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2014 DIGILAW 1458 (MP)

Ramesh S/O Hajaria Barela v. State Of M. P.

2014-11-11

S.R.WAGHMARE

body2014
JUDGMENT : By this appeal under section 374 of the Criminal Procedure Code the appellant Ramesh, has challenged his conviction for offence under sections 306, 498-A of the Indian Penal Code. passed by the Additional Sessions Judge, Sendhwa District Khargone in S.T. No. 78/1997 by judgment dt. 29-9-1998 sentencing the accused to undergo imprisonment of 6 years for offence under section 306 of the Indian Penal Code and fine of Rs.1500/-. In default of payment of fine one years S.I. for offence under section 498-A of the Indian Penal Code with 2 years RI with fine of Rs. 500/-. In default of payment of fine and the appellant would have to undergo an additional sentence of 6 months imprisonment. 2. Brief facts of the prosecution case are that Rinjala Barela R/o Karanpura got his daughter Bailibai married according to their customs 10 years prior to the incident to one accused Ramesh Hazaria R/o Rakhi khurd. Two children were born out of the wedlock and after some years of marriage, Bailibai started making complaints against her husband Ramesh that he did not treat her properly and when she was ill, accused Ramesh also assaulted her. He started tormenting her that he would take a second wife and she narrated the incident to her father whereupon the father of Bailibai tried to cajole the husband whereupon he agreed and took Bailibai back to her matrimonial home. However, on returning home, he again started repeating the same behaviour and being mentally harassed she returned to her parents house in Karanpura. For the second time the father-in-law of Bailibai came to take her back. He assured Bailibai's father that all the in-laws would treat her properly. On 26-5-1996 getting fed up of the daily beatings and cruelty she left home. However, her dead body was found in the government well. The news of her death was informed by Hazaria Barela to the Police Station Khetia, and merg was recorded at No. 10/96. Thereafter the FIR was registered under section 174 (sic : 154) of the Criminal Procedure Code. The investigation was launched, the body was recovered from the well. The map Panchnama was prepared. The body was sent for the post-mortem. The spot map was prepared in the presence of the Panchas. Thereafter the FIR was registered under section 174 (sic : 154) of the Criminal Procedure Code. The investigation was launched, the body was recovered from the well. The map Panchnama was prepared. The body was sent for the post-mortem. The spot map was prepared in the presence of the Panchas. Statement of witnesses recorded and the clothes of the deceased were sent along with the articles to the Police Superintendent, thereafter to the FSL for its report. On completion of the investigation, the offence was registered under section 498-A and 306 Indian Penal Code against the accused. The accused was duly committed to his trial. 3. He abjured his guilt and stated that he was falsely implicated in the matter. He took up the defence plea that he never committed any cruelty and that somebody had killed Bailibai and thrown her dead body in the well. The complaint was also lodged by his own father Hazaria, whereas he used to love his wife and he never caused any marpeet to her as alleged. The main thrust of the argument for the Counsel for the appellant is that two essential ingredients under section 306 of the Indian Penal Code are required to be fulfilled i.e., the accused must have abetted the commission of the offence and the fact that deceased did not die due to suicide, only then there can be a conviction. Moreover, the prosecution has to prove that the accused had abetted the commission of the suicide and offences under section 107 and section 306 Indian Penal Code are required to be proved against the accused. Counsel urged that the commission of suicide must be proved by clear evidence and no cruelty is required to be proved by the accused especially if the evidence is one that is by "tutored witnesses". Then the cruelty cannot be itself proved to be committed by the accused and in such a case, no offence is made out. Counsel urged that the commission of suicide must be proved by clear evidence and no cruelty is required to be proved by the accused especially if the evidence is one that is by "tutored witnesses". Then the cruelty cannot be itself proved to be committed by the accused and in such a case, no offence is made out. Placing reliance on Sampath Kumar vs. Inspector of Police Krishnagiri, (2012) 2 SCC (Cri) 42 Counsel submitted that if the evidence did not disclose the presence of the accused on the spot, around the time of commission and the presumptions are not available, since it was more than 5 years that the occurrence is disclosed for the first time in Court, then the probability of the witnesses is badly affected and the Court should not act on presumptions. The facts narrated in Court are narrated for the first time after a long gap of time then it can be assumed that such evidence and material on record arise out of suspicion; but, suspicion however strong cannot take the place of proof and Counsel stated that there was no evidence on record regarding the cruelty meted out to the deceased by the present appellant. The interested witnesses i.e. parents of the deceased P.W.6 Perwibai and P.W.9 Hazaria had never proceeded against the accused at the time of the 'merg' enquiry or even for a considerable time thereafter. The case is purely based on circumstantial evidence and hence, therefore, Counsel prayed that the evidence on record was not of sterling character. 4. Drawing the attention of the Court to P.W.1 Onkar s/o Dalia, Counsel submitted that he was the uncle who used to live in the village of the husband of the deceased. He has himself stated that the marriage had taken place 10 years prior to the incident and Bailibai was in good health till the birth of her two children. Thereafter the husband and wife used to quarrel which is likely in every domesticity in the marriage. 