Court:MADHYA PRADESH HIGH COURT
Bench: JUSTICE Vimla Jain
STATE OF MADHYA PRADESH Vs. DULICHANDRA & ANR. On 01 February 2012
Vague Allegations of Cruelty Against Husband. Absence of Direct and Clinching Evidence Against Husband in Respect of Cruelty Under Section 498A, IPC to Victim. Failure of Prosecution to Establish Guilt Beyond Reasonable Doubt Against Both Respondents. No Infirmity in Impugned Order.
This appeal has been preferred against the judgment dated 15.3.1997 passed by the IV Additional Sessions Judge, Chhatarpur in S.T. No. 40/94, whereby the respondents have been acquitted from the charge punishable under Sections 498-A, 306 of the Indian Penal Code.
2. The facts and the events leading to the present appeal are that on 2.5.1993, Jagannath and his son Rakesh went to the field and deceased Urmila and her mother-in-law were at their home. At about 11 a.m., Bhagwandas Dixit informed Jagannath that Urmila had committed suicide by jumping into the well along with her daughter.
He came to village and found that Urmila and her daughter had died in the well. Thereafter, Jagannath went to police station Ishanager and lodged Merg intimation (Ex. P/11). Police conducted inquest, investigation and recorded the statements of witnesses. After investigation, police found that the deceased was subjected to cruelty and harassment by the respondents/accused, therefore, deceased committed the suicide along with her daughter. The Police registered a crime No. 41/93 (Ex. P/14) against the respondents/accused, prepared the Naksha Panchnama Ex. P/4 and seizure memo Ex. P/5. The dead bodies of deceased Urmila and her daughter were sent to hospital for post-mortem examination and the accused were arrested and charge-sheet was filed against the respondents.
3. The learned Additional Sessions Judge, Chhatarpur framed the charges against the respondents under Sections 306 and 498-A of the IPC. The respondents pleaded not guilty to the charge.
4. To substantiate the charges levelled against the respondents, the prosecution examined 11 witnesses as mentioned below:
PW-1- Suresh Kumar Pateriya- Patwari, Panch of inquest Panchnama Ex. P/1,
PW-2- Halkeram, father of deceased.
PW-3-Kailash Prasad Soni—brother of deceased.
PW-4- Krishna Devi @ Nirmala Devi—sister of deceased.
PW-5 – Mohan Lal—Panch of inquest Panchnama Ex. P/2 and Ex. P/3, spot map Ex. P/4 and seizure of water from well Ex. P/5.
PW-6 -Dr. Ajay Singh Parihar—Proved the post-mortem reports Ex. P/6 and Ex. P/7.
PW-7- Jagannath—Father-in-law of deceased and Panch of spot map Ex. P/4.
PW-8 – Dhaniram—Hostile witness.
PW-9- Prayag Das —Hostile witness.
PW-10- Kashi Prasad—Hostile witness.
PW-11- Shanu Ali—Thana Incharge, P.S. Ishanager, Investigating Officer.
5. The respondents examined one witness namely Madhav Prasad and respondent Dulichandra himself appeared as a defence witness.
6. After appreciating the evidence, the Trial Court did not find the respondents guilty under Sections 306, 498-A of the IPC and acquitted them from the charge levelled against them. Being aggrieved by the impugned judgment of acquittal, the instant appeal has been preferred by the State of Madhya Pradesh, after taking leave from this Court on the grounds mentioned in the memo of appeal.
7. Mr. R.S. Shukla, learned Panel Lawyer appearing on behalf of the State submitted that the Trial Court did not appreciate the evidence in proper perspective. The finding of acquittal is erroneous and deserves to be set aside. He prayed that the respondents should be punished.
8. On the other hand, learned Counsel for the respondents/accused supported the impugned judgment of acquittal and submitted that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. The Trial Court has rightly acquitted them from the aforesaid charge, hence no interference is called for.
9. The question for consideration in this appeal is that whether the Trial Court was justified in acquitting the respondents from the charge under Sections 306, 498-A of the IPC?
10. It had not been disputed that the death of deceased Urmila occurred otherwise than under normal circumstance. Halkeram (PW-2) who is the father of deceased stated that on getting information from police chowki Khargapur that his daughter Urmila and grand daughter Rimpi had died by falling into the well, he went to police station Ishanagar. Shanu Ali (PW-11) the then Incharge Police Station Ishanagar, stated that on 2.5.1993 he received information from Jagannath that his daughter-in-law Urmila and grand daughter had died and registered merg intimation (Ex. P/11) and went to the spot. Dead bodies of Urmila and her daughter Rimpi aged about 9 months were found into well. These bodies were taken out from the well and inquest Panchnama Ex. P/12 and Ex. P/13 were prepared. The dead body of Urmila and dead body of Rimpi were sent to hospital for post-mortem examination.
