Amarchand Tiwari and Others vs State of Madhya Pradesh

U.C. Maheshwari, J.—By this appeal, the Appellants have assailed their conviction u/s 498A of the IPC in which each of them has been sentenced for one year R.I. with fine of Rs. 2,000 while in addition appellant No. 4 Vishnu also held guilty u/s 306 of the IPC and sentenced for five years R1 with line of Rs. 5,000/- by the Special Judge and Additional Sessions Judge, Shahdol, vide Judgment dated 17.6.2003 in ST. No. 187/01.

In short, the facts of the prosecution case are that: the deceased Asha was married with appellant No. 4 Vishnu in the year 1997 since then she was subjected to beating and cruelty by the appellants No. 1 to 4 as they are her father-in-law, sister-in-law, mother-in-law and husband respectively. The appellant No. 4 even after marriage was remained unemployed, on account of it at various occasion, he borrowed money from the parents of the deceased and ultimately the deceased and appellant No. 4 have come to village Gorella to reside with the parents of deceased. In the month of October 2000 Murli Tiwari the father of the deceased taken them to village Bijuri the place of his elder son-in-law Ram Prasad Pandey who was working as Munshi with Shri Kediya at village Bijuri . At the instance of said Ramprasad Pandey the appellant No. 4 got employment as Munshi of said Kediya. Thereafter by hiring a room in Kediya Chal, Bijuri they startred to reside there. On dated 20.11.2000 the deceased due to some altercation with the appellant No. 4 poured kerosene on herself and set fire. She was not restrained by appellant No. 4 to commit such act, but on burning appellant No. 4 tried to save her, in consequence, he also burnt and injured . Soon after the incident said Ram Prasad the brother-in-law of appellant No. 4 came to the place of the incident on calling, he brought them by jeep to village Gorela at the parental house of the deceased in the same night.

Next day on 21.11.2000 injured were taken to sanatorium hospital Gorela for treatment. On their admission, the information was sent to the police from the hospital regarding necessary arrangement for taking her to district hospital Bilaspur for further treatment with a request to record the dying declaration On such information Police went to hospital and request for medical examination of the injured on which their MLC reports were prepared. According to it, Asha burnt on her neck, face, back side of thigh, abdomen, both the arms, some front part of thigh in all 46% in toto while both the forearms of the appellant No. 4 were found deeply burnt as per assessment 6% in toto.

Dr. L.N. Patel (PW 5) has found fit the deceased for recording her dying declaration on dated 21.11.2000 at about 10.20 in the night. On his certification her dying declaration was recorded by Tehsildar and he also recorded the dying declaration of appellant No.4. Subsequent to it, she was shitted to District Hospital Bilaspur where during treatment she succumbed to injuries on dated 30.11.2000.

The concerning Police Official on returning to Police Station from the hospital of Gorela endorsed the said incident in Rojnamcha Sanha on dated 22,11,2000 and after registering the offence the case diary was sent to Police Station Bijuri as the incident took place within the territorial jurisdiction of such Police Station. It is a matter of record that the aforesaid offence was registered against all the appellants. During investigation on demise of said Asha Section 304B of the IPC was also invoked. As per allegations of the FIR, the deceased Asha was subjected to cruelty by all of the appellants on account of demand of dowry within 7 years from her said marriage.

After holding investigation, the appellants were charge-sheeted Under Sections 304B, 498A read with Section 34 of the IPC. On committal to Sessions Court, the charges u/s 306/34, 304/34 and 498A of the IPC were framed against the appellants No. l, 2 and 3 while charge Under Sections 306, 304B and 498A of the IPC was framed against the appellant No. 4. The same were denied by them.

In order to prove the case, the prosecution has examined as many as 12 witnesses while no evidence was led on behalf of the appellants in their defence.

On appreciation of the same, all the appellants were found guilty u/s 498A. Appellant No. 4 was additionally found guilty u/s 306 of the IPC and they have been sentenced as said above. Hence this appeal was preferred against their conviction.

