Judgment:
HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR Single Bench: Hon'ble Shri Justice N.K.Gupta,J CRIMINAL APPEAL No.2855 OF 201.Ashok. Vs. State of Madhya Pradesh. ------------------------------------------------------------------------------------------- Shri L.N.Sakle, Advocate for the appellant. Shri Ajay Tamrakar, Panel Lawyer for the respondent/State. ------------------------------------------------------------------------------------------- JUDGMENT
(Delivered on the 13th day of August, 2012) This criminal appeal is preferred by the appellant being aggrieved by the judgment and order of sentence dated 3/12/2011 passed by the First Additional Sessions Judge, Burhanpur in ST No.2/2011, whereby the appellant was convicted for commission of offence punishable under Section 306 of IPC and sentenced for seven years' rigorous imprisonment with fine of Rs.5,000/-. In default of payment of fine amount, he was to undergo for one year's RI in addition.
2. The prosecution's case, in short, is that on 24.11.2010 the deceased Binu Bai wife of the appellant Ashok was found hanged in the house along with her two children. A merg intimation was given to the Police Station Nimbola District Burhanpur by Jagdish Yadav, which was registered at Ex.P-8. Thereafter the police came to the spot 2 Criminal Appeal No.2855/2011 and prepared the panchayatnama lash of all the three dead bodies. The dead bodies were sent for the postmortem. Dr. Dilip Patil (PW-2) has done the postmortem on all the three bodies and gave a common report Ex.P-5. He found that all the deceased persons died due to asphyxia caused by hanging. The marriage of the deceased Binu Bai and the appellant Ashok took place in the year 2000. The parents and relatives of the deceased have made omnibus allegations relating to harassment and dowry demand. After due investigation, a charge sheet was filed before the Court of Judicial Magistrate First Class, Burhanpur for the offence under Section 306/34 of IPC, who committed the case to the Sessions Judge, Burhanpur and ultimately it was transferred to the 1st Additional Sessions Judge, Burhanpur.
3. The appellant-accused abjured his guilt. He did not take any specific plea but he has stated that he does not knot as to how his wife committed suicide along with his two children by hanging. He was falsely implicated in the matter by the parents and relatives of the deceased. However, no defence evidence was adduced by the appellant.
4. The learned Additional Sessions Judge after considering the prosecution evidence acquitted the co- accused Jagdish, Raj Kishore and Champalal and convicted the present appellant for commission of offence punishable 3 Criminal Appeal No.2855/2011 under Section 306 of IPC and sentenced as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellant has submitted that the evidence given by the parents and relatives of the deceased was similar for all the accused persons. However, the appellant was convicted by the trial Court whereas the remaining accused persons were acquitted from all the charges. It is further submitted that no reason could be known as to why the deceased had committed suicide. The allegations made by the parents and relatives of the deceased appear to be hypothetical. They could not be corroborated by the independent evidence. Since the marriage of the deceased took place in the year 2000, and therefore no presumption under Section 113-A of the Evidence Act was applicable. The overt-acts as established by the prosecution do not come within the purview of Section 107 of IPC, and therefore no offence under Section 306 of IPC is made out. It is further submitted that no offence under Section 498-A of IPC will be constituted. However, it is submitted in alternate that in case if the appellant is convicted for the offence under Section 498-A of IPC, then his sentence may be reduced to the period which he has already undergone in the custody.
7. On the other hand, learned counsel for the State has argued in support of the impugned judgment on the 4 Criminal Appeal No.2855/2011 ground that conviction and sentence directed by the trial Court appears to be correct, hence no interference is warranted by this Court.
8. After considering the submissions made by learned counsel for the parties and looking at the evidence adduced by the prosecution, it is to be considered that whether the appellant can be convicted for commission of offence punishable under Section 306 of IPC?. Whether the appellant can be convicted for any lesser offence?. And whether sentence awarded to the appellant can be reduced?.
9. It is apparent from the record that the deceased died after 7-10 years of her marriage, and therefore no presumption under Section 113-A of the Evidence Act is applicable in the present case, hence it was for the prosecution to prove the overt-acts of the appellant which may fall within the purview of Section 107 of IPC. Sumitra Bai (PW-3) mother of the deceased, Rama (PW-4) father of the deceased and ViNo.(PW-5) were examined to tell about the harassment to the deceased which was informed by her to those witnesses in her life time. It is alleged by these witnesses that the appellant was in habit to assault the deceased on her demand about the ornaments which were given by her parents. It is also alleged that the appellant assaulted her by a shoe causing her some injuries on her right face. It is also alleged that she was beaten by the co- 5 Criminal Appeal No.2855/2011 accused Raj Kishore by holding her hairs and so on. It is also stated by the witnesses that a Panchayat took place between the parties and thereafter the deceased was sent with the appellant after that Panchayat. Radhey Shyam (PW-6) Up-Sarpanch of the concerned Panchayat has stated that there was a dispute in the Panchayat that the deceased Binu Bai wanted to reside at Village Jhiri and the appellant agreed that he will reside at Village Jhiri with the deceased when his house would be vacated by the tenant and thereafter when his house was vacated, the appellant started residing at Jhiri with the deceased. Kuldeep Chouksey (PW-8), Sarpanch of that Panchayat has stated that mother of the deceased Binu Bai came with a notice which was given by the appellant and it was alleged by the deceased Binu that the appellant was not giving her the ornaments. Kuldeep Chouksey has also admitted that those ornaments were not given by the parents of the deceased, but they were given by the appellant himself.
