Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 820 (MP)

KOMAL SINGH v. STATE OF MADHYA PRADESH

2009-07-20

U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellants being aggrieved by the judgment and decree dated 21. 9. 98 passed by the Additional Sessions Judge, Harda in sessions Trial No. 185/96 convicting and sentencing to each of them, under Section 304-B/34 and 306/34 of IPC for RI seven years separately in both the sections with a direction to run the same concurrently, have filed this appeal. ( 2. ) THE case of the prosecution in short is that on dated 8. 10. 95 at about 3 oclock in the noon one Ramadhar, son of Sattu, village watchman of Mahendragaon came and informed to Police, Sirali regarding unnatural death of Sunitabai, w/o Gopal Singh, on which merge intimation, (Ex. P-1) was registered, according to which today at about 8. 00-8. 30 in the morning he was informed by one Dariyab Singh that house of his younger brother Gopal Singh is locked and Gopal singh is also not found there. But the voice regarding weeping of his daughter Seema is coming out from the home, on which he accompanied with Dariyab Singh went to such place and found that the house of Gopal Singh was locked. Inspite giving call they did not receive any response from inside, on which by removing the tiles of the roof, on observing inside the room, he saw that Sunita Bai, w/o gopal Singh, (the appellant no. 3) and Seema, D/o of appellant no. 3 from the previous wife were sleeping in such room on separate cot. He informed such thing to various villagers who assembled there and gave a call to inside persons, in response they heard only the Seemas voice of weeping, on which the lock of such door was broken. On entering inside, they saw the Seema standing in the courtyard while Sunita was lying dead on a cot. The white spit was also present on her mouth and nose. Some substance of vomiting was also lying on the floor while gopal Singh was not found there. It is further mentioned that Gopal singh got married with Sunita Bai before 5-6 months ago. As per merge intimation the cause and mode of such death was unknown. After registration of the merge in its enquiry after preparing Inquest panchanama, Ex. Some substance of vomiting was also lying on the floor while gopal Singh was not found there. It is further mentioned that Gopal singh got married with Sunita Bai before 5-6 months ago. As per merge intimation the cause and mode of such death was unknown. After registration of the merge in its enquiry after preparing Inquest panchanama, Ex. P-2, spot map and seizure memo, the dead body was sent to hospital where on carrying out the postmortem, as per opinion of the doctor the mode of death was found to be asphyxia, probably by poisoning. However the viscera was preserved for chemical examination. In further enquiry, on recording the statements of the parents and brother of the deceased it was revealed that the deceased when alive was subjected to cruelty and the harassment by the appellants on accounts of demand of dowry while residing in the matrimonial home, on which FIR for the offence under Section 304-B/34 IPC was registered against the appellants and after holding investigation they were charge sheeted for such offence. ( 3. ) TAKING into consideration the charge sheet on framing the charges of Section 304/34 and 306/34 of IPC, the appellants abjured the guilt, on which the trial was held, on appreciation, after holding them guilty, they have been convicted and sentenced as referred to above. The same is under challenge in this appeal. ( 4. ) SHRI Surendra Singh, learned Sr. Adv after taking me through the evidence, available on record, said that the prosecution has utterly failed to prove by cogent and reliable evidence that Sunita Bai was ever subjected to any act of cruelty committed by the appellants or any of them, either on account of any demand of dowry or otherwise by their conduct. In the lack of such evidence, no inference could be drawn against the appellants that any of them have committed any cruelty which instigated the Sunita Bai to commit suicide. He specifically argued that the deceased was never abetted by the appellants for committing suicide. In the lack of such evidence, no inference could be drawn against the appellants that any of them have committed any cruelty which instigated the Sunita Bai to commit suicide. He specifically argued that the deceased was never abetted by the appellants for committing suicide. He further said that at the initial stage in the enquiry of inquest intimation when inquest Panchanama was being prepared, the parents and brother of the deceased, namely Phool singh (PW-3), Rukmanibai (PW-8) and Umed Singh, (PW-9) were present and signed the same, but did not make any complaint regarding any offending act or conduct of the appellants to the Police officers present there. Even subsequent to it, they have not made any complaint in this regard at their instance. Only on the basis of inquest inquiry the offence was registered. It was also argued that in the lack of admissible and cogent evidence with respect of the act of cruelty the provision of presumption enumerated under Section 113-A and 113-B of Evidence Act could not be invoked, although Sunita Bai died unnatural death within seven years from the date of her marriage. He further said that the appellant no. 3 Gopal Singh has one daughter, seema Devi, from his earlier wife, whom the deceased did not want to look after. Because of that reason or subsequent to marriage the appellants came to know that she was pregnant prior to the marriage with the appellant no. 3, on which some query was made from her, on which she became aggrieved. It