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Madhya Pradesh High Court · body

2002 DIGILAW 347 (MP)

Krishna Bai v. State of M. P.

2002-03-26

R.B.DIXIT

body2002
Judgment ( 1. ) FEELING aggrieved by judgment and order of conviction dated 26-3-97 by Additional Judge to Sessions Judge, Vidisha at Basoda, passed in Sessions Trial No. 177/95, thereby convicting appellants under Section 306, IPC and sentencing them to seven years R. I. each, appellants have come up in appeal seeking redress praying for setting aside the aforesaid sentence and conviction passed against them. ( 2. ) IT is not disputed that deceased Krishna Bai was married to appellant-accused Mukesh within seven years of her death. Appellant-accused Krishna Bai is mother-in-law of the deceased. According to prosecution, appellants along with acquitted co-accused Pankaj used to harass the deceased on one pretext or other for the sake of dowry. On 3-5-95 the deceased was tortured and electric wire was tied up to her feet, which was connected to electric heater; thereafter, she was set to fire by pouring kerosene oil on her. ( 3. ) POLICE received complaint by phone regarding burning of the house and the fire brigade was pressed into service to extinguish the fire. However, when the doors were broken over, the deceased was found dead with 100% burns. ( 4. ) DR. B. P. Dubey (P. W. 6), who conducted the autopsy of the dead-body of the deceased, could not assign definite opinion regarding-nature of the death as to whether it was suicidal or homicidal. He has admitted that the death of this nature is possible if someone is caught between burning fire in a house. ( 5. ) THE appellants have pleaded not guilty and also raised a plea of alibi, for which they have also examined witnesses in defence. The learned Trial Court found charges under Sections 302 and 304-B, IPC, not proved against the appellants; however, held them guilty of a minor offence under Section 306, IPC, and accordingly sentenced them. ( 6. ) LEARNED Counsel for the appellants has contended that in order to prove an offence under Section 306, IPC, heavy burden lay on the prosecution to prove first the commission of offence under Section 498-A, IPC, then alone a presumption under Section 113-A of Evidence Act shall arise against the accused person. Learned Counsel for the State, on the other hand, has supported the findings of the Trial Court. ( 7. ) I have heard learned Counsel for the parties and have carefully perused the record. ( 8. Learned Counsel for the State, on the other hand, has supported the findings of the Trial Court. ( 7. ) I have heard learned Counsel for the parties and have carefully perused the record. ( 8. ) SUNDERLAL (P. W. 8) is the father of the deceased. He was told by the deceased that the mother-in-law makes sarcastic remarks against her for not bringing sufficient dowry and husband Mukesh wanted her to bring Rs. 50,000/- for his employment. He has admitted that at the time of marriage of the deceased no demand of dowry was made on behalf of the appellants. Even at the time of death of the deceased he had no complaint against them. In cross-examination the evidence of this witness was found contradictory and full of material omissions from his police case diary statement insofar as demand of dowry is concerned. There is no other allegation regarding cruel treatment to the deceased. It seems that the deceased was not satisfied with her husband as he was not employed. ( 9. ) KU. Radha Bai (P. W. 2), the younger sister of the deceased, was also told by the accused persons demanding the chain and motorcycle. She has further levelled a charge of beating the deceased by her husband. However, in cross-examination she has also contradicted her police case diary statement (Ex. D-2), wherein there is a specific omission regarding beating of the deceased by her husband as well as regarding the demand of dowry. ( 10. ) SMT. Kamla Bai (P. W. 8), mother of the deceased, had gone to see her daughter some 15 days before the incident. When the mother-in-law of the deceased declined to send her with them, she was informed by the deceased regarding demand of Rs. 50,000/- by accused Mukesh. The deceased was disappointed with her husband as he was unemployed. However, it has come in evidence that he was earning sufficiently by tailoring work. This witness has admitted in her cross-examination that the deceased was not willing to marry and had thrown the clothes and the ring, which was offered to her at the time of ring ceremony. This witness has further contradicted her police case diary statement (Ex. D-3) regarding mother-in-law declining to send the deceased with her as well as regarding demand of Rs. 50,000/- by accused Mukesh. ( 11. This witness has further contradicted her police case diary statement (Ex. D-3) regarding mother-in-law declining to send the deceased with her as well as regarding demand of Rs. 50,000/- by accused Mukesh. ( 11. ) IN view of the self-contradictory evidence advanced by the prosecution regarding demand of dowry and harassing of deceased by accused persons, no offence of cruelty is found properly proved against the appellants. In the circumstances, legal assumption under Section 113-A of the Evidence Act is not available to the prosecution. ( 12. ) IT seems that the deceased was dissatisfied with her marriage and out of her further disappointment with her husband as having no Government job at his credit might have developed a tendency to commit suicide out of frustration. Particularly where there is no sufficient evidence to indicate any cruelty by the accused persons, they cannot be held liable even for an offence under Section 306, IPC. ( 13. ) THE Honble Apex Court in its decision in case of Kans Raj v. State of Punjab and Ors. , reported in AIR 2000 SC 2324 , observed that in cases of dowry-death as well as in case of cruelty under Section 498-A, IPC, a tendency has developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused. ( 14. ) THIS Court in case of Ahshan Khan v. State of Madhya Pradesh, reported in 2002 (1) Crimes 117 , where no proximity with any overt act showing harassment to deceased or indicating grave and serious provocation enough in taking recourse to suicide, has held that conviction under Section 306, IPC, could not be sustained. ( 15. ) INSOFAR as the present case is concerned, the evidence of the parents and sister of the deceased, insofar as cruelty is concerned, are not at all reliable. In the circumstances, no conviction of appellants under Section 306, IPC can be sustained on the basis of their evidence. ( 16. ( 15. ) INSOFAR as the present case is concerned, the evidence of the parents and sister of the deceased, insofar as cruelty is concerned, are not at all reliable. In the circumstances, no conviction of appellants under Section 306, IPC can be sustained on the basis of their evidence. ( 16. ) FOR the reasons stated hereinabove, this appeal succeeds and is allowed and the conviction of appellants under Section 306, IPC, is hereby set aside.