HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR Single Bench: Hon'ble Shri Justice N.K.Gupta,J CRIMINAL APPEAL No.1138 OF 199.Deepak & others. Vs. State of Madhya Pradesh. ------------------------------------------------------------------------------------------- Shri S.C.Datt, Sr. Advocate with Shri P. Dubey, Advocate for the appellants. Shri S.K.Kashyap, Public Prosecutor for the respondent/State. ------------------------------------------------------------------------------------------- JUDGMENT
(Delivered on the 11th day of October, 2012) This criminal appeal is preferred by the appellants being aggrieved by the judgment and order of sentence dated 12/7/1996 passed by the Additional Sessions Judge, Harda in ST No.193/1994, whereby the appellants were convicted for commission of offence punishable under Section 306 read with Section 34 of IPC and sentenced for five years' rigorous imprisonment with fine of Rs.5000/- each. In default of payment of fine amount, they were to undergo for one year and three months' simple imprisonment in addition.
2. During the pendency of the appeal, the appellant No.4 Radheyshyam had expired, therefore his name was deleted from the cause title of the appeal. It is admitted that the deceased was married to the appellant No.1 Deepak, 2 Criminal Appeal No.1138/1996 whereas the appellant No.3 Smt. Shanti Bai, the appellant No.2 Satish and the appellant No.5 Gyaneshwari Bai are the mother, brother-in-law and sister of the appellant Deepak.
3. The prosecution’s story, in short, is that the marriage of the deceased Jyanti Bai took place with the appellant No.1 Deepak in April 1990. Deepak was a Clerk in MPEB and he was posted at Khidkiya at that time. 2-3 months after their marriage, the appellant Deepak was transferred to Timarni, and therefore he was residing at Timarni along with his parents and wife Jyanti Bai. At Timarni the appellant Satish, brother-in-law of the appellant Deepak was also residing, whereas Jaishri (PW-4), sister of the deceased was also residing at Timarni along with her husband Lakhanlal. Similarly, Lakhanlal Pare (PW-1) maternal uncle of the deceased was also residing at Timarni along with the family. For some time the deceased was kept with comfort and thereafter the appellants started the demand of TV and a double bed. The deceased was being harassed for such a demand. When a child was born to the deceased, her parents were directed to provide the clothes etc. to the relatives of the appellants, and therefore a letter Ex.P-2 was sent by the appellant Radheyshyam, father of the appellant Deepak to the parents of the deceased Jyanti Bai. Also the deceased wrote a letter Ex.P-3 to her parents relating to the demand. Since the parents of the deceased 3 Criminal Appeal No.1138/1996 could not fulfill the demand of the appellants, a quarrel took place in that function between the appellants and the parents of the deceased. When a six months ceremony of maternal grand mother of the deceased held at Timarni in the house of Lakhanlal Pare (PW-1), the appellant Deepak neither attended that ceremony not permitted the deceased Jyanti Bai to meet her parents. When the parents of the deceased left the township of Timarni, they were informed that the deceased was suffering from loose motion and vomiting. She was taken to the Harda Hospital and thereafter she was shifted to the Hamidiya Hospital, Bhopal where she was found dead, and therefore a panchayatnama lash was prepared. Dr. M.C.Garg (PW-7), who was a treating doctor had informed that the colour of the body of the deceased was turned into the blue. Dr. Geeta Rani Gupta (PW-10) did the postmortem on the body of the deceased and she found that the deceased died due to consumption of some poisonous substance. However, for confirmation to her opinion, the viscera of the deceased was preserved and handed over to the police for its forensic science examination. After due investigation, a charge sheet was filed before the JMFC Harda, who committed the case to the Sessions Court, Hoshangabad and ultimately it was transferred to the Additional Sessions Judge, Harda. 4 Criminal Appeal No.1138/1996 4. The appellants-accused abjured their guilt. They did not take any specific plea, but they have stated that the deceased was kept with comfort. The deceased and the appellant Deepak were residing in a locality where their house was surrounded by the houses of the reputed persons and there was no information gathered by the police from those persons about any misconduct or harassment done to the deceased. The marriage of the deceased took place in a collective marriage ceremony of the community and no dowry was demanded by the appellants. The deceased died due to illness. However, no defence evidence was adduced.
