Madhya Pradesh High Court
Kamal Kishore vs State Of M.P. on 6 August, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1 CRA-466-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON August 6, 2024
CRIMINAL APPEAL No. 466 of 2012
KAMAL KISHORE
Versus
STATE OF M.P.
Appearance:
Shri Rakesh Kumar Sharma, learned Senior Counsel with Ms. Bhavya
Sharma, learned counsel for the appellant.
Shri Ajay Kumar Nirankari, learned Public Prosecutor for the
respondent/State.
ORDER
Per: Justice Vivek Rusia
The present criminal appeal has been filed under Section 374 of the
Code of Criminal Procedure, 1973, by the appellant against the judgment of
conviction and sentence dated May 22, 2012, passed by the Additional
Sessions Judge (Fast Track Court) Sabalgarh, District Morena, M.P.,
whereby appellant has been convicted for the offence punishable under
Section 498A of IPC and sentenced to undergo RI for one year with fine of
Rs. 500/- and under Section 302 of IPC and sentenced to undergo Life
Imprisonment with fine of Rs. 5,000/- with default stipulations.
2. As per the prosecution story, a Marg Intimation was recorded at the
2 CRA-466-2012
Police Station Kailaras, District Morena, based on information given by the
appellant on March 13, 2008, that he resides in his own house situated at
Shivhare Gali, Kailaras. After taking dinner and tea, he was sleeping with his
wife and children in the room on the second floor. At about 11 a.m., his
daughter Sanjana woke up and wanted to go to the toilet, but he noticed that
his wife was not on the bed. He tried to open the door but it was bolted from
the out side. He opened the gate with the help of Phukni, came out, and saw
that his wife was hanging in the next room from the roof-hook by Sari. He
shouted, and his mother Shanti Devi, niece Hemlata, and son Anil came
there. They brought his wife to the floor. She had already died. The report
was recorded at Marg No. 8/2008 under Section 174 of Cr.P.C. The crime
details form was filled out, and a spot map was prepared. Thereafter, an FIR
was registered under Sections 304-B and 498-A of the IPC against his
appellant on March 14, 2008, at Crime No. 75/2008. The investigation
revealed that the marriage of this appellant with the deceased Manju was
solemnized in the month of July 2001 under Hindu rituals. The appellant was
not satisfied with the dowry given by the parents of Manju, and he was
demanding a motorcycle and Rs. 50,000/-. She was subjected to physical as
well as mental cruelty. On the day of the incident, she was also assaulted by
the appellant, due to which she hanged herself. The dead body was sent for a
postmortem, and after examination, the doctor gave the following opinion:
Manju W/o Kamal Kishore Shivhare, 25 years old, F, r/o Kailaras
Died due to Ashphyxia due to hanging. Time since death within
24 hours post-mortem examination. Suicidal in nature.
3. After completing investigation, charge sheet was filed under Section
3 CRA-466-2012
306 and 498A of IPC. Thereafter, the trial was committed to the Sessions
Court. learned Additional Sessions Judge framed the charges under Section
498A and 306 of IPC and in alternate Section 302 of IPC against the
appellant, which he denied and pleaded for trial. The prosecution examined
as many as nine witnesses and exhibited 14 documents. After evaluating the
evidence, the Additional Sessions Judge acquitted the appellant under
Section 306 of IPC but convicted him under Section 498A and 302 of IPC
and sentenced as aforesaid. Hence, this appeal is before this Court.
4. We have heard learned counsel for the parties and perused the
record.
5. Learned Senior Counsel for the appellant submits that on the basis
of the post mortem report and the testimony of the doctor, at the very least, it
is a case of Section 306 of IPC and not the case of Section 302 of IPC. The
prosecution rightly filed the charge sheet under Section 306 of IPC but the
learned trial court, without any evidence or material, has wrongly convicted
the appellant under Section 302 of IPC. learned senior counsel has read out
the conclusion para of the judgment and submits that learned Additional
Sessions Judge has not discussed any evidence before convicting him under
Section 302 of IPC. He has been convicted only on the basis of
circumstantial evidence.
6. The learned public prosecutor for the respondent-State argued in
support of the judgment and prayed for dismissal of the appeal.
7. The aforesaid facts are not in dispute. The prosecution examined
Manoj Singh (Ex.P/1), who is the seizure witness. Savita (P.W.2), who is the
4 CRA-466-2012
sister of the deceased, deposed only in respect of demand of Rs. 50,000/- and
motorcycle and physical cruelty with Manju by this appellant. According to
her, Manju hanged herself and died. Shobha Bai, mother of the deceased,
was examined as P.W.3. According to her, the appellant used to commit
cruelty with Manju. Likewise, Suresh (P.W.4), the brother of the deceased,
gave evidence about the demand of dowry and cruelty. In view of the above,
there is no eye witness in this case who saw this appellant commit murder
of his wife.
8. The postmortem was conducted by Dr. A.K. Gupta (P.W. 5), who
did not find any injury on the body except a ligature mark from hanging. He
clearly found that this death was suicide within 24 hours of the postmortem.
In the cross-examination, he admitted that tongue of the deceased did not
come out due to hanging. Therefore, there is absolutely no evidence in this
matter to convict the appellant under Section 302 of IPC. Even though it is
not a case under Section 304B of the IPC because the unnatural death took
place after eight years of marriage,.
9. Looking at the evidence that came on record, we would have
converted the conviction of the appellant from Section 302 of IPC to Section
306 of IPC, but in this case, the Additional Sessions Judge has already
acquitted this appellant under Section 306 of IPC, against which no appeal
has been filed; therefore, we cannot convert his sentence under Section 306
of IPC. As discussed above, the appellant cannot be convicted under Section
304 Part II of the IPC because Section 304 Part II has been converted to
Section 306 of the IPC during the trial. At the very least, the conviction
5 CRA-466-2012
under Section 498A of the IPC is liable to be affirmed, but the conviction
under Section 302 of the IPC cannot be affirmed as there is absolutely no
evidence that this appellant hanged his wife with intent to kill. As per the
Marg report, the door of the room in which the appellant was sleeping along
with his daughter was bolted from outside, and the appellant himself opened
the same with the help of Phukni and thereafter saw his wife hanging.
Therefore, the wife of the appellant committed suicide in her house at 11
a.m. on the date of the incident, March 13, 2008.
10. In view of the aforesaid facts and circumstances, the appeal is
partly allowed. The conviction of the appellant under Section 302 of the IPC
is set aside. His conviction under Section 498A is affirmed. The appellant is
in jail. He shall be set free, subject to depositing the fine amount, if not
deposited, and if he is not required to be kept in jail in any other case.
11. The record of the trial court be sent back along with a copy of this
judgment. A copy of this order will be sent to the jail authorities in faster
mode.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
SP
