Chet Ram vs The State Of M.P.
2022 Latest Caselaw 5975 MP

 HIGH COURT OF MADHYA PRADESH : JABALPUR

                    BEFORE
      HON'BLE SHRI JUSTICE VIVEK AGARWAL

               ON THE 23rd OF APRIL, 2022

             CRIMINAL APPEAL NO.2066/1998

Between :-

CHETRAM, SON OF DHANIRAM LAKHER,
AGED 27 YEARS, SUPERVIROR IN NOIDA,
GHAZIYABAD CONSTRUCTION COMPANY,
RESIDENT OF VILLAGE BARKOLA,
PS AJAYGARH, DISTRICT PANNA (MP)

                                        ........APPELLANT

(BY SHRI ROHIT SHARMA AND SHRI GANGA
PRASAD PATEL, ADVOCATE)

      AND

THE STATE OF MADHYA PRADESH,
THROUGH POLICE STATION AJAYGARH,
DISTT. PANNA (MP)


(BY SHRI AJAY TAMRAKAR, PANEL LAWYER)


This criminal appeal has come up for final hearing on this
day, the court passed the following :



                        JUDGMENT

This criminal appeal is filed on behalf of the

appellant under Section 374(2) of the Cr.P.C being

aggrieved of the judgment dated 11.9.1998 passed by the

learned Sessions Judge, Panna in Sessions Trial

No.77/1997 convicting appellant for offence under

Section 306 of the I.P.C and sentencing him R.I. for four

years and fine of Rs.2000/- in default of payment of fine,

further R.I. for three months so also convicting him

under Section 498A of the I.P.C and sentencing him R.I.

for one year and fine of Rs.1000/-, in default of payment

of fine, further R.I. for one month. The substantive jail

sentences were directed to run concurrently.

2. As per prosecution case, deceased Munnibai was

admitted to Primary Health Centre, Ajaygarh on

27.5.1997 at about 11:30 as she had consumed Sulfas

Tablet. The Primary Health Centre, Ajaygarh had sent the

information about the said incident to the Station House

Officer, Police Station Ajaygarh vide Annexure P/6. The

dying declaration of deceased Munnibai was recorded

vide Exhibit P/1 wherein she admitted that because of the

dispute with her husband, she had consumed Sulfas

Tablet, consequently she died.

3. According to the prosecution witnesses, Chaitram

was married to deceased Munnibai four years' prior to the

date of the incident. According to the prosecution

witnesses, Chaitram used to harass deceased Munnibai

and used to call her dark and fat. He used to demand a

sum of Rs.25,000/- for engaging himself in the business.

It has also come on record that deceased Munnibai

resided with Chaitram at Delhi where Chaitram was

working as Supervisor in Noida-Ghaziabad Construction

Company but there also he kept her in trouble and after

sometime sent her to the Village Barkola and because of

ill-treatment and harassment, she committed suicide.

4. Learned counsel for the appellant reading the dying

declaration (Exhibit P/1) of deceased Munnibai submits

that there is no mention of any demand of dowry or

calling the deceased to be dark or fat. In the Dying

Declaration (Exhibit P/1), the deceased Munnibai

deposed that her husband was not keeping her properly

(aavPNs rjg ls ugha j[krk). She admits that nobody brought

the Sulfas Tablets for her and the Sulfas Tablets were

available for preservation of Grains. She had consumed

2/3 Sulfas Tablets at about 8:00 AM. She did not make

any allegation against any other member of the family. In

fact, in reply to the question, she denied any suggestion of

having the dispute with anybody else. The other evidence

is hearsay evidence. There is no corroboration of the

dying declaration of deceased Munnibai.

5. Shri Sharma submits that the Dying Declaration

(Exhibit P/1) was recorded by the Naib Tahsildar Shahir

Khan (PW.1) and he admitted in Paragraph No.5 that

when he had reached the hospital to record the dying

declaration, another lady was sitting with deceased

Munnibai. He had asked her to leave the place. He is not

aware of the name of the said lady and this fact has not

been mentioned in the Dying Declaration (Exhibit P/1).

