Madhya Pradesh High Court
Murari Lal & Ors. vs The State Of M.P. Judgement Given By on 3 March, 2014
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.
Criminal Appeal No.643/1997
Murari Lal and others
VERSUS
State of Madhya Pradesh
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Shri Aditya Sharma, counsel for the appellants.
Shri Akshay Namdeo, Panel Lawyer for the State/
respondent.
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J U D G M E N T
(Delivered on the 3rd day of March, 2014) The appellants have preferred the present appeal being aggrieved with the judgment dated 26.2.1997 passed by the learned Second Additional Sessions Judge, Katni in S.T.No.146/1996, whereby each of the appellants were convicted for offence punishable under Section 306 of IPC and sentenced with 5 years Rigorous imprisonment with fine of Rs.250/-. In default of payment of fine, one month rigorous imprisonment was directed in addition.
2. The facts of the case, in short, are that, the deceased Guddi Bai was married to the appellant No.1 Murari Lal, 5 years prior to her death. She was sister-in-law of the remaining appellants. She died on 12.1.1996 due to
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Criminal Appeal No.643 of 1997 burn injuries. Her dead body was sent for postmortem and Dr.Anita Jain (P.W.14) and Dr.Naresh Saraogi (P.W.15) had performed the postmortem on the body of the deceased Guddi Bai and they found that she died due to burn injuries. On 14.1.1996, Ramlal (P.W.2) gave a written report, Ex.P/1 that the deceased was being harassed by the appellants about dowry demand and she was being assaulted for that demand and therefore, she committed suicide. After due investigation, the charge-sheet was filed and case was committed to the Sessions Court and ultimately, it was transferred to the learned Second Additional Sessions Judge, Katni.
3. The appellants abjured their guilt. They denied that the deceased was harassed for dowry demand. In defence, one Nathulal Mishra (D.W.1) was examined to show that the dispute between the deceased and her husband was not referred to him. He was a reputed person of the society and if there was any dispute then, certainly it would have been referred to him.
4. After considering the evidence adduced by the parties, the learned Additional Sessions Judge, Katni acquitted the appellants from the charges of offence punishable under Section 304-B of IPC but, convicted them
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Criminal Appeal No.643 of 1997 for offence punishable under Section 306 of IPC and sentenced the appellants as mentioned above.
5. I have heard the learned counsel for the parties.
6. It is admitted that the deceased died within 7 years of her marriage and therefore, presumption under Section 113-A of Evidence Act is applicable. Though Dr.Naresh Saraogi (P.W.15) and Dr.Anita Jain (P.W.14) did not express any view that the death of the deceased was suicidal, however, there is no allegation that it was homicidal. The investigation officer Shri N.D.Yadav (P.W.8) has stated that he found a plastic can having capacity of 5 liters filled with half liter of kerosene and one match box at the spot. Under such circumstances, the appellants did not take a plea that death of the deceased was caused due to an accident. The deceased died due to burn injuries and her death was neither homicidal, nor accidental then, certainly it was a suicidal death.
7. The learned Additional Sessions Judge acquitted the appellants from the charges of offence punishable under Section 304-B of IPC. He did not mention that the charges under Section 304-B of IPC could not be proved because the deceased died after 7 years of her marriage but, it was found that there was no harassment to the deceased on the basis of dowry demand. If the statements of various witnesses like
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Criminal Appeal No.643 of 1997 Radha Bai (P.W.1), Ram Lal (P.W.2), Gopal Prasad (P.W.3), Munni Bai (P.W.4) and Bhedi Lal (P.W.12) is considered then, each of them has stated that the deceased was being tortured for demand of Chandi ki choori (set of silver bangles) and Chandi ka choora (pair of thick silver bangles) but, such allegation was not made in the alleged FIR, Ex.P/1, which was a written complaint given by Ram Lal within 2 days of the death of the deceased. In the document Ex.P/1 omnibus allegations were made that the deceased was being tortured for dowry demand but, it was not shown that what was the demand of the appellants. Under such circumstances, the learned Additional Sessions Judge has rightly found that the deceased was not being tortured for any dowry demand because if there was a dowry demand of some articles and cash then, the witnesses would have stated about that demand and if there was only a demand of silver bangles or pair of thick silver bangles then, it should have been mentioned specifically in the complaint, Ex.P/1. It appears that specific demand shown by the witnesses, is nothing but, creation of the witnesses after lodging the complaint Ex.P/1.
