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Madhya Pradesh High Court · body

2012 DIGILAW 726 (MP)

Urmilabai v. State of M. P.

2012-07-17

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.:-- 1. The appellant has preferred ‘this appeal against the judgment dated 12.7.2000, passed by the Second Additional Sessions Judge, Seoni in S.T. No. 15/2000 whereby the appellant was convicted for offence punishable under Section 306 of I.P.C. and sentenced for 5 years rigorous imprisonment with fine of Rs. 1,000. In default of payment of fine, she was to undergo, additional rigorous imprisonment for six months. 2. The prosecution’s story in short is that at about 8.00 a.m. on 30.9.1999 the deceased Kamla Bai w/o Molu Basod (PW6) resident of village Sunhara went to answer the call of nature but suddenly she jumped into the well of one Bharat Singh. Her dead body was recovered from the well and a merg intimation was recorded at Police Station Kewlari. The dead body of the deceased Kamla was sent for postmortem after preparation of Panchanamalash. 3. Dr. Smt. Dehariya (PW8) did post-mortem upon the body of the deceased Kamla Bai and gave her report Ex. P11. She found that the deceased died due to asphyxia caused by drowning. Thereafter, the parents of the deceased informed the police that the appellant/sister-in-law of the deceased was continuously harassing the deceased and therefore, the deceased committed suicide. Under such circumstances, as case was registered against the appellant for offence punishable under Section 306 of I.P.C. After due investigation charge-sheet was filed before the J.M.F.C., Seoni who committed the case to the Sessions Court, Seoni. Ultimately it was transferred to the Second Additional Sessions Judge, Seoni. 4. The appellant abjured her guilt. She has stated that mother-in-law of the deceased was a quarrelsome woman, who was harassing the deceased. In the past mother-in-law was also harassing the appellant but, thereafter a partition took place and the appellant was residing in a separate house adjacent to the house of her mother-in-law. She has also stated that the deceased Kamla Bai and her husband were having continuously disputes for more than 6 months prior to the incident, whereas the appellant had no talking terms with the husband of the deceased. Under such circumstances, the appellant was falsely implicated in the matter. However, no defence evidence is adduced from the side of the appellant. 5. Learned Second Additional Sessions Judge. Seoni after considering the evidence adduced by the prosecution convicted the appellant for offence punishable under Section 306 of I.P.C. and sentenced as mentioned above. 6. Under such circumstances, the appellant was falsely implicated in the matter. However, no defence evidence is adduced from the side of the appellant. 5. Learned Second Additional Sessions Judge. Seoni after considering the evidence adduced by the prosecution convicted the appellant for offence punishable under Section 306 of I.P.C. and sentenced as mentioned above. 6. I have heard learned Counsel for the parties. 7. The learned Counsel for the appellant has submitted that the appellant was residing in a separate house and therefore, there was no day to day interference of the appellant in the family affairs of the deceased. Though the appellant was relative of the husband of the deceased but, looking to the position of the present case, presumption under Section 113A of the Evidence Act shall not apply. The overt acts of the appellant were not established beyond doubt. Overt acts of the husband and mother-in-law of the deceased were shifted upon the appellant and she is falsely implicated in the matter. It is also submitted that if it is presumed that the appellant harassed the deceased for two times then such coincidental harassment cannot be considered as ingredient of Section 107 of I.P.C. Hence, no offence punishable under Section 306 of I.P.C. is constituted against the appellant. The learned Counsel for the appellant has placed his reliance upon the various judgments of Hon’ble the Apex Court In the case of Sanju @ Sanjay Singh Sengar v. State of M.P., (2002) 5 SCC 371 ; M. Mohan v. State, (2011) 3 SCC 626 ; and S.S. Chheena v. Vijay Kumar Mahajan and another, (2010) 2 SCC 190 . In alternate, it is prayed that no minimum sentence is prescribed for the offence and looking to the circumstances that appellant is a woman having a small child with her, sentence directed by the Trial Court may be reduced to the period which she has already undergone in the custody. 8. On the other hand learned Panel Lawyer has submitted that the conviction and sentence passed by the Trial Court is appropriate and no interference is required either in conviction or on the point of sentence. 