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Madhya Pradesh High Court · body

2009 DIGILAW 65 (MP)

BHARAT SINGH v. STATE OF MADHYA PRADESH

2009-01-13

R.C.MISHRA

body2009
Judgment ( 1. ) THIS appeal has been preferred against the judgment-dated 24. 09. 1994 passed by Sessions Judge, Sidhi in Sessions Trial no. 25/1993 whereby the appellant was convicted under Section 498-A of the IPC and sentenced to undergo R. I. for 3 years. ( 2. ) THE prosecution case, in short, may be stated as under : - (i) Marriage of Padmawati (since deceased) was solemnized with the appellant nearly 6 years prior to the incident in question. On 10. 03. 1992 at about 8. 30 a. m. , for treatment of suspected poisoning, Padmawati was admitted to the VSTPP hospital where she breathed her last at 12. 30 p. m. In the meantime, two dying declarations were recorded. In one of declarations (Ex. P-9) scribed by the treating doctor S. P. Verma (PW5), she disclosed that she had consumed tablets of the insecticides used for preservation of wheat whereas in the other one (Ex. P-5), as recorded by the investigation officer Parmatma Singh (PW8), she alleged that the appellant had administered as many as four tablets of insecticides. After inquest proceedings, dead body of Padmawati (ii)was sent for post-mortem that was performed by Dr. G. S. Soni (PW6 ). He opined that cause of padmawatis death was poisoning only. The evidence collected in the course of the marg inquiry revealed that Padamawati was persistently subjected to maltreatment by the appellant due to non-satisfaction of demand of scooter or a cash amount of Rs. 25,000/- in lieu thereof. Accordingly, ASI parmatma Singh (PW8) recorded the FIR (Ex. P-12)and registered a case under Sections 498-A and 304-B of the IPC. ( 3. ) THE appellant was charged with the offence punishable under section 304-B of the IPC only. He abjured the guilt and, in his examination, under Section 313 of the Code of Criminal Procedure, he further asserted that he had showered abundant love and affection on padmawati despite the fact that she was not able to beget a child. His brother Ramanuj (DW1) and neighbour Tejbhan (DW2) were also called in defence. ( 4. ) TO bring home the charge of dowry death, the prosecution examined nine witnesses including Brijbhushan @ Phussu (PW2) and mandavi Sharan (PW3) respectively the father and brother of the deceased. His brother Ramanuj (DW1) and neighbour Tejbhan (DW2) were also called in defence. ( 4. ) TO bring home the charge of dowry death, the prosecution examined nine witnesses including Brijbhushan @ Phussu (PW2) and mandavi Sharan (PW3) respectively the father and brother of the deceased. Learned trial Judge, after considering the entire evidence on record, proceeded to acquit the appellant of the offence under section 304-B of the IPC primarily on the ground that the evidence as to dowry demand as well as torture meted out to Padmawati due to its non-fulfillment of demand of a scooter or money equivalent to its price suffered from serious infirmities. However, he was of the view that the residual evidence was sufficient to establish the ingredients of the offence punishable under Section 498-A of the IPC beyond a reasonable doubt. He, therefore, proceeded to convict the appellant and sentenced him as indicated hereinabove. ( 5. ) LEARNED counsel for the appellant has strenuously assailed legality and propriety of the impugned conviction mainly on the ground of what is termed as an improper appreciation of evidence. According to him, the evidence, which was found deficient with regard to the dowry harassment, was also not sufficient to prove any other form of cruelty within the meaning of Section 498-A of the IPC. In his opinion, learned trial Judge ought to have held that Padmawati had died by ingesting celphos tables accidentally. However, learned Dy. Govt. Advocate, by making reference to the incriminating pieces of evidence on record, has submitted that the conviction under challenge was fully justified. ( 6. ) ALTHOUGH, Brijbhushan (PW2) and Mandavi (PW3), in their sworn testimony, reiterated the allegation that Padmawati had been subjected to cruelty and harassment by the appellant on account of non-satisfaction of demand for a scooter or a sum of Rs. 25,000/- yet, their statement on the point