Judgment:
U.C. Maheshwari, J.
1. This appeal is directed being aggrieved by the judgment dated 24-11-1992 passed by First Additional Sessions Judge, Sehore in S.T. No. 182/91 convicting and sentencing the appellants under Section 306 of IPC for which each one has been directed to under go for five years RI with fine of Rs. 2,000/-, in default of its further six months' RI has been awarded.
2. The facts giving rise to this appeal in short are that the deceased Sauram Bai was married in the form of Natra with Babulal, the son of the appellant No. 1 and the brother of appellant No. 2 before nine-ten months from the date of the incident. On 16-3-1991, her head body was found in the well of family field at Village Bhawra. On receiving such information from Dilip Singh a merg intimation was registered at Police Station, Astha. On carrying out its inquiry it was revealed that she committed suicide on account of giving abatement by the appellants as the day before the recovery of her dead body some quarrel took place in between the appellants and deceased due to such inducement she committed suicide by jumping into the well, on which an offence under Section 306/34 of IPC was registered against the appellants. They were arrested and on completion of investigation they were charge sheeted for aforesaid offence.
3. The case was committed to the Sessions Court on framing the charge for the offence under Section 306 of IPC against the appellants; they abjured the guilty, on which the trial was held. After recording the evidence on appreciation the appellants were held guilty for such charge and punished with the above-mentioned punishment.
4. Shri Ashish Shroti, learned Counsel for the appellants assailed the impugned judgment on the ground that the alleged offence has not been proved against any of the appellants by the evidence led by the prosecution but the same has not been appreciated in accordance with the law. He further said that in the absence of any admissible and reliable evidence regarding offence of cruelty defined under Section 498A of IPC the provision of presumption enumerated under Section 113A of the Evidence Act could not be invoiced against the appellants. The story put forth by the prosecution has not been supported by any independent source of evidence. The Trial Court has not considered all these aspects while holding guilty to the appellants. With these submissions he prayed for acquittal of the appellants by allowing this appeal.
5. On the other hand by justifying the impugned judgment as well as the conviction and sentence of the appellants Shri Pramod Choubey, learned Government Advocate said that in view of the provision of presumption and availability of sufficient evidence against the appellants, the impugned judgment does not require any interference at this stage and prayed for dismissal of this appeal.
6. Having heard the learned Counsel, I have carefully gone through the record of the Trial Court and also perused the impugned judgment, I am of the view that the Trial Court has not appreciated the evidence in accordance with the spirit of law and committed error in holding guilty to the appellants.
7. It is undisputed fact on record that the deceased Sauram Bai died due to downing death as her dead body was found in the well from where it was taken out and on sending to the hospital the post-mortem was carried out by Dr. T.N. Chaturvedi (P.W. 1) who also prepared its report (Exh. P-l). As per his deposition and report Sauram Bai died by mode of asphyxia due to drowning, although viscera was preserved but the report of FSL is not found on the record. He further said that no ante-mortem injury was found on her body, although some part of body was eaten by the water animals. In view of such evidence, the Trial Court has not committed any error in holding her death as drowning death.
8. Now the questions comes whether she committed suicide on account of any cruelty committed by the appellants by which she was abated or due to some other reason she committed such act or she accidentally slipped into the well and died. The appellants took the defence of her accidental death and in support of it a complaint (Exh. D-3), given to the police by Karam the son of the appellant No. 1 after ten days from the date of the incident has also been produced.
9. The prosecution has examined as many as eleven witnesses, out of them three witnesses namely Dhanu Bai, Meharban Singh and Daryab Singh are examined from the parental family of the deceased.
