Bharat Lal vs State of Madhya Pradesh

N.K. Gupta, J—The appellant has preferred the present appeal being aggrieved with the judgment dated 30.1.1997 passed by the First Additional Sessions Judge, Chhindwara in ST No. 105/1995 whereby the appellant has been convicted of offence under Section 306 of IPC and sentenced to five years'' rigorous imprisonment with fine of Rs. 500/-, and an additional three months'' RI in default of payment of fine.

The prosecution story, in short, is that the appellant Bharat Lal was married to co-accused Memwati Bai and later in the year 1991-92 he had relations with the deceased Munnibai @ Lalwati, daughter of Nand Kishore (PW-2), and therefore deceased Munnibai became pregnant. Hence, the Sarpanch of village Gram Panchayat Penjanwada and other reputed persons of the community directed the appellant to marry the deceased Munnibai, and therefore second marriage of the appellant took place with the deceased Munnibai. It was alleged against the appellant that he harassed his second wife for demand of two acres of land and cash of Rs. 10,000/-, therefore on 21.6.1993 a compromise took place between the parties that the appellant shall not harass the deceased Munnibai on any count including dowry demand. Thereafter the deceased Munnibai was residing with the appellant at Penjanwada (Police Station Parasiya District Chhindwara). On 7.6.1994 at about 9:00 PM in the night the deceased Munnibai was found missing from the house of the appellant and on 10.6.1994 her dead body was found in a well of the same village. A marg intimation Ex. P-1 was recorded. The dead body of the deceased Munnibai was sent for the postmortem. Dr. P.K. Soni (PW-10) along with team of the doctors performed the postmortem on the body of the deceased Munnibai at the Primary Health Centre Pagara and gave a report Ex. P-15. It was found that the deceased died due to drowning 72 to 85 hours prior to the time of the postmortem. Thereafter Govind (PW-1), brother of the deceased, Nand Kishore (PW-2) father of the deceased, Natthu (PW-4) and other witnesses have stated against the appellant and his first wife along with one Gopichand, brother of first wife Memwati that they harassed the deceased Munnibai and it was not possible for the deceased Munnibai to continue with the appellant, and therefore she committed suicide. Under such circumstances, a case was registered against the appellant. After due investigation, a charge sheet was filed before the CJM Chhindwara, who committed the case to the Court of Sessions and ultimately it was transferred to the First Additional Sessions Judge, Chhindwara.

The appellant-accused abjured his guilt. He took a plea that he kept the deceased Munnibai with comfort. One month prior to the death of the deceased, the deceased Munnibai was residing in the house of her father, and therefore there was no possibility for the appellant to commit any cruelty upon the deceased Munnibai. In defence one Pancham (DW-1) was examined.

The trial Court after considering the evidence adduced by the parties, acquitted the co-accused Memwati Bai and Gopichand from all the charges, whereas the appellant has been convicted the appellant of offence under Section 306 of IPC and sentenced as mentioned above.

I have heard the learned counsel for the parties at length.

In the present case some of the material facts are admitted in nature. It is admitted that the appellant was already married with co-accused Memwati Bai, but since the deceased Munnibai was pregnant, therefore due to the decision given by the reputed members of the community he was married with the deceased Munnibai and an agreement Ex. P-9 was recorded for that marriage and thereafter the deceased resided with the appellant. It is also admitted that a conditional compromise took place on 21.6.1993 that the appellant would not harass the deceased Munnibai for any demand or otherwise. It is also admitted that the deceased Munnibai had died in between 7.6.1994 to 10.6.1994 by drowning and it was not a case of accident, but the death of the deceased Munnibai was suicidal in nature.

On the basis of the aforesaid admitted facts, it would be apparent that the deceased Munnibai died within seven years of her marriage with the appellant, and therefore presumption under Section 113-A of the Evidence Act is applicable in the case. Govind (PW-1), Nand Kishore (PW-2) and Natthu (PW-4) have stated that a compromise took place between the parties as per the document Ex. P-10 on 21.6.1993 and thereafter the deceased resided with the appellant for more than one year and at the time of incident she was residing with the appellant. These witnesses have stated that after the compromise took place on 21.6.1993 the appellant continued to harass the deceased Munnibai for various reasons. However, they did not mention that the appellant demanded any dowry from the deceased Munnibai thereafter. According to the witnesses, two months prior to the incident, the deceased Munnibai went to the house of Nand Kishore and informed him that he was called in the house of the appellant. When Nand Kishore and Govind went to the house of the appellant, Gopichand, Memwati Bai etc. had told them that a proceeding of divorce may be recorded in between the appellant and the deceased Munnibai, however they denied to do so. Witness Govind has stated that when he went for the last time to the house of the appellant, he was informed by Memwati Bai, first wife of the appellant that on the day after consuming liquor the appellant assaulted the deceased Munnibai as well as Memwati Bai and thereafter the deceased Munnibai left the house. However, witness Govind did not express about such fact in his case diary statement. Hence, in absence of any corroboration to such portion of the statement of Govind, it cannot be accepted that Govind went to the house of appellant and Memwati Bai informed him that the appellant assaulted the deceased as well as Memwati Bai and thereafter the deceased Munnibai was missing.