8. Now a days a trend is spreading like anything that after death of the bride, the parents and relatives of the deceased start making allegations of dowry demand though there was no harassment or any such dowry demand done
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Criminal Appeal No.643 of 1997 by her in-laws. The present case also appears to be of that nature and therefore, the various prosecution witnesses could not prove the alleged dowry demand as shown by them in their evidence.
9. However, if there was a dowry demand of silver bangles then, for whom such bangles were required. Silver bangles could not be used by male members out of the appellants, whereas the appellant No.3 could not get those silver bangles if those were brought by the deceased from her father's house. If those silver bangles were to be used by the deceased herself then, there is no question of consistent dowry demand for silver bangles from the side of the appellants because by that demand, there was no advantage to any of the appellants. Under such circumstances, the possibility cannot be ruled out that the deceased herself was demanding for the silver bangles for herself and her wish is shifted upon the appellants that they were demanding those silver bangles. Under such circumstances, there was no dowry demand from the side of the appellants. The prosecution utterly failed to prove that the deceased was being tortured for dowry demand.
10. Though the appellants were acquitted from the charges of offence punishable under Section 304-B of IPC but, for assessment of the conduct of the appellants relating
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Criminal Appeal No.643 of 1997 to their abetment to the deceased to commit suicide, it was necessary to examine the evidence relating to dowry demand and harassment. If it is found that the witnesses Radha Bai, Ram Lal, Gopal Prasad, Munni Bai and Bhedi Lal were not trustworthy to the fact that the appellants demanded any dowry, specifically silver bangles from the deceased then, these witnesses could not show any reason so that the appellants would have assaulted the deceased. These witnesses have stated that she was being tortured because of demand of dowry and they could not show any other reason of harassment done by the appellants and if there was no other reason to assault the deceased then, the allegation made by these witnesses that she was being tortured by the appellants cannot be accepted.
11. For offence punishable under Section 306 of IPC, prima facie it is to be proved that she was harassed in such a manner that she had no option except to commit suicide or the harassment done by the appellants would have come under the purview of Sections 107 or 109 of IPC. If the facts of the case are considered then, there is no allegation that any of the appellants told her to commit suicide or they supplied kerosene and provoked her to commit suicide. The allegations are simply that she was being harassed for dowry demand and therefore, she committed suicide. When there
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Criminal Appeal No.643 of 1997 was no demand from the side of the appellants then, certainly allegations of harassment made by the witnesses cannot be accepted. In this context, the evidence of defence witness Nathulal Mishra (D.W.1) appears to be acceptable that if the deceased was tortured for any reason and she resided for 5 years with the appellants then, in those 5 years, at least once the matter would have referred to the respectable person of the society and he would have knowledge about that fact.
12. The various witnesses including the parents of the deceased could not show any reason other than of the dowry demand, so that the deceased would have been assaulted or tortured and therefore, such allegations of assault and torture appears to be incorrect. Possibility cannot be ruled out that since the deceased was not blessed by child after 5 years of her marriage, therefore, due to her mental agony, she would have committed suicide. Under such circumstances, where it is not proved by the witnesses that the deceased was being tortured by the appellants in the past then, nothing can be presumed about such an incident soon before her death. Dr.Naresh Saraogi in the postmortem report, Ex.P/12 did not mention any other injury except the burn injuries and therefore, in absence of the ocular evidence, it cannot be said that the deceased was beaten by
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Criminal Appeal No.643 of 1997 the appellants soon before the incident. There is no ocular evidence to that fact and evidence given by Ram Lal and his family members is nothing but, hearsay evidence, which cannot be used for taking the conclusions. The witnesses Ram Lal, Gopal Prasad and Munni Bai have told that the deceased told them before her death that she was assaulted by the appellants. However, Radha Bai (P.W.1) has accepted that when the witnesses reached to the hospital, the deceased was unconscious and she could not say a single word. Radha Bai is mother of the deceased and therefore, her testimony should be believed. Hence, the oral dying declaration as stated by Ram Lal, Gopal Prasad and Munni Bai cannot be accepted. Under such circumstances, there is no evidence to show that the deceased was tortured by the appellants so that she would have committed suicide.
