IK THE H^GH COURT OF JUDICATURE AT JABALPUR (M.P.) JCRIMINAL RPPEAL iaO.\'&V> OF 1999 CRIMINAL APPEAL UNDER SECTION 374 (2) OF CRIMINAL PROCEDURE CODE. APPELLANT RESPONDENT Sunil Sarawgi, ^ son of Sanat Kumar Sarawgi, aged about 30 years, Resident of Dayalbandh, Police Station City Kotwali, District - Bilaspur (M.P.) Versus State of Madhya Pradesh. f HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1029 of 1999 APPELLANT RESPONDENT VERSUS Sunil Sarawgi State of Madhya Pradesh Shri P.K. Verma learned Sr. counsel with Shri Sumit Verm^ Advocate for the appeHant. ShriPankajShrivastavaPLforrespondent/State. i CRIIVIINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, JUDGMENT i (20.08.2010) | This appeal is directed against the judgment and order dated 5.4.1999 passed by Special Judge (Atrocities) Bilaspur, in Sessions Trial No. 309/1995 convicting the accused/appellant under Sections 498-A anc) 306 of the Indian Penal code and sent^ndng him to undergo rigorousj imprisonment for tvvo years with fine of Rs. 500 u/s 498-A and rigorous imprisonment for six years with fine of Rs. 1000 u/s 3.06 IPC plus default stipulations. 2. Case of the prosecution in brief is that on 6.4.1995 the deceased namely Smt. Uma Sarawgi, wife of the appellant herein consumed excessive dose of medicine known as Gardinal and after being hospitalised by her father-in-law she died on that day itself. On the basis of intimation Ex. P-5 given by Dr. R.J.P. Verma (PW-5) Assistant Surgeon, Sardar Patel Hospital, Bilaspur, to the police authorities merg was recorded on the same day and after investigation FIR Ex. P-17 was registered on 9.4.1995. According to the case ofthe prosecution marriage ofthe deceased was performed with the appellant herein in the year 1992 and as from the very beginning she was not happy vi/ith her matrimonia! life, she took this extreme step of committing suicide. It is alleged by the .prosecution that the deceased was in the habit ofwriting a diary and that in the said diary she had made four entries on different dates i.e| 11.7.1994, 28.10.1994, 5.12.1994and 5.4.1995 marked as Ex. P-4to P-9 B li ~^.'^ respectively. According to the case of the prosecution, as from the sai( entries it is apparent that she was subjected to cruelty by th^ accused/appellant, offences under Sections 498-A and 306 IPC are, clearly made out against him. Flirther case of the prosecution is that th^ deceased wrote two letters to her mother on 25.5.1994 Ex. P-2 and 23.3.1994 Ex. P-3 which go toshow that she was subjected to cruelty and harassment by the accused/appellant. After investigation, challah was filed on 13.6.1995 under Sections 498-A and 306 IPC and then th^ appellant was prosecuted accordingly, 3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 09 witnesses in support of its case. Statement o^ the accused/appellant was also recorded under section 313 of the Codq of Criminal Procedure in which he denied the chargelevelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/appellant submits that on the basis of thei evidence adduced by the prosecution it may be a case where th^ deceased and the accused/appellant were not enjoying cordial relations but there is not even an iota of evidence on the basis of which the act alleged against the accused/appellant can be brought within ingredients of Sections 498-A and 306 IPC. He submits that there is no evidencri available on record to show that the deceased was abetted by the accused/appellant in any manner whatsoever which forced her to take the extreme step of ending her life. He submits that the deceased could be unhappy in her matrimonial home for the reason that she was required td take care of the handicapped sister of the accused/appellant which sh^ did not-like, and that'this fact was' not disclosed to her prior to hei; marriage. He submits that present is a case concocted at the behest of the father of the deceased who was a practicing lawyer of Gondia (Maharashtra). He submits that if the diary notes Ex. P-4-to P-7 and twq i -3- ! letters of the deceased (Ex. P-2 and P-3) are taken into considerationj ingredients of Sections 498-A and 306 IPC are not attracted to the