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Madhya Pradesh High Court · body

2010 DIGILAW 356 (MP)

Raj Kumar Rathore v. State of M. P.

2010-03-25

R.K.GUPTA

body2010
JUDGMENT : Counselfor the appellant was absent. In view of law laid down by the Apex Court in Rishi Nandan Pandit and Others vs.State of Bihar , (1999) Vol. 8 SCC644 and Bani Singh and Other vs. State of U.P , AIR 1996 SC 2439 . Counsel so engaged for the appellant was absent. Therefore,this Court directed to the High Court Legal Aid Services Authority to engage anadvocate for the appellant. Ku. Manisha Shrivastava , Adovcate was appointed on behalf of M.P. High CourtLegal Aid Authority as the counsel engaged by the appellant was not present toargue the matter. 2.The present appeal has been preferred against the order of conviction andsentence recorded by Sessions Judge, Panna in S.T.No. 77/94 on 9.2.1996, whereby the appellant has been convicted under Section498-A of IPC and sentenced to R.I. for three years with fine of Rs . 500/- in default S.I. for one month. 3.Initially the appellant No. 2 Smt . Sonia was alsoprosecuted for the same offence but she died during pendency of this appeal. Therefore, her name was deleted from the array of the appellantand the appeal against her stands abated. The present appeal is only pressedagainst the appellant No. 1. 4.The facts leading to the present case are that the deceased Parvati committed suicide by hanging herself on 10.11.1993. The merg intimation Exp.P/5 was recorded on 11.11.1993. subsequently ,First Information Report Ex. P/10 was lodged. 5.Dr. O.K. Gupta (PW-7) conducted the postmortem of the deceased and as perpostmortem report Ex.P/8 the cause of death of deceased was asphyxia due tohanging. There is no cross-examination of this witness. It is clear that causeof death of the deceased Parvati was asphyxia due tohanging. 6.Prosecution has examined Bhagwandas as PW-1, who isfather of the deceased Parvati . According to hisstatement, just before two months on the date of incident i.e. on 10.11.1993the deceased came to her parents, house and she stated that both the Appellantssubjected her to cruelty. Marriage was solemnized with the appellant No. 1 Ramkumar about five years beforethe date of incident. This witness further stated that as to why the appellantswere harassing the deceased that reason was not stated by the deceased. 7. Smt . Shakuntla Bai (PW-2), who is mother of the deceased. Marriage was solemnized with the appellant No. 1 Ramkumar about five years beforethe date of incident. This witness further stated that as to why the appellantswere harassing the deceased that reason was not stated by the deceased. 7. Smt . Shakuntla Bai (PW-2), who is mother of the deceased. Shestated that when the deceased Parvati came to herparents, house, she stated that both the appellants harassed her to cruelty.She further stated that when her ( Shakuntla Bai ) husband was, ill deceased Parvati came to see her father for two days at that time she did not state that she isbeing harassed by the appellants. 8. Rohni Prasad (PW-3), who is neighbour and cousin brother of the deceased Parvati . According to this witness, marriage of thedeceased was organized with the appellant No. 1 Ramkumar by him. The deceased used to visit his house. This witness further stated thatone day, the deceased was going somewhere he asked as to where she was going,the deceased stated that due to some problem, she is going to work as she ishungry and thirsty and is also beaten. On behalf of the defence as suggestion has given in paragraph 8 of the statement of this witness, hestated that since the deceased was not prepared good food and was not able tohouse work, therefore, there was quarrel with the deceased and complaint, wasmade with regard to atrocity were false. 9. Manohar (PW-4), who is father-in-law of the deceased Parvati and father of the appellant No.1 Ramkumar . He stated that the deceased Parvati has committed suicide. During cross-examination, he stated that they used togive good treatment to the deceased Parvati . Therewas no beating or abusing to the deceased. 10.Prosecution has examined Raj Kishore as PW-5. This witness has denied that the appellants were illtreated in any manner to the deceased and there was no complaint made about beating andquarrel against the appellants. This witness has been declared hostile. Inpolice diary statement he has stated that the accused persons were quarrellingwith the deceased and deceased was not able to perform house work. 11. Ganesh (PW-8), who is brother of thedeceased Parvati stated that he had been goneto bring his sister to in-law's house but the accused persons did not send thedeceased with him. It is also stated by this witness that the deceased wasbeaten by the accused persons. 