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2014 DIGILAW 545 (MP)

Dheeraj Singh v. State of M. P.

2014-05-06

N.K.GUPTA

body2014
Judgment N.K. Gupta, J.:- 1. The appellants have preferred the present appeal being aggrieved with the judgment dated 20.2.2013 passed by the learned Additional Sessions Judge, Begumganj, District Raisen in S.T. No. 29/2008, whereby the appellants were convicted for offence punishable under Sections 306 and 498A of IPC and sentenced for 10 years' rigorous imprisonment with fine of Rs. 1,000/- and 3 years' rigorous imprisonment with fine of Rs. 1,000/- respectively. In default of payment of fine, one month's rigorous imprisonment for each default was also directed. 2. The prosecution's case, in short, is that, on 26.2.2007, at about 10 a.m. in the morning, the deceased Deena, wife of the appellant Dheeraj was found seriously injured by burning in the house of the appellants at village Majhgawan. She was sent for her medico legal examination. Executive Magistrate Begumganj also recorded her dying declaration. She was referred to Hamidiya Hospital, Bhopal. She was admitted in burn unit of that hospital but, at about 2.30 a.m. in the night, she had expired. Thereafter, the parents and relatives of the deceased have stated about the facts relating to harassment done by the appellants with the deceased for dowry demand and so many other reasons. After due investigation, a charge-sheet was filed before the committal Court and case was committed to the Sessions Judge, Raisen. Ultimately, it was transferred to the learned Additional Sessions Judge, Begumganj, District Raisen. 3. The appellants abjured their guilt. They did not take any specific plea and therefore, no defence evidence was adduced. 4. After considering the prosecution's evidence, the learned Additional Sessions Judge, Begumganj, convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties. 6. It is admitted that the deceased was the wife of the appellant Dheeraj Singh and daughter-in-law of the appellant Sumitra Bai @ Somat Bai. It is also admitted that she committed suicide and therefore, her death was caused. In the present case, initially the parents and relatives of the deceased have made omnibus allegations against the appellants about harassment for dowry demand done by them towards the deceased. However, Badi Bai (P.W. 2) mother of the deceased, Omprakash (P.W. 3) and Kamlesh (P.W. 4), brothers of the deceased. In the present case, initially the parents and relatives of the deceased have made omnibus allegations against the appellants about harassment for dowry demand done by them towards the deceased. However, Badi Bai (P.W. 2) mother of the deceased, Omprakash (P.W. 3) and Kamlesh (P.W. 4), brothers of the deceased. Rajaram Dhurvey (P.W. 7), brother-in-law of the deceased, Smt. Manju (P.W. 8) sister of the deceased are examined before the trial Court and none of them supported the prosecution's case. They have stated that the deceased was kept with comfort and therefore, there was no problem to her. Under such circumstances, the entire case of the prosecution hinges upon the dying declaration, Ex. P/8, recorded by Shri N.S. Gajoriya (P.W. 12) Naib Tahsildar of Tahsil Begumganj, District Raisen. Dr. S.B. Kulkarni (P.W. 5) has proved that the dying declaration was recorded before him and the deceased Deena Bai was competent to give her statement. 7. After considering the statements of Dr. Kulkarni and Shri Gajoriya, it would be apparent that there was no irregularity committed by Shri Gajoriya, so that it can be said that the statement was not given by the deceased or it was prepared by Shri Gajoriya himself. Hence, it is established that Shri Gajoriya recorded the statement of the deceased and she was competent to give the statement. It is also clear that such evidence is relevant and admissible under Section 32 of the Evidence Act. Dying declaration is a substantial piece of evidence for which it is not necessary that there should be some corroboration. Now a days, it is found that in every case, it is not possible that the deceased would have told the truth only and nothing else. In the present case, the deceased told two different things for cause of her suicide. Firstly, that since last 12 days, her parents-in-law and husband were quarrelling with her for demand of dowry and secondly, they were making allegations about her character and therefore, when a quarrel took place, she committed suicide. 8. In the present case, the deceased told two different things for cause of her suicide. Firstly, that since last 12 days, her parents-in-law and husband were quarrelling with her for demand of dowry and secondly, they were making allegations about her character and therefore, when a quarrel took place, she committed suicide. 8. So far as the first story told by the deceased is concerned, it was apparent from the statements of various witnesses related to the deceased that the marriage of the deceased took place with the appellant Dheeraj, 12-13 years prior to her death and therefore, if the appellants were demanding dowry from the deceased and a quarrel took place on the basis of that reason then, such allegation appears to be unnatural. When the appellants did not demand dowry from the deceased in last 10-12 years then, there was no reason so that they should have started demanding dowry in last 12 days of the life time of deceased Deena Bai. It appears that since the character of the deceased Deena Bai was under question, therefore, she was guilty conscious to that fact and therefore, she made an allegation of dowry demand and harassment. If there was no dowry demand in last 10-12 years of her marriage then, there was no possibility that the appellants would have demanded any dowry from the deceased in last 12 days of her life. Also, if any dowry demand was made by the appellants then, that fact must be in the knowledge of parents and relatives of the deceased but, no such FIR was lodged either by the deceased or her parents etc. in those 10-12 years. No such incident took place in the past so that when any Panchayat was called for resolution of differences between the deceased and the appellants. 