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2010 DIGILAW 265 (CHH)

STATE OF M. P. (NOW C. G. ) v. DHANESH SHARMA

2010-11-09

SUNIL KUMAR SINHA

body2010
JUDGMENT : Sunil Kumar Sinha, J. : - 1. Being aggrieved with judgment of acquittal dated 15th of May, 1989 passed in Sessions Trial No. 122/86 by the Third Additional Sessions Judge, Raipur, the State has preferred this appeal. 2. By the impugned judgment, the respondents have been acquitted of the charges framed u/ss 498-A & 306 IPC. 3. Respondent No.5 - Smt. Ansuya Bai and respondent No.7 - Smt. Fekan Bai died during the pendency of the appeal. Therefore, their names have been deleted from the cause-title of the appeal and the appeal filed on behalf of respondents 5 & 7 has been dismissed as abated. 4. The facts, briefly stated, are as under : - Respondents 1 to 3 are real brothers. Respondent No.4 is their sister and respondent No.5 was their mother. Respondent No.6- Bhola Prasad is the maternal uncle of respondents 1 to 4. Deceased- Bharti was married to respondent No 1 on 7.5.1982. On 10.6.85, she sustained 45% third-degree bum injuries. She was immediately admitted to the hospital. She died in the hospital on 16.6.85. In the meanwhile her dying declaration (Ex.-P/13) was recorded by Executive Magistrate - M.K. Gupta (PW-14). She made declaration that she wanted to kill herself, therefore, she poured kerosene on her body and put herself on fire. This she did with an intention to finally settle the matter of len-den. In her own words, she stated in answer to question No.3 that ^^eSa vius vki dks lekIr djuk pkgrh Fkh- MkW- lkgc ?kj esa ugha FksA eSa ysu&nsu dks tM+ ls lekIr djuk pkgrh FkhA** Written report (Ex.-P/3) was lodged by brother of the deceased namely Narendra Kumar Dubey (PW-2) on 11.6.85, based on which a First Information Report (Ex.-P/4) was registered u/s 498-A IPC on the same day. After the death of the deceased, a letter dated 15th of June, 1982 (Ex.-P/9), written in the letter paid of respondent No.1, along with postal-envelope and some other written documents were seized from the possessions of Chabiram Dubey (PW -11 - father of the deceased) on 21.6.85 vide Ex.-P/6. The specimen hand-writing of respondent No.1 (Ex.-P/16) was also taken. These documents were sent for expert examination. The letter (Ex.-P/9) and other documents were examined by Mr. S. Kamathan (PW -17), Additional State Examiner of Questioned Documents, Bhopal, M.P. He submitted his opinion EX.-P/18. The specimen hand-writing of respondent No.1 (Ex.-P/16) was also taken. These documents were sent for expert examination. The letter (Ex.-P/9) and other documents were examined by Mr. S. Kamathan (PW -17), Additional State Examiner of Questioned Documents, Bhopal, M.P. He submitted his opinion EX.-P/18. He gave his opinion that person who wrote the specimen documents marked as S1 to S21 also wrote the questioned documents Q1 to Q5 i.e. letter dated 15th of June 1982 and the envelope said to be that of letter dated 15th of June, 1982. The letter (Ex.-P/9) allegedly written by respondent No.1 contains various allegations relating to deficit dowry and the inferior quality of articles given by parents of the deceased to respondent No.1 at the time of marriage. After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Raipur, who in turn committed' the matter to the concerned Sessions Court, from where, it was received on transfer by the Third Additional Sessions Judge, Raipur, who conducted the trial and acquitted the respondents as above. 5. The learned Sessions Judge held that the there was no evidence on record to hold that the respondents treated the deceased with cruelty or they were liable to be punished for abetment of suicide. Therefore, all the respondents/accused persons were acquitted of the charges framed u/ss 498-A & 306 IPC. 6. Mr. U.N.S. Deo, learned Govt. Advocate appearing on behalf of the appellant/State, firstly argued that the deceased committed suicide on account of harassment by the accused persons which would amount to abetment, therefore, the acquittal u/s 306 IPC was not proper. He took me to the contents of letter (Ex.-P/9) and oral evidence of mother, father and brothers of the deceased. 7. The basic constituent of an offence u/s 306 IPC are suicidal death and abetment thereof. Section 107 IPC defines abetment. The abetment comprises of instigation to commit offence; engaging in conspiracy to commit offence; and adding the commission of an offence. In the matter of an offence u/s 306 IPC abetment must attract the definition thereof in Section 107 IPC. Broadly speaking, in such cases, evidence of instigation, cooperation or initial assistance by the accused persons to commit would be suicide by the deceased must be there. In the matter of an offence u/s 306 IPC abetment must attract the definition thereof in Section 107 IPC. Broadly speaking, in such cases, evidence of instigation, cooperation or initial assistance by the accused persons to commit would be suicide by the deceased must be there. A hard-word spoken by the accused to the deceased or a sudden annoyance