11. Ganesh (PW-8), who is brother of thedeceased Parvati stated that he had been goneto bring his sister to in-law's house but the accused persons did not send thedeceased with him. It is also stated by this witness that the deceased wasbeaten by the accused persons. On the basis of aforesaid marshalling of theevidence the various prosecution witnesses have been examined by theprosecution. It is to be seen whether a case is made out under Section 498-A ofIPC against the present appellant. 12.In the present case, if the statement of Bhagwan Das (PW-1), who is father of the deceased is taken intoaccount in his examination-in-chief, he stated that the deceased informed himthat she is being ill-treated but no reason as such was told by the deceased tothis witness as to why she is being ill treated. The conduct of this witnesscreates doubt and his testimony in spite of the fact that this witness was toldby the deceased she was ill treated yet he has not made any effort to pacifythe same. In paragraph 5 of his examination-in-chief, he stated that he has notvisited the in-laws house of the deceased to pacify the dispute. 13.Apart from that there are general allegations and omnibus statements have beengiven by the father of the deceased Bhagwan Das (PW-1) with regard to ill treatment on the deceased. Inthis reference, statement of Smt . Shakuntla Bai (PW-2), who is mother of the deceased is alsorelevant. Though she stated that the deceased was ill treated by the appellantsbut in paragraph 3 of her statement, she has stated that her daughter(deceased) came to her parents, house for two days at that time she has notstated anything about ill treatment by the appellants. On the basis of thesame, it is clear that she has given omnibus statement with regard to illtreatment but she has not stated as to why she was ill treated. 14. Raj Kishore (PW-5) hasalready been declared hostile. Manohar (PW-4) who isfather-in-law of the deceased has denied the incident. Rohni Prasad (PW-3), who is neighbour of the accused andclaiming himself to be the cousin brother of the deceased stated that thedeceased was ill treated and was not given food therefore, she was forced to do the job. This witness has also given omnibus statement. 15. Manohar (PW-4) who isfather-in-law of the deceased has denied the incident. Rohni Prasad (PW-3), who is neighbour of the accused andclaiming himself to be the cousin brother of the deceased stated that thedeceased was ill treated and was not given food therefore, she was forced to do the job. This witness has also given omnibus statement. 15. Ganesh (PW-8), who is brother of the deceased Parvati stated that when he had gone to bring his sisterthen she was beaten by the appellants and was not sent with him. According tothis witness, deceased died after two days when he came back from sister'shouse. 16.Testimony of Ganesh (PW-8) in light of the Statementof Bhagwan Das (PW-8) and Smt . Shakuntla Bai (PW-2) is also doubtful with regard to Marpeet of the deceased Parvati . Bhagwan Das (PW-1) has not statedanything that Ganesh (PW-8) informed him that she wasbeaten by the appellants at the time when he had gone to bring his sister fromher in-laws, house. Bhagwan Das (PW-1) has only stated that the deceased was not sent along with Ganesh (PW-8). If the statement of Shakuntla Bai (PW-2) is taken into account, she stated that Ganesh (PW-8) told her that the deceased was not sent alongwith him. She further stated that the deceased was beaten by the accused persons.Statement of Shakuntla Bai (PW-2) does not show that after when Ganesh (PW-8)intimated her that deceased was beaten by the accused persons and was not sentalong with him then prosecution has failed to explain to as to why this witnesshas not intimated anything to Bhagwan Das (PW-1) ,who is father of thedeceased. 17.In this reference, the judgment passed by this Court in Girdhar Shankar Tawade vs. State of Maharashtra ,2002 (2) ANJ (SC) 622 = 2002 Vol. 4M.P.L.J. (SC) 5 and relevant Para 16 is reproduced as under : "16. We have alreadynoted Section 498 A hereinbefore in this judgment and as such we need not delveupon the same in greater details herein excepting recording that the samestands attributed only in the event of proof of cruelty by the husband or therelatives of the husband of the woman. Admittedly, the finding of the TrialCourt as regards the death negated suicide with a positive finding ofaccidental death. Admittedly, the finding of the TrialCourt as regards the death negated suicide with a positive finding ofaccidental death. If suicide is ruled out then in that event applicability ofSection 498 A can be had only in terms of explanation (b) thereto which in nouncertain terms records harassment of the woman and the Statute itselfthereafter clarifies it to the effect that it is not every such harassment butonly in the event of such a harassment being with a view to coerce her or anyperson related to her to meet any unlawful demand for any property or valuablesecurity or is on account of failure by her or any person related to her tomeet such demand there is total absence of any of the requirements of theStatute in terms of Section 498-A. The three letters said to have been writtenand as noticed earlier cannot possibly lend any credence to the requirement ofthe Statute or even a simple demand for dowry". 