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Madhya Pradesh High Court · body

2009 DIGILAW 80 (MP)

Meera Bai v. State of M. P.

2009-01-16

B.M.GUPTA

body2009
JUDGMENT 1. Feeling aggrieved with the judgment dated 7th June, 2002 rendered by the Additional Sessions Judge, Ganj Basoda, District Vidisha (M.P.) in Sessions Trial No. 34/2002, the appellants have preferred this appeal, whereby the learned Judge while acquitting the appellants from the charge under section 302 or 302/34 of IPC and under section 304-B of IPC or 304-B/34 of IPC, has convicted the appellants for the offence punishable under section 306 of IPC and has imposed 10 years' rigorous imprisonment alongwith fine of Rs. 100/- on each of the appellants. 2. The facts, in brief, are that on 8th November, 2001, Ramkunwar Bai died due to burn injuries. The appellants are mother-in-law and husband respectively. After receiving the information, marg No. 71/01 was registered against the appellants for the offence punishable under section 304-B/34 of IPC at police station Ganj Basoda, District Vidisha. After completing the investigation, challan was filed. The case was committed and appellants have been tried for the aforesaid offence alongwith offence of murder under section 302 of IPC or 302/34 of IPC but they have been acquitted by the learned Judge from the aforementioned charges and without there being a charge under section 306 of IPC, they have been convicted and sentenced as aforesaid. 3. The only contention of Shri R.K. Goyal, learned advocate appearing on behalf of the appellants is that admittedly there was no charge under section 306 of IPC and the appellants were not tried for the same. The offence under section 306 of IPC is not minor offence of the offences of murder or dowry death which is punishable under sections 302 and 304-B of IPC. Hence, even with the aid of the provision mentioned in section 222 of CrPC, they could not be convicted for the aforementioned offence. He has further submitted that not only no charge was framed for that offence, but no questions or incriminating circumstances in that regard, were put to the appellants during their examination under section 313 of CrPC. In that way the appellants have become prejudiced. Hence, they deserve acquittal. 4. Shri Praveen Newaskar, learned Public Prosecutor appearing on behalf of State has frankly admitted that it is true that with regard to this offence, no incriminating circumstances were put to the appellants before the trial Court during recording of their statements under section 313 of CrPC. In that way the appellants have become prejudiced. Hence, they deserve acquittal. 4. Shri Praveen Newaskar, learned Public Prosecutor appearing on behalf of State has frankly admitted that it is true that with regard to this offence, no incriminating circumstances were put to the appellants before the trial Court during recording of their statements under section 313 of CrPC. But, at the same time he has submitted that when the charges under sections 302 and/or 304-B of IPC were framed and the appellants have been tried for the same, they could very well be convicted under section 306 of IPC, if it is proved. He has also submitted that if the Court comes to the conclusion that the conviction cannot be maintained as there was no charge, the case may be remanded. 5. On perusal of para 41 of the impugned judgment, it appears that the learned Judge has followed the observations of the apex Court in the case of Shamnsaheb M. Multtani v. State of Karnataka, 2001 (1) Supreme 348 and has observed that the apex Court has considered that if the offence of murder is not proved, then in that case, in absence of charge under section 304-B of IPC, an accused can be convicted for that offence. On perusal of this judgment, it appears that the apex Court has observed that when charge under section 302 of IPC is framed, conviction under section 304-B of IPC is permissible, provided accused is offered an opportunity to discharge his burden by putting him notice regarding prima facie view of the Court that he is liable to be convicted under section 304-B of IPC. In that case, the Court further observed that as the accused was not put to notice of that offence, hence, the case was remanded. But here in this case, conviction is not under section 304-B of IPC from the charge under section 302 of IPC. In the present case question is different as mentioned herein-above. In the case of Virendra Kumar v. State of U.P., 2007 AIR SCW 854, it is observed by the apex Court that when charge under section 302 of IPC has been framed, conviction under section 306 of IPC is not improper. Provided circumstances relatable to section 306 of IPC was clearly put to accused during his examination under section 313 of CrPC. Provided circumstances relatable to section 306 of IPC was clearly put to accused during his examination under section 313 of CrPC. As admitted on behalf of the State, this aspect is lacking in the present case. In another case of Harjit Singh v. State of Punjab [2006 (I) MPWN 125 = (2006) 1 SCC 463 ] it is observed by the apex Court that the argument that when the charge under section 304-B of IPC is framed and if the accused cannot be convicted for that offence, he can still be convicted under section 306 of IPC, cannot be accepted. Such plea cannot be allowed to be raised for the first time before the Court unless charge under section 306 of IPC is made out from materials on record. 6. Considering the aforementioned observations of the apex Court in the case of Harjit Singh (supra), now it is to be seen whether in the present case, on the basis of evidence available on record, conviction under section 306 of IPC can be sustained. As further observed by the apex Court in the same case, before invoking the provisions of section 306 of IPC, it is necessary to establish that: (I) the deceased committed suicide, and (II) She had been subjected to cruelty within the meaning of section 498-A of IPC. Only in the event those facts are established, a presumption in terms of section 113-A of the Evidence Act could be raised. It is observed by the learned Judge in para 16 that prosecution has not proved the fact that the appellants were harassing the deceased regarding demand of dowry. It is also observed by the learned Judge in para 6 that Lalata Bai (PW 1) Kadori (PW 2), Halke Singh (PW 3), Rajjo Bai (PW 4) were not present at the time of incident. Hence, they are not material to be considered. Mahesh Dubey (PW 5) and Rakesh Yadav (PW 6), who are neighbours, were present at the time of incident. On perusal of the statements, it only appears that just before the incident there was a dispute in the family in between the appellants and the deceased. Some hot talks were heard therefrom but for those hot talks, the appellants alone were responsible or they were instigating the deceased for commission of suicide, it does not appear, because instigation to commit suicide. Some hot talks were heard therefrom but for those hot talks, the appellants alone were responsible or they were instigating the deceased for commission of suicide, it does not appear, because instigation to commit suicide. is also a material aspect required to be proved against the appellants. As stated by Mahesh Dubey (PW 5) that he heard a noise "bachano bachano". but Dr. K.K. Shrivastava (PW 7) in para 3 has stated that he did not find any external injury over the dead body of the deceased. This witness opined that the death of the deceased was on account of burn. He has not mentioned that it was a case of suicide. Even in the evidence it does not appear that there was any instigation on the part of the appellants to the deceased for committing suicide. In view of these circumstances and also the fact that no material questions were put to the appellants under section 113 of CrPC, the conviction of the appellants cannot be sustained. 7. Considering the nature of the evidence on record, remanding the case is not required as submitted by Shri Praveen Newaskar on behalf of State. 8. In view of all, as observed herein above, the appeal allowed. The conviction of the appellants is set aside.