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Madhya Pradesh High Court · body

2014 DIGILAW 1373 (MP)

Arjun Singh v. State of M. P.

2014-10-28

S.R.WAGHMARE

body2014
ORDER 1. By this appeal filed under section 374 of CrPC, appellants Arjun Singh, Kesharbai and Rampyari bai have challenged their impugned judgment of conviction dated 19.9.1998 passed by Additional Sessions Judge, Mhow in Sessions Trial No.131/95 convicting them for offence under section 498A of IPC and sentencing them to 2 years RI each and fine of Rs.500/- each. They have also been convicted for offence under section 306 of IPC, and sentenced to 5 years RI each with fine of Rs.1000/- each. 2. Briefly stated the prosecution case was that Sahodrabai married the accused appellant Arjun Singh at village Pigadmbar in a collective marriage (samuhik vivah) ceremony. It was alleged that Kesharbai the mother-in-law and Rampyaribai the sister-in-law, of deceased along with husband Arjun Singh used to physically harass the deceased Sahodarbai and treated her with cruelty. She returned to her parental home and Arjun Singh came to fetch her. Her mother asked appellant Arjun Singh to allow her to live with them for some more time, but permission was not granted and he took her back and they used to often beat her and being mental depressed and frustrated on the date of the incident, Sahodarabai went to the house of her sister and Vijay Singh PW3 and asked him to take to her parents. The mother-in-law and sister-in-law also came there and assured the deceased that they would send her back to her parents house. However on the next day when the people at home were busy in a pooja, Sahodarabai committed suicide by hanging in her room. The complaint was filed by husband Arjun Singh at Police Station Kishanganj. The merg was registered at No.49/94 and it was found that all the three accused persons used to cause marpit (beat) to Sahodarabai and being depressed, she had committed suicide. The FIR was, therefore, lodged vide Ex.P-10, crime was registered at No.373/94 and offence under sections 373/94 and 306/34 of IPC was registered against three accused persons. The body was sent for the postmortem and nylon rope was seized, statements of witnesses were recorded, and spot map was prepared. After completion of investigation the challan was put up before the Judicial Magistrate who in turn committed to the accused to their trial. 3. The body was sent for the postmortem and nylon rope was seized, statements of witnesses were recorded, and spot map was prepared. After completion of investigation the challan was put up before the Judicial Magistrate who in turn committed to the accused to their trial. 3. The accused abjured their guilt and stated that they have been falsely implicated in the matter and their defence was that Sahodarabai did not want to live with her in-laws and it was a case of false implication. The trial Court on considering the evidence of the witnesses, however, convicted the accused as herein above indicated and hence the presentappeal. 4. Counsel for the appellants has vehemently urged the fact that the trial Court had erred in convicting the accused when there was not an iota of evidence on record to sustain the conviction. The material witnesses are all interested witnesses and there were contradictions and omissions in their testimony; besides the trial Court had erred in holding that the appellants have forcibly taken back the deceased Sahodarabai, in fact within six months of marriage, she had kept going to the parents house and she did not perform any household work and hence she used to often scold the appellants, but there was no question of the accused having treated the deceased with cruelty and the case was not one abettment of suicide as is being alleged by the prosecution. Moreover at the time of hanging, all the family members were away from home at a distance of three kilometers and admittedly the prosecutrix had stated before everybody that she wanted to go to her parents house. This clearly indicated that the attitude of the deceased that she was not willing to stay with the in-laws but by some reason, she wanted to go to her parents house. Moreover none of the prosecution witnesses are independent witnesses. The single witness, neighbour Maheshchandra has not at all supported the prosecution case. 5. Counsel relied on Sharad Birdhichand Sarda v. State of Maharashtra [ AIR 1984 SC 1622 ], to state that the close relatives of victim have tendency to exaggerate or add facts and the Court should examine their evidence with great care and caution. The single witness, neighbour Maheshchandra has not at all supported the prosecution case. 5. Counsel relied on Sharad Birdhichand Sarda v. State of Maharashtra [ AIR 1984 SC 1622 ], to state that the close relatives of victim have tendency to exaggerate or add facts and the Court should examine their evidence with great care and caution. Counsel submitted that when the testimony of the witnesses does not relate to torture and the case pertains to household work not being done by the prosecutrix, then it does not meant to cruelty or abettment. 6. Counsel also relied on Kishori Lal v. State of M.P. [ 2007(3) JLJ 148 (SC)= (2007)10 SCC 797 ], whereby the apex Court held thus : “In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. (See : Mahendra Singh v. State of M.P.) Merely on the allegation of harassment conviction in terms of section 306 of IPC is not sustainable. There is ample evidence on record that the deceased was disturbed because she had not given birth to any child. Pws 8, 10 and 11 have categorically stated that the deceased was disappointed due to the said fact and her failure to beget a child and she was upset due to this.” 7. Considering the testimony of Maheshchandra PW7. Counsel submitted that he has lived only 5-6 houses beyond the house of the deceased and there is omission in his statements before the police vide Ex.P-9 that Sahodarabai had gone to the house of one Vijay Singh since she did not want to live with her husband two days’ prior to the incident. Similarly he has also denied making statement before the police that the mother-in-law and sister-in-law was causing marpit to deceased Sahodarabai and in this sense. Counsel submitted that reliance could not be placed only on the testimony of interested witnesses who are PW1 Uday Singh, the brother of the deceased who has stated that he did not