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Smt. Megha Santosh Shinde vs The State Of Madhya Pradesh on 9 March, 2018

1
M.Cr.C.No. 2436/2017

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR

(SB : SHEEL NAGU J.)

M.Cr.C. No. 2436/2017
Smt. Megha Singh Sindhe
Vs.

State of M.P. Anr.
__
For Petitioner
Shri J.P. Mishra, learned counsel for the petitioner.
For Respondents
Shri Shiraz Quraishi, Public Prosecutor for the respondent
No.1/State.
For Complainant
Shri Rajesh Shukla, learned counsel for the complainant.

_
WHETHER REPORTABLE : Yes No
Law Laid Down:
1. Vague, unspecific and sweeping allegations of cruelty
against the sister-in-law (Nanad) who was residing elsewhere
are insufficient to sustain a charge-sheet u/S. 304-B of IPC in
the absence of any other cogent and compelling evidence
pointing towards subjection of prosecutrix to dowry demand
related cruelty.
Significant Paragraph Numbers: Para 8.2 to 9
JUDGMENT

( 09 . 03 .2018)

1. The inherent powers of this court are invoked u/S. 482
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M.Cr.C.No. 2436/2017

Cr.P.C. to assail the FIR dated 5/10/16 registered at Police Station
Maharajpur District Gwalior inter alia against the petitioner who
happens to be sister-in-law (Nanad) of the deceased who died due
to hanging.

2. Learned counsel for the petitioner and respondent are heard
on the question of admission and final disposal.

3. The prosecution story unfolded is that on 9/7/13, the
deceased got married to accused Gaurav Bhatt. The father of the
deceased gave dowry comprising of about 80 grams of gold and
cash of Rs. 1,55,000/- to Gaurav Bhatt. The mother-in-law and the
husband of the deceased after about 23 months of marriage
started taunting the deceased that in case Gaurav had been
married with someone else than the deceased, then much larger
quantum of dowry would have been received. While doing so, the
in-laws started imposing unnecessary restrictions on the
movements of the deceased and subjecting her to cruelty. It is
alleged that on 13/12/14, the deceased lodged a written complaint
against her husband and mother-in-law at police station
Maharajpur, Gwalior which led to registration of Crime No. 230/14
alleging offences punishable u/S. 498 A, 342, 323 and 34 of IPC. It
is further alleged in the FIR that after lodging of the said report, the
petitioner (Nanad) Smt. Megha Santosh Shinde joined the husband
and mother-in-law of the deceased in the process of inflicting
cruelty. The FIR further alleges that the deceased got fed up with
the persistent infliction of mental and physical cruelty and therefore,
on 7/6/16 at about 12 Noon ended her life by hanging herself
leaving behind a two year old son. The impugned FIR was lodged
based upon the inquest commenced vide information provided by
mother-in-law on 7/8/16. The statement of the father, mother, sister
and brother of the deceased namely Ravi, Savitri, Seema and
Kuldeep respectively were recorded on three occasions i.e. the first
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M.Cr.C.No. 2436/2017

during the inquest, the second u/S. 160 Cr.P.C. and the third u/S.
164 Cr.P.C.

4. After completion of investigation, charge-sheet was filed
whereafter cognizance was taken, the trial Court framed charges
against the three accused Smt. Meena (mother-in-law), Gaurav
(husband) and the petitioner (Nanad) of the deceased u/Ss. 498 A,
304 B and 34 of IPC whereafter trial commenced where statements
of two eye-witnesses have already been recorded.

5. At this juncture, learned counsel for the respondent has
raised the question of maintainability on the ground that at this late
stage when the trial has begun and testimony is being recorded, it
would not be appropriate to interfere u/S. 482 Cr.P.C.. For this
purpose, this court may revert to decision of the Apex Court in the
case of Sathish Mehra Vs. State of N.C.T. of Delhi and Anr.
reported in AIR 2013 SC 506 where it was held that the power u/S.
482 Cr.P.C. is inherent and plenary in nature which can be
exercised at any stage of the criminal prosecution i.e. right from the
earlier stage of grievance of non filing of the FIR till any time during
pendency of trial in cases where manifest injustice is palpable. The
relevant portion of the said Apex Court decision is reproduced
below:-

“15.The power to interdict a proceeding either at the
threshold or at an intermediate stage of the trial is inherent in
a High Court on the broad principle that in case the
allegations made in the FIR or the criminal complaint, as
may be, prima facie do not disclose a triable offence there
can be reason as to why the accused should be made to
suffer the agony of a legal proceeding that more often than
not gets protracted. A prosecution which is bound to become
lame or a sham ought to interdicted in the interest of justice
as continuance thereof will amount to an abuse of the
process of the law. This is the core basis on which the power
to interfere with a pending criminal proceeding has been
recognized to be inherent in every High Court. The power,
though available, being extra ordinary in nature has to be
exercised sparingly and only if the attending facts and
circumstances satisfies the narrow test indicated above,
namely, that even accepting all the allegations levelled by
the prosecution, no offence is disclosed. However, if so
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M.Cr.C.No. 2436/2017
warranted, such power would be available for exercise not
only at the threshold of a criminal proceeding but also at a
relatively advanced stage thereof, namely, after framing of
the charge against the accused……….”

