Madhya Pradesh High Court
Dhobilal S/O Fakira And Ors. vs State Of M.P. on 10 April, 1997
Equivalent citations: 1998(2)MPLJ405
Author: R.P. Gupta
Bench: R.P. Gupta
JUDGMENT R.P. Gupta, J.
1. This appeal is directed against the judgment dated 7-1-1988 of Second Additional Judge to the court of Sessions Judge, Chhindwara. By that judgment, three appellants were convicted for having committed offences Under Sections 498A and 306 of the Indian Penal Code inasmuch as they treated Kaushalya Bai with cruelty after her marriage with appellant No. 1, Dhobilal. She had died some time between the night of 2nd and 3rd March, 1986 by drowning herself in a well in village Jamuntola.
2. Kaushalya Bai was married to Dhobilal about 5 years before the incident. Sammi is the sister of Dhobilal, Kammo is his mother and Fakira is his father. Fakira was also tried as co-accused, but was acquitted by the trial Court. Simple case of the prosecution, which was found proved by the prosecution, was that after marriage, the accused-appellants were harassing and treating Kaushalya Bai with cruelty. She became pregnant in the matrimonial home. But then she had to leave her matrimonial home and had to go to her parents' house, while she was having about 6 months' pregnancy. About 3 months later, a son was born to her, She continued to live with her parents for 2 to 3 years. Then Dhobilal and his father Fakira approached the parents of Kaushalya Bai to send her with them. Her parents wanted some assurance from them. So an assembly of Panchayat-people gathered and a writing was obtained from Fakira and Dhobilal that Kaushalya Bai had to leave her matrimonial home due to quarrel and differences with her mother-in-law. But thereafter the parents of Kaushalya Bai were assured that they would not, in any manner, harass her and if at all she felt harassed, then Fakira ensured that he would allot a piece of land separately to Dhobilal and his daughter-in-law along with a pair of bullocks, so that they may live separately and earn their livelihood. This document was recorded on 2nd February 1986. Kaushalya Bai was sent with her in-laws. Then in the night of 2nd March, 1986, she left the house. In the morning, Dhobilal noticed that she was not there. When she did not return for a long time and they could not find her, they informed the parents of Kaushalya Bai. But the search did not reveal any result. So report of missing of Kaushalya Bai was made to police on 4-3-1986 at Police Station, Bichhua. Continuous search in various wells revealed on 5-3-1986 that she was lying dead and drowned in a well belonging to Suklu Gond in village Jamunatola. Autopsy revealed that she had died as a result of drowning about 26 hours earlier.
3. The trial Court, on the basis of the evidence of Mulia Bai (P.W.2), mother of the deceased, Godari (P.W.1) uncle of the deceased, and Jairam (P.W.4), brother of the deceased and the document Ex.P-2, which was a writing in the Panchayat, held that the girl had been harassed and treated with cruelty by the husband, his sister and his mother and so they were responsible for unnatural death of Kaushalyabai. The Court found that she committed suicide due to cruelty done upon her by the husband and his relatives which led her to this step and so these appellants were convicted for offences Under Sections 498A and 306 of the Indian Penal Code. They were sentenced as under :-
(a) R.I. for 7 years Under Section 306, Indian Penal Code each.
(b) R.I. for 3 years Under Section 498A, Indian Penal Code each.
4. Learned counsel for the appellants has argued that in fact, there is no evidence of any witness worth belief that the deceased was treated with cruelty by these appellants and that the document Ex.P-2 has not been properly proved. He also argued that in the document Ex. P-2, there is no specification that she was treated with cruelty. He further argued that the mother of the deceased Mulia Bai made improvement on vital aspect regarding cruelty, in her statement in court over her statement to police, and entirely a different story has been narrated by her in court in comparison to what she narrated to police and similarly, brother of the deceased, Jairam has also narrated a different story about how the deceased kept on shifting between the matrimonial home and the parental home.
