-PC—78 sn^iw Rt-ii'* '?TSTT 3TT^?T ?ti*llct) 3^ST '^ltllc^'M, »T{1(1'IS, fsj<rtl+<y Mt^^l sb^l* •^ 3^SV TRR; (4<ilt-l<<<{T) TOIIWdfOT 3II^T IN THE HI6H C0URT OF JTUNCATURE AT BILASPUR (C.6.) Cr.A.Nol SIN6LE BENCH : HON. SHRI JTUSTTCE bHIRENDRA MISHRA 1. 2. Shivkumar Chouhan Chquhan, aged 25 yei Durpatbai,wifeof A Aged 28 years. All R/o village : Akhra, F Bilaspur (MP) The State of Madhya Prad +l*lfi'l'!fl-f WTOT if.ft^ <fa«;i< ^SlfilH 311^1 . 1245 of 1993 i/o Jivrakhan irs. rjun Chouhan, S : Kunda Distt. Vs. fesh APPELLANTS RESPONbENT Present: ShriI.S. Sahu,coun^ Shri Pradeep Singh, el for the appellants. '.L. for the State/respondent. JUDGMENT (48.2007) This criminal appeal ite di(-ected against the judgment dated 19th t' November 2003 passed in Additional Sessions Judge, Bila .T.No. 288/90 whereby leamed IV ipur, Link Court, Mungeli, holding the accused/'appellant No. 1 Shivkj-imar guilty under Section 306 of the ^ / •.•^ XI-HG—7S '3^ '^WvWf, ^TSiM'^, ^W^ 3Ilt!'I?iTf^;tN? TtmsiT^TslitlW WI, 200 an^?r'qsre ('^f^gqir) 'ronwofN sn^r 'OllIcilll ^fWCTf 4.fe<A ffSl^R RW ^(|^?[ IPC, sentenced him to | undergo R.I. for Gve years and accused/appellants No. 2 Dijirpatbai and accused Birdhibai have been convicted under Seedon 49SI-A of the IPC and each of thein sentenced tp undergo R.I. for two yearsj 2. Charge sheet was fil^d against fhe accused/appellants under Section 306 and 498A of the] ofappellant No.l, to cruetty| died on 19.5.1990 due to b^ while she was residing in he| 3. Learned counsel fo appeal preferred by her Shivkumar, husband of the| jail after conipleting the jail| IPC for subjecting deceased Dhanbai, wife |and abetting her to commit suicide as she m injuries sustained by her ori 18.5. 1990, r niatrimonial home. the appellants submits that during pendency of this appeal apF|ellant No.3 namely Birdhibai has died and ^tands abetted whereas appellant No.l deceased, Has already been released frora sentence imposed upon him, therefore, he is not pressing this app^al at his instance and advancing the argument only on behalf of ^ppellant No. 2 Durpatbai. 4. Leamed counsel for appellant Durpatbai undei^ dying declaration of dece^ the appellant submits that conviction of Section 498A of the IPC is based on the :sed Dhanbai recorded by the Executive Magistrate P.S. Netam (PW-|6) on 18.5.1990, on the date ofincident, as -also on the statements of F PW-2 Udasab^i, mother of ^V-l Fattesingh, father ofthe deceased and :he deceased. • •^- XI-IiC—78 •SSSf ^wi^-tl^ wS\W16, Rf<rtl^^< ^Wvil *Mt+ WI. 200 an^?r 'wv (Tpf^g^ir) sn^r ?? R-fi'* cfSTT 3ff^?T shHi=h '^giwdttT atl^T 'til'tlfi'l'fl-t tilNdT if.fe^ <f"i*<;i< ^siRmsn^r tAe s^parate iairlst 5. Leamed counsel for Durpatbai was residing in a there was no complaint agairjst harassed the deceased in any| Dhanbai on the basis of stal deceased, who are highly inter^i the aforesaid offence and convidted appellant submits that appellant house with a separate kitchen, her prior to the incident that she inanner, however, after the death of ements of father and mother of the ;sted witnesses, she was prosecuted in under Section 498A of the IPC. 6. Referring to the dying d^claration of deceased Dhanbai, it was argued that in the dying declar|ation the deceased has stated that she committed suicide because slfie used to forbid her husband from visiting another lady namely I|)urpat and on the date of incident at about 6.00 p.m. when she ret there after smoking cannabis not available in the home, her lj urned from work, her husband came ^nd when she coinplained that rice is lusband started abusing her filthily, on account of