i j ‘ _ jydé’ ‘ EteJ on V« f3 é yg Jam- MSLH g K 3WJa—R i i i E AAvocak i .m-umn»~» QM IN THE HIGH COURT OF JUDICATURE AT JABALPUR " MADHYA PRADw N\\|\H\lllll\“\l\|||\|||Ml I i céIMINAL APPEA: No. Vym - /1998 r ,,(’Shankaz;lal, son'Of Sundardas 5 Mahchanda, aged 27 year‘s? V ’ / Suridaf‘das; 505' Of ,Kr‘ipaldas / ' »Manchandég aged 5’7 years, :1. 1% - 2 43; J i /32h1;. ,‘Kaushaly'vaneyit, wife of“ “xix \ ‘ . Sundaf'das Manéhanda, Vaged“ ' ‘ ,1 52 year‘s, ¥ flu '/ /_;Sh:i:v Kumar, s‘on oft‘Sundra'’rdag Manchanda, age‘d 23 year's, 7 , _ 5‘.’ ‘ ‘ ‘ \(‘x Ku‘. 'Rakhi Manchanda,’ ’(now I. {\I‘Qx, " Smt Ram Roma), daughter V' ¥ ‘ of oundar‘da» Manchanda, Iaged 20 years H ‘ I V I ., APPELIANTé Appellants Nb; 'Ed h résiéent 'of‘ ‘5 / ‘ ‘ 1 .Jarkhanda, Pollce otatlon HouSe, gammanda, Div‘crict Bilaspur (1W P ) " ‘ Appeuant No.5 regldent of } Isai Para, Dhamtari, Dlstrlct /\ : Ralpur (M P ) ‘ v E R sV‘UHs» Q! ro g ‘1 # State of Madhyé Pradesh,‘ "I‘l'mough: Police Staticn House, Sarkhanda, District/Bilaspur (M.P.) ' .. .. RESPQNEENT APPEAL UNDER SECTmN 57h (2) OF THE CODE / ' ( OF CR’ImNAL PROCEDURE, 1973 1 V ‘ CONvmTIoN /‘ SENTEDICE A ' ‘ / / RJ. for 3 years . ’ U/s. 306 I°P.C. each and fine of 1:3.10,ooo/- each, in default, R.I. for 1 year to each } appell/ant. / HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker DiWaker) Criminal Appeal No. 1378 of 1998 I APPELLANTS Shankarlal and others. 1 i VERSUS RESPOENDENT State of Madhya Pradesh Shri Surendra Singh learned Sr. counsel with Shri Neeraj Mehta Adv. for the appeliants. Shrl Ravmdra Agrawal PL for respondent/State CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE JUDGM=NT E A ‘ (0107 2010) This appeal Is directed against the Judgment and order dated 5.6.1998 passed by Addltlonai Sessmns Judge‘ Bllaspur, In SeSSIons Trla| No. 299/1996 convicting the accused/appellants under Section 306 IPC and se‘ tencing each of them to undergo rigorous imprisonment for three years and pay fine of Rs. 10,000, in defauit of payment of fine to further undergb rigorous imprisonment for one year‘ 2. Facts of the case in brief are that on 4.6.1996 deceased Sunita alias Soni, Wife of accused/appeliant No.1 Shankarlai committed suicide in her matrimbniai home by hanging: Merg‘intimation (Ex. P-15) was recorded on 4.6.1996 itself by one D.D. Ahuja. On 13.6.1996 report Ex. P—6‘was made by Huktmat Rai (PW—1) — the father of the deceased and based on this, FIR Ex. P-6 Was registered on the same day. It is further alleged that marriage of the Ideceased was solemnized with accused/appellant Shankarlal on 24.1.1993 and from the beginning itself the accused/appellants started subjecting her to cruelty leaving her with no other option but to commit suicide After investigation chaiian was filed on 25.7.1996 and the charges - were framed against the accused/appeilants on 5 6 1997 under Section 306/34tlPC 4. So as to hold the accused/appellants guilty, prosecution has examined O8 witnesses in support of its case. Statements of the accused/appellants were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, i A._ A “1_ five witnesses namely Dr. B.R. Tirthani (DW-1), Dr. P.K.Kalvit (DW—2), Dr. Anil Agrawal (DW-3), Dr. Vashudev (DW—4) and Dr. Vijay Pengalwar (DW— 5) have also been examined by the defence in support of its case. >5. After hearing the“ parties, the triai Court has convicted and sentenced the accused/appeilants as mentioned above. 6. Heard counsel for the parties and peruSed the material available on record including the judgment impugned. 7. Counsel for the appellants submits that accused/appellants, five in number, are husband, father-in—law, mother—in-law, brother-in—law and 1 u .. sister-in-law of the deceased. He submits that present is a case where for the unfortunate death of Sunita alias Soni entire family has been roped in a false éase‘. He submits that even if the entire case of the prosecution is taken as it is, appellahts’ conviction under Section 306 IPC as awarded by 5). AcCording to the counsel for the appellants, another reason for lodging ‘ the report is that the appellants had refused to return the articles which Were given to them at the time of