^ -^" IN THE HIGHCOURT OF JUDICATURE AT BILASPUR CHHATTISGARH CRIMINAL APPEAL No. / 3T" of 2006 PELLANT y^a-t) ^s^'^. ^^•^^, .^f^,..t®^ ^SS ^ "•Jl- Jitendra Mishra S/o Late Ganesh Ram Mishra, Age about 24 years Occupation Cultivation, R/o. village Begudega P.S. Lailunga Distt. Raigarh (C.G.) VERSUS RESPONDENT:- State of Chhattisgarh through Station House Officer P.S. Lailunga Distt. Raigarh (C.G.) MEMO OF CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE r ^ ^. ^ ^ HI6H COURT OF CHHATTES^ARH AT BILASPUR Cr. ADoeal No. 137/2006 JitendraMishra Vs. State of Chhattisgarh Post for Judgment: 1^.08.2006 Sd/- DUip Raosaheb Deshmukh Judge HI^H COURT OF CHHATTIS6ARH AT BILASPUR Cr. Apoeal No. 137/2006 Single Bench: Hon'ble Shri Djjip Raosdheb Deshmukh, J. Jitendra Mishra Versus State of Chhattisgarh Shri S^N.Nande learned counsel with appeilant. Shri M.P.S.Bhatia, iearned P.L for the State. JU D6MENT (Delivered on this i^ day of August, 2006) This appeal is directed against the Judgment dated .22.12.2005 delivered by Shri 6.ft.Sande, 4th Additional Sessions Judge (F.TC.), ftaigarh in Sessions Case No,58/2004 whereby the appeliant was convicted under Section 498-A and 306 LP.C, and sentenced to rigorous imprisonment for two years under Section 498-A of I.P.C. and to rigorous imprisonment for three years and six months and a fine of Rs,2000/- under Section 306 I.P.C. Bot4i the sentences were ordered to run concurrently. 2. The appeliant is in Jail since 16.1.2004. 3. Co-accused Maheshwar Panda, a ciose relative, Santoshini, sister and Sumitra, mother of the Gpplicant were acquitted of the charge under Section 498-A read with Section 34 of the I.P.C. and Section 304-B read with Section 34 of the I.P.C. ^:M 4- BrEef facts are that the deceased Minakshi, daughter of Manoronjan Rath P.W,1, was married to the appeilant herein on 11.2.2001. It is aEleged that the appeltant subjected her to cruetty cind ill-treated her on account of demand for dowry. Minakshi consumed poison on 5.1.2004 and was shifted to Government Hospital, Patthalgaon at 5*05 P.M. on the same day by the appeSI<xnt where she died at 5.35 P.AAe Intimation was sent to Station House Officer, P.S. Patthalgaon by the &octor on duty vide ExP.5. Merg intimation was written at P.S. Patthalgaon. Panchnama of dead body of Minakshi was prepared vide Ex.P.2/A which raised a suspicion of death due to consumption of poison. Autopsy WGS conducted by br. Y,K.Toppo P.W.ll who opined that death was as a result of cardiac respiratory arrest due to intake of some unknown poison and was suicidal in nature. A written complain was lodged by Manproinjan Rath at P.S. Ldlunga stating that the appeftant and his relatives had committed murder of Minakshi after forcibiy administering poison to her, After completion of investi9ation, a challan was fiSed under Section 498-A read with Section 34 I.P.C. and 304-B read with Section 34 I.P.C. against the appellantand three other relatives/as mentioned in paragraph 3 (supra). 5. The appeilant abjured the guilt, The prosecution examined GS many as 17 wltnesses. The appellant did not give any explanation about the death of Minakshi on 5.1.2004 and pieGded innocence. Alok Ranjan b.W.l was exGmined as a defence witness. Reiying upon the eyidence led by th© ^t prosecution, the learned trial Judge convicted the appeltant under Section 498-A and 306 of the LP.C. and sentenced him as aforesaid in paragroph 1. r r 6, Shri S.N. Nande, learned counsei for the Qppelbnt has contended that the evidence led by the prosecution did not estabiish the guilt of the appeliant under Section 498-A and 306 of the I.P.C, as there was no evidence relating to any abetment by the appellant resulting in suicidai death of Minakshi. It was urged that the prosecution has failed to produce and prove the viscera report of the deceased due to which it WGS also not estGblished that death of Minakshi was due to consumption of poison. The testimony of bharmcharan Panda P.W.6, Moinoranjoin Rath P.W.l and Smt. Vishnu Priya P.W.2 reiating to the harassment of the Minakshi by the appeliant, was merely an afterthought since there was an admission by Smt. Vishnu Priya P.W.2 in paragraph 13 as also by Manoranjan Rath in paragraph 22 that at the time of marriage there was no demand for dowry. On the other hand, Shri M.P.S.Bhatia, learned Panei Lawyer