11. Dr. Ajay Singh Parihar (PW-6), who performed the post-mortem on the dead bodies, opined that the death of deceased Urmila and Rimpi was caused as a result of asphyxia due to drowning in the well. The post-mortem reports Ex. P/6 and Ex. P/7 of both the deceased were placed on record.
12. It is established from the aforesaid evidence that the death of deceased Urmila and her daughter Rimpi were caused as a result of asphyxia due to drowning in the well. Therefore, it can be concluded that the deceased Urmila committed suicide by jumping into the well with her daughter Rimpi.
13. The next crucial question for consideration is whether the respondents abetted the commission of suicide by the deceased?
14. The abetment and abettor are defined in Sections 107, 108 of the Indian Penal Code, which read as under:
Sec. 107. Abetment of a thing—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 place 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 I—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation II—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.
Sec. 108. Abettor—A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.
Explanation 1—The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.
Explanation 2—To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that effect requisite to constitute the offence should be caused.
15. The Apex Court in the case of Gangula Mohan Reddy v. State of Andhra Pradesh, reported in I (2010) SLT 1=I (2010) CCR 143 (SC)=(2010) 1 SCC 750, after considering the dictum laid down in its various earlier decisions held as under:
“Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the Legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306, IPC there has to be mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.”
16. In another case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), reported in VI (2009) SLT 584=IV (2009) CCR 1 (SC)=III (2009) DLT (Crl.) 1011 (SC)=162 (2009) DLT 257 (SC)=(2009) 16 SCC 605, the Apex Court reiterating the legal position laid down in its earlier three Judges Bench judgment in the case of Ramesh Kumar v. State of Chhattisgarh, reported in VII (2001) SLT 356=IV (2001) CCR 178 (SC)=AIR 2001 SC 3837, held that where the accused by his acts or continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an instigation may be inferred. Their Lordships in the aforesaid case of Chitresh Kumar (supra), summed up the legal position as under:
“In order to prove that the accused abetted commission of suicide by a person, it has to be established that:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and
(ii) that the accused had the intention to provoke urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.”
17. In the context of above said settled law on the subject, it is necessary to discuss the material evidence adduced and produced by the prosecution to deal with the submissions advanced by learned Counsel for the parties in the present appeal effectively. Halkeram (PW-1), who is the father of the deceased Urmila, stated that the marriage of his daughter Urmila was solemnized with younger brother of respondent Dulichandra, four years before of the incident. He gifted articles such as fan, almirah, sewing machine and utensils in the marriage. After two months of the marriage, respondents did not send her daughter to her parental home then his son Purshottam brought her. He further stated that Urmila told him that respondent Dulichandra asked her to bring M-80 bike, cooler and Sagarwali, who is the wife of Dulichandra asked her to bring payal and bichhiya. He sent payal and bichhiya to Sagarwali. Urmila had come to her home 3-4 times after her marriage.
18. Halkeram further stated that he received an information through wireless from Khargapur Chowki that his daughter and grand-daughter fell into the well and died. After receiving the wireless, he went to police station Ishanager. The dead bodies were sent to Chhatarpur, therefore, he reached Chhatarpur and ultimately Rampur. He also stated that Asharam, Prabhudayal and Ramdeen informed him that before the death of Urmila, Dulichandra and his wife Prabha quarrelled with her in the presence of Purshottam, Kailash, Hirabai and Kishna. But the prosecution did not examine Asharam, Prabhudayal, Ramdeen, Hirabai and Kishna. During cross-examination, he stated that respondent Dulichandra was working in Kudila Bank. He also stated that he did not lodge any complaint in Khargapur Chowki or Ishanager Police Station. After funeral of deceased, when he returned Rampur, he did not lodge any complaint.
19. Halkeram (PW-1) also stated that he did not inform other relatives about the demand made by Dulichandra and his wife. He admitted in his cross-examination that third time when his daughter came, he gave payal and bichhiya to her. As regards the illegal demand of M-80 bike, cooler, he could not give exact date when demand was made by the respondents. Thus, Halkeram (PW-1) could not give the particulars of said alleged unlawful demand made by the respondent. A suggestion was given to him in the cross-examination that respondents never demanded M-80 bike, cooler, payal and bichhiya but the same was denied by him.
