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Madhya Pradesh High Court · body

2015 DIGILAW 214 (MP)

State of M. P. v. Roshanlal Mahar

2015-02-20

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The State has preferred the present appeal being aggrieved with the judgment dated 21.9.1993 passed by the Second Additional Sessions Judge, Balaghat in S.T. No.221/1992, whereby the respondent was acquitted from the charge of offence under Section306 of IPC. 2. The prosecution's case, in short, is that, the respondent Roshanlal was working as Time Keeper in PWD. Indu Bai, wife of the respondent was married to him 2½ years ago. The respondent was in habit to consume liquor and to assault his wife Indu Bai. On 22.8.1992, in the house of the respondent, situated at village Bijatola (Police Station Paraswada, District Balaghat), the deceased Indu Bai had tried to commit suicide by pouring kerosene upon herself and set fire on herself. On her shouting, various witnesses went to the spot and found that door was closed from inside and Indu Bai was burning. Indu Bai was taken to the hospital. Head Constable Sukhdeo (P.W.8) examined the deceased Indu Bai and recorded her dying declaration, Ex.P/1. However, in taking Indu Bai to the hospital, she succumbed to the injuries. After due investigation, a charge- sheet was filed before JMFC, Baihar, who committed the case to the Sessions Court and ultimately, it was transferred to Second Additional Sessions Judge, Balaghat. 3. The respondent abjured his guilt. He took a plea that he was falsely implicated in the matter. At the time of the incident, he was not present in the house. In defence, Shankar Lal (D.W.1) was examined. 4. Additional Sessions Judge, after considering the evidence adduced by the parties, acquitted the respondent from the aforesaid charge. 5. Since it was an old appeal of the year 1995 and no one was appearing for the respondent, Shri Prakash Gupta, Advocate, out of the panel of High Court Legal Services Committee and who has vast experience in dealing with the criminal cases, is appointed to argue the matter on behalf of the respondent and thereafter, I have heard the learned counsel for the parties. 6. From the evidence adduced by the parties, it is apparent that the deceased Indu Bai died within 2 1/2 years of her marriage and therefore, presumption under Section 113-A of Evidence Act is applicable. Shafi Khan (P.W.1), Baijnath (P.W.2), Sarwan Lal (P.W.3), Murari (P.W.4), Mota Bai (P.W.5), Latiram (P.W.6), Sukhdeo (P.W.8) etc. 6. From the evidence adduced by the parties, it is apparent that the deceased Indu Bai died within 2 1/2 years of her marriage and therefore, presumption under Section 113-A of Evidence Act is applicable. Shafi Khan (P.W.1), Baijnath (P.W.2), Sarwan Lal (P.W.3), Murari (P.W.4), Mota Bai (P.W.5), Latiram (P.W.6), Sukhdeo (P.W.8) etc. were examined to show the position at the time of the incident and to inform about the previous conduct of the respondent and also about the dying declaration given by the deceased. Out of these witnesses, Baijnath was cousin of the deceased Indu Bai. Murari (P.W.4) was father of the deceased and Mota Bai (P.W.5) was mother of the deceased. These three witnesses have tried to establish that the deceased was making complaints to her parents about the cruelty done by the respondent. However, it was apparent from the evidence of these witnesses that after marriage of the deceased, she went last time to the house of her parents, 6 months ago. It was stated that she was complaining about cruelty done by the respondent after consuming liquor. However, Mota Bai has accepted in para 4 of her cross- examination that when deceased came to her house for the last time, she made a complaint and at that time, she was accompanied by the respondent. Thereafter, the respondent assured that he will take care of the deceased and thereafter, there was no intimation received from the deceased. It is also apparent that the parents of the deceased did not take any step for resolving the dispute between the respondent and his wife, no Panchayat of their community was called. No FIR was lodged at the Police station. Even the deceased was not detained in the house of her parents. The deceased was free to visit the house of her parents and therefore, if any cruelty was done by the respondent then, she could have visited the house of her father in those last 6 months. Looking to the attitude of Mota Bai, mother of the deceased, it appears that complaint made by the deceased was not so serious and therefore, they relied upon the assurance given by the respondent and the deceased was sent with the respondent. 7. Looking to the attitude of Mota Bai, mother of the deceased, it appears that complaint made by the deceased was not so serious and therefore, they relied upon the assurance given by the respondent and the deceased was sent with the respondent. 7. For offence under Section 306 of IPC, it was for the prosecution to establish that there was any cruelty from the side of the husband soon before the incident of suicide. These three witnesses did not say anything about any incident in last 6 months of the life of Indu Bai and therefore, it cannot be said that their story of cruelty was of the period soon before the incident. Also, possibility cannot be ruled out that these witnesses have created a story of cruelty otherwise, if the respondent was in habit to assault his wife after consuming liquor then, certainly some steps must have been taken by these persons in life time of Indu Bai or Indu Bai would have left the house of the respondent and started residing with her parents. Hence, testimony of these witnesses cannot be accepted relating to question of cruelty done by the respondent. 