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Madhya Pradesh High Court · body

2009 DIGILAW 81 (MP)

Meera Bai v. State of M. P.

2009-01-17

K.S.CHAUHAN

body2009
JUDGMENT 1. This appeal was filed by Vyankati and his wife Meera Bai but appellant No.1 Vyankati has died during the pendency of this appeal hence appeal against him has been abated. 2. This criminal appeal under section 374 (2) of the Code of Criminal Procedure has been filed by the appellant being aggrieved by the impugned judgment, finding and sentence dated 27.10.1994 passed by III Additional Sessions Judge, Chhindwara in ST No. 116/1991, whereby the appellant has been convicted under section 306/34 of IPC and sentenced to RI for 4 years with fine of Rs. 500/-, in default of payment of fine RI for 3 months and also convicted under section 498A of IPC and sentenced to RI for 1 year with fine of Rs. 250/-, in default of payment of fine RI for 1 month with the direction to run the sentences concurrently.3. The prosecution case in short is that on 9.3.1991 at about 9:00 accused Vyankati (now deceased) lodged the report at outpost Mohgaon to the effect that his marriage was performed before 16 years with Meera Bai. There was no issue from her, therefore, he performed Gandharv marriage with Tulsi Bai. Meerabai and Tulsi Bai were used to quarrel with each other. Eight days before this incident brother-in-law of Tulsi Bai-Bhaurao (PW 1) subsided the matter between them and no quarrel took place thereafter. On the day of incidence Tulsi Bai was sleeping with him. At about 1:00 p.m. she arose and went out. When she did not return upto 2-3 minutes he seached and heard the sound of falling in the well. He cried. The neighbours Rupchand Paradkar, Natthu Patil, Madhu Baniya and many other persons came there but the body could not be taken out from well because of darkness. On this information marg intimation No.7 /91 under section 174 of CrPC was registered. The body was taken out from the well. Panchanama of dead body was prepared.The dead body was sent for postmortem examination which was conducted by Dr. Yashwant Silledar, Assistant Civil Surgeon, Lodhikheda. According to his opinion the cause of death was asphyxia . as a result of drowning. Duration was within 36 hours from the postmortem examination. The FIR under section 306/34 of IPC was registered at Police Station Saunsar on 26.3.1991. The statements of the witnesses under section 161 of CrPC were recorded. The accused persons were arrested. According to his opinion the cause of death was asphyxia . as a result of drowning. Duration was within 36 hours from the postmortem examination. The FIR under section 306/34 of IPC was registered at Police Station Saunsar on 26.3.1991. The statements of the witnesses under section 161 of CrPC were recorded. The accused persons were arrested. After completing the usual investigation the charge sheet was filed in the Court of Additional Chief Judicial Magistrate Saunsar who committed the case to the Sessions Court for trial. 4. The appellant was charged under section 306 and 498A read with section 34 of IPC. She denied the guilt and claimed to be tried mainly contending that she is innocent. Prosecution examined as many as 8 witnesses whereas the appellant also examined 2 witnesses in her defence. After appreciating the evidence trial Court found appellant guilty under section 306 and 498-A r/w section 34 of IPC and sentenced thereto as stated hereinabove in para No.2 of this judgment. Being aggrieved by the impugned judgment of conviction the instant appeal has been preferred by the appellant on the grounds mentioned therein. 5. Learned counsel for the appellant submitted that trial Court has not appreciated the evidence in proper perspective. The prosecution has produced only the interested and partisan witnesses. There is no independent witness to support the prosecution case. There is no evidence regarding subjecting her cruelty for demand' of dowry. Only general and vague allegations have been made regarding ill-treatment which are not sufficient to constitute the offence under section 306 and 498A of IPC. Allegations were only against Vyankati who has died. : Tilsi Bal was not legally wedded wife of Vyankati, therefore, section 498A is not applicable. This appellant was also harassed by Vyankatl and her father lodged the report against him. Therefore, there is no question to. harass Tulsi Bai by her. Learned counsel further submitted that prosecution has failed to prove the case beyond reasonable doubt against his appellant, therefore the finding of guilt is erroneous Which deserves to be set aside and the appellant is entitled for acquittal. 6. On the contrary, Shri T.K. Modh, learned Deputy Advocate General appearing an behalf of the respondent-supported the impugned judgment, finding and sentence mainly contending that Tulsl Bai was harassed by this appellant also. The reason for harassment was she became pregnant. 6. On the contrary, Shri T.K. Modh, learned Deputy Advocate General appearing an behalf of the respondent-supported the impugned judgment, finding and sentence mainly contending that Tulsl Bai was harassed by this appellant also. The reason for harassment was she became pregnant. She has met with an unnatural death in the house of Vyankati and there is no explanation for the same. The prosecution has established the guilt beyond reasonable doubt. She has rightly been convicted and sentenced hence does not call for any interference. 7. