\.-. IBT THE HIGH C00RT OF E^Dm:^. PRM)BSH AT JA^LPUR «E(RXKSaE2S2; |||||||||ilUillllF Ca. ^PP^L KO.f^^/95 CF0000058257 ^ Appellaa'i $" ooverclhaa-soa ©f^hobfeiaatfo Bis^ aged'23 yrsy ^.cesicleat-of village igirta poliee statioosipa&r •Fahsil aad i^striet Bilaspa? M»P» /1:^ v/s /• Resposiaeats $ stat©o€ M^P< Ooa'vletioa ^ft^ff,,,^, Seat@iic@ ?^^,.J^^ lWt:M*ll"f a/s 498 A IPC R<I« £©rthree yrs ttt^^'' ^^yesia ^^^^' CRIMIH < APPEai, ^EiDER SECTIOgf 374 <2) CR. P<C<. ;^1 ^lmlnd Aoo^t ~«24S of 1995 Goverdhaa Vs. State ofChhattisgarh ^.^ ry JUD^SBIOI Postfor 30.4.2007 Sd/- Sunil Kumar Sinha Judge h^^. HIGH COURT OP CHHATTISGARH. BILA8PUR Qriminal Apoeal No.245 of 1995 Appellaat: Respondent: Goveixlhan, s/o ofShobnafh Biad, aged 23 years, reaident of ViUage Nirtii PoUce station Sipat, Tahsil and Distt. Bilspur, M.P. (now C.G) Vs. Stete of Madhya Pradesh (now Chhattisgarh) Aooearaace: Shri Dhannesh Shrivastava, coiinsel for the appeUant. Shri U.K.S. Chandel, Panel Lawyer, for the State. JUDGMBNT (30.4.2007) Suail Kumar SInha. J. (1) This appeal is du^ected against fhe judgment of conviction aiid order of sentence dated 30.1.1995 passed by the V Addl. Sessions Judge, Bflaspur, in Sessions Trial No.437/ 1992 whereby the said Coiirt convicted the appeUaat u/s 498-A IPC aad sentenced him to undergo R.I. for 3 years. (2) The brief facts are fhat fhe accused persons (4 in niimbei) were charged under sections 304-B, 306 and 498-A I.P.C. The appeUant is tfae husbaad ofthe deceased namety Gajra Bai, The ofher co-accused persons were brofher-ia-law (Jeih^ who died diinng the pendency of the tdal), sister-ia-law (Jethani) and niece of fhe hzisband of the deceased. The case of the prosecution was that deceased Gajiu Bai^who was resident of viUage Budi^was married to fhe appeHant 3-4 years prior to fhe ] ^^€ate of iacident, which took place on 20.5.1992. On the said i date, while residing ia her ia-laws place ia vitlage Nirtu, the r- L- deceased consumed poison resultmg into her deafh. Initially, fhe accused persons had not reported the miatter to fhe Police but when the intervention was made by viUagers, a merg intimation was lodged by Parasram (accused no*2) in poUce station on 26.9.1992 which was reduced into writing as Ex. P.3. The iaquest on the dead body was preparcd on the same day under Ex. P.8 aad the body was sent for postmortem. Certain clothes etc., offhe deceased were also seized under Ex. P.9. The postmortem report, Ex. P.2, was received and ultimatety after completion ofthe mvestigation, a charge sheet u/s 306 and 304- B IPC was filed agamst the above 4 persons. The Sessions Jzidge framed charges ii/ss 498-A, 306, in altemative 304-B IPC, to which fhe accused persons denied. After conclusion of the trial, aU other accused persons were acquitted, However the appeHaat was convicted u/s 498-A only and sentenced to iindei^o R.I. for 3 years, as aforcmentioned. It is agamst fhis judgnient of conviction and order of sentence, this appeUaat has ffled this appeal. (3) The conviction of the appeUant is based upon testimony ofP.W.5 Laxmin Bai, inofher offhe deceased and P.W.8 Birspati Bai, aunt of fhe deceased. The Sessions Court has recorded a findmg that when the deceased had visited to her parents place on the occasion of Teeja festival, she had stated to her parents fhat once she was beaten by fhe appeHaat, due to which, she was unable to move for 7 days. The motfaer asked her as to why she was beaten, on which, she told fhat her husband was having iUicit relations with her sister-in-lazv (Jethani) naiaety Dwarika Bai (acczised no.3), fhercforc, she was beaten by hica. ^-(^ '-3>- Aliaost similar evidence was given by Birspati (P.W.8), fherefore1 the appeflant was gixilty ofaa offence ii/s 498-A IPC. (4) Learaed counsel for the appeUant argued that fhere is no cogent and reliable evidence on record to hold fhe appeUant guUty ofan oflFence punishable u/s 498-A. His submission was fhat when fhe Sessions Court has acquitted fhe appellant u/ss 304-B aiid 306 IPC, consequenffy he would have been acquitted ofthis section also. He also ai^ued that ia fact, such statements^ allegedly given by the deceased to these two witnesses, were not adinissible ia evidence u/s 32 of the Evidence Act and they woiild be classified as Hearsay evidence, barring which, nothmg is fhere on record, therefore, fhe conviction of fhe appenaiit be set aside. (5) On the ofher hand, learaed State Counsel argued fhat fhe statenient inade by the deceased to her miofher and aunt were admissible in evidence and fhe conviction