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2012 DIGILAW 99 (CHH)

ASHWANI KUMAR v. STATE OF M. P.

2012-03-30

G.MINHAJUDDIN

body2012
JUDGMENT G. Minhajuddin, J 1. The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 27th May, 1998 passed by the 8th Additional Sessions Judge, Bilaspur in S.T. No.210/97, convicting the appellant under Sections 306 and 498A of the Indian Penal Code and sentencing him to undergo RI for 3 years, fine of Rs.500/-, in default thereof, to undergo additional imprisonment of 6 months and RI for 1 year, fine of Rs.500/-, in default thereof, to undergo additional imprisonment of 6 months, respectively. Both the sentences were directed to run concurrently. 2. Case of the prosecution, in brief, is that the younger sister of Anjoredas (PW 2) named Jethiabai was married to one Mallu of Village-Dodka, P.S. - Jarhagaon, about 15 years prior to the date of incident i.e. 12th March, 1997. Jethiabai lived with Mallu for about 2-3 years as his wife and thereafter, left Mallu because he had kept another lady as his wife and started residing in her parental home. Thereafter, Bhikhari alias Dukru, resident of Village - Gobripath, married Jethiabai through chudi custom. At the time of marriage, Bhikhari @ Dukru was aged about 60 years and he died three years before the date of incident. Bhikhari @ Dukru was having a house and 1.4 acres of land at Village-Gobripath. After the death of Dukru, Jethiabai had kept the land related documents of Dukru with her father. The said land was being cultivated by her brother Anjoredas (PW 2). In the year 1996, appellant Ashwani Kumar married Jethiabai through chudi custom. The parents of Jethiabai were not invited by appellant and Jethiabai to attend the marriage and therefore, they (appellant and Jethiabai) were ousted from the society. After marriage, Jethiabai was residing in the house of the appellant. Since the house of in-laws of Anjoredas (PW 2), brother of Jethiabai, was also situated at Village-Gobripath, therefore, Anjoredas (PW 2) used to frequently visit Gobripath. Before the Teeja festival, son of Anjoredas (PW 2) informed his father Anjoredas (PW 2) that his Sua, Jethiabai, is beaten by the appellant, therefore, he (Anjoredas) should take her (Jethiabai) back to his house. Before the Teeja festival, son of Anjoredas (PW 2) informed his father Anjoredas (PW 2) that his Sua, Jethiabai, is beaten by the appellant, therefore, he (Anjoredas) should take her (Jethiabai) back to his house. When Anjoredas (PW 2) went to the house of the appellant, Jethiabai informed Anjoredas (PW 2) that the appellant tortures her for transferring the land on his name and on her refusal, he beats her. Anjoredas (PW 2) had also seen 10-12 marks of injury on the body of Jethiabai. On this, Anjoredas (PW 2) took Jethiabai back to his house, where she remained for two months. Thereafter, the appellant came to the house of Anjoredas (PW 2) for taking Jethiabai back, however, Jethiabai refused to go back with the appellant. On this, Anjoredas (PW 2) told the appellant that when he (appellant) brings his (appellant's) father and the persons of his locality, then only Jethiabai will go back with the appellant. Thereafter, the appellant came alongwith his father and grand-father Janakram to the house of Anjoredas (PW 2) and after compromising the matter, Jethiabai was sent back with the appellant to his house. However, after a few days, Koushal Satnami (PW 3) informed Anjoredas (PW 2) that when he (Koushal Satnami) met Jethiabai in the village Mela, she was crying and saying that the appellant harasses and tortures her. 3. Allegation against the appellant is that he used to harass and torture Jethiabai for transferring the land on his name and therefore, having been fed up with the continuous harassment and torture, Jethiabai committed suicide by consuming poisonous substance i.e. seed of oleander. 4. The merg intimation was given by the appellant at Police Station-Kota on 12th March, 1997 at about 11.30 pm, whereupon Merg No.11 /97 under Section 174 of Cr.P.C. was registered. During merg enquiry, on 13th March, 1997, Panchanama of the dead body of Jethiabai was prepared in presence of the witnesses as per Ex.P/2. From the place of occurrence, two broken skins of oleander were seized as per Ex.P/7 in presence of the witnesses. On the basis of merg enquiry, on 3.4.1997, Crime No.81/97 for the offence punishable under Section 306 of the IPC was registered against the appellant by Assistant Sub Inspector M.L. Sharma, vide Ex.P/9. From the place of occurrence, two broken skins of oleander were seized as per Ex.P/7 in presence of the witnesses. On the basis of merg enquiry, on 3.4.1997, Crime No.81/97 for the offence punishable under Section 306 of the IPC was registered against the appellant by Assistant Sub Inspector M.L. Sharma, vide Ex.P/9. On being produced by Anjoredas (PW 2), Rin Pustika and the registered sale deed were seized on 4.4.1997 as per Ex.P/4 and the same were subsequently given on Supurdnama to Anjoredas (PW 2) as per Ex.P/3. The seized sale deed and photocopy of the document (Ex.P/10) given by the Patwari bearing number, area etc. of the land, were filed alongwith the charge sheet. The appellant was arrested on 19th May, 1997 as per Ex.P/19. 