HTQH CGUR’T’ OF CHHAT’TTZ5GARH, 3ILAS?U7R Criminai Angeal No.6 of 2006 V Sana? Kumar' Versus AWELLANT: RESPONDENT: 5mm of Chiha-Hisgar’h ?os+ for pronouncement of‘iudqmenf on 1 M4 Sepfember, 2008 1,,/’—. Sd/- T.P. SHARMA '3 . i \ HIQH CSUR? OF' CHHWTTISQARH. BILA§?UR Criminai Asnwt No‘é of 2G06 APPELLANT: Sana? Kumar,‘ 5/9 5a§ik Ram, aged abouf 26 {Irv JaE'i) years, R/ra V§Hage Br:g’nar=a, RS. Kunéu, Dis-Ff. Biiqspur {C6} {Presenf Disff. Kabivdham} Versus RESPONDENT: S‘m‘re of Chha?fisgqrh, Through fhe Police a‘a‘hhn Kuna‘a, D§s%i‘. Kabirdham (5.5%.) . w Przs§?i$z Mir-s. Ind§ra Tripa’rhi, coumei for *he appaiam. Mr. Rajash Ranjan $inhu, Pane{ Lawyer ”for The Sfa‘fa/raspondan?. {Apgeai under Sec’rian 374 (Z) of We Code cftriminai Prccetiure, 19?3} Singk Bericw. Henibia Mr“. TP. 5hwma, J WDQMENT (Passed on 07/ September! 2008) ThiS appeai is directed aga‘msf The Judgmenf of conviction am order ef sénfence dafed 31—12—2005 gassad’ by {he Addi‘l‘iomi Sessions Judge (Fasf Track Cour‘r), Kabirdham in Sessions Z’riai No.79/2003', whereby & whereunder iear'ned Addi‘riomi Sessions Judge afier %1elding the accused/appeiian? guii‘ty sf ciowr'y ciea’rk snd shaman“: ‘ro com-mi”: suicide! convici‘ed him for commission of offence wiser Secfions 304-8 (Si 306 of a’he I.P.C. and sentenced him fa undergo rigorous imprisorimen‘i for seven year‘s 8; ‘io undergo rigorous imprisonmen? for five years and pay a fine of RsilpOO/z. in def’aui‘t of oaymem' of fine +0 furfher undergo rigorous imprisonmeni for four monfhs! respecfiveiy. e . T’ne impugned §udgmenf is chaiienged on ‘ihe ground ’rha‘r wii-hou? credibie and ciinehing eridence reioiing io demanci of dowry soon before fhe deo‘m of seceosed Mod'hu and in oosence o“? insfigo‘iion or abei‘men‘i fo commi'i suicide, The Addijrionai Sessions Judge has convicted and semenced‘ fhe appeilanf as aiFor-e‘menfioned. i - J w»! . Ighave heard iear-ned counsei for- The par‘hes and perused fhe Impuqned Judqmenf ’ i X i C§ase1ef the prosecu‘l-ion, in brief, is iha‘i Sana? Kumar, fhe appelian'i herein, was i i L i as also fhe mafer-ia! avaiiable‘on record. i hhsbfgmd of Madha (sime deeegsedif The marriage Teak piece an 10* Jurie, 1987. i Cogecused ?rema Bai, moi-her of fhe- appellan‘l‘ has been deciared abSconding. i Nfter marriage Madhu sfqyed only for 18 days In her mafrimonlai house She was i subJe§fed ‘io crue‘i‘iv by The oppeilam‘ The appeiian‘r fold her fhaf she is mad and he ousfed her from his house. Deceased Madhu wen‘l‘ 1'o her paren‘lal house where she 'siayed for 2 % years and affer compromise befween lhe parties, ihe appellan‘l' look her wifh him To his house. The appellam' and his moi-her used to harass & forfure deceased Madhu continuously as a resul'l' of which she poured f l kerOSene ail on her body and se+ herself on fire They look her 1'0 Munqeii * hosprlal and while ‘lakmg her 1‘0 Mungeli fhe appellan‘i' adwsed her thaf she should say ‘lha‘l‘ she received burn InJurIes during 1'he course of cooking food. Dri. A.K. Sonyal (PW—7) in‘l‘imafed fhe Police vide EXP-7, he examined fhe injuries of Madh‘u vide Ex.P—9 and found following burn injuries: - ‘ (A) Whole ches‘i & abdomen including pubic region and perineum: 18% (B) Whole back including hip: _ 18% (C) Whole bo‘lh upper limbs about: 18% (D) Whole bofh lower limbs about: 18% (E) Neck and left side of face: 