which she poured kjerosene on her from the lamp and set herself ablaze. At that dine thp appellant Durpat bai, her mother-in- law tried to extinguish the ( husband was looking on. Referl PW-1 it was argued that this (ire by pouring water, however, her ^ing to paragraph 7 of the statement of tffitness has admitted that Shivkumar the separate living of Durpatbai resided separately whereas Dur^atbai and Birdhibai were residing in a separate roorn with their separ4te kitchen for the last 8-10 years. PW- 5 Lachchiram, who is an indepejndent witness, has also deposed about and Birdhibai. XI-HC—78 75ST •^l^l^, ®Tn<rl;l(o,fs|(?'>ltiy VWv{\ *^1<* 3T[^?T V^E C^fys^Sl) sn^F JK[ k'H'h '^8TT 3TT^T sft+iiq'1 '^nw^fesn^T qillffl'fl'1 ^WvS ^fS^t <FSI(I;I<, ^? sfRn sn^r 7. On the other hand, leaijned counsel for the State supports the iinpugned judgment of trial Co4rt. appelfant 8. Conviction of the declaration ofEx.P/7 recorded] (PW-6) in the presence of Drj Magistrate has categorically st^ Dr. Chandel and after it was (t able to make statement, her s|i put to her, she answered the him. She was fully. statement, which bears the cross-examination he has also as stated by the deceased, in the statement of PW-6 the p4 contents of dying declaration. Durpatbai is based on the dying |by the Executive Magistrate P.S. Netam N.S. Chandel (PW-3). The Executive t^ted that the deceased was examined by ^erdfied that she is fully conscious and jtatement was recorded, quesdons were cluestions and they were taken down by throughout during recording of cettificate of Dr. Chandel of Ex.P/7-A. In Istated that the statement was recorded presence of Dr. Chandel. Thus, from fosecution has been able to prove the consftious tltie 9. The deceased has stated niarried four years before to a( husband were present there, in the dying declaration that she was ;cused/appellant No.l Shivkumar, she had set herself ablaze after poJLiring kerosene from the lamp at about 8.30 in the night, at that dmje her mother-in-law, sister-in-law and she was harassed by her husband, sister-in-law and mother-in-la\j?, they had ousted her from the home, she was cooking in a separate jkitchen, they abused her, her husband used to visit another lady Durpjat, to which she objected and therefore, she v^a^abused and beaten by |ier husband, mother-in-law and sister- XI-HC—78 3rcT "i|l<t|l<rt<<, t<)Tfl<-l'l<S, Rl<l''lti^< <41^1dl *NI* "^. an^?rla^; (4°if-i«i<ti) sn^rw K'i'i'h Ti^ 3?fct?T Sti^i^ ^gTWttfStT an^i ^i^ltn^l'T iTR^Tf ^'f^si' <^i<^i< ^T3ifgiT3TI^I in-law. She retumed from wjark at about 6.00 p.m. and complained that there is no rice at ho^ne, her husband came after sruoking cannabis and started abusin! her filthily and out of desperation, she poured kerosene from the laijnp on herself and set in fire. All the accused persons were presenl herself on fire and thereafterl at home, they had seen when she set they poured water, her mother-in-law and sister-in-law extinguishe|d the fire whereas her husband was looking on. The villagers ajlso assembled and she was taken to Mungeli. She was torturec^ because she did not heed to their suggestions. She has furthejr stated that they never harassed her parents nor inade any deman^ as there is no custom of dowry in their society. On the other hand, accused persons harassed his PW-1 Fattesingh, has alleged that the ^laughter and subjected her to cruelty in the name of demand of dowjry. His daughter was ousted by her husband and in-laws from th eight months. However, he aj home and she stayed at his home for ;reed to send her daughter back on the promise of maternal uncle of ^.ccused Shivkumar that she will not be harassed, but harassment coijitinued. His daughter had complained that the accused persons su}3Jected her to cruelty. Similar is the statement of PW-2 Udasabai, fnother of the deceased. She has stated that she used to send grsujns for her daughter. Her daughter complained that her in-laws' *=!