case in hand. Hesubmits that as the deceased was taking treatment for hei) mental ailment at Nagpur even -prior to her marriage which continuec| after marriage also, possibility cannot be ruled out that due to medicine; including the sleeping pills being taken by her regularly she could havd developed a suicidal tendency leading to her unfortunate death. Hd further submits that there is no evidence on record to show that thd appellant or his family members were unhappy with the deceased; Rather, contrary evidence is there on record to show that the deceased was given just treatment in the family ofthe accused/appellant. He submits that diary notes written by the deceased also indicate that she could not adjust in the family of the accused/appellant and that she wa^ so confused that she took such a drastie step of committing suicide. . 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the evidence available on record clearly goes to show that the deceased w^s subjected to cruelty to such an extent that she was having no other option but to end her life. According to the State counsel, from the evidence of Mohini Devi (PW-3) and Ratanlal Agrawal (PW-4) - mother and father of the deceased, it is clear that the deceased was subjected to cruelty by the accused/appellant and therefore, the judgment impugned convicting and sentencing the accused/appellant as above, is fully justified. •I 8. Entire conviction of the accused/sppellant appears to be based or\ the diary notes of the deceased Ex. R--4 to P-7 and also two letters Ex. P- 2 and P-3 and therefore it would be proper for this Court to first deal with thesame. Relevant portion ofdiary note dated 11.7.1994 is as under: ; STFjf d-^'r'l ^IT t f^ ?TTC& «IK"!Tf^ f^? 'l^ 3ITTST g3IT tft ^FI^ ^K settlement ^St ^m ^r ^f-n <ft ^r ^ f> ^ rrr point of no return ^m \ ~^ ^f^i 'ETOT f^ 'W upn ^t Tffr wr^ ^ '5,w;r 11 ''-f ^rt 'cre; SITFTT w'i5[ ^i^ ^? ttft sft cr^r T^t ^ixyr sT.it ira^ft sft i WRt sTST WEf ^Tl' SfT 1^5 ITf^ 9 ^T 10 ^TT 11 t11<1<sl c|?l' ^ «n^i; ^rr unt ITT out of station ?t^ crr sfra "'r ^fT ^PRIT Tr €t^ ^ti i . sp^r sm qi!r ^ (R? ^w ^' f^w s^ ^ ^ uTp't e^ 'fcp? WPT V ^FT ^f ?t qFt ^ Eft^ E^ TI-T ^CT^fr? ^t^r ^pn sfr? fcf^ ^ iTT? ^ 3TEST 1YT ^Tt^ Vf tM^ ?)• -T^ | ...................... '37T cftrFr '1^ 3PT;ft g|IE..>sdB&a,> -4" q?T ^l^ EZIM ^f eRT i^ ^TrIcfr Rteltfl t| ^ aft^ ?t ^T ft-rr cfr^ ff^ ^S c|5? cR ift T^ iFf ••I^T ?uTN <\v}<5\ ^ ?ft <ft ^I?1^ 'gg ^r ^q; PR; ^ snuf cf?r 1rfr fcRft nscpl fSpFr ^f 'cTprr ^ q^r vfsnii 3r»r ^ftEir ^pf>7r TT? ^; vs'i ^^ t, q^t' '5? ^w ?i???r 11 cfiir ^ >Ew:r t? SfWW ^teRtft^ t^fT?cf> RTC ^R STeT eR Similarly relevant portion ofdiary note dated 28.10.1994 is as under: Spft ^fi ^ 3KT>W c^ WW ^T'-T ^?t rl|cfrl*H *)R|<1 ^?tft ^ aft^ u|s|<lc;'i<fl sra-ft fuKIft ^t 7n^t ^ERft ^t, ?T^t ^lNtft ^l ft) wr ^iBi ^lcf; ?r uii^l'ii TN ^ WT^ ^r ?T^f t cprffe ^ftcf ^ ter ^ '^ fcP? RHC||^) '14i>id c^ ^B' '•T^T 11 cbgdl t f^? ddlch ^ tln 1 ^TeT ?T5T TJTf^Tr TP3T -i^ ^i?r EpTci?r -^TT t......' w^t' ift ^?r ?7T ?;rtTrf -r cfr srTiaT cRef^l WTff ^ ^ra? yMi'ii ^ST f^ ^i ^friff ^ •ER tf ^cp ^5?ft t..... Ri'cr iTf^T 'g^ ^ft elt^f^d cR-TT 1T^TTT '^T ?Ffft ^tTEn' ^f STT i ...... ^r i[i?T ^t ful'^'n IT'; -l^f 't(?T 'lHch^ f?R ^•Dd rr cf?I ^pl^lt; ^- T?cf> ^3 t]~7 ^ft Sft | ...,. Relevant portion of diary note dated 5.12.1994 is as under: ftTBfft «TR qpft 28.10. c|)T ^T«T SPra' ?3TT STT (Tcr '^•-t ^N f^ff W f^ 3T5[ -i^ 3rq~;ft ^Vf! if STT.ST ^TR ^PT^ c|f( cfi'l^ ch1R|i<| ^T cf^ifr sft^ ^t ift -T^T 1 ^?T f^T "f^ SV^ W^ ^ ^fi? f^T SIT l^ SIcT T|ft ^TW ^ ^p^ cf?t ^ptt STRTT -T ^i ?rt ^r AC[) ^%~TT ........ RycTl sn^ ^t •i'r^ q^ RqT STT f^) uT«[ ^Tt ^FH ^t TKfl-^ ci?r EFR?I ^r tft »t'uT 'wr t ?rr Wr 31^ .rd ^f€v ^r i................... ?TT?IT ^ ^t eR-lpft ^PT ^; ^r cfr crcFrpft ''i^f ^rift ^r cTTiff ^l' ^ft wira w ^? t...... q^ Dec. ^ f^-T f^; SFTST ?r €r iRn i ^rr f^r :Frtt ^ ^t ^?r q?t 3T^ c& t3T S1T TTgcir tfT ?I?T 'c|^TTT f^? Tf^ ^TR il'T »FT ^Tn \....... v^f crt fter? ^f ^ fffTTFT em f^? T^ 4 ^ ^t 3W-IT rfroTT RPTTSTI Similarly relevant portion ofdiary note dated 5.04.1995 is as under: ^m cf? ^TRS cp^r f sf^? 