argued in support of the impugned judgment< 7. HGving considered 1+ie rivai submissions, I have perused the evidence led by the prosecution with utmost circumspection. The testimony of Manorc^ijan ftath P,W,1 sn paragraph 6 shows that the appeilant did not even properly feed his daughter who aiways used to cry whenever he visited her matrimonial home. He alsd stQted that he used to beg the appellant and his retatives to properly treat his daughter but in vain. 8. It is true that Smt. Vishnu Priya P*W.2 has admitted in cross-examination paragrGph 13 that there was no demand for dowry at the time of marriage but there is a clear assertion mQde by her in pGragraph 7 of her testimony that the appellants used to treat her daughter with cruelty dnd did not even give proper food and used to subject her to al! kinds of hGrassment. The testimony of &harmcharan Panday P.W.6 depicts the cruel manner in which the deceased was treated like a servant and was made to eat the ieft over food- His testimony in paragraph 5 as aiso in paragraph 13 is wholly unrebutted in cross-examination. The defence has not contradicted this wilness with his earlier statement under Section 161 CrF.C: Thus, there is retiabEe and cogent evidence on record to show that Minakshi was subjected to cruelty and harassment by the appettant. Conviction of the appellant under Section 498-A I.P.C.is well founded. 9. J.Minj P.W.8 stated that Minakshi was admitted by her husband i.e. the appeliant in the hospita! on 5.1.2004 and had told him that she had consumed poison. The autopsy report Ex.P-7 by Dr, Y,K-Toppo P.W.ll also leayes no room for any doubt that deGth of Minakshi was due to intake of some poisonous substance. The inquest ExP<2/A aiso shows that in the opinion of Panchas death of Minaksjii was due to consumption of some poison. It is true that at the time of inquest, the rebtives of "^ "r1 the deceased did not divulge. harassment or cruelty by the appeilant on Minakshi which resulting in her death but as held by the Apex Court in ASamQir Sani v. State ofAssam 2003 AIR SCW 111, no adverse inference can be drawn agdnst the testimony of the parents on this count since the shock suffered parents after having seen their daughter dead in <xn unnatural manner would not have been able to immediately outpour the reasons therefor. 10, Section 113A of the Evidence Act reads GS uhder: "113A, Presumption as to abetwent of suicide by a married woman.—When the question is whether the commissionof suicide by a woman had been abetted by her husbcxnd or any relative of her husband oind it Es shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relatiye of her husband had subjected her to cruelty/the court may presume, having regard to dll the other circumstances of the case, that such suicide had been abetted by her husband or by such reiative of her husband, E>:planathn.—For the purposes of this section, "cruelty" shall haye the same meaning as in sectiors 498A of the Indian Penal Code, 1860 (45 of 1860)" 11. In the present case, it is thus estabiished by the prosecution evidence that Minakshi had committed suicide on 5,1.2004 after consumingsome poisonous substance. It is not disputed that her death had occurred within a period of 7 years from the date of her marriage. It is also estabEished that the appellant had subjected her to cruelty. In these circumstances, a presumption can safely be drawn against the --; / appeEioint that suicide committ-ed by Minakshi had been abetted by the appeiiant. Such apresumption is rebutt'able. However, in the present case, the appellant has led absolutely no evidence or given no explanation whatsoever in his examination under Section 313 Gr.P.C. for the suicidal death of Minakshi. In this view of the matt'er, the presumption arising under Section 113A of the Evidence Act against the cppetlant has stood wholly unrebutted. Conviction of the oippeltcxnt under Section 306 IP.C. is thus also founded. 12. Having thus considered the eyidence led by the prosecution in its entirety, I am of the considered opinion that conviction of 1+ie appeilant under Section 498-A and 306 I.P.C. and the sentence awarded 1+iereunder by the learned trial Judge is well founded cxnd does not cal! for any^nterference. 13. In the result, this appea! bein9 without substance is dismissed. Sd/- Dilip Raosaheb Deshmukh Judge