HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 126/2011 Parasmal S/o Shri Ramlal b/c Teli, aged 32 years, r/o Bajundra Road, Asind, District Bhilwara.
(At present lodged at Central Jail, Ajmer)
—-Appellant Versus State of Rajasthan
—-Respondent For Appellant(s) : Mr.Suresh Kumbhat, Adv.
For Respondent(s) : Mr.Anees Bhurat, PP HON'BLE MR. JUSTICE MANOJ KUMAR GARG Order 04/07/2019
The instant criminal revision petition has been filed under Section 374(ii) Cr.P.c. against the judgment dated 11.02.2011 passed by the learned Additional Sessions Judge, Women Atrocities and Dowry Cases, Bhilwara in Sessions Case No.1/2008, by which, the trial court convicted the present appellant for offence under Section 498-A and 306 IPC. The appellant was sentenced for the alleged offence as under:-
S.No. Section Sentence Fine Default sentence 1. 498A IPC 3 years R.I. Rs.2000/- 3 months S.I. 2. 306 IPC 5 years R.I. Rs.8000/- 6 months S.I.
Both the sentences were ordered to run concurrently. The trial court also directed that after realization of fine of (2 of 10) [CRLA-126/2011] Rs.10,000/-, the same may be tendered to Gokul Lal, father of deceased as compensation.
Brief facts of the prosecution case are that a written report was filed by PW-1 Gokul Lal before the Police Station Asind stating therein that his daughter Meera was married with Parasmal in the month of April, 2001. After the marriage, her husband started beating her. Whenever his daughter used to visit his house, she narrated the incident of beating by her husband. She also informed that her husband was demanding one lac rupees and has threatened his daughter to kill her. The complainant further stated that on the day of incident i.e. 29.09.2007, when the accused started beating his daughter, at that time she made a call to him on land-line phone from her mobile. The mobile phone was snatched by her husband but was not switched off or disconnected so he heard the noise for about half an hour of beating given to his daughter. The complainant immediately rushed to Asind where neighbourers told them that his daughter has died. He was informed that all the five accused poured kerosene oil on the body of his daughter and killed her. It was also mentioned in the complaint that out of the said wedlock, one daughter and one son was born. On this report, the police registered the FIR for offence under Section 302, 323, 143 IPC and started usual investigation. After completion of the investigation, a challan was filled for offence under Section 304-B, 323, 498-A IPC before the court of Judicial Magistrate, First Class, Asind, District Bhilwara against the appellant. Thereafter, the case was transferred to the court of Additional Sessions Judge, Women Atrocities and Dowry Cases, Bhilwara, where the charges were framed against the appellant. He denied the charges and claimed trial.
(3 of 10) [CRLA-126/2011] The prosecution examined as many as 21 witnesses in all and so many documents were exhibited. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded. On the defence side, the statements of DW-1 to DW-4 were recorded. After conclusion of the trial, the learned Additional Sessions Judge, Women Atrocities and Dowry Cases, Bhilwara acquitted the accused-appellant from the offence under Sections 304-B and 323 IPC but convicted him for the offence under Section 306 and 498- A IPC and awarded the sentenced as stated above. Hence, this appeal.
Learned counsel for the appellant vehemently argued that there is no evidence with respect to the demand of dowry and that on the day of the incident, the appellant was not even present in the house. The marriage took place between the parties on the exchange principle of atta-satta and the learned trial court also disbelieved the story of demand of Rs.1,00,000/- as well as harassment. He further argued that the evidence of PW-1 Gokul Lal with respect to the hearing of noise of beating the deceased about half and hour, on the day of incident when the mobile was not switched off or disconnected, was also disbelieved by the trial court. It is also argued that there are material contradictions, omissions and improvement in the statements of the prosecution witnesses. The mother of the deceased PW-3 Smt. Nosar did not support the prosecution story and was declared hostile. The independent witnesses also corroborated the story of defence. This fact was corroborated by the defence witnesses that at the time of incident, no one was present in the house and the deceased was talking to Maadhu Lal and all of a sudden, she went inside the house and committed suicide. In these circumstances, (4 of 10) [CRLA-126/2011] no offence under Section 306 and 498-A IPC is made out against the appellant. That the learned trial court fell into error in convicting the appellant for the offence punishable under Section 306 and 498-A IPC. He prays that the impugned judgment passed by the trial court may be set aside.