5. The learned Additional Sessions Judge after considering the evidence adduced by the prosecution acquitted the appellants for the offence under Section 304- B of IPC but convicted the appellants under Section 306 read with Section 34 of IPC and sentenced as mentioned above.
6. I have heard the learned counsel for the parties.
7. The learned senior counsel for the appellants has submitted that the evidence of the various witnesses may be examined and it would be clear that there was no harassment or cruelty done by the appellants to the deceased. Though the deceased died within seven years of her marriage and presumption under Section 113-A of the Evidence Act may apply, but still it was for the prosecution 5 Criminal Appeal No.1138/1996 to prove that the overt-acts alleged against the appellants fall within the purview of Section 107 of IPC, otherwise the appellants could not be convicted for the offence under Section 306 of IPC. It is also submitted that it is not proved that the death of the deceased was suicidal in nature. He also took an objection that there was no charge framed for the offence under Section 306 of IPC, whereas the trial Court has convicted the appellants for that offence without framing of any charge. In this context, he has placed his reliance on the judgment of Hon’ble the Apex Court in the case of “Harjit Singh Vs. State of Punjab”. (AIR 200.SC 680.to show that the appellants could not be convicted for the offence under Section 306 of IPC without framing of such a charge. A prejudice has been caused to them. It is further submitted that looking at the evidence of various witnesses, there is no evidence by which the appellants could be convicted even for the offence under Section 498-A of IPC. Appellant Satish and his wife Gyaneshwari were not residing with the deceased, and therefore there was no interference of these 2 persons in day to day family affairs of the deceased. The family of the appellants was a middle class family; therefore wife was expected to do the household work of the family on her own. In the alternate, it is submitted that the appellants Deepak and Satish are government servants, if they are sent to the jail, then they 6 Criminal Appeal No.1138/1996 may lose their job without any reason. Under such circumstances it is prayed that the appellants may not be sent to the jail again.
8. On the other hand, the learned counsel for the State has submitted that the appellants could be convicted for the offence under Section 306 of IPC if charges were framed for the offence under section 304-B of IPC. In this context, he has placed his reliance upon the decision of Hon’ble the Apex Court in the case of “K Prema S. Rao & another Vs. Yadla Srinivasa Rao & others”., (2003 Cr.L.J.69). He has submitted that the trial Court has considered the evidence properly and convicted & sentenced the appellants by appreciation of the evidence, and therefore there is no basis by which any interference can be done in the appeal.
9. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellants may be accepted?. Whether the appellants can be convicted for the offence under Section 498-A of IPC?. And whether the sentence directed against the appellants can be reduced?.
10. It is admitted by the appellants that the marriage of the deceased took place approximately four years ago from her death. Initially the deceased and her husband 7 Criminal Appeal No.1138/1996 Deepak resided at Khidkiya for 3-4 months and thereafter the appellant Deepak was transferred to Timarni where the maternal uncle of the deceased Lakhanlal Pare (PW-1) was residing with his family and Jaishri (PW-4) sister of the deceased was also residing with her family including her husband Lakhanlal (PW-2). All the witnesses have accepted that the appellant Satish and his wife Gyaneshwari were residing separately. Hari Shankar (PW-5), father of the deceased and Gyatri Bai (PW-6) mother of the deceased have stated that the deceased was given so many articles at the time of her marriage and there was a continuous demand of TV and a double bed from the side the appellants, and therefore the appellants were harassing the deceased. However, the allegation made by these witnesses was not corroborated by other witnesses like Lakhanlal Pare (PW-1), Lakhanlal (PW-2), Rekha (PW-3) and Jaishri (PW-4), who were relatives of the deceased. Also Hari Shankar and Gyatri Bai did not say about the demand of TV and double bed in their case diary statements, and therefore it appears that the allegation made by these witnesses in the Court relating to the dowry demand appears to be an after thought.
