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2012 DIGILAW 581 (MP)

Sarjoo S/O Raghuvansh v. State Of M. P.

2012-06-20

U.C.MAHESHWARI

body2012
JUDGMENT : The appellant No. 1-Sarjoo and the appellant Dadulal (since deceased) have directed this appeal under section 374(2) of Criminal Procedure Code being aggrieved by the judgment dated 12-4-1996 passed by 2nd Additional Sessions Judge, Sidhi in S. T. No. 162/95 convicting and sentencing to each of them under section 306 of Indian Penal Code with a direction to undergo for five years RI with fine of Rs. 2,000/-, in default of depositing the fine further three months RI. 2. The facts giving rise to this appeal in short are that the deceased Gendiabai got married with the deceased appellant No. 2 Dadoolal who was the son of appellant No. 1 Sarjoo. Subsequent to marriage the appellants did not want to keep the deceased in their family. She was not given the proper meals and clothes in the matrimonial home by the appellants and was also subjected to beating in the regular course of life for bringing the dowry from her parental home. The appellants also used to snatch the sum of wages from her. On some of the aforesaid occasions she was ousted from matrimonial home, on which under compulsion she resided in her parental house. On giving assurance by the appellants not to do the aforesaid act with her she was used to come matrimonial home but whenever she came and resided in the matrimonial home she was always subjected to harassment and cruelty by the appellants, consequently on 8-10-1995 by setting fire on herself she committed suicide. On receiving such information at P. S. Bahari an inquest intimation (Ex.P.4) was registered, in its inquiry the spot map (Ex.P.3) and memorandums of dead body were prepared and dead body was send to hospital where its autopsy was carried out. In further inquiry on establishing prima facie ingredients of the offence of section 306 of Indian Penal Code against the appellants the crime was registered at the same police station against them, they were arrested. In investigation the interrogatory statements of the witnesses were recorded. On completion of the investigation they were charge-sheeted for the abovementioned offence. 3. After committing the case to the Sessions Court on evaluation of the charge-sheet the charge of section 306 of Indian Penal Code was framed against the appellants (including the deceased appellant No. 2), they abjured the guilt, on which the trial was held. On completion of the investigation they were charge-sheeted for the abovementioned offence. 3. After committing the case to the Sessions Court on evaluation of the charge-sheet the charge of section 306 of Indian Penal Code was framed against the appellants (including the deceased appellant No. 2), they abjured the guilt, on which the trial was held. After recording the evidence on appreciation of the same after holding guilty to the appellants under the aforesaid section each of them was punished with sentence as stated above. On which the appellants have come to this Court. 4. In pendency of this appeal the appellant No. 2 Dadoolal had passed away, pursuant to it the appeal has become abeted till his extent, so his name was deleted from the array of appeal memo on 13-4-2012. 5. Shri P. R. Bhave, Senior Advocate appearing on behalf of the appellants after taking me through the record of the trial Court as well as the impugned judgment said that on proper appreciation of the available evidence this was not the case of conviction of the appellants but they were convicted by the trial Court under the wrong premises. In continuation he said that in order to prove the case the prosecution has examined only two witnesses from the parental family of the deceased namely Ganga (P.W.2) and Ram Newaj (P.W.3) and by referring their depositions said that on taking into consideration the same in its entirety even then the ingredients of the offence of section 306 of Indian Penal Code are not made out against any of the appellants. He further said that in the lack of specific and admissible evidence showing the alleged incident of beating and cruelty mere on vague depositions of these witnesses accused like appellants could not be convicted by the trial Court. According to him, the prosecution has utterly failed to prove that at any point of time the deceased was subjected to any harassment or cruelty by any of the appellants. He also said that there is no evidence showing that any point of time the deceased was abeted by the appellant No. 1 to commit suicide. With these submission he prayed for acquittal of the appellant No. 1 by allowing this appeal. 6. He also said that there is no evidence showing that any point of time the deceased was abeted by the appellant No. 1 to commit suicide. With these submission he prayed for acquittal of the appellant No. 1 by allowing this appeal. 6. On the other hand Shri Umesh Pandey, learned Government Advocate by justifying the impugned conviction and sentence of the appellants under the aforesaid section, said the same being based on proper appreciation of available evidence and in conformity with law does not require any interference for extending the benefit of acquittal to the appellant. He further said that prosecution has successfully proved the ingredients of the offence of section 306 of Indian Penal Code read with section 107 of Indian Penal Code against the appellants and prayed for dismissal of this appeal. 7. Having heard the parties keeping in view their arguments after going through the record of the trial Court so also the impugned judgment, I am of the considered view that the impugned conviction deserves to be set aside for the reasons mentioned hereinafter. 8. It is undisputed fact in the matter the marriage of the appellant No. 2 with Gendia was solemnized before 8-10 years from the date of committing the suicide by the deceased Gendia. In such premises the provision of presumption enumerated under section 113-A of the Evidence Act is not applicable in the matter. Hence the burden to prove the alleged offence against the appellants was entirely on the shoulder of the prosecution. Therefore, on appreciation of evidence if it is found that the ingredients of the offence punishable under section 306 of Indian Penal Code are not made out then the impugned conviction of the appellants could not be sustained. 