Witness Govind, brother of the deceased, Nand Kishore, father of the deceased, Natthu (PW-4) and other persons, who were witnesses to the agreement Ex. P-10, whereas all the independent witnesses of the locality namely Sikalchand (PW-7), Bhutani Bai (PW-8) and Mukar Chand (PW-9) have turned hostile. Mukar Chand (PW-9) has accepted in para 5 of his examination-in-chief that prior to her death, she was residing in her father''s house. Similarly, Bhutani Bai (PW-8) has accepted that one day before missing of deceased Munnibai, a quarrel took place between the deceased Munnibai and Memwati Bai relating to apportionment of the domestic work. She has accepted that when she heard some noise, she went to the house of the appellant and found that the appellant was blaming both the wives. Thereafter she has accepted that when the appellant was shouting at his first wife Memwati Bai, the deceased Munnibai was not present in the house. Sikalchand (PW-7) has accepted that he had no knowledge about the family relation of the appellant and his wives. However, he has accepted that in the month of Chetra (a Hindi month), the deceased Munnibai went to the field of her brother Govind at 9:00 AM in the morning and told him that Govind and his father Nand Kishore were called by Gopichand and Bharat Lal at the flour mill of the appellant Bharat Lal. Thereafter he has stated that he did not know about the talk that took place between them.

On the basis of these hostile witnesses, it appears that in the month of April a talk took place between the witnesses Govind and Nand Kishore with the appellant and co-accused Gopichand relating to preparation of divorce agreement, but Govind etc. were not ready for execution of that document. If the compromise took place between the parties on 21.6.1993 that the deceased shall not be harassed for dowry demand etc. and thereafter there was no allegation that the appellant demanded any cash or piece of land from the deceased Munnibai, then it was for the prosecution to prove that the appellant had committed such an act, which may fall within the purview of Section 107 of IPC.

It is an admitted fact that the appellant was residing at Village Penjanwada, whereas the witnesses Govind (PW-1) and his father Nand Kishore (PW-2) were also residing at the same village. As per these witnesses, accused Gopichand and the appellant had called them to write down an agreement of divorce and the deceased Munnibai went to call them at the field, which indicates that the deceased Munnibai was free to go to the house of her father according to her wishes, and therefore if she had any trouble, she could go immediately to her father''s house for its resolution. If the appellant had forced the deceased Munnibai and her father Nand Kishore for the dissolution of marriage between the appellant and the deceased Munnibai, then such an act does not fall within the purview of Section 107 of IPC. He wanted to adopt the legal recourse to divorce his second wife. Hence if such talk took place between the Nand Kishore and the appellant, then it was for the witnesses Govind and Nand Kishore to resolve the dispute between the parties.

It is accepted by the witnesses that initially the appellant was not the resident of Village Penjanwada. His brother-in-law Gopichand invited him to reside at Penjanwada and he helped the appellant for opening of a flour mill and the appellant was residing with his wife Memwati Bai at Penjanwada. Hence the appellant was not in a position to leave his first wife. The witnesses Govind and Nand Kishore have stated about the steps taken by the appellant relating to divorce with the deceased Munnibai, but they did not state any reason with the appellant for not being able to maintain his second wife Munnibai. Looking to the silence of these two witnesses, it would be apparent that they found that the problem was created by the deceased Munnibai, otherwise they would have stated that the appellant and his wife Memwati Bai created a particular problem before the deceased Munnibai, and therefore the appellant wanted to get rid-off the deceased Munnibai, but silence on the part of witnesses regarding the reason for seeking divorce, indicates that the said reason was created by the deceased herself.

It is apparent from the evidence of the prosecution that the compromise deed Ex. P-10 was recorded on 21.6.1993 and thereafter upto April 1994 there is no allegation of these witnesses Govind and Nand Kishore against the appellant that he tortured his second wife. Hence the prosecution did not prove that the appellant had committed any torture or dealt the deceased Munnibai with cruelty during June 1993 to April 1994. It is apparent that Govind and Nand Kishore were called by the appellant and his brother Gopichand so that a compromise of divorce may be recorded and if the appellant was not in a position to live with the deceased Munnibai, then they would have taken some action against the appellant either they would have called a Panchayat or they would have lodged an FIR against the appellant or they would have taken the deceased Munnibai to their house. The appellant took plea that after that discussion, the deceased Munnibai was residing in the house of Nand Kishore. In this connection, except Govind and Nand Kishore, there is no witness, who says that the deceased Munnibai was residing at the house of the appellant. The prosecution witnesses specially Mukarchand (PW-9) has stated that after discussion of divorce, the deceased Munnibai was residing with her parents. Initially Bhutani Bai (PW-8) has stated that she heard a quarrel between the deceased Munnibai and Memwati Bai, first wife of the appellant, but in the cross examination she has accepted that the deceased Munnibai was not present in that house. Though Bhutani Bai (PW-8) was neighbour of the appellant, but she could not say about any quarrel between the appellant and the deceased Munnibai in the past 2-3 months, which indicates that at the time of incident, the deceased Munnibai was residing with her parents.

