s f i'-^%'S: •^y 's :^, ^,,-. :^ A '. .-teN W. ..<cc 6' i u'1 .. .cr V l-).>')..ct ••«"f \!^-\'^. S^xw-'"^, \ ,„ '•^•-•-'""'^ ,,.....,. ^acett t,^t •**"" 4 ^a! a.:^A''J m "CF'0000058103 '^^i ®<a^tQ, ,:/, 1 •-' ^<J IN THE HISH COURT OF M&BHIA HiAEESH AS JAB&UPOR CRmiBAL APPEAL 110, |^X)^\ Oy 199!»' >,1. TijayKunar, son of Beaa Chand, aged 38 years, ., ,.,A- .. /" / 2« Sfaila Bai, widow of Beaa Chand, aged $0 jears*. ^ ' Both residsEts of village Pathraguda, Jagdalpur., District. Bas-taT» / . VBBSOS ^ ' • • Tbe State of Badhya Pradesh ...APPSLUmS ..BBSPOBBENT GBnmiAI, APPEA.I, OBBiSB SECTIOB 37ii(2) QFIHB OOIS OF CRIMIBAL EftOGBBUEE /•' K '-» •l.- K HIGH COURTOF CHHATTISGARH ATBH-ASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1504 of 1994 APPELLANTS Vijay Kumar and another VERSUS RESPONDENT State of Madhya Pradesh Shri Prafulla Bharat, counsel forthe appellants. Shri Ravindra Agrawal PL for respondenVState. CRIIVIINAL APPEAL UNDER SECTION 374 (2) OF THE CODEOF CRIMINAL PROCEDURE. JUDG IVI E NT (03.05.2010) This appeal is directed against the judgment and order dated 30.11.1994 passed by Additional Sessions Judge, Jagdalpur, in Sessions Trial No. 22/1989 convicting the accused/appellants for the offences punishable under Sections 306 and 498-A IPC and section 3 of the Dowry Prohibition Act and sentencing each of them to undergo rigorous imprisonment ,for seven years with fine of Rs. 2000 u/s 306, rigorous imprisonment for two years with fineof Rs. 1000 u/s 498-A IPC and rigorous imprisonment for fiveyears with fine of Rs. 15,000 u/s 3 of the Dowry Prohibition Act plus default stipulations. 2. Case of the prosecution in brief is that marriage of the deceased namely Jyoti was solemnized with accused/appellant Vij'ay Kumarin the mdnth of January 1987 and she committed suicide on 6.-8:1988 by setting herself on fire in her matrimonial home. On the basis ofmerg'.intimation dated 6.8.1988, the information was sent to f police statiof'i Jagdalpur vide-Ex. P-9 and based on that FIR Ex. P-3 was registered against the Sccused/appellants on 11.8.1988 for an offence under Section 304-B of the Indian Penal Code. After investigation, challan was filed on 5.12.1988 under sections 498-A, 304-B IPC and sections 3 and 4 of the Dowry Prohibition Act. However, the Qharges were framed against the accused/appellants ynder sections 306, 498-A IPC and sections 3 and 4 of the Dowry < '•^ .-.' • " ' " ^ ProhibitionAct. A ,\ lr" 3. So as to hold the accused/appellants guilty, prosecution has examined 08 witnesses in support of its case. Statements of the accused/appellants were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. " 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. However, co-accused Narendra has been acquitted of the charges levelled against him. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellants submits that even if the entire case of the-prosecution is taken as it is, the offence under section 306 IPC is not made out against the appellants as the basic ingredients of abetment as are enshrined under Section 107 of the Indian Penal Code are missing in this case. As regards conviction under Section 498-A IPC, counsel for the accused/appellants submits that no cruelty was ever meted out to the deceased at the hands of the accused/appellants either for demand of dowry or otherwise as is evident from the statement of the deceased herself vide Ex. P-4 recorded under Section 161 of the Code of Criminal Procedure. He submits that when the deceased was preparing tea in -stove, she came into contact with fire and sustained burn injuries. He submits that t|ie deceased has further stated in her statement recorded/under Section 161 of the Code of Criminal Procedure that tier relations with the faq-iily members were very good. He submits that this statement of t.he deceased was recorded by Aaniruddh Das (PW-4) who has categorically statedin his evidence thatthe deceased gave this statement in the hospital and at that time she was conscious and was talking also. Dr. Ram Prasad Sharma (PW- :.'8) who had admitted the deceased in the hospital has stated that when the deceased was hospitalisedshe was ih a conscious state li'!" f ^ss- -3 '^' lil'l and was talking slowly. AGCording to the counsel for the accused/appellants Nanakram (PW-1) and Mira (PW-2) have made general allegations regarding demand of dowry and except this there is noconcrete evidence available on record so as to convict the accused/appellants as has been done by the Court below. 7. On the other hand counsel for the respondenVState supports thejudgment impugned. 