3i6[ afr? ^TRT ^ft^r ^ ^csi Tf€\ 11 i-t-Tlci ^T ^CTT t f^ if-'T -d-tiW uftcFT ;T^f? cR f^TT tl ^T^ TT°'it WTT ift ^ ^ ^S\ ?f 7T^ 11 ?IPT? ^l chl-i"! ^[ftT MRcll'i €t'g^Tt ?^ 7raT t..... ul6f ^T? ^•fl^ T^p ^t iIKT cRtTT t g^ «T®T^l' TRT Iftw 'ste ;'?t, ^T?ft ^TSTt | ^q ^rft cfr TTTaT 1?rqRT grmH ^T f | RT^ ^ ^ ^IT ^ W ^ fel^'g? ?t W-1T 31^t cfi^t 3ft^ ?t(ft 1 ...... ^?TT sw'r w 'qt^TY "cncff ^?f ^l^ch^ ^T ''W^, f^^({1, jj,^c1 "^TT':I ^ 'FT q^cft ^[ ^rf^r srsr ^ f^CTRT SN TT^ ^l sft^ -T^f ^T^T ?t?TT ^ft f^ 3TT.iT t[^' 4 WT ^>T;n ^FS^gTt|3ft^'i!iuft^BI'ft^?^f ?rrm In the letter Ex. P-2 except narrating her own woes such as her apathy to have children etc., the deceased has not made any specific allegation of any sort against the accused/appellant. Similarly, in the' letter Ex.P-3 alsQ instead of making any specific allegation against the accused/appellant she has only stated that she would prefer to live alone than in the KJi ^iWiiaiijM company of the accused/appellant. Ex.P-3 further states that first she wanted to die but afterwards having become stone-hearted she gave UFJ the idea of death. From the above notes and the letters of the deceased it appears that shd was not having a happy married life with the accused/appellant. Tenor of the aforesaid diary-notes as also.the letters does not show that she was subjected to cruelty as defined under Section 498-A or abetment as defined under Section 107 of the Indian Penal Code. Present appears tci be a case where the deceased could not adjust in her matrimonial home. Thus on the basis of the aforesaid diary notes and letters written by the deceased alone, it is difficult for this Court to convict the accused/appellant under Sections 498-A and 306 IPC. I 9. Other evidence available on record is the statements of the parents of the deceased namely Mohini Devi (PW-3) and Ratanlal Agrawal (PW^ 4). Mohini Devi (PW-3) - mother of the deceased has stated that from the beginning of marriage, her daughter was subjected to cruelty by the accused/appellant and other family members also used to support him. She has stated that the deceased used to make complaint to her saying that her husband did not like her.and her father-in-law and mother-in-law also did not support her. She has stated that the deceased wrote the letters Ex. P-2 and P-3 for redressal of her grievances and on the date of incident also she had received an information from the house of thel j accused/appellant that her condition was not good and then she along with her husband and brother-in-law went to Raipur and then to Bilaspur where they came to know that the deceased was no more. According td this witness, once the deceased had informed her that when she became pregnant, accused/appellant forced her to undergo an abortion. This witness is said to have identified the diary notes Ex. P-4 to Ex. P-7 to be in the' handwriting ofthe deceased. She has stated that about 2-3 months after rharriage, the deceased used to inform her about her sad and pathetic condition on phone and personally also when she used to com^ to Gondia. Ratanlal Agrawal (PW-4) - the father of the deceased has alsti made almost similar statement as that of Mohini Devi (PW-3). This witness has however made an additiohal allegation of demand of dowry. FS "» II III. :g;il1II in^i -6- | He has stated that 3-4 days prior to the incident he had given Rs. 35,000 to the father-in-law of the deceased. From the statement ofthis witness it is apparent that while making the statement before the Court he ha^ exaggerated his version and that apart, his statement appears to be full of contradictions and omissions. Statements of these two witnesses make it clear that their statements are nothing but an afterthought just to ensurq the conviction of the accused/appellant. The diary notes Ex. P-4 to P-7] and the letters Ex. P-2 and P-3 written by the deceased do not go tcj show that she was subjected to cruelty by the accused/appellant soori before her death nor even the parents of the deceased namely Smtj Mohini Devi and Ratan Lal Agrawal (PW-3 and PW-4) have stated to this effect. Dr. R.J.P. Verma (PW-5) who had got the deceased admitted irj the hospital. Dr. Kedar Agrawal (PW-6) - maternal uncle of the deceased has not made any specific allegation against the accused/appellant. Assistant Sub Inspector namely R. Tigga (PW-7) is the witness who had done part of the investigation. Dr. Prashant Kumar Tiwari (PW-8) is th^ witness who had performed post mortem^xamination on the body ofth^ deceased has stated that the deceased died due to consumption of poisonous substance. In cross examination, this witness has stated that excessive dose of the pills known as Gardinal may prove fatal to life, Arun Mishra (PW-9) is the investigating officer who has supported the case of the prosecution. 