caused by accused will not amount to instigation in a given case. Section 113-A of the Indian Evidence Act provides that when the question is whether the commission of suicide by a women had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. An Explanation has been added to Section 113-A which provides that for the purposes of this Section, "cruelty" shall have the same meaning as in Section 498-A of the Indian Penal Code. 8. Chabiram Dubey (PW -11) is the father of the deceased. He has stated about the instances of demand of dowry by the respondents. Those instances are mainly of the year 1982. He has stated that just after 7-8 days of the marriage when their daughter was brought to his house, she sated that the persons of her in-laws family are annoyed on account of dowry. She also stated that after the marriage, the ornaments given in the marriage were taken to the shop of a goldsmith for weighing them and after returning from the shop her husband was commenting on them. Chabiram Dubey (PW -11) has also given other instances which are mainly related to the year of the marriage or just after the marriage. Chabiram (PW-11) further deposed that after the incident of 10th June 1985, he visited the hospital where his daughter was admitted. She was unconscious. Chabiram Dubey (PW -11) has also given other instances which are mainly related to the year of the marriage or just after the marriage. Chabiram (PW-11) further deposed that after the incident of 10th June 1985, he visited the hospital where his daughter was admitted. She was unconscious. For a very short moment, she gained consciousness and told him that "respondent- Dhanesh, before going to the hospital, had said her that her father has not fulfilled the demand made by them, therefore, after coming from the medical college, she should not show her face to him otherwise she would be sent to her father for all the time along with the articles given to her". So far as the instances of the year 1982 are concerned, they cannot be taken as abetment for commission of suicide by the deceased in year 1985. As far as evidence relating to the statement made by the deceased to her father in the above manner is concerned, that does not appear to be true. It is an admitted fact that a dying declaration of the deceased (Ex. - P/13) was recorded by Executive Magistrate on 13.6.85, but, in the said dying declaration, the deceased has not made any such allegation against her husband. 9. Kumari Bai (PW-7) is the mother of the deceased. She also has stated about the instances of the year 1982. She deposed that when deceased- Bharti came to their house after 15 days of the marriage, she told them that the persons of her in-laws place were not satisfied with the dowry given in the marriage. They always use to tease her. 10. Devendra Kumar (PW-3) is the elder brother of the deceased. He has also quoted the instances of the year 1982 and has deposed that the deceased had told him that her nanad and dewar used to tease her on account of dowry, but she did not tell their names. The deceased also told him that there is nothing in raising this controversy, every thing would be alright after few days Whenever he wanted to meet his sister he was not allowed to meet her. One day, he met her for few minutes in her room. She told him that the persons of her in-laws place use to comment about her parents. One day, he met her for few minutes in her room. She told him that the persons of her in-laws place use to comment about her parents. He very specifically deposed that he faced the above instances when he met the deceased 4-5 months after the marriage. He also deposed that when the deceased visited his house after 15 days of the marriage, she had told about the dissatisfaction of the persons of in-laws place regarding dowry given to her. After due consideration of the evidence of Kumari Bai (PW-7) and Devendra Kumar (PW-3), we find that they have deposed about the instances of the year 1982, but have not deposed about any instance after that. 11. Narendra Kumar (PW -2) is younger brother of the deceased. He has lodged the First Information Report (Ex.-P/4). He did not depose about any ill-treatment, cruelty or harassment given to the deceased. He admitted in the very first paragraph of the cross-examination that her sister, from the date of her marriage to the date of her death, never stated anything either against her husband- Dr. Dhanesh Sharma or the members of the family of her husband. 12. 161 statement (Ex. - D/4) of Devendra Kumar (PW-3) was recorded on 14.9.85 and 161 statement (Ex.-D/1) of Chabiram Dubey (PW-11) was recorded on 21.6.85. What they deposed is mainly relating to the year 1982. The instances of 1982 cannot be regarded as the evidence of abetment to commit suicide by the deceased in the year 1985. So far as evidence relating to oral declaration of the deceased in the hospital before Chabiram Dubey (PW -11) is concerned, as stated above, that does not appear to be true on the face of the contents of the dying declaration. There are many omissions and contradictions in the inter-se evidence of these witnesses. On due appreciation of the entire evidence of these witnesses, it does not appear that the deceased committed suicide on account of abetment by the respondents. Therefore, the acquittal of the respondents for the offence punishable u/s 306 IPC cannot be said to be unjustified. 