5. On 6th March, 1997, Station House Officer, S.S. Rajput (PW 10), seized viscera of the deceased as per Ex.P/14. The Superintendent of Police, Bilaspur, through Memo EX.P/12, sent the seized articles for chemical examination to Forensic Science Laboratory, Sagar. After completing usual investigation, charge sheet was filed against the appellant before the Court of Judicial Magistrate First Class, Bilaspur, who, in turn, committed the same to the Court of Sessions Judge, from where it was received by the learned Additional Sessions Judge on transfer for trial. 6. The trial Court framed charges under Sections 306 and 498A of the IPC against the appellant, who abjured his guilt and prayed for trial. The prosecution in order to establish its case examined 11 witnesses in all. Thereafter, statement of the appellant was recorded under Section 313 of Cr.P.C., in which he denied the circumstances appearing in evidence against him and stated that he is innocent and only because he had married the deceased against the wishes of her family members, that he has been falsely implicated. He has further stated that neither he had ever compelled the deceased to transfer her agricultural land on his name, nor had ever treated the deceased with cruelty. 7. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellant, as mentioned above. 8. Heard learned counsel for the parties, perused the record of the trial Court as well as the impugned judgment. 9. Anjoredas (PW 2) and Jeerabai (PW 11) are brother and mother of the deceased respectively. 8. Heard learned counsel for the parties, perused the record of the trial Court as well as the impugned judgment. 9. Anjoredas (PW 2) and Jeerabai (PW 11) are brother and mother of the deceased respectively. As per statement of Anjoredas (PW 2), Jethiabai was first married to Mallu and after living for about 1-1 ½ years with Mallu that deceased Jethiabai left him. After that Dukru had married the deceased by chudi custom. Anjoredas (PW 2) has further stated that after about 2 years of marriage, Dukru died and Jethiabai inherited about 1.04 acres of agricultural land from Dukru. He has further stated that after one year of the death of Dukru, Jethiabai had married the appellant again by chudi custom. According to the statement of Anjoredas (PW 2), the appellant was always compelling Jethiabai to transfer her agricultural land on his name and on her refusal, he used to beat her and treat her with cruelty, about which she had complained to him (Anjoredas, PW 2) as well as Koushal (PW 3). 10. Koushal (PW 3) has not supported the statement of Anjoredas (PW 2) regarding cruel treatment by the appellant towards his wife (deceased Jethiabai). On the contrary, Koushal (PW 3) has stated that before the death of deceased, when he had met her at Kotsagar Mela, he had talked to her for about half an hour and at that time she had not told him anything about the cruel treatment meted out to her by her husband-appellant. 11. Gangabai (PW 4), Neminbai (PW 7) and Jeerabai (PW 11), mother of the deceased, have also stated that the deceased used to complain that her husband (appellant) always compelled her to transfer her agricultural land on his name and on her refusal, he treated her with cruelty. Gangabai (PW 4) and Neminbai (PW 7) have admitted in their cross-examination that they have stated this fact for the first time and had not disclosed this fact to anyone previously. Gangabai (PW 4) is a relative of Anjoredas (PW 2) and Jeerabai (PW 11). Gangabai (PW 4) and Neminbai (PW 7) have admitted in their cross-examination that they have stated this fact for the first time and had not disclosed this fact to anyone previously. Gangabai (PW 4) is a relative of Anjoredas (PW 2) and Jeerabai (PW 11). Although Jeerabai (PW 11), mother of the deceased, has stated in her examination-in-chief that only because the appellant was compelling and torturing the deceased to transfer her agricultural land on his name, that the deceased had committed suicide, but in para-6 of her statement, she (PW 11) has stated that she had never gone to Village-Gobripath and she does not know why her daughter Jethiabai has committed suicide. 