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Madhya Pradesh High Court · body

2009 DIGILAW 703 (MP)

BEDI v. STATE OF MADHYA PRADESH

2009-06-18

U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellant no. 1 Bedi and appellant no. 2 and 3 Dujja and bhaganti ( since deceased) have filed this appeal against the judgment dated 30. 11. 98 passed by the IIIrd Additional Sessions, Judge, Damoh in Sessions Trial No. 75/98 convicting to each of them under Section 498-A with three years RI with fine of Rs. 500, in default of depositing such fine further three months simple imprisonment. ( 2. ) THE facts of the prosecution case in short are that the deceased Atmarani @ Genda Bai was married with the appellant no. 1 bedi Lal before 4-5 years ago from the date of the incident, i. e. 24. 3. 98. It is undisputed fact on record that Genda Bai did not have any issue out of the wedlock. According to further case due to such reason the appellant no. 1 her husband and the deceased appellants, her mother in law and father in law were used to commit cruelty with her. She also told some incident of Makar Shankranti to her mother. As per further case due to such harassment and cruelty said Genda Bai by pouring the kerosene on dated 23. 4. 98 set fire and committed suicide. On giving such information by one Dhanpat the merge intimation regarding such unnatural death was registered at Police station Tendukheda. After preparing inquest memo and the spot map the death body was sent to the hospital where its postmortem was carried out, according to which said Genda Bai had died because of burning injuries. On making enquiry of the merge an offence under section 498 A and 306 r/w Section 34 of IPC was registered against the appellants. Interrogatory statement of witnesses were recorded. After holding investigation the appellant no. 1 alongwith the deceased appellants were charge sheeted for the offence under Section 498-A, 306 r/w Section 34 of IPC. On framing charges of the alleged offence against the appellants, they abjured the guilt, on which the trial was held. On appreciation of the evidence by acquitting the appellants from the charge of Section 306 r/w Section 34 they have been convicted under Section 498-A with the punishment, as stated above, on which the appellants have come forward with this appeal with the prayer of their acquittal. In pendency of the appeal, the appellant no. On appreciation of the evidence by acquitting the appellants from the charge of Section 306 r/w Section 34 they have been convicted under Section 498-A with the punishment, as stated above, on which the appellants have come forward with this appeal with the prayer of their acquittal. In pendency of the appeal, the appellant no. 2 and 3 have died, hence the appeal was held to be abated against them. ( 3. ) LEARNED appearing counsel of the appellant Shri B. J. Chourasia after taking me through the evidence led by the prosecution and the papers exhibited by it said that after giving acquittal to the appellants from the charge under Section 306 of IPC. On appreciation of the same evidence the appellant no. 1 has been wrongly convicted under Section 498-A of IPC. By referring the deposition of parents of the deceased namely Karelal (PW-1) and Sona Bai (PW-3) he said that they have not stated any incriminating thing against the appellants with respect of the cruelty committed by them against the deceased. As per submission if parents have not stated anything then Shobha Ram (PW-4), the maternal uncle of the deceased who was not residing with the parental family of the deceased could be believed to draw the inference that deceased was subjected to cruelty by the appellant no. 1 and in such premises, he is not reliable. So far Jithua Kotwar (PW-12) is concerned, he said that looking to the inconsistency between his court deposition and the case diary statement Ex. D-4 and also the inconsistency with the deposition of Ujayari Bai (PW-5), the deposition of Jithua Kotwar could not be relied on to convict the appellant. Besides this there is no other evidence showing that the appellant no. 1 has committed any alleged offence with the deceased. In alternative he said that the appellant has already suffered three months imprisonment in jail and he is facing the mental agony of such prosecution since 1998. Therefore, if the case is not found fit for acquittal from the alleged charge, then by adopting some lenient view his jail sentence be reduced upto the period for which he has already undergone during trial and prayed to allow his appeal accordingly. ( 4. Therefore, if the case is not found fit for acquittal from the alleged charge, then by adopting some lenient view his jail sentence be reduced upto the period for which he has already undergone during trial and prayed to allow his appeal accordingly. ( 4. ) RESPONDING the aforesaid arguments, learned Panel Lawyer by referring the evidence said that approach and finding of the trial court holding aforesaid conviction are based on cogent reasons and also in conformity with law. The same do not require any interference either for acquittal or reducing the sentence and prayed for dismissal of this appeal. ( 5. ) AFTER hearing the arguments of the parties at length, I have examined the record and also perused the impugned judgment. ( 6. ) IT is true that initially the charge sheet was filed against all the appellants for the offence under Section 306 and 498 r/w 34 of ipc. They were tried for the same but on appreciation of the evidence, they have been acquitted from the charge of Section 306 of IPC and on the same evidence they were convicted under Section 498-A of IPC. ( 7. ) ON perusing the FIR, Ex. P-1 it is apparent that same was registered on the basis of the statements of witnesses recorded in the inquiry of the Inquest Intimation. It is apparent fact on record that such statements are neither filed nor proved on record while the FIR is mainly based on such information. ( 8. ) BESIDES this in the entire FIR, I have not found the specific particulars like date time and place, on which the alleged act of cruelty was committed by the appellants with the deceased. According to inquest Panchnama, (Ex. P-2), Karelal (PW-2), Sona Bai (PW-3), the parents of the deceased, Shobha Ram (PW-4), the maternal uncle of the deceased and Durga Prasad (PW-13), a villager were present on the spot on 24. 