6. The testimony of Ram Prasad Patel (PW-2) is not

credible. He admits that he had not mentioned the month

in which deceased Munnibai had informed him about the

atrocities being meted out to her for demand of money.

This witness also admits that he is not aware as to

whether the womenfolk of his household were aware of

such facts or not. In Paragraph No.6, this witness admits

that deceased Munnibai had never informed him about

demand of Rs.25,000/- in the hands of Chaitram but

Narayandas had informed him about such demand. As far

as the demand of money is concerned, Ram Prasad Patel

(PW-2) is a hearsay witness. This witness admits that

Narayandas is his friend and they help each other.

7. Girdhari (PW-3), father of deceased, admits that he

had not informed the Police while giving his case diary

statement (Exhibit D/1) that deceased Munnibai used to

inform that her Nanad used to ask her to stay with her

brother. It is further pointed out that Girdhari (PW-3)

also admitted that in his case diary statement (Ex.D/1) if

it is not mentioned that appellant used to call deceased to

be dark in colour, then he cannot give reason for such

omission. It is also pointed out that on reading case

diary statement (Ex.D/1) of Girdhari (PW-3), it is evident

that he is a hearsay witness. He deposed that his son

Narayan Das (PW-12) informed him about the alleged

taunts or demand.

8. It is submitted that Narayan Das (PW-12) in his

case diary statement (Ex-D/4A and D/4B) which was

recorded on 28/5/1997 and 08/06/1997 respectively had

not made mention of either demand of dowry or about

appellant's calling her to be dark in colour. No reason is

given for such omissions. It is pointed out that at the

time of incident, appellant was at Delhi and not in the

Village where deceased committed suicide. In para-11,

this witness has admitted that he had not mentioned in the

Police statement that Chetram threatened his sister to be

burnt. No report was lodged to any Police Officer.

9. In para-21 of cross-examination, this witness

admitted that Ex.D/5 is a letter written to his brother-in-

law (husband of sister deceased-Munnibai) in his own

handwriting, when appellant and his brother had refused

to pay the amount. He had written that accused may

approach his parents directly before the next date i.e. 24 th

February. This witness has also admitted that he had not

collected any information from any person in the

neighbourhood of the house of appellant about torture

meted out to his sister. Reading Ex.D/5, it is submitted

that bargaining was made to settle the case and amounts

were demanded from the accused and his brother.

10. Date mentioned in Ex.D/5 is corroborated with the

date of the order sheet which reflects that on 24/02/1998

case was listed for evidence of remaining witnesses.

Evidence of Girdhari (PW-3) and Narayan Das (PW-12)

were recorded after 24/02/1998 which is clear indication

that there was demand of money from the accused and

when it was not fulfilled, then he was falsely implicated.

11. It is also pointed out that Gulab Singh (PW-15),

Head Constable, Police Station, has admitted that before

recording statement of deceased, he had not obtained any

certificate from the concerned doctor as to whether

statement can be recorded or not.

12. G.P.Dwivedi (PW-13), S.I., Police Station, Ajaygarh

also admitted that in Ex.D/2, statement of Ramkali, taken

by SDOP Shrivastava Sahab. There is no mention that

Jaya Devi had not given food for three days. It is also

admitted that deceased had not given any statement that

she was called dark in complexion. There is no mention

of the fact that accused and sister-in-law of deceased used

to threaten her for life. There is no mention of the fact

that this witness was asked to make arrangement of

Rs.25,000/-. It is not mentioned that appellant-Chetram

had threatened deceased-Munnibai that he will not keep

deceased-Munnibai. It is also submitted that there is no

mention of the fact in Ex.D/4A given by Narayan Das

(PW-12) that any statement was given to burn the

deceased if dowry is not given. There is no mention of

invitation of Bachhon for meeting with Chetram or

Chetram telling him to reach Barkola where he will join

him next morning. Reading all these facts, it is

submitted that there is exaggeration in the statement of

two prosecution witnesses i.e. Girdhari (PW-3) and

Narayan Das (PW-12).