marriage of the deceased. He submits that the deceased has left the suicidal note Ex. P-7 which was seized by thé’ police on 4.6.1996 itself vide seizure memo Ex. P-14 in presence of the court below cannot be allowed to stand as the basics of the abetment l contaihed in Section 107 IPC are entirely missing in this case. He submits l that the deceased committed suicide yon 4.6.1996 and immediately thereafter intimation was given to her parents but though her father was present at the time of inquest, he did not make any allegation against the accused/appellants. According to him, written report Ex. P-6 was filed on 13.6.1996 by Hukmat Rai (PW—1) and there is no satisfactory explanation as to why this much time was consumed by him in doing so. He submits that the report has been lodged just for the reason that the accused/appellants have not handed over the custody of female child aged aboutltwo years to the parents of the deceased. In support of his argument, learned senior counsel referred to the statement of Arjun (PW- Arjun (PW-5). According to him, in the said note the deceased has not l l madeany allegation against the accused/appellants and has very , categorically stated that she has committed suicide on her own volition and that none of the family members should be held responsible for the same. "—3 - He submits that the Court below has erred in law in ignoring the suicidal note soiely on the ground that the parents of the deceased have stated before ithe Court that it was not in the hand writing of the deceased Counsel for the appellants submits that number of love letters written by the deceased (Ex D 47 to D 71) have been produced by the defence witnessles clearly establishing the fact that the hand writing of the suicidal note and that of the love letters is one and the same and therefore, it can be easily said that the suicidal note was very much in the hand writing of the decreased Counsel for the appellants submits that the report of the hand writing expert was summoned at the instance of the defence but despite the fact that the said report was their on the Court record same has been completely ignored by the Court below and proper opportunity was also not given to the defence to adduce evidence of the witnesses who had compared thé handwriting. 8. On the other hand coUnsel for the respondent/State supports the judgme§nt impugned and submits that from the statements of the witnesses particularly that of parents and brother of the deceased it is clear that the deceased was subjected to cruelty from the beginning itself which ultimately left her With no other option but to embrace death by committing suICIde. He submits that the delay in lodging the report has been explained very satisfactorily by thefather of the deceased namely Hukmat Rai (PW- 1) who? has stated that immediately after the death he had gone to Police Station; Sarkanda, to lodge the report where he was told by the police peoplethat it was 10 o’clock in the night and therefore, he should come in the next morning. Thereafter, he met the Sub Inspector of the said police stationjwho told him that the report would be written by the Station House Officerand about one and half hour thereafter the Station House Officer 4 asked him to come on the next day. Seeing this delay in writing of the Ii! report, father of the deceased approached the higher police authorities and l only then the report could be written by the police on 13.6.1996. State I couvnseil argued that the suicidal note Ex. P-7 is ‘of no help to the accused/appellants for the reason that burden of proof lies on them to 1‘ prove Whether the suicidal note was in the hand writing of the deceased. ‘, l He submits that parents and brother of the deceased have categorically f stated that the suicidal note was not in the hand writing of the deceased ‘ ‘ (aq ,- and therefore the accused/appellants cannot derive any benefit of the same. :‘ 9. @0mptainant Hukmat Rai (PW—1) has stated in his evidence that marriage of his daughter was solemnized with accused/appellant Shankarlal on 24.1.1993 and since very beginning the accused/appeHants used to subject her to cruelty which