9. After considering the submissions made by learned Counsel for the parties and looking to the evidence adduced by the prosecution before the Trial Court it is to be considered that whether the appellant harassed the deceased? 9. After considering the submissions made by learned Counsel for the parties and looking to the evidence adduced by the prosecution before the Trial Court it is to be considered that whether the appellant harassed the deceased? Whether harassment done by the appellant comes within the purview of Section 107 of I.P.C.? whether the appellant can be convicted for offence punishable under Section. 306 of I.P.C. and whether sentence inflicted upon the appellant can be reduced. 10. Molu (PW 6), husband of the deceased has stated before the Trial Court that his wife went to answer the call of nature but, jumped into the well and committed suicide. It is not disputed by the appellant that the death of the deceased was suicidal. It is established by the eye-witness Sukhram (PW4) that the deceased jumped into the well and therefore, possibility of any accident is ruled out. Dr. Smt. Dehariya (PW8) has stated about the symptoms in the dead body and opined that the deceased died due to drowning. No external injury was found on her body. If she would have fallen in a well by accident then she must have sustained some injuries on her body caused by impact of wall etc. of the well. Under such circumstances, looking to the post-mortem report and evidence of the witness Sukhram (PW4), it is apparent that the victim had committed suicide. 11. Chandan Lal (PW1), father of deceased and Somwati Bai (PW2), mother of the deceased, have stated that the deceased was being harassed by the appellant from time to time but, they accepted in the cross-examination that prior to the marriage of the deceased, the appellant was residing in the adjacent house of her husband. A partition took place between both the brothers and their father and therefore, Molu, the husband of the deceased was residing with his father and mother whereas his brother Sonu was residing in a separate house and therefore, there was no day to day interference by the appellant. Molu (PW6) has also stated about the harassment done by the appellant to be deceased. Sukhram (PW4) and Kusum Lal (PW5) could not say about details of the quarrel and harassment but, Kusum Lal has stated that he was a Kotwar in the village and the deceased went to inform him about the activities of the appellant. Molu (PW6) has also stated about the harassment done by the appellant to be deceased. Sukhram (PW4) and Kusum Lal (PW5) could not say about details of the quarrel and harassment but, Kusum Lal has stated that he was a Kotwar in the village and the deceased went to inform him about the activities of the appellant. When the witness Kusum Lal tried to give some advise to the appellant then appellant told her that if he indulged in the matter then she would lodge an FIR against the witness Kusum Lal that he snatched the clothes of the appellant and therefore, he refrained from indulging in the matter. Under such circumstances, the defence taken by the appellant appears to be incorrect that harassment done by the mother-in-law of the deceased was shifted upon her. Looking to the evidence of Kotwar Kusum Lal (PW 5), it appears that the appellant is a quarrelsome woman. 12. However, if evidence of Chandan Lal (PW1), Somwati Bai (PW2) and Molu (PW 6) is considered then disputes took place between the appellant and the deceased on two counts. Firstly, that the parents of the deceased gave a hen to her and that hen was habitually moving in the courtyard of the appellant and was spreading dirt by its excreta, causing annoyance to the appellant. Second point was that the appellant was blaming the deceased that she Could not have any child in so many days and therefore, she was banjh Molu (PW6) has stated that appellant was using a specific word for that position i.e. Khasua. Husband of the deceased, Molu has accepted in para 4 of his evidence that quarrel due to when took place in last six months of her death but, initially quarrel was going on since the marriage of the deceased. As per the witnesses Chandanlal (PW1), Somwati Bai (PW2) and Molu (PW6) once the appellant directed Molu to assault the deceased by a chappal and it was Molu who could save the deceased from such an assault. 13. If such circumstances are considered one by one then it would be apparent that when the appellant shouted because her courtyard was made dirty by the hen of the deceased then Molu went to the courtyard and cleaned it by himself/and by that quarrel had ended. 14. 13. If such circumstances are considered one by one then it would be apparent that when the appellant shouted because her courtyard was made dirty by the hen of the deceased then Molu went to the courtyard and cleaned it by himself/and by that quarrel had ended. 