13. Mr. Deo has also argued that the offences u/ss 306 & 498-A IPC are independent offences and the evidence for conviction U/S 498-A should be looked into separately. 14. There is no dispute over the said legal position. Therefore, the acquittal of the respondents for the offence punishable u/s 306 IPC cannot be said to be unjustified. 13. Mr. Deo has also argued that the offences u/ss 306 & 498-A IPC are independent offences and the evidence for conviction U/S 498-A should be looked into separately. 14. There is no dispute over the said legal position. This has been made clear by the Supreme Court in Girdhar Shankar Tawade Vs. State of Maharashtra1. The Supreme Court held that the charges under Sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other. But in order to justify a conviction under Section 498-A there must be available on record some material and cogent evidence. 15. In Gananath Pattnaik Vs. State of Orissa2, the appellant was tried for the offences punishable under Sections 304-B and 498-A IPC for allegedly subjecting his wife to cruelty and causing dowry death. The trial court acquitted him of the charge under Section 304-B for want of acceptable evidence but convicted him under Section 498-A. The trial court had, on evidence, found that the appellant -accused had taken away the child from the deceased, had disallowed her to sit on his scooter, remained frequently absent from the house and had illicit relationship with his sister-in-law. His acquittal of the charge under Section 304-B was not further challenged but his conviction under Section 498-A was, on being challenged, confirmed by the High Court. Before the Supreme Court, the appellant contended that the said circumstances did not constitute "cruelty" for the purposes of Section 498-A. He further contended that the findings of the trial court were not based on legal evidence. This contention involved the question whether the deposition of the deceased's sister before the trial court that the deceased had been telling her about: (i) ill-treatment given to her by her husband and in-laws for non-fulfillment of balance dowry, (if) assaults by her husband, and (iii) taking away of the child from her, etc., was admissible in evidence. This contention involved the question whether the deposition of the deceased's sister before the trial court that the deceased had been telling her about: (i) ill-treatment given to her by her husband and in-laws for non-fulfillment of balance dowry, (if) assaults by her husband, and (iii) taking away of the child from her, etc., was admissible in evidence. The Supreme Court held that the statement of the deceased's sister was taken on record with the aid of Section 32 of the Evidence Act at a time when the appellant was being tried for the offence under Section 304-B and such statement was admissible under Section 32(1) as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498-A IPC and has to be termed as only a hearsay evidence. Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused. Thus, there was no legal evidence for returning a finding with respect to the alleged cruelty of the accused with the deceased. Therefore, it has to be held that the prosecution has failed to prove, beyond doubt, that the appellant had committed the offence under Section 498-A. It is further held that the present case is a fit one where he is entitled to be given the benefit of doubt. 16. In case on hand, father, mother and one of the brothers have quoted the instances for proving the cruelty which according to them was told by the deceased to them while she visited their place on an usual visit after 15 days of the marriage. The said evidence was taken on record with the aid of Section 32 (1) of the Evidence Act when the respondents were being tried for the offence u/s 306 IPC. I have already held that the respondents are not liable for punishment u/s 306. The said evidence was taken on record with the aid of Section 32 (1) of the Evidence Act when the respondents were being tried for the offence u/s 306 IPC. I have already held that the respondents are not liable for punishment u/s 306. Therefore, the evidence of these witnesses that the deceased used to tell them that she was being harassed by the respondents on account of dowry, in the facts and circumstances of the case, would not be admissible as evidence for conviction u/s 498-A IPC. 17. The prosecution has also relied on the contents of the letter dated 15th June, 1982 (Ex.-P/9), allegedly written by respondent No.1 to Chabiram Dubey (PW-11). This letter was sent for expert examination. The hand-writing of this letter was compared with the specimen hand-writing contained in Ex.-P/16 (5 copies of the letter) marked as S1 to S21. Mr. S. Kamathan (PW-17) is the Hand- Writing Expert. He deposed that the person who wrote EX.