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under sections 306 and 498A/34 of IPC? 8. Tulsi Bai was not wedded wife of Vyankati. It is said that he performed Gandharv marriage with her. Appellant Meerabai was his wedded wife and during her life time he brought Tulsi Bai and kept her as his wife. Therefore, there is no question of demand of dowry by this appellant. Moreover, she herself was in trouble , Dondhya (pw 5)father of this appellant lodged the report Ex. P-3 against Vyankati regarding causing harassment to this appellant. There is evidence of Dondhya (PW 5) and Bhaiyaji (PW 6) in this regard. Lalmani Tiwari (PW 7) has also deposed that Dondhya (PW 5) lodged report Ex. P-3 against Vyankati in rojnamcha sanha. It goes to show that Vyankati-husband of this appellant was not keeping well this appellant. 9. As per provisions of section 498A of IPC the woman ought to have been subjected to cruelty by her husband or his relatives. So far as the present appellant is concerned, there is no evidence that she ever demanded the dowry and harassed her for that count hence offence under section 498A of IPC is not made out against her. In the facts and circumstances of this case there is no question of harassment. 10. So far as offence under section 306 of IPC is concerned, there must be an abetment to commit suicide. What is the evidence in this regard requires to be considered. 11. Archana (PW 2) is the daughter of deceased Tulsi Bai from her former husband Shyamlal. She has deposed that accused persons used to beat her mother and on the day of incidence also she was beaten by them. She has been contradicted from her earlier police statement Ex. What is the evidence in this regard requires to be considered. 11. Archana (PW 2) is the daughter of deceased Tulsi Bai from her former husband Shyamlal. She has deposed that accused persons used to beat her mother and on the day of incidence also she was beaten by them. She has been contradicted from her earlier police statement Ex. D2 wherein she has not stated that accused persons used to harass her. She has also not given evidence that this appellant caught hold of her mother. She has given the evidence that this appellant kicked her mother but this fact does not find place in her police statement and she is giving such evidence for the first time in Court. She is a child witness of 5 years age. The incident is of the dead night. Tulsi Bai was sleeping with Vyankati. There is no evidence that this witness was also sleeping with them. Therefore, in such circumstances, there was no possibility of seeing the beating of deceased by this witness. She is a child witness and the possibility of her being tutored cannot be ruled out. No reliance can be placed on her evidence. 12. Natthu (PW 3) is also claiming to be an eye witness who has stated that accused persons killed Tulsi Bai and threw her in the well. But this fact was not told to the police. Thus he is also deposing such fact for the first time before Court and exaggerating his statement. 13. Though he has denied the suggestive questions regarding enmity with this appellant but Janglya (DW 1) has given the evidence that there was dispute in between the wife of Natthu (PW 3) and this appellant on taking water from public hand pump. Thus it is established that he was in inimical terms with this appellant and possibility of giving evidence against her on that count cannot be ruled out. Apart from it the incident being of dead night and he was not present in the house of accused persons there was no possibility to see the incident by him. In such circumstances, no reliance can be placed on his evidence. 14. Narayan (PW 4) and Bhaurao (PW 1) are relatives of deceased Tulsi Bai who have deposed that accused persons used to cause marpeet and harass her. Contradictions and omissions have been brought on record from their earlier statements. In such circumstances, no reliance can be placed on his evidence. 14. Narayan (PW 4) and Bhaurao (PW 1) are relatives of deceased Tulsi Bai who have deposed that accused persons used to cause marpeet and harass her. Contradictions and omissions have been brought on record from their earlier statements. On appraisal of their evidence it appears that they are giving such evidence after the death of Tulsi Bai because they did not lodge any report or made any complaint or convened any panchayat in this regard. Since they are interested witnesses, making only the bald statements, therefore, no reliance can be placed on their evidence. 15. The report was not lodged by any of the relatives of Tulsi Bai but Vyankati himself informed the police thereafter police came in motion and prepared panch nama of dead body and sent it for post mortem examination which was conducted by Dr. Yashwant Silledar (PW 8) who found that the cause of death was unnatural but the autopsy surgeon did not find any mark of injury on her body, therefore, the evidence that she was beaten by accused persons and thrown in the well is not acceptable. Jangalya (DW 1) and Govardhan (DW 2) both have given the evidence that accused persons never caused marpeet or harassed Tulsi Bai. Their behavior was cordial with Tulsi Bai hence they support the defence plea that no marpeet or harassment was done by this appellant. 16. As stated earlier, the evidence was only against Vyankati who has died during the pendency of this appeal. The evidence against this appellant is not sufficient to prove the guilt against her beyond reasonable doubt hence the finding of guilt is erroneous which deserves to be set aside and appellant is entitled for acquittal. 17. Consequently, the appeal of this appellant Meera Bai succeeds and is allowed. The conviction and sentence passed by the trial Court under sections 306/34 and 498A of IPC are hereby set aside. The appellant is acquitted from all the charges levelled against her. She is on bail. Her bail bonds are discharged. 18. Appellant Vyankati had died during the pendency of appeal, hence appeal against him stands abated.