W0 ' "^^ ^ s ^ y.^-2^ , , Sl^ ^^'rV^<^Cv\^ •*-- ^•^«N»w<N<m«-»<<^*»-^M«wM •^^^-^^^^^.^^....^ XtoD.j ....... ^...^ '^RX)00057990 i ^,.to^i^sl5i^ ^. -1/1-'11""::^_11:_^1 IN THE HIGH COURT ©FmDHYA_PRADESH AT JABALP^IR Griroinal Appeal No. ^5X ©f.l995., ; ^ ">'^J APPELIAN'I' (IN JAIL) ^ Yudhishthir, aged about 24 years, son | of Dayalia Sah^ r/o village Kharega^ | Police Station - Arju^i^ Tahsit BhaRitari^ Bistrict Raipur» VERSUS RESPONDEm? State of Madhya Praelesh throygh the PoliGe Station Arjuni^ Tahsil Dhai^tari^ ©istrict Raipiar. APPEAL UNBER SECTION 374^_COBE OP CRIMIN^L PRQCBDURE^_l973« HI<SH COURT OF CHHATFIS6ARH AT BILASPUR. Single Bench : Hon'ble Mr. Justa'ce Prs'tinker DiwQker CrJmirsQl ApDeal No. 457 of 1995 lAPPELL^NT RESPONDENT yudhi.shthlr, S/Q Dayoiu Sahu y^rsvs State of Madhya Pradesh (now C(5) Shri Parag Kotecha, counse! for the appeilant. Shri AA.P.S. Bhatia, Dy.^ A for the StQte/respond-ent. .CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PRGCEDURE JUD<S6MENT (11.04.2011) This appeal is directed against the impugned Judgment and order" doted 93.1995 passed by AdditionoJ Sessions Judge, Dhamtarj in Sesslons Trial No. 451/1992 conyictina the accused/appejiant for the offence punishabie under Sections 306 of the Indian Pena! Code and sentencing him to undergo riQorous imprisonment for 6 years ond pay fine of Rs.1,000/-, in defauit of poyment of fine to furthsr undergo rigorous imprisGnment for one yeor. 2. Facts of the case. in brief ore that marriaQe of deceased ^lrija Bai was soiemnized with the Gccused/appeilant about six months prior to the date of Incident i.e. 13.10.1992. It is the case of the prosecution that on 13.10.1992 at obout 5.30 p.m. deceased Girija Bai consumed some poisonous substonce In her mGtrimonia! house and died in Christion Hospitd, Dhamtar-i on the some day at about 7,30 p.m. Bosed on merg intimation No. 68/1992, inquest Ex.P-4 was prepored on 14.10.1992.0n 31.10.1992 type-wrltten report (Ex,P-l) was iodged by KhodarQm (PW-2) ~ fother of the deceased ajjeging in it that as h.er daughter was subjected to cruejty by her in iaws, she wos compeiled to end her llfe by consuming polson.. Based on this merg intimation and the wrltten report, F.I.R. (Ex.P-9) was registered on 3.11.1992 under Section 306 of the Indion Pena! Code. After completion of InvestigQtion, choillan WQS filed on 20.11.1992 for the -sald offences, 3. So as to hojd the Gccused/appellant guil.ty, prosecution has examined as mony as 11 witnesses in support of jts case. Statement of the accused/Qppeilant wos also recorded under Seetion 313 of the Code of Criminal Procedure in which he denied the charges ieyelled against him and pleaded h.is innocence ond fatee implication in the case. Apart from this, witnesses namety Padmanloi Sahu (DW-1) and Ishwarja! Sohu (DW-2) have ajso been examined by the defence in support pf its co.se. 4. After hearlng the parties the tria! Court has convicted and sentenced the accused/apDeilant for the offencss as mentioned above. Hence this appeai. 5. Heard counsei for the parties and perused the materia) avdiable onrecord incjuding the Judgj^ent impugned. 6. Counsel for the appellant submits that of course it is a pathetic case where the deceased HQS io-st her life. However, according to him the prosecution has utteriy fd!ed to prove th.e fact that the Qccused/appeijant had ever subjected the deceased to crueity or abetted in any manner which prompted her to take this e-xtreme step to commit suicide. by coh^uming poison. He submits that diegations, made Q9ainst the accused/appeliant and his family members are omnibus in nature and'none of the witnssses have uttered even a single thlng regGrdihg the abetment on the part" of the accused/appeliant which mo.de the deceased to commit suicide. He submits that in addition to thls there is inordinGte de!ay of 17 days in v& @) !od9in9 the F.I.R. which has not been satisfactoriiy proved by the prosecution as is requjred under the proyjsions of law. M regards injury in the !eg of the deceased, counse! for the appeljant submits that there is ample evidence to show that whije being shifted to the hospitai, the deceosed was carried by the accused/appellont on o motor cyc!e ond possjbl!ity of her !egs coming into contact of the sijencer of the same ond receiving burn injury thereon by the same cannot be ignored. He subm'ts that even if the entir®pro-secution case Is taken on its face vaiue, ingredlents of abetment as defined in Section 107 of the Indian Penai Code are completely missing and that being so ths conviction of the accused/appeiiant under Section 306 IPC is bad in iaw. 7. On the other hand, supporting the impugned judgment it has been argued by the State counsei that it is clear from the evidence of Khadaram (PW-2), Saiendee Boi (PW-3) and Jonki Bai (PW-8) that since the inception of the marriage itself the accused/appejjant and his family members hod been subjecting the deceased to eruelty which at one point of time became unbearabie ieaving her with no other optlon but to commit suicide. According to him, in these circumstances convictjon of the accused/appeliant under Section 306 IPC isjust and proper and warrants no interference in this apped. 