9% (F) Others about 4% ‘lhe deceased sustained burn injuries up to 85%, smell of kerosene oil was l emanating from her body! she was in restless condition and she was in very poor? . ® , condifion; i fherefore, she was shif‘red fo Disfricf Hospifai, Biiaspur. Her dyirig I #eciamfion was recorded by A. Tirkey, Nayab Tahsiidar Lormi vide \Ex P-lO in - ‘ vJlhuch she fold Thu? she was bemg regularly harassed by her husband & mofher- V uh law and crr fhe flme of Inc1denf,. she was msuH-ed and‘harassed by her mofher‘é- J ! l I t , riz—law fhen she poured kerosene ml on her body and sef herself on fire The 4, .r s x ‘ deceased i died as a resuH‘ of The burn mJurIes sus‘ramed by her Unregis'rered ' » : l a FI R EXP-12 was reglsrered and on The basis of fhe said unregisfered FIR‘ Je‘gisfered F IR was remsfered vide Ex P—ll Affer summoning the wifnesses Vide EXP-14; inquesf on fhe body of Madhu was prepared vide Ex P-15 Her bddy was senf for aufapsy Vide Ex P-13 fa Disfricf Hospi'ral Bilaspur- where a team of V doctors conducfed aufopsy Vide Ex P—16 Cause of dearh was due 1‘0 exfensive burn and shock Roznamcha was recorded Vide Ex P-17C 5 Affer recording fhe s'rafemenfs under Sec'l'ion 161 of fhe CrPC and~a¥fer complefion of invesfigafion charge shee‘r was filed before fhe Judicml Magisfrafe First Ciass Mungeli who in furn commiffed The case To The CourT of SesSIons Judge Bilaspur from where iearned AddiTional Sessions Judge Kabirdham received The case on Transfer for Trial . i i, i’ 6 In order To esTablish The guilT of The appellanT The prosecuTion has examined xas i i _ _ T many as eleven WiTnesses STaTemenT o'F The appellanT was recorded und SecTion 313 of The Cr P C in which he denied The CircumsTances appearing againsT him in The prosecuTion eVidence pleaded innocence and false implicaTion Defence has examined one WiTness namely Devnarayan (DW-l) Ta esTablish ThaT deceased V. Madhu was noT menTally normal _ \ ~_, , V1,_ 7 IT is argued on behalf of The appellanT ThaT deceased Madhu sTayed in her f l maTrimonial house for Two monThs firsTly she sTayed for 18 days and las‘Hy for On The ground of Iabnormah‘fy m her behavnour' she was sfaymg m her par-enfal house even affer' hTr marriage and affer' Inferven‘hon of ofher reiafwes Vlz Prahlad Kurnar- Shukla (PW-4) who execufed an agreemenf ExP- , she came fa fhe house of fhe; ma‘H’ef; of Omprakhsh Agmwal v; 51mg of M P m whlgh rr has been hald by fhe MP High Cour‘l- fhaf absence of any Infenhonal acf or omission whi ‘ 2002 AIR bCW A755 2 2003 (1) M P H T 127 3 Z"07‘ {1) Supreme 2‘ ch domes‘ric expenses is n01- demand for dowry and ili Trea‘l‘menf as a resui‘r of gd'orkesfic cause is nof cruelw in connecfion WHh demand of dowry. ‘ 9. lln larder to establish the guilt of the accused in the crime in the question; the l {présecu‘rion is required f0 e/sfabiish proof of The foiiowing ingredienis of fhz i l, i i i i i i §(ii) Deceased Mcdhu died in aehormai condi‘i‘ion as a resui? of fhe burn injuries i i 1 1.(iii') Deceased Madhu was subjected to crueify soon before her- deofh; I (iv) Deceased Madhu was subjecfed To cruelfy in connecfion wi'i-h demand of V, s dowryi “’V ‘(v) Deceased Madhu has commif‘ied suicide; and (vi) The appeiianf has ins‘rigo‘red or abet‘ied deceased Madhu for commission of suicide or aided for commission of suicide; in ai‘rernafe, fhe appelliani‘ creed-ed fhe circumstances which dragged deceased Madhu fo commit suicide. 