CF000005763S IH a'Hfi.ffESB'.jSoa'E'.-e® AT 3S. B&E3P&B esiMimx. APP%E He\o^y ©£ 1995 KBB&a»;:a/®: aaa,/Eatjteare, a,ge& 2,6 yessa reside@t of Ehsrta Bazar, / ''"--:1 - :. P.S. B®agiliotiars.dl.stttftarg; B%P©B''»Bm S!E&'p:;0S'.,,M;^:tbj-Gagti,:tbe Bis-brle'fcMagiBtfate,8|arg, ASpaii 'B S&^SBgn®X574 OF-'i'BS •':.'..'~i: ~ -• .-@g,ietiaia2ti..EBe£i] si l^f CLASPUR Sinale Be.nch ..'usTice fr' CEri jaii) Bhupendra Kumor' Rom son of Prabhu Shrl Vivek Sharma, counsel Shri Pankai Shrivastava, Pane The -State of Madhya Pradesh the appe! Lcwyer fcr CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF L. Present' appeal arises out of the impugned judgment and order dated 12.01.1995 passed by Sscond Additional Sessions •Judge, Durg in Sessions Trid No. 389/1990 convicting the dccused/appeiiant for the offences punishabie under Sections 306 d 498-A of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for flye ye-ars u/S 306 IPC, to undergo rigorous imprisonment for ons year u/S 498-A IPC. ioth the sentences were ordered to run concurrentjy. 2. Brief foct-s of the case are tb.at mcrriaqe of ths deceased namely Kanti Bai was solemnized with the accused/appellcnt sometime in the year 1981 and she died on 18.1.1990 on account of 80% burn. On 28.1.1990 a written report- (Ex.P-14) was made by Lakhania! (PW-12) - fcther of the dececssed ai'eging in it that the accused/appel'ant u-sed to harass her daughter and used to demo/id dowry and Kcnti Baj (deceased) h.as been kiiied by the accused/appeiifflit. After 2 invsstiigation chQJlan was fi!ed aiflinst ths o.cc'jsed/o.DDsiicmt for the offences Dunl.sh.Qble. unde-r Sections 306 <S 498-A/3"^- of the Indian Pena! Code and 3/4 of the Dowrv Prohibition Act. Howevsr, whiie framing the charqgs, iearned court below has framed ths charQss Goainst ths accused/aBf)e!i''int fo" ths offences Dunisho.bl®under Sections 306 &. 498-A of the Ind'ari |»H 3. So QS to hojd to accuse' exomined as many o.s 14 w Statement of the accused/a .3 of the Cod.e fied th^ cho.FQ^s l@v€^l ippel! !.ii!+v nrnsecutior! hos ^ ^ -^. ^.^.••^. ^-^, .,„,.. ., ......... support of it.s ca.se. aiso recor'ded under 'rocaduriS in which hi? aleaded h is ce and 1-alse 4. Counsel for the appetiant submits that even if *he entire is token os it is. the offence as a!Je.Qed against the o.ppeilant is not made. out. He submits that the. reiatives of the deceased have exaggerated their versio'n in ths couri', could be because of death of the deceased but on the basis of gtatement of these wjtne.s.se.s, the accused/appeilant cannot be convicted, Hs further submits thot th.ere are mQterio.l the ne pr even if the enti! offence under Section witnesses. He also submjts that the prosecution is taken as It ]s, the rnade 01 f.1 case. ?y'^ 5. On ths other ha.nd. couise! for the State submits thQt on the basis of statements of Sushila Bai (PW-6), Vashwant Singh (PW-7), Lakhanlal (PW-12)- father of the deceased.. it is apparent thot deceasgd wo.s subjected to cruelty by the accuse-d/aDDe.l!QHt wd thsrefore. she was !eft with no othe-r option but to commit suicide. He furt-her submits that as per- ths ststements of independent witnesses, she died on account of accident when she was cookinq food. 6. I have heard counse! for the pcrties and perused ths material ovaiiabie on record. 7. Sushila Bai (PW-6) - mother of the deceased, Yashwont Kumar (PW-7) -. brother of the deceased ond Lakhcn Lal (PW- 12) - father of the deceased have stated that the deceased was subjected to crueity by the accused/appellant. They have stated thorr from the beginning accused/appeEiant used to dsmand dowry and the deceased was harassed by him. These witnesses have stated that inittaily the accused/appetlant raised the demand of scooter and then he used to demand cash aiso. Lakhanla! (PW-12) has stated that the accused/sppeiiant has written number of letters (Ex.P-8 to Ex.P-13) to him demanding money and from the sdd letters, jt is clear that the deceased was subjected to cruelty. Though these witnes-ses h.ave made number of al!egations against the accused/appeilant but it is apparent from their statements that there ore materio.l contradictions o"d omissions in their courl' statements. Number of things which hays been stafed by these witnesses in the Court', were not deposed by them in th.eir case diary stcEtements. What emerges from their "s^s.