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Madhya Pradesh High Court · body

2012 DIGILAW 926 (MP)

Rajaram alias Raja v. State of M. P.

2012-09-25

N.K.GUPTA

body2012
JUDGMENT : (Deliveredon the 25th day of September, 2012) This criminal appeal is preferred by theappellant being aggrieved by the judgment and order of sentence dated 6/12/1996passed by the First Additional Sessions Judge, Seoni in ST No.152/1993, whereby the appellant was convicted for commission ofoffence punishable under Section 306 of IPC and sentenced for five years'rigorous imprisonment with fine of Rs.300/-. In default of payment of fineamount, he was to undergo for one month's simple imprisonment in addition. 2.The prosecution's case, in short, is that the deceased Sunita Bai had expired on 24.5.1993 at about 9:30 PM in the night due to burn injurieswhich were caused at her house situated at Village Kohka (Police Station Lakhanwada District Seoni ). The marriage ceremony of the deceased Sunita Bai took place with theappellant in the Criminal Appeal No.2193/1996 past. On 25.5.1993 an intimation was given by Dr. B.P.Namdeo to the Police Station Seoni that the victim Sunita Bai , who was admitted in the Government Hospital , Seoni had expired, and therefore a case wasregistered by the Police Station Seoni . A panchnama -lash was prepared and the dead body of thedeceased Sunita Bai wassent for the postmortem. Dr. A.K. Saravgi (PW-9) hadperformed the postmortem on the body of the deceased Sunita Bai . He found that she sustained 95% burn injuries onher body, and therefore she died due to such injuries. Since the appellant wasresidence of Village Kohka which was in thejurisdiction of Police Station Lakhanwada , thereforethe case was registered at the Police Station Lakhanwada .After due investigation, a charge sheet was filed before the Chief JudicialMagistrate, Seoni , who committed the case to theSessions Judge, Seoni and ultimately it wastransferred to the First Additional Sessions Judge, Seoni . 3.The appellant-accused abjured his guilt. He took a specific plea that thedeceased was kept with comfort. No cruelty was done with the deceased. It was acase of accident. The deceased did not commit the suicide. The appellant wasfalsely implicated in the matter. In defence , Kunjilal (DW-1) and Lekhram (DW-2) were examined. 4.The learned First Additional Sessions Judge after considering the evidenceadduced by the parties acquitted the parents of the appellant from all the charges , but convicted the present appellant for commissionof offence punishable under Section 306 of IPC and sentenced as mentionedabove. 5.I have heard the learned counsel for the parties. 4.The learned First Additional Sessions Judge after considering the evidenceadduced by the parties acquitted the parents of the appellant from all the charges , but convicted the present appellant for commissionof offence punishable under Section 306 of IPC and sentenced as mentionedabove. 5.I have heard the learned counsel for the parties. 6.The learned counsel for the appellant has submitted that the deceased diedafter ten years of her marriage, and therefore presumption under Section 113-Aof the Evidence Act was not applicable. In this connection, a judgment passedby this Court in the case of “ Devi Singh Rattan Singh Vs . State of MP”, ( 1995 MPLJ 757 ) was referred. It isfurther argued that looking at the testimony of the various witnesses includingthe parents of the deceased, it appears that there was no harassment to thedeceased as such, and after the death of the deceased the parents and relativesof the deceased had made omnibus allegations against the appellant. Neitherthose allegations fall within the view of Section 107 of IPC nor they aresufficient to prove the cruelty of the appellant for commission of offencepunishable under Section 498-A of IPC. No offence under Section 306 of IPC ismade out against the appellant. The learned counsel for the appellant has alsoplaced his reliance on the judgment of Hon'ble the Apex Court in the case of “ Kishangiri Mangalgiri Goswami Vs . State of Gujarat”, [2009(2) MPLJ ( Cri )80]. In the alternate, it is submitted that the appellant remained in thecustody for four months, and therefore if he is found guilty of offence underSection 498-A of IPC, then his sentence may be reduced to the period which hehas already undergone in the custody, because he has faced the trial and appealfor last 19 years. 7.On the other hand, learned counsel for the State has argued in support of theimpugned judgment on the ground that conviction and sentence directed by thetrial Court appears to be correct, hence no interference is warranted by thisCourt. 8.After considering the submissions made by learned counsel for the parties andlooking at the facts and circumstances of the case, it is to be considered asto whether the appeal filed by the appellant can be accepted? Whether theappellant can be convicted for commission of offence punishable under Section498-A of IPC? If yes, what would be the sentence imposed against him? 9.The deceased Sunita Bai died due to 95% burns. Whether theappellant can be convicted for commission of offence punishable under Section498-A of IPC? If yes, what would be the sentence imposed against him? 9.The deceased Sunita Bai died due to 95% burns. It was mentioned in the postmortem report Ex.P-5 by Dr. A.K.Saravgi (PW-9) that she died due to such burn injuriesand looking at the percentage of injuries the incident could not be caused byan accident. There is no allegation that the death of the deceased washomicidal. Under such circumstances, where the death of the deceased wasneither a natural one, homicidal nor an accidental, then looking at the merg intimation Ex.P-1 it must be a suicide. 