13. It is pointed out that Mukhiya (DW-1) has admitted

that Narayan Das was drunker and he had abused

Chetram. Ghanshyamdas (DW-2) is a person who had

visited house of Munnibai prior to marriage of Munnibai

with Chetram. He deposed that there was no demand

during marriage and there relation was cordial.

Dhaniram (DW-3) deposed that Munnibai was suffering

from pain and consumed some tablets by mistake. No

statement of deceased-Munnibai to point out that

appellant aided in committing suicide, is available,

therefore, conviction cannot be sustained.

14. Reliance is placed on the judgment of Hon'ble

Supreme Court in the case of Rajesh Vs. State of

Haryana, (2020) 15 SCC 359 wherein it is held that

conviction under Section 306 of IPC is not sustainable on

the allegation of harassment without there being any

positive action proximate to the time of occurrence on the

part of accused, which led or compelled person to commit

suicide. In order to bring a case within the purview of

Section 306 of IPC, there must be a case of suicide and in

the commission of the said offence, the person who is

said to have abetted the commission of suicide must have

played an active role by an act of instigation or by doing

certain act to facilitate the commission of suicide. The act

of abetment by the person charged with the said offence

shall be proved and established by the prosecution before

he could be convicted under Section 306 of IPC.

15. Reliance is also placed on the judgment of Supreme

Court in the case of Satbir Singh and another Vs. State

of Haryana, (2021) 6 SCC 1, wherein it is held that

prosecution must establish existence of proximate and

live link between the dowry death and cruelty or

harassment for dowry demand by the husband or his

relatives.

16. Shri Ajay Tamrakar, learned Panel Lawyer for the

respondent/State, submits that there is plethora of

evidence to demonstrate that there was a proximate link

between the cruelty and cause of suicide. It is submitted

that atleast charge under Section 498-A of IPC stands

proved. Learned Panel Lawyer places reliance on the

judgment of Hon'ble Supreme Court in the case of

Thanuram Vs. State of M.P., (2010) 10 SCC 353, and

points out that Hon'ble Surpeme Court has held that

element of instigation within the meaning of Section 107

of IPC is to be examined in view of the provisions of

Section 113-A of the Indian Evidence Act which provides

for a presumption to be arrived at regarding abetment of

suicide by a married woman. It is further held that if a

degree of cruelty is such as to warrant a conviction under

Section 498-A, the same may be sufficient for a

presumption to be drawn under Section 113-A of

Evidence Act in harmony with the provisions of Section

107 of IPC.

17. After hearing learned counsel for the parties and

going through the evidence, both, Girdhari (PW-3) and

Narayan Das (PW-12) who are close relatives of deceased

have admitted that in their case diary statement, they had

not said anything about the deceased being called 'fat and

dark' or about the demand of dowry. There are omnibus

allegation that accused used to demand of Rs.25,000/- to

establish his own business. However, fact is that accused

was already employed in a company as Supervisor in

Uttar Pradesh, therefore, this demand of Rs.25,000/- is

not substantiated by any independent witness. In fact,

these witnesses have admitted that against Rs.15,000- for

which marriage was settled, they had spent Rs.17,000/-.

18. It has come on record that Ex.D/5 is a letter which

was sent by Narayan Das (PW-12), brother of the

deceased, prior to recording of evidence of important

prosecution witnesses asking for settlement of dispute

with his father and mother. This corroborates allegation

of bargaining after death of Munnibai. There was a

demand of money on the part of the complainant party.

This letter Ex.D/5 has been admitted to have been written

by Narayan Das (PW-12), brother of the deceased.

19. There is admission in case diary statement that none

of the prosecution witnesses stated that deceased-

Munnibai was harassed by calling her 'dark and fat'.

Thus, twin elements of demand of money and causing

mental cruelty by calling her 'dark and fat' so to instigate

commission of suicide, have not been proved by

prosecution. In the dying declaration (Ex.P/1) deceased

had not deposed that she was tortured either for demand

of money or by calling her 'fat and dark'.