9. It is not in dispute in the matter that subsequent to alleged marriage the deceased Gendia resided in her matrimonial home with the appellants. If the deceased was subjected to any harassment or cruelty of the appellants in the matrimonial home then the same ought to have been proved by the prosecution by specific and positive admissible evidence or in any case the prosecution had to prove that the deceased was abetted to commit suicide by the appellants in the manner defined under section 107 of Indian Penal Code. Because in section 306 of Indian Penal Code the terms of "abetment" to commit suicide has not been defined, even in the beginning part of the Indian Penal Code the definition of abetment has not been given. Therefore, as per settled proposition the definition of "abetment" of a things defined under section 107 of Indian Penal Code is taken into consideration while dealing with the section 306 of Indian Penal Code. According to section 107 of Indian Penal Code the prosecution is bound to prove any of the following ingredients : "Section 107. Abetment of a thing. - A person abets the doing of a thing, who- First.- Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing". 10. In order to prove the aforesaid, the prosecution has examined two witnesses from the parental family of the deceased namely Ganga (P. W2), uncle of the deceased and Ramnewaj (P.W.3) her brother. Ganga (P.W.2) in his deposition stated that his niece Anarkali was married with the appellant No. 2 before 8-10 years. He further stated that whenever he visited her matrimonial home she always told him that her father-in-law appellant No. 1 and husband appellant No. 2 (since deceased) are harassing her on account of demand of dowry and pressurized her to bring the same from her parental home. He further stated that she died because of burn injuries. In entire in- chief he did not state any date of incident or particular or occasion on which such harassment was carried out with the deceased by the appellants, Ramnewaj (P.W.3) in his deposition stated that his sister was married with the deceased appellant No. 2 before 8-10 years and marital relation was consumed between them after six-seven years from their marriage. He further stated that whenever her sister visited his home always told him that she is subjected to abuses and beating in the matrimonial home and also shown the injuries sustained by her in such beating. He also stated that she was not given proper meals and clothes by the appellants. He further stated that whenever her sister visited his home always told him that she is subjected to abuses and beating in the matrimonial home and also shown the injuries sustained by her in such beating. He also stated that she was not given proper meals and clothes by the appellants. In further averments he stated that she was also asked by the appellants to bring dowry from the parental home. 11. The aforesaid both the witnesses in their in-chief have not stated any date, occasion or specific particular on which the appellants or any of them had given the alleged harassment or cruelty to the deceased or abeted her by any means to commit suicide. If the entire in-chief of said witnesses is taken in consideration as accepted in its entirety, even then any of the aforesaid ingredients of abetment of thing defined under section 107 of Indian Penal Code are not made out against any of the appellants. I have not found anything in such statement showing that at any point of time either the present appellant or the deceased appellant had instigated the deceased to commit suicide by any act or omission or any of them were involved in any conspiracy pursuant to which the deceased Gendia proceeded to commit suicide and committed the same as well as the prosecution has also failed to prove that any criminal aid was given to the deceased by the appellants to commit suicide. 12. Besides the aforesaid statement three other witnesses have also been examined, out of them Dr. B. B. Singh (P.W.I), who carried out the post-mortem of the corpus of deceased and prepared Ex.P-1 post-mortem report, in his deposition stated that Anarkali died due to burn injury sustained by her in her life time. True it is that alleged incident is very unfortunate in which the deceased Gendia committed suicide by setting fire on herself, but however in the lack of evidence regarding abetment to commit suicide to the deceased by the appellants, any of the them could not be convicted in the matter mere on the basis of the aforesaid available evidence adduced on the record. 13. Bhaiyalal (P.W.4) is examined in relation to the registration of the inquest report Ex.P.4, he proved only the inquest report and not stated anything against the appellants. 13. Bhaiyalal (P.W.4) is examined in relation to the registration of the inquest report Ex.P.4, he proved only the inquest report and not stated anything against the appellants. D. P. Pandey (P.W.5), the investigating officer had proved papers of the investigation but in addition to it he has not stated anything regarding ingredients of the alleged offence against any of the appellants. 14. It is apparent fact on record that at the time of preparing the memorandum of dead body, her brother Ram Newaj was present and signed such memorandum as witness but at that time he did not state anything regarding alleged cruelty with the deceased by the appellants. Whether at the time of preparing the dead body memorandum he has made the statement regarding alleged allegation of abetment to commit suicide to the deceased by the appellants has not been proved on record? On perusing the record I have not found any statement which was given by Ram Newaj to the police at the time of preparing the memorandum of dead body (Ex.P.2). Such circumstance also goes to extend the benefit of acquittal to the appellants. In this way the evidence which was collected by the prosecution agency during the merg inquiry was relevant but the same has neither been produced nor proved on record. Thus in the lack of such evidence no inference could be drawn against the appellants for holding or maintaining their impugned conviction awarded by the trial Court. 15. In the aforesaid premises the approach of the trial Court holding conviction against the appellants under section 306 of Indian Penal Code being perverse is not sustainable and deserves to be set aside. 16. Therefore, by allowing this appeal the impugned judgment of the trial court holding conviction against the appellants is hereby set aside and the appellant No. 1 is acquitted from the charge of section 306 of Indian Penal Code. The bail bonds of the appellant No. 1 is hereby discharged. The amount of fine if deposited by the appellant No. 1 be refunded to him after proper verification. 17. Appeal is allowed as indicated above.