Mumtaz and Another vs State of MP. (Now Chhattisgarh)

Pritinker Diwaker, J.—This appeal is directed against the judgment and order dated 20.11.95 passed by the. Fifth Additional Sessions Judge, Durg, in Session Trial No. 437/93 convicting the accused/appellants under Sections 306 & 498A IPC and sentencing them to undergo rigorous imprisonment for seven years and pay fine of Rs. 500, in default of payment of fine to further undergo simple imprisonment for two months and to undergo rigorous imprisonment for two yeas and pay fine of Rs. 500, in default of payment of fine to further undergo simple imprisonment for two months respectively. Case of the prosecution in brief is that on 6.6.93, Akhtar Bano (since deceased) wife, of appellant No. 1 committed suicide by consuming some poisonous substance. FIR Ex. P5 was lodged by Munnawar Ali (PW6) father of the deceased, on 13.6.93 at outpost Khursipar u/s 306/34 IPC and on the same day itself it was transferred to police station Chhawni and Crime No. 319/93 was registered against the accused/appellants u/s 306/34 IPC. From the record it appears that on 21.6.93 a written report Ex.P8 was lodged by Munnawar Ali (PW6) father of the deceased before the S. P. Durg for the offence u/s 304B IPC as well. After investigation, challan was filed on 14.7.93 u/s 304B/34 IPC. However, while framing the charge, learned trial Judge has framed the charge under Sections 304B & 498A IPC.

So as to hold the accused/appellants guilty, the prosecution has examined 9 witnesses. Statement of the accused/appellants were also recorded u/s 313 of the Cr.P.C. in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart one defence witness has also been examined.

After hearing counsel for the parties, the trial Judge has acquitted the accused/appellants u/s 304B IPC but has convicted them under Sections 306 & 498A of the Indian Penal Code and sentenced them as mentioned above. Hence this appeal.

Contention of Smt. Kochar, counsel for the appellants is that as the appellant No. 1 has already undergone the entire sentence she is not pressing this appeal on his behalf and is confining the present appeal only in respect of appellant No. 2 Hashmatulnisha. She submits that even if the entire case of prosecution is taken as it is, at best the appellant No. 2 can be convicted u/s 498A IPC and for which she has already remained in jail for about 33 days. It has been argued that the appellant No. 2 is a married lady, living a happy married life along with her husband and children, the incident had taken place in the year 1993, no useful purpose would be served in sending her to jail at this stage.

On the other hand, supporting the impugned judgment, it has been argued by Shri Vivek Sharma, counsel for the State, that the conviction of the accused/appellants is in'' accordance with law and there is no infirmity in the same.

Heard counsel for the parties and perused the record.

Tahavar Ali (PW1) uncle of Akhtar Bano (since deceased) in his court statement has stated that marriage of his niece Akhtar Bano was solemnized with the accused/appellant No. 1 in the year 1990 and after marriage his brother Munnawar Ali left for Allahabad to his village. He has stated that for one and half year she lived happily with the accused/appellant No. 1 and out of their wedlock she had also delivered a child. He has further stated that in the year 1992, his brother Munnawar Ali (PW6) came to Bhilai and informed him that accused/appellant No. 1 was demanding Rs. 50,000 from him for purchasing a Tempo and he gave Rs. 30,000 to him. He has stated that in the year 1993, accused/appellant No. 1 again demanded for Rs. 20,000 from Munnawar Ali but he could not give the said amount to him as he was not in a position to give the same. He has stated that he was informed by his niece Akhtar Bano (since deceased) that accused/appellant No. 1 along with appellant No. 2 used to abuse and taunt her for not bringing sufficient dowry and he also used to beat her. He has stated that he has doubt in his mind that it is the accused/appellants who have killed the deceased. In cross-examination, there appears to be material contradictions in the statement of this witness. Dilip Kumar (PW2) has prepared the spot map Ex. P4. Sheeba (PW3) sister of Akhtar Bano (since deceased) has stated that at the eve of Bakreed there was some quarrel between the accused/appellant No. 2 and the deceased but she is not aware as to why the quarrel had taken place and the accused/appellant. No. 1 had also beaten her sister Akhtar Ba no. R.N. Singh (PW4) ASI, recorded the FIR (Ex. P6). Dr. Lai Mohammad (PW5) who conducted the postmortem of the deceased vide Ex. P7 has stated that she died by consuming poisonous substance. Munnawar Ali (PW6) father of the deceased has stated that Rs. 50,000 was demanded by the appellant No. 1 for purchasing a tempo and as his financial condition was not good he gave Rs. 30,000 and after about two months, again he demanded for the remaining 20,000. He has stated that when he met the deceased she informed him that as Rs. 20,000 has not been given to the accused/appellant No. 1 they are harassing and beating his daughter. He has also stated that on 10th June he received the information about the death of his daughter and then he felt doubt that his daughter has been killed by the appellant No. 1. In cross-examination, this witness has repeated almost the same version as has been made in the examination-in-chief. R.K. Sharma (PW7) has done the inquest Ex. P2. G.S. Sahu (PW8) the investigating officer has supported the case of prosecution. Subrati (PW9) has not stated anything specific against the accused/appellants.

Harbhajan Singh (SW1), neighbour of the accused/appellant has stated that the deceased used to visit his house frequently. She was not having any grudge against the accused/appellants.

Minute examination of the evidence makes it clear that there is no evidence on record to convict accused/appellant No. 2 u/s 306 IPC, from the evidence it is clear that she only used to taunt the deceased. Taking the entire evidence as it is, accused/appellant No. 2 cannot be convicted for the offence u/s 306 IPC however, considering the allegations of cruelty she is liable to be convicted u/s 498A IPC. Thus the conviction of the accused/appellant No. 2 is altered from 306 IPC to 498A IPC. I find Sufficient force in the argument of Smt. Kochar that the appellant No. 2 is a married lady, is living separately alongwith her family, the incident had taken place in the year 1993, it would be in the interest of justice if the sentence imposed on her is reduced to the period already undergone by her. As the appeal of the appellant No. 1 has not been pressed, his conviction u/s 306 & 498A IPC is maintained. So far as the sentence in relation to appellant No. 2 is concerned, considering the totality of the case, It would be appropriate to reduce her sentence u/s 498A IPC for the period'' already undergone by her however fine amount of Rs. 500 as imposed by the Court below is enhanced to that of Rs. 5.500 which is to be deposited by appellant No. 2 before the trial Court within a period of six months from the date of receipt of copy of the older. If this amount is not deposited within the stipulated period of six months, appellant No. 2 shall undergo the jail sentence of three months.

Appeal thus, partly succeeds.