11. Gyatri Bai (PW-6) has stated that due to home work, condition of the hands of the deceased was bad. Blood was oozing from her hands and hands were swollen, 8 Criminal Appeal No.1138/1996 still she was being directed to clean the utensils. When she was suffering from the disease of jaundice, she was directed to do the work of washing the clothes. However, such a cruelty as alleged by the witness Gyatri Bai is nowhere corroborated by any witness. Similarly, such allegation was not made by the witness Gyatri Bai in her case diary statement, and therefore cruelty as alleged by the witness Gyatri Bai appears to be an after thought.
12. If the statements of various witnesses are examined thoroughly, then it would be clear that there are 2-3 specific incidents in which some harassment appears to be done to the deceased. Firstly, after the delivery of the first child to the deceased, a programme of “Pach”. was arranged by the appellant Deepak and a dispute took place between the appellants and the parents of the deceased. Hari Shankar and Gyatri Bai have stated that the deceased appellant Radheyshyam wrote a letter Ex.P-2 to them for demand of various clothes for the appellants and other family members and the deceased had also sent a letter Ex.P-3 to her parents. Hari Shankar has stated that the deceased appellant Radheyshyam came to his house and handed over that letter to him, whereas Gyatri Bai states that the letter was sent by Radheyshyam. There is a material contradiction about receiving of that letter. Other witnesses like Lakhanlal, Jaishri etc. did not confirm that 9 Criminal Appeal No.1138/1996 such letter was given by the deceased appellant Radheyshyam. The letters Ex.P-2 and Ex.P-3 were seized by the police vide seizure memo Ex.P-1 and both Lakhanlals were the witnesses of that seizure. They denied about that seizure. It is nowhere proved by the prosecution that the letter Ex.P-2 was in the handwriting of the deceased appellant Radheyshyam. No sample of the handwriting was taken from the deceased appellant Radheyshyam and no report of any Handwriting Expert was called. Therefore, looking at the evidence given by both Lakhanlals, it is not proved that the letter Ex.P-2 was given by the deceased appellant Radheyshyam to the parents of the deceased Jyanti Bai.
13. Similarly, it is not proved that the letter Ex.P-3 was written by the deceased. It is a simple letter written on a paper of the notebook. It is not mentioned in the letter as to whether it was sent by post or otherwise. No envelop was produced by the parents of the deceased to show that they received it by post. The letter was handed over to the police after 11 days of the death of the deceased and it could be a letter prepared after the death of the deceased, and hence it is not proved that the letter Ex.P-3 was written by the deceased Jyanti Bai to her parents.
14. However, Hari Shankar and Gyatri Bai have stated that they were poor persons and a huge list of 10 Criminal Appeal No.1138/1996 clothes was given to Hari Shankar to provide the same to the appellants and other relatives. However, Gyatri Bai has accepted that the appellants had directed them that sister of the appellant Deepak was not attending the ceremony, and therefore her Sari was not at all required, but again Gyatri Bai has stated that the quarrel took place between them because they could not provide a Sari to the aunt of the appellant Deepak. Under such circumstances, it appears that a dispute took place between the appellants and the parents of the deceased relating to supply of some clothes in the ceremony. If the version of Rekha (PW-3) and Jaishri (PW-4) is considered, then it would be clear that it was for the appellants not to accept the clothes if clothes were not properly provided to their close relatives, but thereafter the appellants accepted the clothes and the dispute was over. Rekha and Jaishri have accepted that there was no demand from the side of the appellants to provide some clothes. Actually the dispute took place on the point that Hari Shankar had to go by a train and lunch was not served within due time, and ultimately Hari Shankar had to leave the place without taking the lunch, as he was getting late to catch the train. Looking at the evidence of Rekha, Jaishri and relatives of the deceased Jyanti Bai, it is not expected from them that they would have taken the side of the appellants. If any function was arranged by the appellant 11 Criminal Appeal No.1138/1996 Deepak and if the parents of the deceased Jyanti Bai brought some clothes on their own, then it was the matter of acceptance of those clothes, because clothes were not available for the closed relatives of the appellants, and therefore such a dispute was neither a case of dowry demand not cruelty to the deceased Jyanti Bai. Ultimately, the appellants had accepted the clothes provided by the parents of the deceased Jyanti Bai.
