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Madhya Pradesh High Court · body

2009 DIGILAW 1013 (MP)

ANAMIKA v. STATE OF M P

2009-08-22

S.S.DWIVEDI

body2009
Judgment ( 1. ) THE aforesaid three appeals have been preferred by the respective appellants/accused feeling aggrieved by the impugned judgment dated 18. 6. 2003 passed by First Additional Sessions Judge, Vidisha in Sessions Trial no. 125/00, whereby all the appellants/accused have been found guilty for the offence punishable under Sections 306 and 498-A of IPC and each of them have been sentenced to four years RI with a fine of Rs. 5000/-, and two years RI with a fine of Rs. 2500/- respectively. In default of payment of fine further ordered to suffer imprisonment for six months on each count. Both the sentences are ordered to run concurrently. ( 2. ) AS all the aforesaid three appeals have been preferred against the common impugned judgment passed by the trial Court, hence all these three appeals are being decided by this judgment. ( 3. ) BRIEFLY stated facts of the case are, Sandhya Bai (deceased) was married with the appellant/accused Rajesh on 4. 2. 1995 and she was found dead on the railway track at Ganj Basoda. The information about the accidental death of sandhya Bai had been reported by the Assistant Station Master Ganj Basoda railway Station to the Railway Police Outpost Ganj Basoda, on which basis the incharge of Police Outpost Babulal Yadav (PW. 14) registered an inquest report about accidental death of the concerning lady; reached on spot; prepared the spot map as well as the inquest Panchnama of the deadbody of deceased lady and sent the deadbody for post-mortem examination to the Government Hospital, Ganj basoda. It came to know that deadbody of the lady belonged to Sandhya Bai w/o Rajesh R/o Ganj Basoda. Meanwhile, it is also alleged that the accused shambhu Dayal had also lodged the report at Police Station Ganj Basoda about missing of his daughter-in-law Sandhya Bai from the house. When the accused persons, who are the husband, father-in-law and mother-in-law of the deceased sandhya Bai, came to know about the accidental death of Sandhya Bai the deceased, then they also informed the parents of Sandhya Bai, who belong to jabalpur. Ori information Rameshwar Dayal Agarwal, the father of the deceased sandhya Bai, came to Ganj Basoda and he lodged the FIR Ex. Ori information Rameshwar Dayal Agarwal, the father of the deceased sandhya Bai, came to Ganj Basoda and he lodged the FIR Ex. P/1 against the appellants/accused with regard to cruel treatment coupled with demand of dowry by the husband, father in law, mother-in-law and sister-in-law of his daughter sandhya Bai, on which basis G. R. P. Police registered a case under Section 304-B of IPC against all these four appellants/accused and started investigation; recorded the statements of witnesses, the post-mortem of the dead body of Sandhya Bai has been performed by Dr. K. K. Shrivastava (PW. 10), Asst. Surgeon, Government hospital, Ganj Basoda, and proved the post-mortem report Ex. P/15. After due investigation charge sheet had been filed. ( 4. ) ALL the four accused/appellants abjured the guilt and their defence is of false implication in this case. The appellants/accused had also examined four defence witnesses and also produced certain documentary evidence in their support. The learned trial Court after due appreciation of the entire evidence on record, by the impugned judgment acquitted the appellants/accused from the charge under Section 304-B of IPC, but held them guilty for the offence punishable under sections 306 and 498-A of IPC and sentenced them as stated herein above. Aggrieved by which the appellants have preferred these three separate appeals. ( 5. ) HAVING heard the learned counsel for the appellants as well as the learned public Prosecutor appearing for the State and learned counsel appearing for the complainant, and perused the record. ( 6. ) IT is submitted on behalf of the appellants that admittedly the marriage of deceased Sandhya Bai had taken place on 4. 2. 1995 with the appellant/accused rajesh Agarwal and unnatural death of Sandhya Bai occurred on 21. 7. 