ultimately ted her to commit suicide on 4.6.1996. He has stated that after receiving information regarding the death of his daughter, he had come to'the house of the accused/appellants on the {same day and seen the dead body of his daughter. He has further stated that on that day itself he made an effort to lodge the report but he did not:succeed in his pursuit. He has stated that at the time of inquest he was very much present and the dead body was sent for post mortem in his presenice. This witness has however denied the suicidai note (Ex. P-7) to be in the hand writing of the deceased. He has also stated that 15 days prior to the date of incident, there was a marriage at Korba where his daught‘er and wife had met and at that time his daughter had told his wife that the‘ accused/appellants used to harass her for bringing less dowry. ln paragraph 8 of his cross examination this witness has stated that he had lodged the report to the police but his statement was not recorded. Thereafter, he has stated that his statement was recorded by the police. Then again he has stated that he had not made any oral statement before the police and‘has given the same in writing and that he was not aware as to why the police had recorded Ex. D-1. Paragraphs 8 and 9 of the deposition of this witness appear to contain material contradictions, omissions and improvements. ln paragraph 16 of his cross examination, this withess has admitted that after marriage, his daughter used to visit his house frequently. According to him, his family members also used to visit the matrimonial home of the deceased and on number of occasions his sdn—in—law and daughter both used to come to his house and stay with him ‘ for 2-4 days. ln paragraph 17 of his deposition he has stated that though theft family disputes are settled in the Sindhi Panchayat but he did not take the matter of the deceased to the Panchayat and made an effort not to publicize the same. Mahesh Kumar (PW-3) — brother of the deceased has made almost similar allegations as that of his father Hukmat Rai (PW-1). ‘ Maya Devi (PW-4) - mother of the deceased has also spoken to the same l é? 1 u a " 5”, tune as that of her husband and son (PW~1 and PW-3 respectively). Arjun (PW-5) has stated in his evidence that the police had seized the suicidal note (Ex P-7) lying near the body of the deceased in his presence He has also stated that other articles such as shawl and dot pen were also seized from the spot He has stated that two days after “Pagdi Rashm" father of the deceased had approached him With a request that if the custody of the girl child of the deceased was given to him he would not pursue the case against the accused/appellants According to him he had also discussed the matter With the accused/appellants but they had refused to give the custody of the girl child to the father of the deceased This Witness has stated that in the month of August 1996 again father of the deceased had come to him and asked that if the custody of the girl child is given and the articles given at the time of marriage of the deceased are returned to‘ him, he would change his“ statement in the Court. Dr. Prashna Kumar Tiwari l t (PW-2t who had conducted post mortem examination on the body of the deceased has stated that cause of death was asphyxia due to hanging. His reports are Ex. P-1O and P—11. B.M. Puri (PW-7) and S.N. Shukia (PW-8) who had conducted the investigation have supported the case of the prosecution Both of them have denied that before 1361996 the complainant Hukmat Rai (PW—1) had come to them for lodging the FIR S.N. Shukla (PW-8) has however admitted that SUICIdal note (Ex. P—7) was seizediby him vide seizure memo Ex. P-14. Defence witnesses namely Dr. B.R. Tirthani (DW-1), Dr. P.K.Kalvit (DW-2),. Dr. Anil Agrawal (DW—3), Dr. Vashudev (DW—4)‘ and Dr. Vijay Pengalwar (DW-5) have stated that the deceased was suffering from asthmatic and other problems and on various occasions they had treated her. 10 BaSic constituents of an offence under Section 306 IPC are sweldal y death and abetment thereof So as to bring the abetment on the scene ‘ intention of the accused to aid or instigate