\.. J1^ s1<t L_Ji "" ^y' ••stiy' statements is that CKCused/appsllant used to dsmcmd money but from these statements it is not cie.ar· that as to on account of the said demand, the deceased committed suicide. On the contrary, independent witnesses Ramcharan (PW-1) and Ram Kumar Mishra (PVi/-2) have categoricatly stated that the deceased died when she was cooking food. RGmchar-an (PW-1) - neighbour of the deceased h.as stated that upon hearing the shout and seeing the fire when he reached to the house of the accused/appeiiant, he saw th®deceased 'ying on the floor, at that time the accused/appellant came there and had tried to extinguish the fire. He ho.s stated thst when he had put a specific question to the deceased as to how she has sustained burn injuries then the deceased has informsd him that when she was cooking food, she got burnt and then she Immediately cam®out fr'om the kitchen. This witness has further stoted that quite frequently, he used to visit the house of the deceased but she has neyer made any compioint in respect of the harassmeRt meted out by the accused/appellant. He has also stated that the accused/appeltant beiongs to wel! to do family. He has also stated that at ths time of performing iast rituals of the deceased, father of the deceased was present but he has not made ony complaint. 8. Dr. Ram Kumar AAishro (PW-2) has stated that on the date of incident, when hs was sitting in the Hospital, two persons have called him that daughter-in-law of Suruji has sustained burn injuries and when he saw the deceased, she was burnt to the extent of 80-90% cuid she was grooning. He ho.s stated that he ho.d asked the deceased as to how she got burn injuries emd then she has informed him thot when she was caaking food, she get bur'nt, 9. In respect of the letters written by accused/appeiioint i.e. (Ex.P-8 to Ex.P-13), the prosecution has proved the fact that these letters were written by the accused/appeilant. Contents of the tetters make it clecr that the accused used to raise some demand either for his business or for getting the scooter. 10. For convicting the accused/appellant the prosecution has to bring its co.se within the definition of Section 306 of the Indion Peno.1 Code. To have a re-ady reference, Section 306 IPC is quoted below; 306. Abetment af Suidde. - If any person commits suicide, whoever abets the commission ot such suicide, snal! be punisned with imprisonment of either description for a term which may extend to ten ysars, and sha!l cilso be liable to fine. To see whether the act of the accused cruelty, o. gllmpse of "abetment" enshrined in appears to be the need, which reads as under : Section 107. A person abets the doing be termsd as tion 107 Firsf. - Instigates ony person to do that thing; o" Sscondly - Engages wifh one or more other person or persons in any conspirccy for the doing of that thing, if an acf or illegal omission rakes piaces in pursuance of fhaf conspiracy, and in order to the doing of that thjng; or Thirdty - Intentionalty aids, by any act or illegal omission. the doing of that thing. Explanation 1. - A person who, by wiHful misrepresenfafion, or by wiSiful conceaimenf ofa S^'.BStS?-' fesBSSS ^,. &. B' J "i^ tftl»«.i<f "^ inaterioi! fact whlch he is bound to disclose. wlun'tarity causes or pr'ocures, or attempts to cause or procure, a thing fo 6e done, is said tG •'nstictate the doino ot that thinQ. Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anyfhing ir> onser tc facilitate the cofr.mission thereof, is said to aid the doing of thaf acf. 11. On bare reading of statement of witness&s in particuiar Sushiia Bai (PW-6), Yashwant Kumar (PW-7) & Lakhanlal (PW- 12) 't wili not be safe for this Court to convict the accused/appellant for the offence under Section 306 of the Ind'a" Penai Code. Especially when Romchara" (PW-1) and Ramkumar Mishra (PW-2) have stated that deceased has suffered burn jnjuries when she was cooking food, thus, the accused/appellant is acquitted of, the charge unde.r Sectlon 306 of the Indian PencJ Code. 12. So foir ds the offence under Section 498-A of the Indlan Penal Code is concemed, on the basis of evidence adduced by the prosecution, his conviction is maintdned. 13. At this stage, counsel for the appetlant submits that QS appeliant has remained in jail for about three months, incident is so.id to hav®taken place in the yeas" 1990, no useful purpse would be served In sending him to jail and it wouid be in the interest of justice if the sentence imposed on him is reduced to period already undergone by him. To thls, counssl for the State has no serious objection. 14. In view of the above, the o.ppeo.1 is part-ly ailowed. The accused/appeSlant is acquitted of the charge under Section 306 of the Indion Psns! Code and his conviction under -Section f'f~nm'% ^Sia^. s. lli:U^sS, s '*.. 'h^.y ./y •'^s.aS^"3" 498-A of the Indjon Penal Code Is mdntained. Appeliant is reported to have remo.ined in jail for about three months and therefore he is sentenced to the persod already undergone by him. Howeyer, the appellant is directed to deposit an amount of Rs.3,000 in the Court below within a period of three months from the date of receipt of copy of thi-s order. Failure, if any, in depositjng the omount within the period stipulated, would make the appellont liable to be inside the jaii for a period of two months. 15. Appea! thus partly ailowed. Sd/- iker Dh Judge