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Madhya Pradesh High Court · body

2009 DIGILAW 74 (MP)

Pravesh v. State of M. P.

2009-01-15

S.S.DWIVEDI

body2009
JUDGMENT 1. The appellant has preferred this appeal aggrieved by the judgment of conviction and sentence dated 21.7.2008 passed by Ninth Additional Sessions Judge, Indore, in Session Trial No.341/2002, whereby held the appellant-accused guilty for the offence under section 306 IPC and also under section 498A IPC and sentenced him to five years RI with a fine of Rs. 1,000/- and two years RI with a fine of Rs.500/- respectively. Both the sentences are ordered to run concurrently. 2. Briefly stated the facts of the case are, the appellant is the husband of deceased Ritu, whose marriage was performed on 8.3.1999 at Indore. It is alleged that after marriage the present appellant together with father-in-law, mother-in-law and brother-in-law (four accused persons) repeatedly harassed the deceased Ritu coupled with demand of dowry. Ritu died due to fall from the running train in between Gosalpur and Devri Station on 3.5.2002. On this information the inquest report had been registered and the dead body of the deceased was sent for post-mortem examination. Thereafter, the father of the deceased Ritu had lodged FIR at Police Station Annapurna, Indore for the alleged harassment and demand of dowry, on which basis the police had registered a case under sections 304B, 306 and 498A of IPC against the present appellant, together with three co-accused Smt. Uma Sharma, Prahlad Sharma, father-in-law and mother-in-law of the deceased Ritu and Pranav, brother-in-law (Devar) of the deceased Ritu. After recording of the evidence the accused persons had been arrested and charge-sheet has been filed. 3. All the accused persons abjured the guilt and their defence is of false implication in this case. The learned trial Court after due appreciation of the evidence on record, acquitted the co-accused Prahlad Sharma, Smt. Uma Sharma and Pranav Sharma from the charge under section 304B, 306 and 498A IPC; also acquitted the present appellant from the charge under section 304B, but held him guilty for the offence punishable under sections 306 and 498A of IPC and sentenced him as stated herein above. Aggrieved by which the appellant has preferred this appeal. 4. Having heard learned counsel for the appellant as well as Government Advocate for the State and perused the record. 5. Aggrieved by which the appellant has preferred this appeal. 4. Having heard learned counsel for the appellant as well as Government Advocate for the State and perused the record. 5. It is submitted by learned counsel for the appellant that admittedly deceased Ritu died due to fall from the running train and prosecution has failed to prove whether the death of deceased Ritu is accidental or she committed suicide and if that being so, the appellant-accused cannot be held guilty for the offence of abetment of suicide punishable under section 306 IPC. It is also on record that at the time of incident the appellant-accused was not travelling in the same train with the deceased Ritu. Her dead body was found near the railway line in between Railway Station Gosalpur and Devri. It is also submitted that as the trial Court itself come to the conclusion that the harassment coupled with demand of dowry is not proved against the present appellant also. Therefore, the appellant-accused is acquitted from the charge under section 304B IPC. On perusal of total evidence on record it is also not proved that immediately before the alleged incident of suicide the appellant-accused has ever instigated the deceased Ritu for the commission of suicide and in such circumstances, the learned trial Court has wrongly held the appellant-accused guilty for the offence under sections 306 and 498A of IPC. Therefore, prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court. 6. In reply, learned Government Advocate appearing on behalf of the State supported the impugned judgment and submits that the prosecution has fully proved the fact that the appellant-accused has harassed the deceased Ritu, due to which she was instigated for commission of suicide and, therefore, she committed suicide by fall from the running train and in view of that, the trial Court has rightly held the appellant-accused guilty for the offence under sections 306 and 498A of IPC and no grounds are available for any interference in the impugned judgment passed by the trial Court. Hence, prayed for dismissal of the appeal. 7. To bring home the charge as levelled against the appellant, first of all with regard to the death of deceased Ritu is concerned, admittedly she died due to fall from the running train in between Gosalpur and Devri Railway Station. The concerning autopsy surgeon Dr. Hence, prayed for dismissal of the appeal. 7. To bring home the charge as levelled against the appellant, first of all with regard to the death of deceased Ritu is concerned, admittedly she died due to fall from the running train in between Gosalpur and Devri Railway Station. The concerning autopsy surgeon Dr. Suresh Kumar Nema, who performed the post-mortem of the dead body of the deceased Ritu, found the damaged dead body. The injury sustained on the dead body may be crushed injury due to fall by running train also and on the basis of the examination opined that he is not in a position to ascertain as to whether the death is homicidal, accidental or suicidal, all the three possibilities are there. Therefore, this can be ascertained only on the basis of the circumstantial evidence as to whether the death of deceased Ritu is suicidal or accidental. 