Shri D.N. Shukla, the learned Counsel for the appellants has submitted that there was no legal and reliable evidence against any of the appellant to hold them guilty for the alleged offences. Inspite it they have been convicted only on wrong appreciation of evidence . According to him, the appellants No. 1, 2 and 3 were not residing with the appellant No. 4 and the deceased, since they left the village Kat Kona for Gorela. Then the question causing any cruelty to deceased by them could not be arisen. He also said that the evidence led by the prosecution in respect of cruelty is not reliable in the lack of specific and clear particulars. Mere on the general allegations and omnibus depositions of witnesses the appellants could not have been held guilty under the aforesaid offences. In support of his contentions he has referred some part of the depositions of Murli Prasad Tiwari (PW1) and Smt Saraswati Bai (PW2) the father and mother of the deceased. He further submitted that on examining the evidence with proper approach, the ingredients regarding abetment to deceased for committing suicide are not made out against the appellant No. 4 as there is no evidence regarding instigation or inducement or his involvement in such . conspiracy showing the circumstance to draw any inference against the appellant No. 4. It was also submitted that the provisions of Section 306 read with Section 107 of the IPC alongwith Section 113A of the Evidence Act have not been properly considered. As per his submission in the absence of primafacie evidence of the prosecution regarding abetment to commit suicide the Section 113A of the Evidence Act could not be invoked for making the foundation for conviction of the appellant. So far dying declaration of the deceased is concerned, he has submitted that as per bare language of it, no inference could be drawn against the appellant No.4 about his involvement in such offence as she stated in it that such act was being done only to create fear over the appellant. It shows that she herself was not ready for such act, but accidentally the incident was happened . Therefore no liability of it could be fastened against him. In last it was submitted that in order to save the deceased the appellant''s hands were also burnt, the same were found on examination by Doctor. If there was any bias or motto for committing such offence in his mind against the deceased then why had he taken the risk. This very material aspect was not considered with proper approach by the trial court. The dying declaration of the deceased was wrongly interpreted by the trial Court and prayed for acquittal of the appellants by allowing the appeal. He also placed his reliance on some reported cases of the Apex Court published in different Journals.

On behalf of the State Shri Ramesh Shukla learned Dy. Govt. Advocate has responded the aforesaid arguments by justifying the impugned judgment. As per his submission the conviction and sentence of the appellants are based on proper appreciation of the evidence with legal propositions. The same is not required any interference at this stage and prayed for dismissal of the appeal.

Having heard the learned Counsels I have gone through the record of the trial Court. It is a matter of record that the deceased had died due to unnatural death by means of pouring kerosene on herself and set fire within seven years from her marriage. It is also apparent that on the date of the incident the deceased and appellant No. 4 were not residing alongwith the appellants No. 1 to 3 as they were residing at their native place the village Katkona while appellant No. 4 and deceased were residing at village Bijuri. Before shifting to Bijuri from village Katkona this conduct of parties shows that disputes relating to appellants No. 1 to 3 had come to an end if it was remained in existence. This view is fully supported by the circumstance, available on record. As the appellants No. 1 to 3 neither visited to said village Bijuri where the deceased was residing with appellant No. 4 or at village Gorela the parental homo of the deceased. Therefore, no inference could be drawn against them that they committed any cruelty with deceased or made any demand for dowry after leaving her the village Katkona. But on going through the depositions of Murli Prasad and Sarswati Bai the father and mother of the deceased. It has been established beyond reasonable doubt that when deceased was residing at village Katkona she was remained under the cruel treatment of the appellants.

In this respect the documents Ex.P/2 has been proved by Arvind Singh (PW 7), it was a complaint given to him by Murli Prasad (PW 1) in which some allegations regarding cruelty has been mentioned against the appellants. As per deposition of this witness this complaint was received by him as Sarpanch of the village for which he endorsed the copy, placed on the record as Ex.P/2, the same was relied on by the trial Court mere on the testimony of this witness and said Murli Prasad. On perusing the same it appears that Ex.P/2 is not the original document as alleged the same was kept in Gram Panchayat Hence, for the sake of the arguments, if it is assumed that the same was given to said Arvind Singh then in the lack of taking any appropriate action even after receiving the same, the version of this witness could not be relied on. There is sufficient circumstance to draw an inference that without intervention of the office of the Gram Panchayat this letter has been prepared and produced in connivance of the parents of the deceased. The same was prepared just to create the evidence against the appellants. In the absence of Panchayat record about receiving the same in its office. This document could not be relied. Secondly, after shifting the appellant No. 4 and deceased from village Katkona to Bijuri as said above. Subsequent to it no inference for committing such offence could be drawn against appellant No. 1 to 3. Thus findings of the trial Court based on this document Ex.P/2, are not sustainable. While other document the post card Ex.P/1 in the absence of the proof of its date about dispatch and receiving, it could not be relied by the trial Court.

