learned Trial Court did err in
evaluating the evidence in the borrect perspectives and the High Court
having undertaken a painstaking review thereof, the findings arrived at
by it, following a proper appreciation of the materials on record are not
only valid in law but also in the exigent espousal of the cause of justice.
H 12. After outlining the rival submissions as above, it is considered
BAIJNATH & OTHERS v. STATE OF MADHYA PRADESH
[AMITAVAROY,J.]
expedient next to take a synopsised stock of the evidence adduced by
the parties, so as to facilitate a better comprehension of the facets of the
!is and the desired adjudication.
13. PW-I Kundan Singh, the uncle of the deceased, deposed that
the families of the accused persons were joint and that at the marriage,
cash and other valuables were gifted to the in-laws of the deceased and
that the ceremony was solemnized without any hassle. The witness
however referred to a grievance being expressed later on by the deceased
alleging that she was being harassed by her husband Rakesh and the
appellants as well as Prem Bai, the wife ofappellant No. I relating to the
demand of motorcycle in dowry. The witness also referred to another
occasion where a similar complaint had been made by the deceased to
him. He claimed to have seen the dead body of the deceased hanging
from the fan.
14. In cross-examination, this witness deposed about a demand
for motorcycle at the time of marriage but however conceded that no
complaint was made to the police for such demand at any point of time.
He denied the suggestion that the deceased had committed suicide as
because her fidelity to her husband was being questioned in the face of
her love affairs with the son of one Thoran Singh, the Sarpanch of the
village.
15. PW-2 Jahar Singh, the father of the deceased mentioned about
the demand for a motorcycle by the husband and the in-laws of the
deceased at the time of the marriage and also the harassment in connection
therewith suffered by the deceased as reported by her to him. The witness
also referred to the same demand by the husband in the year 1996 on the
occasion of Chowk Vidai, a ritual, whereupon he was assured that as
and when it would be financially feasible, the same would be arranged.
This witness as well stated that though the demand for the motorcycle
was being made since the time of marriage in the year 1994, no complaint
was made by him with regard thereto to anybody. When confronted with
his statement in course of the investigation, he admitted of the omission
in the disclosure that the deceased had confided in him about such demand
during her limited stay at the matrimonial home and the harassment and
mal-treatment in connection therewith. He denied the suggestion that
the deceased had eloped with the son of Thoran Singh and that as a
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result there was a confrontation between him with the family ofThoran
Singh. He also denied the suggestion that in view of this episode there
was unpleasantness in the family of the in-laws of the deceased for
which they had some reservation in accommodating her in the nuptial
house.
16. PW-3 Jhulla, who at the relevant time was the Sarpanch of
the village deposed that the deceased had committed suicide and that
when he visited the spot, he did not see any injury on her body.
17. In cross-examination, he clarified that the appellant No. I was
Jiving separately from the in-laws of the deceased from before the
marriage. He also mentioned that the accused persons were held in high
esteem in the village and used to behave decently with their daughter-in
law. He also stated that he had not heard about any demand of dowry
made by the accused persons.
18. PW-4 Narayan Singh, a neighbour did mention about the demand
ofa motorcycle in dowry atthe time of marriage and that the deceased
had disclosed to her father about harassment meted out to her by the
appellants and Prem Bai in connection therewith. In cross-examination
the witness testified that there was no demand for dowry before the
marriage and that there was no report with regard thereto to the police.
19. PW-5 Prembai, the mother of the deceased testified that no
dowry was fixed before the marriage and no demand was made by the
accused persons but they still offered Rs. I lac to them. She stated that
her son-in-law while dining made a demand for motorcycle which
according to the witness was assured as and when the finances would
be available. This witness deposed that even after two years ofmaiTiage,
the appellants repeated the said demand to which a similar assurance
~as !!gain given.
20. In cross-examination, this witness admitted that before the
G marriage no demand for motorcycle had been made as dowry, though
she mentioned about the complaints made by the deceased to her about
harassment by the accused persons for not providing the bike. She
admitted that no complaint in this regard was ever made and the relations
as well were not informed about the treatment suffered by the deceased.
