Madhya Pradesh High Court
Ramcharan @ Ramesh Kirar vs The State Of M.P. on 15 June, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE VIVEK AGARWAL
Cr.A No.1923/1998
Between:-
RAMCHARAN @ RAMESH KIRAR , AGED ABOUT 30 YEARS,
S/O SHRI SUGANDHI KIRAR, R/O VILLAGE KHAIRUA,
POLICE STATION, TENDUKHEDA, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
....... APPELLANT
(BY SHRI AJAY KUMAR JAIN WITH SHRI AJAY TAMRAKAR,
AMICUS CURIAE FOR THE APPELLANT)
AND
THE STATE OF M.P. (MADHYA PRADESH)
........RESPONDENT
(BY SHRI VIJAY SONI, GOVERNMENT ADVOCATE FOR THE
RESPONDENT/STATE)
________________________________________________
Reserved on : 02.05.2022
Delivered on : 15.06.2022
______________________________________________________
This appeal coming on for hearing this day, the court
passed the following
2
JUDGMENT
(15.06.2022) This criminal appeal is filed by the convict/accused Ramcharan @ Ramesh Kirar aged about 30 years S/o Sugandhi Kirar resident of Village of Khairua Police Station Tendukheda, District Narsinghpur under Section 374(2) of the Code of Criminal Procedure, 1973 being aggrieved of the judgment and sentence dated 31/08/1998 passed in Sessions Trial No.49/1997 thereby convicting the present appellant under the provisions of Section 498- A of IPC and sentencing him with two years Rigorous Imprisonment and fine of Rs.5,000/-. It is further ordered that in default of payment of fine, further six months Rigorous Imprisonment will have to be 3 undergone by the convict.
2. Appellant is also convicted under Section 306 of IPC with five years Rigorous Imprisonment and fine of Rs.5,000/- in default Rigorous Imprisonment for two years. All sentences to run concurrently.
3. Learned counsel for the appellant submits that appellant is innocent, he has been falsely implicated. Prosecution has developed a story of harassment to the victim Devka Bai on account of delivering female child consecutively on fourth occasion.
4. It is submitted that as per prosecution story, present appellant had beaten his wife Devka Bai and had thrown her out of his house, as a result, she wandered in mountains along with her three minor daughters for three days' and there after committed 4 suicide. It is submitted that firstly she had thrown Bati Bai (PW-2) and then Babita Bai (PW-4) in a 'Kund' and thereafter had jumped herself in the 'Kund' along with an infant baby namely Choti Bai. Devka Bai and Choti Bai died of drowning whereas PW-2 and PW-4 swam to the shore and had reached to a Dharamshala where they met a Baba to whom they narrated their woes, when he had called for the police.
5. It is alleged that because of cruelty meted out to the deceased Devka Bai and also on account of she being thrown out of her matrimonial home, she tried to commit suicide with her three daughters out of which, two fortunately survived whereas one infant daughter along with Devka Bai died of drowning.
6. It is submitted that appellant has been falsely 5 implicated. Appellant was not present at home as has been admitted by PW-2 when deceased Devka Bai had left her matrimonial home.
7. It is submitted that PW-2 has admitted that Devka Bai had left her matrimonial home telling her grant parents who were present in the house that she is going to 'Haar'. She has also admitted that her father was not present at home and had gone to Suatala so to escort her 'bua', who is resident of Village Suatala.
8. It is submitted that appellant is innocent, he has not committed any offence. None of the ingredients of Section 306 of IPC or 498-A of IPC are made out, he has been wrongly convicted.
9. Shri Vijay Soni, learned Government Advocate in his turn submits that appellant is not innocent. All 6 the ingredients of Sections 306 of IPC and 498-A of IPC are made out from the record. Appellant is guilty of harassing his wife on account of she giving birth to female children. This is a major social evil even in the society and if any leniency is shown towards the appellant then that will send a wrong message in the society.