1999, meaning thereby she died within seven years of her marriage with the appellant/accused Rajesh. It is further submitted that the trial Court after due appreciation of the entire evidence on record came to the conclusion that demand of dowry by any of the appellants/accused is also not found proved by the prosecution evidence and, hence, the learned trial Court has acquitted all the appellants/accused from the charge under Section 304-B of IPC and against the aforesaid finding of acquittal for the offence under Section 304-B of IPC the prosecution, as well as the complainant has not preferred any appeal against that part of the judgment. Thus, it is proved that the prosecution has utterly failed to prove the demand of dowry by any of the accused from the deceased Sandhya Bai. ( 7. ) NOW only question remains for consideration with regard to the cruelty exercised upon the deceased by any of the appellants or all the appellants/accused. On this point it is submitted by learned counsel for the appellants that there is no specific allegation against any of the accused with regard to the alleged cruelty to the deceased. The only allegation found in the statements of Rameshwar Dayal (PW. 2), Veerendra (PW. 3), Taradevi (PW. 8), Radheshyam (PW. 9) and madhusudan (PW. ll), all near relatives of the deceased that all the appellants/accused were harassing the deceased Sandhya Bai but there is no specific allegation against any one of the accused with regard to any particular incident. The only allegation alleged to be introduced by the statements of these witnesses that the accused persons were not permitting Sandhya Bai to talk with her parents on telephone or to write any letter to the parents and only by this type of allegation the prosecution wants to prove the alleged cruelty as defined under Section 498-A of IPC and only on the basis of this such type of omnibus allegation the alleged cruelty by any of the accused cannot be found proved. ( 8. ) IT is also submitted that it is on record that after the marriage with the cooperation of the accused persons Sandhya Bai also appeared in B. Ed. examination in the year 1997 and also passed the aforesaid examination. There are also documentary evidence that the deceased Sandhya Bai and her husband/accused Rajesh were in cordial relationship. Various photographs have also been produced by the defence, on which basis this cannot be inferred that both the deceased as well as the appellants/accused were hot having good relationship and if on the basis of such type of omnibus allegation the cruelty to the deceased is not proved by the prosecution then certainly the presumption under Section 113-A of the Evidence Act for instigation to commit suicide is not found proved against any of the accused and the learned trial Court has wrongly held the appellants guilty for the offence punishable under Sections 306 and 498-A of IPC. Hence, prayed for setting aside ofthe impugned judgment of conviction passed by the trial Court. Hence, prayed for setting aside ofthe impugned judgment of conviction passed by the trial Court. ( 9. ) IN reply, learned Public Prosecutor for the State assisted by learned counsel for the complainant supported the impugned judgment and submits that on the basis of the statements of parents namely Rameshdayal (PW. 2) and Taradevi (PW. 8) and on the basis of the statements of other witnesses Veerendra (PW3), radheshyam (PW9) and Madhusudan (PW. ll) the prosecution has fully proved the case that all the accused persons were repeatedly harassing the deceased and also treating her with cruelty, due to which instigation she committed suicide and the trial Court has rightly held all the appellants guilty for the offence punishable under Sections 306 and 498-A of IPC and no grounds are available for any interference in the impugned judgment of conviction and sentence passed by the trial Court. Hence, prayed for dismissal of all the three appeals. ( 10. ) TO bring home the charge, it is not in dispute that Sandhya Bai died in the suspicious circumstances on the railway track within seven years of her marriage. As stated herein above, the marriage took place on 4. 2. 1995 and the dead body of deceased Sandhya Bai was found dead on the railway track near Ganj Basoda station on 21. 7. 