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2013 DIGILAW 1393 (MP)

Kishorilal v. State of M. P.

2013-11-14

S.R.Waghmare

body2013
JUDGMENT 1. This appeal has been filed under section 374 of the CrPC being aggrieved by the judgment dated 10.09.1997 passed by Third Additional Sessions Judge, Ratlam in S.T. No. 218/1996, whereby the appellant has been convicted for offence punishable under section 306 of the IPC and sentenced to five years rigorous imprisonment with fine of Rs. 2,000/- in default of payment of fine he was to further undergo four months simple imprisonment. 2. Brief fact of the prosecution case are that on 4.2.1996 Kalabai was admitted Civil Hospital at Alot due to severe burn injuries, thereafter, she was referred to Jaora. The Civil Hospital, Jaora informed the police on the basis of written representation by Dr. S.K. Jain that severe wounds were caused and patient was referred to M.Y. Hospital, Indore. When she was being taken to Indore she succumbed to her injury on the way. The merg was recorded and investigation was launched. During the investigation statement of witnesses were recorded and it was learnt that the accused Kishorilal had illicit relations with another woman and used to treat Kalabai with cruelty and often beat her and sent her back to her parental home. In fact before the incident she had returned from her parental home and had consequently been sent to hospital in a burnt condition by her husband whereas he has failed to inform the police and first information report was recorded on the basis of information received from the doctor and registration of the merg. The body was also sent for post mortem by police. The merg registration and inquest report is Ex-P/8. The FIR is Ex-P/7. The recovery memo and spot map were also prepared and half burnt clothes and match box etc. were recovered along with the used postcard. The offence was registered under section 304B of the IPC and Judicial Magistrate, Alot committed the accused to his trial. 3. The accused abjured his guilt for offence under section 304 of the IPC and submitted that he was falsely implicated in the matter. The trial Court on considering the offence, however convicted and sentenced the appellant Kishorilal as hereinabove indicated and hence, this appeal. 4. 3. The accused abjured his guilt for offence under section 304 of the IPC and submitted that he was falsely implicated in the matter. The trial Court on considering the offence, however convicted and sentenced the appellant Kishorilal as hereinabove indicated and hence, this appeal. 4. Counsel for the appellant has vehemently urged the fact that the learned Judge of the lower Court has erred in drawing unwarranted inferences and the deceased Kalabai had resided with the accused for more than 5 - 6 years and 2 ½ years old son was born out of the wedlock. There was no evidence on record according to counsel regarding any cruelty meted out by the deceased as is being alleged. Counsel submitted that the testimony of Leelabai (PW 1)) was full of discrepancy and material omission and contradiction when she had stated that she had allowed the accused to take away his son and jewellary belonging to Kalabai. She wrote a letter through her brother-in-law, coaxing the accused to take back her daughter deceased Kalabai. This cannot be accepted under the circumstances and was unnatural conduct on the part of the mother. Moreover counsel submitted that all the statements by this witness were without corroboration and there is no eye-witness regarding the fact as to how deceased Kalabai caught fire, it was apparently case of suicide. Counsel submitted that the accused could not be convicted on the basis of such discrepant evidence. He urged that lower Court had erred in drawing unwarranted inferences and also discarding the defence version. Counsel submitted that according to the statement of Dr. S.K. Jain, it was the husband himself had brought Kalabai to hospital and then allegation of cruelty were all false and could not stand in this view of this matter. Moreover, referring to impugned para 15 of the judgment, counsel submitted that there was no smell of kerosene on the body of the deceased according to post mortem report. Dr. Budhisagar (PW 7), who is the other doctor in the case stated that he did not find any smell of kerosene on the body and burning of deceased was suspicious, according to the trial Court then benefit of doubt actually accrued to the accused and suspicion however strong cannot take the place of proof. Counsel submitted that appellant was entitled to an acquittal and he prayed that the impugned judgment be set aside. Counsel submitted that appellant was entitled to an acquittal and he prayed that the impugned judgment be set aside. In the alternative counsel for the appellant submitted that the appellant was in custody almost a year and even if the Court was satisfied regarding the conviction of the accused, the custodial sentence be reduced to the period already undergone. 5. Counsel for the respondent/State has opposed the submissions of the counsel for the appellant and submitted that there was ample evidence on record to indicate that it was the husband alone who was responsible for the burning of the deceased Kalalbai and that cruelty was fully made out since Leelabai (PW 1), the mother of the deceased and Babulal (PW 4), the uncle (mama) of the deceased categorically stated that the accused was having illicit relationship with another woman and used to often beat Kalabai. Moreover, both these witnesses have categorically stated that they had fetched Kalabai to her parental home due to ill treatment by accused and it was only on the coaxing and cajoling by accused and his mother that deceased Kalalbai had been sent back. Moreover, before sending her back several of the relatives and other persons named Karu, Ratan, Shankar and Kanhailal were called as witnesses for the promise by the accused that he would not trouble Kalabai in future and only then she was allowed to go back. This itself indicates the fact that there was some dispute between husband and wife. Similarly counsel submitted that there was ample evidence on record in the guise of photographs also which indicates that the death by burning did not occur while cooking as being alleged by defence. The trial Court has rightly discarded Ex. D/2 the dying declaration since it was not produced before the Judicial Magistrate in time and delay has been unexplained by Tahsildar, who recorded the dying declaration; whereas counsel also urged the fact that there was no kerosene smell on the body also indicates the fact that deceased did not catch burns due to busting of kitchen stove. He prayed for dismissal of the appeal. 