BAIJNATH & OTHERS v. STATE OF MADHYA PRADESH
[AMITAVAROY,J.]
21. PW-7 Jahar Singh did state about a demand of motorcycle
made by Rakesh, the husband of the deceased.
22. PW-8 Gyasibai, a neighbour deposed that the deceased had
committed suicide and that when she visited the place of occurrence,
she did not notice any injury mark on her body. In cross-examination the
witness stated that the deceased did never speak to her about the demand
and testified that the in-laws did treat her properly and that there was no
confrontation at any point of time.
23. PW-I I Manish Kapuria~the Investigating Officer narrated
the steps taken by him in course of the inquisition and mentioned amongst
others about the preparation of the panchnama of the dead body. Though
this witness stated that the whole exercise was videographed, he admitted
that the same had not been produced as evidence. He claimed to have
seen two ligature marks 011 the neck of the deceased.
24. PW-12 Dr. R.P. Sharma, who had performed the postmortem
examination, stated to have identified contusion on the right cheek, middle
ofleft side ofneck and middle ofleft parietal region in the dead body.
According to him, the ligature mark was found to be ante-mortem in
nature. He also mentioned that the 3 contusions were ante-mortem but
opined that the ligature mark was postmortem in occurrence. On an
overall assessment however, the witness stated that as at the time of
autopsy the body had started putrefying, no opinion as to the cause of
death could be given. In cross-examination the witness admitted that the
dead body did not wear any other injury other than tho.se mentioned.
25. The witnesses of the defence, namely, DW-1 Gaya Prasad,
DW-2 Munna, DW-3 Har Kunwar Bai and DW-4 Simam Singh in unison
testified that there was no demand for dowry or motorcycle ever made
by the husband of the deceased or her in-laws. They further stated that
the appellant No.1 Baijnath had been residing separately from the in
laws of the deceased from before the marriage. According to them, the
family of the in-laws of the deceased was sufficiently well-off and did
enjoy appreciable reputation in the society. These witnesses were all
neighbours of the appellants.
26. DW-3 Har Kunwar Bai, in addition stated that the deceased
had during her marriage eloped with the son of Pradhan of the Village
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Chitara and that in the night of the incident she was with her, watching
television before they parted for their respective rooms to sleep. This
witness is the daughter-in-law of appellant No.2 and asserted that neither
she nor the deceased had ever been harassed in the family.
27. The evidence on record and the competing arguments have
received our required attention. As the prosecution is on the charge of
the offences envisaged in Sections 304B and 498A of the Code, the
provisions for reference are extracted hereunder:
"304B. Dowry death.-( 1) Where the death of a woman is
caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of her marriage
and it is shown that soon before her death she was subjected to
cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry, such
. death shall be called "dowry death", and such husband or relative
shall be deemed to have caused her death.
Explanation. -For the purpose of this sub-section, "dowry"
shall have the same meaning as in section 2 of the Dowry
Prohibition Act, 196 f (28of1961 ).
E (2) Whoever commits dowry death shall be punished with
imprisonment for a tenn which shall not be less than seven years
but which may extend to imprisonment for life.
498A. Husband or relative of husband of a woman
sub.iecting her to cruelty.-Whoever, being the husband or
F the relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, "cruelty"
means-
(a) any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury
or danger to life, limb or health (whether mental or physical)
of the woman; or
t
BAIJNATH & OTHERS v. STATE OF MADHYA PRADESH
[AMITAVAROY,J.]
(b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is
on account of failure by her or any person related to her to
meet such demand.
28. Whereas in the offence of dowry death defined by Section
304B of the Code, the ingredients thereof are:
(i) death of the woman concerned is by any burns or bodily
injury or by any cause other than in normal circumstances
and
(ii) is within seven years of her marriage and
(iii) that soon before her death, she was subjected to cruelty or
harassment by her husband or any relative of the husb:md
for, or in connection with, any demand for dowry.
the offence under Section 498A of the Code is attracted qua the
husband or his relative if she is subjected to cruelty. The
explanation to this Section exposits "cruelty" as:
(i) any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury
or danger to life, limb or health (whether mental or physical)
or
(ii) harassment of the woman, where such har,assment is with a
view to coercing her or any person related to her to meet
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any unlawful demand for any property or valuable security F
or is on account of failure by her or any person related to her
to meet such demand.