20. Dying declaration only records a fact that her

husband was not keeping her well (vPNs rjg ls ugh j[krk).

She was annoyed with her husband. She had admitted

that she had no dispute with any other family member of

the appellant.

21. Author of dying declaration (Ex.P/1) Shahid Khan

admitted that one lady was sitting with deceased-

Munnibai, when he had reached hospital to record her

dying declaration. Name of that lady was not known to

him nor he tried to ascertain her name. This is a vital

piece of evidence raising suspicion about neutrality of the

statement of the deceased.

22. It is also admitted by prosecution witnesses that

when Munnibai committed suicide, appellant was not

available in the village. This is another important

circumstance pointing out that there was no positive

action proximate to the time of occurrence on the part of

the accused, which led or compelled the deceased to

commit suicide. Therefore, in view of law laid by

Hon'ble Supreme Court in the case of Amalendu Pal

alias Jhantu Vs. State of West Bengal, (2010)1 SCC

707 and Rajesh (supra) none of the ingredients of

Section 107 of IPC can be said to be available to sustain

conviction under Section 306 of IPC.

23. Similarly in the case of Gurcharan Singh Vs.

State of Punjab, (2020) 10 SCC 200, Hon'ble Supreme

Court has referred to the law in S.S. Cheena Vs. Vijay

Kumar Mahajan, (2010) 12 SCC 190 and has held that

abetment involves a mental process of instigating a

person or intentionally aiding a person in doing of a

thing. Without a positive act on the part of the accused to

instigate or aid in committing suicide, conviction cannot

be sustained.

24. In the case of Satbir Singh and another (supra), it

is held that prosecution must establish existence of

proximate and live link between the dowry death and

cruelty or harassment for dowry demand by the husband

or his relatives.

25. As discussed above, ingredients of harassment or

cruelty soon before or showing any positive action

proximate to the time of occurrence is not made out.

There is no evidence except for improvisation in regard to

demand of dowry or causing mental torture by calling her

'dark and fat'. The law laid down in the case of Thanu

Ram (supra) too is not applicable to the facts and

circumstances of the present case inasmuch as even to

presume cruelty with the aid of Section 113-A of

Evidence Act, dying declaration is to be approached with

utmost alertness. It is to be examined that there should

not be any ambiguity or irregularity in the dying

declaration and it should clearly point out that victim was

treated with both, mental or physical, cruelty. In the

present case that element of cruelty in the dying

declaration is missing. Munnibai did not talk either

mental cruelty or demand of dowry, but, simply said that

her husband was not keeping her happy. Keeping her not

happy is a general statement which can be read in any

direction but when dealing with aspect of abetment, it

needs to be read with lot of circumspection coupled with

the fact that presence of another lady has been admitted

by Shahid Khan (PW-1) just before recording evidence in

the form of dying declaration and there is no explanation

as to who was that lady and what was the extent of her

influence of the dying declaration. Merely on the basis of

suspicion, surmises and conjectures, without there being

any corroborative evidence conviction cannot be upheld.

26. Thus, on the basis of aforesaid discussions, this

Court is of the opinion that impugned judgment having

failed to take into consideration complete ambit of

Section 107 of IPC and Section 498-A of IPC before

convicting the appellant under Sections 306 and 498-A of

IPC, merely on the basis of hearsay evidence or surmises,

cannot be sustained in the eyes of law as discussed herein

above.

27. Accordingly, this appeal is allowed. Impugned

judgment dated 11th September, 1998 passed in Sessions

Trial No.77/1997 is hereby quashed and the appellant is

acquitted of the charges. The appellant is on bail, his bail

bonds are hereby discharged.

28. Learned Amicus Curiae will be entitled to his fee

from the High Court Legal Services Committee on

production of a certified copy of the order. This Court

places on record its appreciation for the assistance

rendered by learned Amicus Curiae Shri Ganga Prasad

Patel.

(VIVEK AGARWAL) JUDGE ts

TULSA SINGH 2022.04.29 18:46:22 +05'30'