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Madhya Pradesh High Court · body

2008 DIGILAW 614 (MP)

DINESH v. STATE OF M. P.

2008-04-23

A.P.SHRIVASTAVA

body2008
Judgment A.P.SHRIVASTAVA, J. ( 1. ) This appeal is directed by the appellant against the judgment of conviction and sentence dated 17.04.95 passed by the IIIrd Additional Sessions Judge, Ratlam (M.P.) passed in Sessions Trial No. 250 of 1992, by which the appellant has been convicted by the trial Court under Section 306 of the IPC and sentence to undergo rigorous imprisonment for seven years and pay a fine of Rs. 1000/-with default stipulation. ( 2. ) As per the prosecution story, the marriage of deceased Nirmalabai with the appellant took place on 31.01.91 and she was residing with the appellant at Ratlam where the relatives of the appellant were also residing in the same house and they torture the deceased due to demand of dowry. In the intervening night of 17-18th May 1991, the deceased committed suicide by hanging. The intimation was given to the police station on the basis of which marg intimation was registered and the investigation was started. During the investigation, a letter and a pen were found near the dead body of the deceased which were seized by the police. After completion of the investigation, charge-sheet was filed and the case was committed to the Sessions Court. The Sessions Court framed charges under Sections 147, 306 read with Section 149 of the IPC against the appellant and other co-accused. After conclusion of trial, trial Court convicted and sentenced the present appellant under Section 306 of the IPC as stated in para one of this judgment, while the remaining co-accused were acquitted of all the charges by learned trial Court. ( 3. ) Being aggrieved by the judgment of conviction, this appeal has been preferred by the appellant on the ground that learned trial Court has not appreciated the evidence properly and further on the same set of evidence other co-accused were acquitted by the trial Court. Therefore, the essential ingredients of Section 306 of the IPC are not proved against the appellant. It is further submitted that except the letter (Ex.P.2) there is no other circumstantial evidence against the appellant and it is not established that the letter (Ex.P.2) has written by the deceased herself. ( 4. ) Counsel for the respondent-State supported the judgment of the trial Court and submitted that death of the deceased was caused in suspicious circumstances. It is further submitted that except the letter (Ex.P.2) there is no other circumstantial evidence against the appellant and it is not established that the letter (Ex.P.2) has written by the deceased herself. ( 4. ) Counsel for the respondent-State supported the judgment of the trial Court and submitted that death of the deceased was caused in suspicious circumstances. Therefore, from the letter (Ex.P.2), it appears that the appellant suspected the character of the deceased so she committed suicide and, therefore, the appellant abated the deceased for commitment of suicide. ( 5. ) It is not in dispute that the deceased died in suspicious circumstances and as per the postmortem report (Ex.P.3), the cause of death of the deceased was asphyxia. ( 6. ) Pradeep Kumar (P.W.I) stated that he visited the place where the incident occurred and also described the position of the body and also stated that on the body no external injury was found, but the letter alone with a sketch pen was seized from near the dead body. The report was given by the witness as Ex.P.l. From the evidence, it is apparent that the deceased died in suspicious circumstances and her death was not normal and she committed suicide by hanging. ( 7. ) The question is whether the appellant abated the deceased to commit suicide? In this regard, Maya (P.W.4) stated that when the deceased came to her parents house she deposed that there were demands of VCR, Colour TV and Freeze from the in-laws of the deceased. After the demand of dowry, nearly one-and-a-half months latter, she got information about the condition of the deceased and when she arrived at Ratlam, Nirmala Bai was dead. But in her cross examination the witness admitted that the talk of demand of dowry was not made in her presence. At the time of marriage there was no dispute about the dowry. She also admitted that no demand for dowry was made prior to the date of marriage of the deceased. ( 8. ) Rampyari Bai (PW-5), who is mother of the deceased, deposed that her daughter informed her that appellant and his relatives demanded dowry from her daughter, otherwise they would kill her. The witness also stated that she had seen some sign of burning on the body of the deceased. But this fact has not corroborated by the medical evidence. ) Rampyari Bai (PW-5), who is mother of the deceased, deposed that her daughter informed her that appellant and his relatives demanded dowry from her daughter, otherwise they would kill her. The witness also stated that she had seen some sign of burning on the body of the deceased. But this fact has not corroborated by the medical evidence. Besides this Dharmendra(P.W.8) and Ganga Bai (P.W.9) have not supported the prosecution case and they denied that there was any demand made by the appellant or his relatives for dowry. ( 9. ) From the side of defence, D.W. 1 Vishnu Bairagi, D.W.2 Pannalal and D.W.3 Pradeepsingh Ranawat were examined and they denied that there was any demand of dowry made by the appellant and the co-accused from the deceased. The learned trial Court in para 34 gave its finding that from the evidence which is produced by the prosecution, is not proved beyond reasonable doubt mat there was any demand made by the appellant or the co-accused or she was subjected to cruelty. ( 10. ) But the learned trial Court relied the letter Ex.P/2 which was seized by the police near the dead body of the deceased in which, the contents show that she terminated her life due to suspicion made, by the appellant regarding her character and the learned trial Court found that the deceased suffered from mental cruelty and, therefore, ended her life. The Trial Court found that the Act of the appellant came within the purview of abatement as defined u/S. 113-A of the Evidence Act. ( 11. ) The main contention of the appellants counsel is that the trial Court based his conviction solely on the letter Ex.P/2. It is not admitted by the defence nor it was the case of prosecution that the deceased died due to suspicion raised by the appellant about her character. He submits that defence also filed a letter Ex.D/1 but the trial Court neither made any comparison of the writing nor prosecution examined the letter Ex.P/2 by any handwriting expert or the father of the deceased that it was written by the deceased. The trial Court has acquitted the appellant against the charge of dowry demand and cruelty. He