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Madhya Pradesh High Court · body

2012 DIGILAW 662 (MP)

Umesh Kumar v. State of M. P.

2012-07-03

N.K.GUPTA

body2012
JUDGMENT : This criminal appeal is preferred by the appellants being aggrieved by the judgment and order of sentence dated 28/1/1997 passed by the 3rd Additional Sessions Judge, Rewa in ST No.172/1993, whereby the appellants were convicted for commission of offence punishable under Sections 306 and 498-A of IPC and sentenced for three years' rigorous imprisonment with fine of Rs.500/- and one year's rigorous imprisonment with fine of Rs.200/-. In default of payment of fine amount, an additional simple imprisonment for three months and one month respectively was directed. 2. Prosecution case, in short, is that on 20.6.1993 Pushpa wife of appellant Umesh Kumar died in unnatural circumstances. A merg intimation was given to the police Raipur Kalchuriyan District Rewa and it was registered as Ex.P-1. Merg intimation was given by the doctor concerned, because Pushpa was admitted in the hospital for treatment till her death. The postmortem was also performed on the body of the deceased Pushpa and a report Ex.P-7 was prepared by Dr. A.K. Pathak (PW-8). He found that the deceased died due to poisoning, and therefore viscera was preserved for its forensic science analysis. The marriage of the deceased Pushpa took place in the year 1985 and she died in the year 1993. In the merg enquiry, the parents and relatives of the deceased had informed that she was being harassed for dowry demand etc., and therefore she committed suicide. Thereafter a crime was registered on 4.7.1993 for commission of offence punishable under Sections 306 and 498-A of IPC by the FIR Ex.P-9. The investigation was initiated and a charge sheet was filed before the JMFC Rewa, who committed the case to the Sessions Court and ultimately it was transferred to 3rd Additional Sessions Judge, Rewa. 3. The appellants-accused did not take any specific plea in defence but they simply stated that they kept the deceased Pushpa with comfort. There was neither any dowry demand nor harassment done with the deceased Pushpa. However, no defence evidence was adduced by the appellants. 4. After considering the evidence adduced by the prosecution, the third learned Additional Sessions Judge convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties at length. 6. There was neither any dowry demand nor harassment done with the deceased Pushpa. However, no defence evidence was adduced by the appellants. 4. After considering the evidence adduced by the prosecution, the third learned Additional Sessions Judge convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties at length. 6. Learned counsel for the appellants has submitted that the deceased died after seven years of her marriage, and therefore no presumption under Section 113-A of the Evidence Act was applicable. The allegations regarding dowry demand and harassment were created by the parents and relatives of the deceased after the death of the deceased. No harassment from the side of the appellants is proved, and therefore the appellants neither could be convicted for commission of offence punishable under Section 306 of IPC nor for commission of offence punishable under Section 498-A of IPC. The Ex.P-2, which is a letter written in the year 1989 was not at all relevant, however it was filed in the statement of witness Arun Gautam (PW-5). The complainant party had hidden that letter and it was not produced with the charge sheet. That letter was not given to the police. It was not at all proved that the said letter was written by the appellant Vanshpati Prasad. It was not established that the deceased committed suicide and therefore the appellants could not be convicted for commission of offence punishable under Section 306 of IPC on this count also. Under such circumstances, it is prayed that the present appeal may be allowed. 7. On the other hand, learned counsel for the State has argued in support of the impugned judgment and order of conviction on the ground that conviction and sentence directed by the trial Court appears to be correct, hence no interference is warranted by this Court. 8. For consideration of the instant appeal, it is to be seen that whether the death of the deceased was suicidal or not? Whether any harassment was done by the appellants to the deceased Pushpa during her lifetime? Whether such harassment comes under the category of abetment under Section 107 of IPC and whether any interference may be done in the sgitence awarded by the trial Court to the appellants? 9. Whether any harassment was done by the appellants to the deceased Pushpa during her lifetime? Whether such harassment comes under the category of abetment under Section 107 of IPC and whether any interference may be done in the sgitence awarded by the trial Court to the appellants? 9. It is admitted that the deceased died in the hospital and she was admitted in the hospital with the history that she consumed some poison. Dr. A.K. Pathak (PW-8) who did the postmortem on the body of the deceased and gave a report Ex.P-7 has opined in the report that the deceased died due to consumption of some poison. He preserved the viscera of the deceased and sent it for forensic analysis. No forensic science report was received till the disposal of the case. Looking to the symptoms of the body where it was turned blue, opinion of Dr. Pathak (PW-8) is acceptable and it is proved that the deceased died due to consumption of some poisonous substance. The deceased was living with the appellants in their house, and therefore it was for the appellants to inform that some edible was taken by the deceased which could be suspected to be a poisonous substance otherwise it would be presumed that she committed suicide. Looking to the statement given by Gajanan Prasad Gautam (PW-1) it is clear that deceased Pushpa went to her parents' house to attend a marriage ceremony and when she came back to the house of the appellants on the same very day she committed suicide. There was no substance shown by the appellants that she took any medicine or she took any substance which caused food poisoning. Under such circumstances, it is apparent that the death of the deceased was a suicide. 