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2004 DIGILAW 215 (MP)

NARSINGH v. STATE OF M. P.

2004-03-05

P.C.AGRAWAL

body2004
P. C. AGRAWAL, J. ( 1 ) THE appellant stands convicted under Section 306 of the Indian Penal Code (Code for short) and sentenced to undergo R. I. for 4 years. ( 2 ) AS per prosecution deceased Navsibai was married to the appellant about 3 years before her death by drowning in a well of Bhaga (PW 4 ). Appellant used to harass and manhandle her. Deceased used to come at parents house at village Bilwari and complain to her parents Shobharam (PW 1) and Shayanibai (PW 3) about her cruel treatment by the appellant and that the appellant had illicit attraction to her own sister-in-law married to her elder brother. It was also claimed that deceased had lived with her parents and would now allow to go to her nuptial house and was sent only on the assurance of the appellant and Mangilal (PW 8) that she would not be maltreated in future. As per appellant deceased was suffering from epilepsy, he had never maltreated or harassed her. Parents of deceased are deposing against him out of sheer grief as their daughter has died. ( 3 ) TO establish an offence under Section 306 of the Code, the prosecution must be able to prove that the deceased had committed suicide and appellant had abetted the commission thereof. ( 4 ) AS per prosecution version she had gone with a piece of cloth and sickle to take fodder in day time and had not returned thereafter. Appellant had gone out of village in some funeral. Mangilal (PW 8) and Nanuram had come to village Bilwari that is her parents village in search of the deceased. Shobharam (PW 1) had also joined such search party and the dead body had been found floating in the well of Bhaga (PW 4 ). There has been no evidence on record how could the deceased reach the well. Bhaga (PW 4) in paras 7 and 8, Mangilal (PW 8) in paras 12 and 13 have propounded a theory of accidental slip in the well in which water level was not low and could be reached without any help of rope, etc. and both of them have clearly admitted that the well was un-built in black cotton soil and marks of slip of foot were visible on the spot and were shown to the investigating officer also. and both of them have clearly admitted that the well was un-built in black cotton soil and marks of slip of foot were visible on the spot and were shown to the investigating officer also. R. C. Solanki (PW 9) the then S. O. Rajpur in paras 11 and 12 has admitted all these facts with the fact there had been marks of slip of foot outside the well. It is noteworthy that cloth and the sickle which was taken by the deceased for bringing fodder or the bunch of the fodder has not been seized by the police from anywhere and it is not known that where the same had gone or disappeared. Appellant has claimed that the deceased had suffered with epilepsy. She used to have fits therefor. Shobharam (PW 1) in paras 22 and 24 and Mangilal (PW 8) in para 4 have admitted the deceased suffered with epilepsy and its fits were not infrequent. The learned Trial Court has held that the deceased had committed suicide, this conclusion is based only on surmises and suppositions and thus, has not been based on facts. In the facts of the case possibility of accidental slip of the deceased who might have gone to well to drink water cannot also be ruled out. ( 5 ) IT is true that Shobharam (PW 1) and Bondarsingh (PW 2) have claimed that there were marks of injuries on neck of the deceased or in other words they have suspected manhandling of the deceased before her death, yet neither spot map Ex. P6 prepared immediately after finding of dead body nor the post-mortem report written by Dr. R. S. Tomar (PW 6), there has been no mention of any mark of injury on the neck of the deceased. In all these facts it has not been proved beyond doubt that the deceased had committed suicide by jumping in the well. Certainly, there has been no evidence on record of any recent quarrel between the appellant and the deceased to instigate the deceased to commit suicide. Thus, the first necessary ingredient of the offence has not been proved at all. Certainly, there has been no evidence on record of any recent quarrel between the appellant and the deceased to instigate the deceased to commit suicide. Thus, the first necessary ingredient of the offence has not been proved at all. ( 6 ) FROM statements of Shobharam (PW 1), Bondarsingh (PW 2), Shayanibai (PW 3) close relatives of deceased, Chhagan (PW 5) the neighbour of father of the deceased, Bhaga (PW 4) and Mangilal (PW 8) resident of village Mandal, it is well proved that the deceased was married to the appellant about 3 years before her death. The couple had a daughter out of wedlock. ( 7 ) SHOBHARAM (PW 1), the father has put before the Court three circumstances to prove cruelty against the appellant, (i) appellant used to beat the deceased on petty incidents. He was suspicious of her character. He would chastise her even if she mingled with her near relatives and taunt her. (ii) Deceased had complained him that appellant was preferential to his sister-in-law and used to avoid the deceased, (iii) Deceased had not been willing to come to her nuptial house and on assurance of Mangilal (PW 8) and the appellant of good behaviour towards her she was sent to the house of the appellant. ( 8 ) IT is true that Shobharam (PW 1), Bondarsingh (PW 2) and Shyanibai (PW 3) the close relatives of deceased have deposed about all these three circumstances. Chhagan (PW 5) has also supported such story. Actually, Chhagan (PW 5) is a cousin of Shobharam (PW 1) and Sarpanch of the village. However, Bhaga (PW 4) and Mangilal (PW 8) witnesses from Village Mandal to which appellant belong, both of them being neighbours of the appellant had not supported the prosecution story on these counts and have claimed that relations between the deceased and the appellant had not been strained nor there had been any complaint or manhandling or cruel treatment by the appellant. It is noteworthy that incidents relied upon by Shobharam (PW 1) had not been recent or in close proximity of the death by drowning. Certainly, evidence on these circumstances had not been consistent. ( 9 ) CERTAINLY, there has been no evidence about any instigation, engagement or intentional aiding in suicide by the appellant to bring the case under Section 107 of the Code to prove abetement. Certainly, evidence on these circumstances had not been consistent. ( 9 ) CERTAINLY, there has been no evidence about any instigation, engagement or intentional aiding in suicide by the appellant to bring the case under Section 107 of the Code to prove abetement. It is noteworthy that there has been no evidence on record about any demand of dowry or harassment for non-fulfilment of any such demand. It is true that the deceased had died within 7 years of her marriage. However, to invoke the presumption under Section 113-A of the Evidence Act the prosecution had to prove positively that the woman had committed suicide and that her husband had subjected her to cruelty. In the present case commission of suicide by the deceased has not been positively proved. Cruelty has been defined in Section 498-A of the Code as some wilful conduct of such a nature as to drive the woman to commit suicide. On evidence on record though it can be inferred that the appellant used to manhandle the deceased on petty matters but such manhandling is not proved to be either persistent or so serious as to lead the deceased to commit suicide. These incidents were not proximate to the date of death. There might have been certain differences between the couple but they have been resolved and the deceased on being satisfied on assurance of appellant and Mangilal (PW 8) had returned to her nuptial house about 4 months before her death and there had been no evidence on record that anything had happened thereafter between the husband and wife which could lead the deceased to commit suicide. Thus, conviction is not well based even on the basis of presumption. The appellant has pleaded not guilty and has denied the prosecution allegations. Thus, on evidence on record in my considered opinion no offence under Section 306 of the Code was proved against the appellant. ( 10 ) THUS, appeal merits to be allowed. The appeal is allowed. Conviction and sentence of the appellant are hereby set aside. He is on bail. His bail-bond and surety-bond shall stand discharged. Appeal allowed. .