29. Patently thus, cruelty or harassment of the lady by her husband
or his relative for or in connection with any demand for any property or
valuable security as a demand for dowry or in connection therewith is G
the common constituent of both the offences.
30. The expression "dowry" is ordained to have the same meaning
as in Section 2 of the Dowry Prohibition Act, 1961. The expression
"'cruelty", as explained, contains in its expanse, apart from the conduct
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of the tormentor, the consequences precipitated thereby qua the lady
subjected thereto. Be that as it may, cruelty or harassment by the husband
or any relative of his for or in connection with any demand of dowry w
reiterate is the gravamen of the two ot1ences.
31. Section 1138 of the Act enjoins a statutory presumption as to
dowry death in the following tem1s:
"113B. Presumption as to dowry death. - When the question
is whether a person has committed the dowry death ofa woman
and it is shown that soon before her death such woman has been
subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court shall presume
that such person had caused the dowry death.
Explanation. - For the purpose of this section, "dowry death"
shall have the same meaning as in section 3048 of the Indian
Penal Code (45 ofl 860)"
32. Noticeably this presumption as well is founded on the proof of
cruelty or harassment of the woman dead for or in connection with any
demand for dowry by the person charged with the offence. The
presumption as to dowry death thus would get activated only upon the
proof of the fact that the deceased lady had been subjected to cruelty or
harassment for or in connection with any demand for dowry by the
accused and that too in the reasonable contiguity of death.
Such a proofis thus the legislatively mandated prerequisite to invoke
the otherwise statutorily ordained presumption of commission of the
offence of dowry death by the person charged therewith.
33. A conjoint reading of these three provisions, thus predicate the
burden of the prosecution to unassailably substantiate the ingredients of
the two offences by direct and convincing evidence so as to avail the
presumption en grafted in Section 1138 of the Act against the accused.
G Proof of cruelty or harassment by the husband or his relative or the
person charged is thus the sine qua non to inspirit the statutory
presumption, to draw the person charged within the coils thereof. If the
prosecution fails to demonstrate by cogent coherent and persuasive
evidence to prove such fact, the person accused of either of the above
8AIJNATH & OTHERS v. STATE OF MADHYA PRADESH
[AMITAVA ROY, J.]
referred offences cannot be held guilty by taking refuge only of the
presumption to cover up the shortfall in proof.
34. The legislative primature of relieving the prosecution of the
rigour of the proof of the often practically inaccessible recesses of life
within the guarded confines of a matrimonial home and of replenishing
the consequential void, by according a presumption against the person
charged, cannot be overeased to gloss-over and condone its failure to
prove credibly, the basic facts enumerated in the Sections involved, lest
justice is the casualty.
35. This Court while often dwelling on the scope and purport of
Section 3048 of the Code and Section l 138 of the Act have propounded
that the presumption is contingent on the fact that the prosecution first
spell out the ingredients of the offence of Section 3048 as in Shindo
Alias Sawinder Kaur and another Vs. State of Punjab - (2011) 11
. SCC 517 and echoed inRajeevKumar Vs. StateofHaryana-(2013)
16 SCC 640. In the latter pronouncement, this Court propounded that
one of the essential ingredients of dowry death under Section 3048 of
the Code is that the accused must have subjected the woman to cruelty
in connection with demand for dowry soon before her death and that this
ingredient has to be proved by the prosecution beyond reasonable doubt
and only then the Court will presume that the accused has committed the
offence of dowry death under Section 113 B of the Act. It referred to
with approval, the earlier decision of this Court in K. Prema S. Rao Vs.
Yadla Srinivasa Rao - (2003) I SCC 217 to the effect that to attract
the provision ofSection 3048 of the Code, one of the main ingredients of
the offence which is required to be established is that "soon before her
death" she was subjected to cruelty and harassment "in connection with
the demand for dowry".