10. The marriage of the deceased took place in the year 1985 whereas she died in the year 1993 i.e. after seven years of her marriage. Under such circumstances, presumption under Section 113-A of the Evidence Act does not apply in the case, and therefore simple harassment done by the appellants in past shall not constitute the offence of abetment of suicide unless harassment should be of that nature, which is covered under Section 107 of IPC. 11. The case of the prosecution depends upon one letter Ex.P-2 dated 17.11.1989. 11. The case of the prosecution depends upon one letter Ex.P-2 dated 17.11.1989. Neither that letter was given to the police by the complainant party nor it was shown by the parents of the deceased in their statements. Arun Gautam (PW-5), brother of the deceased on his examination produced that letter before the Court. It is nowhere established that Ex.P-2 was written by the appellant Vanshpati Prasad, and therefore by that letter it cannot be said that any demand was made relating to golden substance from father of the deceased. Secondly, if it is presumed that it was written by the appellant Vanshpati Prasad, then it is clear that it was written before Gona which took place in 1990. Gajanan Prasad Gautam (PW-1), Ramlali (PW-2) and Arun Gautam (PW-5) did not say anything that at the time of Gona, Vanshpati Prasad or any of the appellant resisted against the custom of Gona for that demand made in the letter Ex.P-2. They did not say anything that even after Gona the appellants ever demanded the dowry which was mentioned in the letter Ex.P-2, and therefore if the letter Ex.P-2 was written by the appellant Vanshpati Prasad, then it was a formality for the custom which was asked by Gajanan Prasad Gautam (PW-1) to Vanshpati Prasad. But looking to the conduct of the appellants, they never insisted for that golden substance from the side of the parents of the deceased, and therefore by letter Ex.P-2 nothing is proved against the appellants. 12. Gajanan Prasad Gautam (PW-1), Ramlali (PW-2) and Arun Gautam (PW-5) have stated that in Gona one tap recorder was given, but it was returned because it was not working. Gajanan Prasad Gautam (PW-1) has admitted in para 11 of his statement that the tap recorder was given by their own will and it was not demanded by the appellants. Under such circumstances, it would be clear that there was no dowry demand from the side of the appellants at the time of Gona. Gona took place in the year 1990 i.e. after five years of the marriage of the deceased Pushpa and appellant Umesh Kumar. After custom of Gona, the deceased resided with the appellants for three years approximately and in that period Gajanan Prasad Gautam (PW-1) did not allege anything about any dowry demand or harassment to that demand. Gona took place in the year 1990 i.e. after five years of the marriage of the deceased Pushpa and appellant Umesh Kumar. After custom of Gona, the deceased resided with the appellants for three years approximately and in that period Gajanan Prasad Gautam (PW-1) did not allege anything about any dowry demand or harassment to that demand. He has stated in para 4 of his statement that Pushpa used to inform her mother about the dowry demand. She never informed to her father Gajanan Prasad Gautam about the dowry demand. Similarly, he has admitted that before Gona of the deceased Pushpa, partition took place between Vanshpati Prasad and his brother and they were residing separately. Ramlali (PW-2) has stated that after the custom of Gona, the deceased Pushpa came to her house in Hindi month of Aghan. At that time she did not allege anything about dowry demand. She remained in the house of her mother upto Hindi month of Vaishakh. Thereafter when she came back for the second time, then she told that, in her in laws house a talk took place about dowry. Again she went to the house of the appellants after living one month in the house of witness Ramlali. Thereafter she came to attend the marriage ceremony of her cousin Pradeep but in that marriage ceremony she did not say anything about dowry demand. Looking to the evidence of Ramlali (PW-2) it would be apparent that there was no specific demand from the side of the appellants regarding dowry otherwise the deceased Pushpa would have informed about that demand to her mother. If some talk relating to dowry took place in the house of the appellants, then it does not mean that it was a demand. Such type of criticism is natural in the house of every one. Under such circumstances, looking to the evidence of Ramlali (PW-2) it appears that there was no dowry demand from the side of the appellants to the deceased. 13. Arun Gautam (PW-5), brother of the deceased has stated something different from his parents. He has stated that the deceased informed him that she was suffering from stomach pain but the appellants did not care for her treatment and they replied that no dowry was liven, therefore she should get treatment in her parents' house. 