appears that due to aforesaid any of the reasons she might have committed suicide. But such reasons could not be termed to be the cruelty of any nature or the act of abetement to commit suicide and prayed for acquittal of all the appellants. It was also argued that as per deposition of the father of the deceased except the appellant no. 3, Gopal Singh, all other appellants were residing separately and not with the family of the Gopal Singh. Their properties had also separated long back. In such premises, the conviction of the appellant no. 1, 2 and 4 is not sustainable and prayed for acquittal of the appellants by allowing the appeal. ( 5. ) ON the other hand, while responding the aforesaid arguments Shri T. K. Modh, learned Dy. Their properties had also separated long back. In such premises, the conviction of the appellant no. 1, 2 and 4 is not sustainable and prayed for acquittal of the appellants by allowing the appeal. ( 5. ) ON the other hand, while responding the aforesaid arguments Shri T. K. Modh, learned Dy. Advocate General by justifying the findings of the impugned judgment said that the same are based on proper appreciation of the evidence and is also in conformity with law. It does not require any interference at this stage and prayed for dismissal of the appeal. ( 6. ) AFTER hearing the parties at length, I have gone through the record and also perused the impugned judgment. ( 7. ) IT is undisputed fact on record that Sunita Bai got married with the appellant no. 3 Gopal Singh after demise of his first wife. Such sunita Bai died with unnatural death by consuming some poisonous substance within six months from the date of her marriage. In order to prove the suicidal death of Sunita Bai, her postmortem report, Ex. P-11 has been proved by Dr. Kailash Singh, (PW-4) who carried out the same. According to his deposition and report Sunita Bai died with the mode of asphyxia due to poisonous substance. This testimony is not challenged by the appellants in his cross examination. Therefore, such findings being unrebutted on record do not require any interference, hence the same are hereby affirmed. ( 8. ) COMING to consider the question whether the deceased sunita Bai was ever subjected with any act of cruelty defined under section 498-A of IPC by the appellants or any of them, law is very clear on the question that if such offending acts are found to be proved against the accused beyond reasonable doubt, only then the provision of presumption enumerated under Section 113-A and 113-B of the evidence Act could be invoked to convict such accused under Section 304-B and 306 of IPC, otherwise not. ( 9. ) RAMADHAR (PW-1), the informer of the merge intimation, Ex. P-1 has deposed that appellant no. 3 Gopal Singh got married with sunita Bai in mass marriage ceremony of their community, except this he did not state anything with respect of any act of the cruelty committed by the appellants with the deceased or regarding abatement to her for committing suicide by them. P-1 has deposed that appellant no. 3 Gopal Singh got married with sunita Bai in mass marriage ceremony of their community, except this he did not state anything with respect of any act of the cruelty committed by the appellants with the deceased or regarding abatement to her for committing suicide by them. He further stated that appellant no. 3, Gopal Singh and his brother Darayab Singh are residing separately since last 3-4 years after their partition of the property. Since then the appellant no. 1 Komal Singh and his wife Geeta Bai, appellant no. 2 are also residing with Dariyab Singh appellant no. 4. According to this witness on the date of incident appellant no. 3 Gopal singh alongwith his daughter, Seema from the earlier wife was residing with the deceased. In para 15 of cross examination this witness further stated that Sunita Bai never made any complaint to him regarding any act of harassment or cruelty committed with her by Gopal Singh either on account of demand of dowry or otherwise. It has also come in his deposition that Gopal Singh was residing separately even before solemnization of marriage with Sunita Bai. Accordingly this witness has not stated anything connecting the appellants with the alleged offence. ( 10. ) SHRIRAM, (PW-2), resident of same village, although turned hostile, but in cross examination in para 6 he stated that the appellant no. 3 Gopal Singh and appellant no. 4 Dariyab Singh had separated and their property was also partitioned. Subsequent to it, their parents, appellants Komal Singh and Geeta Bai were residing with Dariyab singh in his family. ( 11. ) THE Sarpanch of the village Govind Prasad Rathore, (PW-3), deposed that Sunita Bai was the second wife of Gopal Singh, appellant no. 3 and Gopal Singh was residing separately from the other appellants. Their land and other properties were also partitioned between them. The family of the appellant no. 3 and other appellants had separate entity even earlier to the alleged marriage of Gopal Singh with Sunita bai. ( 12. ) PHOOL Singh, (PW-7), the father of the deceased in his chief has stated that his daughter Sunita Bai was married with the appellant no. 3 before six months from the date of her death in a Mass Marriage function of the community. Subsequent to marriage she visited his house for 2-3 occasions. ( 12. ) PHOOL Singh, (PW-7), the father of the deceased in his chief has stated that his daughter Sunita Bai was married with the appellant no. 3 before six months from the date of her death in a Mass Marriage function of the community. Subsequent to marriage she visited his house for 2-3 occasions. On such visit she told him that Gopal Singh is demanding T. V. And vehicle saying that