ASHOK KUMAR Vs. STATE OF MP

JUDGEMENT

(1.) THIS appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment of conviction dated 10/10/1995 passed by 9th Additional Sessions Judge, Bhopal in Sessions Trial No. 12/94, whereby the appellants have been convicted for the charges under Sections 306 and 498A, IPC and directed to undergo five years RI and fine of Rs. 1,000/ - and two years RI and fine of Rs. 500/ - respectively, in default of payment of fine one year and three months additional rigorous imprisonment respectively and both the sentences were directed to run concurrently. As per prosecution story, deceased Shobha Bai was the wife of accused -Ashok, daughter -in -law of Kala Bai and sister -in -law of Raju @ Rajesh. It is said that the marriage of deceased Shobha Bai was solemnized about five years back with accused. As alleged accused persons subjected her with cruelty, however, she had consumed Sulphas tablets and committed suicide on 21/10/1993. Initially Marg Intimation was received thereafter offence under sections 306/198A of IPC was registered at crime No. 116/93 by Police Station, Gunga, Distt. Bhopal and the challan was filed against the accused persons. As the offence was triable by the Court of Sessions, however, committed to the said Court and the charges under Sections 306 and 498A of IPC were framed. The accused - persons have abjuted their guilt ad put the defence of false implication.

(2.) THE prosecution has produced as many as eleven witnesses in the case. Hariprasad (PW -1) and Himmat Singh (PW -2) both have not supported the prosecution case, Vijay Singh (PW -3), ASI, who recorded the statement of Shyama Bai, Jaswant and Chen Singh. Dr. O.K. Satpathi (PW -4) proved the post - mortem report and opined that cause of death is due to consuming poisonous substance i.e. Aluminium Phosphide. Jagsay Ram (PW -5), Naib Tahsildar, reached on the spot i.e. Hamidiya Hospital, Bhopal and under whose instruction Panchayatnama of the dead body was prepared. Mangilal (PW -6), is the Chowkidar of the village and a witness to the investigation. Bhagwan Singh (PW -7) Independent witness has also not supported the prosecution story. Chen Singh (PW -8) father, Shyama Bai (PW -9) mother and Jasmal (PW -10) is the brother of the deceased and Kamal Singh (PW -11) is the brother -in -law (husband of real sister of the deceased). In defence accused persons have examined Hari Prasad DW -1 and Lakhan Singh @ Laxmi Chand DW -2.

(3.) SHRI Imtiaz Husain, learned counsel representing the appellants has contended that no legal evidence to prove the charge of abetment to commit suicide for the offence under Sections 306 and 498A of the IPC has been brought by prosecution. It is submitted that abetment of a thing has been defined under Section 107 of IPC whereby it is apparent that whoever instigates any person to do that thing or engages himself or with others in conspiracy for doing of that thing, if the said act or illegal omission takes place in pursuance to the conspiracy to do that thing or intentionally aids, by an act or illegal omission of doing that thing would be abettor. In the present case Shobha Bai committed suicide by consuming Sulphas tablets contains Aluminum Phosphate. But, to prove the charge, it is to be established by the evidence that commission of the suicide by the deceased is by virtue of an abetment made by the accused persons. In this respect statements of Chain Singh (PW -8) (father of the deceased) and Shyama Bai (PW -9) (mother of the deceased), who are star witnesses, have been referred and contended that ingredients to abet the act of suicide have not proved. The other independent witnesses Hari Prasad (PW -1), Himmat Singh (PW -2), Bhagwan Singh (PW -7) and Kamal Singh (PW -11) have not supported the prosecution story. In the statement of Chain Singh (PW -8), Shyama Bai (PW -9) and Jasmal (PW -10), it has come on record that Shobha Bai was married with Ashok about four years back and they were not behaving properly with the deceased. Chain Singh (PW -8) states that because the motorcycle was not given, therefore, the deceased was subjected to cruelty and harassment while Shyama Bai states that Rs. 10,000/ - has not been given, therefore, she was subjected to cruelty. Jasmal (PW -10) has not stated regarding demand of dowry. It has further been stated that due to the said act of cruelty and harassment, deceased was called at their home by them. A notice was also sent for taking the proceedings of restitution of conjugal rights in a court. After some time somewhere in the year 1992 there was a compromise in between the parties and in furtherance to it deceased has again resided with in -laws for about three months during such period no allegation of cruelty and harassment is there. In view of the aforesaid, it is contended by him that no iota of legal evidence to prove abetment to commit suicide is available on record, however, the conviction of the appellants for the offence under Section 306 of IPC is wholly unwarranted and the trial Court has committed error to record such finding merely drawing the presumption of Section 113A of Evidence Act It is also contended by him that even the charge under Section 498A has not been duly established on account of inconsistency in the evidence of Chain Singh (PW -8) and Shyama Bai (PW -9) for demand and they have deposed regarding cruelty, harassment for non fulfilment of the demand of dowry. Therefore, conviction of the appellants for the said charges is without due appreciation of the evidence. Consequently, the sentence as awarded is also not in accordance to law, therefore, the judgment passed by the trial court may be set aside and the appellants may be acquitted from the said charge.