10. Nanhi Bai (PW-2), mother ofthe deceased, Bhikam Singh (PW-3) father of thedeceased, Dulari Bai (PW-4)aunt of the deceased and Chandan (PW-5) maternalgrand father of the deceased were examined to show about the behaviour of the appellant with the deceased. Each of themhave admitted that the marriage of the deceased took place eight years prior toher death, and therefore according to the provisions of Section 113-A of theEvidence Act, such provisions are not applicable in the present case, becausethe death of the deceased took place eight years of her marriage. Nanhi Bai , Bhikam Singh and Dulari Bai havestated that the deceased was kept with comfort in first 6-7 years of hermarital life. All the problems were created with her in the last two years ofher life. They have stated that when the deceased informed them about theharassment and cruelty done by the appellant, she was held in her parentalhouse for four months. However, if the conduct of the appellant and thewitnesses as observed in their case diary statements about the holding of fourmonths is assessed, then it would be apparent that no Panchayat was called by the parents of the deceased. No blame was intimated to theappellant. On the contrary, Chandan (PW-5) has statedthat when he went to drop the deceased to the house of the appellant, theappellant was not ready to take her in the house, because she stayed in herparents' house for four months without any reason. Chandan did not say that he blamed the appellant that due to his cruelty the deceasedwas kept for four months in her parents' house. Chandan did not say that he blamed the appellant that due to his cruelty the deceasedwas kept for four months in her parents' house. Under such circumstances, it isapparent that the deceased was not kept for four months in her house due tocruelty and harassment done by the appellant, but since she was kept for fourmonths in her parents' house without any reason, therefore the appellant wasannoyed and he was not permitting her to come inside the house. Therefore, the allegations made by these witnesses that the deceased was handledwith cruelty by the appellant appears to be incorrect. 11. Chandan (PW-5) has stated that when the deceased wentinside the house, then the appellant assaulted her. However, he had not statedsuch a fact in his case diary statement Ex.D-2, and therefore his allegationthat the appellant assaulted the deceased before him appears to be incorrect.According to the witnesses Nanhi Bai , Bhikam Singh and Dulari Bai , the deceased died after six months of her visit to theappellant's house when she was detained for four in her parents' house. 12.The witnesses have stated about the various harassment and cruelty for theperiod prior to the detention of the deceased in the house of her parents. Theyhave also alleged that the appellant was demanding for five acres of land, andtherefore the deceased was assaulted, but such allegation was not made by thesewitnesses in their case diary statements, and therefore such allegations wereafter thought, which cannot be believed. As discussed above, when the deceasedwas kept with comfort for 6-7 years of her marriage, then what was the problemcreated in last one or two years so that the appellant handled her withcruelty? The witnesses could not establish the behaviour of the appellant that the deceased was handled with the cruelty in last twoyears. Their statements are not acceptable for the period after which thedeceased was kept in her parents' house. Ultimately, it is to be seen as towhether in the last six months of her life, the appellant harassed her? 13. Nanhi Bai (PW-2) has statedthat when the deceased was sent back to the house of the appellant, she was notgiven any work inside the house and for eight days she was directed to do theouter work of the house. It is not stated by the witness Nanhi Bai (PW-2) that after eight days whether the deceasedwas accepted in the house or not. It is not stated by the witness Nanhi Bai (PW-2) that after eight days whether the deceasedwas accepted in the house or not. Nanhi Bai has stated that the deceased came to her house fourmonths prior to her death, but she has not mentioned that in her last visit,whether she did any complaint about the behaviour ofher husband. On the contrary, Bhimkam Singh (PW-3)has stated that when the deceased was sent to the house of the appellant afterdetaining her for four months, thereafter she did not come back to the house ofher parents, and therefore the story told by Nanhi Bai that the deceased came to her house four months priorto her death appears to be incorrect. All the witnesses including Bhikam Singh, Dulari , Chandan and Babulal (PW-8) couldnot say anything about the behaviour of the appellantin last six months of the life of the deceased, and therefore by their evidenceit cannot be said that the deceased was dealt with cruelty in that period ofsix months by the appellant. 14.Under such circumstances, the witnesses could not prove that the deceased whowas kept with comfort for 7-8 years, suddenly dealt with cruelty or overt-actof the appellant was of such a nature so that it could fall with the essentialingredients of Section 107 of IPC. Under such circumstances, the learnedAdditional Sessions Judge has erred in convicting the appellant for commissionof offence punishable under Section 306 of IPC. The appellant cannot beconvicted for such an offence. 15.If the appellant is acquitted for the offence under Section 306 of IPC, thenstill his conduct may be considered for the offence punishable under Section498-A of IPC. However, looking at the evidence adduced by the parents andrelatives of the deceased, it appears that there was no cruelty done by theappellant to the deceased in first eight years of her marriage life. Thewitnesses could not prove any cruelty of the appellant for which the deceasedwas detained for four months in the house of her parents. On the contrary, itis proved by their own conduct that the deceased was detained in her parents'house without any reason and in last six months, there is no knowledge to thesewitnesses as to whether the deceased had any problem in the house of theappellant or not. Under such circumstances, looking at the evidence of variouswitnesses no cruelty is proved beyond doubt against the appellant. Under such circumstances, looking at the evidence of variouswitnesses no cruelty is proved beyond doubt against the appellant. There is noreason established on the record by which the deceased committed suicide. Undersuch circumstances, the appellant cannot be convicted for the offence underSection 498-A of IPC even. 16.On the basis of the aforesaid discussion, where the appellant cannot beconvicted for the offence under Section 306 of IPC or for the offence underSection 498-A of IPC, then the appeal of the appellant deserves to be allowed.Consequently, it is allowed. The conviction and sentence directed by the trialCourt vide its judgment dated 6.12.1996 in ST No.152/1993 are hereby set aside.The appellant is acquitted from all the charges appended against him includingthe charge of offence under Section 498-A of IPC. He shall be entitled to getthe fine amount back if he has deposited before the trial Court. 17.At present the appellant is on bail. His presence is no more required,therefore it is directed that his bail bonds shall stand discharged. 18.A copy of this judgment be sent to the trial Courtwith its record for information and compliance.