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Madhya Pradesh High Court · body

2012 DIGILAW 251 (MP)

Charan Singh v. State of M. P.

2012-02-28

U.C.MAHESHWARI

body2012
JUDGMENT : 1.The appellant/accused has directed this appeal under Section 374 (2) of Cr.PC being aggrieved by the judgment dated 20-12-1999passed by 2nd Additional Sessions Judge, Jabalpur , inS.T. No. 698/92, convicted him under Sections 498-A and 306 of IPC for RI oneyear with fine of Rs . 200/-, in earlier section whileRI three years with fine of Rs . 300/- in later. 2.The facts giving rise to this appeal in short are that the deceased Leelabai got married with the appellant on 24-6-1988 . As alleged subsequent to,marriage in matrimonial home Leelabai was subjectedto beating in regular course under the influence of liquor by the appellant.She was used to ask by the appellant to bring Rs .20,000/- in dowry from her parental family. On 6-6-1992 in the morning the appellant under the influenceof the liquor carried out beating of his wife Leelabai by means of kicks and fists, consequently she got ill and was admitted in thehospital by her brother-in-law Ganesh . On receivingsuch information at the Police Station, a preliminary inquiry was held in whichit was known that she had consumed some poisonous substance but was not foundfit to give her statement so the same was not recorded. Later in the late nightduring treatment, she passed away, on which an inquest intimation wasregistered, in it's inquiry after preparing the dead body Panchnama ,her corpus was sent to the hospital for autopsy. The same was carried out byDr. A.K. Yadu (P.W. 12). Accordingto post-mortem report ( Exh . P-9), no definiteopinion regarding her cause of death was given by the doctor, however viscerawas preserved for chemical examination and the same was sent to the FSL Sagar . On establishing some prima facie circumstances ofthe offence the crime was registered and the same was investigated. Oncompletion of the same the appellant was charge sheeted for the offence ofSections 306 and 498-A of IPC. 3.After committing the case to the Sessions Court initially the charge of Section304-B of IPC was framed against the appellant subsequently on 15-1-1998 thesame was modified and the charge of Sections 498-A and 306 in alternate Section304-B of IPC were framed against the appellant, he abjured the guilt, on whichthe trial was held. 3.After committing the case to the Sessions Court initially the charge of Section304-B of IPC was framed against the appellant subsequently on 15-1-1998 thesame was modified and the charge of Sections 498-A and 306 in alternate Section304-B of IPC were framed against the appellant, he abjured the guilt, on whichthe trial was held. After recording the evidence on appreciation holding theappellant guilty for the offence of Sections 498-A and 306 of IPC he waspunished with the above mentioned punishment while he was acquitted from thechange of Section 304-B of IPC. Being dissatisfied with such conviction andsentence the appellant has come to this Court with this appeal. 4.Appellant's Counsel Shri R.S. Patel, after taking methrough the record without challenging the impugned conviction of the appellantunder Section 498-A of IPC assailed the conviction and sentence of theappellant under Section 306 of IPC. In this regard, he argued that theprosecution has utterly failed to prove the exact cause and nature of death ofthe deceased Leelabai whether her death washomicidal, suicidal or in any case was accidental. In this connection byreferring the deposition of aforesaid Dr. A.K. Yadu (P.W. 12), who carried out the autopsy and prepared post-mortem report ( Exh . P-9) of the deceased, argued that such doctor hasspecifically stated in the post-mortem report as well as in his deposition thathe could not find out the exact cause and nature of death of Leelabai , however her viscera was preserved to rule out thepossibility of her death due to consuming any poisonous substance. In thisregard, he further argued that although preserved viscera of the deceased wassent to FSL for it's chemical examination but it'sreport had neither produced nor proved on record and in the lack of-such reportthere was no occasion with the Trial Court to draw the inference that Leelabai by consuming some poisonous substance committedthe suicide. In the lack of materia.1 and admissible evidence showing that Leelabai died with suicidal or unnatural death, it couldnot be assumed that she was abetted by the appellant to commit suicide and insuch premises prayed for setting aside the conviction and sentence of theappellant under Section 306 of IPC. In the lack of materia.1 and admissible evidence showing that Leelabai died with suicidal or unnatural death, it couldnot be assumed that she was abetted by the appellant to commit suicide and insuch premises prayed for setting aside the conviction and sentence of theappellant under Section 306 of IPC. Besides this he also argued thatconsidering the long pendency of the present matterin which the appellant has suffered the mental agony of it for years togetheralong with the judicial custody of 56 days during trial between 11-6-1992 to7-8-1992, by adopting the lenient view his awarded jail sentence under Section498-A of IPC be reduced up to the aforesaid period for which he has alreadyundergone by enhancing the amount of fine under the discretion of the Court andprayed to allow this appeal accordingly. 