State of Madhya Pradesh vs Mukesh

S.R. Waghmare, J.—This application moved under Section 378(3) for grant of leave to file appeal against the order of acquittal passed by the Sessions and Special Judge, Jhabua in S.T. No. 36/2013 acquitting the accused respondent for offence under Section 306 in the alternative 302 of the IPC.

Counsel for the applicant State has candidly submitted that the application is barred by 373 days. However, considering the gravity of the offence and the acquittal, Counsel has prayed that the application be allowed.

Brief facts of the case are that on the date of incident i.e. on 9/10/2012 Sunita Bai wife of Mukesh had gone for weeding the corn and consumed some pesticides. She was rushed to Ranapur hospital and thereafter referred her to Dahod hospital where during the treatment she succumbed due to the swallowing of poisonous substance. The report was filed by the concerned police station Kotwali Jhabua. The merg No. 71/12 was registered on 16/10/2012. Investigation was launched. Statements of the witnesses were recorded and it was found that Sunitabai was married to accused Mukesh, who used to beat her and hated that she was dark complexioned. The marriage had occurred two years prior to the incident and immediately after marriage the husband was suspicious about the character of the wife Sunitabai and he used to torture his wife often beating her. As a result of this, she consumed poison and she died at the Urban hospital during the treatment. Thereafter offence was registered by the Police Station against accused Mukesh at Crime No. 617/2012; and, Head Constable Number 115 Kailash had recorded the dying declaration of deceased Sunitabai and on the basis of the same FIR was recorded that her husband had forced her to consume poison because he doubted her moral character and hence offence was registered under Section 302 and 498A of the IPC. However, the offence was thereafter enhanced to 306, 302, and 498A of the IPC. The matter was committed to the Judicial Magistrate, Jhabua and the accused abjured his guilt and stated that he has been falsely implicated in the matter and he examined one witness Maiser in his defence. The Trial Court considering the evidence had acquitted the accused from the offence as stated hereinabove. Hence, the present application by the applicant State for leave to file appeal.

Counsel for the applicant/State has vehemently submitted the fact that merely the accused has put forth that he was not present at the time of the incident and he had gone to Gujarat i.e. Ahmedabad to earn his livelihood was highly unreliable and the Trial Court had also wrongly concluded that the testimony of father of the deceased Pinju P.W.1 was hearsay. So also merely because there was no police record regarding beating given by accused Mukesh; and similarly Counsel submitted that the witnesses of the deceased were naturally her relatives and the testimony of P.W.2 Vermabai, mother of the deceased and P.W.3 Wala have also been disbelieved as hearsay, which is not appropriate under the circumstances. Counsel further submitted that there was plenty of incriminating evidence available on record, which indicate that the accused Mukesh used to beat the wife and doubted her moral character. Even her daughter Durga was born when she was abandoned and left her parental home. Counsel submitted that P.W.3 Wala has categorically stated that while dying Sunitabai told him that her husband was behind her when she was vomiting and he forcibly made her swallow the pesticide. Finally, Counsel submitted the testimony of P.W.7 Dr. Harish Baghel is not considered in proper perspective since he had found a mark on the cheek of the deceased and this indicates that the injuries were 23 days prior to the death and also indicating that the deceased was being treated with cruelty by the husband. There has been certain content of poison also found in the stomach of the deceased. The FSL was not available and it could not be concluded conclusively that death had occurred due the swallowing pesticides. Hence, Counsel prayed that leave be granted and the impugned order be set aside.

On considering the above submissions, we find that there is no merit found in the submissions put forth by the Counsel for the applicant/State. It is evident from the record and scrutiny of the evidence that the accused Mukesh, husband of the deceased was not present at the time of incident and the defence witness D.W.1 Maiser has categorically stated that on the date of the incident the ladies working in the field had shouted that Sunitabai had fainted and he had ordered Raisingh to bring his motorcycle and along with Sunitabai and Bhura Bai had taken the deceased Sunitabai to Ranapur hospital, so also at the time of the incident accused Mukesh had gone to State of Gujarat to earn his livelihood and along with Hirka and 24 persons he had never gone to Sunita''s parental home to fetch her back.

Similarly P.W. 1 Pinju, father of the deceased has categorically stated that he had received Rs.55,000/- from the husband of Sunitabai as "Dapa" money; the custom, whereby the money was paid to the wife''s side by the husband; and then the question of dowry does not arise.