18.The aforesaid view has also been rendered in Ramesh Kumar vs. State of Chhattisgarh , 2002 SCC ( Cri .) 1088 and relevant paras 11& 12 are reproduced as under :- "11.There is not direct evidence adduced of the accused-appellant having abetted Seema into committing suicide. The prosecutionshas relied on Section 113-A of Evidence Act which reads as under:- 113-A.Presumption as to abetment of suicide by a married woman-When the question iswhether the omission of suicide by a woman had been abetted by her or any relativeof her husband and it is shown that she had committed suicide within a periodof seven years from the date of her marriage and that her husband or suchrelative 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 hadbeen abetted by her husband or by such relative of her husband. Explanation-Forthe purpose of this section "cruelty" shall have the same meaning asin Section 498-A of the Indian Penal Code. 12.This provision was introduced by Criminal Law (Second) Amendment Act, 1983 witheffect from 26.12.1983 to meet a social demand to resolve difficulty of proofwhere helpless married women were eliminated by being forced to commit suicideby the husband or in-law and incriminating evidence was usually availablewithin the four-corners of the matrimonial home and hence was not available toanyone outside the occupants of the house. However, still it cannot be lostsight of that the presumption is intended to operate against the accused in thefield of criminal law. Before the presumption may be raised, the foundationthereof must exist. A bare reading of Section 113-A shows that to attractapplicability of Section 113-A, it must be shown that ( i )the woman has committed suicide, (ii) suicide has been committed within aperiod of seven years from the date of period of seven years from the date ofher marriage, (iii) the husband or his relatives, who are charged had subjectedher to cruelty. On existence and availability of the above said circumstances,the Court may presume that such suicide had been abetted by her husband or bysuch relatives of her husband. The Parliament has chosen to sound a note ofcaution. Firstly, the presumption is not mandatory, it is only permissive asthe employment of expression "may presume" suggests. Secondly, theexistence and availability of the above said three circumstances shall not,like a formula, enable the presumption being drawn; before the presumption maybe drawn the Court shall have to have regard to all the other circumstances ofthe case'. The consideration of all the other circumstances of the case maystrengthen the presumption or may dictate the conscience of the Court toabstain from drawing the presumption. The expression-'The other circumstancesof the case' used in Section 113-A suggest the need toreach a cause and effect relationship between the cruelty and the suicide forthe purpose of raising a presumption. Last but not the least the presumption isnot an irrefutable one. In spite of presumption having been raised the evidenceadduced in defence or the facts and circumstancesotherwise available on record may destroy the presumption. The phrase 'Maypresume' used in Section 113-A is defined in Section 4 of the Evidence Act,which says "whenever it is provided by this Act that Court may presume afact, it may either regard such act as provided, unless and until it isdisproved or may call for proof of it" 19.On the basis of the totality of the circumstances and after marshalling theevidence in law it is clear that the prosecution has failed to prove the chargebeyond reasonable doubt against the appellant. There are various omnibusstatements as examined by the prosecution and also their testimony is doubtful. 20.In view of the aforesaid, in the present case a benefit of doubt is to be givento the present appellant and accordingly the appeal is allowed. There are various omnibusstatements as examined by the prosecution and also their testimony is doubtful. 20.In view of the aforesaid, in the present case a benefit of doubt is to be givento the present appellant and accordingly the appeal is allowed. The appellantNo. 1 Ramkumar is acquitted of charge under Section498-A of IPC. His bail bond stands discharged.