the deceased to commit suiCIde l is necessarywlf a' recapitulation offacts. and the statements of the witrfeSSes is made what comes out is that the deceased left for heavenly abode on 4.6.1996 through the route of suicide leaving a specific note that , nobody should be held responsible for the act undertaken by her and she did the same at her own volition None of the Witnesses has made any speCIfic allegation that in the close prOXImity of time prior to death any of “(9.; the accused/appellants had abetted the deceased by gOading, inciting, provoking, urging or encouraging etc Though parents of the deceased have stated that their daughter was harassed by the accused/appellants for bringing lesser dowry, no report whatsoever regarding the same was made by them earlier to the InCIdent Moreover the inordent had taken place on 4 6 1996 but the report was lodged only on 13 6 1996 and this inordinate delay of nine days does not have any satisfactory explanation Though the father of the deceased (PW 1) has tried to explain the delay in lodging the report by attributing non co operation on the part of the police investigating officers (PW 7 and PW—8) have given a total denial thereto i Statement of (PW 1) being full of incon3istenCies on material particulars is ( unfit for IndICial reliance From the eVIdence of Ariun (PW-5) one more tthing which emerges is that father of the deceased had told him that if custody of the small female child and the articles given to the accused/appellants at the time of marriage of the deceased is given back to him, he would not pursue the case against the accused/appellants and would change his statement in the Court. This also goes to show that the story of the deceased having committed suicide as a result of harassment for dowry, appears to be a fabricated one guided by an afterthought. From the statements of defence witnesses also the doubt regarding harassment of the deceased gets unclouded as they have very categorically stated that 5 she was an asthmatic patient and they had treated her on various /fi éqf OCCaSIOHS. 11 Asi per the statement of Arjun (PW-5) and investigating Officer S N Shukla (PW-8) SUiCIdal note Ex P 7 was seized from near the body of the deceased on the date of inCIdent itself Though hand writing of the i deceased in that SUICidal note has been denied by her father and brother W once the report of the hand writing expert was called by the Court it should ‘ have seen the same after opening the envelop Even assuming that theret was delay on the part of the defence in examining the hand writing expert ‘ as Witness but it was the duty of the Court below also to reach a logical , concluswn Be that as it may, even otheMise also present is a case where i though the allegations are made by the parents and brother of the K deceased, there is an inordin‘ate'delay‘inv lodging the report. The evidence f also reflects that the relationship between the parties were good, they used to visit the house of each other without there being any complaint by . I: #7/ anyone. Evidence also reflects that parents of the deceased were demanding the Custody of small girl child from the accused/appellants and therefore poss:bility of false implication of the appellants in the present case cannot be ruled out Entire case of the prosecution thus appears to be doubtful and in these Circumstances the appellants are entitled to have benefit of doubt 12. Havmg thus seen the material available on record from every possible angle, this Court is of the considered opinion that the Court below has falle‘n in a serious error in not‘appreciating the evidence of the witnesses in its proper perspective ln this case abetment as defined u/s 107 IPC and the role attributed to the accused/appellants appear to be a pair of two opposites diminishing the scope of sustenance of Judgment impugned 12. Consequently, the appeal is allowed Judgment impugned is blown to air Accused/appellants are awarded acquittal of the charge levelled against them They are already on bail Discharge of the bail bonds prevails. Amount of fine paid by the accused/appellants be refunded to them. Sdl- Pritinker Diwaker Judge