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Madhya Pradesh High Court · body

2008 DIGILAW 1387 (MP)

Kishore v. State Of M. P.

2008-11-28

K.S.CHAUHAN

body2008
JUDGMENT : This criminal appeal under section 374(2) of the Code of Criminal Procedure has been filed being aggrieved by the judgment, finding and sentence dated 27-7-1994 passed by 3rd Additional Sessions Judge, Sagar in Sessions Trial No. 47/93, whereby the appellant has been convicted under sections 498-A and 306, Indian Penal Code and sentenced to R.I. for 2 years with fine of Rs. 500/-, in default of payment of fine R.I. for 2 months and R.I. for 7 years with fine of Rs. 1000/- in default of payment of fine R.I. for 4 months respectively. Both the sentences were directed to run concurrently. 2. Prosecution case in short is that on 27-3-1993 at 8.45 p.m. Narendra Kesharwani informed at Police Station Kotwali, Sagar that the marriage of his sister Kiran was performed with appellant Kishore prior to two months. She has fallen in a well and died. Marg intimation No. 8/93 under section 174, Criminal Procedure Code was registered. Written report was also submitted. Crime No. 103/93 under section 304-B, Indian Penal Code was registered. Body of deceased was taken out from well. Photographs were taken. Map was prepared. Dead body was sent for post-mortem examination, which was conducted by a panel of three doctors. According to their opinion, the cause of death was asphyxia due to drowning. The sealed packet of viscera was seized. The statements of the witness were recorded under section 161 of Criminal Procedure Code. After completing the usual investigation, charge-sheet was filed in the Court of J.M.F.C. Sagar who committed the case to the Sessions Court for trial. 3. Accused persons were charged under sections 498-A, 306 and 304-B of Indian Penal Code. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. Prosecution examined as many as 25 witnesses and appellants also examined 1 witness in their defence. After appreciating the evidence trial Court acquitted Lalmani from all the charges and this appellant was also acquitted from charge under section 304-B of Indian Penal Code but convicted under sections 498-A and 306 of Indian Penal Code and sentenced thereto as stated hereinabove in para No. 1 of the judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in memo of appeal. 4. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in memo of appeal. 4. Shri J. S. Singh, learned counsel of the appellant submitted that prosecution has not led any evidence to prove that it was suicidal death. The fact regarding demand of dowry and harassment has not been mentioned in the marg intimation report. It is borne out from the evidence of Narendra Kumar Kesharwani (PW-12) that after compromise there was no demand of dowry and she was not subjected to cruelty. The trial Court has not appreciated the evidence in proper perspective. There is no evidence as to why appellant and deceased quarrelled on the day of incident. The finding of trial Court is based on surmises and conjectures. There are contradictions and omissions in the statement of Ramkumar Sharma (PW-18) hence his evidence cannot be relied. Learned counsel further submitted that all the ingredients required to prove these offences have not been established. The finding of guilt is erroneous which deserves to be set aside and appellant is entitled for acquittal. 5. On the contrary, Shri Deepak Awasthy, learned Govt. Advocate has supported the impugned judgment, finding and sentence mainly contending that prosecution has proved its case beyond reasonable doubt and trial Court has rightly convicted and sentenced the appellant hence it does not call for any interference. 6. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under sections 498-A and 306 of Indian Penal Code? 7. It is borne out from the record that Kiran was married with this appellant on 19-1-1993 and died on 27-3-1993. Thus, she has died within three months of her marriage. 8. It is also borne out from the record that Rajkumar elder brother of this appellant informed Narendra Kumar Kesharwani (PW-12) that on 27-3-1993 some altercation took place in between the deceased and appellant and she is missing since then. She was searched by Narendra Kumar Kesharwani (PW-12) and Ram Kumar Sharma (PW-18) and found her dead body in the municipal well situated nearby to the playground. Narendra Kumar Kesharwani (PW-12) immediately rushed to police station and gave the information. On the basis of which Marg Intimation No. 8/93 was registered. Thereafter her dead body was taken out from the well. Narendra Kumar Kesharwani (PW-12) immediately rushed to police station and gave the information. On the basis of which Marg Intimation No. 8/93 was registered. Thereafter her dead body was taken out from the well. The map (Ex.P-14) was prepared and her dead body was sent for postmortem examination. Dr. C. K. Dubey (PW-6) along with two other doctors conducted post-mortem examination and found that the cause of death was asphyxia as a result of drowning. The post-mortem report is Ex.P-6. 