6. On considering the above submissions, I find that the only question arises for consideration in this appeal is whether the conviction is based on sufficient evidence in this regard. He prayed for dismissal of the appeal. 6. On considering the above submissions, I find that the only question arises for consideration in this appeal is whether the conviction is based on sufficient evidence in this regard. I find that testimony of mother Leelabai (PW 1) and Babulal (PW 4) is itself sufficient to convict the accused. The mother Leelabai (PW 1) has remained steadfast in her testimony she had categorically stated that at the time of marriage for initially two to four years the accused treated her daughter properly, however initially he was an agriculturist and later took on the job of Patwari and started ill treating her daughter. The accused used to often beat deceased Kalabai and on his transfer to Alot; the cruelty was at its peak and Leelabai had sent her brother Babulal (PW 4) to fetch back her daughter and she learnt that she was ill. She has also stated that the accused had illicit relations and, therefore, used to often thrash and treat her with cruelty. He threatened deceased Kalalbai often that he would kill her and the previous wife had also been killed by him. When her uncle Babulal (PW 4) came to fetch Kalabai, he had thrown her vessels and clothes outside and six months later the accused had come to take her back. At that time Leelabai (PW 1) had called her relatives and neighbours and in the front to five witnesses Karu, Ratan, Shankar, Kanhailal and others she had made the accused promise that he would not ill treat her daughter in future. However within a period of two weeks she learnt that her daughter had been admitted at Jaora Civil Hospital and on reaching there found her daughter in a dead condition. The testimony by her brother Babulal (PW 4) fully corroborated her statments. He has also stated that the deceased Kalabai was subjected to mental and physical torture. He has also stated how he had gone to fetch her and found the accused ill treated decased Kalabai. 7. Both these witnesses however have not made any statements regarding demand of dowry raised by the accused and although presumption were available to the trial Court the accused have been acquitted from the offence under section 498 of the IPC. He has also stated how he had gone to fetch her and found the accused ill treated decased Kalabai. 7. Both these witnesses however have not made any statements regarding demand of dowry raised by the accused and although presumption were available to the trial Court the accused have been acquitted from the offence under section 498 of the IPC. Moreover, an important fact noticed by the trial Court was that the conduct of the accused was highly suspicious on several counts it was he, who had brought the deceased Kalabai to the hospital initially at Civil Hospital, Alot and at that time he had not made any statement before Dr. Budhisagar (PW 7). The trial Court has observed that accused Kishorilal was already a Patwari at that time and knew the law, despite which he has not filed any police report nor given any information to the police or doctor. And it is only on death of Kalalbai that Dr. S.K. Jain has informed the police. The FIR has also been filed on the basis of dehati nalishi and another independent witness Kailash Joshi (PW 9) who took photographs on the place of the incident on 18.2.1996 has found there were two stoves of kerosene placed in the kitchen and were in order with the utensils. However there were two mud Chullhas (stoves) which actually were being used by the deceased Kalabai, since burn marks clearly indicated that mud stove was regularly used. Moreover Dr. Budhisagar (PW 7) has not noted any smell of kerosene on the body of the deceased although he has certified that she had received 96% burn injuries. This was not natural conduct of the husband Kishorilal the present accused, it was highly suspicious as he did not utter a word as to how the wife received burn injuries although in defence he has tried to put up the defence at the last minute, by producing the dying declaration Ex. D/2. 8. The statement of deceased Kalabai was recorded by M.L. Kumawat (D.W.1) Tahsildar as dying declaration Ex. D/2. However this witness was proceeded against for not producing the dying declaration before the police or before the C.J.M. concerned immediately. Although a dying declaration was recorded and sealed on 4.2.1996 the same was received by CJM only on 26.7.1997 just two days prior to examination of this witness in Court. D/2. However this witness was proceeded against for not producing the dying declaration before the police or before the C.J.M. concerned immediately. Although a dying declaration was recorded and sealed on 4.2.1996 the same was received by CJM only on 26.7.1997 just two days prior to examination of this witness in Court. And due to this misconduct he has already been proceeded against departmentally and the dying declaration has also been discarded by the trial Court because it was recorded on a plain piece of paper and not duly attested as required under the provisions of law. Similarly this witness admitted that the accused was a Patwari working under him. 9. Moreover clinchingly, I find that the independent witness Shankar (PW 5) the resident of Mundali has categorically stated that Leelabai (PW 1) had summoned him to pacify Kishorilal the present appellant when Karu, Ratan and Kanhailal and others had also remained present and the accused had confessed before them that in future he would not ill treat the deceased Kalabai and keep her in good health and with proper care. Under the circumstances, the trial Court has properly appreciated the evidence and come to a conclusion that it was not a dowry death and since the case was based fully on circumstantial evidence, the accused has been found to be guilty only under section 306 of the IPC by giving benefit of doubt to the accused. I do not find any good ground to deviate from any of the findings arrived at by the trial Court and hence on analyzing the evidence led by the prosecution, I find that there is material about the cruelty and harassment meted out to the deceased and on the testimony of aforesaid four material witnesses, it is clear that the accused tortured and harassed the deceased which eventually led to her death. The sentence also does not call for any interference as it is reasonable under the circumstances. 10. The accused is on bail, he shall surrender in the trial Court for serving the remaining part of the jail sentence as directed by the trial Court. 11. With the aforesaid observations, the appeal is dismissed as being without merit. Jai Singh with Rajesh Chouhan for appellant; Raghuveer Singh Chouhan, Government Advocate for respondent/State.