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2011 DIGILAW 100 (CHH)

GHIRDHAR SAHU v. STATE OF M. P.

2011-03-11

PRITINKER DIWAKER

body2011
JUDGMENT 1. This appeal is directed against the judgment and order dated 14.08.98 passed by Additional Sessions Judge, Rajnandgaon, in Sessions Trial No. 127/ 97 convicting the accused/appellant for the offences punishable under Sections 306 and 498-A of the Indian Penal Code and sentencing him to undergo simple imprisonment for ten years and pay fine of Rs.1000 u/s 306 and simple imprisonment for three years and pay fine of Rs. 1000 u/s 498-A IPC, plus default stipulations. 2. Facts of the case in brief are that marriage of the deceased namely Asha Bai was solemnized with the accused/appellant herein about 2 years prior to the date of incident i.e. 05.07.97. It is alleged that on 5.7.1997 the deceased died in her matrimonial house after sustaining 100% bum injuries. Merg intimation Ex. P-2 was given to the police on that day itself and after merg investigation FIR Ex. P-16 was registered on 8.7.1997. Challan was filed on 28.07.97 u/s 306 of I.P.C. However, trial Court framed the charges against the accused/ appellant on 18.10.1997 under Sections 498-A, 306 and 304-B IPC. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 13 witnesses in support of its case. Statement of the accused/ appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has acquitted the accused• appellant of the charge under Section 304-8 IPC but convicted and sentenced him as mentioned above. 5. Counsel for the accused/appellant submits that merely on the basis of general allegations made by the relatives of the deceased the accused/appellant has been convicted by the court below. According to him, even if the entire case of the prosecution is taken as it is the offence under Section 306 LP.C. is not made out against the accused/appellant because there is no evidence on record to show that the accused/appellant had abetted the deceased in any manner whatsoever to commit suicide and that being so the ingredients of abetment as defined under Section 107 I.P.C. are completely missing in this case. As regard the offence under Section 498-A J.P.C., counsel for the accused/appellant submits that as the basic ingredients needed for conviction under this Section are absent in this case, the accused/appellant cannot be convicted for the same. 6. On the other hand, counsel for the respondent/States supports the judgment impugned and submits that as from the very beginning the deceased was subjected to harassment by the accused/appellant for the demand of Rs.25,000/- as has been clearly stated by the most of the witnesses, she had no other option but to commit suicide and therefore the findings recorded by the court below convicting the accused/appellant under Sections 306 & 498-A I.P.C. are just and proper and no interference there with is warranted. 7. Vinod Kumar (PW -1) is the ward boy who had given merg intimation (Ex.P-2). Nayeb Tahsildar G.R. Mahipal (PW-2) is a witness to inquest (Ex.P5). Dr. C.S. Mohabe (PW-3) is the witness who had first attended the deceased after hospitalization as a result of 100% burn injuries. Siya Ram Sahu (PW4) is the witness of seizure of Kerosene container, certain burnt clothes etc. made under (Ex.P-8). Pushai Bai (PW-5) - the aunt of the deceased has not made any specific allegation against the accused/appellant. Sant Ram (PW-6) the uncle of the deceased though has not made any specific allegation against the accused/appellant yet he has stated that once the deceased had visited his house and informed about her subjection to cruelty by her mother-in-law, sister-in-law and brother-in-law. He has categorically stated that the deceased had not disclosed to him anything against the present appellant. Laxman (PW -7)the father of the deceased has stated that one year after the marriage of the deceased he was informed by his daughter-in-law in relation that the accused/ appellant was beating her on the road. According to this witness on the next day he had been to the house of the accused/appellant where his daughter (deceased) had informed him having been beaten by the accused/appellant and after making him understand about non recurrence of such activities he got back his home. He has further stated that when in July, 1997 the deceased had visited his house, she had informed him about the demand of Rs. 20,000-25,000/- being raised by the accused/appellant. He has further stated that whenever the deceased visited his house, she used to be sad. He has further stated that when in July, 1997 the deceased had visited his house, she had informed him about the demand of Rs. 20,000-25,000/- being raised by the accused/appellant. He has further stated that whenever the deceased visited his house, she used to be sad. He went on to state that when the deceased had visited him on 27th of June or July, 1997 along with his son-in-law, she had informed that the accused/appellant used to beat her only for the demand of Rs. 25,000/-. According to this witness the deceased had first disclosed the factum of harassment to her mother and then to him and that time he had not said anything to the accused/appellant. In cross-examination he has stated that he had already disclosed about his poor financial condition to the accused/appellant at the time of settlement of marriage itself and that even at the time of marriage no demand was made from him. He had deposed that whatever was given to the accused/appellant at the time. of marriage he had accepted the same cheerfully. According to him at the time of marriage the accused used to live along with his brother but about a month thereafter he started living separately and he used to earn his livelihood from a cycle repairing shop. He has further stated that he was present at the time of inquest as well as