10. Inorder f0 connecf the appelianf wifh fhe crime in quesfion, The prosecution has ied ocular and documentary evidence and also recorded the dying deciaration’ of the deceased. offience: - i i i i0) Deceased Madhu was married 1-o ‘rhe appziicnf; or- o‘rherwise wifhin seven years of her marriage; 11. Iri order to appreciate the contentions of learned counsel for the parties, I have ‘ examined the material avaiiable on record. It is not disputed that decedsed Madhu was the iegaliy wedded wife of the appeiiant and she was married with 5the appellant on 10‘“ June, 1987. On 21LZ-1990, she committed suicide bv pouring kerosene oil on her body and she died on 23-24990 as a result of the burn injuries sustained by her. She died within three years of her marriage in abnormal circumstances in the house of the appellant. EXP-10 is the dying declaration recorded by A. Tirkey, Nayab Tahsildar, Lormi. Dr. A.K. Sanyal (PW- 7), who has certified the mental fitness of the deceased in EXP-10, has stated That!" gt The ‘Hme of recording The dying declarafion +he deceased was in conscious ‘ corédifiLm! her sfafemenf was recorded by fhe Nayab Tahsildah, he has signed in i Ex.:§°—‘10]‘ and deceased Madhu has aiso signed in EXP-10. i i i i i i . i sfaiyedga‘l‘ her matrimonial house oniy for 18 days, i'hen she was ousfed by her in- law;s, fhereaffer, again she si-ayed for 2 % monfhs in her mafrimoniai house, her i 12.The pri'osecui'ion has noi‘ exm'nined Nayab Tahsiidar- A. Tirkey. In dying deciiardiion EXP-10, deceased Madhu has sfafed Tha‘f affer her marriage, she person §did noT came To her rescue AfTerwards, They shifTed her To hospiTai and i cooking foods 13. SumiTra Bai (PW-3) is The moTher of The deceased. She has sTaTed in her evidence ThaT her daughTer died as a resuIT of The burn injuries susTained by her, 'a‘f'rer' marriage her daugh‘i'er si'ayed oniy for 18 days in her mairimoniai house, ; when her daughTer came from her moTrimoniai house, she Told her Tha‘T The ; appellanT & her moTher-in-low used To harass her in connecTion wi‘rh demand of dowry‘ The appellan’r used To beaT her wiTh mug & sTooi, he always used To harass her and beaT her. This wiTness has furTher sToTed in her evidence ThaT when The f deceased was aT her house, she Tried her ievei besT To convince The appeii'anT To\ Take back The deceased wiTh him, buT he refused To Take her back. She senT Madhu To The appeiianT's house and afTer some Time she was informed by The ; ‘ KoTwar ThaT Madhu is admiTTed in Mungeii hospiTal, she wenT There and saw her 5 i ‘ i husb§n§ 5i moi‘her-in—iaw used fo iii Trea‘r her, fhey used fa say Thai she is mad andjfher mo‘rher-in-iaw used 1-0 reguiariy for‘iure her. On The daTe of incidenT, he 7 wedT To s answer The-Ice” of naTure, when she come back, she was criTicized end,” 1 insLilTed by her moTher-in-iaw, Then she poured kerosene oii on her body and seT g herseif on fire. BuT even afTer seTTing herseif on fire, The appeiianT or anyoTher ‘ , ' The; app‘eiianT advised her To soy ThaT she received burn injuries whiie she was i t daughfer' in brum- condi'l'ion, Then she asked her daughfer as 1'0 wha‘r Has y erosene ml an her body and They burm her- Her- daughfer also fold her fhaf she K 1 l _ aims ! beafen and +he appellanf fold her no? To show her face fa him again Fmaily I § fthe deceased was shlffed 1’0 Bllaspur hospuai where she died 1‘4 Pmhlad Kumar' Shukla (PW-4) brofher' of The deceased, has eudporfed fhe { ! ‘ ewdenae v of his mother Sumifra Ba! (PW—3). Gaianand (PW-5) has noét supporfed' ' a ' i éhe case of fhe prosecu‘hon Ram Kumor Sharma (PW- fhis case fhe evidence of Sumifra Bai (PW- 6) is a hearsay Ewifness‘; In“ V3), mofher & Prahiad'Kuhmr Shukla ? (PW-4), brofher of ’rhe deceased remain for cohsiderafion. 