Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 157 (MP)

RADHABAI v. STATE OF M. P.

2010-02-05

R.K.GUPTA

body2010
JUDGMENT : 1. The appellants have preferred the present appeal under section 374(2) of the Code of Criminal Procedure challenging the judgment of their conviction and order of sentence dated 23-4-1999 in Sessions Trial No. 118/94 passed by the learned Sessions Judge, Raisen whereby the appellants have been convicted under section 498-A, Indian Penal Code and sentenced to two years' R.I. and fine of Rs. 1000/- each and the appellant No. 1 has been further convicted under section 306, Indian Penal Code and sentenced to four years R. I. and fine of Rs. 1000/-; in default of payment of fine, additional R.I. for two months each. 2. The appellants were initially tried by the learned trial Court under section 304-B and 306 of the Indian Penal Code on an allegation that they practiced cruelty upon deceased Smt. Sadhna alias Shada Bai in relation to demand of dowry and the deceased died otherwise than under normal circumstances within seven years of marriage, therefore, a dowry death was committed. 3. Briefly stated, the prosecution story is that in the year 1993 deceased Sadhna alias Sharda had married to Pradeep who used to live with his family and along with the accused persons at village Kishanpur. Pradeep did not use to do any work. It is alleged that the accused persons used to harass the deceased for not bringing adequate dowry, therefore, the deceased lived at her parents house for two-three months. On the assurance given by Pradeep that deceased would not be subjected to harassment and cruelty, parents of the deceased sent her along with Pradeep. On 26-3-1994 at about 11 a.m. deceased Sadhna alias Sharda poured kerosene oil upon her and set her ablaze. Seeing the fire having been broken out, neighbour Hakimchand and others reached the spot and saw Sadhna lying in the courtyard fully burnt. Hakimchand (PW-6), thereafter, lodged a report at Police Station Dehgaon. The deceased was taken to District Hospital Raisen where Dr. S. S. Kushwaha (PW-2) medically examined the deceased and through Ex.P-3 observed that her body was burnt upto 98%. It is further alleged by the prosecution that on 26-3-1994 at about 1 p.m. the dying declaration of the deceased was recorded Ex.P.1 in the presence of Dr. S. S. Kushwaha (PW-2) wherein the deceased revealed that she set herself to fire because of harassment made by accused Radha Bai. It is further alleged by the prosecution that on 26-3-1994 at about 1 p.m. the dying declaration of the deceased was recorded Ex.P.1 in the presence of Dr. S. S. Kushwaha (PW-2) wherein the deceased revealed that she set herself to fire because of harassment made by accused Radha Bai. Thereupon, the accused persons were arrested and after completion of necessary investigation challan was filed in the criminal Court and thereafter the competent criminal Court committed the case for trial. 4. The learned trial Court found that since there was a specific allegation in the dying declaration which was found proved against appellant No. 1, Radha Bai that she had subjected the deceased to cruelty which prompted the deceased to commit suicide, therefore, the appellant No. 1 has been convicted for the offence punishable under section 306, Indian Penal Code, however, rest of the accused were acquitted of the said charge and further convicted all the appellant guilty of the offence under section 498-A, Indian Penal Code as no charge under section 304-B, Indian Penal Code was found proved against any of the accused persons. 5. Learned counsel for the appellants submitted that the learned trial Court has erred in not properly appreciating the evidence of Dr. Kushwaha PW-2 who in his statement has categorically stated that on his asking the deceased had revealed that she got burnt while cooking on stove. He further submitted that conviction of the appellant No. 1 under section 306, Indian Penal Code is erroneous as mere allegation of harassment and domestic dispute of the deceased with appellant No. 1 and deceased having committed suicide as a result of which would not amount to abetment. Reliance is placed upon the decision of this Court in Radha (Smt.) vs. State of M. P., 2009(1) JLJ 236 . According to learned counsel for the appellant, the trial Court has also erred in holding that the appellants used to ill-treat the deceased and to bolster his submission he has taken me through the prosecution built up and the statements of the prosecution witnesses namely Nandlal PW-3, Shanti Bai PW-4 and Hansraj PW-5 to point the discrepancies which render them unreliable. 6. Learned counsel for the State on the other hand has supported, the impugned judgment of the trial Court. 