5. It is proper to examine the evidence of these witnesses in order to adjudicate on the question of cruel treatment by the appellants towards the deceased. First and most important document is Ex. P-2, which was recorded before the panchayat. None of the signatory to this document has appeared in the witness-box. Godari P.W. 1, uncle of the deceased, has stated that in his presence, the document Ex. P-2 was recorded and Fakira had signed it. Dhobilal had also signed it. These accused in their statements Under Section 313, Cr.P.C. admitted that they executed this document. In this document, it is narrated on behalf of Fakira that his daughter-in-law was sent away to her parents house by his son Dhobilal, because of differences between mother-in-law and daughter-in-law (Sic) and two years had passed ever since she was residing with her parents. So now he (Fakira) was taking his daughter-in-law back to his house and she would live in his family and no cruel treatment will be meted out to her by words or otherwise (Sic ). He promised that if any member of the family treats her badly, then he would give some land separately to his son and daughter-in-law with a pair of bullocks. Thus, he put his thumb impression on this writing. Dhobilal also put his thumb-marks under his writing that he would keep his wife properly and will not cause any annoyance to her.
6. Evidence of Godari P.W. 1 is that he did not know how she was being treated in the houses of her parents and in-laws as he had not been there, that at the time of panchayat meeting, she declared that she was being beaten and treated with cruelty. Now this part of declaration by Kaushalya Bai was not recorded in the document Ex. P-2 that she was beaten. In what manner she was being treated with cruelty is not exactly recorded in Ex. P-2. Only general inference can be drawn that she had felt harassed because of differences with her mother-in-law and so her husband Dhobilal sent her to parents' house.
7. Statement of mother of the deceased namely, Mulia Bai (P.W. 2), shows that after about 1½ years of the marriage, she was sent back to her house and she stayed there for about 3 years when her husband and father-in-law took her back on giving promise before the panchayat. She says that Kaushalya Bai used to tell that she was being beaten and ill-treated. This lady has also narrated that few days before the death of Kaushalya Bai she came to know from Indira Bai that Kaushalya Bai was being mal-treated at her in-laws' house. So, on Thursday, she went to Kaushalya Bai's house and there she (Kaushalya) had shown the marks of beatings on her body and Kaushalya Bai complained to her that she was being beaten and ill-treated by her husband and in-laws and that she should be taken back by her mother. But the mother left her there, saying that she should wait for some time. But then she learnt about her missing and death. Now this witness has made an improvement in the statement in the court on vital aspect of her visit to the house of Kaushalya Bai on Thursday (GURUWAR) and having talked to her daughter Kaushalya Bai and having seen the marks of beating on her body. All these are not narrated before the police Under Section 161, Criminal Procedure Code. These improvements are to be ignored. It may be noticed that Indira Bai (P.W.5), about whom Mulia Bai says that she informed about ill-treatment to Kaushalya Bai at her husband's house and then she went to Kaushalya Bai's house, does not support Mulia Bai. She denied having told anything to Mulia Bai. Of course, she was declared hostile and was cross-examined by the prosecution. But that does not take the story of the prosecution a step further.
8. Statement of brother of the deceased, Jairam, does not show anything more than what is stated by Godari regarding the panchayat and declaration by Kaushalya Bai before the panchayat and that when Kaushalya Bai came to her parents' house, she was saying that she was being mal-treated and beaten. He also says that he used to often take her back to her parents' house after every week or 10 days maximum stay at matrimonial home, because she was mal-treated. Now this part of the story is a departure from what is stated by Mulia Bai who stated that for 11/2 years, she was being well-kept by her husband and his parents and it was only thereafter that harassment had started. So the statement of Jairam, brother of the deceased, does not inspire confidence when it is contradictory in material particulars with the statement of the mother. There is no other evidence.
9. The question is whether Kaushalya Bai, 11/2 years after her marriage till she came to her parents' house, which period might have been 6 months a year, was harassed and ill-treated in some manner. We do not know exactly what was done to her. Then for about 21/2 years to 3 years or 2 to 3 years, she had remained at her parents' house and after returning from the parents' house, she died after a month. There is no evidence what happened during this period. We have little knowledge. Even her mother and brother were reluctant to sending her to husband's house for some reason. But whatever ill-treatment had been given to Kaushalya Bai was 3 years or at least 2 years back. It is not known and we do not know what happened during those 2/3 years or during the last one month of her life. Statement of the mother regarding what Kaushalya Bai told her a week before is an improvement and has to be ignored. So there is no evidence whatsoever about how she was treated at her husband's house during the last one month of her life.