10. After hearing learned counsel for the parties and going through the record, it is evident that prosecution had examined ten witnesses. Admittedly, deceased Devka Bai along with her daughters Choti Bai, Bati Bai (PW-2) and Babita Bai (PW-4) had left her matrimonial home on 13.01.1997 for which report was lodged by Raghuveer Prasad Patel on 13.01.1997. Dead bodies were recovered on 15.01.1997, when FIR 7 was lodged at Zero at Police Station Kareli. Thereafter, case was transferred to Police Station Tendukheda where Crime No.10/1997 was registered. Police had recovered dead bodies of Devka Bai and Choti Bai and had sent them to Primary Health Center Barman for postmortem where Doctor N.K. Pandey (PW-1) had conducted postmortem. Doctor had opined that cause of death of Choti Bai was due to Asphyxia, as a result of drowning. Death might have occurred six days' prior to postmortem examination. Similarly, for Devka Bai, opinion was given that death was due to Asphyxia, as a result of drowning. Injuries found were antemortem and death had occurred six days' prior to the postmortem.
11. Doctor had pointed out that there were lacerated 8 wounds four in number circular 1 x 1 cm x bone deep present over lateral half of Dorsal part of left hand. There was a fracture of lower end of left ulna bone with presence of Haematoma at the site of fracture. No other injury was found on the body of the deceased Devka Bai.
12. Doctor N.K. Pandey (PW-1) in his cross- examination admitted that the injuries sustained by Devka Bai were possible to have sustained by her on coming in contact with river stones. This witness further admitted that said injuries were not caused on account of beating with any object.
13. Bati Bai (PW-2) is the daughter of the deceased Devka Bai and sister of deceased Choti Bai.
14. It has come on record that this witness on being 9 interrogated by the learned Sessions Judge narrated that she was sitting in the School. She could not mention profession of her father. Thus, when a star witness narrates Court room to be School, it gives fair idea about development of her cognitive faculties.
15. In examination-in-chief though she has alleged that her mother was beaten in front of her Mama (para- 4 of examination-in-chief) and also deposed that her father was at home when her mother was thrown out of the house (para-5) and that she had swam across the water and had saved her younger sister Babita Bai (PW-4) and reached a Dharamshala where a Baba was available, but interestingly, prosecution has though examined ten witnesses but has not bothered to examine concerned Baba who was given first hand 10 information by PW-2 and PW-4, after they could rescue themselves.
16. It has come on record that in cross-examination PW-2 has admitted that her father was not at his residence when her mother Devka Bai had left her matrimonial house. Appellant had gone to 'Suatala' to invite her 'bua'.
17. This witness further admitted in her cross- examination that her grand-parents were available at home but mother had left house along with the children saying that she is going to 'Haar'. She admitted that they had travelled in a Jeep and a Bus and had not narrated anything to anybody on way.
18. In para-15, this witness admitted that her Mama, Nana-Nani had taken them i.e. PW-2 and PW-4 from 11 Police Station Tendukheda along with them. She admitted that she had come to Court along with her Nana-Nani. PW-2 admitted that she had only narrated to the Baba of Dharamshala that her mother died of drowning in the river but had not informed him about beating of her mother.
19. There are material omissions and contradictions in the statements of this witness Bati Bai (PW-2) inasmuch as in her statements Ex.D-1, she had not narrated anything about any taunt made about her mother being tortured on account of production of girl child. This contradiction has been admitted by PW-2 in her cross-examination. PW-2 has also admitted that she does not understand meaning of word 'pratarna' (torture). There is a material contradiction in her 12 statements inasmuch as on the one hand, she has deposed that her father had thrown out her mother and sisters out of their home whereas in cross-examination she admits that father was not present when mother had left her matrimonial home. Thus, it is admitted that statements as have been recorded in D-1 and D-2 have not been recorded as per the language and narration of the witness but have been written down in the language known to the police personnel.
20. Bati Bai (PW-2) has admitted in para-20 of her cross-examination that since they were shouting out of hunger therefore, out of anger their mother had thrown them in the river.
21. Bhaiyalal Kirar (PW-3) father of the deceased Devka Bai has admitted that his daughter Devka was 13 married to the present appellant 10-11 years prior to the incident. Devka died of suicide by jumping into the Narmada River on 15.01.1997. This witness though submits that it was informed by Bati Bai (PW-2) and Babita Bai (PW-4) that their mother was beaten by their father, as a result, she had sustained fracture of her hand and thereafter, she was thrown out of her home but in cross-examination, in para-7, this witness admits that he had not given any intimation to the Police Station Incharge Kareli about harassment being made to Devka Bai. Though Bhaiyalal Kirar (PW-3) denied that no statement were recorded by SHO Pathak on 16.01.1997, and only identification of the dead body had taken place but his statements given to Shri Pathak are available on record as Ex.D/4 dated 14 16.01.1997 in which there is no mention of the fact that PW-2 and PW-4 had ever informed him that present appellant had beaten their mother as a result, she had sustained fracture in her hand.
