Jai Prakash vs State of Haryana

T.H.B. Chalapathi, J.—This appeal is preferred against the judgment of the Additional Sessions Judge, Bhiwani, convicting the appellant-Jai Prakash u/s 306 of the IPC and imposing sentence of five years rigorous imprisonment. The appellant along with his brother and mother was prosecuted for an offence u/s 302 IPC and in the alternative u/s 306 IPC.

According to the case of the prosecution, the appellant married Bimla @ Papli, daughter of Sat Narain. The wife of the accused-appellant committed suicide on 26.4.1985 by jumping into a well situated in village Jui Khurd. Father of the victim girl, Sat Narain, lodged report to the police on 27.4.1985. In that report, it was alleged that the accused used to harass his wife Bimla on the ground that she did not bring sufficient dowry and that she complained to her parents about the illtreatment meted out to her by the husband and the other accused, whenever she visited her parental home. Thereafter, she was taken to her marital home and suddenly on 26.4.1985, complainant received a letter stating that Bimla was seriously ill. Thereupon, defecto complainant-Sat Narain and Pushkar Dutt, his wife''s cousin, went to the village and found the dead body of Bimla lying near the well. According to him, his daughter had been killed by the accused and had been thrown in the well. On the basis of the said complaint, police registered a case. The accused also gave a statement to the police alleging that his wife Bimla committed suicide by jumping into a well. On the basis of the complaint given by Sat Narain, the case was investigated and after completion of investigation, the police filed charge-sheet against the appellant-accused. Subsequently, the brother and mother of the accused-appellant were also added as accused. On the basis of the material placed before me the Chief Judicial Magistrate, Bhiwani, committed the case to the Court of Sessions for trial as the offence is alleged to have been committed by the accused and tried by the Additional Sessions Judge, Bhiwani. He framed charges against the accused u/s 302 IPC and in the alternative u/s 306 IPC. In order to prove the guilt of the accused, the prosecution examined 10 witnesses and marked the documents.

In defence, the accused examined two witnesses. On consideration of the evidence on record, the learned Additional Sessions Judge acquitted all the accused for the offence u/s 302 IPC. He convicted the accused-appellant for the offence u/s 306 IPC and acquitted the other accused namely Mahabir, brother and Smt. Sunder, mother of the appellant for the offence u/s 302 IPC.

Aggrieved by the conviction and sentence imposed upon him, the accused-appellant preferred the above appeal.

The learned Counsel for the appellant argued that the marriage took place about 8 years back to the death of Bimla and, therefore, presumption u/s 113A of the Evidence Act is not available to the prosecution and the prosecution must prove that there was harassment on the part of the accused-appellant and the Trial Court held in drawing presumption and placing the rebuttal of evidence on the actual appellant. He further argued that the only evidence against the accused is that P.W. 1, P.W. 6 and P.W. 7, and reading of the said evidence does not disclose any illtreatment and harassment on the part of the actual appellant. He further argued that the evidence of D.W.-1, Dr. Kusum who examined Bimla clearly shows that Bimla was suffering with abdominal pain. It was because of that Bimla committed suicide as unbearable pain.

It is contended by the learned District Attorney, that the marriage took place only 5 years back and the learned Additional Sessions Judge, Bhiwani has rightly drawn presumption u/s 113A of the Indian Evidence Act and, therefore, it is for the accused that there was no harassment on the part of the accused-appellant. He further contended that there are no grounds to disbelieve the evidence of P.W. 1, P.W. 6 and P.W. 7 and, therefore, learned Additional Sessions Judge, Bhiwani has rightly convicted the accused for the offence u/s 306 IPC. There are no grounds for warranting interference in the same. The point for consideration is whether the conviction and sentence imposed by the learned Additional Sessions Judge on the accused-appellant cannot be sustained.