20. Kailash (PW-3), who is the brother of the deceased, supported the statement of Halkeram (PW-1) and stated that his brother Purshottam brought his sister Urmila. Urmila told her that jeth Dulichandra and jethani demanded cooler, M-80, payal and bichhiya. They gifted payal and bicchiya. He further stated that he got information through wireless from Khargapur Police Station after Deepawali that his sister had died. Therefore, he and his father went to Ishanager. When he knew that dead bodies were sent to Chhatarpur, they also went to Chhatarpur Hospital. In Chhatarpur Hospital, post-mortem of dead bodies was performed. Then he went to Rampur. During cross-examination, Kailash (PW-3) stated that when the deceased came to his home 2nd time, she told him regarding unlawful demand made by the respondents. He also stated that Narayan Soni, Manshuki, and Kamta were present at that time, but prosecution did not record the statements of these persons. Regarding the alleged unlawful demand, he was also unable to give exact date. He admitted that he did not file any written complaint for two months after the incident. It is pertinent to note that there is no evidence to show that soon before the death of deceased on 2.5.1993, respondents made any unlawful demand, ill-treated or harassed the deceased. There are lot of improvements and contradictions in his statement. Therefore, it cannot be safe to rely upon such evidence.
21. Krishnadevi @ Nirmila Devi (PW-4), who is the younger sister of deceased, supported the statement of Halkeram (PW-1) and Kailash (PW-3) and stated that her deceased sister told her that the respondent Dulichandra and his wife demanded M-80 bike, Cooler, payal and bichhiya and they abused and harassed her deceased sister. She admitted in her cross-examination that her deceased sister was literate and wrote letters to her father, brother and her. She also stated that the deceased wrote a letter to her before 4-5 days of her death, but the deceased did not mention therein about unlawful demand and quarrel by the respondents. Krishnadevi (PW-4) also wrote a letter to deceased and her husband. She admitted that she wrote letters Ex. D/3 to Ex. D/6 to the deceased, but she had never discussed about the unlawful demand and ill-treatment by respondents. The letters written by her do not show slightest assertion about unlawful demand or cruelty. She did not know when her deceased sister was married and when she returned first time to her parental home. Regarding unlawful demand, she was also unable to give exact date. Thus, the statement of Krishnadevi (PW-4), the sister of deceased, is also full of contradictions and suffers from major improvements. The contradictions of such a nature impair the whole evidence. Therefore, such statement cannot be held to be reliable.
22. Having regard to the totality of the circumstances and the evidence on record and considering the testimony of the witnesses, who are father, brother and sister of the deceased, the alleged unlawful demand and ill-treatment given to the deceased by the respondents would not amount to abetment of offence of commission of suicide. The Section 107 of the IPC provides that harassment should be of such a nature, which amounts to instigation to any person to commit suicide or conspiracy accompanied by an act or illegal omission for commission of suicide. But the said ingredients are missing in the instant case, and therefore, offence under Section 306 of the IPC cannot be said to be made out by the prosecution against the respondents. There is no infirmity in the impugned judgment of acquittal passed by the Trial Court under Section 306 of the IPC.
23. The respondents had also been acquitted from the offence punishable under Section 498-A of the Indian Penal Code by the Trial Court. The ingredients of Section 498-A of the IPC are as follows.
“498-A. Husband or relative of 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. For the purpose of this section ‘cruelty’ means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury 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 to meet such demand.”
24. Keeping in mind the aforesaid position of law and coming to the facts of the present case, admittedly victim Urmila was married with Rakesh, who is the younger brother of respondent Dulichandra, four years before her suicide which she committed on 2.5.1993. Halkeram (PW-1), Kailash (PW-3) and Krishnadevi (PW-4) stated about the harassment at the hands of respondent to victim Urmila. They narrated that respondent Dulichandra and his wife Prabha demanded M-80 bike, cooler, payal and bichhiya. They also stated that respondents abused and quarrelled with her. But after marshalling of evidence of these witnesses, their statements suffer from contradictions and major improvements. Therefore, statements of these witnesses are not reliable. It is also found that deceased was literate. She always wrote letters to her father, brother and sister but she had never complained about unlawful demand and harassment in her letters. It is also found that witnesses had never made any complaint to anyone that respondents used to harass the deceased. Even after death of deceased they did not lodge any report.
25. The Trial Court properly appreciated the evidence and considered the Apex Court judgments. Keeping in view the entire evidence and vague allegations against the respondents and in the absence of direct and clinching evidence against them in respect of cruelty under Section 498-A of the IPC to victim Urmila and failure of prosecution to establish the guilt beyond reasonable doubt against both the respondents, it is found that the Trial Court rightly acquitted the respondents from the offence punishable under Section 498-A of the IPC.
26. I find that the prosecution has not been able to prove the charges against the respondents by leading clear, cogent, convincing and reliable evidence. Therefore, it can be concluded that Court below has correctly appreciated the evidence on record. Thus, there is no infirmity in the impugned judgment of acquittal passed by the Trial Court, therefore, no interference is called for. This appeal is devoid on merits and deserves to be dismissed.
27. Consequently, this appeal fails and is dismissed accordingly. The respondents/accused are on bail. Their bail bonds are discharged.