Hariom S/o Munshilal vs State of Madhya Pradesh

Aggrieved by the judgment of conviction passed by

the learned Sessions Judge, Shajapur in S.T.No.155/2014 dated

19.12.1997, this criminal appeal is filed challenging the

impugned judgment and conviction under Section 306 and

498-A read with Section 34 of IPC and sentence of 4 years each

and fine of Rs.2000/- under Section 306 / 34 of IPC and sentence

of 1 year R.I. each and fine Rs.1000/- under Section 498-A / 34

of IPC, with default stipulation.

Appellant no.2-Chandrakalabai W/o Munshilal was

reported expired on 03.02.2003 and the appeal filed by her was

ordered to be abated by order dated 19.08.2004.

The prosecution case in brief is that the accused

Hariom S/o Munshilal, Chandrakalabai, wife of Munshilal are all

residents of village Lima Chouhan, police station Chappiheda,

district Shajapur. The deceased Sumanbai was married to

accused Hariom in the year 1976. Accused Chandrakalabai is

mother of accused Hariom and mother-in-law of the deceased.

Munshilal (PW-1) is the father-in-law of the deceased and father

and husband respectively of accused Hariom.

Vasudev (PW-4) is brother of the deceased.

Whenever Sumanbai came to the house of her brother, she

used to complain against the present appellants that they had

been fighting with her and beating her and treating her with

cruelty. On 19.09.93 she left her matrimonial house without

informing anybody. Munshilal, father-in-law of the deceased

tried to search her for two days and thereafter on 21.09.1993

he lodged a report of missing person at police station Lima

Chouhan. The deceased was searched by Devilal(PW-11) and

Shambhu Dayal (PW-12). A report of the missing persons was

prepared by Shambhu Dayal (PW-12) on 21.09.1993. Skeletal

remains of woman was found in nearby forest of village Lima

Chouhan and near the dead body, one saree and undergarment

of a woman were also found. One golden Mangalsutra worn by

married women was found near the skeletal remains. On the

basis of her garments and Mangalsutra, the dead body was

identified as that of deceased Sumanbai. Thereafter, a case was

registered under Section 306 / 34 of IPC.

After investigation Section 498-A of IPC was also

added. During investigation a letter written by appellant no.1

was seized which is marked as Ex.P-17. This letter was sent to

the handwriting expert for his opinion whether the signature on

the letter was of appellant no.1. The report was given in

positive by the handwriting expert.

The trial Court framed charges under Section 498-

A/34 and 306/34 of IPC . The appellants abjured their guilt. The

trial Court recorded statements of prosecution witnesses,

examined the appellant under Section 313 of Cr.P.C., also,

recorded statements of defence witnesses and return a finding

of guilt under Section 306 / 34 and 498-A of IPC as aforesaid.

Aggrieved by this order, this appeal is filed on the

ground that (i) defence version was totally discarded by the trial

Court, while statement of the prosecution witnesses were

believed which is against law (ii) there were material omissions

and contradictions which were not taken into consideration by

the trial Court (iii) the trial Court also failed to take into

consideration whether the deceased Sumanbai committed

suicide or her death was accidental was not proved by the

prosecution (iv) the trial Court also erred in relying the

statements of R.P.Pathak(PW-13) and Vasudev(PW-4)

regarding alleged letter.

Learned counsel for the State supports the

impugned judgment and pray that the appeal be dismissed and

findings of the lower Court be affirmed.

Regarding offence under Section 498-A of IPC, the

Court relied on Ex.P-17. This letter was written on 20.07.1993

and handed over to the deceased Sumanbai. The contents of

the letter showed that there was some incident on the festival

of holi on 09.03.1993. The appellant no.1 admitted in the letter

that he was instigated by his mother, appellant no.2 and on her

instigation he committed a wrong for which he was ashamed.

He also stated that he asked the deceased Sumanbai and also

his in-laws to forgive him for this. He further promised that in

future such incident would not be repeated. He also expressed

that he wanted his transfer from village Lima Chouhan and

wanted to shift his family to some other place. He also

expressed his gratitude towards his in-laws that they had given

him another opportunity to improve.

This apart, the statement of Vasudev (PW-4) was

taken into consideration who is brother of the deceased. He also

stated that the deceased used to narrate to him that she was

not treated properly by the appellants. Bhikamchandra (PW-9) is

an independent witness. He stated that the deceased Suman Bai

came to his house alongwith 2-4 other ladies. She told him that

she was coming from Bhopal. Her parents lived at Ujjain and

she was a resident of village Lima Chouhan. She told him that

she was wife of appellant no.1. He took her to Sarpanch

Kanhaiyalal. He gave her clothes etc. He further stated that the

deceased told that appellant no.2 was not treating her properly

and she used to harass her. Her (the deceased) husband also

used to harass her and behaved in a very strict manner. Durga

Shankar is her distant brother. After some time father of

appellant no.1 Munshilal came to his house and took Sumanbai

with him. Durga Prasad (PW-10) is also resident of Sandavata.