1999. It is also apparent that demand of dowry by any of the appellants is not found proved by the trial Court on the basis of the statements given by the parents and due to which the trial Court itself has acquitted the appellants from the charge under Section 304-B of IPC. Therefore, the statements of the aforesaid witnesses with regard to demand of dowry given in the trial Court need not to be re-examined by this Court. ( 11. ) NOW the only point for determination is as to whether any of the appellants/accused has treated the deceased Sandhya Bai with cruelty and due to which harassed her. For this, the prosecution had examined Rameshwardayal (PW. 2)and Taradevi (PW. ( 11. ) NOW the only point for determination is as to whether any of the appellants/accused has treated the deceased Sandhya Bai with cruelty and due to which harassed her. For this, the prosecution had examined Rameshwardayal (PW. 2)and Taradevi (PW. 8), father and mother of the deceased, who omnibusly stated that all the accused persons were harassing Sandhya Bai due to the reason that in the marriage car had not been given by the parents of the deceased but, as stated herein above, the demand of car as dowry is not found proved on the basis of the statements given by the prosecution witnesses; but in the statements of the aforesaid two witnesses - the parents Rameshwardayal (PW. 2) and taradevi (PW. 8) there is no specific allegation with regard to the kind of harassment or cruelty to the deceased by the accused persons. Rameshwardayal (PW. 2) in detailed cross-examination only alleged that the. accused persons were not permitting Sandhya Bai to talk with her parents on telephone and she cannot also write any letter to the parents but this does not appear to be probable allegation of cruelty against the appellants. Rameshwardayal (PW. 2) admitted in his cross-examination that after the marriage the appellants had permitted deceased Sandhya Bai to appear in the b. Ed, examination and she also appeared in the examination and passed the examination in the year 1997, for which he had also sent congratulation letter to Sandhya Bai and to her inlaws. Similarly, Rameshwardayal (PW2) also admitted the fact that he also joined the marriage of Anamika (appellant/accused in Criminal Appeal No. 304/03) which had taken place in the year 1997 and certain photographs had also been taken, at that time there was no allegation against Anamika or any of the accused with regard to any harassment to the deceased, on which basis the "allegation of cruelty can be found proved against any of the appellants. ( 12. ) RAMESHWARDAYAL (PW. 2) also admitted in cross-examination that he has not lodged any report against any of the appellants with regard to the alleged harassment or cruelty to his daughter Sandhya Bai. Similarly he had also not produced and proved any letter written by Sandhya Bai alleging against any of the accused with regard to the alleged cruelty or. harassment. ( 13. ) VEERENDRA Agarwal (PW. Similarly he had also not produced and proved any letter written by Sandhya Bai alleging against any of the accused with regard to the alleged cruelty or. harassment. ( 13. ) VEERENDRA Agarwal (PW. 3), the brother of the deceased, admitted the fact that two letters have been written by Sandhya Bai but those letters have also not been produced by the prosecution in support of the allegation that in those letters also Sandhya Bai narrated about the alleged harassment or cruelty by any of the accused. In such circumstances also, there is no cogent support found on record on which basis the allegation with regard to the harassment to the deceased by any of the accused or all the accused can be. found proved on which basis the cruelty is defined under Section 498-A of IPC can be found proved. ( 14. ) TARADEVI. (PW. 8) the mother of the deceased stated that the accused persons were also beating Sandhya Bai but no such allegation has been made by the father Rameshdayal (PW. 2) against any of the accused that they were also repeatedly beating his daughter Sandhya Bai. Similarly, there is also no such allegation in the statement of Veerendra Agarwal (PW. 3) that any of the accused had beaten deceased Sandhya Bai at any point of time. ( 15. ) RADHESHYAM Agarwal (PW. 9), who is maternal uncle (Mousa) of the deceased, has also not stated that Sandhya Bai ever told him with regard to the alleged cruelty or harassment by her husband or in-laws at any point of time and this witness has been declared hostile by the prosecution. ( 16. ) MADHUSUDAN (PW. ll) is the cousin brother of deceased Sandhya Bai. He has also not stated that any specific allegation or statement was made to him by Sandhya Bai during her life time with regard to the alleged harassment or cruel treatment by any of the accused. ( 17. ) THUS, the prosecution rests only on the omnibus statement of rameshdayal (PW. 2) and Taradevi (PW. 8) with regard to the harassment by the accused persons. PW. 2 Rameshdayal in cross-examination in para 49 also admitted that he had not clarified from Sandhya as to how and under what circumstances the alleged harassment is made by her in-laws or the husband to Sandhya Bai. ( 18. 