whatsoever has been given, the same is not sufficient. He further said that for three months his daughter was remained happy in matrimonial home. Subsequent to it she was subjected to demand of T. V. and some vehicle and in that connection she was harassed, as told by the deceased. According to this witness she was harassed by Komal Singh and mother in law. However, he accepted that inspite of such complaint he did not talk to any of the appellants in this connection. In the cross examination on asking about his financial capacity, he stated that he being marginal former his family is working as labourers. On asking the question with respect of the defence of the appellants that Sunita Bai did not want to look after Seema, the daughter of first wife of the appellant no. 3 and secondly she was already pregnant at the time of marriage from some other person and asking about the same, due to such reasons she might have committed suicide, the witness has categorically stated that his daughter has not committed suicide because of such suggested reasons. But in para 13 of the deposition this witness has deposed in the following manner: -. . . (Other Language Omited ). . . According to it, in the life time of Sunita Bai this witness had not made any complaint with respect of demand of T. V. or vehicle by the appellant Gopal Singh or regarding any harassment given by the other appellants with further statement that how could I complain when no such incident was happened. He also stated about the higher status and financial capacity of the appellants family in comparison of his family. It shows that even before marriage with Sunita Bai, the fact regarding poverty of her parental family was known to the appellant no. 3 Gopal Singh and other family members. Inspite knowing such fact he got married with her in Mass Community Marriage Function. It shows that even before marriage with Sunita Bai, the fact regarding poverty of her parental family was known to the appellant no. 3 Gopal Singh and other family members. Inspite knowing such fact he got married with her in Mass Community Marriage Function. However, he could not explain the reason regarding omissions of the material facts in his case diary statements, (Ex. D-2), with respect of making demand of T. V. and vehicle made by the appellants. ( 13. ) APART the abovesaid Phool Singh, (PW-2) in his entire deposition could not disclose any date, time or the place and also the manner in which Sunita Bai was either harassed with an act of cruelty or abetted for committing suicide by the appellants or any of them. ( 14. ) SMT. Rukmani Bai (PW-8), the mother of the deceased also deposed in the same tune as stated by Phool Singh. However, she also could not state any date, place or time, on which or the manner in which any cruelty with the deceased was committed by the appellants or any abetement for committing suicide was given to her by them. Some material contradictions and omissions from her case diary statement. (Ex. D-3) have also come in para 7 of her cross examination. However, she denied the aforesaid both the suggested reasons to commit suicide by her daughter, the pregnancy before marriage or she was not ready to look after the daughter of earlier wife of the appellant no. 3. In para 9 she categorically stated that in the life time of Sunita Bai, they did not make any complaint to anybody against any of the appellants regarding any demand of dowry or any harassment committed with her daughter by them. ( 15. ) UMED Singh, (PW-9), the brother of the deceased also deposed on the same tune with some wage allegations regarding demand of dowry but he could not state any date, place of the time or the manner in which the alleged offending act was committed by the appellants or any of them. Some of the omissions on material fact from his case diary statement, (Ex. D-4) has also come in his cross examination which is adversely affecting the case of prosecution. ( 16. Some of the omissions on material fact from his case diary statement, (Ex. D-4) has also come in his cross examination which is adversely affecting the case of prosecution. ( 16. ) BESIDES the aforesaid witnesses, other examined witnesses namely Gendalal, (PW-5), Patiram, (PW-6) and Lakhan Lal, (PW-10)deposed regarding death of Sunita Bai and also about the place where the dead body was lying in the house but they have not stated or alleged any incriminating thing against any of the appellants. ( 17. ) IN view of the aforesaid depositions of the examined witnesses it has been proved that the appellant no. 3 Gopal Singh was residing separately from the other appellants even from the time of prior to his marriage with Sunita Bai and his property was also separated from the family, I am of the considered view that such evidence of the prosecution could not be ignored by the trial court and on considering the same the appellant no. 1, Komal Singh, appellant no. 2, Smt. Geeta Bai and appellant no. 4 Dariyab Singh could not be held guilty for the alleged offence. In such premises, the conviction and sentence of the appellant no. 1, 2 and 4 is held to be contrary to the evidence available on record. In such premises, the findings of the trial court convicting and sentencing the appellant no. 1, 2 and 4 are set aside and they are acquitted from the alleged charges. ( 18. ) COMING to consider the sustainability of the conviction of the appellant no. 3 Gopal Singh is concerned, in view of the para 13 of the deposition of Phool Singh, (PW-3), the father of the deceased, as stated above and also the depositions of the mother and brother of the deceased, it could not be said that the deceased was ever subjected to any type of cruelty defined under Section 498-A of IPC either on account of subjected to demand of dowry or by any willful conduct of the appellant no. 3 and was also not subjected to any act of the abetement for committing suicide by such appellant. The prosecution has failed to prove any date, place, time or the specific incidents with material particulars of such offending act of the appellant no. 3. 