”///£Mlggzzm/~ wwiw IN THE HIEH CDURT F JUDICATURE AT JABALPUR Criminal Aggeal Nu. %\Q nf 1Q9é ‘ APPELLANT n Hemahankar .3 f 5cm m“ Eiunha'F§ Ram}; -_—-—-——/"’ Peaiderut of Tikr‘i ., DISTRICT BURB“ ‘h §¢J\\ “K VERSUS t § J/Ehe n1gTRIET Palice Duaan Statian Arjmni, 1‘ REBPtBNEENT ' State mf Madhya Prazieaah thraugh APPEAL UNDER BEETIDN 3?4 CR . P . C . ,,\{:y* mt a Eonvictimn E a n t a n a E a)\\)‘ Undar‘ 4?a a Secticm" IPC " 3 yeary'Rui‘. with fine cm“ Fm. $§0axwg¥in default & manthg R1 _\g Unde} gentinn ' 3&5 IPC ‘w 3 yeara Rum. wikh fine gf Ra“ €50G$, in default R. 1. fur 1 yeari‘, " Single Bench ': Han’ble shri Manindra Mohan shrivastava, J. \ \ ‘5 Crim§nal Appeal No.816 of 1996 APPELLANT Hemshankar REQPONDENT- ~ State of Madhva Pmdesh 1’ [Criminal Appeal under Section 374 of the CLEC} Appearance. . . § Shn P R Patankar, counsel for the appellant “Sim Arvmd Shnkla, Panel Lawyer for the State 0. HIGH COURT OF GEE-IATTISGARH : BTLASPUR Versus JUDGMENT ‘ (Deliveied on 3M iOCbber, 2010) 1. This appeal is directed against the judgment of convicu’on and omer of sentence dated 20¢ April, 1996 passed by learned 4th Additional ’ Sessions Judge, Durg in S.T. No.597/93, whexeby the appellant has s been held guilty of commission of oEence under Sections 498— A &. 306 of the IPG and sentenced to undergo R;I. for 3 years under Section 498 -—A of the IPC with nne of Rs.2,000/- and in default of payment of nne, additional R.I. for 6 months; R.l. for 5 yeaxsunder Section 306 of the IPC with dne of Rs.5,000/- and in default of a payment of mic, additional R.I. for 1 year. Case of the prosecution, in brief, is that the deceased Bisasri Bai was man—ied to appellant in the month of April, 1984. After the r~ marriage, the relations between the appellant and deceased were not ‘ cordial and the appellant after some time stmted subjecting the deceased to mental and physicalharassment and also used to’beat her nequently. When the deceased was pregnant, shewas left in her parental house agmnst her wishes. ‘Thereafher, the deceased was sent to her matrimonial house and then the appellant again shunted ‘ ' 2 NV her out of the house and harassment continued. When the daecased‘ Etd application for award of maintenance, a compromise was arhved at in the year 1991. But after some u'mez the hatassment ‘E agam sfarted and finally deceased — Bisari Bel committed suici4de byK v consuming poison (insecu'cide). 1’ 1 Deceased — Bisari Bai died on 4.6.1992 and a mag to this edect j I \ was mg‘stered by the S.H.O.' P.S. Atjunda Vide merg inl' ation A No 5/92 (Ex P- 13) FIR was reg1stered m Ex P—6 Inquest over the the ‘ deceased was pmpared v1de Ex P-5 at the spot by the then Nayab 'Tahsddar & Execuhve Maglstrate — Narayan Smgh Thakur (P W 8§ Dead body of the deceased was sent for posunortem. Vxde Ex.P-11. “y Dr. Rakesh Chaba (P.W.3) conducted posmlortem'over the body of ‘ the deceased and gave oyim'on that the cause of death was poisoning. ’He advised for report hem the Fomnsic Science y Laboxatoty (F.S.L.). in the F.S.L., report Ex.P- 1'7, in the exhact ofthe organs of the deceased, baygon (insecticide) was found. 3. After usual investigation, charge sheet was'med in the Court of i Judicial Magistxate First Class, Dmg, alleging commissmn of odencc 3 under Sections 498-A 65 306 of the IPC who, in tum committed the e case to the learned Sessions Judge, Durg, denigwheie lea-med 4th Additional Sessions Judge, Durg, 'Ieceived the same §)r trial Charges were hauled by the tnai Court against the appellant alleging commiss1on of odence The tnal Court examined the appellant under A , Section 313 of the Cr.P.C. regarding ev1dence and circumstances appearing against thex' appellant and the appellant denied circumstances appearing against him and stated that he has been falsely implicated. @ . Assailing the cox-redness and validity of judgment of convicubn and ox§ier of scntence, learned couns_cl for the appellant arguad that the pro$secutiqn