based u{K>n such evidence caanot be assailed. (6) I have heard leamed coiinsel for fhe parties at length and have also perused fhe records ofthe Sessions Case, (7) P.W.5 Laxmia Bai (mofher) has stated fhat when her daughter casie to visit her house on the occasion of Teeja festival, she had stated her that she was beaten by fhe appellaat due to which, she was unable to niove for 7 days. On this, when she was asked as to why she was beaten she stated that her husband had illicit rclations with her Jetfzani namely I>wariki Bai (accused no.3), due to which, she was beaten by hmi. This witness has fiirther deposed vide Para 3 that for about a year or two, the girl stayed iii her house and fhereafter, as deposed vMe -b Paras 5 & 6, when fhe mother-m-law came to her house and agaiii took the girl wifh her^fhen after Uviag for about two yeara m the ia-laws place, £he deceased had died. P.W.8, who is the aunt of fhe deceased, has also deposed almost similarly saying that fhe deceased was treated with cruelty by the husband on account of his illicit relations wifh the sister-ia-law DwadQki Bai. It is on fhese two sets of evidence, the appeflant has been convicted, (8} As rcgards £hefirst argument that when the appenant and otiier co-accused persons were acquitted u/ss 306 & 304-B IPC, then fhey aU should have been acquitted u/s 498-A IPC also, has no force, The law is weU settted fhat section 306, 304-B & 498-A IPC are iadependent of each other aad acquittal of one does not lead to acquittal on fhe ofher, but in onler to justify a couviction u/s 498-A, fhere miist be available on record some material and cogent evidence. Please see 2002 (2f A N J (S»Cf 622 - Qirdhetr Shankar Tawcide -Vs- StaSx of MaharashtreL Therefore, the first argument raised by learaed counsel for fhe appeUant caanot be szistamed. (9) So fai' as the second argunient is conceraed, admittedly the appeUaat aiid ofher accused persons were tried for fhe offence punishable u/ss 304-B, 306 & 498-A ofI.P.C. aad the evidence of mofher (P.W.5) and aunt (P.W.8) were recorded duiing fhe com-se of trial, on such oflfence. Their such evidence were taken on record witli fhe aid of section 32 of fhe Indiaa Evidence Act at a tinie when the appeUaat was being tried for the oflTence u/s 304-B & 306 IPC aad such statements were admissible mider Clause I of the said section as it related to fhe ^- -^ cause of deafh of fhe deceased and fhe circuinstaace of the traasaction which resulted ia her death. Such statenients were not admissible in evidence for the offence punishable u/s 498-A IPC aad has to be termed as beiag only a Hearaay evidence. Section 32 is aa exception to fhe Hearaay Rule and it deals wifh fhe statemients or declarations by a person, snice dead, relating to the cause of his or her deafh or fhe circumstances leading to such death* If a statenient, which otherwise is covered by fhe Hearsay Rule, does not faH wiftun the explanations of section 32 of the Evidence Act then ffae sacie caanot be relied iipon for findmg ftie giult of accused u/s 498-A. I am fortified ia my view^s by tfae judgmient of the Apex Coiirt ia fhe matter of Gcmcuuxth Peiftnedk -vs- S^site of Ortssa 2002 Cr^R fSC) 175. (l0| In the present case, except the aforesaid evidence of niother aad aunt of the deceased, regardiag treating fhe deceased with cruelty by husband aad also regardiag his iBicit relations wifh acciised no.3, fhere is no ofher legal evidence on record to connect fhe appellant wifh coxnmission of offence punishable u/s 498-A. When fhe appellant and ofher accused persons were acqiiitted of the charges franied u/s 304-B aad 306 IPC, on the principles rcferred to above, fhis evidence of raofher (RW.5) aad aunt (RW.8) would be categorized as Hearsay evidence, for the piirpose of section 498-A and the conviction of fhe appellaat based tipon such evidence being not legal evidence cannot be siistained in fhe eye of law. More over^ afiter teUing like fhis, fhe deceased resided for two years m her parents place and thereafter when she went to her ia-laws place -^ ia fhe second roiind fhen after residing therc for about two years sxiore, she coniniitted suicide. There appears to be absolutefy no legal evidence against fhe appellant in this niatter and tfae conviction based upon onty such evidence of mother and aunt has to be set aside, (11) The appeal is accordingly allowed. The conviction and sentence awarded u/s 498-A are set aside. The appellant is acquitted of fhe charges u/s 498-A also. His bail bouds be discharged. Sd/- Sunil Kumar Sinha Judge /Rao/