10. Thus, the only question is whether Ex.P-2 leads to sufficient inference of such cruel treatment to her as is covered by Section 498A, Indian Penal Code and also leads to an inference of abetment of suicide, as, in all probabilities, she committed suicide by drowning though there is no evidence as to how she fell in the well.
11. Assuming that she committed suicide, the question would be if what happened about 3 years earlier, would be sufficient to lead to an inference of abetment 'as a result of recent cruelty'. We do not know, in fact, what happened to her during 3 years when she was in husband's house. The evidence is of varying nature. The best evidence is provided by (Ex.P-2) which gives assurance by the husband and father-in-law that there will be no ANAITIK VYAVHAR or use of ANAITIK WORDS would not be made to the deceased and another indication is that due to AAPSI RANJISH with mother-in-law, she was sent to her parent's house. All these arc insufficient evidence to show such cruel treatment, as is punishable Under Section 498A, Indian Penal Code and further to lead to an inference of abetment of suicide.
12. For inference of abetment of suicide, as best in favour of the prosecution, recourse to Section 113A of the Evidence Act has to be made. This section is in the following terms :-
"113-A Presumption as to abetment of suicide by a married woman. - When the question is whether the commission of suicide by 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."
In order to have recourse to this section, it must be shown that she was subjected to cruelty by the husband and her relatives. Cruelty has to be same as in Section 498A of the Indian Penal Code.
13. Section 498A of the Indian Penal Code defines cruelty for the purpose of that Section, as wilful conduct of such nature as is likely to drive a woman to commit suicide, etc. and secondly it may be harassment with a view to coercing her or any person related to her to meet the unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand. There is no allegation in this case that any demand of money or property or other, dowry was made by any of the appellants or accused from her or her parents. So harassment for non-fulfilment of demand of dowry is not the prosecution case. The question is whether there was wilful conduct of nature as is likely to drive a woman to commit suicide. We presume that she committed suicide. But the question is whether it was a wilful conduct on the part of the appellants which led her to commit suicide. She had not committed suicide 3 years earlier when she was sent to her parents house. So whatsoever was the conduct of the appellants then, it was not of such a nature as to lead her to commit suicide. We do not know as to what happened during the last one month after reaching the house of her husband which led her to jump into a well. At least there is no reliable evidence about it which can meet the standard of proof beyond doubt. So I find no proof of a type which can meet this required standard to show that there was wilful conduct on the part of the husband, mother-in-law or the sister-in-law of the deceased which might have led her to commit suicide. We do not know why she committed suicide. We do not know what she felt or if she was harassed. She must have felt harassed as she was complaining harassment even before panchayat, but even there, the nature of harassment was not spelled out, nor was it declared that harassment (whatever its nature) was consequence of any un-fulfilled demand of money, property or dowry. At that time, the recorded harassment was due to differences between the mother-in-law. But these differences with mother-in-law had taken place three years back, as for 3 years, the girl was with her parents. Whether the differences still continued, we do not know. We cannot presume in favour of prosecution that the type of harassment whatsoever it was, continued.
14. The trial Court appears to have gone on the face value of the narration of Mulia Bai and has taken support from Ex. P-2 and has held that P.W.1 Godari and P.W.4 Jairam support, her. A close scrutiny of their evidence, reveals that this evidence is unreliable and insufficient to base conviction of the appellants.
15. The net result of my discussion aforesaid is that the approach of the trial court has been on an infirm footing and the evidence has not been scrutinised in its proper light. The evidence does not establish beyond doubt that Kaushalya Bai was treated with cruelty in a manner covered by Section 498A of the Indian Penal Code or that the cruel treatment with her was such as led her to commit suicide. The charges, therefore, remain not proved. The accused-appellants are given the benefit of doubt.
16. The appeal is accepted. The judgment of conviction and sentence passed by the trial Court is set aside. Bail bonds of the appellants shall stand discharged.