Judgment:
C.K. Prasad, J.
1. Both the appellants were convicted for offence under Section 306 as also under Section 498A I.P.C and sentenced to R.I. for ten years and three years respectively by the learned Addl. Sessions Judge, Barwaha in S.T. No. 184 of 1991 by order dated 19.4.1993. They were further directed to pay a fine of Rs. 1,000/- each for offence under Section 306 and Rs. 500/- each for offence under Section 498A I.P.C., failing which to suffer imprisonment for six months and three months respectively. Aggrieved by the aforesaid judgment of conviction and sentence, they have preferred this appeal.
2. According to the prosecution, deceased Neelum @ Meenakumari was wife of appellant No. 1 Bholakumar. Appellant No. 2 Smt. Rajkumari is mother-in-law of the deceased. Appellant No. 1 was married to the deceased in the month of May, 1989. The deceased lived with her husband appellant No. 1 at various intervals and ultimately in December, 1989 she was sent by her father to the place of appellant No. 1. Appellant No. 1 came alongwith the deceased and stayed at Sarafa Bazaar in Barwaha town in the house of one Babulal Jain. After 7-8 days, while living at Barwaha, the deceased caught fire and an alarm was raised by appellant No. 1. On hearing the alarm, P.W. 3 Amarsingh came there and on an inquiry being made by Amarsingh, appellant No. 1 stated that his wife caught fire in the kitchen. P.W. 3 Amarsingh then took out a blanket and covered the deceased by it. In the meanwhile, other people also came there. P.W. 1 Dr. Haridas was one of them and he suggested that the deceased be taken to the Hospital. She was then admitted in M.Y. Hospital, Indore where she succumbed to the injuries, on 15.1.1990.
3. According to the prosecution, the accused used to harass the deceased for a gold chain and a wooden sofa set. The deceased was also subjected to cruelty, and when the deceased asked appellant No. 1 to take her to her parent's place, she was assaulted and because of that, she poured kerosene oil on her body and set her on fire.
4. Case of the defence is of false implication. According to appellant No. 1, on the date of incident he came from duty at about 9.00 p.m. and thereafter went to Bazaar to purchase certain articles and he reached at his residence at about 10 p.m. According to him, when he was taking rest and his wife was cooking meals, suddenly he went to the kitchen and found his wife burning. He tried to extinguish fire by covering the deceased by a blanket. He has further stated that his palm and hand were also burnt in the process. According to his defence, he sustained injuries while saving his wife and he was also treated in M. Y. Hospital.
5. Prosecution, in support of its case has examined altogether seven witnesses No. witness has been examined on behalf of the defence.
6. P.W. 1 Dr. Haridas has stated that he was posted as Medical Officer in Primary Health Centre, Barwaha on 9.1.1990 and the deceased had come for examination and treatment. He found burn injuries on the person of the deceased. P.W. 2 Govind Prasad is the father of the deceased. He has stated in his evidence that his daughter Meenakumari was married to appellant No. 1 Bholakumar in the month of May, 1989. He has further stated that after marriage when he went to bring his daughter, both the appellants refused to send her. He has further stated that both, the deceased and father of appellant No. 1 have stated that unless appellant No. 1 will agree, they will not send his daughter. He has further stated that once appellant No. 1 came to his house along-with the deceased and after staying for one night, both of them returned to their home. Whereafter, according to this witness, in the marriage of his eldest son, the deceased had come and stayed for about 15 days and thereafter appellant No. 1 came and took her. According to this witness, when appellant No. 1 had come to take her, the deceased had stated that they have seen her for the last time. The said statement was made by her to her mother which this witness, has claimed to have heard. This witness has further stated that the deceased had stated to her mother that her mother-in-law wanted a golden chain and a wooden sofa set and he heard the said statement made by the deceased to which he answered that he has not made any promise about the same. He has further stated that he received a telegram from Barwaha that the deceased has been admitted in the Hospital and when he reached there 2-3 days thereafter, he learnt that the deceased had died.
7. P.W. 3 Amarsingh has stated that on the date of the incident at about 12.00 in the night he heard sound or 'BACHAO-BACHAO'. He went to the residence of appellant No. 1 and on enquiry, appellant No. 1 stated that his wife caught fire. This witness has further stated that he found that the palm and hand of appellant No. 1 were also burnt. On enquiry by this witness, appellant No. 1 stated that the deceased caught fire in the kitchen. This witness demanded a blanket and covered the deceased with it and in the meanwhile many people came there. A matador was standing in front of the house and she was taken to the Hospital by the said vehicle. According to this witness, after 4-5 days of the said incident, the deceased succumbed to the injuries.