Under such circumstance, only the deposition of said Murli Prasad and Sarswati Bai and dying declaration of deceased Asha Ex.P/14 are remained on record for scrutiny and consideration.

The Murli Prasad Tiwari (PW 1) has stated in para 17 of his deposition that alter getting job by appellant No. 4 at village Bijuri deceased and appellant No. 4 shifted to such village where his elder son-in-law Ramprasad and daughter Dropadi were already residing, on happening such incident they brought and left to deceased and appellant No. 4 in injured condition at the residence of this witness at village Gorela hence the Ram Prasad and Dropadi were material witnesses for the incident they could have shown the circumstance in which Asha got burnt as they were the neighbour of the deceased and appellant No. 4 in such village. They could have stated the actual facts but the prosecution neither cited them as witnesses nor examined to explain the circumstance.

While as per dying declaration of appellant No. 4 Ex.D/3 recorded by Tahsildar, the alleged (sic) took place because of the altercation in between him and deceased on account of one of the relative of said Ram Prasad who was seen by appellant No. 4 in the room with the deceased the prosecution should have washed out this circumstance by examining Ram Prasad and Dropadi Bai but neither they have been examined nor any explanation was put forth in this regard. Thus, non-examination of this Ramprasad and Dropadi Bai is major and material circumstance to draw the inference against the prosecution that the appellant No. 4 had not induced to deceased by cruelty or in any other manner for committing the suicide. This circumstance also shows that Ram Prasad and concerning other person was the cause to induce the deceased for committing the suicide .

16.The conduct of said Ram Prasad and Dropadi, soon after the incident creates the suspicion against them as on burning condition the deceased and appellant No. 4 were taken to village Gorella in injured condition by them. It appears unnatural that instead to shift them in hospital for treatment they were only dropped at the parental home. The parents of the deceased have also not taken care of deceased for treatment and kept them from mid night up to the next morning and not shifted to hospital while the said jeep was also available for taking them to hospital. Even after death her elder sister Dropdi and said brother-in-law Ram Prasad had not participated in her funeral as deposed by the parents of deceased. What was the reason to leave the appellant No. 4 and deceased at the parental home by said Ram Prasad and Dropdi Bai instead to shift them in hospital for treatment and more so why she was not shifted to whole of the night to hospital even after coming to parental house. Thus the prosecution had to established that what was that specific reason on account of which Ram Prasad and Dropdi had not taken any interest for their burnt relatives to admit them to hospital. Even after their demise they did not participate in her funeral these things create doubt against them.

Although the defence has not put forth the material circumstances in this regard. But it appears that the appellant No. 4 got burnt his both the hands while he was saving the deceased it shows that the cause of pouring kerosene and set fire was not the appellant No. 4 therefore the motivation or instigation for committing the suicide to deceased can not be inferred against the appellant No. 4. However, it creates some doubt against said Ram Prasad and Dropadi Bai who kept themselves away from the scenario after leaving the deceased and appellant No. 4 at the resident of Murli Prasad (PW 1) the parents of deceased and said Dropadi.

The aforesaid circumstance is somehow established by dying declaration of the deceased Ex.P/14, in which she stated in the answer of question No. 8 that she was creating the fear on appellant No. 4 on account of some altercation in between them in which he had spoken something against her character and asked to go her parental home. In other hand the dying declaration of the appellant No.4 Ex.D/3 was also recorded in which he stated that some altercation took place in between them. Appellant had seen to nephew of said Ram Prasad with the deceased in the room while they were talking to each other in laughing manner on seeing the same he went out side, on returning back the deceased was not found at his residence. As she had gone to the residence of said Ram Prasad then he called through one Rajesh. On her coming said altercation took place and incident was happened. In such circumstance no interference could be drawn against the appellant No. 4 that he has instigated or induced to deceased for committing the suicide.

Aforesaid both dying declarations were recorded by Tahsildar cum Executed Magistrate in presence of Doctor who gave the fitness certificate regarding their mental and physical conditions for the same at the beginning of recording and also after recording is over.