There is no dispute that the victim-Bimla was married to the accused-appellant. According to the case of the prosecution, the marriage took place only 5 years back to date of death of Bimla but according to defence, marriage took place on 21.4.1977. If the marriage took place within seven years prior to the death of wife, then statutory presumption u/s 113A of the Evidence Act can be invoked but if the marriage is beyond 7 years the same is not applicable. Therefore, it is necessary to see when the marriage took place between the accused and Smt. Bimla. The accused is relying on Ex. DB which is a lagan paper, according to which, the marriage took place on 21.4.1977. This is about 8 years prior to the date of death of Bimla. P.W. 1 who is the father of the deceased in his evidence clearly admitted that Ex. DB is lagan paper about the marriage of his daughter but subsequently when he came to know that it was 8 years prior to the death of Bimla, he resiled from his earlier version and stated that it does not pertain Bimla''s marriage. D.W. 2 has been examined in defence to prove Ex. DB. Apart from the oral evidence to show that marriage between Bimla and accused took place within 5 years. Even P.W. 1, P.W. 6 and P.W. 7 are also not able to give date and year when the marriage between appellant and Bimla took place. It is for the prosecution to prove that the marriage took place within 7 years prior to the date of death to enable the prosecution to rely on the presumption u/s 113A of the Indian Evidence Act. Prosecution failed to prove the date of the marriage. On the other hand, accused produced Ex. DB and P.W. 1 in his evidence clearly stated that Ex. DB is lagan paper about the marriage of his daughter. Reading of the evidence of D.W. 2 also shows that DB was prepared for marriage of Bimla with the actual appellant. I do not see any reason for disbelieving Ex. DB and evidence of D.W. 2 and I am, therefore, of the opinion that the marriage took place about 8 years prior to the date of death of Bimla in which case presumption u/s 113A of the Indian Evidence Act does not arise. It is for the prosecution to prove that the actual harassment which led Bimla to commit suicide.

It is pertinent to know that the learned Additional Sessions Judge, Bhiwani, acquitted the accused for the offence u/s 306 IPC. In the complaint given by P.W. 1, he stated that Bimla was killed and her dead body was thrown into the well so as to make it appear that Bimla committed suicide but this case of the prosecution was not supported by the medical evidence. Doctor who conducted the post mortem examination on the dead body of Bimla has clearly opined that the death of Bimla was due to drowning. Therefore, the theory of killing Bimla and throwing the dead body into well is false. It is next to be seen whether Bimla committed suicide because of harassment meted out to her by her husband namely Jail Parkash-appellant. As already stated only evidence of P.W. 1, P.W. 6 and P.W. 7 is made. P.Ws. 1 and 6 are parents of Bimla and P.W. 7 is the cousin of P.W. 6. P.W. 6 stated that Jai Parkash and his parents were not satisfied with the dowry given to her at the time of marriage. Bimla had also informed her mother that the accused persons wanted to remarry Jai Parkash somewhere else. P.W. 1 even has stated that Bimla had informed him that the accused persons presurised her to bring more dowry and threatened that in case their demand was not met they would arrange second marriage of Jai Parkash. The learned Additional Sessions Judge did not place any reliance on the letters produced by P.W. 1 which were alleged to have been written by the accused-appellant, marked as Ex. PA, Ex. PB and Exs. PC. There is nothing in Ex. PA which throws any light on the harassment. On the other hand it only shows that Papli was very sick and P.W. 1 was asked to come soon. Exs. PB and PC were sought to be relied upon to prove the harassment but the same were not proved. The Hand Writing Expert who has been examined as P.W. 8 in his report Ex. PT also does not show that the authorship of other letters Ex. PC and Ex. PD were written by Jai Parkash accused. Therefore, learned Additional Sessions Judge, Bhiwani rightly excluded the letter from consideration Ex. PC and Ex. PD. Reading of evidence of P.W. 1 and P.W. 6 does not inspire any evidence in Court and it is difficult to place any reliance on their evidence. There are no eye witnesses to prove the harassment made to the deceased at the hands of the actual appellant. Further learned Additional Sessions Judge has observed that there is an element of exaggeration. Evidence of P.W. 7 does not prove that there was any harassment. In the chief examination he has not stated anything about the harassment which compelled Bimla to commit suicide. He has stated that one person met them and informed that Pappli had been killed and thrown in the well. The evidence of P.W. 1 also cannot be of any clear proof as learned Additional Sessions Judge himself has observed that P.W. 1 was not giving straight forward answers to the questions put to him. It dearly shows that if there is a complaint made by the deceased to the parents in regard to the harassment, there would have been some mediation of the Panchayat or being informed to the relative so that the accused-appellant would have been advised to behave properly but P.W. 1 himself admitted that he did not call for any Panchayat in this regard. P.W. 1 categorically stated that he cannot say if Bimla was taking any medicine prescribed by Dr. Kusum. P.W. 6 who is the mother of the deceased also did not give the reasons of illtreatment met out by the deceased.

On careful consideration from the evidence on record, I am of the opinion that the conviction and sentence imposed by the learned Additional Sessions Judge are liable to be set aside. The conviction is based on purely surmises and there is no legal evidence to convict the actual appellant.

Accordingly, I allow the appeal, set aside the conviction and sentence imposed by the learned Additional Sessions Judge, Bhiwani, on the actual appellant.