13. Arun Gautam (PW-5), brother of the deceased has stated something different from his parents. He has stated that the deceased informed him that she was suffering from stomach pain but the appellants did not care for her treatment and they replied that no dowry was liven, therefore she should get treatment in her parents' house. He has stated that some criticism took place in the house of the appellants for not giving tap recorder. Statement given by Arun Gautam (PW-5) appears to be an after thought. If such problem had happened with the deceased Pushpa, then it must be in the knowledge of her mother but Ramlali (PW-2) did not say anything about such fact, and therefore it appears that Arun Gautam (PW-5) who produced the letter Ex.P-2 was trying to implicate the appellants unnecessarily. He was cooking some story of harassment. Arun Gautam (PW-5) has also stated that when marriage of Pradeep was fixed in the month of May 1993 then his uncle was sent to fetch the deceased Pushpa. Appellant No.2 Vanshpati Prasad returned her uncle with the pretext that if someone comes from the house of bride Pushpa, then that person should come with some gift etc. and similarly when bride Pushpa returns from her parents' house then she should not come bare handed but such incident is not supported either by Gajanan Prasad Gautam (PW-1) or Ramlali (PW-2), and therefore such story told by Arun Gautam (PW-5) cannot be accepted. It appears to be a cooked story. Arun Gautam (PW-5) has also stated that when he saw the body of the deceased, then he found that there were some injuries on the body of her sister Pushpa caused by sticks, but in the postmortem report, no such injury was found by Dr. A.K.Pathak (PW-8). Under such circumstances, it is apparent that witness Arun Gautam (PW-5) is making vague allegations without any basis. His statements which are not confirmed either by Gajanan (PW-1) or Ramlali (PW-2), cannot be accepted for the prosecution. He has admitted in para 9 of his statement that when his sister died, he was studying at Rewa, and therefore he had no knowledge about the fact and the reason of the death of his sister. According to him, the appellants were harassing his sister Pushpa, but he did not state such a fact in his case diary statement. He has admitted in para 9 of his statement that when his sister died, he was studying at Rewa, and therefore he had no knowledge about the fact and the reason of the death of his sister. According to him, the appellants were harassing his sister Pushpa, but he did not state such a fact in his case diary statement. Uncle who went to bring the deceased Pushpa is not at all examined. Under such circumstances, if the statements of all the witnesses are examined, then the prosecution failed to prove that deceased Pushpa was ever harassed by the appellants for dowry demand or otherwise, and therefore no overt-act of the appellants is proved which may come under the essential ingredients of Section 107 of IPC, and therefore no offence under Section 306 of IPC is constituted against the appellants. 14. According to the witnesses Gajanan Prasad Gautam (PW-1) and Ramlali (PW-2), after marriage of Pradeep cousin of the deceased, Pushpa was detained in the house of her parents. Appellant Umesh Kumar went to the house of the parents of the deceased to take her wife Pushpa back, but she was not sent at that time and thereafter she was sent and on the same day she committed suicide. Under such circumstances, it is possible that since Pushpa was detained unnecessarily, therefore the appellant Umesh Kumar must have felt disappointed and insulted and they might have quarrelled after she returned from her parents' house. Under such circumstances, it cannot be said that it was a harassment from the side of the appellant Umesh Kumar. Nobody knew about that incident. No reason is established as to why the deceased Pushpa committed suicide on the same day when she reached to the house of the appellants. Gajanan Prasad Gautam (PW-1) and Ramlali (PW-2) have admitted in their cross examination that Pushpa and her husband Umesh Kumar had good relations with each other. Pushpa and Umesh Kumar were visiting the house of Gajanan Prasad Gautam etc. without any hesitation. They had affectionate relations. There was no information to these witnesses about any dispute which might have taken place between the deceased Pushpa and her husband Umesh Kumar. Under such circumstances, neither any harassment is proved to the deceased Pushpa done by the appellants nor any overt-act is proved which falls within the purview of Section 107 of IPC. They had affectionate relations. There was no information to these witnesses about any dispute which might have taken place between the deceased Pushpa and her husband Umesh Kumar. Under such circumstances, neither any harassment is proved to the deceased Pushpa done by the appellants nor any overt-act is proved which falls within the purview of Section 107 of IPC. Under such circumstances, the learned Additional Sessions Judge had erred in convicting the appellants for commission of offence punishable under Section 306 as well as 498-A of IPC. 15. On the basis of aforesaid discussion where it is apparent that the prosecution could not establish any overtact of the appellants which may amount to harassment to the deceased or which may come within the purview of Section 107 of IPC, under such circumstances the instant appeal filed by the appellants deserves to be allowed. 16. Consequently, the appeal of the appellants is allowed. The conviction and sentence directed by the trial Court vide its judgment dated 28.1.1997 in ST No.172/1993 are hereby set aside. The appellants are acquitted from all the charges appended against them. They shall be entitled to get the fine amount back if they have deposited before the trial Court. 17. At present appellants are on bail, and therefore their presence is no more required, therefore it is directed that their bail bonds shall stand discharged. 18. A copy of this judgment be sent to the concerned trial Court with its record for information and compliance.