22. This witness partially deposes as per the narrations given by PW-2 and PW-4 and also narration made by one Veeru Kirar. However, prosecution has not examined Veeru Kirar in support of their case. They have also not examined so called Baba at Dharamshala in whose contact PW-2 and PW-4 had come immediately after the incident.
23. Babita Bai (PW-4) in her cross-examination has admitted that though she had informed the Police Authorities according to her statement Ex.D/6 that her father used to beat her mother on account of birth of 15 girl child, but she could not explain that why this fact is not mentioned in her case diary statement Ex.D/6.
24. PW-4 has admitted that her mother had taken laddoos' while leaving her matrimonial home. She worked in the fields 'Haar' till afternoon, she had taken out certain pods of sweet pea. It has also come on record that for two days' when deceased was wandering along with her daughters they had consumed laddoos' and sweet pea pods. She has admitted that at the place of the incident, water was about four feet deep and the terrain was rocky. This corroborates the postmortem report given by Dr. N.K. Pandey (PW-1) that injury could have been caused due to fall on a rocky surface as was found on the body of Devka Bai.
16
25. There is another contradiction, that there is no mention of this fact that appellant had thrown the deceased persons and the witnesses PW-2 and PW-4 out of his house, so to bring out aspect of cruelty. Another contradiction is that there is no mention of the fact that appellant had beaten Devka Bai causing fracture to her hand. In para-10, this witness has admitted that her Nana had taken her to Advocate Jagdish Patel.
26. Jagdish Kirar (PW-5) has turned hostile. He has clearly deposed that appellant Ramesh used to keep his wife well and there was no dispute between them. Roop Singh (PW-6) is author of merg intimation Ex.P/8.
27. Kripa Shankar (PW-7) was working as Head 17 Constable at temporary Police chowki established at Barman Mela. This witness, PW-7 has admitted that Bati Bai (PW-2) never informed him that her father had beaten her mother on account of giving birth to girl child. This witness admitted that she had not narrated that her father had thrown out her mother out of her matrimonial home and, therefore, these things have not been mentioned in Ex.D/1. This witness has admitted that he had recorded statements of Bati Bai on 18.01.1997.
28. Ku. Sarika Pandey (PW-8) was posted as Sub Inspector at Police Station Narsinghpur. PW-8 has admitted in her cross-examination that Babita had not informed her that her father used to beat their mother on account of producing girl child. This witness has 18 also admitted that she had not informed her that her father had thrown out her mother out of the home. She had also not informed her in her statements Ex.D/6 that father had beaten her mother with a chowki causing fracture in the hand of her mother.
29. S.S. Khan (PW-9) A.S.I. informed that Raghuveer Prasad Patel had given intimation on 20.01.1997 about death of Devka Bai. He had written merg intimation. He had recorded statements of Raghuveer Prasad on 20.01.1997 this witness on asking of the trial Court admitted that statements of Raghuveer Prasad are not enclosed along with the case diary and he could give any reasons for not enclosing statements of Raghuveer Prasad along with the case diary.
19
30. B.K. Pathak (PW-10) Sub Inspector, Police Station Tendukheda admitted that when he had received FIR Ex.P/9 on transfer then recorded case crime No.10/97 under Section 306 and 498-A of IPC, copy of said FIR is Ex.9A. On 28.01.1997 he had prepared a spot map, on 25.01.1998 recorded statements of Babita, Bati Bai and Jagdish. On 27.01.1997 had arrested Ramcharan vide arrest memo Ex.P/13, he had recorded statements of Bhaiya lal, Kedar Singh, Batti Bai, Raghuveer Prasad and Savitri Bai on 20.01.1997. On 16.01.1997, he had interrogated Bhaiyalal. On 14.01.1997, Ramcharan had lodged missing person report 2/97.