of dowry torture was rejected by the trial court as unworthy of credence. ( 7. ) THE words "wilful conduct" in Explanation (a) to Section 498-A of the IPC contemplates other forms of cruelty to which a woman may be subjected in her matrimonial home. As indicated already, no specific charge of the offence under Section 498-A of the IPC was framed against the appellant. ( 7. ) THE words "wilful conduct" in Explanation (a) to Section 498-A of the IPC contemplates other forms of cruelty to which a woman may be subjected in her matrimonial home. As indicated already, no specific charge of the offence under Section 498-A of the IPC was framed against the appellant. However, there was no legal impediment in convicting the appellant, who was charged with and acquitted of the offence under Section 304-B of the IPC, for the offence under Section 498-A of the IPC (See. Arun Garg vs. State of Punjab (2004) 8 scc 251 ). The obvious question is as to whether the appellant had committed any act of cruelty that was likely to drive Padmawati to commit suicide. ( 8. ) IQBAL Bahabur Singh (PW1), who was living in the neighbourhood for the last one year and Achchhelal (PW7), who was referred to in the dying declaration (Ex. P-9), was one of the relatives of the deceased, did not support the accusation that Padmawati had been subjected to harassment by the appellant for any reason whatsoever. Tejbhan (DW2), who was residing in the quarter situated just below the one wherein the appellant was living with Padmawati, also supported the assertion that their married life was fairly smooth. ( 9. ) LAW relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of the inconsistencies namely whether they are material or not. (Kundula Bala subrahmanyam vs. State of A. P. (1993) 2 SCC 684 referred to ). ( 10. ) ACHCHCHELAL (PW7), who had seen Padmawati coming down the stairs, clearly admitted that while vomiting and being incoherent, padmawati did not gave a precise answer to his question as to what had happened ? The dying declarations (Ex. P-5 and P-9), bearing a common signature of treating doctor S. P. Verma (PW5), were apparently inconsistent with each other. Had the dying declaration (Ex. P-5) said to have been recorded by ASI Parmatma Singh in presence of CMO Dr. G. C. Mishra (PW4), been voluntary and reliable, it would have formed basis of conviction of the appellant for the offence of murder. Had the dying declaration (Ex. P-5) said to have been recorded by ASI Parmatma Singh in presence of CMO Dr. G. C. Mishra (PW4), been voluntary and reliable, it would have formed basis of conviction of the appellant for the offence of murder. However, it contained an apparently incorrect fact that the appellant has deserted Padmawati for a continuous period of ten years after their marriage whereas as per the statement of Mandavi (PW3), the brother of Padmawati, her marriage was solemnized in the year 1986 only. ( 11. ) IN the other dying declaration (Ex. P-9) sought to be proved by examining its scribe Dr. S. P. Verma (PW5), the persistent cause of domestic quarrel was described as the non-fulfillment of the dowry demand only. But, as pointed out already, the prosecution version as to continuous dowry harassment was disbelieved by learned trial Judge for variety of reasons including absence of any previous complaint and non-corroborative evidence of the neighbours including Achchhelal, the relative of the deceased. ( 12. ) TO sum up, there was neither a specific charge nor any cogent evidence to prove cruelty within the meaning of Explanation (a) to section 498-A of the IPC which is a question of fact (Arvind Singh vs. State of Bihar (2001) 6 SCC 407 relied on ). Further, the finding of not guilty in respect of dowry harassment, which falls under explanation (b) to the penal provision, has already attained finality. In such a situation, Padmawatis death due to poisoning, by itself, was not sufficient to lead to an inference that she was subjected to any form of cruelty. Thus, the impugned conviction, being not sustainable on facts, deserves to be interfered with. ( 13. ) CONSEQUENTLY, the appeal is allowed. The conviction under challenge and consequent sentence passed against the appellant are hereby set-aside. The appellant is on bail. His bail bonds stand discharged. Appeal allowed.