14. It is true that a quarrel relating to the hen continued for six months but it is not a quarrel of such nature that it had happened on each and every day of those six months. Under such circumstances, it cannot be said that the quarrel was sufficient to give an impulse to the deceased so that she could commit suicide. She could have managed in her own house so that hen would not go in the house of the appellant or the hen could be sold at the most. 15. As far as the other quarrel is concerned it is also clear from the statement of Molu (PW6), husband of the deceased that the deceased died after four years of her marriage and in the span of four years, only one incident took place when the appellant directed her husband to assault the deceased by chappal but, the witness Molu saved her. It is not stated by the witness Chandan Lal (PW1) or Somwati Bai (PW2) that such type of assault was caused by the appellant frequently. No specific date has been given about that assault and therefore, it cannot be said that the deceased committed suicide due to that incident. 16. It is told by the witnesses that when that assault took place, the appellant told the deceased that she could sleep with her brother etc. and abused in a wild manner but, it is no where mentioned that on what date such incident took place. Chandan Lal has stated that such incident of chappal took place in the last nine months of her life but it took place before Raksha Bandhan and the deceased informed about the incident to her parents when she came for Raksha Bandhan. Deceased died in October and she came back to her husband’s house nine months ago i.e. in the month of January. Deceased died in October and she came back to her husband’s house nine months ago i.e. in the month of January. She told about the incident on her visit during Raksha Bandhan i.e., in month of August and therefore, the event relating to assault by chappal took place between January 1999 to August 1999, whereas the deceased went to the house of her parents thereafter, and she did not commit suicide soon after that incident. 17. It is also stated by the witnesses that the appellant was in a habit to abuse the deceased on the basis that she was not blessed by any child. Molu (PW6) has stated that one day prior to the incident a quarrel took place between the appellant and the deceased because the hen made the courtyard of the appellant dirty by its excreta and thus the appellant asked the deceased to jump in the well as passed filthy abuses. He has also submitted that the appellant directed the husband of the deceased to assault her by chappal and thereafter, on the next day the deceased jumped into the well. However, Molu (PW6) did not state about the exact date of incident in his case diary statements. The deceased has referred about this incident to the witness Kotwar Kusumlal and therefore, the evidence of the witness Molu is not correct that such incident took place on the previous day of the incident. It is evidently proved that it took place much prior to the incident. Under such circumstances, it cannot be said that the deceased committed suicide due to such impulse. 18. Lastly it is alleged that the appellant was abusing the deceased on the basis that she was not blessed by any child in last four years but, by such type of sarcastic remarks the deceased could be penetrated deeply but, when the appellant was residing in a separate house and the deceased was not confronted with the appellant on day to day basis then by such sarcastic remarks it cannot be said that the deceased could commit suicide. In this connection judgment passed by Hon’ble the Apex Court in the case of Sanju (supra) may be perused in which it is observed that a quarrel took place between the appellant and deceased in which the appellant/accused was said to have told the deceased “to go and die”. In this connection judgment passed by Hon’ble the Apex Court in the case of Sanju (supra) may be perused in which it is observed that a quarrel took place between the appellant and deceased in which the appellant/accused was said to have told the deceased “to go and die”. Deceased was found dead two days later. It was observed that suicide was not proximate to the quarrel though the deceased was named in the suicidal note. Suicide was not the direct result of that quarrel and therefore, the appellant abused in such a manner but, it was not meant by him. It was observed that no offence under Section 306 of I.P.C. is made out. 19. Similarly in case of M. Mohan (supra) Hon’ble the Apex Court has observed that by giving details of the incident that the accused had tortured the deceased on some pretext or other especially in connection with getting a car from her father but, there was no proximate