5.On the other hand, State Counsel Shri Yogesh Dhande by justifying theimpugned conviction and sentence of the appellant under both the sections saidthat the same being based on proper appreciation of evidence do not require anyinterference at this stage. He further said that once the charge of Section498-A of IPC is found to be proved against the accused then in view ofprovision of presumption enumerated under Section 113-A of Evidence Act theconviction of such accused under Section 306 of IPC is justifiable and does notrequire any interference at the stage of appeal. However, in response of somequery of the Court he fairly conceded that unless the nature and cause of deathof deceased is proved on the record as suicidal the accused like appellantcould not be convicted under Section 306 of IPC. In such premises he alsofairly conceded that in view of available post-mortem report ( Exh . However, in response of somequery of the Court he fairly conceded that unless the nature and cause of deathof deceased is proved on the record as suicidal the accused like appellantcould not be convicted under Section 306 of IPC. In such premises he alsofairly conceded that in view of available post-mortem report ( Exh . P-9) and in the lack of FSL report regarding visceraof Leelabai , it could not be inferred that Leelabai died due to suicidal death or the homicidal deathbecause no injuries either internal or external was found on the body of thedeceased and in the lack of viscera report showing some poisonous substance wasfound in the same, it could not be assumed that she died with suicidal death.He further argued that in any case even on extending the acquittal to theappellant from the charge of Section 306 of IPC the conviction and awarded jailsentence of the appellant under Section 498-A of IPC for which sufficientevidence is available deserves to be sustained and looking to the nature of thecase the awarded jail sentence of the appellant under such section could not bereduced from one year to some lessor punishment byenhancing the amount of fine and prayed for dismissal of this appeal. 6.Having heard the parties at length keeping in view their arguments, I havecarefully gone through the record.- 7.It is undisputed fact on record that the deceased Leelabai died within seven years from the date of her marriage with the appellant. Asper settled proposition in order to prove the unnatural death of any person theprosecution is duty bound to prove the mode of his death by admissible medicalevidence, whether such death was homicidal, suicidal or accidental in nature.If it is stated to be suicidal then the prosecution has to prove further thatsuch suicide was committed by which mode either by hanging or consuming somepoisonous substance or setting fire on herself or otherwise. Till some extentthe above mentioned cause, nature and mode of death could be proved by the FSLreport from viscera or any other organs collected from the dead body while carryingout the post-mortem. 8.Keeping in view the aforesaid in order to examine the question whether Lcelabai committed suicide or died with some other mode ofdeath like homicidal or accidental, I have carefully gone through thepost-mortem report ( Exh . P-9) prepared by Dr. 8.Keeping in view the aforesaid in order to examine the question whether Lcelabai committed suicide or died with some other mode ofdeath like homicidal or accidental, I have carefully gone through thepost-mortem report ( Exh . P-9) prepared by Dr. A.K. Yadu (P.W. 12), so also the deposition of such doctor.According to such report as well as deposition of such doctor, no external orinternal injury was found in the corpus of the deceased Leelabai .On page No. 6 of such post-mortem report such doctor had given his opinionregarding her cause of death in these words "Time since death within 24hours. No cause of death found - viscera to be chemically examined." Insuch premises, it could be said that prosecution could not prove the exactcause of death of Leelabai through post-mortemreport. In the lack of any injury on the corpus of the deceased Leelabai , it could not be assumed that she died withhomicidal or accidental death. It is apparent on the record that seized viscerawas sent to the FSL for it's chemical examination but its report was neitherfiled nor proved on record. liven the explanationregarding non-production of such report has also not been placed on record.Therefore, in the lack of such report of FSL showing that some poisonoussubstance was found in the alleged viscera of the deceased, mere on imaginationit could not be assumed that Leelabai might havecommitted suicide by consuming some poisonous substance. In such premises, I amof the considered view that in the lack of admissible and reliable evidence toprove the case beyond