10. Comprehensive study of the material collected by the prosecution including the diary notes (Ex. P-4 to P-7) and the letters (Ex. P-2 and P-3j written by the deceased herself do not show even a .single utterance regarding the cruelty or harassment to her to meet any unlawful demand or the abetment in any manner whatsoever which could have forced her to take this extreme step at the cost of her life. The diary notes written by the deceased though mention so many things including her mental agony yet they hardly speak pf any cruelty or harassment meted out to her soon before death onthe basis of which the ingredients of the provisions for which the accused/appellant has been held guilty, can be brought intQ operation; Qf course, the diary notes and the letters written by the deceased are indicative of the fact that the relations- between the "iil' -•7- deceased and the accused/appellant were not cordial but this alone| would not be enough to sustain the conviction of the accused/appellan^ as has been saddled by the Court below ignoring the fact that the very basic ingredients of the relevant provisions are missing from the scene: For ready reference the provisions of section 498-A IPC is quoted below: "Husband or relative or husband of a woman subjecting her\ to cruelty - Whoever, being the husband or the relative of the\ husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three\ years and shall also be liable:'to fine." Explanation a) any willful conduct which is of such a nature as is likely td, drive the woman to commit suicide or to cause grave injur^ or danger to life, limb or health (whether mental or physical), of the woman; or b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her ta meet such demand. If the evidence collected by the prosecution is taken in the light of the afore-quoted provision, it is not the case 6f the prosecution which may fall within the explanation (b) appended to the said provision. However, in respect of ingredients of explanation (a) of the said provision, thi prosecution has utterly failed to prove that there is any willful conduct of such a nature which is likely to drive the woman to commit suicide or tcj 1 cause grave injury ordangerto life, limb or health. ! 11. Similarly the act of the accused/appellant if taken in the light of the evidence adduced by the prosecutiou, the ingredients of abetment as is defined under section 107 ofthe IPC are completely missing in this case. For ready reference the provisions ofsection 107 IPC are quoted below: Section 107. A person abets the doing of a thing, who - First. - Instigates any person to do that thing; or Secondly - Engages with one or more other person or . persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. - A person who, by willful misrepresentation, : or by willful concealment ofa material fact which he is bound i to disclose, voluntarily causes or procures, or attempts to -8'- cause or procure, a thing to be done, is said to instigate the cfo/ng of that thing. Explanation 2.- Whoever, either priorto or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. " 12. Thus, in aforesaid view of the matter this Court has no hesitation tc( say that the trial Court has misdirected itself from the objective of du^ appreciation of evidence available'; before it and then to arrive at a particular conclusion. Accordingly, the .appeal is allowed. Judgment impugned is set aside. Appellant is acquitted of the charge levelled against him. He is on bail. His bail bonds stand discharged. -Sd/- Pritinker Diwakar Judge ./ .s~\