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2011 DIGILAW 897 (MP)

Shripati @ Shriprasad v. State of M. P.

2011-08-09

BRIJ KISHORE DUBE

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JUDGMENT Brij Kishore Dube, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 30th August, 2003 passed in Sessions Trial No. 119/97 (State of M.P. Vs. Parikshit Kushwaha and two Others) by the learned Second Additional Sessions Judge (FTC), Datia, convicting the appellants under Section 306 of IPC and thereby sentencing each of them to suffer four years rigorous imprisonment with fine of Rs. 1,000/-, in default, further imprisonment for three months, the appellants have preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973. 2. The prosecution story, in short, may be narrated as under:- (i) that, Keshkali (since deceased) was the daughter of Matadeen (PW.8) and Shanti Bai (PW.7). Her marriage was solemnized with the appellant No.2-Shyamlal within seven years prior to the date of incident in question. The matrimonial life of Keshkali was not happy as she had been persistently subjected to cruelty and harassment due to non-fulfillment of demand of dowry by her husband Shyamlal, devar Shripati and father-in-law Parikshit. At the relevant point of time, deceased Keshkali along with her husband, devar and father-in-law was residing in Village Targunwa; (ii) that, on 6.10.1995 co-accused Parikshit went to the police station Unao and informed the police that his daughter-in-law Smt. Keshkali developed acute pain in her stomach and had died. On the basis of this information, merg NO. 21/75 under section 174 of Cr.P.C. was registered and the police started investigation into the cause of death. After inquest, the dead body was sent to for postmortem examination. The autopsy was conducted by a team of Doctors comprising Dr.D.K.Sharma (PW. 1), Dr. Sulbha Laghate and Dr. Ashok Gupta. They opined that the mode of death of Keshkali was Asphyxia. 21/75 under section 174 of Cr.P.C. was registered and the police started investigation into the cause of death. After inquest, the dead body was sent to for postmortem examination. The autopsy was conducted by a team of Doctors comprising Dr.D.K.Sharma (PW. 1), Dr. Sulbha Laghate and Dr. Ashok Gupta. They opined that the mode of death of Keshkali was Asphyxia. The cause of death can be given after receipt of viscera chemical examination report; (iii) that, in the light of the findings of the merg enquiry, S.S. Jadon, the then S.H.O. registered a case (Ex.P.3) on 1.3.1997 under Sections 304-B of IPC and 3/4 of the Dowry Prohibtion Act, against the appellant No. 2 Shyamlal, his younger brother Shripathi (appellant No. 1) and his father Parikshit (acquitted co-accused): (iv) that, on completion of the investigation a charge-sheet was filed against the appellants and acquitted co-accused Parikshit before the committal Court, which on its turn committed the case to the Court of Sessions, from where it was received by the Trial Court for the trial. 3. The learned Trial Court on the basis of material placed on record framed charge punishable undersection 304-B of IPC and in alternative under Section 302 of IPC against all accused persons including the appellants. The acquitted co-accused and the appellants denied the charge and claimed to be tried. The defence of all the accused persons is of false implication. They pleaded that Keshkali fell sick, therefore. Dr. Rajesh Kumar (PW. 14) was summoned for giving treatment to Keshkali however she died, then her father-in-law Parikshit went to the Police Station and informed the incident and the same defence they set forth in their statements recorded under Section 313 of Cr.P.C. 4. To bring home the charge, the prosecution has examined as many as 18 witnesses and placed Ex.P.1 to Ex.P.14 the documents on record. The accused have not examined any witness in their defence. 5. The learned Trial Judge on the basis of the evidence placed on record came to hold that the charge under Section 304-B and under Section 302 of IPC have not been proved against the appellants, an eventually, acquitted them from these charges. However, offence under Section 306 of IPC has been found to be proved against the appellants, as a result of which convicted them under section 306 of IPC and passed the sentence as mentioned hereinabove. 6. However, offence under Section 306 of IPC has been found to be proved against the appellants, as a result of which convicted them under section 306 of IPC and passed the sentence as mentioned hereinabove. 6. The learned Trial Judge on the basis of the same set of evidence came to hold that charge under Section 304-B and Section 302 of IPC had not been proved against the accused Parikshit, and eventually, acquitted him from the charge. 7. The State has not preferred any appeal against the acquittal of the appellants as well as accused Parikshit, in respect of charge mentioned hereinabove, hence, the findings of the learned Trial Court regarding their acquittal became final. 