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Madhya Pradesh High Court · body

2009 DIGILAW 784 (MP)

Ram Milan v. State of M. P.

2009-07-07

SUSHMA SHRIVASTAVA

body2009
JUDGMENT 1. Appellant have preferred this appeal challenging their conviction and order of sentence passed by Sessions Judge, Rewa in S.T. No. 228/97, decided on 31.7.99. 2. Appellants have been convicted under Section 498-A of IPC and sentenced to suffer rigorous imprisonment for three years by the impugned judgment. 3. According to prosecution, deceased Buta @ Savita (hereinafter referred to as 'deceased') was married to appellant No.2 Santosh Kumar, son of appellants No. 1 and 3, at the early age of twelve years. Her gauna was performed six years after her marriage. Since then she lived in her matrimonial home at village Dihiya. Appellants used to make unlawful demand for watch and motorcycle from the parents of the deceased and subjected her to cruelty in order to fulfill their demand. This fact was communicated by the deceased to her parents, brother and sister-in-law. As a result of ill-treatment and cruelty meted out to her, deceased committed suicide at her matrimonial home by consuming sulphas on 25.8.97. The intimation of her death was given to the police by her father-in-law, Rammilan (appellant No. I). Merg intimation was recorded at the instance of appellant No.1 and the merg inquest was made. The dead body of deceased was sent for postmortem examination. After merg enquiry, an offence was registered against the appellants and was investigated. After due investigation, appellants were prosecuted under Section 306, 498-A and 304-B/34 of IPC and were put to trial. 4. Appellants denied the charges framed against them under section 498A and 306 of IPC pleading innocence and false implication. 5. After trial and upon appreciation of the evidence adduced in the case, learned Sessions Judge acquitted all the appellants of the charges under section 306 of IPC but found them guilty for committing the offence under section 498-A of IPC, and sentenced them as aforesaid by the impugned judgment. Being aggrieved by the aforesaid conviction and sentence, appellants have preferred this appeal. 6. Learned counsel for the appellants submitted that the trial Court gravely erred in relying upon the inconsistent and contradictory evidence of the related witnesses and erroneously convicted them under Section 498-A without there being any cogent and legal evidence against them. 7. Learned counsel for the State, on the other hand, justified the conviction and sentence of the appellants. 8. Record of the lower Court is perused. 7. Learned counsel for the State, on the other hand, justified the conviction and sentence of the appellants. 8. Record of the lower Court is perused. The conviction of the appellants is founded mainly on the testimony of Jagdish Patel (PW-l), Phoolmati (PW-2) and Sunita Devi (PW-4), who are respectively brother, mother and sister-in-law of the deceased coupled with the evidence of Rajendra Kumar Patel (PW-3). Their evidence is essentially to the effect that deceased made oral complaints to them to ill-treatment and unlawful demand of property by the appellants. 9. PW-l Jagdish Prasad Patel, deposed in his evidence that on her visit to her parental home, deceased had told him, his wife and parents that her husband santosh (appellant No.2) used to make a demand for money and vehicle and subjected her to harassment and threatened her to perform second marriage. According to PW-l Jagdish Prasad Patel, when his sister (deceased) came last on Raksha-Bandhan, she had told that appellants were asking for bringing scooter and money and threatened to kill her in case their demand was not fulfilled; and shortly thereafter her sister had breathed her last. 10. PW-2 Phoolmali, mother of the deceased, also deposed that on coming to her place deceased had told her that appellants used to ask for scooter, gave her beating, deprived her of food and also threatened to kill her. PW-4 Sunita Bai also made similar statement that whenever the deceased came to her parental home, she used to tell that her in-laws were asking for vehicle in dowry and also subjected her to 'mar-peet'. PW-3 Rajendra Kumar also deposed that deceased used to tell him that her in-laws were giving her trouble and asking for money. This witness, however, declined to state anything against appellant No.2, the husband of the deceased and, therefore, he was declared hostile by the prosecution. 11. The aforesaid witnesses were subjected to cross-examination in extenso. Besides there being contradictions in their statements regarding complaints made to them by the deceased with respect to the demand of cash and nature of vehicles, it is apparent from their evidence that their entire testimony is based on the oral complaints allegedly made by deceased to them and none of them in fact witnessed actual physical or mental cruelty allegedly meted out to the deceased by the appellants. There is also no such cogent or dependable evidence that appellants put forth any unlawful demand for cash or vehicle directly from the parents, brother or sister of the deceased. Although PW-2 Phoolmati made a vague statement that appellants had said that on failure to give dowry, they will kill the girl and perform second marriage, but she admitted in her cross-examination that her daughter had undergone a 'tigadda' marriage and dowry is not prevalent in such marriage. She also admitted that there were no negotiations for dowry either before or after the marriage of the deceased and even after her 'gauna'. Thus, her statement made in examination-in-chief that appellants used to demand dowry and threatened to perform second marriage cannot be relied upon. Needless to repeat that her remaining evidence and the evidence of all other related witnesses is based on the oral complaints made by the deceased to her parents and relatives regarding ill-treatment and unlawful demand of property by appellants. 12. The apex Court in the case of Gananath Pattnaik v. State of Orissa reported in (2002) 2 SCC page 619 has held that such evidence, although admissible in respect of the offence under section 3048 by virtue of section 32 of the Evidence Act as it related to the cause of death, is not admissible for the offence punishable under section 498A of IPC and has to be termed as being only hearsay evidence. It would be profitable to refer to the following observations made by their Lordship in the case of Ganallath Pattanik (supra) with reference to the statement made by the deceased to her relatives :- "Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under section 304B and such statement was admissible under clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Such a statement is not admissible in evidence for the offence punishable under section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exception of section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused:' 13. In view of the legal position enunciated above, the evidence of all the four witnesses, namely Jagdish Prasad Patel (PW-l), Phoolmati (PW-2), Rajendra Kumar Patel (PW-3) and Sunita Devi (PW-4) relating to the oral complaints made by the deceased to them against the appellants regarding unlawful demand for money and vehicle and ill-treatment to the deceased was not admissible in evidence for the purpose of offence under section 498A of IPC and thus could not form legal or substantive evidence against them for the said offence. It is pertinent to mention that there has been no State appeal against acquittal of the appellants under section 306 of IPC and no charge under section 3048 of IPC was framed against them. 14. As already stated above, there is no other legal, cogent or direct evidence on record that appellants ill-treated the deceased, subjected her to physical or mental torture or otherwise harassed her making any lawful demand for property. Thus, there being no legal evidence on record against the appellants for the offence under section 498A of IPC, their conviction under section 498A of IPC cannot be sustained and deserves to be set aside. 15. Appeal is, therefore, allowed. The conviction of the three appellants and the sentence awarded to them under section 498A of IPC are hereby set aside and they are acquitted of the charge. Appellants are on bail. Their bail bonds shall stand discharged.