2) and Taradevi (PW. 8) with regard to the harassment by the accused persons. PW. 2 Rameshdayal in cross-examination in para 49 also admitted that he had not clarified from Sandhya as to how and under what circumstances the alleged harassment is made by her in-laws or the husband to Sandhya Bai. ( 18. ) ON the other hand, the defence has filed documentary evidence Ex. D/ 6 to D/25. These documents are the greeting cards and the photographs taken on various occasions, wherein the deceased Sandhya Bai was found in cordial and happy relationship with Anamika and with her husband Rajesh and looking to these photographs and various greeting cards it is also not found proved that deceased Sandhya Bai was not in good relationship with the accused rajesh or with her sister-in-law/appellant-accused Anamika. In such circumstances also the allegation of Rameshdayal (PW. 2) and Taradevi (PW. 8)that all the accused persons are repeatedly harassing the deceased does not appear to be a probable story. ( 19. ) LEARNED counsel for the appellants also drew our attention on the statement of Shambhu (PW. 17), who is the alleged eye witness of the incident, who clearly stated that he saw that a lady with a child while going towards the railway line, immediately at that time some train arrived and due to some rashness she fell down on the railway track and this incident occurred. This witness Shambhu is the prosecution witness, who actually saw the incident and has not been declared hostile by the prosecution. The prosecution is bound by the statement of this witness, which clearly indicates that the incident of death of Sandhya Bai appears to be an accident for which this cannot be presumed that Sandhya Bai committed suicide by coming in front of the train therefore, by the statement of Shambhu (PW. 17) also, the submission made by learned counsel for the appellants appears to be probable that the death of sandhya Bai may be an accidental death also and if that being so and cruelty and harassment as discussed above is not proved then certainly the presumption under Section 113-A of the Evidence Act will not be available it favour of the prosecution on which basis the appellants/accused can be held guilty for the offence punishable under Section 306 of IPC. ( 20. ) SIMILARLY, the Autopsy Surgeon Dr. K. K. Shrivastava (PW. ( 20. ) SIMILARLY, the Autopsy Surgeon Dr. K. K. Shrivastava (PW. 10), who performed the post-mortem of the dead body of Sandhya Bai, also opined that looking to the injuries sustained to the deceased the death may be accidental also. ( 21. ) HONble Apex Court in case of Girdhar Shankartawade vs. State of maharashtra, reported in 2002 Supreme Court Cases (Cri) 971, has held here as under:- "16. We have already noted Section 498-A herein before in this judgment and as such we need not delve into the same in greater detail herein excepting recording that the same stands attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman. Admittedly, the finding of the trial court as regards the death negated suicide with a positive finding of accidental death. If suicide is ruled out then in that event applicability of Section 498-A can be had only in terms of Explanation (b) thereto which in no uncertain terms records harassment of the woman and the statute itself thereafter clarified it to the effect that it is not every such harassment but only in the event of such a harassment being with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand - there is total absence of any of the requirements of the statute in terms of section 498-A. The three letters said to have been written and as noticed earlier cannot possibly lend any credence to the requirement of the statute or even a simple demand for dowry. " ( 22. ) SIMILARLY in another decision of the Honble Apex Court in the case of ramesh Kumar vs. State of Chhattisgarh, reported in 2002 SCC (Cri) 1088, the Honble Apex Court while defining the word "instigation" as defined under sections 306 and 107 of IPC, has held here as under:- "11. There is no direct evidence adduced of the accused-appellant having abetted Seema into committing suicide. There is no direct evidence adduced of the accused-appellant having abetted Seema into committing suicide. The prosecution has relied on Section 113-A of the Evidence Act which reads as under: "113-A. Presumption as to abetment of suicide by a married woman.-- 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. Explanation. For the purpose of this section, cruelty shall have the same meaning as in Section 498-A of the Indian penal Code (45 of 1860 ). " 12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26. 