has failed tQ pmve beyond reasonable doubt the W agiegation mgaxfding hamssment and cruelty by tha appellant lanyards his deceased wife Bisari Bai. Lcarned counsel for the ap§penant submitted that the allegation of cruelty is not suppomd by _ aniy independent witnesses Ianid letter, Ex.P-l, does not comm Iany 7V allegahbn against the appellant. :It is also submitted that the mother ’7 of1tge deceased, who is alleged to have been the last person in the family who visited and met the deceased, has not been examined and there is no explanation for her non-examination. Fu‘r‘mer submission is that them is no pioof'of the fact that the appellant’s abetment resulted in commission of suicide by‘ the deceased. 'lt is also agued‘ that hum the testimony ‘of‘ the pmsecun’on witnesses, it‘ is j‘ established that whatever allegations of harassment or cruelty have ‘ been found pmved,‘they were much yrior to the date of incidentland there is no evidence that the deceased was subjected to any“ harassment or cruelty immediately before alleged commission of l suicide and therefore, no case for commission of oEence under Section 306 of IPC is made out. Learned counsel for the appellant in support of his submissions,- placed‘reliance on the decision of the Supreme Court 'm the cases of ’ Mahendra sing & another MM Vs. mm of M.?.1,“ ganju alias 8min! gigs; M ’Vs.‘ St tetof ht?! 65 Mohd. l-loshan ' ‘ and another vs. at te ogAJ}; Q d . 0n the other hand, learned counsel for the $tate-respondcnt supporting the impugied‘ judgment: of conviction" and order of V w 1 1995 Suppis) sec 731 ' 2 {2002) s scc 371 3 AIR 2002 SC 3270 sentance, argued that the ‘wsn'mony of the pmsecution witnesses particularly, father of the deceased clearly proves that ahr her marnage, the deceased was repeatedly subjected to cruel tmatment l by the appellant and them 1s also ev1dence that soon befom smmde was committed, the deceased was subjected to cruelty. It is also argued that continuous haxassmcnt and cruelty amounted to " ingtigau'on to commit suicide and themfore the conviction of the apbellant is justihed in law. . I ha‘ve‘ considered the rival submissions made by learned counsel for ’ the parties and perused the Ieconis. . Upon teceipt of information regarding death of Bisari Bai. from the A appellant, merg in 'Ex.P-13 was recorded and inquest over the body : of the deceased was plepared vide Ex.P—5. The FIR was lodged-by a Vishalmm (RW. 1), father of the deceased. Dr. Rakesh Chaba (P.W.3) ‘ examined the dead body of the deceased and carried out postmortem ‘ and has proved his report Ex.P—11. He hasstated that death was caused due to poisoning; Invesh'gating 0&cer‘BJ-J. Paul (P.W.7) has deposed that the ESL: report, Ex.P-17 was received. The said‘report j 4 proves that baygon (insecticide) was found in the organs and the " a ‘ vomits of the deceased. It is thus, proved that the ggeceased died due to poising. Seizure of soil vide seizure memo of Ex’Pe7 hom me courtyard‘of the house offhe appellant has been proved by Brijlal (P.W.2) and seizure of baygon powder (insecticide) hum the box kept m the house of the appellant has also been proved by BnJlal (P W 2) ' ' ;The samples of both these articles sent for chemical examinauon to : FSL, were found containing Insecticide. Thus, the prosecuu'on ' proved that the deceased committed suicide by consuming poison. ; , i ~ .8. Vishalmm (RW. 1), father of the deceased, has deposed that deceased Biisasri Bai was married to the appellant 6- 7 yeam before and a son‘ a11§d a daughter were born out of the wedlock. His s1atement was ‘ v ‘Q m \ borded on 8.2.1995, 'Ineam'ng thereby that the méniage was solemnized sometime ‘ in the year 1988—89. He has deposed that the deceased was tortured and the appellant used'to beat her and . to‘rture by saying that he doesn’t like her and twice deceased had come to her parental house because of such torture. He has further deggsed that when deceased‘Bisari Bai became pregnant for the fust time, she was leh at the parental house when nobody was at home ~ and deceased stated that the appellant has shunmd her out as he ‘ doesn’t like her. When the appellant came to deceased after the birth of child, he refused to take the deceased 'back with him and after about 5-6 months, deceased was again sent to the her matrimonial house.