Learned counsel for the petitioner in support of his contentions has placed reliance upon the judgments rendered in the cases of (i) Mayuresh Sain Vs. State of Rajasthan through PP, reported in 2019(2) R.Cr.D. 137 (Raj.), (ii) Assoo Vs. State of M.P., reported in 2012(2) CJ(Cri.)(SC) 378, (iii) The State of Rajasthan Vs. Jetha Ram & Ors., reported in 2012(1)R.Cr.D., (iv) Sagar Dinanath Jadhav Vs. State of Maharashtra, reported in 2018 Cri.L.J. 4271, and (v) Heera Lal and Anr. Vs. State of Rajasthan, reported in AIR 2017 Supreme Court 2425.
Per contra, learned Public Prosecutor has supported the impugned judgment passed by the trial court and argued that the finding of the trial court is based on the correct appreciation of evidence available on record. Therefore, no interference is called for.
I have considered the arguments advanced before me as well as carefully gone through the record.
PW-1 Gokul Lal (complainant) stated in his statement that accused was demanding Rs.1,00,000/- but in his cross- examination, he admits that the deceased used to visit his house as and when she wished and she never complained against her husband. He further admits that the deceased was saturnine in temperament and was having stubborn nature. He admits that during 2001-2007, both the deceased and accused resided happily. PW-1 also admits that he submitted the report upon (5 of 10) [CRLA-126/2011] asking of the police. PW-3 Smt.Nosar, who is the wife of the complainant, was declared hostile. She clearly mentioned that both husband and wife resided happily and no complaint was ever made by the deceased. PW-5 Surendra Kumar, who is brother of the deceased, stated that the deceased complained to his/her father but he never told anyone about the complaint made by the deceased. In his cross-examination, he admits that both husband and wife resided happily and no complaint was made to him. PW-6 Kanhaiya Lal, who is also brother of the deceased admits that both resided happily and no complaint was made by the deceased to him before the incident. PW-7 Lad Devi, who is neighbourer of the deceased, mentioned in her statement that she went to the house of the deceased. At that time, the deceased was talking to Maadhu Lal on telephone. Thereafter, she went inside the room and committed suicide. This witness was declared hostile. PW-8 Smt. Kanchan Devi, who is wife of the brother of the deceased made an allegation that whenever the deceased visited their house she narrated that accused demanded dowry and harassed her but in her cross-examination, she admits that deceased happily visited their house whenever she wanted. The fact of demanding one lac rupees and harassment had not been mentioned in her police statement Exhibit-D-1. Thus, it is evident that she improved her version in her court statement. PW-9 Hemraj stated in his statement that accused demanded one lac rupees from his sister but in his cross-examination he admits that in police statement Exhibit-D/2, the fact regarding the demand of money and harassment has not been mentioned. Thus, he also improved his version in the court for the first time. PW-11 Alam, who is an independent witness, stated that upon hearing the cries of Rekha, (6 of 10) [CRLA-126/2011] who is neighbourer of the deceased, he rushed to the house of deceased. Other persons also reached there. They broke the door and took the body of the deceased outside. In cross-examination, he admits that the door of the room was closed from inside and they had broken the door. He also stated that at that time, Rekha was present in the house of deceased and she informed that the deceased was talking to one Maadhu Lal and thereafter, she went inside and committed suicide. PW-12 Dinesh Singh Chouhan also stated that he heard the noise of Rekha and came out of his house. Upon asking, she told him that Meera committed suicide by pouring kerosene and that before the incident, she talked to Maadhu Lal. They entered the house and took the deceased out after breaking the door. PW-13 Ratan Lal stated that accused never demanded dowry nor harassed the deceased. She resided happily with the accused. PW-14 Modi Ram also stated that both the husband and wife resided happily. The said witness was declared hostile. PW-15 Suresh Mali also gave similar statement to that of PW-13. In his cross-examination, he mentioned that Rekha informed him that the deceased was talking to Madhav on mobile and thereafter, she entered the room and committed suicide. PW- 16 Nanu Ram Kumawat also stated that the deceased and her husband were residing happily and she never heard regarding the harassment of the deceased at the hands of the accused.
Hon’ble Supreme Court in the case of Assoo (supra) while acquitting the appellant therein for offence under Section 306 IPC held that every quarrel between husband and wife which results in a suicide cannot be taken as an abetment of suicide by husband. The standard of a reasonable and practical woman as compared to a headstrong and over sensitive one has to be applied.
(7 of 10) [CRLA-126/2011] Hon’ble Supreme Court in the case of Heera Lal (supra) observed that mere finding of harassment would not lead to conclusion of abetment of suicide. In the absence of evidence as to intention of in-laws to assist deceased to commit suicide, the presumption under Section 113-A cannot be raised. The Apex Court while holding the conviction of the accused-persons improper came to the conclusion that offence under Section 498-A and 306 IPC is not made out against the appellant therein. Para 8 and 9 of the said judgment reads as under:-
“8. We find that having absolved the appellants of the charge of cruelty, which is the most basic ingredient for the offence made out under Section 498A, the third ingredient for application of Section 113A is missing, namely, that the relatives i.e., the mother-in-law and father-in-law who are charged under Section 306 had subjected the victim to cruelty. No doubt, in the facts of this case, it has been concurrently found that the inlaws did harass her, but harassment is something of a lesser degree than cruelty. Also, we find on the facts, taken as a whole, that assuming the presumption under Section 113A would apply, it has been fully rebutted, for the reason that there is no link or intention on the part of the in-laws to assist the victim to commit suicide.