12. 1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113 -A shows that to attract applicability of section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. On existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression "the other circumstances of the case" used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in Section 113-A is defined in Section 4 of the evidence Act, which says "whenever it is provided by this act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. " ( 23. ) IN view of the aforesaid case law, on appreciation of the evidence in the present case on record, as discussed herein above, there is no specific allegation against any of the appellants/accused that by any act they had instigated the deceased Sandhya Bai for commission of suicide. There is also no specific allegation with regard to harassment or cruelty; No documentary evidence is also available for the alleged harassment or cruelty. On the other hand, there is documentary evidence on record that the appellants and deceased Sandhya Bai were in good relationship. This has also been proved by the statement of Vivek Shukla (DW. 2), Rambabu (DW. 3) and Ajay Agarwal (DW. 4 ). This statement cannot be disbelieved only on the basis that they had been produced by the accused persons. This has also been proved by the statement of Vivek Shukla (DW. 2), Rambabu (DW. 3) and Ajay Agarwal (DW. 4 ). This statement cannot be disbelieved only on the basis that they had been produced by the accused persons. In such circumstances, when prosecution has failed to produce and prove any documentary evidence with regard to the alleged cruelty and defence has successfully proved that the appellants were having good relation with the deceased Sandhya Bai then certainly the presumption under Section 113-A of the Evidence Act will not arrive at, on which basis the appellants can be held guilty for the offence punishable under Sections 306 and 498-A of IPC. ( 24. ) THE other witnesses examined by the prosecution are Deviprasad (PW. l), who went with the memo issued by A. S. M. Ganj Basoda, who delivered it to the Police Outpost G. R. P. Ganj Basoda; Raju (PW. 4), who is the Panch witness of Ex. P/8; Dr. Devendra Kumar Jain (PW. 5), who proved the injury sustained to the minor child of Sandhya Bai; Rambabu (PW. 6), who proved booking of Hitkarini Dharamshala at the time of marriage of sandhya Bai; Narayan Das Agarwal (PW. 7), who proved the seizure memos ex. P/3 to Ex. P/7; Hariram (PW. 12), who is the railway gangman who informed about the accidental death of a lady; D. P. Dudhane (PW. 13), who is the investigating Officer, who recorded the statements of the witnesses; Babulal yadav, Head Constable (PW. 14), who registered the inquest report; J. P. Sahu (PW. 15), who is the A. S. M,, who informed the police with regard to the accidental death of a lady on the railway track; B. S. Gurjar (PW, 16), who proved the document Ex. P/16; Harishchandra (PW. 18) who proved the submission of copy of the FIR at CJM Court; Ramprasad Pandey (PW. 19), who proved the missing report lodged by the accused Shambhu Dayal. ( 25. ) THUS, on over all re-appreciation of the entire prosecution evidence on record, in my considered opinion, the prosecution has failed to prove beyond reasonable doubt that all the appellants or any of them harassed the deceased and also treated her with cruelty due to which instigation Sandhya Bai committed suicide on the date of incident. ( 25. ) THUS, on over all re-appreciation of the entire prosecution evidence on record, in my considered opinion, the prosecution has failed to prove beyond reasonable doubt that all the appellants or any of them harassed the deceased and also treated her with cruelty due to which instigation Sandhya Bai committed suicide on the date of incident. Therefore, the alleged charge for the offence punishable under Sections 306 and 498-A of IPC is not found proved against any of the accused persons. ( 26. ) RESULTANTLY, all the three appeals (Criminal Appeals No. 304/03, 317/03 and 333/03) succeed and are hereby allowed. The impugned judgment of conviction and sentence passed by the trial Court is set aside and the appellants are acquitted from the charge under Sections 306 and 498-A of IPC. The fine amount if any deposited by the appellants be refunded to them. The appellants are on bail, their bail bonds stand discharged forthwith. Appeal allowed.