- and husband harass her and commit -marpeet with her. Her daughtjer stayed at her parental home for 7-8 monfhs. XI-HC—78 sn^r ?5i [<(-ii+ ?T^T 3TT^T ^itiT^ 3^1'^iTPn^T, »Tfl'M'16, (sK'lKHy *114dl *NI* SII^OT TaW (Tpf^g^ET ^giWdfer 3ii^r stateidents 10. If we examine the of dying declaration where th^ she or her parents were dowry by her husband and i^ opinion that versions of PW-1 Itl & 11. Now it is to be appellant Durpatbai inade by| ainounts to cruelty as defined } 498A read as under: "498A. Husband or subjecting her to cruelty.- shall be punished with impris^ three years and shall also be lij (c) (d) ^TAl[(rt41l ^\^v\\ '^^^ <F;>i^K ^ajRiir 3ii^i ofabove two witnesses in the light deceased has categorically stated that harassed in the name of demand of -laws, this Court is of the considered PW-2 is not worth reliance. consi|dered whether the allegation against the deceased in her dying declaration iinder Section 498A of the IPC?. Section relative of husband of a woinan Whoever, being the husband or the relative of the husband of a 4roman, subject such woman to cruelty snnient for a term which may extend to ible to fine. Explanation.- For the pufposes of this section, "cruelty" means an wilful coniduct which is of such a nature as is likely to driv^ the woman to commit suicide or to cause grave ijnjury or danger to life, limb or health (whether men|:al or physical) of the woman; or harassment oif the woman where such harassaient is with a view tij) coercing her or any person related to her to meet afiy unlawful demand for any property or valuable secuirity or is on account of failure by her or any person re 12. If we examine the 'dy|: definition to cruelty, it is husband and wife on accountj with an^ther lady and immedi| immedibte ated to her to meet such demand." 'dy|ng declaration in the light of above obs4rved that there was a dispute between of alleged relationship of her husband cause for committing suicide qn_the I-HC—78 3'SST '<1|<11<7><|, ®Tf|^<|<o,R|iyl|y^<. 311^1 ?il R-li<=h '^gn 3T1^?T a^*iicn 3TC(?T ^% (15?fy?W) 200 'renwato sii^r date of incident was the trei when she complained that allegation in the dying de Diurpatbai that she also han and that is why she was re; but the cruelty alleged by thi within the purview of Expla and basic dispute appears connection with illicit jttment meted out to her by her husband |rice is not available. Though there is [slaration against the present appellant 1.88ed the deceased along with her mother (iding separately with a separate kitehen, deceased against Durpatbai does not fall .j-iation (a) (b) to Section 498A of tUe IPC Ito be between the husband and wife in relatio^iship of the husband with another lady. 13. For the aforesaid under Section 498A of IPC c: realsons antd 14. In the result, appeal dismissed as not pressed is allowed. Her conviction 1; thereon, are set aside. Sh( stated that she is on bail, y-i she need not surrender. ^ / ct»Pi?<n<ft'i'RTR^f^flS^ ^^$R ^sifiFTSII^t ,, conviction of appellant Durpatbai nnot be sustained. plreferred by appellant No. 1 Shivkumar is the appeal of appellant No. 2 Durpatbai jnder Section 498A and sentence imposed is acquitted of the above charge. It is ^refore, her bail bonds are discharged and Sd/- Dfairendra Mishra Judge '•ftte!-