15 Prahlad Kumar Shukla (PW-4), brofher of fhe deceased has sfafed In ‘hls ‘ evudence fhaf prior fo marriage a !e1'fer (Ex P- \ i t i 2) was given by Vuendra Kumar To him which shows some arrangemenf of bus fair for fhe Barafis sfafed fhaf he has signed on Ex P-3 which is in fhe shape of Ikrarnama and which shows fha‘r deceased Madhu was deserfed by fhe appellanf by saying fhaf she was menfaIIV chalienged He has wriffen in fhis Ex P-3 fhaf his sisfer was not menfaiiy challenaed, despife fhaf if some mcidenf happens fhen he and fhe mafernai reiafives of Madhu wiH be heid responsible Affer fhe execufion of v documenf Ex P—3 The appeilanf fook Madhu Wifh him This Wifness has also sfafed fhaf he gave Rs 10 000/- i ‘ :3? He has dlso . _ along Wifh ofher ornamenfs fo fhe appellant According To his ewdence fhe appellanf dz his mo‘l'her used fa harass 6i forfure Madhu and mofher-in-law of Madhu used fo cri‘l‘iclze her s fur‘lher sfafed in his ewdence ‘l'haf Madhu fold him ‘lhaf on fhe fafeful day morning when she came from pond she was crificized dl beafen by the appellanf and The appellanf fold her fhal‘ if she is alive fill his coming back fhen he would for‘lure her more same was infolerable fo her and she poured kerosene oil on her V This Wifness has \ bqdy and seT herself on fir-e. On fhe advice of The appeiianf, fhe deceased has I § sfnfed' Tha‘r she was burn bv stove accident 16. Ex‘P-IO is fhe dying deciara‘tion of fine deceased recorded by Nayab Tahsiidar' A. Tirlkey on The cer'rifica‘re of fifness given by Dr. A.K. Sanyai (PW-7). The: 6 prdsecufion has no‘l' examined Nayab Tahsildar' A. Tirkey who has recorded fhe dyiing declaraTion Ex P 10 Dr A K Sanyal (PW-7) has sTaTed in his ewdence ThaT fhe dying deciarahon was recorded by Nayab Tahsiidar A Tirkey and a‘l' fhe 1'Ime kd§ recording fhe dying deciara‘hon deceased Madhu was 'Frl' fo depose fhe same 17 In fhe absence of exarmna‘hon of Nayab Tahslldar A Tirkey, who has recorded grhe dying declarahon (Ex P-IO) no relevance can be placed upon EXP-10 fhe I r e 'alleged dying declarafion Even ofherWIse Ex P—lO reveals Thai fhe deceased was i beafen by her husband one day before The inciden‘l- and Jus‘l' before The inciden‘i l tidy i shetwas cri‘hcized by her mofher in law who is absconding 18 Prahlad Kumar Shukla (PW-4) has sfa'l-ed in his eVIdence Tha'l- he has given Rs 10 OOO/— along Wiih ofher ornamen‘l‘s To The appellanf buT same has noT beeln wriTTen in his sTaTemenT recorded before The Police under SecTion 161 of The CrPC Defence has cross-examined Prahlad Kumar Shukla (PW-4) aT lenqTh which he has admiTTed in para 22 ThaT afTer marriage Madhu sTayed in her i law‘s house only for 18 days, ThereafTer, she sTarTed living in her maTernal hous for Two years and afTer execuTion of The alleged agreemenT EXP-3, he has senT his sister To The appellant's house. He