know why the accused appellants were causing marpit to his sister Sahodarabai. Counsel submitted that reliance could not be placed only on the testimony of interested witnesses who are PW1 Uday Singh, the brother of the deceased who has stated that he did not know why the accused appellants were causing marpit to his sister Sahodarabai. Udaysingh has stated that the father-in-law of his elder sister Parvatibai is Vijaysingh who lived the few houses of the house of the accused and it was alleged that Sahodarabai had gone to Vijaysingh for help. In para10 of his statement this witness has admitted that the deceased sister had never told him or any complaint that in-laws have been used to beat her, however, this witness has been declared hostile at this stage and his testimony is, therefore, unreliable regarding Raju bai who is the mother of the deceased. She has stated that Udaysingh her son had returned empty handed when he had gone to fetch his sister and 6 days later her daughter had committed suicide. This witness has also submitted that in-laws used to complaint about deceased Sahodarabai by not knowing how to cook and make rotis and, therefore, abused her and the fact had been told by Sahodarabai to her mother. 8. Besides in the present case there are no allegations of demand of dowry and presumptions under section 113A of the Evidence Act are available regarding demand of dowry. Relying on Kishori Lal (supra), Counsel submitted that the apex Court had considered the fact that there was differences with the accused husband and the deceased have gone to reside with her parents only a month prior to the occurrence and no evidence was led to show that the accused were in any manner responsible for the suicide. The Court had held that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Mere fact that the husband treated the deceased wife with cruelty is not enough and merely on the allegation of harassment, conviction in terms of section 306 of IPC is not sustainable and there is ample evidence on record that the accused was disturbed because she had not given birth to any child and in such circumstances accused cannot be held liable. And the apex Court had allowed the appeal and acquitted the accused. And the apex Court had allowed the appeal and acquitted the accused. In the present case Counsel submitted that the deceased Sahodarabai was not happy with the marriage and immediately after marriage, she wanted to return to her parents house itself indicated that she did not get along with the husband or she was not happy with the alliance and had an affair elsewhere. Counsel submitted that the accused-appellants were falsely implicated in the matter. 9. Besides Vijay Singh was father-in-law of elder brother who lived nearby the accused persons and one day a meeting of the community was held and thereby the people had advised the accused persons not to quarrel and Vijay Singh had stated that the deceased Sahodara bai should be sent back to the in-laws. This witness has, however, specifically admitted in impugned para 20 that Rampyaribai the accused sister-in-law was living separately and having three children by marriage and had only come to the house of the accused once in the month of May and she has also admitted that out of six months marriage, the deceased had lived only for four months with her in-laws. On being confronted with her police statements, this witness has stated that she did not make the statements that accused Arjun Singh had come to their house to fetch his wife, at that time when they refused to allow her to go back, and accused Arjun Singh had pulled out the lathi. She admitted that she had made the statement only in Court. This clearly indicated that there was omission in the statement of this witness. Counsel prayed that she was not at all reliable and trial Court had erred to rely her testimony for conviction. 10. Drawing the attention of this Court to the testimony of Vijay Singh PW 6, he has stated that one month after marriage Sahodarabai had come to his house and demanded that she be taken to the house of her mother. However Muni bai his daughter had intervened and taken the deceased Sahodarabai back to her husband. He has also denied making statements before the police vide Ex.P-2 that in-laws were caused marpit to the deceased Sahodarabai. Considering the statement of Anarsingh (PW4) it was found that there is material omission in Ex.P-3 statement before the police and statement in Court regarding the objections given by the inlaws. He has also denied making statements before the police vide Ex.P-2 that in-laws were caused marpit to the deceased Sahodarabai. Considering the statement of Anarsingh (PW4) it was found that there is material omission in Ex.P-3 statement before the police and statement in Court regarding the objections given by the inlaws. Thus, counsel submitted that the impugned judgment was without concrete evidence and when the act abetted is committed in consequence of abettment and there is no provision for the punishment of such abettment under sections 107 and 109 of the IPC and the same fact was missing in the present case. Counsel prayed for setting aside the conviction and acquitting the accused from the said offence. In the alternate Counsel submitted that if the Court was satisfied regarding conviction, the same be reduced to the period already undergone. 11. Counsel for the respondent/State, on the other hand, has opposed the submissions of the counsel for the appellants and vehemently urged the fact that the death had occurred within six months of marriage and there were presumptions available under section 113A of the Evidence Act which clearly indicated that when there is a commission of suicide by a woman and had been abetted by her husband or any relatives of her husband and showed that she committed suicide within a period of 7 years of marriage, then there shall be a presumption that the suicide had been abetted by her husband and relatives of husband. Counsel submitted that in the instant case there were reference of evidence of the mother Rajubai PW2, the brother Uday Singh PW1 to state that the accused appellants treated the deceased Sahodarabai with cruelty and once in the community meeting also she had stated that she wanted to return to her parents. Moreover the testimony of Vijay Singh PW3 cannot be overlooked since he has categorically stated the accused persons treated her with