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2008 DIGILAW 1243 (MP)

Laxmi Narayan @ Pappu v. State of M. P.

2008-10-22

U.C.MAHESHWARI

body2008
JUDGMENT 1. This appeal is directed by the accused under section 374(2) of the Criminal Procedure Code being aggrieved by the judgment dated 29.8.2002 passed by the Additional Sessions Judge, Picchore, District Shivpuri in Sessions Trial No.240/2001 where by acquitting the other co-accused the appellant has been convicted under sections 306 and 498A of IPe for RI of five years with fine of Rs.1,000/- in default of it further two months RI and two years RI with fine of Rs.500/- in default of it further one month RI respectively under the aforesaid sections. 2. The case of the prosecution is short is that the deceased Sukhwati got married with the appellant before seven years. Subsequent to marriage on account of demand of TV, Fan and motorcycle from her parental family she was subjected to cruelty with harassment in the matrimonial home by her husband the appellant, her mother-in-law, father-in-law, elder brother-in-law and elder sister-in-law. Once the brother of the deceased came to her matrimonial home for taking her to parental home. At that time, he was also subjected to beating on account of not fulfilling the demand of aforesaid alleged articles. Whenever, the deceased visited her parental home she used to say about the aforesaid illegal demand of the aforesaid persons and also stated that on non-fulfilling of their demand, they may kill her. Before happening of the alleged incident, she was forcefully taken away from her parental home by the appellant. Subsequently on date 4.9.2001 a merg intimation regarding her unnatural death was registered at the instance of acquitted accused. Gokul, the father of the appellant, contended that while preparing meals suddenly on sustaining electrical shock on the neck she died. On registration of such merg at Police Station Picchore, the dead body was sent to the hospital for post-mortem. On carrying out the same, it was revealed that she died due to Asphysia as a result of hanging. In the course of inquest enquiry, on availability of some evidence the offence under sections 306 and 498A of IPC was registered against the appellant along with his father, mother, elder brother-in-law and sister-in-law. They were arrested and after holding investigation, charge sheeted for the aforesaid offence. 3. After committing the case to Sessions Court, on framing the charges for the aforesaid sections, they abjured the same, on which the evidence was recorded. They were arrested and after holding investigation, charge sheeted for the aforesaid offence. 3. After committing the case to Sessions Court, on framing the charges for the aforesaid sections, they abjured the same, on which the evidence was recorded. On appreciation of the same all other accused except the appellant were acquitted by the trial Court, while the appellant has been convicted and sentenced as stated above. On which the appellant has come forward with this appeal with a prayer to set aside the aforesaid conviction and sentence. 4. Shri S.S. Rahul, learned counsel appearing on behalf of the appellant argued that the prosecution has failed to prove the alleged offence against the appellant by reliable and admissible evidence. In spite of this, the appellant had been convicted under the wrong premises. He further stated that the marriage of the deceased with the appellant took place before seven years from the date of her death and in such premises, the provision regarding presumption enumerated under section 113A of the Evidence Act was not applicable. In view of the available evidence, the alleged offence of the cruelty enumerated under section 498A of IPC, or the offence of abetment to commit suicide towards deceased defined under section 306 of IPC had not been proved against the appellant. In the lack of any evidence regarding offence of harassment and cruelty, the aforesaid provision of presumption could not be invoked to hold the conviction against the appellant under section 306 of IPC. By referring the deposition of the prosecution witnesses it was said that considering their omnibus statements the other implicated accused have been acquitted by the trial Court, thus on such evidence the conviction of the appellant is not sustainable. With this submission the prayer for acquittal of the appellant is made. 5. On the other hand responding the aforesaid arguments, the State's counsel ShriJ.M. Sahani, said that the conviction and sentence of the appellant are based on proper appreciation of the evidence and the same does not require any interference at this stage. He further submitted that the prosecution has successfully proved that the deceased committed suicide on account of cruelty committed on her by the appellant within seven years from the date of her marriage. In such premises, the provision of section 113A of the Evidence Act has rightly been invoked by the trial Court against the appellant. He further submitted that the prosecution has successfully proved that the deceased committed suicide on account of cruelty committed on her by the appellant within seven years from the date of her marriage. In such premises, the provision of section 113A of the Evidence Act has rightly been invoked by the trial Court against the appellant. In support of his contentions, the deposition of the prosecution witnesses have also been referred by him and prayer for dismissal of the appeal is made. 6. Having heard both the counsel, I have carefully gone through the record of the trial Court and also perused the impugned judgment. 