8. Nanak Ram (PW-1) - the brother of the deceased has stated that marriage of his sister (the deceased) was solemnized with accused/appellant Vijay in January 1987 and when he had gone to the in-law's house of his sister, she had informed him that her mother-in-law was complaining to her for bringing less dowry. According to this witness, five months after the marriage, his sister had come back to his house and stayed there for about two months. He has stated that when his sister was going to her matrimonial house, certain articles were given to her. He has further stated that when his sister had come to his house again, she had informed him about the demandof TV being made by her husband. From the statement of this witness it is clear that there are material contradictions and omissions in his Court statement and that of his case diary statement. This witness has admitted that number of things were disclosed to the police but the same were not recorded. This witness thus appears to have tried to make his version an exaggerated one. This witness also admits that no complaint was made by him to the highly placed police officers as they had no hope ofany action from them. Mira (PW-2) - the wife of Nanak Ram (PW- 1) and sistpr-in'-law of the deceased has made almost similar allegatiohs' as made by her husband. Even the statement of this witness is full of material c'ontradictions and omissions. Nanak Ram <PW-1)tias admitted tha't may be his sister might have suffered burn injuries while prepairing tea'arid that he has made the allegation on the basjs of suspicion only. Mira (PW-2) has also stated that she was not gwape as to how the deceased died. Saukat Ali (PW-3) is •-the.witness who got the FIR Ex. P-3 recorded.Aniruddh Das (PW-4) ^,^."^^"? had recorded the statement of the deceased (Ex. P-4 ) under Section 161 of the Code of Criminal Procedure in which she has stated that she sustained injuries while preparing tea. This witness has stated that he had sent Shila Devi, Reva Chand and Vijay Kumar for medical examination vide Ex. P-5 to P-7 respectivety. From the injury report Ex. P-16 it is apparent that accused Vijay Kumar had also sustained burn injuries in an attempt to save his wife. Witson Toppo (PW-6) who had conducted part of the investigation and also recorded the statement of Mira (PW-2) and prepared the inquest report Ex. P-10. Dr. R. Dewangan (PW-7) who had medically examined Vijay Kumar, Basant and Shila has stated that he had noticed three Isurn injuries on the person of Vijay Kumar. Dr. Ram Prasad Sharma (PW-8) is the witness who had got the deceased admitted in the hospital. 9. From the factual discussion if seen in the light of the evidence available on record, what emerges Js that the allegations made against the accused/appellants do not attract the ingredients of abetment as laid down under-Section 107 ofthe Indian Penal Code. To havea ready reference, Section 107 IPC reads as under: Section 107. A person abets the doingofa thing, who - First. - Instigates anyperson to do that 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 places 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 ofthat thing. Explanation 1. - A person who, by willful misrepresentation, 'or by willful concealment of a material fact whiph he is bound to disclose, voluntarily causes or procurps, or attempts to cause or procure, a thing to be done,'is said to instigate the doing ofthat thing. 1 Explsnation 2.- WioeVer, eitherprior to or at the time of the commission af an act, does anything in order to facMtate the commission of that act, and thereby facilitates the commiss'ion thereof, is said to aid the . doing of that act." The statements -of the witnesses thus do not go to show that any of t^e accused/appellants had ever instigated or abetted the deceased V----C i.ia .... / —s~^ in any manner whatsoever which could have compelled her for commission of suicide. This being thesituation, it appears to be difficult for this Court to maintain the conviction of the accused/appellants under Section 306 IPC. It is accordingly set aside. 10. Similarly, the allegations made against the accused/appellants do not constitute even the offence under Section 498-A IPC. Provisions of Section 498-A IPC are given below: "Husband or relative or husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of awoman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine." None of the witnesses has made any specific allegation against any ofthe accused/appellants regarding cruelty being meted out to the deceased at their hands. All the allegations appear to be general and omnibus in nature totally insufficient for maintenance of conviction under Section 498-A IP.C. 11. Thus in view of the aforesaid factual discussion the findings recorded by the Court below convicting and sentencing the accused/appellants as mentioned above do not appear to be well reasoned and therefore, the same have to be set aside. 12. In the result, the appeal is allowed. Impugned judgment is set aside. Appellants are acquitted of the charges levelled against ffiem. They are already on bail. Their bail bonds stand discharged. Fine amount deposited by the appellants be refunded. Sri' Pritinker SiwaJicr Judge