Allowed

Ashok Kumar v. the State of Madhya Pradesh

Chhattisgarh HC7 Jan 2016CRA/1890/2000

Case brief

AI extract

What is this about?

The High Court allowed the appeal against conviction and sentence. Finding no evidence of instigation to suicide or cruelty for dowry, the court held the presumption under Section 304-B IPC was not attracted and set aside the conviction, acquitting the appellant.

What did the court decide?

The conviction and sentence were set aside; the appeal was allowed subject to compliance with Section 437-A Cr.P.C.

Ashok Kumar Vs the State of Madhya Pradesh — Dowry and Cruelty | Chhattisgarh HC (2016)

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Sessions Trial No. 160 of 1999 dated 27.6.2000.

¶16

Learned Counsel for the Appellant submitted that there is no evidence whatsoever either with regard.to abetment to suicide or to invoke the presumption^{ofadowrydeathmuchlessdemandsfordowry.TheFIRhas} been lodged three weeks later with no explanation for the long and inordinate delay. The allegations are therefore clearly an afterthought made after due deliberation to 'falsely implicate. The brothepiand parents of the deceased were .present at the hospital on the date of occurrence;:;'4;0999 and during cremation. The father anet;SE> iecln3y;,a{so signed the inquesf'report. Nothing preverited them from loyging^^^Blie&'Fepbrt immediately instead of three weeks later. A typed repK3Tt^p,re:pgted by PW-1, Roshan brother of the deceased and signed P\N-2jjSSva'Kfass father ofthe deceased was presented before the police on 25,iT.f§99£iT||e-:coBv|icti6nwas unjustified and deserves to be set aside. '•• i:::.::-';''-,.':;13:".;:l

¶17

Learned Counsel for the State opposing the appeal submitted that there is evidence for demands of dowry from the deceased. PW-2, Sevakram father of the deceased was an illiterate rickshaw puller. Keeping in mind the strata of society to which the parties belonged, delay may not be considered such an important factor as to suspect the FIR itself. There is no reason why a young 19 years old married girl who had recently given birth to a child would commit suicide within three years of the marriage, unless there were compelling circumstances for her to do so. The relationship of the Appellant as the husband of the deceased is crucial and the onus therefore lies on him to rebuf the presumption o.f abetment or -dowry death. The deceased was living in the matrimonial home. TheAppellant had the duty to protect her and

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spontaneous but the result of careful thought and deliberation. The delay therefore naturally makes the FIR suspect in absence of any explanation whatsoeverwith regard to the same.

¶27

•»

¶28

The observations with regard to unexplained delay in lodging the FIR rendering the manner of occurrence as alleged suspicious was considered; in (2001) 6 SCC 71 (State ofH.Rv^GlSfflehand) observing as follows :-

¶29

' :,.;,"'12.......Delay has the effect'of p'uBing the court on its guard to search if any explanatioBtShasa'fcieen offered for the delay, and if offered, whether it is;isa®factoryor not. If the'prosemattesn fails to satisfactorily ex^tlatH the delay' and J;K(©Egi',T§y:asg!(3eissibility of embellisl-imenit in the prosecuti®ii^wetsf@|i/ga''accountof such detay, the delay would't(erfaf|TjIeifftie;|pn3secution........" ~

¶30

Section 306 IPC maKegigbfeEm^nt to suicide punishable up to 10 years along with fine. AbetmenCTial.^^aeeS^'cJ'efiged in Section 107 IPC either as instigating a person to do^nytimgseBgiagfng with one or more persons from doing ofthat thing or intenfionally'tocdmmit any act or omission in the doing of that thing. Therefore to sustain a conviction for abetment, the prosecution has necessarily to establish act or acts on part of the accused which amounted to an instigation for the deceased to commit suicide. Such instigation must also be in proximity of time to the act of suicide and not at a distance or remoteness in tim.e. To establish instigation there must be evidence of conduct done with deliberate intention so as to have the desired result of propelling the othe.r person to commit suicide as considered in (2002) 5 SCC 371 (Sanju v. State of M.P.) observing :-

¶31

. "12......The word "instigate" denotes incitement or urging to do some drastic or- inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur fit of anger

¶32

¶33

and emotion.