3. 98 when it was prepared. As per record at the time of preparation of such Inquest Memo or subsequent to it the parents of the deceased had not given any complaint to the Police against the appellants regarding their any act of cruelty with the deceased. 3. 98 when it was prepared. As per record at the time of preparation of such Inquest Memo or subsequent to it the parents of the deceased had not given any complaint to the Police against the appellants regarding their any act of cruelty with the deceased. The aforesaid FIR was registered at the instance of the Police Official S. D. O. (P), Shri Girish Kumar Shukla and not at the instance of any member or the persons of parental family of the deceased. Such lacunas in the case are also giving the circumstance to draw the inference against the conduction and investigation of the persecution case. ( 9. ) IN order to prove the case the prosecution has examined as many as thirteen witnesses, out of them the parents of the deceased namely Karelal, (PW-1) and Sona Bai, (PW-3) have not deposed any incriminating thing with respect of the alleged offence against any of the appellants. They also turned hostile at trial and contradicted their respective case diary statements, Ex. P-3 and Ex. P-5. Accordingly, the story put fourth by the prosecution has not been supported by the parents of the deceased. ( 10. ) RAM Das (PW-2), maternal uncle of the deceased has stated vague facts in para 3 of his deposition saying that Genda Bai was subjected to harassment by her husband and the mother in law, so she committed suicide by setting fire on herself. But in the entire statement he could not state any particulars regarding date place and time of the alleged incident and also the date on which the same was known to him. So his deposition does not appear to be safe for holding the conviction against the appellant no. 1. ( 11. ) BESIDES the aforesaid witnesses, the Ujayari Bai (PW-5)Swarat (PW-6), and Jithua Kotwar (PW-12) are also examined by the prosecution. According to the prosecution soon after the alleged incident such witnesses were reached to the place of incident. Out of them Ujayari Bai (PW-5) stated the only fact about setting fire by the deceased on herself but did not state anything regarding any act of cruelty committed by the appellant with the deceased. She also did not state that anything was stated to her by the deceased. Out of them Ujayari Bai (PW-5) stated the only fact about setting fire by the deceased on herself but did not state anything regarding any act of cruelty committed by the appellant with the deceased. She also did not state that anything was stated to her by the deceased. Swarat (PW-6)who had reached on the spot subsequent to Ujyari Bai also recorded his deposition on the same line with additional fact that the deceased told her that she was subjected to beating at the field with stick by Bedi lal, appellant no. 1 by saying that she is not in a position to deliver a child, hence she must leave the home and should not show her face to him. On the same tune but with some different words Jithua Kotwar (PW-12) also recorded his deposition. While Durga Prasad (PW-13) did not state anything regarding alleged beating of the deceased by the appellant no. 1. ( 12. ) UJAYARI Bai (PW-5) Swarat (PW-6), Jithua Kotwar (PW-12)and Durga Prasad, (PW-13) were present on the spot. But out of them only Jithua Kotwar (PW-12) and Swarat (PW-6) stated that the deceased told them about aforesaid beating by the appellant no. 1 by means of stick while Ujayari and Durga Prasad have not stated anything in that regard. ( 13. ) IN view of such inconsistency of the evidence to find out the truth that on the fateful day whether deceased was beaten by the appellant no. 1 at the field by means of stick, I have gone through the medical evidence to know the nature of the injuries sustained by the deceased. According to the postmortem report, Ex. P-7 and the deposition of Dr. O. P. Dubey, (PW-9) except the burn injuries, no other injuries were found on the body of the deceased. In such circumstance, it could not be inferred that on the date of the incident, the deceased was subjected to beating with stick by the appellant no. 1 at the field. Accordingly the prosecution has failed to adduce any reliable or admissible evidence showing that any point of time earlier to the death of the deceased she was subjected to any act of cruelty committed by the appellant no. 1 with her. ( 14. ) IN view of the aforesaid appreciation of the evidence, the approach and the findings of the trial court holding guilty to the appellant no. 1 with her. ( 14. ) IN view of the aforesaid appreciation of the evidence, the approach and the findings of the trial court holding guilty to the appellant no. 1 under Section 498-A of IPC appears to be perverse and the same requires interference at this stage. Hence, such finding of conviction is hereby set aside. Consequently this appeal is allowed and the conviction and sentence of the appellant no. 1 awarded by the trial court are hereby set aside and he is acquitting from the alleged charge of Section 498-A of IPC. His bail bonds are hereby cancelled. The amount of fine if deposited, the same be refunded to the appellant no. 1. after proper verification. ( 15. ) APPEAL is allowed, as indicated above.