Ramesh Harijan vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred this appeal against the judgment dated 27.8.1997 passed by the learned Additional Sessions Judge, Burhanpur in S.T. No. 57/1995, whereby the appellant was convicted for the offence punishable u/s 498-A of IPC and sentenced for 3 years'' rigorous imprisonment with fine of Rs. 300/-. In default of payment of fine, simple imprisonment for one month was directed. Prosecution''s case, in short, is that, the deceased Laxmi Bai was admitted in the Nehru hospital, Burhanpur on 13.9.1994, at about 4.40 p.m. because she sustained the burn injuries. Her dying declaration was recorded on 13.9.1994 at about 5.35 p.m., in which she has stated that the appellant was in a habit to assault her and therefore, she committed suicide. Ultimately, on 15.9.1994, the deceased Laxmi Bai expired at about 2.15 a.m. in the morning. A Panchayatnama Lash, Ex. P/5 was prepared and dead body of the deceased was referred for post-mortem. Dr. Raj Dulani (P.W.8) did the post-mortem on the body of the deceased and gave his report, Ex. P/10. He found that the deceased died due to shock caused by the impact of the burn injuries. Thereafter, the parents and relatives of the deceased had stated against the appellant and therefore, after due investigation, a charge-sheet for the offence punishable u/s 306 of IPC was submitted before the JMFC, Burhanpur, who committed the case to the Sessions Court, Khandwa and ultimately, it was transferred to the Additional Sessions Judge, Burhanpur.

The appellant abjured his guilt. He did not take any specific plea in the case but, he has stated that he was falsely implicated in the matter. He kept his wife with comfort. However, no defence evidence was adduced.

The learned Additional Sessions Judge, after considering the prosecution''s evidence, acquitted the appellant from the offence punishable u/s 306 of IPC but, convicted him for the offence punishable u/s 498-A of IPC and sentenced him as mentioned above.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that the parents and relatives of the deceased were examined and they did not say that the deceased ever did any complaint about the misbehaviour of the appellant. She was kept with comfort by the appellant and therefore, the trial Court has erred in convicting the appellant for the offence punishable u/s 498-A of IPC. In the alternate, it is also submitted that the appellant has faced the trial and appeal for the last 17 years and therefore, he may not be sent to the jail again.

On the other hand, the learned Panel Lawyer has submitted that the conviction and sentence passed by the trial Court appears to be correct and no interference can be done in this appeal in want of any basis.

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant can be accepted? And whether the sentence imposed upon the appellant can be reduced?

It is established by the prosecution that the deceased had committed suicide. According to her dying declaration, Ex. P/3 proved by Shri T.R. Verma (P.W.11), the then Executive Magistrate, Burhanpur, in which the deceased had accepted that she poured kerosene upon her and set herself on fire. There is no suggestion given to this witness towards this fact. Dr. Raj Dulani (P.W.8) has also proved the post-mortem report, Ex. P/10, by which it is proved that the deceased died due to burn injuries. Under such circumstances, the deceased had committed suicide. Shri Verma, the then Executive Magistrate has proved the dying declaration of the deceased as Ex. P/3, in which the deceased replied to one question that the appellant assaulted her, on and often and therefore, she committed suicide. She has also accepted that at the time of the incident, she was all alone in the house and her husband went to do his duties. Duty hours of the husband were from 1-2 p.m. in the noon upto 10 p.m. in the night and therefore, at the time of the incident, the appellant was not present at his residence. Itwari (P.W.2), father of the deceased Laxmi Bai and Sheikh Babu, neighbour of the appellant have stated that the appellant was keeping the deceased with comfort and the deceased never made any complaint to her father about any harassment done by the appellant. Itwari (P.W.2) has also admitted that for so many times, the deceased and her husband came to their house and returned to their house back but the deceased never told about any misbehaviour of the appellant. He has stated that an abortion took place with the deceased few months ago and therefore, due to that abortion, his daughter was mentally upset.

At present, looking to the evidence given by Itwari (P.W.2) and Sheikh Babu (P.W.4), it appears that there was no harassment from the side of the appellant to the deceased Laxmi Bai.

Under such circumstances, there is only dying declaration available, which is against the appellant. Now a days, it cannot be said safely that a person, who is at the verge of his death, may not tell a falsehood and therefore, the circumstances, in which the deceased had given her dying declaration are to be considered. It is apparent that the appellant committed suicide and in her dying declaration, she had shown the reason as to why she committed suicide. If the appellant was in a habit to assault the deceased then, she could be provoked to commit suicide, when she would have been assaulted soon before the incident but, according to her own statement, it is apparent that the appellant was not present in the house at the time of the incident but, he went to do his duties. Thereafter, when he came to the spot, he took the deceased to the hospital and got her admitted. Under such circumstances, it is apparent that no assault took place with the deceased soon before the incident then, what was the reason as to why she committed suicide, in absence of her husband. It appears that the statements given by her father, Itwari are correct that the deceased was mentally upset and therefore, she committed suicide, at that time, when there was no reason with her to do so.

Under such circumstances, it is apparent that the deceased had committed suicide at the time when she has no reason to do so and therefore, when she was admitted in the hospital and she was suffering with great pain, she was not in such a mental condition, so that she could know about the allegations made by her. If she was harassed and assaulted by the appellant, on and often, in the past then, she was regularly visiting to her parents'' house and she must have been told about that incidents to her parents but, Itwari (P.W.2) has stated that he was never informed about such incidents. Similarly, if some quarrel takes place in the house of anyone then, neighbours may know about that quarrel. In the present case, Sheikh Babu (P.W.4) did not say about any quarrel between the deceased and the appellant. Under such circumstances, where the deceased did not make any complaint to anyone about the misbehaviour of the appellant then, it appears that behaviour of the appellant was reasonable with the deceased in the past and the allegation which the deceased had stated in her dying declaration, Ex. P/3 was given due to her mental agony or in her disturbed mental condition. Under such circumstances, a reasonable doubt is created that the deceased had given the statement on the basis of factual position or not. Except of that dying declaration, there is no evidence against the appellant, to show that the appellant had done any cruelty with the deceased. Under such circumstances, a benefit of doubt is to be given to the appellant and he could not be convicted for the offence punishable u/s 498-A of the IPC. The trial Court has erred in convicting the appellant for the offence punishable u/s 498-A of IPC.

On the basis of the aforesaid discussion, it is apparent that dying declaration recorded by the Executive Magistrate Shri Verma is not acceptable beyond doubt and therefore, benefit of doubt is to be given to the appellant. He cannot be convicted for the offence punishable u/s 498-A of IPC. Consequently, the appeal filed by the appellant is hereby allowed. Conviction as well as sentence directed by the trial Court for the offence punishable u/s 498-A of IPC is hereby set aside. The appellant is acquitted from the charges of the offence punishable u/s 498-A of IPC. He would be entitled to get the fine amount back from the trial Court, if he has deposited the same.

At present, the appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. A copy of the judgment be sent to the trial Court along with its record for information and compliance.