9. Thus, it is established that the death of Kiran was due to drowning. According to the prosecution, the death of Kiran was suicidal in nature whereas according to appellant it was accidental. But there is no any evidence to show that the deceased has ever gone at the well to fetch water or that mistakenly she had fallen in the well. On the contrary, there is evidence that appellant used to demand Yamaha motorcycle and harass her. On the day of incident also some altercation took place in between them. The things became unbearable to her and she ended her life by falling in the well. 10. No doubt in marg intimation Ex.P-17 the fact regarding demand of dowry and harassment is not mentioned. Narendra Kesharwani (PW-12) who gave this intimation to the police has stated that at that time he was in hurry because the dead body of his sister was lying in the well. Thus he appears to be traumatic seeing the dead body of his sister lying in the well. At that time the main function was to bring the police in motion, therefore, if such facts are not mentioned in the marg intimation report, it will not affect adversely the prosecution case. More so on the same date the written report Ex.P-16 has been submitted by Narendra Kesharwani (PW-12) at police station which contains the facts regarding demand of motorcycle by the appellant and causing harassment for not fulfilling such demand. Thus, this is not the case wherein the story of demand of dowry and subjecting her cruelty has been cooked up later on. Hence the contention of the learned counsel for the appellant that story regarding demand of dowry is an afterthought cannot be accepted. 11. Thus, this is not the case wherein the story of demand of dowry and subjecting her cruelty has been cooked up later on. Hence the contention of the learned counsel for the appellant that story regarding demand of dowry is an afterthought cannot be accepted. 11. On perusal of the evidence of Narendra Kesharwani (PW-12), Dharmendra Kumar Kesharwani (PW-13) and Ramkumar Sharma (PW-18), it is manifestly clear that this appellant has repeatedly made the demand of Yamaha motorcycle. Firstly he demanded at the time of 'Kaleu' ceremony, secondly after 10 days of his marriage and thirdly at the time when Dharmendra Kesharwani (PW-13) went to take back his sister Kiran. When Kiran returned from her in-laws house she told to her brothers Narendra Kesharwani (PW-12) and Dharmendra Kumar Kesharwani (PW-13) that the appellant demands Yamaha motorcycle and causes harassment. She has also told that previously when Dharmendra Kumar Kesharwani (PW-13) has gone to take her back to the parental house she was not sent because she was having burn injury burnt by appellant. Rameshwar Prasad Tiwari (PW-19) has also corroborated the fact that Kiran was having the burn injury in the elbow and for that dressing was done. Narendra Kesharwani (PW-12) has also stated that at Holi Festival on 'Bhai Duj' his sister told him that it would be the last 'Tilak' if the motorcycle not provided to appellant. She would be killed by him in case of not fulfilling the demand. Thereafter when the younger brother of appellant came to take her to her in-laws house. Narendra Kesharwani assured him that the arrangement of motorcycle would be done but his sister be not harassed. 12. No doubt this witness has admitted in cross-examination that after assurance his sister was not harassed but it is apparent that there was no much more time when Manoj Kumar took her back to her in-laws house and death. It was a very short period. As stated earlier, the marriage was performed on 19-1-1993 and she died on 27-3-1993, therefore, there is ample evidence that she was subjected to cruelty for not fulfilling the demand and harassment done. It is also borne out from the record that appellant used to harass Kiran by not providing food and causing marpeet. Once he caused burn injury for which she was treated. The evidence of this witness is quite natural and inspires confidence. 13. It is also borne out from the record that appellant used to harass Kiran by not providing food and causing marpeet. Once he caused burn injury for which she was treated. The evidence of this witness is quite natural and inspires confidence. 