10. Dhanu Bai (P.W.6) the mother of the deceased is not the eyewitness of any incident of quarrel as alleged, which were happened in the family of the appellants. She categorically stated that after demise of first husband of her daughter Sauram Bai she was married with Babulal the son of appellant No. 1 before 111/2 months from the date of the incident. On the date of the incident his son-in-law Meharban Singh was going to Kangdakhedi whom she asked to visit the home of Sauram Bai, on which he went her home, where the appellants were also present along with Sauram Bai. She offered him for lunch, on which he set on a cot and Sauram Bai was preparing the food at the same time appellant No. 2 Shripa Bai told to appellant No. 1 Gulabbai that Sauram Bai prepared various Paratha with Ghee for Babulal on which Gulab Bai asked the Sauram Bai from where she brought the Ghee for preparation of Parathas, she replied that same was made available by his son Babulal on which Gulab Bai started quarrel and in continuation of it, both the appellants started her beating, then Meharban Singh requested them not to do so, then he was subjected to assault by Ghasiram the husband of the appellant No. 1 by means of stick, on which the Meharban Singh came back and mentioned the incident to her. On the next day, she went to village of her daughter where her dead body was found in the well and police officials were inquiring the case from the villagers. She also made the report to the police and carried out the cremation of her daughter after postmortem. Lastly she stated that whenever Sauram Bai visited her house in her lifetime she told her against the appellants. I have not found any report on the record made by the aforesaid witnesses to the police. Even after going through her cross-examination I have not found any evidence regarding any specific incident of alleged cruelty committed by any of the appellants which could be termed as harassment in respect of anything or to fulfillment any demand. According to her statement the incident was happened due to preparation of Paratha with Ghee by Sauram Bai for her husband, except it she has not stated any specific incident against any of the appellants.
11. Meharban Singh (P.W.7) the brother-in-law of the deceased (husband of younger sister) deposed that Sauram Bai was married with Babulal son of the appellant No. 1 according to the custom of the community. On the date of the incident when he was going to Kangdakhedi then her mother-in-law Dhanu Bai asked him to go and met to Sauram Bai at her home, on which he went there and at her request he stayed in her house at the same time appellant No. 2 Shripa told to appellant No. 1 Gulab Bai that Sauram Bai has prepared Paratha for her husband with Ghee then Gulabbai asked to Sauram Bai from where she brought Ghee, she replied that the same was made available by her son, on which she was subjected to beating by the appellants then he came in between them to rescue her then Ghasiram assaulted on him by means of stick on which he ran away from such place and came to the house of her mother-in-law where he resides with his family and mentioned the incident to Dhanu Bai. In his cross-examination some material contradictions and omissions from the case diary statement (Exh. D-2) have come on the record. His testimony is challenged in his cross-examination by asking the question regarding his illicit relationship with Sauram Bai, which was seen by one Ram Prasad, although he denied such fact. In Paragraph 18 he said that he came to know for the first time that Sauram Bai is in trouble in her in-laws family.
12. After going through his entire deposition, I have not found any evidence showing that the deceased Sauram Bai was ever subjected to torture, cruel treatment or under any abatement of the appellants. This witness also stated the dispute regarding preparation of Paratha with Ghee, except it no other specific incident or occasion regarding cruelty or abatement has been mentioned by this witness against any of the appellants.
13. The other witness from the parental family of the deceased Daryab Singh (P.W. 5) the maternal uncle of the deceased (Mosa ji) and neighbour of the appellants stated that on the date of the incident Meharban Singh came to his residence. He offered him for lunch at the same time Sauram Bai came and said that Meharban Singh will take lunch at her home and she went to her home, after some time Meharban Singh also went to home of Sauram Bai for lunch. He was asked to go with him but he did not go. Subsequent to it, Sauram Bai told him that Meharban Singh has gone after taking the lunch and she is going to agricultural field. Thereafter on the way Ram Prasad told him that Meharban Singh is visiting the home of Sauram Bai frequently and asked to stop such practice whom he replied that after coming to Babulal he will tell him in this regard. Subsequent to it when Sauram Bai was not found then Ghasiram came and inquired about her, he replied that she is not at his home, she may be at agricultural field. Accordingly this witness did not speak anything against any of the appellants for committing any cruelty or harassment with the deceased. In Paragraph 15 of his cross-examination he said that on asking by Dhanu Bai the cause of Sauram Bai's death he did not state the version said by the Ram Prasad as he thought that Dhanu Bai may kill him on disclosing such information to her. Therefore, it is apparent that the story put forth by Dhanubai and Meharban Singh is not supported by Daryab Singh.
14. In view of the aforesaid discussion the offence of cruelty defined under Section 498A of IPC have not been proved by the deposition of the witnesses examined from the parental family of the deceased.