6. In view of above law laid down by the Apex Court, this court
rejects the primarily objection of the State and the victim and
proceeds to decide the matter on merits.

7. Learned counsel for the petitioner, sister-in-law of the
deceased has primarily raised two grounds in support of challenge
to the prosecution. First being that a bare reading of the allegations
contained in the charge-sheet do not constitute the offence of
dowry death and the second being that of malice that the petitioner
being sister-in-law and despite staying away from Gwalior since her
marriage in the year 2009 has been wrongly arrayed as an
accused merely to wreck vengeance and to give vent to the
feelings of hatred and animosity in the mind of the parents and
relatives of the deceased arising out of the unfortunate incident in
which the petitioner has no role to play.

8. After hearing learned counsel for the rival parties, this court
is of the considered view that there is sufficient ground in the
present case calling for interference in the prosecution against the
petitioner so far as it relates to the offence punishable u/S. 304 B of
IPC for the reasons infra.

8.1. The FIR and the statement recorded u/S. 161 Cr.P.C. of the
relatives of the deceased merely allege omnibus allegations
against the petitioner of subjecting the deceased to harassment
and cruelty for dowry demand. As regards the FIR, the only
allegation against the petitioner is that the petitioner alongwith her
mother (mother-in-law of the deceased) used to subject the
deceased to dowry demand related cruelty, physical and mental in
nature and therefore, the petitioner deserves to be criminally
prosecuted. The nature of allegations, the time and date of
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M.Cr.C.No. 2436/2017

occurrence of any incident of cruelty, or the bare minimum details
of the kind of cruelty inflicted, are totally missing from the
allegations in the FIR. Vague, non-specific and omnibus allegations
are made in the FIR which do not satisfy the pre-requisites of the
offence of dowry death as defined u/S. 304 B of IPC, which for
ready reference and convenience is reproduced below:-

“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, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life.]”

8.2. A plain reading of the above provision reveals the following
pre-requisites which are necessary to be cumulatively satisfied to
enable launching of a valid criminal prosecution u/S. 304 B of IPC:-

(1) Death of a woman due to burn or bodily injuries
otherwise than in the normal circumstances.
(2) Death having occurred within seven years of marriage.
(3) Soon before death she was subjected to cruelty or
harassment by husband or any relative of her husband for or
in connection with demand for dowry.

8.3. Taking up the first ingredient, it is seen that the same
appears to be prima facie satisfied as deceased died an unnatural
death due to hanging. As regards the second ingredient, the same
also prima facie appears to be satisfied as marriage took place on
9/7/13, whereas death occurred on 7/8/16 which was well within
seven years of the marriage. However, as regards the third
ingredient of allegations against the petitioner of dowry demand
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M.Cr.C.No. 2436/2017

related cruelty (mental of physical) inflicted soon before death, the
same appears to be totally absent for the reasons infra:-

(i) The FIR, the inquest statements, the statements recorded
u/S. 161 and 164 Cr.P.C. contain allegations which are of omnibus
nature with non specification of time, nature, details of cruelty
inflicted on the part of the petitioner against the deceased
mentioned therein. A general sweeping statement has been made
that petitioner alongwith husband and mother-in-law inflicted
cruelty.

(ii) More so, the factor which weighs heavily in favour of the
petitioner is that since her marriage in 2009, she was either resided
at Agra or at Shirdi her matrimonial home which is far away from
Gwalior. It is obvious that petitioner must be visiting her parents
place at Gwalior and if she inflicted any mental and/or physical
cruelty, then the least that was required by the parents and the
relatives of the deceased while recording the statements was to
disclose the time, place and nature of cruelty inflicted by the
petitioner upon the deceased. Not having done so, in any of the
material collected by the prosecution in the charge-sheet, the
presumption that can very well be drawn in favour of the petitioner
is that having married in 2009, having left her parental house at
Gwalior since then she was not residing at Gwalior and therefore,
the allegations made against petitioner in the FIR and in the
statements recorded by the prosecution do not reflect the reality
and have been made with malafide intention to falsely implicate the
petitioner only because she is related to the main accused i.e. the
husband and the mother-in-law of the deceased.