12. Anjoredas (PW 2) has stated that his sister deceased Jethiabai had told him that she is being tortured and treated with cruelty by her husband (appellant) on account of the fact that she is not transferring her agricultural land on his name and at that time, he (Anjoredas) had seen the marks of injuries on the body of her sister Jethiabai. However, on this point, the statement of Anjoredas (PW 2) does not find corroboration from any oral or documentary evidence. 13. Although Anjoredas (PW 2), Jeerabai (PW 11), Gangabai (PW 4) and Neminbai (PW 7) have stated that the deceased used to complain that her husband/appellant used to torture and harass her for transferring per agricultural land on his name and only on account of this torture and harassment, she committed suicide by consuming the seeds of oleander, however, Harichand (PW 1), in para-3 of his statement, and the SS Rajput, IO (PW 10) in para10 of his statement, have stated that at the time of preparing Panchanama (Ex.P/2) of the dead body of Jethiabai, her father Birbal and brother Anjoredas (PW 2) were present, but they had not disclosed any reason for the commission of suicide by Jethiabai. Anjoredas (PW 2) and Jeerabai (PW 11) have stated that since before the marriage of the deceased with the appellant, the agricultural land, which the deceased had inherited from her previous husband Dukru, had been in the cultivating possession of Anjoredas (PW 2) and his mother Jeerabai (PW 11). Anjoredas (PW 2) has also stated in para-10 of his statement that the appellant had never prevented him from cultivating the land of the deceased. Anjoredas (PW 2) has also stated in para-10 of his statement that the appellant had never prevented him from cultivating the land of the deceased. He has also stated in para-12 of his statement that he himself has never seen the appellant beating the deceased. Although he has stated that there were some marks of injury on the neck of the deceased, but this statement of Anjoredas (PW 2) stands belied from the statement of the investigating officer SS Rajput (PW 10), who in para-9, has stated that at the time of preparing Panchanama (Ex.P/2) of the dead body of Jethiabai, the panch witnesses have not found any sign of injury over the dead body of Jethiabai. The statement of SS Rajput, IO (PW 10) finds corroboration from the Panchanama (Ex.P/2). 14. It is not in dispute that deceased Jethiabai was issueless, she had inherited slightly more than one acre of agricultural land from her previous husband Dukru, which was in the cultivating possession of her brother Anjoredas (PW 2) and his mother Jeerabai (PW 11). After the death of Jethiabai, her only heir is her husband/appellant. In view of the clear statements of Anjoredas (PW 2) and Jeerabai (PW 11) that they are in cuitivating possession of the agricultural land of the deceased and the documents of the said land are also with Anjoredas (PW 2), the possibility cannot be ruled out that for the purpose of grabbing the said agricultural land from the appellant, that he has been falsely implicated by his brother-in-law Anjoredas (PW 2) and mother-in-law Jeerabai (PW 11). The appellant in his statement under Section 313 of Cr.P.C. has stated that as he had married Jethiabai by chudi custom against the wishes of her family members, therefore, they were nurturing grudge against him. This statement made by the appellant under Section 313 of Cr.P.C. is fortified by the statement of Anjoredas (PW 2) made in para-9 to the effect that the appellant had forcibly married his sister Jethiabai by chudi custom. It is unbelievable that the appellant, who was torturing and harassing his wife/deceased Jethiabai for transferring her agricultural land on his name, will permit his brother-in-law Anjoredas (PW 2) and mother-in-law Jeerabai (PW 11) to cultivate the same because Anjoredas (PW 2) has admitted that the appellant had never prevented him from cultivating the agricultural land of his sister Jethiabai. 15. 15. In view of the above discussion of evidence, by any stretch of imagination, it cannot be said that the prosecution has been successful in proving the offences punishable under Sections 306 and 498A of the IPC against the appellant. 16. In the result, the appeal is allowed. The impugned judgment of the trial Court convicting and sentencing the appellant under Section 306 and 498A of the IPC is hereby set aside. The appellant is acquitted of the said charges. He is on bail, therefore, his bail bonds are cancelled and he is set at liberty. The fine amount, if deposited, shall be refunded to the appellant. Appeal Allowed.