8. On perusal of statement of parents of the deceased namely Dr. Vinod Dixit (PW1), Kamlabai (PW3) and Reena (PW2) the sister of deceased Ritu, they only stated about the unnatural death of deceased Ritu due to fall from the train concerned but they have not stated that at the time of this incident the appellant-accused was also travelling in the same train from where deceased Ritu fell down and died due to fall from the running train. Therefore, on the basis of the statement of these material three witnesses the prosecution has failed to prove the presence of the appellant-accused at the time when the said incident had taken place. Whereas Shambhu Prasad (PW11), Subhash Tiwari (PW12) and Sudarshan (PW14) only proved the fact that a dead body of a lady found near the railway track, for which necessary inquest Panchnama Ex.P-32 had been prepared and they only opined that due to accidental fall the concerning lady may die. The prosecution has also not adduced any such evidence, on which basis this can he inferred that the appellant was also travelling in the same train from where the deceased fell down and died in this incident. Therefore, at the time of incident the presence of the appellant-accused is not proved by the prosecution. 9. Now the fact remains for consideration as to whether the appellant-accused has instigated the deceased Ritu for commission of the suicide or not. The material witness on the point is Dr. Therefore, at the time of incident the presence of the appellant-accused is not proved by the prosecution. 9. Now the fact remains for consideration as to whether the appellant-accused has instigated the deceased Ritu for commission of the suicide or not. The material witness on the point is Dr. Vinod Dixit (PW 1) the father of the deceased, Reena (PW2) the sister of the deceased, and Kavita (PW 4) another sister of the deceased. They only stated that whenever Ritu came to her parental house, she complained about the behaviour of husband, father-in-law and mother-in-law that all of them harassed her and also demanding money from her as dowry. In detailed cross-examination Dr. Vinod Dixit (PW 1), the father of the deceased, admitted the fact that he had not complained against any of the accused to the police with regard to the alleged harassment and demand of dowry by the accused persons. Similarly by the letter alleged to be written by the deceased which is on record as Ex.P-2 the trial Court had also come to the conclusion that in that letter Ex.P-2 the deceased had not made any allegation against any of the accused with regard to the demand of dowry and, therefore, the learned trial Court has acquitted all the accused persons from the charge of dowry death punishable under section 3048 IPC. 10. It is also on record that the deceased Ritu died on 3.5.2002 and for the first time the written FIR had been lodged by PW 1 Vinod Dixit on 10.5.2002, near about seven days after the incident, for which no reasonable explanation is on record why the written FIR had been lodged after considerable period of seven days. 11. In the written FIR the complainant Vinod Dixit had stated about the demand of some money by demand draft for which Vinod Dixit (PW 1) himself admitted in cross-examination that it has been agreed in between the parties to share the expenses incurred in the marriage equally and for that purpose against the share of the expenses incurred in the marriage he had paid certain amount by way of demand draft. In cross-examination para 28 he admitted the fact that the total expenses shown to Rs.1.5 lacs and for which two demand drafts of Rs.70,000/- and Rs.20,000/- have been paid by him as his share with regard to the expenses incurred in the marriage. In cross-examination para 28 he admitted the fact that the total expenses shown to Rs.1.5 lacs and for which two demand drafts of Rs.70,000/- and Rs.20,000/- have been paid by him as his share with regard to the expenses incurred in the marriage. Therefore, on the basis of payment of Rs.90,000/- by way of demand drafts it would not he presumed to be the dowry demanded by any of the accused from the father of deceased Ritu, i.e., Vinod Dixit and on the basis of this admission in the cross-examination the learned trial Court has also come to the conclusion that by way of payment of some money by means of demand draft, this cannot he inferred that these payments were made by complainant Vinod Dixit in lieu of the demand of dowry by any of the accused. 12. Now the only material evidence available against the accused persons is the written letter Ex.P-2 alleged to be written by the deceased Ritu to her parents and her sister. On perusal of this letter Ex.P-2 it is also apparent that she only complained about the behaviour of the appellant that some quarrel took place in between the husband and wife and in view of that, she complained about the behaviour of her husband/present appellant hut by simple allegation which too is made on 23.8.2001 much before the date of incident, this cannot be inferred that due to this misbehaviour the appellant-accused has ever abetted the deceased for commission of suicide. Therefore, on the basis of this written document Ex.P-2 it cannot be inferred that the appellant-accused has ever instigated or abetted the deceased for commission of the suicide. 13. The other witness examined by the prosecution is Leeladhar (PW5), who only stated that he had been informed by Vinod Dixit and his wife Kamlabai that Ritu was complaining about harassment by the in-laws with regard to the demand of dowry but no specific allegation has been made with regard to the demand of dowry, only omnibus allegation has been made against all the accused persons. 14. Udai Kumar (PW6) is the hostile witness. He has not proved anything against the accused persons. Rajesh Jaiswal (PW8) had partly investigated the case and seized the letter and diary as per seizure memo Ex.P-7 and also arrested the accused persons. 