15. The other witness Ghasiram, the father-in-law of the deceased deposed that on missing the deceased her search was carried out by him and his family members. But she was not found and subsequent to it her dead-body was found in the well, her slipper and other things were also lying near the well and there was sign of slipping at the boundary of the well, as the same was not bounded by any wall. But the police did not take notice of it. The other witnesses of the village Lakhan (P.W. 3) also supported the testimony of said Ghasiram regarding sign of slipping at boundary of the well and lying the slipper there as he went there for watering to cattle.
16. Except the aforesaid I have not found any evidence on the record showing any act of cruelty, harassment or abatement for committing suicide with the deceased by any of the appellants.
17. So far defence of the appellants that the deceased accidentally slipped in the well has not appealed me because at the initial stage, i.e., during merg inquiry when spot map (Exh. P-9) was prepared no such sign and slipper were found on the spot and the report (Exh. D-3) in writing was given to the police after 8-9 days, i.e., on 26-3-1991. The same appears to be an after thought. Therefore appellants could not be benefited in this count.
18. It is apparent fact on record that the deceased died with unnatural death within seven years from the date of her marriage but her unnatural death is not only sufficient to invoke the provision of presumption enumerated under Section 113A of the Evidence Act. For invoking such provision some other reliable evidence regarding cruelty defined under Section 498A of IPC is necessary on the record as laid down by the Apex Court in the matter of Harjit Singh v. State of Punjab reported in : 2006CriLJ554 , in which it was observed as under:
26. Before invoking the provisions of Section 306, IPC, it is necessary to establish that:-- (i) the deceased committed suicide, and (ii) she had been subjected to cruelty within the meaning of Section 498A, IPC.
27. Only in the even those facts are established a presumption in terms of Section 113A of the Indian Evidence Act could be raised. In the instant case the prosecution has not been able to prove that the deceased was subjected to cruelty within the meaning of Section 498A, IPC. No case that the deceased committed suicide was also made out.
19. In view of the aforesaid dictum when the present case is examined then only one incident regarding preparation of Paratha with Ghee has been mentioned as cause of quarrel in between the deceased and the appellants. Such cause could not be treated as abatement to commit suicide or the cause of harassment or coercion in respect of demand of anything or to fulfil any demand. In the Indian culture such type of dispute or quarrel is normal thing and it could be termed only a normal domestic dispute and it could not be treated as cruelty enumerated under Section 498A or abatement to commit suicide under Section 306 of IPC read with Section 107 of IPC. This question was answered by this Court on earlier occasion in the matter of Laxmi Bai and Anr. v. State of Madhya Pradesh reported in 2000(2) M.P.H.T. 395, in which it was held as under:
It is found from the evidence of the four witnesses mentioned above that there was a domestic quarrel between the deceased and the appellants over some milk. The question is whether it amounts to cruelty within the meaning of the Explanation (a) to Section 498A, IPC, so as to attract Section 113A of the Evidence Act giving rise to a presumption that the appellants abetted the commission of suicide by the deceased. On a dispassionate consideration of the evidence, this Court is of the opinion that there was no 'wilful conduct' on the part of the appellants, which could ordinarily drive the deceased to commit suicide. The alleged cruelty was not of sufficient gravity. In the ordinary course such quarrel, abuses or even pushing the woman do not drive her to take extreme step of committing suicide. There was no grave and serious provocation by the appellants. They cannot be held to have abetted the commission of suicide by the deceased.
20. On examining the case at hand in view of aforesaid precedent the available evidence is not sufficient to draw any inference against the appellants for committing any cruelty, harassment, inducement or abatement for committing suicide to the deceased. In the absence of it, in view of the dictum of the Apex Court in the matter of Harjit Singh (supra), the provision of presumption enumerated under Section 113A of Evidence Act could not be invoked in the present case.
21. Under the aforesaid premises, it is held that the Trial Court has committed grave error, infirmity and perversity in holding guilty to the appellants for the alleged offence the same is not sustainable.
22. Therefore, by allowing this appeal the impugned judgment as well as the conviction and sentence of the appellants are here by set aside. They are acquitted from the alleged charge of Section 306 of IPC. Their bail bounds are hereby quashed. The amount of fine, if deposited, be refunded to them after proper verification.
23. Appeal is allowed as indicated above.