7. The submissions advanced by the learned counsel for the appellants are considered. 8. 6. Learned counsel for the State on the other hand has supported, the impugned judgment of the trial Court. 7. The submissions advanced by the learned counsel for the appellants are considered. 8. I have carefully gone through the statements of the prosecution witnesses on whose testimony the trial Court has based the conviction of the appellants. In this case the husband of the deceased, namely, Pradeep, is not the accused. Nothing has been stated by the prosecution witnesses at any stage that any demand of dowry was made by husband Pradeep. Nandlal PW-3, Shanti Bai PW-4 who are the parents of the deceased and Hansraj PW-5 who is brother of deceased have stated in one voice that when they went to see the deceased in the hospital, the deceased had told that she was burnt because she was not given adequate dowry and there was cruelty practised upon her by the accused persons for not bringing adequate dowry. It is relevant to mention here that what the deceased has informed these witnesses is entirely different from what was stated by her in dying declaration Ex.P-1 and the statement to the doctor recorded in Ex.P-1. The witnesses have stated that deceased had told them that accused Sardeep gave matchbox to her wife and thereafter Seema poured kerosene oil on her and thereafter appellant Radha set her to fire and all this was done because she had not brought adequate dowry with her. This is the material contradiction and it is totally belied by the dying declaration, therefore, the testimony of these witness is unbelievable. It is also relevant; to see that there is no allegation of demand of dowry or cruelly from the side of husband Pradeep. On the contrary, making of demand is alleged against the accused persons. It is difficult to believe that once the husband Pradeep was not doing any work or business to sustain the life then if the demand had been associated with Pradeep would have been acceptable but there is no reason why accused persons would make demand for dowry. There is also nothing put on record in the statements of any prosecution witness as to what material was demanded as dowry so that it could be inferred that really the accused persons had made the demand of dowry. 9. There is also nothing put on record in the statements of any prosecution witness as to what material was demanded as dowry so that it could be inferred that really the accused persons had made the demand of dowry. 9. Hakim Chand PW-6 and Omprakash PW-7 in their statements have stated that deceased Sadhna was quite a short-tempered woman and her mind was not stable and she also used to shirk household work. Nothing contrary incriminating the appellants has been brought out by the prosecution in their statements. 10. Mulkraj DW-3 in his statement has stated that after the death of deceased, Nandlal PW-3 had taken back the entire material of dowry given to the deceased through panchnama Ex.D-1. Hakimchand PW-6 has also stated that in the panchayat called after death of deceased Lalchand had demanded the dowry back which was given back in the presence of Sarpanch through a list of the material given through Ex.D.1. In this background, it is noted that the trial Court in para-15 of its judgment has come to the conclusion that at the time of marriage lot of material as dowry was given with the deceased, therefore, this circumstance itself makes it possible that the accused persons used to comment upon the deceased for not bringing adequate dowry and would quarrel and harass the deceased in this regard. It is, thus, clear that on a hypothecation that since the dowry was given at the time of marriage and there was allegation against the appellant No. 1 that she used to quarrel with the deceased, the trial Court has arrived at a conclusion that the deceased was subjected to cruelty by the appellants. In this view of hypothecation, the trial Court has also found the testimony of Nandlal PW-3, Shanti Bai PW-4 and Bhagwandas PW-9 in relation to harassment of the deceased as inclining towards possibility of harassment of deceased by the accused persons. Though the trial Court has not found the offence under section 304-B, Indian Penal Code proved against the appellants and the story of demand of dowry has also not been found proved. Though the trial Court has not found the offence under section 304-B, Indian Penal Code proved against the appellants and the story of demand of dowry has also not been found proved. Thus, in my opinion the trial Court has erred in convicting the appellants under section 498-A, Indian Penal Code as merely on basis of surmises and possibility of cruelty upon the deceased in relation to demand of dowry whereas the demand of dowry by the accused persons has not been found proved by the trial Court, the conviction of the appellants under section 498-A, Indian Penal Code being unjustified is liable to be set aside. 