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Madhya Pradesh High Court · body

2001 DIGILAW 563 (MP)

Dayaram v. State of M. P.

2001-08-01

S.K.KULSHRESTHA

body2001
JUDGMENT The appellant has preferred this appeal against the judgment dated 2.4.1993 of the learned I1nd Additional Sessions Judge, Chhindwara, in Sessions Trial No. 236/1992, by which the appellant has been convicted under section 306 of the IPC and sentenced to rigorous imprisonment for 7 years. The appellant was tried for the said offence and for offence under section 304B of the IPC on the allegation that on the night of 11.7.1992 and before that date, the appellant had subjected his wife Bhagabai to cruelty and harassment which had forced her to commit suicide by jumping into a well within 7 years of her marriage with the accused. The prosecution story in brief was that after marriage of the appellant with Bhagabai, initially he treated her well but after about 6 months of marriage, he started ill-treating her and beating her after getting drunk. It was alleged that on 11.7.1992, the appellant reached home in the evening and demanded food from his wife who informed him that since there was nothing in the house, food could not be cooked. It is alleged that the appellant then abused her and left. Bhagabai then brought some flour from the house of Halke and cooked food but when the accused returned at about 10 O'clock in the night from outside, he did not eat food and went to sleep. At about 2 O'clock in the night, when the accused went out to pass urine, he saw his wife sleeping but in the morning when he woke up, he was informed by Damu that the body of his wife was lying in the well along with that of his daughter. The accused then reported the matter at Police Station Mohkhed and PW 6 R.K. Bansgotiya, Assistant Sub-Inspector, prepared inquest report and sent the dead body for post mortem examination along with requisition Ex. P-2. The autopsy was performed by PW 5 Dr. C.M. Gedam who gave his report Ex. P-3 according to which, there was an ante mortem contusion below the left side of the mendible 2" x 1-1/2" in size and the cause of death was asphyxia as a result of drowning within 6 to 24 hours from the post mortem examination. The doctor also conducted the post mortem examination of the dead body of the girl Kalpana. On the basis of the report Ex. The doctor also conducted the post mortem examination of the dead body of the girl Kalpana. On the basis of the report Ex. P-4 of the Assistant Sub-Inspector PW 6 Bansgotiya, PW 9 M.M. Sharma registered a case and got the map prepared from Patwari PW 4 Sujat Khan. The accused was arrested and after completion of investigation, charge sheet was filed. The accused pleaded not guilty to the charges and denied having committed any offence. He pleaded that Bhagabai died on accidental death and since the brother of the deceased owed him one kilogram silver and ten goats, he had been falsely implicated. On trial, the learned Additional Sessions Judge, while not finding the accused guilty under section 304B, found him guilty under section 306 of the IPC and sentenced him as stated above. To prove that the accused had subjected the deceased to cruelty, the prosecution examined PW 1 Jayram, PW 2 Ithoba, PW 3 Ramdas, PW 7 Madhav and PW 8 Devaki Bai. They have stated that initially, the accused kept the deceased well but after about a year of the marriage, he started ill-treating her and he used to beat her after consuming liquor. According to PW 1 Jayram, the accused had also turned her out of the house and thrown her belongings. He has also stated that the deceased had once sent a letter through the milk van driver complaining of the ill-treatment and he, along, with Ithoba, Suratram and Lakhan, had intervened and the accused had assured to keep her well. In his statement to the Police, however, he had not stated anything about the belongings of the deceased having been thrown out by the accused or about the letter having been sent by her. It is also significant that he had not made any complaint to anyone in the community about the ill-treatment meted out to the deceased by the accused. PW 2 Ithoba, brother of the deceased, has also stated that the accused used to beat his sister after consuming liquor and he had once turned her out of his house and thrown out her belongings and he, along with Jayram, Suratram and Lakhan, had to intervene and the accused had assured that he would keep her well. PW 2 Ithoba, brother of the deceased, has also stated that the accused used to beat his sister after consuming liquor and he had once turned her out of his house and thrown out her belongings and he, along with Jayram, Suratram and Lakhan, had to intervene and the accused had assured that he would keep her well. He has also stated that thereafter, the deceased had again come back to him and the accused had come and quarreled with her and taken her back. He, however, did not state this fact to the Police as is clear from the omission in his statement Ex. D-2, PW 3 Ramdas stated that six days prior to her death, the deceased had complained about the ill-treatment given by the accused but this fact was not disclosed by him in his statement Ex. D-3 to the Police. PW 7 Madhav, uncle of the deceased, has also stated that accused was not properly treating the deceased and was complaining that she was not cooking food. However, he did not disclose this fact in his statement Ex. D-4. PW 4 Devaki Bai, aunt of the deceased also stated that accused used to beat the deceased after consuming liquor, but she has admitted that she had not told the Police that Bhagabai had told her that accused was ill-treating her. From the significant omissions in the statements of these witnesses to the Police, it is clear that on account of zeal, the witnesses have presented an exaggerated version of the domestic quarrel between husband and wife of a trivial nature. It is clear from the statement of PW 2 Ithoba, brother of the deceased, that every time Bhagabai came back to him, the accused came to his village to take her back and even when her daughter was not well, he had insisted on taking his wife back home. Every time Bhagabai accompanied him to the nuptial home which shows that the quarrels between them and the conduct of the accused had not led to any serious differences or estrangement between them. Even in the intimation of death, what was stated by the accused and what finds duly recorded in the FIR Ex. P-4, was that she had not cooked food and later brought flour from the house of Halke and cooked food but the accused· did not eat the food that night. Even in the intimation of death, what was stated by the accused and what finds duly recorded in the FIR Ex. P-4, was that she had not cooked food and later brought flour from the house of Halke and cooked food but the accused· did not eat the food that night. The prosecution has deliberately withheld the intimation of death given by the accused and even the inquest report was not produced which could have thrown light on the earliest version of the prosecution. In any case, even if the evidence of the witnesses, who were close relatives of the deceased, is taken at its face value, it does not indicate that the conduct of the accused was of such a nature as was likely to drive his wife to commit suicide. Section 113A of the Evidence Act attaches presumption of abetment of the commission of suicide by a woman by her husband or any relative of her husband only when it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relatives of her husband had subjected her to cruelty. Explanation to section 113A attaches the same meaning to cruelty as in section 498A of the Indian Penal Code. Learned counsel for the appellant has referred to the decision of this Court in Laxmi Bai v. State of M.P. [ 2001 (2) MPLJ 80 ] and contended .that in the present case, there was no evidence indicating wilful conduct of the accused of the nature as was sufficient ordinarily to drive his wife to commit suicide. While from the intimation given by the accused, it does appear that the accused had complained about her not having cooked food on the previous evening, there is nothing to suggest that the deceased had been driven to commit suicide on the basis of the quarrels between the deceased and the accused in the past. The evidence, therefore, does not disclose any cruelty by the accused within the meaning of the explanation to section 498A of the Indian Penal Code and the learned Judge, therefore, erred in convicting the accused under section 306 of IPC. In the result, this appeal is allowed. The evidence, therefore, does not disclose any cruelty by the accused within the meaning of the explanation to section 498A of the Indian Penal Code and the learned Judge, therefore, erred in convicting the accused under section 306 of IPC. In the result, this appeal is allowed. The conviction of the appellant for offence under section 306 of the Indian Penal Code and the sentence awarded to him thereunder is set aside and he is acquitted of the charge against him. The accused was not granted bail and if he is still undergoing the sentence awarded to him, he shall be forthwith set at liberty, if not required in connection with any other matter.