has specificaliy denied That his sisTer wais , mentally chalienged. He has also denied ThaT in his house, his sisTer was undef- TreaTmenT for The disease of insaniTy. SumiTra Bai (PW-3), moTher of The deceased, has also sTaTed same Thing in her examinaTion and cross-examinaTion‘ « i r x :_. ~.._._ M a“- m-— wc x i i The appellanT has noT sTaTed anyThing in his sTaTemenT recorded under SecTiorl i 313 of 'l-he Cr P C fhaf Madhu was Insane or menfaily challenged or suffering from i anv menfal dzsease On the ofher hand he has sfafed fhaf he fried To fake her back from his m laws house but she refused 1'0 come wrrh hum However he has i adduced defence ewdence of Devnarayap (DW~1) who has sfm'ed In his ewdence fhqf fhe behawour of Madhu was nof normal and she was menfally challenged iThe appellan‘l has nol' adduced any ewdence ‘l'o lhe effecl' fhal- affer his marriage Qhe has prowded any freafmeni fo his Wife Madhu for insanify or menfal disorder hr faken any recourse fa resolve fhe maffer wrlh fhe help of his communily Even i g e if Madhu was menl-allv challenged or insane 'rhen why he again Took her Wi‘lh him after fwo years of his marriage l 3 l l i i i l ' 19. reSIding éevnarwan He (DW-l) has sfafed is residen‘l' in his ewdence of Village fhaf Baghara affer marriage where ‘l'he when appellanf Madhu came is also 1'0 fhe house of Sana? Kumar she used To fake round of The fank and used 1‘0 apply dirfy soil over her head Thereaffer second ‘hme when she again came fo The house of The appellanT she used To wash some cloTh repeaTedly, even she used To brush in evening Times and she used To go To The pond. This wiTness is an agricuiTurisT. His evidence reveals ThaT he is in The habiT of waTching The persons of The viciniTy. He has admiTTed ThaT Madhu used To go To woman GhaT, There was separaTe spoT for baThing of maleand female. IT appears from his evidence; ThaT he has noT seen anyThing, buT he has Tried To supporT The defence especially [ ‘ i wnen The defence has noT suggesTed This Thing To The moTher or broTher of The deceased and even The accused himself has noT sTaTed anyThing in his sTaTemenT; under SecTion 313 of The Cr.P.C. 20. A person of menTally challenged or insaniTy or menTal disorder requires sympaThy' _V and prOper TreaTmenT, buT ins'l'ead of Taking such care, The evidence in This case reveals ThaT The appellanT has deserved his wife Madhu. IniTiaIly, JusT afTer ; |u , marriage. The deceased was wiTh The appellanT for 18 days and ThereafTer! ‘; sgcondly she was with The appellant fo'r- abou1' 1 a mon+hs, when she commiffed sL’ucud'e,‘ buf fhere is homing to show fha? fhe'appellanf has provided any Tr-Eeafmenf for her- menml disorder or- faken any precauflon In fhe absence of any subsfmfial ma‘reriai r‘elafing fa her insani‘ry or menfal disorder, i1‘ is difficulf I‘ € \ 5 \ 1'0; hold fhaf ‘rhe deceased was insane or' suffering from some menial disorder. i Deceased Madhu died as a resui‘i'of burn injuries susfained by her in fhe hoLIse of ghe appelian‘i' and fhe appeiianf has no? offered any expiano‘rion tinder whai' On fhe ofher hand fhe E app§llan+ has fried io fake defence fhaf Madhu was Insane or menfolly challenqed j Mafher or brofher of fhe deceased has nof Iodaed F I R before The deafh of The deceased. :1 circumsfances fhe deceased susfained burn injuries e ZI. In; case of domesfic