cruelty. Moreover Counsel insisted that in such a situation the witnesses are all interested witnesses since they are the members of the family and it is natural that the testimony of deceased Sahodarabai would be confined to her brother and mother regarding trouble that she was facing in the house of in-laws and husband. Moreover Counsel insisted that in such a situation the witnesses are all interested witnesses since they are the members of the family and it is natural that the testimony of deceased Sahodarabai would be confined to her brother and mother regarding trouble that she was facing in the house of in-laws and husband. Moreover there is also evidence on record to indicate that publicly Sahodarabai had stated in the meeting of the community that she wanted to go back to her parents house and being promised by accused mother-in-law and sister-in-law that they would not ill-treat her, the parents of the deceased had sent her home on the next day. Similarly the husband also had coaxed into an agreement by the parents of the deceased that he will not ill-treat Sahodarabai. In these circumstances counsel submitted that the conviction was in accordance with the provisions of law and did not call for any interference. Counsel prayed that the appeal be dismissed. 12. On considering the above submissions, I find that two questions arise for adjudication in the present appeal; one whether the presumption under section 113A of the Evidence Act would be attracted in the present case against the accused appellants and second whether the conviction of the accused for abettment under section 306 of the IPC is based on proper appreciation in this regard. 13. Considering the testimony of various witnesses as fully detailed above, I find that the sister-in-law Rampyaribai was living separately and the single incident is only considered to bring the deceased Sahodarabai back home from the house of Vijay Singh. There is no specific incident narrated against this accused appellant by any of the witnesses and placing reliance on Kishori Lal (supra), I find that there must be proof of direct or indirect acts of incitement to the commission of suicide, merely making omnibus statements that the accused appellant Rampyaribai used to treat the deceased with cruelty would not suffice for conviction. Besides the act of not cooking food properly are allegations which were made by the husband and mother-in-law and cannot be foisted on the present accused Rampyaribai. Besides the act of not cooking food properly are allegations which were made by the husband and mother-in-law and cannot be foisted on the present accused Rampyaribai. Considering all the other accused, I find that there must be a probability of existence of a nexus between the cruelty and the suicide suffered, however, the only allegations are that these accused appellants used to make complaint to the regarding her cooking, in fact it was the present appellant who has coaxed and brought Sahodarabai back from the public meeting. There was strained relationship between the husband and the wife and the present accused appellant Kesharbai cannot be made the victim. There is no direct evidence on record relating to harassment of the deceased Sahodarabai by mother-in-law Kesharbai also and this inevitably leads us to consider the case against the accused husband Arjun Singh. 14. Undoubtedly the presumptions are available to the complainant under section 113A of the Evidence Act, since the death has occurred soon after the marriage i.e. within a period of six months This singular fact cannot be construed against the accused appellant Arjun Singh primarily because in every marriage there are so many problem of domesticity and it is too soon to conclude that the scolding or reprimand for not cooking food properly and not doing the household work have become acts of cruelty and to be the acts of instigation or provocation to commit suicide as per provisions of sections 107 and 109 of the IPC. The only sole factor that goes against the present accused appellant is that within six months of marriage Sahodarabai has committed suicide and there is no concrete reason except suggestion that her heart was elsewhere is brought on record. Undoubtedly all the witnesses are interested witnesses except Mahesh Chandra, the neighbour and he also has not related any incident alleging torture and I find that the few incidents narrated regarding cruelty are simple problems that are faced in a domestic married life anywhere and the period is too soon to hold that it was cruelty amounting to instigation. Undoubtedly all the witnesses are interested witnesses except Mahesh Chandra, the neighbour and he also has not related any incident alleging torture and I find that the few incidents narrated regarding cruelty are simple problems that are faced in a domestic married life anywhere and the period is too soon to hold that it was cruelty amounting to instigation. Hence placing reliance on Kishori Lal (supra), and Sharad Birdhichand Sarda (supra), I find that both the questions have now been suitably answered and there is no concrete evidence on record to hold that the presumptions would automatically apply in the present case; since there is no sufficient evidence on record to rely for the conviction and secondly there is no abettment of concrete straight incident construed the offence under sections 106 and 109 of the CrPC and thus I find that the impugned judgment requires to set aside. 15. Consequently considering the fact that the evidence is weak in nature, then to sustain the conviction, the evidence on record must be so complete that any other hypothesis, than that of the guilt of the accused should not be possible. The evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence as directed by the apex Court in several cases. 16. Similarly, I find that there must be concrete evidence to show that the accused was in some manner responsible for the suicide. No such evidence is available on record and ingredients of section 107 and 109 of the IPC regarding abettment are also not fulfilled under the circumstances. 17. Consequently, I find that the impugned judgment needs to be set-aside. The impugned judgment is, therefore, set aside. The accused-appellants are acquitted from the aforesaid offences. They are on bail, their bail bonds are hereby, discharged. 18. The appeal is allowed to the extent hereinabove indicated. ...........