7. In support of the prosecution case as many as seven witnesses have been examined out of them four witnesses namely Gokul (PW2), Kapura (PW3), Ghansu @ Ghanshyam (PW4) and Smt. Gomniya (PW5) have been examined from the parental family of the deceased while the other witnesses were examined in connection with the investigation process. As per the deposition of Dr. Y.S. Verma (PW7), the deceased died due to Asphysia as a result of hanging. According to his port-mortem report (Ex.P-14), the following injuries were found on the dead body of Sukhwati: "Ligature mark -- extending from below left angle of mandible, passes in front of neck between chin and larynx horizontally towards right side along mandibular line and passes upwards behind right mastoid process. Length of ligature mark is 23 cms and width is 1 cm. Mark is a groove of brown colour. On dissection substances tissue was dry and white." 8. In view of the aforesaid injuries, the opinion of the doctor appears to be correct and in the lack of any other injury on the body, the approach of the trial Court holding that the Sukhwati (deceased) committed suicide appears to be correct. Such finding of the trial Court does not require any interference at this stage. Hence, the same is hereby affirmed. 9. Now the Court has to examine whether the deceased was subjected to any harassment, cruelty or any kind of abetment for committing suicide by the appellant. In order to examine such question, I have gone through the deposition of the prosecution witnesses. (PW 1) Biren did not speak anything regarding nature of relations between the appellant and the deceased. 9. Now the Court has to examine whether the deceased was subjected to any harassment, cruelty or any kind of abetment for committing suicide by the appellant. In order to examine such question, I have gone through the deposition of the prosecution witnesses. (PW 1) Biren did not speak anything regarding nature of relations between the appellant and the deceased. He being watch man of the village was made the witness of Saffina form (Ex.P-1), inquest Panchnama (Ex.P-2), spot man (Ex.P-3), seizure memo (Ex.P-4) of pieces of rope and some pieces of Bangles from the place of the incident and the arrest memo (Ex.P-5). 10. Gokul (PW2) the uncle of the deceased stated in paragraph 1 of his chief that the deceased Sukhwati used to tell him about her beating by the appellant and about giving threat to kill her by his family members. She also told him about the appellant's father, mother, elder brother and sister-in-law with regard to their illegal demand of articles i.e. TV, Fan and motorcycle and about not permitting her to go the parental home. But in support of his contentions, he had not stated any particulars regarding date or time on which the aforesaid things were told him by the deceased. On going through his cross-examination in paragraph 2, he categorically stated that no dowry was settled at the time of marriage and no demand was made by the appellant and in-law of the deceased. It appears from the aforesaid averments of the cross-examination that the deceased (Sukhwati) was not subjected to any cruelty and harassment on account of any demand of any dowry. 11. Kapura (PW3), the brother of the deceased stated that after solemnization of the marriage of the deceased (Sukhwati) with the appellant for one year she did not speak any thing against the appellant and his family members. After one year of the marriage the harassment and cruelty was started on her by the appellant and his family members. Before three years of her death, he visited her matrimonial home wherein the appellant tried to beat him saying that if their demand of TV, Fan and motorcycle are not fulfilled then his sister (Sukhwati) would be killed. He also stated that the appellant and his other family members ran to beat him, on which without bringing his sister Sukhwati (deceased), he came back to his home. He also stated that the appellant and his other family members ran to beat him, on which without bringing his sister Sukhwati (deceased), he came back to his home. It is also said that the'deceased (Sukhwati) was not permitted to come his home. On going through the entire chief, it is apparent that the specific date and time on which the aforesaid alleged incident took place has not been stated by this witness. It appears that the omnibus statement about the allegation of harassment or cruelty is stated by him, not only against the appellant but also against his entire family members. Except appellant all other family members of the appellant have been acquitted by the trial Court. On going through his cross-examination, it is revealed that the deceased was never subjected to any cruelty on account of demand of dowry by the appellant. While in chief except the demand of dowry no other ground of cruelty has been stated by this witness. 12. Ghansu @ Ghanshyam (PW4) brother of the deceased has also stated omnibus allegations against the appellant and other acquitted accused regarding their demand of TV, Fan and motorcycle but no specific particulars regarding date and time on which such demand was made are not mentioned by him. In cross-examination paragraph 4, he categorically stated that subsequent to marriage of the deceased (Sukhwati) neither she visited his house nor he visited her house. In such way his testimony appears to be based on hearsay, as he received the alleged information either from the Kapura (PW3) or from family members of the parental family of deceased (Sukhwati). Accordingly, this witness does not give any strength to the case of the prosecution. 