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Madhya Pradesh High Court · body

2002 DIGILAW 367 (MP)

Pradip @ Pappu v. State of M. P.

2002-04-01

N.K.JAIN

body2002
Judgment ( 1. ) APPELLANT Pradip though tried on the charges under Sections 302, 304-B and 306 of the Indian Penal Code, has been convicted only under Section, 306 of I. P. C. and sentenced to 7 years R. I. with fine of Rs. 1,000/- by 2nd Additional Sessions Judge, Shajapur, vide judgment dated 5. 10. 1990 in Sessions Trial No. 115/ 1989 which is impugned in this appeal. ( 2. ) BRIEFLY stated the case of the prosecution as unfolded at the time was that deceased Shobha a married woman aged about 25 years was deserted by her husband. Some divorce proceedings were also going on between the two. While these proceedings were still pending, the deceased entered into an agreement with the accused (vide Ex. P/1), notarised by a Notary and started living with the accused as his wife at Agar on and after 24. 6. 1988. However, soon their relations became strained. It appears that the accused also deserted the deceased and left her with her parents at Indore. On 23. 1. 1989 the father of the deceased brought her back to the accuseds house at Agar, and himself returned to Indore. On that day also, it is said, that there was some quarrel between the deceased and the accused. Later in the day it was found that the deceased was vomiting. Snehlata (P. W. 6) the aunt of the appellant called for the accused and asked him to take the deceased to hospital as her condition was deteriorating. However, she expired before being shifted to hospital. An intimation about the death of the deceased was given by the accused himself to Police, Agar, on the basis of which a Murg was registered and the inquest was held by the police under Section 174, Cr. P. C. The autopsy of the body of the deceased was got performed on 24. 1. 1989 at Civil Hospital, Agar. The post-mortem report (Ex. P/3) showed that the deceased had died of asphyxia. Her visceras were preserved and got chemically analysed which showed presence of "naphtha" in her viceras. The police registered an FIR (vide Ex. P/17) under Section 302 of I. P. C. on 26. 1. 1989 and proceeded with the investigation. The accused-appellant was arrested on 27. 1. 1989 and after other necessary investigation he was charge-sheeted for trial which ended into his conviction and sentence as aforesaid. The police registered an FIR (vide Ex. P/17) under Section 302 of I. P. C. on 26. 1. 1989 and proceeded with the investigation. The accused-appellant was arrested on 27. 1. 1989 and after other necessary investigation he was charge-sheeted for trial which ended into his conviction and sentence as aforesaid. ( 3. ) I have heard Mr. Asif Warsi, learned Counsel for appellant and Mr. Mayank Upadhyay, PP for State. ( 4. ) AT the outset it may be mentioned that the Court below has recorded clear acquittal of the appellant under Sections 302 and 304-B of I. P. C. and it was held that the deceased was not validly married wife of the appellant and that there was also no evidence of demand of dowry and commission of cruelty in connection therewith. The Court below has further held that the nature of death of deceased Shobha was not homicidal but suicidal. No challenge has been made by the prosecution to this part of the impugned judgment and so the only point requiring determination is whether the appellant was guilty of abetting the commission of suicide by Smt. Shobha. ( 5. ) THE prosecution examined Kaluram Pandey (P. W. 1), Bheru Prasad (P. W. 2) and Urmilabai (P. W. 3) to depose that the behaviour of the appellant towards the deceased was cruel and that he used to ask her to bring some money from her parents and would also threaten her that he would contract marriage with some other girl. Kaluram is the father while Urmilabai is the mother of the deceased. Bheru Prasad is a common relative of the two parties. So far as Bheru Prasad is concerned, his evidence appeared hearsay inasmuch as was telling about the alleged cruelty on the basis of information given to him by Kaluram. This Kaluram in his cross-examination vide paras 11 to 16 has virtually disowned his entire statement made in the examination-in-chief and admitted that as per his information deceased Shobha and accused Pradip used to live peacefully. He denied that Shobha had ever complained to him against the accused about the/ demand of dowry, and kind of harassment and threat of second marriage. No challenge was made to his statement in the cross-examination by the prosecution which even declined to put any question to this witness in his re-examination. He denied that Shobha