link between the use of family car and the factum of suicide. Deceased committed suicide four days later. There was no allegation of dowry demand even then the appellant could not be convicted for offence punishable under Section 306 of I.P.C. In the light of aforesaid judgments of Hon’ble the Apex Court, if the facts of the present case are considered then there is a lot of difference between the allegations told by the witnesses. It was established that one day prior to the incident the appellant abused the victim and directed her to commit suicide. She abused her in a bitter manner but, by such words it cannot be said that the deceased was instigated to commit suicide. Molu, husband of the deceased has mixed the two incidents simultaneously, one when hen of the deceased made the courtyard of the appellant dirty and second when the appellant directed her husband to assault the deceased by a chappal. Molu, husband of the deceased has mixed the two incidents simultaneously, one when hen of the deceased made the courtyard of the appellant dirty and second when the appellant directed her husband to assault the deceased by a chappal. According to witnesses Chandu Lal (PW1) and Somwati Bai (PW2) such incident relating to assault by a chappal was caused in between January and August of that year and thereafter, the deceased had opportunity to visit the house of her parents and therefore, it cannot be said that such incident took place soon before the incident of suicide and therefore, it cannot be said that incident in which the appellant directed the husband of the victim to assault her by a chappal and directed her to commit suicide had caused any impulse to the deceased to commit suicide. 20. It is nowhere established that on which date the incident relating to harassing the deceased took place. The deceased was the wife of the witness Molu whereas, the appellant was residing in a separate house. There was no opportunity to the appellant to abuse the victim on each, and every day. In Merg intimation Molu, husband of the deceased, did not inform the police about the activities of the appellant. Looking to the case diary statement of the witness Molu it would be clear that the deceased died on 30.9.1999 and the witness Molu stated before the police for the first time on 27.10.1999. The allegations were made by husband of the deceased after four weeks approximately. It is possible that the deceased died due to some quarrel between deceased and her husband and therefore, it was possible for the witness Molu to shift his guilt because the appellant often quarrelled with the deceased. If the incident of hen took place one day prior to the incident of suicide then such incident could not be told by the deceased to her parents because after Raksha Bandhan no meeting took place between the deceased and her parents but that incident was known to the parents of the deceased and therefore, evidence of the witness Molu cannot be accepted that such incident of excreta of hen took place on a day prior to the date of incident. Such incident took place much prior to the date of incident relating to suicide. Such incident took place much prior to the date of incident relating to suicide. Under such circumstances, no overt act of the appellant is connected with the suicide committed by the deceased. The deceased and the appellant were not residing in the same house and therefore, there was no possibility of their quarrelling on each and every day. Quarrel was not of a continuous nature. Under such circumstances, in the light of judgment passed by Hon’ble the Apex Court in the case of Sanju (supra) and M. Mohan (supra) overt acts of the appellant do not fall within the purview of Section 107 of I.P.C. and therefore, she cannot be convicted for offence punishable under Section 306 of I.P.C. Learned Additional Sessions Judge erred in convicting the appellant for such an offence. 21. On the basis of the aforesaid discussion, appeal filed by the appellant seems to be acceptable that she quarreled with the deceased for six months in the past but, her overt acts do not fall within the purview of Section 107 of I.P.C. and therefore, she cannot be convicted for the offence punishable under Section 306 of I.P.C. Consequently, this appeal can be accepted and hereby accepted. Conviction as well as the sentence directed by the Trial Court is hereby set aside. The appellant is acquitted of the charges punishable under Section 306 of I.P.C. She shall be entitled to get the fine amount back if she has deposited before the Trial Court. 22. At present the appellant is on bail. Her presence is no more required in the Court and therefore, it is directed that her bail bonds shall stand discharged. 23. Copy of the judgment be sent to the Trial Court for information and compliance. Appeal allowed.