- It is further deposed that aher one and half year, the appellant ‘ again stat ted beating his daughter. So she came back to her'paxental ’ ‘ house and then she was again sent to her matrimonial house by him and'other persons namely Tanguram, Puhupsingh, Pachkaud and V Lakhanlal. He has deposed that a letter; Ex.Pi 1, was written by the t deceased, wherein she has stated that the >z‘iiarassment and maltreamaent was meted out to her. It is further deposed mat thereafter the deceased again came back to her parental house; an application was filed in the Court for maintenance. Later on, the appellant and the‘deceasedzcompromised and deceased started living with the appellant, but after one year, his daughter again sent letter. : Then he sent lus Wife to the house of the appellant but the appellant did not send deceased Blsari Ba1 alon With her mother g ~ ‘ In his cross-examinau'on, he has stated that about one and half ménth before the death his, Wife had gone to Tikari (matimom’al house of deceasad) In the cross-exammation, he has stated that he was Informed by Jagatram that the appellant beats deceased Bxsan Bad; . Pdhup Singh (P.W.{l) deposes that Vishalmm told him 'that the, defceased has come back h‘om‘her matrimonial house after quaxrel‘ and she was again sent back to her matrimonialahouse. ‘u‘ . Kanaklata (P.W.5) has also deposed that deceased told her that’hm" husband-appellant beats her and doesn’t like heuShe has further ’ deposed that when the deceased was carrying 2-3 month pregaaneya ‘ she was beaten by the appellant and was left‘tn her-pmental house. Atter 2—3 months, the appellant came to deceased and took her to matn'mom'al house on the‘ assumce that he would not repeat 1 harassment and tortmm But, after 4'monthsg-the deoeased was ’ ‘ again beaten? a report of which was lodged in the pohce station and there'aiter deceased came back to her palmtal house. She has _ further deposed that in pmceed‘ings‘vfor awaxd of tnaintenanee,‘ I parties arrived at compromise and thereafter, a soan was born and alter some time, the appellant again started beat$g and torturing the deceased. She has also stated that the mother of the deceased‘ Santi Bai had gone to bring her daughter backr hut she-was not sent and. after about 1—2 month, she learnt about the death of Bisari Bai. In her cmss—eicamin’a‘tion, she has stated that she has been depositing on the basis of what was told by deceaSed Bisari Bai and her parents. v 11. Tanguram (P,W.6) has also deposed that because of cruel matment 4 and physical torture, the deceased came back to her parental hnuse' ‘ aild after some time, on the assurance of not repcming theroEence, ‘Q v deceased was taken her matrimonial house by him alonglwith Vishal ' and other persons. l 12. Fr‘om the testimony of the aforesaid grosecution witnesses, 1t is proved that aher matnage was solemmzed on several occasbns, the deceased was subJected to physxoal torture by her husband by stau'ng that he does not like her. The pmsecnhon has'pmved vanous ' " Instances of cruelty and phys1ca1 torture connmtted by the appellant ”i A on the deceased B1sar1 Bel V1shalram (P W 1), father of the deceased has stated that after compmmlse m the mamtenance proceedmgs, H the appellant treated the deceased properly, but after one year, he received a letter, whereafter, his wife had gone to bring-her back bu she was not allowed to go and after one and half month, information mganling death was received. According to the statement of Vishalram (P.W. 1), marriage was solemnieed' somedmes in the year ' * 1988-89 and the