14. Udai Kumar (PW6) is the hostile witness. He has not proved anything against the accused persons. Rajesh Jaiswal (PW8) had partly investigated the case and seized the letter and diary as per seizure memo Ex.P-7 and also arrested the accused persons. R.N. Upadhyay (PW9) had registered the FIR as per Ex.P-26 on the basis of the written complaint Ex.P-8 lodged by Vinod Dixit, the father of the deceased. Dayashankar Rawat (PW 10) had recorded the statements of some witnesses and also seized copy of the hank drafts from the concerning bank. Narendra Kumar Soni PW 13) had prepared the list of ornaments as per Ex.P-17 seized by the police. Laxminarayan (PW15) is the bank employee, who had proved the seizure of bank draft as per Ex.P-30. Radheshyam (PW 13A) is also the witness of the seizure memo of draft Ex.P-10 prepared by the police. Manohar Soni (PW14) is the Panch witness of seizure memo Ex.P-16 and P-17 with regard to the ornaments concerned. 15. Pawan (PW 15A) only stated that deceased Ritu wanted to tell him with regard to the harassment by the accused persons hut only omnibus allegation has been made by this witness also. No specific allegation against the appellant is alleged by this witness also. Viraf (PW 16) also stated the same facts that all the accused persons had harassed deceased Ritu and also stated about the demand of some money by means of drafts to the accused persons, for which there is reasonable explanation in the statement of Vinod Dixit (PW 1) also that these drafts were given in lieu of the payment of the expenses incurred in the marriage concerned, for which this cannot he presumed that these drafts were given to the accused persons in compliance with the demand of dowry, if any. 16. Sachin (PW 17) only proved the seizure of the executive diary as per Ex.P-18. 17. Thus. on overall re-appreciation of the entire evidence on record, in my considered opinion, the learned trial Court has rightly come to the conclusion that demand of dowry, coupled with harassment is not proved against any of the accused and thus acquitted all the accused persons from the charge under section 304B IPC but subsequently only on the basis of the alleged harassment held the appellant-accused guilty for the offence under section 306 IPC and also under section 498A IPC. When the trial Court came to the conclusion that demand of dowry and harassment is not proved then certainly the accused-appellant cannot be held guilty for the offence under section 498A IPC also and, therefore, the conviction of the appellant under section 498A IPC also appears to be erroneous. 18. As discussed hereinabove, the appellant-accused was not present at the time of incident when the deceased fell and died. The prosecution has also not proved that the death of deceased is suicidal or accidental. In such circumstances, merely on the basis of the some previous quarrel in the year 2001 as written in the letter Ex.P-2 this cannot be inferred that by that quarrel the appellant-accused has ever abetted the deceased Ritu for commission of suicide and in such circumstances, no presumption can be drawn under the provisions of section 113A of the Evidence Act merely on the basis that Ritu committed suicide within seven years of her marriage with the appellant-accused. 19. On this proposition reliance can be placed on a decision of the apex Court reported in Rajbabu and another v. State of M.P. [2008 AIR SCW 5435], wherein the Hon'ble apex Court considered the conviction under sections 306 and 498A of IPC and held here as under: "15. In the instant case there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon section 113A of the Evidence Act, under which the Court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The Explanation to section 113A further clarifies that cruelty shall have the same meaning as in section 498A of the IPC. Under section 113A of the Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband or any relative of her husband had subjected her to cruelty. Under section 113A of the Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband or any relative of her husband had subjected her to cruelty. Section 113A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in section 498A, IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman." Similarly, the Hon'ble apex Court while interpreting the provisions of 113 of the Evidence Act laid down in another decision of Ramesh Kumar v. State of Chhattisgarh, reported in 2001 (2) BLJ 113= (2001)9 SCC 618 , here as under: "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. 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 113A shows that to attract applicability of section 113A, 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 abovesaid 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 abovesaid three circumstances shall not, like a formula, enable that 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 113A suggests the need to reach a cause-an-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 113A is defined in section 4 of the Evidence Act, which says -- 'Whether 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'." Similarly, in another decision reported in State of West Bengal v. Orilal Jaiswal, reported in (1994)1 SCC 73 , the Hon'ble apex Court while interpreting the degree of proof in criminal trial, held here as under: "15. We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of section 498A, IPC and section 113A of the Indian Evidence Act. Although, the Court's conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials place on record." In view of the aforesaid law laid down by the Hon'ble apex Court and on perusal of the entire prosecution evidence on record, in my considered opinion, the prosecution has failed to prove the fact that immediately before the unnatural death of deceased Ritu due to fall from the running train she had been harassed or instigated by the appellant-accused for the commission of suicide and before that also repeatedly the appellant-accused was demanding dowry and harassing her. Therefore, the finding of conviction recorded by the trial Court is erroneous and liable to be set aside. 20. Resultantly, the appeal preferred by the appellant is allowed. The impugned judgment of conviction and sentence passed by the trial Court is set aside and the appellant is acquitted from the charge under sections 306 and 498A of IPC. The appellant is in custody, he be released forthwith if not required to be detained in any other case.