8. P.W. Dilip Kumar Pande is Sub-Inspector of Police and he has stated that on 16.1.1990 he got telephonic information from M.Y. Hospital, Indore that the deceased was died. P.W. 5 Surajkumar has been declared hostile by the prosecution and was cross-examined by the prosecution itself. P.W. 6 Dr. K.K. Saxena, Asstt. Supdt. of M.Y. Hospital, Indore conducted post mortem examination on the dead body of the deceased. He found smell of kerosene oil coming from the dead body. He also found six ante mortem injuries on the person of the deceased. According to this witness 6% of face and neck had burnt. 18% chest and back altogether were burnt, 7% stomach portion and the back portion were burnt, 9% right arm and hand were burnt, 9%, left arm and hand were burnt. Both the legs were 18% burnt. According to the Doctor, total percentage of burn injuries sustained by the deceased was 95%. In the opinion of the Doctor, the death had occurred because of 95% burn injuries, resulting into toxicea and septicaemia.
9. The learned Trial Judge while convicting the appellants found that marriage had taken place in May, 1989 and death took place within 7 years of marriage, in view of Section 113A of the Indian Evidence Act, shifted onus on the appellants to prove that death was not caused because of cruelty or torture or the suicide was not the direct result of wrongful act.
10. Section 113A of the Evidence Act which is relevant for the purpose, is being quoted as follows :--
113-A. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
A reading of the aforesaid section makes it clear that in case of a woman has committed suicide within a period of seven years from the date of marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume that the suicide has been abetted by her husband or by such relative of her husband. There is no dispute about the fact that the lady has committed suicide and the same was committed within a period of seven years from the date of her marriage, but for raising presumption, one more ingredient was required and that is that her husband or relative has subjected the lady to cruelty. The word 'cruelty' has been explained in the explanation itself which inter alia provides that 'cruelty' shall have the same meaning as in Section 498A of the I.P.C. Section 498A explains cruelty as follows :
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
According to the prosecution harassment of the deceased by her husband and mother-in-law was to coercing her to meet unlawful demand for the property and as such, the deceased was subjected to cruelty and as the death had taken place within 7 years of marriage, presumption under Section 113A of the Indian Evidence Act has to be raised that the appellants abetted the offence.
11. In the background of the aforesaid legal position and the evidence which has been led on behalf of the prosecution to prove that the deceased was subjected to cruelty, the only evidence led on behalf of the prosecution was the evidence of deceased's father P.W. 2 Govind Prasad. In his evidence, this witness has stated that at the time when appellant No. 1 had come to take her the deceased had stated to her mother that they have thrown her in the ditch and was seeing her for the last time. This witness heard the aforesaid statement of the deceased which was addressed to her mother. In his evidence, this witness has further stated that the deceased had further stated to her mother that her husband and mother-in-law demanded golden chain and a sofa set to which this witness has stated that he has not made any promise about the same.
12. On the basis of the aforesaid evidence, it is not possible to hold that the deceased was subjected to cruelty. Excepting that a wooden sofa-set and a golden chain was demanded there is no evidence that the deceased was ever harassed for the aforesaid articles. No evidence has been led on behalf of the prosecution that the deceased was subjected to any harassment with a view to meet the unlawful demand for a golden chain arid/or a wooden sofa set. Even if the demand of sofa set and golden chain was made by the appellant, but in absence of any evidence of harassment, it is not possible to hold that the deceased was subjected to cruelty.
13. For raising presumption under Section 113A of the Evidence Act for abetment of suicide, one of the ingredients which is required to be proved was that the wife was subjected to cruelty. As I have held that no evidence has been led by the prosecution to prove cruelty, I am of the view that the learned Addl. Sessions Judge erred in invoking provision Section 113A of the Evidence Act for presuming the abetment of suicide by the appellants.
14. Now, I consider the evidence led by the prosecution to prove the case of abetment. P.W. 3 Amarsingh who had come to the place of occurrence on alarm being raised by appellant No. 1, has stated that he found palm and hand of appellant No. 1 burnt. No evidence has been led on behalf of the prosecution that immediately prior to the occurrence, appellant No. 1 had said anything to his wife. Appellant No. 2 mother-in-law of the deceased was not even residing with her son appellant No. 1 or the deceased at the time of occurrence. As such, I am of the view that conviction of the appellants under Section 306 I.P.C. cannot be upheld.
15. So far as conviction of the appellants under Section 498A I.P.C. is concerned, in view of my aforesaid finding that prosecution has not been able to lead any evidence that the deceased was subjected to harassment to meet the demand of golden chain and a sofa set. Their conviction under Section 498A, I .P.C. also cannot be sustained.
16. For the reasons stated above, the appeal is allowed and the conviction and sentence of the appellants under Sections 306 and 498A I.P.C. are set aside and they stand acquitted. Their bail bonds shall stand discharged. Fine if paid, shall be refunded to them.