13. Smt. Gomniya (PW5) mother of the deceased (Sukhwati) while recording her statement categorically stated that the deceased was subjected to beating by the appellant and his family members in her matrimonial home as told by Sukhwati in her life time. She also stated regarding demand of TV, Fan and motorcycle, not only by the appellant but also by his father, mother, elder brother and sister-in-law. She has also not stated any specific particulars about the date and time on which the deceased told her regarding aforesaid cruelty or harassment. She also stated regarding demand of TV, Fan and motorcycle, not only by the appellant but also by his father, mother, elder brother and sister-in-law. She has also not stated any specific particulars about the date and time on which the deceased told her regarding aforesaid cruelty or harassment. On going through her entire deposition, I have not found any fact or circumstance showing that on any specific occasion this appellant committed any cruelty with the deceased or committed any act of abetting her or instigating her to commit suicide. In the lack of any reliable, admissible and positive evidence, merely on the basis of omnibus statement of the aforesaid witnesses examined from the parental family of the deceased which are not supported by any independent source of evidence, it cannot be inferred that any act of harassment or cruelty was committed by the appellant with the deceased. In view of the aforesaid discussion, it is apparent that there is no distinguishable case against this appellant in comparison of the other accused acquitted by the trial Court. In such premises, he also deserves for extending the same benefit. 14. On examining the case of the appellant in view of the provision of presumption enumerated under section 113A of the Evidence Act, in view of the findings given in the former paragraphs holding that prosecution failed to prove the charge of cruelty or harassment as defined under section 498A of the IPC. Thus, in the lack of such evidence regarding cruelty, the aforesaid provision of the Evidence Act could not be invoked to draw any presumption against the appellant to convict him under section 306 of IPC. Such presumption is only applicable when the act of the appellant with the deceased about committing the cruelty or harassment defined I under section 498A of IPC is proved on the record. In the present case, it has been proved that Sukhwati died within seven years of her marriage but any act of cruelty, harassment or giving abetment to her for committing suicide has not been proved against this appellant. Hence, by invoking section 113A of the Evidence Act, no inference can be drawn against the appellant for holding the conviction under section 306 of IPC. 15. Hence, by invoking section 113A of the Evidence Act, no inference can be drawn against the appellant for holding the conviction under section 306 of IPC. 15. My aforesaid approach is fully fortified by the earlier decision of this Court in the matter of Dwarika Prasad Soni v. State of M.P., reported in 2002(1) MPJR 299 , in which it was held as under: "12. Though in section 113A of the Evidence Act the words 'soon before' have not been used but the cruelty would become abetment if there have been instances of cruelty soon before the death of the woman. Cruel treatment in the long past could not be abetment if such a course of conduct has not persisted soon before the commission of suicide. In the present case, as stated above, the deceased was not treated with cruelty by the appellant atleast during a period of about three years prior to the commission of suicide by her. Therefore, the appellant could not be held guilty for the offence under section 306 IPC." 16. Apart from above, the aforesaid finding in respect of section 306 of IPC is also fortified by the decision of Division Bench of this Court in the matter of State of M.P. v. Shivpujan Singh, reported in 1994(II) MPWN 34 , in which it was held as under: "PW 1 Ramadharsingh and PW2 Shantibai have stated about a demand of Luna by accused Sukhdeosingh and his father Shivpujansingh who were present in the bridegroom party. The fact has been corroborated by Ramnath Oza (PW3) and Sachchitanand (PW8) though certain omissions have been suggested but those are not very material. From the evidence of these three witnesses and PW8 Sachchitanand it is proved that there was a demand of Luna by accused Sukhdeosingh in connivance with his father Shivpujansingh and that could not be fulfilled by Ramadharsingh.But there is no clear and cogent evidence to show as to whether harassment was caused to the deceased, for that reason. As against it the evidence has come that Shivpujansingh has celebrated the marriage of his son, no person from the neighbourhood has stated about the cruelty having been practised against Sharda. As against it the evidence has come that Shivpujansingh has celebrated the marriage of his son, no person from the neighbourhood has stated about the cruelty having been practised against Sharda. Though it is true that if a woman married within seven years (as in this case within 3 months) is treated with cruelty and she commits suicide in consequence thereof it shall be deemed that the husband and the in-law and the person who has persecuted have abeted to commit suicide. Similarly, the fact of harassment is also required to be proved like any other evidence. Unless a consistent cruelty or harassment is shown and proved this presumption cannot be raised. There may be cases where cruelty or harassment may be immediate proximate cause of suicide and in that situation the facts are required to prove clearly. Thus, despite the fact of demand of dowry having been proved, in the absence of proof of consistent cruelty or harassment or any such act showing to be the immediate proximate cause of homicide the offence cannot be found to be proved." 17. In view of the aforesaid, it is held that the trial Court has committed error, perversity and illegality in passing the impugned judgment of conviction against the appellant. The same is not sustainable. 18. In the aforesaid premises by allowing this appeal, the judgment of the trial Court convicting the appellant is hereby set aside and he is acquitted from the alleged charges of section 306 and section 498A of IPC. The amount of fine, if deposited by the appellant, the same be refunded to him after proper verification. This appeal is allowed as indicated above.