8. I have heard eounsel for the pwties and perused the materiai available on record inciuding Judgment impugned. 9. Hujasram Sahu (PW-1) - matemoi uncle of the deceased has stoted in his evidenc®that at th®eve-of 7~^/ffwhen the deceased had come to the house of her father, she had informed his wife Pushpa Bai that her in jaws used to make compiaint for giving !ess dowry and the accused/appellant used to beat her for that. He ha.s />•' /• .--^t :^~,- „., y.\ ^".^•••.',~'-- '^^•^ s K :£/ ./y stated thot after receiylng the information obout the death of the deceased, his brother os wei! QS fother of ths; deceased hod first gone to the Hospital and then body of the deceased wcis brought to the house of the accused/appei!ant and then it was cre-mGted. He has furt-her stated that after compietion of the iast rites, they came back to there vijlage. He has further stated that he, his brother and father of the deceosed were aiso present at the time of post mortsm of the body of the deceased. Khadaram (PW-2) - father of the deceased has stated m his evidence that the marriage of the deceased was solemnized with the accused/appeiiont about six months prior to the date of incident. He has stated that after staying for about 15-20 days in the house of the accused/oppeiiant, the deceased retumed to his house and informed him thot the accused/appeiiant was harassing her for demand of dowry. He has further stated that after about 10-12 days, accused/appeilant took the deceased from his house. He has further stated that on the eve of Teej'a - Pora, he agdn brought the deceased to his house and after staying for about 2-3 months, she went back to the house. of the accused/appeijant. He hos further stoted that thereafter again deceased and the accused/appeliant came to his house and after staying for 2-4 days they went back ond, at that time, th.e deceased had informed him that the Qccused/appeilant was harassing her for demand of Rs. 10,000/- after the paddy crop was horve-sted. He hos admitted the fact that after receiving the information about the iliness of the deceased, he had gone to Bathena Hospital where he got the Information regarding the death of the deceased. He has admitted the fact that he attended the funera! ceremony of the deceased along wlth Huiasram Sahu (PW-1) and his brother Mcnharon ond even he was present at the time of post mortem exam.inGtion. He has further admitted th.e •^. ^<i ^•'.^-: 1 :^'l h.,...^^ &^y:^ ^ ^^ fact that whi!e performing funeral of the deceased, her ear rings, nose ring ond necklace were handed over to him and only thereafter, her body was cremated. He has further stated th.at he staysd there for obout half an hour after funeral and then he came back but no report whatsoever was lodged on that day. He has further Gdmjtted the fact that the type-written report (Ex,P-l) wos jodged 17 days ofter the incidence after being prepared by his brother-in-Saw Huiasram. (PW-1) at Dhamtari. He has also admitted the fact that name of the accused/appeljant.has not been shown in the F.I.R. by h.im and he has made atlegation agdnst in-iaws of the deceased. He has further admitted th.e fact that though. he was-informed by his daughter about the demand of dowry but no report whatsoever was iodged by him nor he has made any enqyiry from the famiiy members of the accused/appellont. Saliendee Boi (PW-3) - sister of the deceosed has stated in his evidence that after mcrriage of the deceased when the deceased had come to her parent's house and she dso came there and there the deceased informed her that she wos being subjected to crueity by the accused/appeiiant and, thereafter, at the eve of Tee/aaiso the deceased hod informed her the same fact. In the cross-examination she has admitted the fact that she was residing in o different viKage o.t Deori and muchafter the death of her sister, she had dso consumed poison under frustration because she was suffering from ailment. She has admitted the fact that on the eve of Teejawhen she too had gone t6 her pcrents' house she met the deceosed but at that time the deceased had not informed her cinyt'hing but she had informed about the crueity meted qut to her in her vi!!age when she stayed with her for about one hour. Janki Bal (PW-8) - mother of the deceased has stated that on the eye of Fe^/ffwhen the deceased had come to her house, she had . ^<::. -.-';••. ^:. 