In aforesaid Ex.P/14 the deceased has said some facts against the appellants regarding the demand of dowry. But, particulars of such incident like date and place have not been mentioned in the same. In such circumstance on account of some earlier situation the offence u/s 498A of the IPC could have been presumed but it does not show any thing against the appellant about instigation or inducement to deceased for committing the suicide, the involvement of the appellant in a such conspiracy has also not been proved. In view of the aforesaid, on going through the deposition of Murli Prasad and Saraswati Bai the father and the mother of deceased in which they have stated many things which are not found in the case diary statements Ex.D/1 and Ex.D/2. If such things were not disclosed by such witnesses at earliest opportunity then such version of deposition said at the first time in trial, could not be a foundation for holding the guilty u/s 306 of IPC to the appellants. This question was answered on various occasion by this Court in the matter of State of Haryana v. Jasvinder Singh reported in 2000(II) MPWN (150) and in the matter of Guddu v. State of M.P. reported in 2000(II) MPWN (162) and in the matter of Kheek Ram v. State of MP. reported in 1997 (1) MPWN 94, in which it is held as under:

P.W. 6 Ishwar Prasad stated in his deposition that the accused Kheekram during the course of the grappling ealt a blow over Nakul and Nakul also beat Kheekram. It is on the basis of this story that the learned trial court has held that the present appellant was responsible for causing the death of Nakul. From the testimony of P.W. 6 Ishwar Prasad, it would appear that Isahwar Prasad had not disclosed this fact in his statement u/s 161 of the Cr. P. C.(Ex.D-3) that the accused had assaulted the deceased. Though the learned Counsel for the appellant on the basis of the statement made by other witnesses has greatly stressed that Ishwar Prasad could not have witnessed the incident as the other witnesses had not deposed to about his presence, even otherwise going by the statement, it is clear that the testimony of P.W.6. Ishwar Prasad specially account of the omission of this fact in his statement to the Police cannot safely be acted upon to found a conviction. Under these circumstances, the very foundation of which the conviction is based becomes shaky and benefit of doubt must go to the appellant.

In view of the said earlier decisions it is settled position of law that in view of inadmissible evidence the accused person can not be held guilty.

So far merits of this case is concerned the law laid down in the matter of Mahendra Singh and Anr. v. State of MP. Reported in 1995 AIR SCW 4570 which is also based on dying declaration and the appellants/accused were acquitted from the charge u/s 306 of the IPC by maintaining their conviction u/s 498A of the IPC hence the same is applicable to this case in which it is held as under:

The charge u/s 306 IPC is basically based on the dying declaration of the deceased which when translated reads as follows:

My mother-in-law and husband and sister-in-law (husband''s elder brother''s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.

Learned Counsel for the appellant rightly submitted that but for the statement of the deceased there is no other pointed evidence from which it could be inferred that there was any abetment so as to bring the acts of the appellants within Section 306 IPC, under which the appellants have been punished. The dying declaration, per se, could not involve the appellants in offence punishable u/s 306 IPC, because it provides for abetment of suicide. Whoever abets the commission of suicide, and if any person commits suicide due to that reason, he shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Abetment has been defined in Section 107 IPC to mean that a person abets the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in, order to the doing of that thing, or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Neither of the ingredients of abetment are attracted on the statement of the deceased. The conviction of the appellants u/s 306 IPC merely on the allegation of harassment to the deceased is not sustainable. The appellants deserve to be acquitted of the charge.

It was, however, brought to our notice by learned Counsel for the State that since the occurrence took place on 14.3.1984, Section 498A, IPC had priorly on 15.12.1983 been brought on the statute book and that the appellant could well have been charged under the said provisions which may now be applied in substitution. That appears to be so. But at this distance of time, we think it would be imprudent to substitute the charge and cull out incidence of cruelty inflicted on the deceased by the husband or relatives of the husband and determine whether any wilful conduct is attributed to the appellants which would likely to drive the deceased to commit suicide or to cause grave injury to her ( whether physically or mentally). Prejudice would, in our view, be writ large if we involve the appellants u/s 498A IPC in substitution. Even otherwise, substantial justice has been done when the husband and his mother, appellants in Criminal Appeal No. 743 of 89 have undergone the sentence imposed on them. Their appeal would stand disposed of as infructuous. The sister-in-law also has undergone some sentence, though not much. The appeal of the sister-in-law would therefore stand allowed and she is acquitted of the charge. She is on bail. The bail bonds stands cancelled.

