1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR SINGLE BENCH Criminal Appeal No. 627/1994 Dr. Shyam Sharma & ors. Versus The State of Madhya Pradesh --------------------------------------------------------------------- Shri D.K. Sharma, counsel for the appellant No.1(appointed by Legal Aid Committee). Shri Jitendra Tiwari, counsel for the appellant No.3. Shri R.S. Shukla, Panel Lawyer for the State. ---------------------------------------------------------------------------------- PRESENT : HON'BLE SHRI JUSTICE G.S. Solanki Date of hearing:11/01/2011 Date of Judgment: 25/04/2011 J U D G M E N T Appellants have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, being aggrieved by judgment dated 13/5/1995 passed by the Third Additional Sessions Judge, Jabalpur in S.T. No. 311/1986, whereby appellants have been convicted under Section 306 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 3 years respectively. 2. It is undisputed that appellant No.1 Dr. Shyam Sharma remained absent despite repeated issuance of warrant of arrest against him. Ultimately, this appeal is heard in his absence in the light of judgment pronounced by the Hon'ble Apex Court in 2 AIR 1996 SC 2439, Bani Singh and others Vs. State of U. P.. 3. It is undisputed that her marriage was solemnized with appellant No.1 Dr. Shyam Sharma on 17.2.1979 and she died on 17.2.1984. It is also undisputed that appellant No. 2 Sushila, who died during the pendency of this appeal was sister-in-law (wife of elder brother) of appellant No.1 and appellant No. 3 Ku. Lata is niece of appellant No.1. 4. It is also undisputed that deceased Bhagwati Bai @ Manjula Bai died an unnatural death due to burning within seven years of her marriage. Dr. A.K. Yadu (PW7) performed the postmortem examination on the dead body of the deceased Bhagwati Bai and opined that she died by asphyxia due to burn injury. He prepared the postmortem report Ex.P/6 and Ex.P/6-A and summary report Ex.P/7. He fairly admitted that death may be a suicidal death. In these circumstances, it is proved that Bhagwati Bai @ Manjula died an unnatural death within seven years of her marriage. 5. The prosecution case in short is that though there was no demand of dowry at the time of marriage but after the marriage, appellants committed cruelty on deceased Bhagwati Bai @ Manjula in relation to demand of dowry. It is also alleged that appellant Shyam Sharma has an illicit relation with appellant No.3 Lata. It is further alleged that appellant Shyam Sharma and appellant Lata were sleeping in a separate room and deceased was compelled to sleep in the kitchen. 3 6. On 17.2.1984 in the night, neighbour of the appellants were went to the house of appellants and found that deceased Bhagwati Bai @ Manjula lying in the kitchen in burnt condition. Arun Kumar (PW14) informed the Police Kotwali, Jabalpur by telephone about the incident. Police reached to the place of incident and registered a Marg No. 06/1984. Body of Bhagwati Bai was sent for postmortem. Spot Map Ex.P/19 was prepared and some articles of kitchen, like empty bottle of kerosene, some pieces of burnt clothes and rope were seized and prepared seizure memo Ex.P/27. 7. After usual investigation, appellants were charge-sheeted before the Chief Judicial Magistrate, Jabalpur, who committed the case to the Court of Sessions. 8. Learned Additional Sessions Judge framed the charges under Section 306 of the Indian Penal Code against the appellants. They abjured their guilty and pleaded false implication. They further taken defence that deceased Bhagwati Bai @ Manjula was issue-less and she remained perturb, due to this in the state of depression, she committed suicide. Appellants also examined Dr. S.S. Chauhan (DW1) and Dr. B.N. Gandamule (DW2) in support of their defence. 9. On appraisal of the evidence on record, learned trial Judge convicted and sentenced the appellants as mentioned hereinabove. 4 10. Learned counsel for the appellants submitted that the trial Court committed error in not appreciating the evidence on record in its proper perspective. He further submitted that the trail Court failed to consider the defence of appellants, which was most probable and ought to have been accepted, therefore, he prays for setting aside the conviction and sentence recorded by the trial Court and further prays for acquittal of the appellants. 11. On the other hand, learned counsel for the State justified and supported the impugned judgment and finding of the trial Court. 12. I have perused the impugned judgment, evidence and the other materials on record. 13. Bitti (PW2), mother of deceased Bhagwati Bai @ Manjula deposed that Bhagwati Bai came to her matrimonial house and told that appellants assaulted her and treated her as maid. She further deposed that Bhagwati Bai told her that appellant No.1 Shyam Sharma has an illicit relation with appellant No.2 Lata. Kamla Sharma (PW3), cousin sister of deceased, corroborated the testimony of Bitti (PW2). 14. Maya (PW4), friend of deceased Bhagwati Bai also corroborated the aforesaid fact and deposed that Bhagwati Bai told her regarding illicit relationship of her husband Shyam Sharma with his niece Lata (appellant No.3). She further deposed that Bhagwati Bai also told her that she caught them red handed, therefore, 5 appellants are torturing her. 15. Ramdeen Sharma (PW12), father of the deceased, Chhotelal Sharma (PW13), bother of the deceased and Munnalal Sharma (PW1), uncle of the deceased are related witnesses and deposed omnibus statements regarding torturous behaviour of appellants. 