As discussed above, witness Govind has stated a new thing before the Court that when he went to the house of the appellant, Memwati Bai informed him that she and Munnibai have been beaten by the appellant and thereafter Munnibai left the house of the appellant, whereas such statement was not given by the witness Govind in his case diary statement. Also the marg intimation Ex. P-1 has been lodged by witness Govind. If the deceased Munnibai was residing with the appellant at the time of incident, then on his absence on 7.6.1994 the appellant would have recorded a missing report at the police station and thereafter a marg intimation could be lodged from his side. If the text of the marg intimation Ex. P-1 is read, then it would be apparent that Govind had narrated the fact that when he was intimated about the fact of missing of his sister Munnibai, he went to Village Iklehra and to other various places to search the deceased Munnibai. If a talk of divorce took place between the parties and relations of the appellant and the deceased Munnibai were strained, then at this stage when Munnibai was missing, the witness Govind would have lodged an FIR against the appellant or he would have blamed the appellant before the reputed members of the community that due to cruelty done by the appellant upon the deceased Munnibai, she left the house of the appellant, but instead of doing so, he tried to search the deceased Munnibai at various places and thereafter when the dead body of the deceased Munnibai was found, he lodged a marg intimation. Such conduct of Govind clearly indicates that before the incident of missing, the deceased Munnibai was residing with her parents. It is also stated by the witness Govind that two months prior to the incident of death of the deceased, when Munnibai came to the field, she told that she was ousted by the appellant from his house and he had called Govind and Nand Kishore to talk about the customary divorce. No reason for ouster if any and thereafter acceptance in the house of appellant is explained by Govind and Nand Kishore.

Looking to the conduct of the witnesses Govind and Nand Kishore, a doubt is created that two months prior to the incident, the deceased Munnibai was residing in the house of Nand Kishore. If the deceased Munnibai was residing at the house of Nand Kishore two months prior to the incident, then it was for the Nand Kishore and Govind to explain as to how she committed suicide. If the appellant ousted the deceased Munnibai from his house, then it was for the deceased Munnibai and her parents to take legal steps against the appellant and the act of the ouster done by the appellant does not fall within the purview of Section 107 of IPC.

For the sake of argument, if it is presumed that the deceased Munnibai was residing in the house of the appellant after the alleged ouster, then still there must be some reasoning with the appellant to keep his second wife in the house again and there is no evidence against the appellant about his behaviour with the deceased Munnibai in last two months of her lifetime, and therefore it cannot be said that "soon before" her death, she was subjected to cruelty by the appellant in such a manner that she had no option except to commit suicide. The possibility cannot be ruled out that Munnibai might have committed suicide due to such a situation where she had no place either with Memwatibai or with her father or brother. But, in absence of reliable evidence, it cannot be said that the appellant has done such an act so that the deceased had no option except to commit suicide. If the evidence of Govind is accepted that when he went to the house of Memwati Bai to get an information about the missing of deceased then according to him the appellant assaulted the deceased as well as Memwati Bai. The conduct of the deceased as depicted by the witness Govind clearly indicates that he found that the both the wives were beaten by the appellant. Hence, it cannot be said that he was cruel with the deceased Munnibai Bai so much so that she would commit suicide. When it is not proved beyond doubt that the deceased Munnibai was residing in the house of the appellant in last two months during her life time, then certainly the appellant cannot be blamed for suicidal death of the deceased Munnibai.

On the basis of the aforesaid discussion, it is apparent that the prosecution has failed to prove that the appellant had committed such an act which may fall within the purview of Section 107 or he created such a situation that the deceased had no option except to commit suicide. On the contrary it is established that when Munnibai called her father and brother to settle the matter of divorce between her and her husband and the view as observed by her that she would not get any shelter from her father and brother any more, or she was taken by her father and brother, but no further steps were taken by them. Under such circumstances, the prosecution could not prove that the appellant abetted the deceased Munnibai to commit suicide. The trial Court has committed an error in convicting the appellant of offence under Section 306 of IPC.

On the basis of the aforesaid discussion, the present appeal filed by the appellant Bharat Lal appears to be acceptable. Consequently, it is hereby allowed. His conviction and sentence imposed by the trial Court for commission of offence punishable under Section 306 of IPC are hereby set aside. He is acquitted from that charge. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

At present the appellant is on bail, and his presence is no more required, therefore it is directed that his bail bonds shall stand discharged.

A copy of this judgment be sent to the trial Court along with its record for information and compliance, if any.