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Madhya Pradesh High Court · body

2009 DIGILAW 918 (MP)

BHARAT s/o TULSIRAM v. STATE OF M. P.

2009-08-03

N.K.MODY

body2009
JUDGMENT : 1. Being aggrieved by the judgment dated 2-2-2008 passed by Sessions Judge, Dewas in ST No. 115/2007 whereby the appellants were convicted for an offence punishable under section 306 of Indian Penal Code by sentencing them to undergo 5 years imprisonment with fine of Rs. 10,000/- each, the present appeal has been filed. 2. In short the case of prosecution was that on 6-4-2007 at about 4-15 PM Smt. Krishnabai died at M. Y. Hospital, Indore due to burn injuries which was caused by the appellants after pouring Kerosene. Further case of the prosecution was that after the incident the patient was brought to M.G. Hospital, Dewas where the complaint was lodged and patient was referred to M.Y. Hospital, Indore. Further case of prosecution was that after the death of Smt. Krishnabai case was registered at Police Station-Saiyogitaganj, Indore and after investigation the challan was filed against the appellants for an offence punishable under section 306 of Indian Penal Code and in alternative section 302 of Indian Penal Code and under section 3/34 of Dowry Prohibition Act. After framing of charges and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed. 3. Learned counsel for the appellant submits that appellant No. 1 is the husband of deceased and appellants Nos. 3 and 4 are the parents of appellant No. 1 and appellant No. 2 is the younger brother of appellant No. 1. It is submitted that the learned Court below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this appeal. It is submitted that the learned Court below committed error in not considering material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that in view of the aforesaid facts the appeal filed by the appellant deserves to be allowed and the judgment of conviction deserves to be set aside. 4. In alternative, it is submitted that appellants are poor persons. It is submitted that in view of the aforesaid facts the appeal filed by the appellant deserves to be allowed and the judgment of conviction deserves to be set aside. 4. In alternative, it is submitted that appellants are poor persons. It is submitted that appellant No. 1 was in jail w.e.f. 29-4-2007 to 29-7-2007 during trial and again in jail w.e.f. 2-2-2008 and has completed the jail sentence of 18 months, while appellant No. 3 is also in jail and has completed roughly the same period as he could not arrange to furnish bail bonds, in spite of the fact that appellant No. 3 was released on bail on 10-4-2008. So far as appellant No. 2 who happens to be brother of appellant No. 1 is concerned, appellant No. 2 and appellant No. 3 were in jail w.e.f. 29-4-2007 to 21-5-2007 and again in jail w.e.f. 2-2-2008 and jail sentence was suspended on 10-4-2008 by this Court. It is submitted that looking to the nature of offence and substantive part of jail sentence, the same may be reduced to the period already undergone. 5. Learned counsel for respondent/State submits that after due appreciation of evidence, learned Court below has found the offence proved against the appellant, which requires no interference. It is submitted that the appeal filed by the appellant be dismissed. 6. From perusal of the record, it is evident that to prove the case, prosecution has filed documents Ex.P/1 to P/21 and has examined Dayaram (PW-1), Shayarbai (PW-2), Mahesh (PW-3), Santosh (PW-4), Dr. A. K. Lanjewar (PW-5), Sanjay Sharma (PW-6), Ramcharan (PW-7), Dr. S. S. Malviya (PW-8), P. S. Khate (PW-9) and Ms. Veena (PW-10). 7. From perusal of the record, it is evident that the marriage between appellant No. 1 and deceased/Smt. Krishnabai was solemnized before 10 years of the incident and appellant No. 1 is having three children from the deceased/Smt. Krishnabai. Ms. Veena who was aged 8 years and happens to be the daughter of appellant No. 1 was examined by prosecution as PW/10 who has stated that on the date of incident when she came back from school, she found that her grand-parents who are appellants No. 3 and 4 quarrelling with her mother, deceased/Smt. Krishnabai. She has stated that appellants No. 3 and 4 were having a doubt about the character of Smt. Krishnabai. She has stated that appellants No. 3 and 4 were having a doubt about the character of Smt. Krishnabai. She has further stated that in the night also appellants quarrelled with Smt. Krishnabai and on next day when she came back from school, she found that hands of her mother were caught by Uncle who is appellant No. 2 and grand-father who is appellant No. 3 put Smt. Krishnabai on fire by lighting a match-box. From perusal of record, it appears that in the statement Ex.D/2 which was recorded by police during course of investigation under section 161 of Criminal Procedure Code. Ms. Veena has not stated accordingly, on the contrary her statement was that _oar _m± Zo KmgboQ> AnZo na S>mbH$a AmJ bJm br. For this omission there is no sufficient reason on the part of prosecution and learned trial Court has also acquitted the appellants for an offence punishable under section 302 of Indian Penal Code and convicted under section 306 of Indian Penal Code only. In the matter of State of Haryana vs. Jasvinder Singh, 2000(II) MPWN 150 wherein the Hon'ble Apex Court has held that in a case under section 306 of Indian Penal Code where abetment or instigation is not establish by prosecution by cogent evidence. This Court also in the matter of Smt. Radha vs. State of M. P., 2009(2) Crimes 198 (M.P.) has held that the word 'Instigate' meant to goad or urge, forward or to provoke incite, urge or encourage to do an act, presence of means rea was necessary concomitant of instigation. 8. In the present case after going through the entire evidence on record, this can be interfered that the atmosphere in the family was not happy and the appellants were doubting about the character of Smt. Krishnabai but absolutely there is no evidence that any of the appellants have instigated Smt. Krishnabai to commit suicide. In view of this, learned trial Court committed error in convicting the appellants under section 306 of Indian Penal Code. Thus, appeal filed by the appellants is allowed and the judgment passed by learned trial Court stands set-aside and appellants are acquired for an offence punishable under section 306 of Indian Penal Code. Appellants No. 2 to 4 are on bail. Their bail bond stands discharged and respondent/State is directed to release the appellant No. 1 forthwith, if not required in any other case. Appellants No. 2 to 4 are on bail. Their bail bond stands discharged and respondent/State is directed to release the appellant No. 1 forthwith, if not required in any other case. 9. With the aforesaid observation, the appeal stands disposed of. C. C. as per rules.