last rites of the deceased but he had not disclosed to anyone about the demand of money and resultant subjection of his daughter to beating by the accused/appellant. He has further stated that after marriage, the accused/appellant had purchased Luna and this information was given to him by none else but the deceased herself. According to this witness about 15 days prior to the date of incident he had last visited Bhanpuri where the deceased was residing and at that time also the deceased had informed him about being subjected to beating by the accused/appellant. Thereafter, he had gone to the house of his younger daughter at village Argaon but did not disclose anything about the deceased and the appellant. From Argaon this witness is said to have visited his co-brother at Village Bhanpuri and then after taking food in the house of the accused/appellant he returned to his village. Thereafter, he had gone to the house of his younger daughter at village Argaon but did not disclose anything about the deceased and the appellant. From Argaon this witness is said to have visited his co-brother at Village Bhanpuri and then after taking food in the house of the accused/appellant he returned to his village. According to him at that time the deceased had not informed him anything and was just weeping and had also requested him to stay there. According to him, as the deceased was not having any issue he had asked her to take treatment and not to visit the quack for the said purpose. He has also stated that the accused/ appellant had not demanded anything from him for the medical treatment of the deceased. He has stated that after the incident the village people had asked him as to why he had made the false report against the accused/appellant on which he denied the same. Rama Shanker (PW-8) is a Constable who had taken the body of the deceased for the post mortem examination. Smt. Khorbharin (PW-9)-the mother of the deceased has stated that on 27-28 when the deceased had visited her, she had informed about Rs. 25,000/- being demanded by the accused/appellant and for which he was even subjecting her to beating as a result of which she used to remain sad. In cross-examination she has however stated that the accused/appellant had not demanded anything at the time of marriage. Though according to this witness the deceased and her husband had visited her house. on 27-28 but she was not aware of the month or year of the said date. According to her, the deceased had never informed her about the accused/appellant suspecting her character. Dr. Harish Kumar Joshi (PW -10) is the witness who had conducted post-mortem examination of the body of the deceased and given his report (Ex.P-12) stating the cause of the death to be burn injuries. S.N. Viswas (PW -11) is the Scientific Officer who had collected the kitchen wares, burnt clothes and kerosene cane from the spot. Sambhll Lal (PW -12) is the Head Constable who had done part of the investigation. Sohadra Bai @ Asni (PW-13) - the sister of the deceased has made almost similar allegation as has been made by Laxman (PW-7). Dr. Sambhll Lal (PW -12) is the Head Constable who had done part of the investigation. Sohadra Bai @ Asni (PW-13) - the sister of the deceased has made almost similar allegation as has been made by Laxman (PW-7). Dr. Y.K. Damle (PW-14) is the witness• who had got the deceased admitted in the hospital. B.L. Tiwari (PW-15) is the investigating officer who has fully supported the case of the prosecution. Suk Lal (DW-I) and Khem Chand Sahli (DW-2) have stated in their evidence that their shops are adjacent to the cycle repairing shops of the accused/appellant and that after seeing the smoke coming out from the house of the accused/ appellant they had rushed to the spot and saw the deceased engulfed in flames. 8. Having thus discussed the entire factual aspect coupled with the evidence of the witnesses particularly the mother, father and sister of the deceased, this Court did not find even a single clue to establish the fact that the accused/appellant in any manner whatsoever had abetted the deceased to take the extreme step of commission of suicide and that way the ingredients of abetment as defined under Section 107 LP.C. are quite amiss in this case. In this view of the matter the conviction of the appellant under Section 306 LPC is not sustainable in the eye of Law. The evidence available on record of course reflects that the deceased was subjected to cruelty by the accused/ appellant for demand of Rs. 25,000/- which has been disposed by almost all the relatives of the deceased. Accordingly the findings of the court below convicting the accused/appellant under Section 498-A I.P.C. appear to be just and proper and that being so they are upheld. 9. In view of what has been stated above, the appeal succeeds in part. Conviction of the accused/appellant under Section 306 LP.C. is hereby set aside and that under Section 498-A LP.C. is hereby affirmed. 10. As regards sentence, counsel for the accused/appellant submits that as the appellant has already remained in jail for period of 14 months, that the incident had taken place about 13 years back and that his financial condition is deplorable because he is eking out his livelihood from a cycle repairing shop, it would be in the interest of justice if the sentence imposed on him is reduced to the period already undergone by him. This prayer being not seriously disputed by the state counsel appears to be reasonable and is hereby allowed. The sentence imposed on the accused/appellant is reduced to the period already undergone by him. The sentence of fine is however enhanced to Rs4000/from that of Rs.1000/- as has been imposed by the Court below. This order shall come into operation only after the said amount is deposited by the accused/ appellant in the Court below. Appeal Partly Allowed.