11. It is also relevant to point out that charge under section 498-A, Indian Penal Code which has been found proved by the trial Court was not the subject- matter of trial. 12. The Apex Court in Mahinder Singh vs. State of M. P., 1995 AIR SCW 4570 has held that in case of alleged abetment of suicide there must be number of direct or indirect acts of incitement to the commission of suicide and merely treating the deceased with cruelty is not enough. 13. In view of the above decision, it is relevant to note in the present case that the deceased in her dying declaration Ex.P-1 has said that appellant Radhika used to often quarrel with her and she does not want the deceased to remain at their house. The dying declaration Ex.P-1 was recorded on 26-3-1994 and the deceased died on 1-4-1994. Dr. S. S. Kushwaha had medically examined the deceased and in his medical report Ex.P-3 which was recorded on 26-3-1994 at 12:40 p.m. while treating the deceased he has mentioned that deceased had told him that she received burn injuries while cooking on stove. In cross-examination, this witness has also corroborated the said statement and has specifically stated in para-4 that on his asking the deceased had revealed that she got burnt while cooking on stove and at that time she was fully conscious. In cross-examination, this witness has also corroborated the said statement and has specifically stated in para-4 that on his asking the deceased had revealed that she got burnt while cooking on stove and at that time she was fully conscious. The contradiction as such has not been dwelled upon by the trial Court and there is no explanation on behalf of the prosecution why within a short span of time the deceased had given two contradictory statements; one to the doctor treating her that she got burnt while cooking and another in the dying declaration Ex.P-1 that she committed suicide being perturbed by the dispute with appellant No. 1. Therefore, these material contradictions in the dying declarations cast clouds of suspicion over the prosecution story. 14. In this connection, M. P. Sen, Tahsildar (PW-1) who had recorded the dying declaration of the deceased in his statement in para-2 has affirmed the fact that deceased had answered that her younger sister-in-law Smt. Radha Bai used to quarrel with her everyday, therefore, she had set herself ablaze. It is noticeable that PW-1 in para-2 of his statement has stated that he had recorded the dying declaration at 1.25 p.m. Dr. S. S. Kushwaha had recorded the medical report Ex.P-3 while treating the deceased at 12:40 p.m. wherein the deceased had said that she had been burnt while cooking on stove. Firstly, there is contradiction with regard to cause of incident of burning and secondly the statement of deceased Sadhna before the doctor at 12:40 p.m. which indicated the accidental death of deceased was first in time. The law with regard to admissibility of dying declaration is well settled that the dying declaration first in time shall prevail. Thus, an inevitable conclusion is drawn in the facts and circumstance of the present case that the statement of deceased contained in Ex.P-3 before the doctor before recording of her dying declaration Ex.P-1 shall prevail over the dying declaration Ex.P-1 wherein the deceased had stated that she accidentally got burnt while cooking on stove as the earlier declaration of the deceased before the doctor brushes aside any possibility of tutoring and is untainted. Otherwise, also due to serious contradictory statements of the deceased in Ex.P-1 and Ex.P-3 no definite conclusion of abetment by appellant No. 1 can be drawn. Otherwise, also due to serious contradictory statements of the deceased in Ex.P-1 and Ex.P-3 no definite conclusion of abetment by appellant No. 1 can be drawn. Therefore, in the light of these reasons the conviction of appellant No. 1 for creating such circumstances for inducing the deceased to commit suicide is erroneous. 15. In view of the above, I do not find that the ingredients of the offence under section 306, Indian Penal Code are attracted against the appellant No. 1 for inducing the deceased to commit. The prosecution has miserably failed to prove the guilt of appellant No. 1 in this regard beyond any reasonable doubt. 16. For the reasons stated hereinabove, the conviction and sentence imposed by the trial Court on the appellants is hereby set aside. The appellants are on bail. Their bail bonds stand discharged. The appeal stands allowed accordingly.