5. He has himself stated that the marriage had taken place 10 years prior to the incident and Bailibai was in good health till the birth of her two children. Thereafter the husband and wife used to quarrel which is likely in every domesticity in the marriage. 5. Considering the testimony of P.W.2 Sushilabai, the sister of the deceased Bailibai; Counsel stated that apparently she was an interested witness and her evidence is of hearsay, although she has admitted that Bailibai was being troubled by her husband, she has categorically stated in impugned para 2 of her deposition that accused Ramesh never caused any Marpeet to her i.e. he did not physically assault the wife. Considering the testimony of P.W.3 Ohalia, he is an independent witness and Counsel submitted that he is the person who has discovered the dead body of Bailibai and he has stated that sometimes the husband of the deceased Bailibai, used to be intoxicated but he has not spoken of any cruelty meted out by the husband accused. Whereas considering the testimony of P.W.6 Pervibai, the mother of the deceased she has also admitted that the marriage had taken place 10 to 12 years prior to the incident and the accused Ramesh the husband of her daughter used to trouble her and only on assurance by the father Hazaria that his son Ramesh would not trouble the daughter she had sent her back. Counsel submitted that this witness has also not made any categoric accusations against the accused Ramesh but she has admitted that the son-in-law had come to search for her when she appeared to be missing indicating that the husband and accused Ramesh was concerned about his wife and had filed the missing persons report. 6. Considering the testimony of P.W.7 Bhavsingh, the brother of the deceased, Counsel submitted that the father of the accused had assured that the son would not cause any further Marpeet to his sister and in front of Panch witnesses they had sent Baiblibai back. The only fact that can be gathered from the testimony of this witness is that he has submitted that the body of the deceased Bailibai was recovered in a bundle in a Saree from the dry well of the village Rakhi Khurd Patel, and hence, there was suspicion that the death was not suicide, but murder. The only fact that can be gathered from the testimony of this witness is that he has submitted that the body of the deceased Bailibai was recovered in a bundle in a Saree from the dry well of the village Rakhi Khurd Patel, and hence, there was suspicion that the death was not suicide, but murder. Counsel urged that most of the witnesses were interested witnesses and their testimony was not reliable. 7. Besides, the trial Court also was not very sure that the offence had been committed by the accused. Referring to para 2 of the testimony of the I.O. P.W.11 B.P. Singh Bhadoria, who has recorded the Merg and thereafter FIR and the Panchnama Ex.P/3, of the recovery of the body, Counsel submitted that this witness has in impugned para 9 of his deposition categorically stated that the mother and father of the deceased had not filed the missing persons report. It was filed by Hazaria the father of the present accused and who had categorically stated that somebody had killed and thrown his deceased daughter-in-law in the well on 26-5-1996. Whereas the missing persons report had been filed by Hazaria on 8-5-1996. Under the circumstances, Counsel stated that suspicion however, strong cannot taken the place of proof as already stated above. 8. Counsel relied on the following judgments to support his contentions. Relying on Sampath Kumar vs. Inspector of Police, Krishnagiri, (2012) 2 SCC (Cri) 42 and Counsel submitted that there were a number of inconsistent versions, discrepancies and contradictions in the testimony of the witnesses; the statement of truthful witnesses also appears to be false and hence, it would be unsafe to rely on a version of a material improvement etc. unless it is corroborated by independent witnesses. The independent evidence in the present case has not been supported by the prosecution. Moreover, the Apex Court also held in cases of circumstantial evidence except motive, if no other circumstantial evidence is proved it would not be sufficient to convict the accused on materials on record, there may arise some suspicion against appellant-accused, but suspicion, howsoever, strong cannot take the place of proof. 9. Moreover, the Apex Court also held in cases of circumstantial evidence except motive, if no other circumstantial evidence is proved it would not be sufficient to convict the accused on materials on record, there may arise some suspicion against appellant-accused, but suspicion, howsoever, strong cannot take the place of proof. 9. Relying on a judgment of the High Court in the matter of Bhagwan Das vs. State of M.P., 2010(3) M.P.H.T. 239 , Counsel submitted that there should be two essential ingredients to implicate any person under section 306, Indian Penal Code and in the present case it cannot be said that the deceased died of falling into the well or that the husband had helped or abetted in the suicide. The conviction was not sustainable. Also relying on Narendra Singh and others vs. State of M.P., 1999 (1) JLJ 232 Counsel submitted that for the ingredients of section 306 prosecution has to prove the commission of suicide by a person and further prove that the accused abetted the commission of the suicide and when the ingredients of section 107 have not been proved against the accused, the conviction was set aside. Moreover, if the witnesses appeared to be tutored then the presumption raised that other witnesses were also tutored. In the present case it appears that the prosecution witnesses were tutored and Counsel stated that the impugned judgment of conviction be set aside. 