13. The learned counsel for the appellants has placed his reliance upon the order passed by single Benches of this Court in cases of "Shripati @ Shriprasad and another VS. State of Madhya Pradesh" [(2011) (III) MPWN Note 76] and "Satyanarain and others Vs. State of Madhya Pradesh" [(2006) (1) M.P.H.T. 517] to show that in the present circumstances, no offence under Section 306 of IPC is made out. In the aforesaid judgments, the Single Benches of this Court had relied upon the ratios laid by Hon'ble the
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Criminal Appeal No.643 of 1997 Apex Court in various cases. In the present case, though presumption under Section 113-A of Evidence Act is applicable, whereas it was not applicable in case of Shripati (supra), it was for the prosecution to prove that the appellants had committed such an act which prima facie falls within the purview of Sections 107 or 109 of IPC. In the present case, when it is found that there was no dowry demand from the side of the appellants and no other reason could be shown by the witnesses that the appellants would have assaulted the deceased then, there is no iota of evidence to the overt-acts of the appellants, which was done against the deceased relating to her death. Under such circumstances, when there is no overt-act of the appellants proved by the prosecution which may fall within the purview of harassment to the deceased then, it is remote to say that it falls within the purview of Sections 107 or 109 of IPC.
14. In the light of the aforesaid judgments passed by the Single Benches of this Court and looking to the facts and circumstances of the case, the prosecution failed to prove that the deceased was being harassed by the appellants in any manner. The complaint Ex.P/1 is lodged by the father of the deceased on the basis of suspicion only. However, the suspicion cannot take the place of evidence and when no overt-act of the appellants is proved relating to harassment
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Criminal Appeal No.643 of 1997 then, nothing can be presumed even under Section 113-A of Evidence Act against the appellants. The provisions of Section 113-A of Evidence Act may be read as under:-
"113A. Presumption as to abatement of suicide by a married women -
113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a women 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 has 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."
For application of presumption under Section 113-A of Evidence Act, it was for the prosecution to prove that some cruelty was done by the appellants towards the deceased. As discussed above, the prosecution failed to prove that the appellants either harassed the deceased for dowry demand or they were cruel to her due to any other reason. Under such circumstances, though presumption under Section 113-A of Evidence Act could be applicable in the present case, it was not proved by the prosecution that the appellants did any cruelty with the deceased, so that they may be held liable for offence punishable under Section 306 of IPC.
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Criminal Appeal No.643 of 1997
15. When the appellants were acquitted from the charges of offence punishable under Section 304-B of IPC then, certainly looking to the facts and circumstances of the case, they should have been acquitted from the charges of offence punishable under Section 306 of IPC. It is proved that the deceased committed suicide but, reason is not known as to why she committed suicide. The cruelty of the appellants could not be proved, so that with help of presumption under Section 113-A of the Evidence Act, the appellants could be convicted for offence punishable under Section 306 of IPC. The learned Additional Sessions Judge has committed an error of law and facts in convicting the appellants for offence punishable under Section 306 of IPC.
16. On the basis of the aforesaid discussion, the appeal filed by the appellants is acceptable and consequently it is accepted. The conviction as well as the sentence directed against the appellants for offence punishable under Section 306 of IPC are hereby set aside. The appellants are acquitted from the charges of offence punishable under Section 306 of IPC. They would be entitled to get the fine amount back, if they have deposited the same before the trial Court.
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Criminal Appeal No.643 of 1997
17. The appellants are in jail and therefore, office is directed to issue release warrants forthwith, so that the appellants may be released from the jail without any delay.
18. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.
(N.K.GUPTA) JUDGE 03/3/2014 Pushpendra