Criminal Appeal No.555 of 2003

24th May, 2017.

Petitioner Counsel: Ms. KSHIRSAGAR, Mr. ANIL MARDIKAR
Respondent Counsel: Ms. SHAMSI HAIDAR

Cases Cited:
Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618 [Para 3,6]
Rajbabu & another Vs. State of Madhya Pradesh, 2008 ALL MR (Cri) 2894 (S.C.)=(2008) 17 SCC 526 [Para 3,6]
Gurcharan Singh Vs. State of Punjab, 2017 ALL SCR (Cri) 42=(2017) 1 SCC 433 [Para 3,6]

JUDGMENT

JUDGMENT:- The Appellant - Accused No.1 in Sessions Trial No. 109 of 2002 challenges his conviction for having committed offences punishable under Sections 306 and 498-A of the Indian Penal Code. By the impugned judgment dated 26th August, 2003, the appellant has been directed to suffer Rigorous Imprisonment for a period of five years for the offence punishable under Section 306 of the Penal Code and for a period of one year for the offence punishable under Section 498-A of the Penal Code.

2. Case of the prosecution is that the appellant was married with one Meena on 16th April, 2000. The couple had a male child out of their wedlock. On 1st April, 2002, the appellant admitted his wife in the Govt. Hospital for treatment. His wife expired on 7th April, 2002 at 11.00 a.m. The father of Meena lodged a report on 9th April, 2002, alleging that on account of unlawful demand of money, his daughter had committed suicide. After the crime was registered, the investigation was carried out. The appellant, his parents and his sister were tried for the aforesaid offences. At the conclusion of the trial, the appellant was convicted in the manner stated herein above, while the other accused were acquitted.

3. Ms. Kshirsagar, learned counsel for the appellant, submitted that there was no sufficient evidence on record brought by the prosecution to prove beyond reasonable doubt that it was the appellant who had committed an offence under provisions of Sections 306 and 498-A of the Penal Code. She submitted that though the father of the deceased had been given the intimation that his daughter was under treatment on 4th April, 2002, a report came to be lodged only on 9th April, 2002 which was two days after her death. She submitted that in his cross-examination, the appellant's father-in-law had admitted that the amounts given by him earlier were as advance. The deposition of PW 2 - Jagannath Katre could not be believed as in his statement that was first recorded, there was an omission to state that he had sold she-goats for raising the amounts. According to her, in absence of any specific evidence as to abetment or harassment, the appellant could not have been so convicted. In that regard, she placed reliance upon the judgments of the Honourable Supreme Court in [a] Ramesh Kumar Vs. State of Chhattisgarh [(2001) 9 SCC 618], [b] Rajbabu & another Vs. State of Madhya Pradesh [(2008) 17 SCC 526] : [2008 ALL MR (Cri) 2894 (S.C.)], and [c] Gurcharan Singh Vs. State of Punjab [(2017) 1 SCC 433] : [2017 ALL SCR (Cri) 42].

4. Ms. Shamsi Haidar, learned Addl. Public Prosecutor for the respondent, supported the impugned judgment. She submitted that the death occurred within seven years from the marriage of the appellant and hence there was a presumption under provisions of Section 113-A of the Evidence Act. There was evidence on record to indicate demand of dowry and its payment. Merely because there was some delay in lodging the report, that by itself was not fatal to the case of the prosecution. He, therefore, submitted that the appellant was rightly convicted by the trial Court.

5. With the assistance of the learned counsel for the parties, I have perused the records of the case and I have given due consideration to the respective submissions.

6. As the conviction of the appellant is for offence punishable under Section 306 of the Penal Code, it would be necessary to refer to the legal position in the light of the law laid down by the Honourable Supreme Court. In Ramesh Kumar [supra], it was held that to attract the provisions of Section 306 of the Penal Code, there has to be instigation to provoke, incite or encourage to do "an act". In Rajbabu & another [2008 ALL MR (Cri) 2894 (S.C.)] [supra], it has been held that the Court has to consider whether alleged cruelty was of such nature that was likely to drive the woman to commit suicide. Merely because suicide was committed within seven years of the marriage, the same would not automatically give rise to the presumption that suicide had been abetted by her husband. In Gurucharan Singh [2017 ALL SCR (Cri) 42] [supra], it was observed that continuity, culpability and complicity are various factors leading to abetment.

7. In the light of the aforesaid legal position, if the evidence on record is examined, it can be seen that PW 1 at Exh.31 has referred to demand of Rs.5,000-00 by the appellant. According to him, he had gone to PW 2 - Jagannath Katre for raising this amount which was then given to the appellant. PW 2 - Jagannath Katre at Exh.34 has stated that he raised the said amount by selling his she-goats. However, the Investigation Officer [PW 6] was confronted with the omission of the fact that no such statement was made by PW 2 with regard to sale of she-goats. Another relevant aspect to be noted is that PW 1 in his cross-examination has categorically stated that an amount of Rs.5,000/- was given to the appellant in January, 2001 as an advance. On a subsequent occasion also, an amount was demanded as advance. Thus, if, according to father of the deceased, the amount of Rs.5,000/- was given as advance to the appellant, the same would not partake the character of an unlawful demand. As far as this piece of evidence is concerned, it hardly supports the case of the prosecution either with regard to offence under Section 306 or Section 498-A of the Penal Code.

8. Yet another aspect, which is required to be noted, is that the father of deceased got information about the fact that his daughter was undergoing treatment on 4th April, 2002. She expired on 7th April, 2002 and the report came to be lodged only on 9th April, 2002. There is no explanation coming on record for reason of delay. It is admitted that the report at Exh.32 was lodged on 9th April, 2002 after obtaining legal advice. The Investigating Officer has admitted that the police personnel were available at the Govt. Hospital. Silence of PW 1 from 4th April, 2002 till 9th April, 2002 has gone unexplained.

The accused nos. 2 to 4, who were also charged with the similar offence, have been acquitted. Thus, the evidence, which was found to be insufficient against Accused Nos. 2 to 4, has been taken into consideration for the purposes of convicting Accused No.1. This approach is also not sustainable.

9. In view of aforesaid material on record, it cannot be concluded that the prosecution has proved its case beyond reasonable doubt. The judgment of the trial Court, therefore, cannot be sustained. In the result, the appeal succeeds. The judgment dated 26th August, 2003 in Sessions Trial No. 109 of 2002 is quashed and set aside. The appellant stands acquitted of the aforesaid offences. Order accordingly.

Appeal allowed.