He confirmed in his statement that Sumanbai came to village

Sandavata and met Bhikamchandra and he also confirmed that

Bhikamchandra (PW-9) told him everything Sumanbai stated to

him(Bhikamchandra). When father of appellant no.1 came to his

village to take Sumanbai back he also asked him not to harass

her in future. R.P.Pathak, (PW-13) is the hand writing expert

who prepared the report Ex.P-42 and as per the report the

signature on Ex.P-17 matched with that of appellant no.1.

Learned counsel for appellants submits that

deceased Sumanbai was mentally upset. She left the house and

went away. He submits that statement of Bhikamchandra

(PW-9) supports this view. On that occasion also she left the

house without informing anybody at her in-laws house.

I have gone through the statements of Vasudev

(PW-4), Bhikamchandra (PW-9) and Durga Prasad (PW-10) and

on the basis of these witnesses it is apparent that she was

subjected to cruelty and harassment by the appellants. Ex.P-17

also it is properly proved and indicates that she was not happy

with the treatment given by the appellants to her.

Coming to the point that what was the nature of her

death whether she committed suicide or whether it is accidental

or homicidal is to be seen. Committing suicide is an essential

ingredient of offence under Section 306 of IPC and also under

Section 498-A because cruelty should be of such nature which

has driven a person to commit suicide. Apparently, there is no

medical evidence to confirm nature of death of the deceased

and the doctor who examined the skeletal remains of the

deceased expressed no opinion regarding the nature of her

death and kept it open. There were gnawing effects present on

the bones exposing the bone marrow in long bones indicating

mutilation of body by animals. However, there is no indication

to show whether the death was suicidal or accidental.

Counsel for the appellant submits that the incident

took place in the month of September, when rainy season was

in full force and the river on the bank on which the dead body

was found, there was a possibility that accidentally she fell in

the river and died. However, we cannot rest our findings on

suspicion and imagination and as such, there is no finding to

show that she committed suicide.

Learned trial Court took the attending circumstances

into consideration holding that she was treated with cruelty and

she was having three issues, leaving them, she left her

matrimonial house, without informing anybody and in these

circumstances, according to the trial Court, it may be assumed

that she left the house only to commit suicide. This again was

based on imagination. Circumstances cannot be taken into

consideration to conclude that she committed suicide and,

therefore, if the main ingredients of Section 306 of IPC that

abatement should be to commit suicide is not proved and as

such, so far as charge under Section 306 / 34 of IPC is

concerned, charge is not proved.

Coming back to charge under Section 498-A / 34 of

IPC there are ample evidence to show that she was subjected to

cruelty by the present appellants. The "cruelty" is defined in

Section 498-A of IPC which reads as under:-

"(a) any willful 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 harass- ment 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."

It is apparent that nature of cruelty should be such

that it is likely of a woman to commit suicide. Since in this case,

suicide is not proved, then this limb of Clause (a) of explanation

appended to Section is not applicable in the present case.

However, second limb which provides that when there is injury

caused to the health of woman which includes mental health

also, such behaviour amounts to cruelty.

In the considered opinion of this Court, there is

ample evidence available on recorded to show that she was

treated with such cruelty that her behaviour appear to be that

of a person who had lost mental equilibrium. She reached on

her own alongwith some other women to village Samavat and

came in contact with Bhikamchandra (PW-9). She was not

having any proper clothes to wear and that is why the witness

gave her clothes also. This showed her mental state. Before the

date of incident on 19.09.1993, she again left the house without

informing anybody while she was having three children and

such behaviour shows a loss of mental equilibrium and as

pointed out by other evidence like statement of Vasudev (PW-4)

and Ex.P-17 she was not treated properly by the appellants and,

therefore, loss of mental equilibrium could be attributed to such

behaviour.

In this view of the matter, so far as charge under

Section 498-A is concerned it is well proved and appeal so far as

it relates to charge under Section 498-A / 34 of IPC has no force.

Accordingly, this appeal is partly allowed. The

conviction and sentence of appellant under Section 306 / 34 of

IPC are set aside. The appellant is acquitted from charge under

Section 306 / 34 of IPC and conviction and sentence passed by

the trial Court under Section 498-A / 34 of IPC are hereby

confirmed. The fine amount of Rs.2,000/- if paid by him, may

be refunded to him. The order of the trial Court in respect of

disposal of property is hereby confirmed. The bail and bond

produced by the appellant stand cancelled. The trial Court is

directed to take him under custody and send him to custody for

suffering remaining part of the sentence under Section

498-A / 34 of IPC.

C.C. as per rules.