(iii) Another factor which persuades this court to take a view
in favour of the petitioner is that the first complaint made by the
deceased regarding cruelty in the year 2014, was made on 18/6/14
(Annexure P/3) where the allegations of mental and physical
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M.Cr.C.No. 2436/2017

cruelty were only against the husband Gaurav and the mother in
law. The said complaint has not even named the petitioner much
less making any allegation against her.

(iv) More so, it is surprising to note that if the deceased
could make a written complaint to the police on 18/6/14 within one
year of marriage against her husband and mother-in-law which led
to registration of offence bearing crime No. 230/14 alleging offence
punishable u/Ss. 498 A, 342, 323 and 34 of IPC, then what
prevented the deceased from making another complaint against
the petitioner. If the deceased was being subjected to cruelty by the
petitioner between the period from (June-2014 to October-2016)
and yet no complaint was made either to the police or to the court,
it is a clear indicator that in actuality, the grievance of the deceased
was only against her husband and mother-in-law. However to give
vent to their pent up feelings against the husband and her mother-
in-law, the relatives of the deceased appear to have falsely
implicated the petitioner without any supportive allegation. Thus the
prosecution of the petitioner clearly appears to be malicious rather
than truthful.

9. From the above, it is crystal clear that one of the ingredients
of infliction of dowry demand related cruelty soon before death is
not made out against the petitioner (sister-in-law of the deceased).

10. A feeble attempt was made by the learned Public Prosecutor
by contending that the prosecution against the petitioner can not be
quashed in the face of the statutory presumption u/S. 113 B of the
Evidence Act. It is now well settled and it is also evident from bare
reading of Section 113 B of Evidence Act that the statutory
presumption prescribed therein arises only when the basic three
aforesaid ingredients of Section 304 B of IPC are prima facie made
out, and not otherwise. If any of the said basic three ingredients are
missing as is the case herein where there is no evidence
8
M.Cr.C.No. 2436/2017

whatsoever about the petitioner having inflicted dowry demand
related cruelty soon before death, the said statutory presumption
can not be resorted to by the prosecution. In this respect the
decision of Apex Court in the case of Suresh Kumar Vs. State of
Haryana reported in (2014) 1 Cr.L.J 551 is worthy of reference and
relevant portion of which is reproduced below:-

“48. We are, of course, bound by the decision of a larger
Bench of this Court in Multtani (AIR 2001 SC 921 : 2001 AIR
SCW 532). Following that decision, we must hold that the
initial burden of proving the death of a woman within seven
years of her marriage in circumstances that are not normal
is on the prosecution; such death should be in connection
with or for a demand of dowry which is accompanied by
such cruelty or harassment that eventually leads to the
woman’s death in circumstances that are not normal. After
the initial burden of a deemed dowry death is discharged by
the prosecution, a reverse onus is put on the accused to
prove his innocence by showing, inter alia, that the death
was accidental.”

11. From the above conspectus of factual and legal assertion,
this court is of the firm view that the prosecution launched against
the petitioner is hit by the vice of malice and the bare reading of the
allegations in the charge-sheet desperately falling short of the
minimum prima facie requirement of satisfying the basic ingredients
of dowry demand contained in section 304 B of IPC. The
celebrated decision of Apex Court in the case of State of Haryana
Ors. Vs. Ch. Bhajan Lal Ors. reported in AIR 1992 SC 604
comes to the rescue of the petitioner, the relevant portion of which
is reproduced below:-

“108. (1) where the allegations made in the First
Information Report or the complaint, even if they are
taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case
against the accused;

(2) where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156 (1) of the Code except under
an order of a Magistrate within the purview of Section 155 (2)
of the Code;

9

M.Cr.C.No. 2436/2017
(3) where the uncontroverted allegations made in the FIR or
‘complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a
case against the accused;

(4) where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155 (2) of the Code;

(5) where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused;

(6) where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party;

(7) where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”

(Emphasis Supplied)

12. Consequently, this court has no hesitation to invoke it’s
inherent powers u/S. 482 Cr.P.C. and quashes the prosecution
launched against the petitioner u/S. 304 B of IPC. However, the
prosecution of the petitioner for the remainder charge punishable
u/S. 498 A and 34 of IPC shall continue and the trial court shall
proceed against petitioner in accordance with law.

(Sheel Nagu)
Judge
09/03/2018

ojha

Digitally signed by
YOGENDRA OJHA
Date: 2018.03.13
15:30:42 -07’00’

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