Moreover, this witness has also admitted that on complaint by deceased Sunitabai earlier they never gone to police station to report the cruelty or the beating given by the accused Mukesh. He however, also admitted that there had been a Panchayat whereby the husband and his family members had come to fetch Sunitabai back and the Panchayat had recorded the matter. Thereafter one daughter Durga was born to the couple Mukesh and Sunitabai.

On considering the evidence the parents of the deceased had visited Sunitabai and her child at Ranapur hospital and after 20 days Mukesh with his companion to fetch Sunitabai and her child back. However, the quarrel had started between accused Mukesh and the family members of Sunitabai at the time of wedding of one Vikas Reddy and therefore, a Panchayat has been called because accused Mukesh doubted regarding the moral character of Sunitabai. However, this report is nowhere available on record. The Bheel panchayat had referred the matter stating that the SDOP Smt. Rachna Mukaty Badoriya P.W.4 had admitted in para 15 that such Bheel Panchayat has been held. However, this witness has admitted that such report was not filed anywhere and the fact was not mentioned by the father of the deceased at the time of recording of the FIR.

Similarly the important fact that generally the husband doubted the moral character of the deceased wife is evident, but no person has been named by the husband whom he suspected to have been in relationship with his wife. Besides a child had been born out in the wedlock and the husband had gone to fetch his wife Sunitabai from the parental home. It has come on the record that the in-laws had reported that after the child birth the mental condition of Sunitabai was not good and it appears that she had become mentally imbalanced. Similarly, on considering the testimonies of mother Vermabai P.W.2 and Kailash P.W.5 they are not found to be reliable. There is no evidence recorded in the police station or any evidence produced by the witnesses. The question of dowry would not arise since the Dapa money the custom whereby the money was come to wife side by the husband. The statement of P.W.5 Kailsh Solanki has been disbelieved because he stated that Sunita bai died during the treatment and when she talked there was no doctor around and she did not tell about the incident to the doctor and her husband never forced her to consume the pesticides. This witness Head Constable has not noted the fact that no Tehsildar had recorded the dying declaration. Moreover, this statement of the witness is contrary to the statement of P.W.2 Vermabai, the mother of the deceased. She had categorically stated that Sunitabai was never conscious and she was not in a condition to record the dying declaration as alleged by P.W.5 Kailash Solanki. The doctor has also not permitted to record the dying declaration. Hence, the statement of this witness is not disbelieved. Merely creating suspicion could not be sufficient under the circumstance and it is an established principle of criminal jurisprudence that suspicion however, strong, cannot take placed of proof.

Considering the defence witness D.W.1 Maiser, it is evident that the accused was not present at the time of the incident i.e. when Sunitabai had consumed the poison and in this light even the statement of her mother and father is not reliable. Similarly if the statement of maternal uncle Wala P.W.3 is considered, he has just made a statement that Sunitabai had come to consciousness and told the doctor regarding the incident. However, he had failed to report the fact at the time of filing the FIR that Sunitabai had told him that pesticide had been forced into her throat by her husband. It is found that the statements are all hearsay and therefore, the prosecution has neither been able to prove the cruelty as one of the required ingredients under Section 306 of the IPC; since the child had born at Ranapur hospital and accused husband had taken back the wife and child after 20 days according the custom. Moreover, the child was born out of the wedlock and on mere hearsay it would be crucial to convict the accused person for offence under Section 306 of the IPC or 302 of the IPC.

Consequently, we find that the learned Trial Court had rightly acquitted the accused from the said offence and the impugned judgment is based on proper appreciation of evidence and we do not find any good ground to interfere with the findings arrived at by the trial Court. The evidence in order to sustain conviction must be unshakable and consistent with the hypothesis of the guilt of the accused. The Apex Court has time and again warned that whenever there is a finding of acquittal in favour of the accused, it should not be set aside merely because another view of the matter is possible. We have no hesitation in concurring with the findings recorded by the trial Court. The application is without merit and hence the application for leave to file appeal is hereby dismissed.

And similarly we do not find any merit in the application (I.A. No.143/2015), which is an application for condonation of delay 373 days occasioned in filing this application. Consequently this application for leave to file appeal is also hereby rejected as being barred by limitation.