15. The second incident quoted by the various witnesses is that after the ceremony of the “Pach”., a ceremony of six months was observed due to the sad demise of mother of the witness Gyatri Bai (PW-6), the maternal grand mother of the deceased Jyanti Bai. There was no dispute between Lakhanlal Pare (PW-1) and the appellants whereas such a ceremony was held at the house of Lakhanlal Pare (PW-1), the deceased was his mother, therefore it was not objectionable for the appellant Deepak so that he could not attend the ceremony, but it is alleged that appellant Deepak went to Rehatgaon along with his wife Jyanti Bai, and he did not permit his wife to go and attend the ceremony and the deceased could not meet her parents who came to the township Timarni. It is accepted by the witness Gyatri Bai that in the entire period of four years of the marriage of the deceased, she went to the house of her parents for 7-8 times, and she stayed for 8-10 12 Criminal Appeal No.1138/1996 days on each trip. She met with her parents 20 days before that ceremony, because she was suffering from the disease of jaundice and she was taken to her parents’ house for the treatment. Hari Shankar and Gyatri Bai have accepted that 25 days prior to her death, she was taken to the house of her parents where she had resided for 10 days and if she came back to the house of the appellants and such six months ceremony was held 10 days after her arrival. Under such circumstances, if the appellant Deepak was of the view that if he attends the function, then burden will be created unnecessarily over the parents of the deceased and Lakhanlal (PW-1) to give some customary gifts to the deceased and the appellant Deepak and also there was a possibility of some dispute, therefore he avoided to attend the function. Since the deceased Jyanti met her parents 15-20 days prior to that ceremony, and therefore there was no cruelty from the side of the appellant Deepak, if he did not permit his wife to meet her parents in a six monthly ceremony. Similarly, if there was a suspicion to the appellant Deepak that an insult would be caused in the ceremony, then certainly he could take a decision that he and his wife would not attend the ceremony. Under such circumstances, if the deceased Jyanti Bai was not permitted to attend that ceremony and she was not allowed to meet her parents in the ceremony, then it does not amount to any 13 Criminal Appeal No.1138/1996 cruelty or harassment to the deceased.
16. The learned senior counsel for the appellants has referred the judgments of the Single Bench of this Court in the case of “Annapurnabai @ Bhoori Vs. State of MP”., [1999(2) MPLJ 85 ., “Nawal Kishore Jagannath Prasad Vs. State of MP”., [1999(2) MPLJ 167 . and “Ramesh Kumar Radheyshyam Agrawal Vs. State of MP”., [1999(1) MPLJ 423 . to show that under what circumstances the cruelty to the wife can be observed. In the light of the appreciation of evidence in these cases, if the factual position of the present case is considered, then it would be apparent that no case under Section 498-A of IPC is made out against the appellants. No overt-act of the appellants is proved to show that they dealt with the deceased with cruelty so that she could commit suicide. Under such circumstances, the overt-acts of the appellants as stated by the witnesses do not fall within the purview of Section 107 of IPC.
17. It is true that the presumption under Section 113- A of the Evidence Act is applicable in the present case, but the presumption is rebuttable, and therefore it was for the prosecution to prove beyond doubt that a cruelty was done to the deceased was of such a nature that she would have committed suicide. But no such cruelty has been proved by the prosecution beyond doubt. On the contrary, Jaishri 14 Criminal Appeal No.1138/1996 (PW-4), sister of the deceased and Rekha (PW-3) aunt of the deceased have turned hostile. They did not allege anything about the cruelty. Under such circumstances, when the overt-acts of the appellants do not fall within the purview of Section 107 of IPC, no offence under Section 306 of IPC is made out against the appellants.