13. Thus it is established that the demand of Yamaha motorcycle which was done at the time of marriage remained continue. She was used to harass. At one time burn injury was also caused to her. On the day of incident some altercation took place in between them. She ended her life by falling in a well in the very short period of her marriage. The presumption of section 113A of the Indian Evidence Act is against appellant. Accordingly it is presumed that he has abetted suicide. 14. Learned counsel for the appellant has placed reliance on the decisions rendered in the case of Satpal vs. State of Haryana, AIR 1999 SC 1476 and Sham Lal vs. State of Haryana, 1977AIR SCW 1614 and submitted that no offence under section 306 and 498-A of Indian Penal Code is made out. 15. In the case of Satpal (supra) aluminum phosphate was found in viscera of deceased and there was no convincing evidence that the deceased had committed suicide by consuming poison. Mere possibility of such consumption of poison by her was not found sufficient for conviction under section 306 of Indian Penal Code. The possibility of death by other means must be ruled out. 16. So far as the present case is concerned, deceased had died due to asphyxia as a result of drowning in the well. There is sufficient evidence that she was humiliated, ill-treated, beaten and subjected to cruelty, therefore, the referred case is of no help to the appellant. 17. In the case of Sham Lal (supra) there was no evidence to take recourse to the legal presumption envisaged in section 113-B of the Evidence Act, therefore, the offence under section 304-B, Indian Penal Code was not found proved. 18. So far as the present case is concerned, the appellant has already been acquitted from the charge under section 304-B of Indian Penal Code but he has been convicted under sections 306 and 498-A of Indian Penal Code. 18. So far as the present case is concerned, the appellant has already been acquitted from the charge under section 304-B of Indian Penal Code but he has been convicted under sections 306 and 498-A of Indian Penal Code. Since there is ample evidence regarding the demand of motorcycle and subjecting her to cruelty, therefore, the presumption under section 113-A of Indian Evidence Act has been attracted as stated earlier. Therefore, this cited case is also of no help to the appellant. 19. In the case of Randhir Singh and another vs. State of Punjab, AIR 2004 SC 5097 the Apex Court has held thus: "10. In the present case the evidence of relatives, more particularly, father and the mother clearly proves demand of dowry. Mere fact that whatever he had obtained by way of pension or compensation for land acquisition had been spent, the capacity to pay may be affected. But it does not prove that the accused persons did not make a demand. Trial Court and the High Court have considered this aspect and given positive finding about the demand of dowry having been established. The death occurred during 7 years of marriage. Section 306, Indian Penal Code deals with abetment of suicide. The said provision reads as follows : "306. ABETMENT OF SUICIDE. If any person commits suicide, whoever abets the commission of such suicide, shall-be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 11. Section 2 of the Dowry Prohibition Act, 1961 (in short 'Dowry Act') defines "dowry" as under :- Section 2. Definition of 'dowry' - In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation I - For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties. Explanation II - The expression 'Valuable security' has the same meaning in section 30 of the Indian Penal Code (45 of 1860)." 12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence under section 306 of Indian Penal Code. 13. In State of West Bengal vs. Qrilal Jaiswal, AIR 1994 SC 1418 this Court has observed that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly Circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty." 20. In the light of the aforesaid pronouncement and keeping in view the evidence adduced in this case, it is evident that the prosecution has proved the case beyond reasonable doubt against the appellant. The trial Court has given cogent reasons for arriving at such conclusion. The finding prima facie does not appear to be illegal, infirm or perverse, therefore, the same is hereby affirmed. The sentence being not excessive also does not call for any interference. The appeal is devoid of merits and deserves to be dismissed. 21. The trial Court has given cogent reasons for arriving at such conclusion. The finding prima facie does not appear to be illegal, infirm or perverse, therefore, the same is hereby affirmed. The sentence being not excessive also does not call for any interference. The appeal is devoid of merits and deserves to be dismissed. 21. Consequently, this appeal fails and is hereby dismissed. The appellant is on bail. His bail bonds are cancelled. He be directed to surrender before C.J.M., Sagar on 31-12-2008 for serving out the remaining part of the sentence.