-P/16 also wrote EX.-P/9. There is evidence to the effect that EX.-P/9 was seized from the possession of Chabiram (PW-11) vide seizure memo Ex.-P/6, but there is no evidence to show as to who took the specimen of hand-writing of husband (Ex.-P/16) in form of 5 copies of the said letter. The Investigating Officer- C.P. Singh (PW-15) simply deposed that he has sent the letter for expert examination but he did not depose about taking of the specimen of the hand-writing. Mr. S. Kamathan (PW-17) simply deposed that he received two sets of documents, one for examination and other for the comparison. In absence of any evidence relating to taking of specimen of handwriting of respondent No.1 as contained in Ex-P/16, it cannot be held proved that, in fact, the letter EX.-P/9 was written by respondent No.1. Respondent No.1 has clearly denied about writing of such letter in his examination u/s 313 Cr.P.C. and there is no question put to him regarding taking of his specimen of hand-writing. The above evidence, therefore, was rightly ignored by the Sessions Judge. Apart from the above, Mr. S. Kamathan (PW-17) also admitted in his cross-examination that he cannot tell as to who wrote the document EX.-P/10, which is a list of dowry articles. The case of the prosecution is that the said list was sent to the father of the deceased through Janardhan Prasad Sharma (PW-12). Apart from the above, Mr. S. Kamathan (PW-17) also admitted in his cross-examination that he cannot tell as to who wrote the document EX.-P/10, which is a list of dowry articles. The case of the prosecution is that the said list was sent to the father of the deceased through Janardhan Prasad Sharma (PW-12). PW -12 deposed that somebody had given an envelope in his house containing EX.-P/10 forgiving it to the father of the deceased, therefore, he handed over it to father of the deceased. The learned Sessions Judge held that this document (Ex.P/10) was not connecting the respondents that they had made a demand in the above manner by sending a letter to the father of the deceased. 18. Mr. Adil Minhaz, learned counsel appearing on behalf of the respondents, also argued that the alleged instances relating to treating the deceased with cruelty by the respondents and telling of the instances by the deceased to her parents or brothers are of recent time after the marriage in the year 1982. It appears that they relate to the year 1982 or earlier part of the year 1983. Section 498-A IPC were inserted in the Penal Code vide Act No. 46 of 1983 and came into force with effect from 25.12.1983, therefore, on this account also the respondents cannot be convicted u/s 498-A IPC for the alleged acts of the year 1982 or earlier part of the year 1983. 19. There can be no doubt that Section 498-A IPC, inserted by Criminal Law (Second Amendment) Act 1983 with effect from 25.12.1983, cannot be given retrospective effect. On principle the conviction of a person u/s 498-A IPC for the alleged act of cruelty prior to coming into force of Section 498-A IPC cannot be sustained. Since, I have already held that in the facts and circumstances of the case, the evidence of alleged cruelty was not admissible, therefore, I am note going to appreciate the alleged instances with respect to the exact time. 20. In Budh Singh and others Vs. State of U.P.3, the Supreme Court held vide para 9, that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. 20. In Budh Singh and others Vs. State of U.P.3, the Supreme Court held vide para 9, that in a matter of appeal against acquittal, the High Court does not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny of the Appellate Court. 21. In V.N. Ratheesh Vs. State of Kerala4, the Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. The Supreme Court further said that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The Supreme Court referred to the decision rendered in the matter of Bhagwan Singh and others Vs. State of Madhva Pradesh5. The Supreme Court referred to the decision rendered in the matter of Bhagwan Singh and others Vs. State of Madhva Pradesh5. It was further held that the principle to be followed by Appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 22. In Ramesh Babulal Doshi Vs. State ofGujarat6, the Supreme Court' said that "While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only-reappraise the evidence to arrive at its own conclusions". 23. I have gone through the entire evidence on record with a view to find out as to whether the views of the Sessions Judge were perverse or otherwise unsustainable. After going through the entire evidence available on record, I do not find any compelling and substantial reasons to interfere with the judgment of acquittal. It is not a case in which the judgment may be said to be unreasonable or a case in which relevant and convincing materials have been eliminated in the process of appreciation. 24. For the foregoing reasons, I do not find any substance in the appeal. The appeal filed by the State, therefore, is liable to be dismissed and is hereby dismissed. Appeal Dismissed.