Sandeep vs The State Of Madhya Pradesh
2021 Latest Caselaw 7806 MP

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           THE HIGH COURT OF MADHYA PRADESH
                    BENCH AT INDORE
            (S.B.: HON'BLE Mr. JUSTICE VIVEK RUSIA)

                      Criminal Appeal No.5007/2020
                   (Sandeep and others V/s State of M.P.)

Date: 25.11.2021:

      Shri Ashish Gupta, learned counsel for the appellant.
      Ms. Harshlata Soni, learned panel lawyer for the respondent/State.
      Shri K K Gupta learned counsel for the objector.
      Heard learned counsel for the parties on I.A. No. 11401/2021 first
application under Section 389(1) of the Code of Criminal Procedure for
suspension of a custodial sentence of appellant No.1 - Sandeep.
      The appellants have filed this appeal being aggrieved by the
judgment dated 11.09.2020 passed by Additional Session judge,
Badnawar, District Ujjain whereby they have been convicted for the
offence punishable under Section 304-B and 306 of I.P.C. and sentenced
to undergo 10 years and 5 years R.I. with fine of Rs.1,000/- with default
stipulation respectively .
      As per the prosecution story, the marriage of the deceased Sheela
was held on 21.02.2015 with Sandeep i.e. appellant No.1 under Hindu
customs and rituals. As per the allegations, the deceased Sheela was
subjected to cruelty and harassment by these appellants for the demand of
dowry of Rs. 5,00,000/- for opening a mobile shop. She committed
suicide by hanging herself on 14.11.2018 leaving the suicide note in
which she held responsible the appellants for her untimely death. After
completion of the investigation, Final Report (Challan) was filed for the
offence punishable under Section 304-B and 306 of I.P.C.
      The prosecution has examined as many as seven witnesses, but the
appellants did not examine any witness in defence. PW-1 to PW-4 i.e.
parents, brother and sister of the deceased did not support the case of the
prosecution. Only on the basis of circumstantial evidence and suicide note
, the learned Additional Sessions Judge, has convicted the appellants as
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stated above.
      Learned counsel for the appellant No.1 submits all the witnesses
have categorically denied the charges of cruelty and demand of dowery
and stated that the appellants used to keep the deceased happy after the
marriage and there was no cruelty or harassment meted out with her for
the demand of dowry, therefore, the learned court below has committed
error in law as well as on facts by convicting the appellant merely on the
basis of a presumption under Section 304-B read with 113 of Indian
Evidence Act. The learned trial court has failed to appreciate that there
was no cruelty soon before the death. So far the suicide note is concerned,
only an omnibus allegations are there about the demand of dowry. It is
clear from it that she was only unhappy with the appellant no 1 , who used
to obey his parents and she was feeling that she had become a maid in the
house. Hence, the sentence of the appellant No.1 be suspended.
      Learned Panel Lawyer opposes the prayer of the appellant No.1 by
submitting that deceased Sheela died unnatural death within seven years
of marriage, therefore, under the presumption of dowry death offence u/s.
304-B of I.P.C is established . Although PW-1 to PW-4 i.e. parents,
brother and sister have turned hostile but on the basis of circumstantial
evidence, appellants have rightly been convicted.
      Shri K.K. Gupta, learned counsel for the Objector opposes the
prayer by submitting that wife of appellant No.1 - the deceased Sheela
died unnatural death within seven years of marriage, therefore, there is
presumption of dowry death, hence, appellant has rightly been convicted
under Section 304-B of I.P.C. On the basis of suicide note left by her and
allegations made therein, the appellant has rightly been convicted under
Section 306 of I.P.C. However learned counsel is not disputing that P.W.-1
1 to P.W.-4 did not support the case of prosecution in the court still
according to him no case is made out for suspension of remaining jail
sentence for the appellant No. 1.
      I have heard the learned counsel for the parties and perused the
record.
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      In the case of Gurjit Singh v. State of Punjab, (2020) 14 SCC 264
the Supreme Court of India has held as under :-

       26. It has thus been observed that though presumption could be drawn,
       the burden of proof of showing that such an offence has been committed
       by the accused is on the prosecution. The prosecution has to establish
       beyond reasonable doubt that the accused had instigated, conspired or
       intentionally aided so as to drive the wife to commit suicide.
       27. In Mangat Ram v. State of Haryana [Mangat Ram v. State of
       Haryana, (2014) 12 SCC 595 : (2014) 5 SCC (Cri) 127] this Court
       observed thus : (SCC pp. 607-608, para 28)
       "28. We have already indicated that the trial court has found that no
       offence under Section 304-B IPC has been made out against the
       accused, but it convicted the accused under Section 306 IPC, even
       though no charge had been framed on that section against the accused.
       The scope and ambit of Section 306 IPC has not been properly
       appreciated by the courts below. ...
                                            ***

Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make out the offence of abetment of suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide."

28. After observing the aforesaid, this Court, relying on the judgment of this Court in Hans Raj [Hans Raj v. State of Haryana, (2004) 12 SCC 257 : 2004 SCC (Cri) Supp 217] , observed that even if it is established that the woman concerned had committed suicide within a period of seven years from the date of marriage and that her husband has subjected her to cruelty, the court is not bound to presume that suicide has been abetted by her husband. It is required to take into consideration all other circumstances of the case.

It is not in dispute that none of the witnesses have supported the case of prosecution and they have been declared hostile. Even if the contents of suicide note left by the deceased is taken to be true, at the

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most appellant No.1 is liable to be convicted under Section 498-A of I.P.C. for which he has already undergone more than two years of incarceration. There is no allegation of cruelty soon before the death, therefore, the presumption of section 304 of I.P.C. is rebuttable . The ingredients of Section 306 of I.P.C. are missing. Mens rea and abetment are missing in order to convict the appellant under Section 306 of I.P.C. This is an appeal of the years 2020 and same is not likely to be heard in near future.

Accordingly, I.A. No. 11401/2021 is allowed and it is directed that on furnishing personal bond by the appellant No.1 in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with a solvent surety in the like amount to the satisfaction of the trial Court, for his regular appearance before this Court, the execution of custodial part of the sentence imposed against the appellant No.1 shall remain suspended, till the final disposal of this appeal.

The appellant No.1 after being enlarged from custody, shall mark his presence before the Registry of this Court on 17.01.2022 and on all such subsequent dates, as may be fixed by the Registry in this regard.

C.C.as per Rules.

( VIVEK RUSIA ) JUDGE praveen

PRAVEEN NAYAK 2021.11.26 18:14:34 +05'30'