31. In para-5, though this witness submits that he had mentioned word 'izrkj.kk nsrs gSa' and 'ikik dh izrkj.kk ls 20 ijs'kku gksdj' as per the statements of Bati Bai (PW-2), however this is contradictory to the statements of Bati Bai (PW-2).
32. (PW-10) has admitted that in her statements Ex.D/3, Bati Bai had not informed that her father was beating her mother on account of daughters. She had also not narrated that her father had thrown her mother out of home. In para-8, this witness admits that (PW-3) Bhaiyalal had not informed him that at Police Station Tendukheda, Babita and Bati Bai had informed him that their mother Devka Bai was beaten by father Ramcharan with a chowki resulting in fracture in hand and thereafter she was thrown out of the matrimonial home.
33. In para-9, PW-10 admits that Bhaiyalal had not 21 informed him that Veeru and Kedar had informed him that Ramcharan used to harass Devka Bai under the influence of alcohol and had thrown her out of home, as a result, he had not mentioned these facts in Ex.D/4 and D/5. In para-11 B.K. Pathak (PW-10) admits that during his investigation on 'xqe balku fjiksVZ' he had found that accused was not at his home when Devka Bai and daughters left his house. This witness also admitted that he had interrogated neighborers of the present appellant including women folk at village Khairua and none of them had given any statements against the present appellant.
34. Appellant had examined Smt. Shribai Kirar and Shri Keval Singh Kirar in his defence as DW1 and DW2 who have not supported prosecution case. 22
35. Trial Court had framed three issues namely:
(i) Whether death of Devka Bai took place within seven years of marriage?
(ii) Whether accused caused physical and mental torture to his wife Devka Bai?
(iii) Whether Devka Bai committed suicide? And fourth ancillary issue that whether accused used to torture his wife Devka Bai for giving birth to girl child and not giving birth to a male child resulting in abatement to commit suicide.
36. Trial Court decided issue No.1 in favour of the appellant, therefore, it does not require any elaborate discussion. As State has not filed any proceeding against said finding.
37. As far as issue No.3 is concerned it is evident 23 and proved from the record, evidence of witnesses PW- 2 and PW-4 so also the investigation that Devka Bai committed suicide by jumping in a flowing river. Therefore, this issue too does not require any elaborate discussion.
38. Now, only two issues are left whether accused harassed his wife Devka Bai mentally and physically and such harassment was on account of not giving birth to a male child causing instigation/ abatement to commit suicide.
39. To frame a charge under Section 306 of IPC, requirements of Section 107 are required to be fulfilled.
40. Section 107 IPC is in three parts namely:- a person must instigate to do that thing, secondly 24 engages with other person for the doing of that thing and thirdly aids by any act or illegal omission, the doing of that thing.
41. When evidence on record is taken into consideration then it is admitted by both PW-2 and PW-4, two material witnesses that accused was not present in his house when their mother had left her matrimonial house along with her daughters. There is an admission that Devka Bai worked in the fields 'Haar' till afternoon and had plucked several pods of Sweet pea. Secondly, there is also an admission that their mother Devka Bai had packed certain laddoos' with her and had asked the daughters that they will visit their mausi for which they had boarded a bus.
42. Thus, the story of throwing Devka Bai along 25 with her daughters out of their home is not corroborated. Investigating Officer as well as other Police personnel who have recorded statement of PW- 2, PW-3 and PW-4 namely Kripa Shankar (PW-7), Head Constable, Ku. Sarika Pandey (PW-8), Sub Inspector, S.S. Khan (PW-9), A.S.I. and star witness of prosecution B.K. Pathak (PW-10) have admitted that PW-2 and PW-4 in their respective case diary statements had not narrated this fact of presence of the appellant at the time of Devka Bai leaving her matrimonial home. They have also admitted that PW-2 and PW-4 never narrated any fact that their mother was beaten on account of not giving birth to a male child or as a corollary, giving birth to female child.