18. In the present case, it is apparent that the deceased was suffering from the disease of jaundice 20 days prior of her death, and therefore it was possible that due to eating of some fatty food, she could get some problem of vomiting and loose motion, and therefore her death could be possible in such a case, because she had already suffered from the disease of jaundice for 2-3 times within a year. It is accepted by the witness Gyatri Bai that the deceased had suffered from the disease of jaundice prior to the function of “Pach”. and again within six months she had suffered with the same disease, and therefore she was sent to the house of her parents 25 days prior to her death. Dr. Geeta Rani Gupta (PW-10) suspected that the deceased died due to consumption of some poison, but her suspicion is nowhere proved by the prosecution. No report of the FSL relating to the viscera was produced before the trial Court, and therefore where the Dr. M.C. Garg (PW-7) opined that the colour of the body turned into blue due to shock. No conclusion of administration of poisonous 15 Criminal Appeal No.1138/1996 substance may be drawn. Under such circumstances, it cannot be said that the deceased had committed suicide. If it is presumed that the deceased died due to consumption of some poison, still it was not proved beyond doubt that such poisonous substance was taken by the deceased on her own to commit suicide or she took such substance by a mistake, and therefore it cannot be said that she committed suicide. The prosecution could not prove beyond doubt that the death of the deceased was suicidal or accidental. Under such circumstances, the appellants cannot be convicted for the offence under Section 306 of IPC.
19. The learned senior counsel for the appellants has also raised an objection that the trial Court has convicted the appellants for commission of offence punishable under Section 306 of IPC without framing of any charge of that offence. He has placed reliance upon the judgment of Hon'ble the Apex Court in the case of Harjit Singh (supra) in which it is observed that in every case the accused cannot be convicted for the offence under Section 306 of IPC under the charges of offence under Section 304-B of IPC. It is observed that in the case of K. Prema (supra), the observations made by the Apex Court due to the peculiar facts of that case, and therefore when the nature of offence punishable under Sections 306 and 304-B of IPC was different, then as per the provisions of Section 222 of 16 Criminal Appeal No.1138/1996 Cr.P.C. the trial Court could not convict the appellants for the offence under Section 306 of IPC without framing of the charge. The learned trial Court took a short cut in convicting the appellants. If the offence under Section 306 of IPC was made out against the appellants, then it was for the trial Court to amend the memo of charge and to start the case for fresh trial. At present where the case is 16 years old and offence under Section 306 of IPC is not even made out then it would not be proper to remand the case for trial of the appellants for the offence under Section 306 of IPC, and therefore neither the case can be remanded not the appellants can be convicted for the offence under Section 306 of IPC either directly or with the help of Section 34 of IPC.
20. The offence under Section 498-A of IPC is an inferior offence of the similar nature with comparison to the offence under Section 304-B of IPC, and therefore the appellants could be convicted for the offence under Section 498-A of IPC under the charge of Section 304-B of IPC. But in the present case, the prosecution has failed to prove that the deceased was dealt with any cruelty done by the appellants. Under such circumstances, as discussed above, the appellants cannot be convicted for the offence under Section 498-A of IPC even. 17 Criminal Appeal No.1138/1996 21. On the basis of the above discussion, it would be clear that no offence under Section 306 of IPC is made out against the appellants. It is not proved that the death of the deceased Jyanti Bai was suicidal in nature. It is also clear from the facts of the case that the trial Court never framed the charge of the offence under Section 306 of IPC against the appellants. Similarly, the appellants cannot be convicted for the offence under Section 498-A of IPC. Under such circumstances, there is no option except to allow the present appeal. Consequently, it is allowed. The conviction and sentence directed by the trial Court vide its judgment dated 12.7.1996 in ST No.194/1993 are hereby set aside. The appellants are acquitted from all the charges appended against them including the charge of offence under Section 498-A of IPC. They shall be entitled to get the fine amount back if they have deposited the same before the trial Court.
22. At present the appellants are on bail. Their presence is no more required, therefore it is directed that their bail bonds shall stand discharged.
23. A copy of this judgment be sent to the trial Court with its record for information and compliance. (N.K.Gupta) Judge 11/10/2012 Ansari