3 and was also not subjected to any act of the abetement for committing suicide by such appellant. The prosecution has failed to prove any date, place, time or the specific incidents with material particulars of such offending act of the appellant no. 3. In the lack of such evidence merely on wage allegations it could not be held that any such act was committed by the appellant no. 3 and consequently Sunita had committed suicide. ( 19. ) THE room in which the dead body of Sunita Bai was found was locked is concerned, it is suffice to say that there is sufficient evidence on record showing that such room was being used by the other door situated inside of the house. Therefore, on such ground no inference could be drawn against the appellant no. 3. ( 20. ) BESIDES the above, it appears from the record that immediately after registering the inquest intimation the Police Official went to the place where the dead body of Sunita Bai was lying. Phool singh, (PW-7), Rukmani Bai (PW-8) and Umed Singh, (PW-9), the parents and the brother of the deceased were present there. In their presence the inquest panchanama, Ex. P-2, spot map and the seizure memo of the things found at such place were also prepared. At that time no complaint was made by the parents and the brother of the deceased, stating that deceased was ever subjected by the appellant no. 3 with any act of cruelty while residing in the matrimonial home. It is noted that at the time of preparation of inquest panchanama and also on carrying out the postmortem no external injury was found on her body. In such premises, it could not be deemed that soon before the death, the deceased was subjected to any physical cruelty by the appellant no. 3. Apart this in the evidence available on record, I have not found the circumstances showing that soon before the death the deceased was subjected to any act of cruelty or harassment by the appellant no. 3. In the merge enquiry the parents and the brother of the deceased were interrogated after four days from its registration, while they were present on the spot and did not make any complaint or statement against the appellant when Police Came to the place of incident on first day when inquest panchanama was prepared. 3. In the merge enquiry the parents and the brother of the deceased were interrogated after four days from its registration, while they were present on the spot and did not make any complaint or statement against the appellant when Police Came to the place of incident on first day when inquest panchanama was prepared. Besides this, it is also apparent that even after interrogation of the witnesses of the parental family of the deceased in inquest the offence was not registered immediately, the same was registered after some days. Such circumstances have made the prosecution case suspicious. ( 21. ) IT is settled law that in the lack of evidence showing that the deceased was subjected to cruelty on account of demand of dowry soon before her death within seven years of her marriage by the husband or his relatives, then the provision of presumption enumerated under Section 113-B of the Evidence Act could be invoked against the accused holding him guilty under Section 304-B of IPC. Such question is answered by the Apex Court in the matter of Hiralal an others Vs. State (Govt. of NCT), Delhi, reported in AIR 2003 Supreme court, 2865 in which it was held as under :- "9 A conjoint reading of S. 113-B of the evidence Act and S. 304-B I. P. C. shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances. The expression soon before is very relevant where S. 113-B of the Evidence Act and S. 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. ( 22. ) SO far conviction under Section 306 of IPC is concerned, the appellant no. 3 could be convicted under such Section only on proving the ingredients of the alleged abetement for committing the suicide to the deceased Sunita by the appellant, otherwise not. ( 22. ) SO far conviction under Section 306 of IPC is concerned, the appellant no. 3 could be convicted under such Section only on proving the ingredients of the alleged abetement for committing the suicide to the deceased Sunita by the appellant, otherwise not. In the deposition of the parents of the deceased and other available evidence, it has not been proved that deceased was instigated at any point of time by the appellants for such thing or the appellant was involved in any conspiracy whereby the deceased proceeded to commit suicide or he has provided any criminal aid to the deceased in that respect. Besides this in the lack of the evidence of cruelty the provision of presumption enumerated under Section 113-A could also be not invoked for holding the conviction of the appellant no. 3 under Section 306 of IPC. In such premises, the conviction of the appellant no. 3 can not be sustained and the same is set aside. ( 23. ) IN the aforesaid premises, the finding of the trial court holding guilty to the appellants is held to be perverse, illegal and contrary to the record. The same is not sustainable. ( 24. ) THEREFORE by allowing this appeal the judgment of the trial court is set aside. Consequently the conviction and sentence awarded to the appellants are also set aside. Their bail bonds are hereby discharged. ( 25. ) THE appeal is allowed, as indicated above.