¶34

The deceased was only nineteen years old at the threshold of legal maturity. It can safely be said that adult maturity to accept and deal with the ups and downs of life, especially a newly married life does not sink in at that teen age. Impatience and youth are synonymous at that age. Impulsive behaviour ratheF'.tlian ElelibeFated :acts,^rule^^he mind. The prosecution witnesses RdsHan PW-1 brother of the deceased, SgsajKram PW-2 father of the 'Efeceased and Gapesai-tsBaj PW-3 mother of the-,,^eeased have consistently deposed tl-iaitSHeFB^ias^El-yb Be' regular disputes and fights between the Appellant annB^Bisaffgn'^h of whom were very-yaung. These disputes and differences appeaEffl Fjajve been normal wear and tear of a new marriage when both sides rtgeeiyii'i'ieiWunderstand each other. The deceased .rh'f had already given birthyo.'aycthlNg'.aglti'iS young age. Individual tolerance capacity and the tendency-to^impBlsive behaviour along with capacity to reason vary from person to person. The deceased who perhaps was not made of a stronger constitution, surrendered and found an easier answer in consumption of poison ratherthan to face life. In the absence ofanyevidence with regard to any conduct by the Appellant motivated by the mens rea to create an atmosphere for instigation to suicide, we find it difficult to sustain the conviction under Section 306 IPC.

¶35

Merely because death may have taken place within seven years of marriage in unnatural circumstances, shall not attract the presumption under Section 304-B IPC unless the prosecution establishes a prima facie case. To attract the presumption under Section 304-B IPC, it is necessary to establish 'not only that death took place within seven years of the.marriage, that it was

¶36

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¶39

unnatural but also that the deceased was subjected to cruelty or harassment for dowry and such harassment must be in proximity of time to death and not distant or remote. Once these factors are established by the prosecution, fhe burden of proofwould shift to the accused raising a presumption that it was a case of dowry death or'if the deceased committed suicide a presumption would arise read with Section 113 ffoi the Evidence Act that it was a case of dowry death. A carefu:! analysis'oftheievjdence led by the three star prosecution^{witnessesdoesnotestablishthatthe} prose&tftiQn,^hasbeenable to esfablish a prima facie .case^Qr^emands of dowry anEJ;,|efuelty for the purpose so as to shift'ffle b!ai'i3ieo;j&l'jif3:Foof upon the Appellant. There is no evidence or instance of ci'ye y;; |"|ara§sment, much less any-date or nature cited specifically except fOF a^bafcffstafement made twenty one daysafter the death that money was bein'g'cleOTan'cleffi'-frpm time to time and the deceased was being harassed for the^ulcgiggeEtgfrig three prosecution witnesses were present on the date of death in the hospital and two of them hadalso signed the inquest report, there had to be some explanation that if any demands for dowry had been made during the life ofthe deceased why a police report was not lodged immediately.Merely that the Appellant may have asked the deceased to bring money from her parents and she may have done so will not make it a dowry demand ipso facto unless there is evidence to establish that the demand was in the form of dowry and was accompanied with harassment for the purpose. A reasonable and probable view in the facts of the case is therefore clearly possible that the deceased unable to adjust with the normal wear and tear of married life reacted impulsively by consuming poison. The benefit of this doubt and possibility undoubtedly has to be given to the

Appellant.

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In (2001) 9 SCC417 (Sunil Baj'aj v. State of M.P.) it was observed as

¶47

follows :-

¶48

"6.....Normaljy, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, maybe direct or circumstantial or both. But in case of an offence under Section 304-B IPC, an exception is made by deeming provision as to nafure of death as "dowry death" and that the husband or Tiis: retative, as the case may be, is' deemed to have caused-si-icl-i death, even in the absence :!of.evidence to prove these'aspects'ibut on proving the "existence of the ingredients ofaiWe^ssaid offence by convincing evidence. Hence, there iisi?'n®ed for greater care and caytu)t], that too having^ regarci^Q.sti'je gravity of the pUinfalnmeBtl.^rescribed for the salWbffence, in scrutinia'Erg^t'i^Hg'iiirlefice and in arriving at the^onclusion as to 'vehetfieEaEIM^abefvementioned ingredignts' of the offence'!aTs|@R|?8c|iJ3^ the prosecution."

¶49

In the entirety of the:ifaetsi'a|n£l%ircumstances of the case, there bejng

¶50

no evidence for abetment,fiwsurea|)g;>3s reqi^ired by the law, the absence of any material for attractirigtheJpF€;s'utTi|3t?ciri. uhder Section 304-B IPC coupled with the unexplainec) delay iFi-.lQelging offlhe First Information Report, we find it difficult to sustain the conviction and sentence which are accordingly set aside.

¶51

The appeal is allowed subject to the conditions incorporated under

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E 1

¶53

Section 437-A Cr.P.C to be complied with by the Appellant.

¶54

Sd/-

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lSd/-,v_ (Na^feinRa) (P. Sam Koshy); lj CHIEF J'USTICE JUDGE

¶56

Ifa

Ashok Kumar v. the State of Madhya Pradesh

Case brief

What is this about?

What did the court decide?

Ashok Kumar v. the State of Madhya Pradesh

Case brief

What is this about?

What did the court decide?

What the court decided

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