10. Counsel for the State per contra has submitted that although the medical opinion on record did not indicate whether the death of the deceased Bailibai was homicidal in nature, it was established that the dead body was found in the dry well of the village Rakhi Khurd. The trial Court has also observed that on this basis it cannot be believed that the death was not homicidal in nature. There was no evidence regarding the fact that the deceased had jumped in the well. It was the defence of the accused and that of the father Hazaria, that the deceased Bailibai had first been killed and then thrown into the well. There was no evidence regarding the fact that the deceased had jumped in the well. It was the defence of the accused and that of the father Hazaria, that the deceased Bailibai had first been killed and then thrown into the well. Counsel urged that placing reliance on the testimony of Pervibai P.W.6 the mother of the deceased when she has narrated that the daughter had come home and told her regarding the physical cruelty and beating given by the husband and she has also submitted that because two daughters were born only thereafter the accused had started troubling her. The sister of the deceased has also more-or-less submitted that sometimes after marriage accused Ramesh used to often trouble her sister and beat her. The brother Bhavsingh P.W.7 has also more or less deposed the same thing that till the birth of her two daughters the accused Ramesh had treated his sister properly; but after birth he used to often beat her and Bailibai had complained about the same to him. He had narrated the same to the father-in-law of Bailibai and only on his assurance that they would not ill-treat his sister, he had sent her back and he held the accused as well as his parents responsible for the death of Bailibai. He however, admitted that the missing persons report had been filed by P.W.9 Hazaria the father of the accused and they had been searching for his daughter and he had filed the missing persons report on 26-5-1996 Ex.P/5 on 8-5-1996. Counsel prayed that the appeal was without merit and the same be dismissed. 11. On considering the above, I find that the sole question that arises for adjudication in the present appeal is whether there was sufficient evidence on record for conviction of the accused for offence under sections 306, 498-A of the Indian Penal Code. Considering impugned para 15 of the judgment, I find that the trial Court has given a categoric finding that it was not a homicidal death since there was no sufficient evidence on record to medically support the fact that the deceased Bailibai had been killed before being thrown into the well. However, there was evidence on record to indicate that the deceased was being treated with cruelty and also being beaten by the husband. However, there was evidence on record to indicate that the deceased was being treated with cruelty and also being beaten by the husband. In these circumstances, I find that the testimony of the mother Pervibai P.W.6 sister Sushilabai P.W.2 and father Hazaria P.W.9 became doubtful especially in the light of the discrepancies already pointed out by the Counsel for the appellant. The marriage was of a period for more than 10 years and two daughters had been born out of the wedlock. Even Bhavsingh P.W.7 the brother of the deceased has candidly admitted that initially the accused used to treat his wife properly and there is no categoric evidence on record to indicate that the accused used to often beat her as already stated above. The evidence of the mother, sister and brother is very much doubtful. In case of circumstantial evidence the chain of events has to be established. The evidence in order to sustain the conviction must be of sterling quality and should be able to establish the guilt of the accused. Firmly placing reliance on Ashish Batham vs. State of M.P., (2002) 7 SCC 317 I find that the Apex Court has held thus :- "Consequently considering the fact that the evidence is circumstantial 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 circumstantial 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." 12. Whereas in the present case, I find that circumstances have not been proved beyond doubt and vital links in the circumstances are missing. Considering the finding of the trial Court in impugned para 10 to 15; I find that even the trial Court has doubted the incident then under such circumstances, it cannot be said that prosecution has been able to prove beyond doubt that the appellant had abetted the offence under section 306 of the Indian Penal Code. In the absence of clinching evidence, the trial Court was therefore, not justified in convicting the accused merely because there are stray incidents of disagreement and petty quarrels in domesticity. Therefore, it cannot be said that the accused appellant used to treat the wife with cruelty. In the absence of clinching evidence, the trial Court was therefore, not justified in convicting the accused merely because there are stray incidents of disagreement and petty quarrels in domesticity. Therefore, it cannot be said that the accused appellant used to treat the wife with cruelty. In cases of circumstantial evidence, it is always dangerous to base conviction on conjecture or suspicion which cannot take place of proof. Similarly, I find that the motive to commit the offence is also missing in the present case. The suspicious circumstances which is soon prior to the death have also not been established. 13. Under the circumstances, I find that the impugned judgment of conviction needs to be set aside. It is hereby, set aside. The appellant is acquitted from the offences charged against him. He is on bail. His bail bonds are hereby, discharged. The appeal is allowed to the extent hereinabove indicated.