43. PW-2 has specifically admitted that her father 26 was not at home when she along with her mother had left their parental house. PW-10 has corroborated this fact. None of the witnesses have said that appellant ever asked them to die or intentionally or unintentionally caused any such situation. In fact, PW- 4 has admitted that their used to be discord between her father and mother but has not said anything so to prove case of the prosecution on the touch stone of ingredients of Section 107 of IPC. PW-4 has admitted that fourth girl child of Devka Bai died while she was in the house of her Nana. This fact has been indirectly corroborated by PW-3 that Devka Bai had lost her child 4-5 months prior to the incident. Thus, none of the elements of Section 107 of IPC are made out so to constitute an offence under Section 306. Prosecution 27 has failed to prove either mental or physical cruelty or any taunt on account of giving birth to girl child. This vital aspect has been overlooked by the learned Additional Sessions Judge, while writing his judgment. Therefore, appellant cannot said to have abetted the commission of suicide.
44. As far as Section 498-A is concerned, prosecution was required to establish that any cruelty was meted out by the appellant to his wife so to derive the wife to commit suicide or to cause grave injury or danger to life, or to coerce her to meet any unlawful demand. Three ingredients are required to be proved namely, the women must be married, she must be subjected to cruelty or harassment and such cruelty or harassment must have been shown either by husband 28 of the women or by the relatives of her husband. Supreme Court in the case of Vajresh Venkatray Anvekar Vs. State of Karnataka, AIR 2013 SC 329 has held that there is a phenomenal rise in crime against women and protection granted to women by the Constitution of India and other loss can be meaningful only if those who are entrusted with the job of doing justice are sensitized towards women's problem.
45. There is a fine distinction between the ingredients of Section 306 of IPC and 498-A of IPC. On appreciation of evidence, this Court has held that none of the ingredients of Section 107 of IPC are made out to convict the appellant under Section 306 IPC because under Section 498-A IPC, cruelty committed 29 by the husband or his relatives drag the women to commit suicide while under Section 306 IPC, suicide is abetted and intended as held in the case of Girjashankar and Ors. Vs. State of Madhya Pradesh 1988 MPLJ 421. In the present case, it is already held that suicide is neither abetted nor intended.
46. PW-2 and PW-4 both have stated in unequivocal terms that their father used to beat their mother. Babita Bai (PW-4) in her case diary statement Ex.D/6 has admitted that her father had beaten her mother a day prior to her mother leaving her matrimonial home she admitted that her father was under the influence of alcohol. Similarly, Bati Bai (PW-2) has admitted that her father used to beat her mother under the influence of alcohol and also use to abuse her. This part of the 30 evidence has remained totally unrebutted.
47. In view of such facts and circumstances, I am of the opinion that though conviction under Section 306 IPC cannot be sustained for the reasons mentioned above but conviction under Section 498-A IPC can be sustained on the basis of evidence which has come on record and, therefore, this appeal is partly allowed. Conviction and consequent sentence under Section 306 of IPC is set aside. Conviction and sentence under Section 498-A is maintained.
48. However, looking to the fact that during trial, appellant was in custody since 27.01.1997 when he was arrested vide arrest panchnama Ex.P/13 and thereafter, he was taken in custody on 31.08.1998 and was released on bail vide order dated 02.09.1998 and, 31 therefore, he has remained in custody for three days, looking to the fact that appellant has already faced long incarceration and trauma therefore in light of the judgment of the Hon'ble Supreme Court in the case of Mohinder Pal Jolly Vs. State of Punjab, (1979) 3 SCC 30, and considering the circumstance that the accused had to pass mental and financial ordeal for more than two decades when the occurrence had taken place, his substantive term of imprisonment is reduced to the period of imprisonment already undergone. Sentence of fine imposed, if any, is maintained.
50. The appellant has already suffered incarceration for 8 days and has been on bail throughout the trial so also during pendency of this appeal coupled with the fact that the appellant has no criminal antecedent and 32 this is the first offence committed by him, the appellant's appeal is partly allowed. Looking to the fact that incident took place in 1998, over 23 years' time has lapsed since when parties have faced trial and pendency of his appeal. Since the appellant is on bail, his bail bonds are hereby discharged.
51. In the above terms, the appeal is disposed of.
52. Learned Amicus Curiae will be entitled to his fee from the High Court Legal Services Committee on production of a certified copy of the order. This Court places on record its appreciation for the assistance rendered by learned Amicus Curiae Shri Ajay Tamrakar.
(VIVEK AGARWAL) JUDGE 33 AT APARNA TIWARI 2022.06.30 10:37:19 +05'30'