submits that defence also filed a letter Ex.D/1 but the trial Court neither made any comparison of the writing nor prosecution examined the letter Ex.P/2 by any handwriting expert or the father of the deceased that it was written by the deceased. The trial Court has acquitted the appellant against the charge of dowry demand and cruelty. When cruelty is not established the question of abatement to committed suicide does not arise and no presumption can be assumed on the basis of evidence on record, In support of this contention he cited various citations which was passed in the case of Nilakantha Pati v. State of Orissa reported in 1995 Criminal Law Journal 2472. He relied on para 29 of the Judgment in which the Court observed that: "Coming to the conviction u/s.306 IPC it is seen that the learned Additional Sessions Judge has convicted the accused thereunder by applying the presumption available u/s.113-A of the Evidence Act after holding that cruelty on the deceased by the accused has been amply proved. U/S. 113-A when a question is raised whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation to the Sections says that cruelty shall have the same meaning as in S.498-A of the IPC. The presumption available to be raised under the section is rebuttable and such wife committed suicide within a period of seven years from the date of her marriage and that her husband and such relative of her husband had subjected her to cruelty. In this case, admittedly, the suicide of the deceased took place within seven years from the date of her marriage with the accused. But, in view of my aforesaid discussion cruelty had not been meted out to the deceased either by the accused or any of his relative, within the meaning of presumption is not available to the prosecution. The Court in having recourse to the legal presumption must be circumspect. But, in view of my aforesaid discussion cruelty had not been meted out to the deceased either by the accused or any of his relative, within the meaning of presumption is not available to the prosecution. The Court in having recourse to the legal presumption must be circumspect. It is evident that the Parliament was extremely careful in drafting the provisions of the said Section i.e. S.113-A". He also relied on the decision of this Court in the case of Nandlal v. State of M.P. reported in 2000 Criminal Law Journal 794. He relied on para 9 of the Judgment in which the Court observed that: "Once the commission of the offence u/S.498-A of the IPC is proved, while trying the case, the Court may draw a presumption having regard to all the relevant facts given in the section and the other circumstances of the case, that the suicide was abetted by the accused. It is imperative and the mandate of law that before drawing the presumption the Court would not only hold the accused guilty for his cruel treatment but the Court has to take into consideration all the other circumstances of the case. The law clearly says that where the very offence u/S.498-A is not proved, the presumption shall not be available". In case of State of M.P. v. Geetabai reported in 1998 Criminal Law Journal 2724 it was held in para 20 of the Judgment that: "As discussed above, the prosecution could not prove that Rekha was subjected to cruelty by the respondent, therefore, no presumption u/s.H3-A of the Evidence Act that she was abetted by her husbands mother, the respondent Geetabai to commit suicide, could be raised though she committed suicide within 7 years of her marriage. As observed earlier, it could not be established by direct evidence that the respondent abetted Rekha to commit suicide. It appears that Rekha was very sensitive and sentimental girl. She was not happy in her in-Iaws house, her parents were not writing letters to her, they were not taking her to Dewas. Her husband was living away from her, these factors drove Rekha to commit suicide". ( 12. ) Besides the above cases he also relied on the provisions of S. 107 of IPC. The act of abatement is not proved by the evidence and the prosecution. Her husband was living away from her, these factors drove Rekha to commit suicide". ( 12. ) Besides the above cases he also relied on the provisions of S. 107 of IPC. The act of abatement is not proved by the evidence and the prosecution. In this regard he relied on the Judgment in the case of Hansraj v. State of Haryana [reported in 2004 (12) SCC 257 ] and Hariom v. State of M.P.[ reported in 2007(1) MPLJ 195 ]. ( 13. ) Counsel for the respondent admitted that the case of prosecution was that the deceased was subjected to cruelty due to demand of dowry by the appellant. But this fact has not been proved by the prosecution and on this count the Trial Court has acquitted the appellant. No appeal has been filed by the State against the acquittal. But he submitted that the letter Ex.P/2 has not been challenged by the defence and therefore the Trial Courts finding cannot be said to be erroneous. Section 113-A of the Evidence Act based on mat: "When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case., that such suicide had been abetted by her husband or by such relative of her husband. For the purpose of this Section, cruelty shall have the same meaning as in Section 498-A of the Indian Penal Code". ( 14. ) In this case conviction was solely based on the letter Ex.P/2 which is not a conclusive evidence. According to the cause of suicide the letter was not admitted by the defence nor it is established beyond reasonable doubt that it was written by the deceased before her death. Further the case of prosecution was not that the appellant suspected the character of the deceased and due to mental cruelty she committed suicide. In these circumstances the presumption of S.113-A of the Evidence Act would not be attracted because the cruelty is not proved by the prosecution in the evidence and in view of the aforesaid prepositions as cited above. In these circumstances the presumption of S.113-A of the Evidence Act would not be attracted because the cruelty is not proved by the prosecution in the evidence and in view of the aforesaid prepositions as cited above. The Court made presumption that it is established that the deceased was subjected to cruelty as the demand of dowry and cruelty was established and there is no evidence led by the prosecution that there was any suspicion on the character of the deceased prior to her suicide. In these circumstances the essential ingredients of S.306 are not attracted. Hence the finding of the trial Court deserves to be set aside. ( 15. ) In the result the appeal is allowed. The conviction and sentence awarded by the Trial Court to the appellant is hereby set aside and the appellant is acquitted of the charge levelled against him. His bail bonds shall stands discharged. The fine amount if deposited, shall be refunded to the appellant. Appeal allowed.