Full Judgment
1 Cr.A. No.586/1996 HIGH COURT OF MADHYA PRADESH JABALPUR Criminal Appeal No.586/1996 Tirath Prasad Vs. State of Madhya Pradesh ------------------------------------------------------------------------------------ Present : Hon'ble Shri Justice N.K. Gupta. -------------------------------------------------------------------------------------------------- Name of counsel for the parties: Shri Sanjeev Saxena, counsel for the appellant. Shri G.S. Thakur, Panel Lawyer the respondent/State. ------------------------------------------------------------------------------------------------- JUDGMENT
(Passed on 19th day of July, 2012) The appellant has preferred this appeal against the judgment dated 28.2.1996 in S.T. No.152/1994 passed by the learned 2nd Additional Sessions Judge, Shahdol Link Court Beohari, whereby the appellant was convicted for the offence punishable under Section 306 of IPC and sentenced for six years R.I. with fine of `2,000/- failing which the default of sentence of one year's R.I. was granted.
2. Facts of the case are that on 15.5.1994 Babulal father of the appellant had informed the police that the deceased Vidhya @ Daddabai had expired. A merg intimation was recorded and thereafter, a Panchnama Lash Ex.P/2 was prepared. The dead body of the deceased was sent for its postmortem. Dr. Khandelwal (PW-1) had submitted a report 2 Cr.A. No.586/1996 Ex.P/1. He found that the deceased Vidhya died due to asphyxia caused by hanging. Thereafter, a crime was registered before the Police Station Jaisingh Nagar, Shahdol. After due investigation, a charge sheet was filed before the J.M.F.C. Beohari and case was committed to the Sessions Court, Shahdol and thereafter it was transferred to the 2 nd Additional Sessions Judge, Shahdol, Link Court, Beohari.
3. The appellant abjured his guilt. He took a specific plea that he never harassed his wife and he never demanded any dowry etc. from his wife. Actually, the deceased was suffering from the abdominal pain. She was treated but she could not get any relief and thereafter, due to that severe pain, it appears that she committed suicide but no defence evidence was adduced by the appellant.
4. After considering the evidence adduced by the prosecution, learned 2nd Additional Sessions Judge convicted the appellant for the offence punishable under Section 306 of IPC and sentenced him as mentioned above.
5. I have heard learned counsel for both the parties.
6. Learned counsel for the appellant has submitted that there was no harassment from the side of the appellant, which may come within the purview of Section 107 of IPC and therefore, it cannot be said that the appellant abetted the deceased to commit the suicide. After twelve weeks of the 3 Cr.A. No.586/1996 death of the deceased, the parents and relatives of the deceased had made omnibus allegations against the appellant. Dr. Khandelwal (PW-1) who conducted the postmortem of the body of the deceased has accepted that he treated the deceased for her abdominal pain but without the sonography examination, he could not say about the seriousness of the disease of the deceased. Under such circumstances, it is prayed that the appeal may be allowed. In alternate, it is submitted that the appellant has faced the trial and appeal for a pretty longer time and therefore, looking to his harassment, the sentence may be reduced.
7. On the other hand, learned Panel Lawyer for the State has submitted that the conviction and sentence directed by the trial Court appears to be correct and no interference may be done in the judgment passed by the trial Court.
8. After considering the submissions made by learned counsel for the parties and looking to the evidence adduced by the prosecution, it is to be considered that, whether the appellant harassed the deceased in such a manner so that his overt act comes within the purview of Section 107 of IPC?. whether the appeal filed by the appellant can be allowed?. and whether the sentence passed by the trial Court can be reduced?. 4 Cr.A. No.586/1996 9. As per the opinion given by Dr. Khandelwal (PW-1), the deceased Vidhya died due to asphyxia caused by hanging. No external or internal injury was found on her person by which it could be said that she was forcefully hanged. The appellant has not challenged to the fact that the deceased had committed suicide and therefore, no much discussion is required at this stage on that point. Under such circumstances, learned 2nd Additional Sessions Judge, Shahdol has rightly held that the death of the deceased was suicidal in nature.