had ever complained to him against the accused about the/ demand of dowry, and kind of harassment and threat of second marriage. No challenge was made to his statement in the cross-examination by the prosecution which even declined to put any question to this witness in his re-examination. So what this witness has stated has to be treated as prosecution version and as per that version the accused cannot be held guilty for abetting the commission of suicide by his wife. ( 6. ) IT may be pointed out that as per lower Courts own finding there was no reliable evidence of demand of dowry by the accused appellant. There was thus no question of his harassing the deceased for fulfilment of any such demand. Nonetheless, there is evidence on record to show that their relations were strained and the accused had ultimately deserted the deceased leaving her at her parents house. The problem arose only when the father of the deceased brought her back to the appellants house leaving her there against the wishes of the appellant. As deposed further by Snehlata (P. W. 6) the aunt of the appellant, the accused on seeing the deceased at his house, objected to her returning to his house and insisted that she should live with her parents. It was immediately thereafter that the deceased was taken ill obviously as a result of her consuming some poison. So what is established against the appellant is that his relations with the deceased were not cordial and that he did not want to keep her with him. I am, however, afraid, all this did not constitute abetment as defined in Section 107 of I. P. C. Abetment under the Code involves active complicity on the part of the abettor at a point of time prior to the actual commission of the offence and it is of the essence of the crime of the abetment that the abettor should substantially assist the person concerned towards the commission of the act complained. It is true, that treating a married woman with cruelty may fall within ambit of Section 107. The Legislature in its wisdom by inserting the provision of Section 113-A in the Evidence Act has further clarified the import of definition of abetment of suicide by a married woman. It is true, that treating a married woman with cruelty may fall within ambit of Section 107. The Legislature in its wisdom by inserting the provision of Section 113-A in the Evidence Act has further clarified the import of definition of abetment of suicide by a married woman. In the instant case, the Court below has heavily relied on the presumption that arises under Section 113-A of the Evidence Act and has also taken recourse to the definition of cruelty given in Section 498-A of I. P. C. The approach of the Court, I must say, was totally misdirected and contrary to law. Both for the purpose of Section 113-A and Section 498-A, the woman committing suicide must be a married wife of the person accused of commission of cruelty and abetment of suicide. In the instant case, as per Trial Courts own finding there was no valid marriage between the appellant and the deceased and they were simply living as husband and wife under some arrangement having no sanctity of law not even of custom. Section 498-A applies only when cruelty is committed on a woman by her husband or the relatives of the husband. Presumption as to the abetment of suicide as contemplated under Section 113-A would arise only against a husband whose wife commits suicide. As already pointed out, the deceased was not the married wife of the appellant and there was thus no question of any presumption arising against the appellant under Section 113-A of the Evidence Act or Section 498-A of I. P. C. ( 7. ) A careful analysis of the prosecution evidence would show that the relations between the appellant and the deceased were strained and the former did not want to keep the deceased with him anymore. There was no legal obligation either, on the appellant to keep the deceased with him. This was certainly a cause for the deceased to commit suicide but did not amount abetment on the part of the appellant so as to show his active complicity at a point of time prior to the actual commission of suicide by the deceased. The charge under Section 306 of I. P. C. was not established against the appellant and he was entitled to acquittal. ( 8. ) THIS appeal thus succeeds and is allowed. The charge under Section 306 of I. P. C. was not established against the appellant and he was entitled to acquittal. ( 8. ) THIS appeal thus succeeds and is allowed. The impugned conviction and sentence passed against the appellant are set aside and he is acquitted of the charge under Section 306 of I. P. C. His bail bond shall stand discharged.