9. In the absence of this vital link, the mere fact that there is a finding of harassment would not lead to the conclusion that there is “abetment of suicide.”
In the case of Mayuresh Sain (supra), this Court at Jaipur Bench in the similar circumstances set aside the order framing charges against the petitioner therein for offence under Section 306 IPC since there was no evidence that deceased committed suicide because of instigation of petitioner.
This Court in the case of Jetha Ram (supra) observed that mere allegation of harassment is insufficient to prove abetment under Section 107 IPC and in para 18 held as under:-
(8 of 10) [CRLA-126/2011] “18. The offence of abetment will constitute when a person abets the doing of a thing when (i) Instigated any person to do that thing; or, (ii) Engaged 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 doing of that thing and (iii) Intentionally aids, by any act or illegal omission, the doing of that thing. Hence either of these things are essential to complete abetment as a crime and the word “instigate” literally means to provoke, incite or persuade any person to do any thing and hence to convict a person under Sec. 306 IPC, it is necessary that there should be evidence of instigation or intentionally aiding as provided under three clauses of Section 107.” In the present case, the story of the defence was corroborated by the statement of the appellant under Section 313 Cr.P.C. He clearly mentioned that the deceased was having illicit relationship with Maadhu Jat and this fact of illicit relation of his wife with Maadhu Lal got revealed. She wanted to run away with Maadhu Jat but he did not come to take her so she committed suicide. There is no demand of dowry as well as he never harassed the deceased. On the contrary, he deposited some money in the RD account when his wife told him that he should deposit some amount in the children accounts. The story of the defence was corroborated by DW-1 Smt. Rekha who was an eyewitness. She clearly stated in her statement that she and the deceased both were in the house at the time of incident. The deceased was talking with Maadhu Lal and after that she entered the house and lit the fire. In cross-examination which was done by the Public Prosecutor, she mentioned that Madhav earlier visited her house twice. He was neighbourer of Meera’s paternal house. Whenever the deceased husband was not in the house, Madhav visited the house of deceased. The deceased told Rekha that she does not want to live at this place and wanted to run away with Maadhu Lal. Likewise, DW-2 Sukh Lal also corroborated the said story. The (9 of 10) [CRLA-126/2011] finding of the trial court, in which the present appellant was convicted for the offence under Section 306 and 498-A IPC is cryptic and hypothetical. It is evident from the record that at the time of occurrence, the appellant was not even present in the house so there is no question of instigation by the appellant to the deceased for abetment to commit suicide.
In the case of Sagar Dinanath Jadhav (supra), Hon’ble Supreme Court while observing that evidence of defence witness is to be given same value and importance as prosecution witness held as under:-
“17. A proper analysis of the evidence of the said defence witnesses would show that the defence raised by the appellant appears to be probable. As per settled law, the evidence of defence witnesses is required to be given the same value and importance as the prosecution witnesses. In the case of Munishi Prasad v. State of Bihar (2002) 1 Supreme Court Cases 351, the Hon’ble Supreme Court has held in paragraph 3 as follows:-
‘3. ……. Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot be always be termed to be tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution- a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors’ witnesses.’ Thus, the evidence of the defence witnesses in the present case has to be given appropriate importance in examining as to whether the appellant was able to rebut the presumption under Section 29 of the POCSO Act on preponderance of probabilities.”
In view of the aforesaid discussion, the finding given by the trial court for the offence under Section 306 IPC is illegal which (10 of 10) [CRLA-126/2011] deserves to be set aside. In the circumstances, when it has come on record that at the time of incident, the deceased talked with Maadhu Lal, with whom she was having some illicit relation and thereafter, she went inside the room and commit suicide, no offence under Section 306 and 498-A IPC is said to be made out against the petitioner.
Accordingly, the criminal appeal is allowed and the judgment dated 11.02.2011 passed by the learned Additional Sessions Judge, Women Atrocities & Dowry Cases, Bhilwara convicting the appellant for offence under Section 498-A & 306IPC is set aside.
The appellant is discharged from the said offences. He was on bail.
He need not be surrendered. His bail bonds are cancelled.
(MANOJ KUMAR GARG),J w4/NK Powered by TCPDF (www.tcpdf.org)