10. Sonai Prasad (PW-2) and Munnibai (PW-3) have accepted that initially there were good relation between the deceased and her husband. The marriage of the deceased took place four years ago and after two years of the marriage, a Gouna took place. Sonai Prasad has stated that, thereafter, the appellant have demanded a fan, bicycle etc, whereas Munnibai has stated that the appellant have demanded fan and T.V. Guddi (PW-4) a nine years child has stated that the appellant was demanding a fan, T.V. and bicycle. Guddi Bai has also stated that the appellant abused the deceased with very insulting words (Nalayak, kutia) and assaulted her. As per evidence of these witnesses, once Guddi Bai visited the house of the deceased and her husband and she told about such things to her parents when she came back. She has also accepted that when she was returning from the house of her 5 Cr.A. No.586/1996 sister, the deceased Vidhya told her to inform her mother that she was alright and the appellant gave a sum of `50/- to purchase some cloths. Unfortunately, such allegations were not made by the witness Guddi in her case diary statement. It appears that being a child, she was tutored by her parents. She has also stated that she was never examined by the police. Under such circumstances, the statement given by the witness Guddi cannot be relied upon. Sonai Prasad and Munni Bai have stated before the police in their case diary statements in a different manner, whereas they have stated before the trial Court in a different manner. In this context, it is to be mentioned that Chandrakant (PW-6) and Urmila (PW-7) were turned hostile. However, these two witnesses were related to accused and therefore, if they have not supported the prosecution's case then, it makes no difference.
11. Sonai Prasad (PW-2) and Munni Bai (PW-3) have accepted that there was no dispute took place relating to demand of dowry at the time of marriage. Munni Bai has accepted that the appellant brought her daughter in her house and he took back the deceased Vidhya with him. He did not leave the deceased Vidhya in the house of her parents. She has accepted that she never talked with the appellant about his demand. The deceased Vidhya was never detained in the house because the parents of the deceased were not capable to fulfill the demand of the appellant. On the contrary, Sunai 6 Cr.A. No.586/1996 Prasad has stated that he always informed his daughter Vidhya that he had applied for his G.P.F. advance and as and when he would receive the money, he would provide T.V. fan & bicycle. If the appellant had visited with Vidhya on each and every visit then there was no problem to this witness Sunai to give an assurance to the appellant but he did not say anything to the fact that, he ever talked with the appellant on that count. In the case diary statements of these witnesses, it is nowhere mentioned that the deceased had informed them that the appellant was demanding for T.V., bicycle or fan.
12. Both these witnesses have stated in their case diary statements that the deceased Vidhya was complaining about the harassment done by the appellant that she was not capable to cook the food in a proper manner and therefore, the appellant was in habit to abuse her. Under such circumstances, where such allegations were made by Sunai and Munni Bai in their case diary statements then allegations made in the Court are clearly afterthought allegations cooked by Sunai Prasad and Munni Bai and their testimony to such fact cannot be accepted. The witnesses Sunai Prasad and Munni Bai have stated before the police that the appellant had not kept their daughter with comfort because she did not cook properly but no such allegations have been stated before the Court and therefore, for that allegations, there is no substantial evidence on the record. The conviction cannot be 7 Cr.A. No.586/1996 based upon the case diary statements of any witness. Under such circumstances, it is true that the deceased committed suicide but no overt act regarding harassment done by the appellant is established beyond doubt by the evidence of these witnesses.
13. The defence is required to create a serious doubt in the prosecution case. The defence is not at all required to prove its defence positively. The appellant could not prove that the deceased committed suicide because she was suffering from severe abdominal pain but, it was for the prosecution to prove that the deceased died due to harassment done by the appellant. In the present case, the deceased died within five years of her marriage and therefore, the presumption under Section 113-A of the Evidence Act is applicable but the parents and relatives of the deceased could not prove beyond doubt about any sort of harassment done by the appellant to his wife, which may fall within the purview of Section 107 of IPC. No demand of dowry is established. If, the deceased did not cook the food properly at any occasion and a quarrel took place between the appellant and the deceased then, such quarrel may not amount to be an harassment, which may come within the purview of Section 107 of IPC. Under such circumstances, when no such harassment done by the appellant is proved beyond doubt, which may fall within the purview of Section 107 of IPC then, the appellant cannot be 8 Cr.A. No.586/1996 convicted for the offence punishable under Section 306 of IPC. Learned 2nd Additional Sessions Judge could not appreciate the evidence in a proper manner and therefore, his conclusion relating to conviction cannot be sustained.
14. Since the conviction is to be set aside therefore it is not necessary to discuss about the sentence passed by the trial Court.
15. On the basis of aforesaid discussion, the appeal filed by the appellant appears to be acceptable and therefore, it is hereby accepted. The conviction as well as the sentence directed by the trial Court is hereby set aside. The appellant is acquitted from the charge of offence punishable under Section 306 of IPC. He is entitled to get the fine amount back from the trial Court, if he has deposited.
16. Presence of the appellant is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
17. Copy of the judgment be sent to the trial Court with its record for information and compliance. (N.K. GUPTA) JUDGE 19 07.2012 pnkj