10. If the entire evidence of the parents Sumitra Bai and Rama is considered in the light of the evidence given by Sarpanch and Up-Sarpanch, then it would be clear that Panchayat was called when a notice was given by the appellant under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. It is apparent that the deceased Binu Bai was residing with her parents without any basis, and therefore such notice was given and 6 Criminal Appeal No.2855/2011 thereafter the parents of the deceased tried to dissolve the problem between the appellant and the deceased. Since all other co-accused persons are acquitted by the trial Court, therefore it is not necessary to discuss about their alleged harassment. The trial Court did not accept the fact that the appellant assaulted the victim by any manner. On the contrary, it is apparent from the evidence of Sarpanch and Up-Sarpanch that there was only dispute between the appellant and the deceased that the deceased wanted to reside at Jhiri and the appellant fulfilled her wishes. Thereafter no harassment was reported to the Sarpanch or Up-Sarpanch by the parents of the deceased or the deceased. Under such circumstances, if some allegations are made against the appellant relating to harassment for the period which occurred before the Panchayat, then all such allegations are false and concocted, because if such harassment was done by the appellant, then it could be brought into the notice of Sarpanch and Up-Sarpanch.
11. It is admitted by the Sumitra Bai (PW-3) and Rama (PW-4) that after that Panchayat the deceased Binu Bai was sent to the house of the appellant and thereafter they did not hear anything about the harassment. It is also admitted by the witness Rama that the deceased was residing with the appellant separately. The house of co- accused Jagdish, brother of the appellant was away from the house of the appellant. It is admitted by the witness 7 Criminal Appeal No.2855/2011 Sumitra Bai that the deceased visited her house 4-5 days prior to the Diwali and thereafter appellant came to take her, but she did not accompany the appellant. But on the Diwali she desired to visit the house of the appellant, and therefore Sumitra Bai took her to the house of the appellant and within few days after that visit, she died.
12. It is very sad that the deceased committed suicide and also hanged her both the children. There must be some drastic reason for that overt-act committed by the deceased Binu Bai. But there is no evidence to show that those drastic steps were taken by the deceased due to the harassment done by the appellant. Sumitra Bai and Rama could not tell about any harassment after the Panchayat. If there was any harassment, then a second Panchayat would have been called by the parents of the deceased. But the Sarpanch and Up-Sarpanch did not say anything about any second Panchayat. They did not state that there was any information from the parents of the deceased to them about any further harassment done by the appellant. Under such circumstances, the parents and relatives of the deceased could not prove any harassment of the appellant done with the deceased, and therefore it cannot be said that the appellant has done any act, which falls within the purview of Section 107 of IPC, hence the appellant cannot be convicted for the offence punishable under Section 306 of IPC. In this connection, the judgments of the Hon'ble Apex 8 Criminal Appeal No.2855/2011 Court in the case of “M. Mohan Vs. State”., [(2011) 3 SCC 626]. and in the case of “S.S.Chheena Vs. Vijay Kumar Mahajan”., [(2010) 12 SCC 190]. may be referred, in which it is held that if overt-act of the accused does not fall within the purview of Section 107 of IPC, then offence under Section 306 of IPC shall not be constituted. Under such circumstances, the appellant cannot be convicted for the offence under Section 306 of IPC. The learned Additional Sessions Judge has erred in convicting the appellant for the said offence.
13. It is true that a separate charge was to be framed for the offence under Section 498-A of IPC, but if it is a case of harassment, then the accused can be convicted for the offence under Section 498-A of IPC within a charge of Section 306 of IPC, because offence under Section 306 of IPC is an aggravated form of the offence punishable under Section 498-A of IPC, and therefore while acquitting the appellant for the offence under Section 306 of IPC, it is to be seen that whether he can be convicted for the offence under Section 498-A of IPC or not?.
14. In the present case, if the entire evidence of the parents of the deceased i.e. Sumitra Bai, Rama and witness Vinot is perused, then it would be clear that there was no harassment to the deceased prior to the Panchayat held by the deceased and her parents. The wish of the deceased was fulfilled by the appellant and he started residing at 9 Criminal Appeal No.2855/2011 Village Jhiri, and therefore it cannot be said that the deceased had any problem with the appellant. In the marriage, if some ornaments were shown to be given to the deceased by the family members of the appellant, then it is possible that those ornaments were given to show at the time of marriage, those could be obtained from someone else, and therefore after the marriage if those ornaments were returned to the brother of the appellant, then the deceased could not claim for those ornaments and those ornaments were never given by her parents. Sumitra Bai, mother of the deceased has claimed that the ornaments were given by her, but she has admitted in para 6 of her cross examination that such ornaments were to be given by the groom in their caste and it was admitted in the Panchayat that no such ornaments were given by Sumitra Bai or her husband. On the contrary, those ornaments were given by the brother of the appellant, who took the ornaments back. In such circumstances, if the ornaments were not provided to the deceased, then it was not a harassment at all. She did not have any lien for those ornaments. There is no allegation from the side of the parents of the deceased that any harassment was done by the appellant after the Panchayat. Under such circumstances, the prosecution failed to prove that the appellant had done any harassment to the deceased. Therefore, the appellant cannot be convicted for 10 Criminal Appeal No.2855/2011 commission of offence punishable under Section 498-A of IPC even.
15. On the basis of the aforesaid discussion, the appeal of the appellant deserves to be allowed. Consequently, it is allowed. The conviction and sentence directed by the trial Court vide its judgment dated 3.12.2011 in ST No.2/2011 are hereby set aside. The appellant is acquitted from all the charges appended against him including the charge of offence under Section 498-A of IPC. He shall be entitled to get the fine amount back if he has deposited before the trial Court.
16. Registry is directed to issue a release warrant forthwith, so that the appellant may be released without any delay.
17. A copy of this judgment be sent to the concerned trial Court with its record for information and compliance. (N.K.Gupta) Judge 13/08/2012 Ansari