reasonable doubt that Leelabai committed suicide or died with unnatural death, the accused like appellantcould not be convicted under Section 306 of IPC. In such premises, even ontaking into consideration the ocular evidence of the witnesses examined fromthe parental family of the deceased the awarded conviction and sentence of theappellant under Section 306 of IPC could not be upheld. Mere on the basis ofevidence or deposition of witnesses showing that in the life time of the Leelabai , she was subjected to harassment, torture orcruelty by the appellant, it could not be assumed that she instigated by theappellant to commit suicide and pursuant to that she committed the same. Mere on the basis ofevidence or deposition of witnesses showing that in the life time of the Leelabai , she was subjected to harassment, torture orcruelty by the appellant, it could not be assumed that she instigated by theappellant to commit suicide and pursuant to that she committed the same. Inview of the evidence available on the record, the possibility of natural deathof the deceased Leelabai could not be ruled out.Therefore, the conviction of the appellant under Section 306 of IPC being notsustainable along with it's awarded punishment ishereby set aside. 9.Setting aside the conviction and sentence of the appellant under Section 306 ofIPC does not mean that he is also entitled for acquittal from the charge ofSection 498-A of IPC. On going through the depositions of Dhaniram (P.W. 1), Gulab Patel (P.W. 2), Harishankar (P.W. 3), Ganesh (P.W. 9), Rama Patel (P.W. 15), uncles of the deceased, Dropdi Bai (P.W. 8), mother of the deceased and Ganesh Patel (P.W. 17) brother-in-law of the deceased soalso the deposition of defence witnesses Kandhilal Patel (D.W. 1), uncle of the appellant Bachchi Bai (D.W. 2), mother ofthe appellant I have found sufficient prima facie evidence against theappellant showing that in the life time of the deceased whenever she resided inthe matrimonial home with the appellant she was subjected to harassment andtorture by him and such act of the appellant comes under the preview of crueltydefined under Section 498-A of IPC but from the available evidence, it has notbeen proved that such cruelty was committed by the appellant with Leelabai on account of demand of dowry. In such premises,the Trial Court has not committed any error in acquitting the appellant fromthe charge of Section 304-B of IPC. Even otherwise, in the lack of evidenceproving that Leelabai died with unnatural death theacquittal of the appellant from the charge of Section 304-B of IPC could not besaid to be faulty. Hut in view of the depositions of aforesaid witnesses theapproach of the Trial Court holding guilty to the appellant under Section 498-Aof IPC does not require any interference at this stage. Consequently, theawarded conviction of the appellant under Section 498-A of IPC is herebyaffirmed. 10.Coming to consider the prayer of the appellant's Counsel for reducing theawarded jail sentence of the appellant under Section 498-A of IPC is concerned, I have found some substance in it. Consequently, theawarded conviction of the appellant under Section 498-A of IPC is herebyaffirmed. 10.Coming to consider the prayer of the appellant's Counsel for reducing theawarded jail sentence of the appellant under Section 498-A of IPC is concerned, I have found some substance in it. Consideringthe long pendency in which the appellant has sufferedthe mental agony of this case for more than fourteen years and also appeared onthe various dates in the Trial Court so also before this Court. Beside this, healso suffered the judicial custody of fifty six days during trial as statedabove and as per available record he did not have any criminal antecedents, soconsidering overall circumstances of the matter after affirming the convictionof the appellant under Section 498-A of IPC, I deem fit to reduce his jailsentence up to the aforesaid period of fifty six days for which he has alreadyundergone, by enhancing some amount of fine. 11.In view of the aforesaid discussion, by affirming the conviction of theappellant under Section 498-A of IPC, this appeal is allowed in part andappellant is acquitted from the charge of Section 306 of IPC, consequently theawarded punishment of such section is also set aside while the awarded jailsentence of the appellant under Section 498-A of IPC is hereby modified andreduced from one year to the aforesaid period of fifty six days for which hehas already undergone by enhancing the amount of fine from Rs .200/- to? 7,500/-. The amount of fine deposited by the appellant under Section306 of IPC shall be adjusted in the above mentioned enhanced fine amount underSection 498-A of IPC. The remaining enhanced line amount is to be deposited bythe appellant in the Trial Court within four months from today, failing indepositing the enhanced fine he has to suffer further six months RI. The bailbond of the appellant is hereby discharged. Till the aforesaid extent theimpugned judgment is modified while other findings of the same are herebyaffirmed. 12.Appeal is allowed in part as indicated above.