36. Tested on the judicially adumbrated parameters as above, we
are of the unhesitant opinion that the prosecution has failed to prove
beyond reasonable doubt, cruelty or harassmentto the deceased for or
in connection with any demand for dowry as contemplated in either of
the two provisions of the Code under which the accused persons had
been charged. Noticeably, the alleged demand centers around a
motorcycle, which as the evidence of the prosecution witnesses would
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evince, admittedly did not surface at the time of finalization of the
marriage. PW-5, the mother of the deceased has even conceded that
there was no dowry demand at that stage. According to her, when the
husband (who is dead) had insisted for a motorcycle thereafter he was
assured that he would be provided with the same, finances permitting.
Noticeably again, the demand, as sought to be projected by the
prosecution, if accepted to be true had lingered for almost two years. Yet
admittedly, no complaint was made thereof to anyone, far less the police.
Apart from the general allegations in the same tone ingeminated with
parrot like similarity by the prosecution witnesses, the allegation of cruelty
and harassment to the deceased is founded on the confidential
communications by her to her parents in particular and is not supported
by any other quarter.
3 7. To the contrary, the evidence of the defence witnesses is
consistent to the effect that no demand as imputed had ever been made
as the family of the husband was adequately well-off and further the
appellant No. I Baijnath had been living separately from before the
marriage. According to them there was no occasion for any quarrel/
confrontation or unpleasantness in the family qua this issue. Significant
is also the testimony ofDW-3, the sister-in-law of the deceased who
indicated abandonment of the matrimonial home by her with the son of
Thoran Singh, the Sarpanch of the village for which she understandably
had incurred the displeasure of the in-laws. DW-4, the father of DW-3
who had given his daughter in marriage in the same family had deposed
that he did not ever encounter any demand for dowry. The testimony of
the prosecution witnesses PW-3 and PW-7 fully consolidate the defence
version.
38. A cumulative consideration of the overall evidence on the facet
of dowry, leaves us unconvinced about the truthfulness of the charge
qua the accused persons. The prosecution in our estimate, has failed to
G prove this indispensable component of the two offences beyond
reasonable doubt. The factum ofunnatural death in the matrimonial home
and that too within seven years of marriage therefore is thus ipso facto
not sufficient to bring home the charge under Sections 304B and 498A
of the Code against them.
BAIJNATH & OTHERS v. STATE OF MADHYA PRADESH
[AMITAVA ROY, J.]
39. The predicament of the prosecution is compounded further by
its failure to prove, the precise cause of the death of the deceased. It is
not clear as to whether the death has been suicidal or homicidal. It is also
not proved beyond doubt, the origin and cause of the external injuries.
Though the obscurity of the causative factors is due to the putrefaction
of the body, the benefit of the deficiency in proof, logically would be
available to the persons charged.
40. In all, tested on the overall scrutiny of the evidence as a whole,
in our comprehension, the conviction of the accused persons including
the appellants herein on the basis of the materials on record would not be
out of risk. To reiterate, the prosecution has failed to prove the crucial
ingredient of cruelty and harassment by direct and cogent evidence
thereby disentitling itself to the benefit of the statutory presumption
available under Section 1138 of the Act.
41. Whereas the analysis of the evidence by the Trial Court, in our
view, has been in the proper perspectives, factual and legal and thus the
findings recorded by it are valid, the High Court based its determination
substantially on presumptive inferences taking the aid of Section 113 B of
the Act, divorced from the attendant facts and the evidence with regard
thereto. We are thus of the opinion, that the conclusions of the High
Court do not constitute a plausible view on the materials on record and
cannot be sustained.
42. The appellants thus in view of the evaluation made hereinabove
are entitled to the benefit of doubt. The appeal is allowed. The impugned
judgment and order is set-aside. The appellants are hereby ordered to be
set at liberty forthwith if not wanted in connection with any other case.
Let the records of the Trial Court be remitted immediately for the needful.
Divya Pandey Appeal allowed.
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