8. Legality and propriety of the impugned judgment of conviction has been challenged by the appellants on the ground of mis-appreciation of the evidence on record. Shri V.K. Saxena, learned Senior Counsel appearing for the appellants has submitted that the learned Trial Court held that the prosecution could not prove that the deceased was married to Shyamlal within seven years of her death. The learned Trial Court further held that the prosecution had failed to prove that the deceased was subjected to cruelty for or in connection with demand of dowry. Further the learned Trial Court held that the prosecution has also failed to prove that Keshkaii was murdered, and hence, all the accused persons were acquitted from the charge under Sections 304-B and 302 of IPC. It is further submitted by the learned Senior Counsel that there was no cogent evidence to establish the ingredients of offence for which they have been convicted. The learned Trial Court erred in convicting the appellants, hence, this appeal may be allowed and the appellants may be acquitted from the charge. 9. In response, Shri B.K. Sharma, learned Public Prosecutor has argued in support of the impugned judgment and findings arrived at by the learned Trial Court and submitted that the conviction in question is well merited. 10. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record. 11. 10. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record. 11. The learned Trial Judge after appreciating and marshalling the evidence in detail found that the marriage of the deceased Keshkaii was solemnized with the appellant No.2-Shyamlal on 15.5.1987 whereas the deceased had died on 6.10.1995, therefore, it has not been proved that the deceased Keshkaii had died within seven years of her marriage. The learned Trial Judge further found that it has also not been proved by the prosecution that the deceased was subjected to cruelty or harassment by her husband or any other relatives of her husband for or in connection with, any demand of dowry and, eventually, acquitted appellants under Section 304-B of IPC. The learned Trial Court further came to the conclusion that prosecution failed to prove that Keshkaii was murdered by the appellants, hence, the appellants were acquitted from the charge under Section 302 of IPC for commission of murder of Keshkali. 12. The learned Trial Court in the instant case further came to the conclusion that there is no evidence and material available on 'record to hold that just before the incident, appellants abetted Keshkaii for committing suicide, however, on the basis of evidence of Shanti Bai (PW.7), Matadeen (PW.8) and Ramraja Singh (PW.9) an inference was drawn that appellants abetted Keshkaii for committing suicide. 13. According to Shanti Bai (PW.7), Matadeen (PW.8) and Ramraja Singh (PW.9) one year prior to the date of incident, Keshkaii was beaten and harassed by the appellants in her in laws house and her husband Shyamlal had left her at her parental house, thereafter appellant Shyamlal had came to his in-laws house to take back his wife Keshkali, but Shantibal refused to send Keshkali with him. After one month Gulab Singh and Shyamlal again came to take Keshkali then the Panchayat was assembled. In the Panchayat Ramraja, Hariram, Chhatrapal Singh, Ashok Parashar and others were present. On the assurance given by Shyamlal and Gulab Singh in the Panchayat that in future Keshkali will not be harassed by them, then only Keshkali was sent with appellant-Shyamlal. Ten to Twelve days after coming to her (Keshkali's) matrimonial house, she died. In the Panchayat Ramraja, Hariram, Chhatrapal Singh, Ashok Parashar and others were present. On the assurance given by Shyamlal and Gulab Singh in the Panchayat that in future Keshkali will not be harassed by them, then only Keshkali was sent with appellant-Shyamlal. Ten to Twelve days after coming to her (Keshkali's) matrimonial house, she died. Therefore, on the basis of aforesaid evidence, the learned Trial Court has committed a grave mistake in arriving at a conclusion that appellants abetted Keshkali to commit suicide because of those alleged incidents took place much before the date of incident i.e. 6.10.1995. 14. The Hon'ble Apex Court in the case of Gangula Mohan Reddy Vs. State of Andhra Pradesh, AIR 2010 SC 327 explained the term "Abetment" as under: 20. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. 21. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide. 15. Moreover, thef statutory presumption under Section 113A of the Evidence Act was not applicable to the peculiar facts and circumstances of the present case as the marriage took place more than seven years back. In such a situation, the prosecution was required to establish a direct or indirect act of incitement attributed to the appellants [Kishori Lal Vs. State of M.P., (2007) 10 SCC 797 relied on]. 16. In my considered view, the learned Trial Court completely misdirected itself in holding that the appellants are guilty of the offence under Section 306 of IPC, by taking recourse to conjunctures and surmises and to explain the glaring infirmities in the prosecution evidence. 17. For the reasons stated hereinabove, this Court is unable to uphold the findings of the learned Trial Court convicting the appellants under section 306 of IPC. 18. Resultantly, this appeal succeeds and is hereby allowed. 17. For the reasons stated hereinabove, this Court is unable to uphold the findings of the learned Trial Court convicting the appellants under section 306 of IPC. 18. Resultantly, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by the learned Trial Court is set aside and the appellants are acquitted from the charge under Section 306 of IPC. The appellants are on bail and their bail bonds stand discharged. The amount of fine, if deposited be returned to the appellanrs.