In another occasion the Apex Court has also held in some identical circumstance with slide difference on facts, in the mater of Hans Rai v. State of Haryana reported in AIR 2004 SCW 1283, in which it is held as under:

Having regard to the principles aforesaid, we may now advert to the facts of this case. The learned Trial Judge took the view that since the wife of the appellant committed suicide and since the appellant did not disclose as to what conversation preceded her committing suicide and that there were allegations of cruelty against the appellant, it must be presumed u/s 113A of the Indian Evidence Act that the suicide had been abetted by him. We do not find ourselves in agreement with the finding of the Trial Court, having regard to the facts and circumstances of this case and our finding that the prosecution is guilty of improving its case from stage to stage. The allegations that the appellant did not like to keep the deceased with him because she was not good looking, or that he was addicted to liquor or that the deceased had reported these matters to her parents and others, or that the appellant intended to re-marry and had told his wife Jeeto about it, or that the deceased had once come to her father''s house in an injured condition, or even the allegations regarding beatings, do not find place in the statements recorded by the police in the course of investigation. These allegations have been made at the trial for the first time. All that was alleged in the FIR or even at the stage of investigation was that there were frequent quarrels between the husband and wife, sometimes resulting in physical assault, on account of the husband being addicted to consumption of ''Bhang''. The other allegation that the appellant was aggrieved of the fact that his sister Naro was not being properly treated by Fateh Chand, PW 3, brother of the deceased, also appears to be untrue because there is nothing on record to show that there was any harmony in the marital life of his sister Naro. In fact, Fateh Chand, PW 3, her husband, himself stated on oath that he was living happily with his wife Naro, sister of the appellant On such slender evidence, therefore, we are not persuaded to invoke the presumption u/s 113A of the Indian Evidence Act to find the appellant guilty of the offence u/s 306, IPC.

The trial Court found that there was material to support the charge u/s 498A, IPC but did not pass a sentence u/s 498A, IPC on a finding that the same will be overlapping, the appellant having been found guilty of the offence u/s 306, IPC Having regard to the facts of the case, we are satisfied that though the prosecution has failed to establish the offence u/s 306, IPC, the evidence on record justifies the conviction of the appellant u/s 498A IPC.

We, therefore, set aside the conviction and sentence passed against the appellant u/s 306, IPC and acquit him of that charge, but we find the appellant guilty of the offence u/s 498A, IPC and sentence him to undergo rigorous imprisonment for one year on that count. This appeal is partly allowed. The appellant was admitted to bail by this Court. His bail bonds are cancelled and he must surrender to his sentence, subject to the provisions of Section 428 of the Code of Criminal Procedure.

In the aforesaid case even the provision of Section 113A of the Evidence Act has also been considered. Ultimately the accused was acquitted from the charge u/s 306 of IPC and convicted u/s 498A of the IPC. The facts and circumstance of the aforesaid and case at hand appears to be identical with slide differences hence the same is applicable to the instant case.

The prima facie medical evidence and ocular evidence is available on record showing that in order to save the deceased the hands and some other part of the person of appellant were also burned for which he was not only admitted and treated but at the initial stage his Dying declaration D/3 was also recorded. Such circumstance is also required consideration in favour of the appellant No. 4 Such question was considered and answered by this Court in the matter of Hemraj v. State of M.P. Reported in 1997 (ii) M P 116 in which it was held as under:

The above conduct of the accused/appellant in trying to extinguish the fire of his wife, which is supported by the burnt clothes seized by the Investigating Officer and raising an alarm immediately after the incident and taking her to the hospital for treatment, negatives his culpability and intention to set his wife on fire. Moreover, the conduct of the deceased in pouring kerosene oil on herself would also cast a serious doubt that the deceased was set on fire by the appellant. In the circumstances, the dying declaration (Ex.P/14) is not supported by the above circumstances of the case and can not form the basis for conviction of the accused/appellant.

In view of the aforesaid the appellant could not be held guilty for the offence u/s 306 of IPC as it shows his bonafideness and the circumstance that deceased was not induced or instigated for committing the suicide.

In view of the aforesaid discussion the conviction of the appellants No. 1 to 3 u/s 498A of the IPC is hereby maintained while by setting aside the conviction and sentence of the appellant No. 4 u/s 306 of the IPC he is acquitted from this charge but in view of available evidence he is also held guilty u/s 498A of IPC and sentenced for 3 years R.I. with fine of Rs. 5,000 in default of it he has to undergo for further six months R.I.

Resultantly this appeal is allowed in part as intended above.