deceased died on 4.6.1992."I‘hus,' within 4-years of marriage, the deceased was; subjected to cruel treatment and ' physical torture on several occasions by the apgellant. There is no reason’to disbelieve'the testimony of Vishalram (P.W.1l, who is-the father of the deceased and merely because the mother of the deceased has not been examined, no adverse inference can be drawn nor can it besaid that the prosecution has failed to prove its case. In the letter,‘ Ex.P-1, the dReased has stated‘th‘at she was beaten by V_ her husband and father-inelaw and she is tortured. The said letter ~ was written on 6.4.1989 and the Writing of the deceased has been 3 rpmved by Vishalram (P.W.1), who is the father of the deceased. V t VIShalram (PW 1) has stated that h1s Wife had gone w bung her daughter but she was not allowed to come to the parental house and after one and half month he weaved mformatlon reganding H death The totahty of the entue ewdence shows that dunng 4*5 years ‘ of the manta} life the deceased was subjected to cruelty and- phys1ca1 torture by the husband Therefom the mnhngs of learned ma} Court that the cruelty has been pmved does not warrant any _ Interference 13. In sb‘Tér as allegation of abeunent is concerned present is not a ease ‘ of any sohtaxy meldent of halassment or cruelty Fmm the evnience whlch has come on record it 1s found that the deceased was subjected to cruelty‘in many ways. After maniage, she was sent back and the deceased stated that she was beaten. She was told by‘ 3 her husband that he does doesn’t like her. While she-Was‘can‘ying‘ H; 2-3 months’ pregnancy, she was left m her pamntal house when ‘ ‘ there was nobody in the house. When she was again 'sent' toher matrimonial house, she was again beaten land‘subjected‘ to cruelty which led to instituting of maintenance proceedings before the 2 Court. After one yearof resumption of relations, the deceased was again harassed and beaten. 'All these happened iné short span of J about 4 years. a; y. '14. ln the case of Mohd‘. Hoshan (supra), it has been held that continuous torturing or teasing the deceased amounted to mental- cruelty dnvmg the wife to a Situahon Where she been disgusted and went to the meldent of committing smelde The accused therein was held-guilty of commssmn of od‘ence' under Section 366 of the IPC for abetting l-comrm'ssion of suicide. l‘n ‘the present case alsot the prosecution succeeded in provingthat the deceased was subjected to &cfqumt cmelty‘of hgmssment as also physical forum at intervals till she committed suicide. ‘Thex'efom? the mding of the learned tnal ' Court also does not mquire any interference. 15. Reliance placed by learned cougsel for the appellmt in the case of Mhhendra Singh (supra). an Rnnju (supm) are‘dlstinguishable on facts. ‘U 16. Submission of learned counsel‘for the appellant that the apyellant " was subjected to tnal in the year 1993 and was eonvicted in mepeet of the incident which took place way back in the year 1992 md the H appellant has alxea‘dy. undepgone imprisonment of‘ewmonthsithe sentence may be IJeduced to the period already undergone, deserves to be acceptede ’_ V l . 17. In the case of Mohd. Hoshan (supra), taking into eonsidemh‘on that the incident had taken long‘back and the appellants were on bail and that accused had undergone impxisonment for about 2 months? sentence was modihed to the period ‘almady-“undergone on thew considemtion that it may not be appmpriate to send them to. Jail ; again . In the present case also, similar fact [situau'on exists. The appellant has already undergoneo months of Rd. afid the hicident is I of 1992; theappellant is on bail. In the afoiesaid circumstances, the H sentence of imprisonment is modihed and reduced to the period aheady undergone by the appellant. As the appellant‘is on bail; his bail bond stands discharged 18. The appeal is accordingly partly allowed; / as‘ava //gii . / Mona“ 5““ \\ tia\1"“d‘a wdge Pra1veen \\/' " _ 7’