16. Chhotelal Sharma (PW13) deposed that appellants Sushila (since deceased) and Lata always made false complaint to the husband of Bhagwati Bai @ Manjula, due to which appellant No.1 Shyam Sharma beated her. He further deposed that appellant Shyam Sharma wrote a letter Ex.P/2 to his father. He further deposed that her sister wrote a letter Ex.P/3. 17. Learned counsel for the appellants submitted that the story of illicit relation of appellant No.1 Shyam Sharma with his niece Lata (appellant No.3) does not find corroboration from the statement of Ramdeen Sharma (PW12), father of the deceased, Chhotelal Sharma (PW13), brother of the deceased and Munnalal Sharma (PW1), uncle of the deceased, therefore, trial Court committed error in believing the aforesaid story of illicit relationship. He further submitted that deceased Bhagwati Bai @ Manjula committed suicide on her own accord, due to the depression of infertility. This fact duly supported by defence witnesses Dr. S.S. Chauhan (DW1) and Dr. B.N. Gandamule (DW2). 18. I have perused the evidence of Dr. S.S. Chauhan (DW1) and Dr. B.N. Gandamule (DW2). They 6 deposed that though they treated the deceased Bhagwati Bai @ Manjula but they fairly admitted in their cross examination that they did not give report regarding infirmity of Smt. Bhagwati Bai @ Manjula and this fact was duly considered by the trial Court in para-23 of the impugned judgment. In these circumstances, it cannot be said that deceased Bhagwati Bai was infertile, therefore she committed suicide. Trial Court also considered the evidence of Ramdeen (PW12), Chhotelal Sharma (PW13) and Munnalal Sharma (PW1) in regard to the fact that why deceased had not told them regarding illicit relationship of her husband with his niece. 19. It is a matter of common experience that in our Indian Society and specially in the villages, daughter cannot discuss the matter of sexuality with her elder male member, like father, uncle or brother. In these circumstances, this fact does not find place in their statements, therefore, they cannot be said unbelievable witnesses. 20. On the contrary, Bitti Bai (PW2), mother of the deceased, Kamla Sharma (PW3), who residing adjoining the house of Bitti (PW2) and Maya (PW4), who is a friend of Bhagwati Bai, deposed that she was maltreated due to fact that she caught red handed the appellant with appellant No.3 but Savitri Bai (PW11) has partly corroborated this fact and deposed that when she asked deceased regarding her non-pregnancy, then she told her that how she got the pregnant? How she blessed with children, when her husband does not sleep with 7 her. 21. After careful scanning of evidence of Bitti (PW2), Kamla Sharma (PW3) and Maya (PW4) in the light of evidence of Savitri (PW11), who is distantly related with the deceased, one fact is cogently proved that appellants No. 2 Shyam Sharma was not sleeping with deceased Bhagwati Bai @ Manjula and he used to sleep in the room of other appellants. 22. On careful scanning of evidence of Bitti (PW2), Kamla (PW3) and Maya (PW4), it is found proved that appellant No.1 Shyam Sharma used to beat the deceased because she caught him, with his niece in objectionable condition. All these witnesses remained undeviated on the fact that the deceased told them that her husband maltreated her because of illicit relationship with his niece. 23. Learned counsel for the appellants cited AIR 2010 SC 512, Amalendu Pal @ Jhantu Vs. State of West Bengal and 2002 CRI.L.J.3201, V. Shankaraiah Vs. State of A.P. Facts of these cases relied on by the counsel for the appellants are different to the instant case. In this case appellants are convicted with the aid of Section 113A of the Evidence Act, therefore, Section 107 of IPC is not applicable in this case. 24. In these circumstances, if appellant No.1 was not sleeping with deceased Bhagwati Bai and not performing his matrimonial duties then this fact coupled with the fact of beating and maltreatment certainly 8 amount a cruelty and this cruelty dragged Bhagwati @ Manjula to take extreme step like suicide on the eve of her marriage anniversary dated February 17th. 25. Since Bhagwati Bai @ Manjula has died within seven years of her marriage by unnatural death by committing suicide then trial Court rightly raised the presumption under Section 113A and it is proved that her husband, appellant No.1 Shyam Sharma had subjected her to cruelty, therefore she committed suicide. But Trial Court committed illegality in raising this presumption without any evidence on record against the appellants No. 2 and 3, therefore appeal of appellant No.3 Ku. Lata, daughter of Ambika Prasad Sharma is allowed and conviction and sentence recored by the trial Court against her under Section 306, is hereby set aside. She is acquitted to the aforesaid charges. The bail bond and surety bond of appellant No.3 stand discharged. 26. Appellant No.2 Sushila has already dead and her appeal has already abated against her. Appeal of appellant No.2 is dismissed as abated. 27. Conviction recorded against appellant No.1 Shyam Sharma by the trial Court under Section 306 of IPC is hereby affirmed. Considering the facts and circumstances of the case in which appellant no.1 Shyam Sharma, being an illiterate person, had subjected her wife to cruelty regarding matrimonial liabilities. The sentence awarded against him cannot be said to be severe. In these circumstances, there is no 9 need to interfere in the sentence awarded by the trial Court against appellant No.1 Shyam Sharma. 28. Since this appeal is heard in absence of appellant No.1, Dr. Shyam Sharma, who is still absconding, the trial Court/Chief Judicial Magistrate, Jabalpur is directed to adopt coercive proceeding to get arrest appellant No.1 Dr. Shyam Sharma and sent him to jail for serving out the remaining part of the sentence. (G.S. Solanki) JUDGE ravi