9. It is possible that initially the parents and relatives of the deceased have made omnibus allegations about dowry demand and harassment, therefore, the deceased could have given her dying declaration due to pressure of her parents and relatives. However, it was not possible that she was being harassed for dowry demand in last 10 days of her marital life and therefore, the portion of dying declaration in which it is alleged that the appellants demanded dowry and harassed the deceased on that basis, appears to be incorrect. 10. However, it was not possible that she was being harassed for dowry demand in last 10 days of her marital life and therefore, the portion of dying declaration in which it is alleged that the appellants demanded dowry and harassed the deceased on that basis, appears to be incorrect. 10. So far as the second portion is concerned that the appellants were harassing the deceased by making a doubt on her character since last 10 days prior to her death. This was the specific fact which was in the knowledge of the deceased, and parents and relatives of the deceased could not have any knowledge of that fact unless it would have been told to them. Such harassment was done in last 10 days before she committed suicide and there is no evidence that in those last 10 days, she could have talked with her mother or other family members from her father's side. It is true that she committed suicide and there must be some reason to do so and therefore, the second portion of the dying declaration appears to be correct. 11. Now it is to be examined as to whether that second portion constitute an offence under Section 306 of IPC or not. It is apparent that the deceased died after 10-12 years of her marriage and therefore, no presumption under Section 113A of Evidence Act is available. If the appellants were asking the deceased about her relations with someone else in last 10 days then, by such asking it cannot be said that she was abated to commit suicide. Such overt-act of the appellants did not fall within the purview of Section 107 or 109 of IPC. It is the settled view of Hon'ble the Apex Court that if such overt-act has been done by the accused so that no option remained with the deceased except to commit suicide then, offence under Section 306 of IPC shall be made out. In the present case, it is not alleged that the appellants were regularly harassing the deceased by blaming her character. Such questions arose in last 10 days of her life and therefore, it cannot be said that the deceased had no option except to commit suicide. She could go to her mother's house to inform her about such torture. She could express that there was no such relation of herself. Such questions arose in last 10 days of her life and therefore, it cannot be said that the deceased had no option except to commit suicide. She could go to her mother's house to inform her about such torture. She could express that there was no such relation of herself. She had some redressal except to commit suicide and if the appellants were of the view that the character of the deceased was doubtful from very beginning then, such type of questions would have asked in last 10 years of her marital life but, according to her dying declaration, it would be apparent that she was never asked such questions in last 10 years of her life, except in last 10 days of her life. Under such circumstances, it cannot be said that due to such questions, the deceased had no option except to commit suicide. Hence, it cannot be said that the appellants abated the deceased to commit suicide. The learned Additional Sessions Judge has committed an error of law and fact in convicting the appellants for offence punishable under Section 306 of IPC. It appears that due to guilty conscious or otherwise, the deceased had committed suicide. 12. So far as the offence under Section 498A of IPC is concerned, no harassment was done by the appellants in last 10 years of the life of the deceased except for those 10 days. All the relatives of the deceased have turned hostile. They did not support the prosecution's story about harassment to the deceased. However, it would be apparent that the suicide committed by the deceased was remotely dependant upon the queries made by the appellants about her character and such queries were made repeatedly for 10 days. Under such circumstances, the overt-act of the appellants fall within the meaning of cruelty under Section 498A of IPC and therefore, at least in last 10 days of life of the deceased, the appellants have committed cruelty to her being husband and mother-in-law and therefore, the trial Court has rightly convicted the appellants for offence punishable under Section 498A of IPC. 13. So far as the sentence is concerned, the appellant Dheeraj is in custody since last 3 years, whereas total custody period of the appellant No. 2 is approximately one year. 13. So far as the sentence is concerned, the appellant Dheeraj is in custody since last 3 years, whereas total custody period of the appellant No. 2 is approximately one year. Under such circumstances, looking to the nature of the case and the over-act of the appellants that they kept the deceased with comfort in last 10 years and they simply became rude to the deceased in last 10 days of her life therefore, the jail sentence of the appellants for offence punishable under Section 498A of IPC should be reduced to the period for which the appellants remained in the custody. 14. On the basis of the aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. The conviction and sentenced directed against the appellants for offence punishable under Section 306 of IPC is hereby set aside. The appellants are acquitted from the charge of offence punishable under Section 306 of IPC. However, the conviction for offence punishable under Section 498A of IPC is hereby maintained but, sentence is reduced to the period for which they remained in the custody. There is no change in the fine amount. 15. The appellant No. 1 is in jail and therefore, office is directed to arrange for issuance of supersession warrant, so that the appellant No. 1 may be released from the jail, without any delay. The appellant No. 2 is on bail, her presence is no more required before this Court and therefore, it is directed that her bail bonds shall stand discharged. 16. A copy of the order be sent to the trial Court alongwith its record for information and compliance.