'v '^^^ < informed that for bringing less dowry she was being abused ond scoided. However, she has not stated anything as to who used to make the demand from the deceased. There appear to be materia! contradictions in the statement of this wltness from that of her case diory statement and this is apporent from paragraphs 4 and 5 of her cross exat^inatjon. According to Dr. S.P. M'shra (PW-4) who had conducted the postmortem of the deceased aiong with Dr. H.C. ^odheja (PW-6) the deceosed died on account of asphyxia due to suspected poisoning. Tejuram (PW-5) is a witness to the inquest (Ex.P-4). Dr. H.C. ^odheja (PW-6) is the witne-ss who had conducted po-st mortem of the deceased and given his reporj- Ex.P-2. According to him following injuries were pre-sent on the body of the deceased :- "(i) One jacerated wound in the size of 2 c.m. x 1 c.m. x bone deep in the toe of the ieft leg which was bieeding. (ii) One incised wound in the size of c.m. x 1 c.m. x 0.3 m.m. in the toe of the right !eg which WGS bleeding. (iii) Superficid heat burn 3 c.m. obove the injury No. 6 in the size of 3 c.m. x 2 -i c.m." According to this witness the deceased died because of asphyxia due to -suspected poisoning. In paragro.ph 17 of his cross examination, initidjy he has stated that injuries sustained by the deceased could not occur if the patient is shifted to the hospitd on motor cycie in an unconscious condition. According to him, the iacerated wound not be sustained by such person and only the abrasion woutd come. However, he has admitted the fact that if a patient is shifted in such a condition on the motor cycie and jf such person comes in contact with a stone on the road then such injuries are possibie. He has further Gdmitted the fact that burn injuries sustained by the deceased are possibi®if the siiencsr of the motor l1^^ cycie is very hot and if some portion of the body comes in contact with it. R.S. Dhruv (PW-10) js ths witness who has done port of investigotion. Hariom ^upta (PW-11) is-the Investjgating Officer who hos supported the case of the prosecution. PadmGnlo) Sdhu (DW-1) hos stated in his evidence that on the date of jncident accu-sed/QppeSJGnt come to his house ond made a requegt for shifting the deceased to hospjtai. He has stated that the deceased was shifted to the hospitct! on his motorcycje which was driven by him whereas the accused/appejiant WGS the pijjion rider hoiding the deceosed in between. He h.as stated that as whiie being shifted to the hospital the deceosed woss floundering, she sustained injurjes on her tocs ond burn injurjes on her !eg has come in contact with the silencer. 10. AdmJttedJy, the deceased died on 13.10.1992 whereas the written report has been jodaed on 31,10.1992 o.nd this inordinate deloy in lodging this report has not been properiy expiained by the prosecution and none of the witnesses has deposed as to what was the reason for this inordinate dslay. It is aSso an odmitted position that at the time of inque.st ond funera! of the deceojsed, Huiashram Sahu (PW-1) <& Khadaram (PW-2) were present but they have not mads any aijegation in respect of the crueity meted out to the deceased by the accused/appelJQnt. Even in the written report, there is nospecific aiiegation against the Gccused/Gppeiiant but the generai diegotjons have been ievelted agoinst the in-laws of the deceosed. In the court- Huiasram Sahu (PW-1), Khadorom (PW-2), Sailendi Bai (PW- 3) and Janki Boi (PW-8) had made cert-ajn oliegatjons against the Gccused/appeijant but mereiy on the basis of said ailegations, it cannot be sald with certainty that the deceased was subjected to cruejty to such an extent where she was jeft with no other option but '^-.. •^. V^»iW to commit suicide. Thus, the basic ingredients of abetment defined under Section 107 IPC are totoiiy missing in the present case. Though some injuries have been foundon the leg in particuiar the toes of the deceosed but as per the defence version and the statement of the accused/appeilcnt under Section 313 of the Code of the Criminal Procedure, after the incident the deceased was shifted to the Hospitai on a motor cycie ond the hospitaj was about 12-15 kms.away from the piace of incident. Thus, the posslbjlity of the deceQsed sustaining injury while being shifted to the hospital by comin.g in.to the contact of silencer cannot be ruied out and the defence taken by the accused/appeliQnt appears to be a proboble one. 11. After going through the entire materid ovaiiabie on record, this Court is of the considered opinion that as the prosecution has utterly faiied to establish its case by teading cogent and clinching evidence, the benefit of doubt must go to the accused/appelloBit. Accordingiy, the apped is allowed. Impugned Judgment convicting and sentencing the accused/appeiSant is hereby set aside. Appeilant is Qcquitted of the charges ievelled against hjm. The appellant is reported to be on bai!, baii bond furnished by him stdnds discharged. b/- Sd/- Pritinker Diwaker Judge