8. The witness Sarwanlal (P.W.7) has turned hostile. He has stated that the respondent and his wife were residing peacefully. Latiram (P.W.6), uncle of the deceased has stated that the deceased never informed him about any cruelty done by the respondent. Though the witness Latiram was declared hostile but, being elder brother of father of the deceased, his statement can be accepted. If any cruelty was done by the respondent and it was in the knowledge of parents of the deceased then, it must be in the knowledge of her uncle Lati Ram. The entire case depends upon the testimony of Shafi Khan (P.W.1) and Head Constable Sukhdeo (P.W.8). Sukhdeo has claimed that on intimation, he rushed to the spot and tried to take the deceased to the hospital. In the meantime, he recorded her dying declaration. Behaviour of Head Constable Sukhdeo appears to be unnatural. When the deceased was dying due to injuries and she was in need of medical help, she was to be taken to the hospital at the earliest but, instead of doing so, Sukhdeo claims that he recorded the dying declaration of the deceased. In the meantime, he recorded her dying declaration. Behaviour of Head Constable Sukhdeo appears to be unnatural. When the deceased was dying due to injuries and she was in need of medical help, she was to be taken to the hospital at the earliest but, instead of doing so, Sukhdeo claims that he recorded the dying declaration of the deceased. If the deceased would have said something about any reason of her death then, such statement could be produced before the Court as oral dying declaration given before Head Constable Sukhdeo and other witnesses. The trial Court has found that there was no certificate of any doctor on that dying declaration to show that the deceased was competent to give her statement. When the police officer was in a position to record the dying declaration then, he could have contacted the Executed Magistrate or the doctor to get the dying declaration recorded and therefore, the trial Court has rightly disbelieved the testimony of Head Constable Sukhdeo Prasad that he recorded the dying declaration, Ex.P/1. Looking to the conduct of Head Constable Sukhdeo Prasad, it would be apparent that his testimony cannot be accepted even relating to oral dying declaration given by the deceased. 9. However, if dying declaration, Ex.P/1 is accepted as it is then still it would be clear from the text of the dying declaration that the respondent assaulted the deceased in the previous night after consuming liquor and there was no much effect of that assault and the deceased was alright in the night. In the morning, she went to answer the call of nature and in the meantime, the respondent left the house. Again he came back after consuming some liquor and assaulted the deceased. When the deceased was working as a Time Keeper in PWD and there was no complaint of his work in his department then, it was not possible for him to consume liquor in the morning. Secondly, if he went outside of his house due to any reason then, it would not necessary that he has gone to consume liquor. Thereafter, if he assaulted the deceased by kicks and fists then, there must be some injuries visible on the part of her body. Secondly, if he went outside of his house due to any reason then, it would not necessary that he has gone to consume liquor. Thereafter, if he assaulted the deceased by kicks and fists then, there must be some injuries visible on the part of her body. If the respondent had assaulted the deceased by kicks and fists then, after he left the house, the deceased was free to leave the house of the respondent and to go to the house of her parents and to make a complaint. She had an opportunity to redress the cruelty done by the respondent by other means but, instead of doing so, she committed suicide. Hence, the action of the deceased to commit suicide could be a sentimental act but, it cannot be said that there was nexus between action of suicide and assault caused by the respondent. When the deceased had various modes to get her complaint redressed then, it cannot be said that the act of assault caused by the respondent falls within the purview of Sections 107 or 109 of IPC and therefore, no offence under Section 306 of IPC is made out against the respondent, even if dying declaration is accepted as it is. 10. Shafi Khan (P.W.1) has stated that he immediately rushed to the spot and he was informed by one Azeem Bhai that the respondent set fire upon his wife. He asked the deceased that as to how she sustained burn injuries then, she replied that in the night the respondent came after consuming some liquor and abused her and thereafter, assaulted her and she was hungry since night and therefore, she committed suicide. However, if evidence of Shafi Khan is examined minutely then, it was not possible for anyone to say that the respondent set the deceased on fire. The doors of the room were closed from inside and therefore, nobody could say that the respondent was culprit of murder of his own wife. If oral dying declaration as given by Shafi Khan is compared with the dying declaration, Ex.P/1 recorded by Head Constable Sukhdeo then, it would be apparent that Shafi Khan did not say anything about the assault caused in the morning when the deceased set fire upon herself. It was not stated by the deceased to Head Constable Sukhdeo that she did not eat anything since night or she was hungry. It was not stated by the deceased to Head Constable Sukhdeo that she did not eat anything since night or she was hungry. There is a material contradiction between the oral dying declaration given by Shafi Khan and dying declaration recorded by Head Constable Sukhdeo. Shafi Khan in his cross-examination has accepted that the deceased told him that she poured kerosene oil from stove but, no such statement of Shafi Khan was recorded in his case diary statement, Ex.D/1. It appears that Shafi Khan has given his statement on the basis of his hypothecation and imagination. Since his statement is contrary to the dying declaration recorded by Head Constable Sukhdeo, story told by Shafi Khan cannot be accepted. If it is accepted then, the description given in oral dying declaration does not establish the overt-act of the respondent that he abetted the deceased to commit suicide. 11. On the basis of the aforesaid discussion, it appears that the trial Court has rightly acquitted the respondent from the charge of offence under Section 306 of IPC. There is no substance in the State appeal, so that any interference can be done in the judgment passed by the trial Court. Consequently, State appeal filed against the respondent is hereby dismissed by confirming the judgment passed by the trial Court. 12. The respondent is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. 13. A copy of the judgment be sent to the trial Court alongwith its record for information.