violence or harassmenf, normaiiy fhe effecfed oersoans‘iige. 3daiLIghfer-in-law does nof reporf or inform anyone about The hardssmenT5 or TorTuous aTTiTude of her husband or in-Iow's To oTher persons buT as and when :she geTs The opporTuniTy, she informs abouT iT To her parenTs. The porenTs of jThe bride normally do no? reacT im’mediafely buT waiT for an opporTune Time, in éThe hope of amicable seTTlemenT befween The parTies and To avoid furTher complicaT-ions which may arise in fuTure. x BuT when The maH-er becomes inToleroble Then The daughfer-in-Iaw or'The effecfed lody discloses The TorTubus affifude of her husband and in—low’s, To The police, neighbour and oTher persons reiofed To her To geT The dispufe resolved wiTh Their inTervenTion. 22; Deceased-Madhuwos deserTed by The appellanT jusT offer her marriage for more Than Two years and when The appellanT Took The deceased back wiTh him/lshe commiTTed suicide wiThin 1 vi— monThs. SumiTra Bai (PW-3) 6: Prahlad Kumar Shukla: (PW-4) have caTegorically sToTed ThaT‘ The appellonT used To harass The deceased ‘ i 11 and Madhu has fold fhem fha‘l‘ 111g harassmenf become infoierabie, fherefore, she comml‘Hed suICIde The evidence addubed by *he prosecufion is sufficienf 1‘0 - ‘ dr-awl inference fhaf fhe éppeiianf by his physical and menfal aéf dragged Madhu :fo c‘ammi‘r suicide and as a resuh‘ of his regular misbehaviour she c‘ommii‘fed i uICide By his ac‘r The appellan‘l‘ has mshgafed fhe commission of suicide by fhe i t r i i i eceased : ‘ i 1 f i A§ex Cour‘i has held fhaf fhe sUIcide was nof direcf resuif of quarrel whereas in l The insi‘anf case ‘rhe smcide was direc‘i resulf of harassmen'i‘ The case of Scruu i is (supra) is disfinguishable on fac‘is To fha'l- of fhe case in hand n_.,im,v,u' .mm w—, , 23 In fhe case of Sargu (supra) fhe accused has used The words go and die and ‘H'ie 24 Affer appreciafinq fhe eVIdence available on record learned frial Court has conVIcfed The appelianf for offence punishable under Secfions 304-8 6i 306 of The IPC and senTenced him in The aforesaid manner In The’insTanT cas! no specific incidence of demand of dowry has been proved by The prosecuTion. In The absence of any specrfic demand of dowry, only on The basis of fake and general alIegaTions offence under SecTion 304 B of The IP C is noT susTainable buT The ev1dence adduced by The prosecuTion is sufficienT To warranT convicTiorl under SecTion 306 of The I.P.C. i i 25.CanseguenTly, The appeal is parTly allowed. ConvicTion 6: senTence imposed uponi The appellanT under SecTion 304-3 of The I.P.C. are seT aide and he is acauiTTedgl of The said charge. However, convicTion imposed upon The appellanf under; SecTion 306 of The I.P.C. is mainTained As regards Therqu’esfion of senTence l Taking inTo conSIderaTion The facTs and circumsTances of The case in which The, deceased commiTTed suICide and The role of anoTher co—accused The appellanT deserves sympaThy. Therefore. insTead of R.I. for five ears and fine o e y f? p w “Egg ‘y ‘“ ‘_—_—— gwwmkw A 12 ‘ Rs.1 ,OOO/-, fhe appeilanf is senfenced fa R1. for Three year‘s and fine of ‘ \ Rls.1,000/-, in defauH' of paymeni' of fine To fur-finer undergo R.I. for 'Four mon‘ihs. Tre appeiian'r was in cus'fody from 22-2-1990 To 14-6-1990 and from 31-12—2005 under Secfion 428 of fhe Cr.P.C. i i i I i i i i i i { r ’//// \ i ‘ i \ I i i