Madhya Pradesh High Court
Kunchha vs The State Of Madhya Pradesh on 29 May, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
IN THE HIGH COURT OF MADHYA PRADESH
AT I n d o r e
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 29th OF MAY, 2025
CRIMINAL APPEAL No. 2229 of 2023
KUNCHHA
Versus
THE STATE OF MADHYA PRADESH
----------------------------------------------------------------------------------------------------------
Appearance:
Shri Ashish Gupta - Advocate for the appellant.
Shri Apoorva Joshi - Govt. Advocate for the respondent/State.
-------------------------------------------------------------------------------------------
JUDGMENT
This appeal u/S 374 of the Code of Criminal Procedure, 1973[for
short referred to as „Cr.P.C‟ hereinafter] is filed assailing the judgment of
conviction and order of sentence dated 02.02.2023 passed by 3rd Additional
Sessions Judge, Badwani, Distt. Badwani in S.T.No. 131/2019 whereby the
appellant/accused Kunchha was convicted for offences punishable under
Sections 306 and 498-A of IPC and sentenced to rigorous imprisonment for
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
05 years with fine of Rs. 2,000/- with default stipulation of additional
rigorous imprisonment for 03 months.
2. The exposition of facts giving rise to present appeal, in brief, is as
under:
(a) As per the case of prosecution, Door Singh reported to Head
Constable Gajraj Singh of P.S. Palsud that the dead body Mamta
Bai, wife of his brother Kunchha and pregnant for 09 months, was
found in the well at agricultural field of Bhagda in the morning of
03.10.2019. The P.S. Palsud registered unnatural death intimation.
The dead body of Mamta Bai was recovered from the well located
in the agricultural field of Bhagda at Village Bhulgaon. The dead
body was forwarded for post-mortem examination. The Medical
officer opined that Mamta Bai had died due to cardio-respiratory
arrest by drowning within 72 hours of the examination. Her uterus
was expuled out with stillborn male child. During the inquest, it
was revealed that Mamta Bai was married to Kunchha Barela
approximately one year before her death. Kunchha used to harass
Mamta Bai and threaten to leave her. On 01.10.2019, Kunchha
Barela brought his first wife Santri Bai to his home. Mamta Bai
was distressed and dismayed due to conduct of her husband
Kunchha. Therefore, she had committed suicide by jumping into
the well on 01.10.2019. On such allegations, the P.S. Palsud
registered FIR for offence punishable under Sections 498-A and
306 of IPC against Kunchha Barela. Kunchha was arrested on
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
19.10.2019. The statements of witnesses were recorded. The final
report was submitted on completion of investigation.
(b) The learned Judicial Magistrate First Class, Rajpur, Distt. Barwani
committed the case to the Court of Sessions on 13.11.2019.
Learned 3rd Additional Session Judge, Barwani framed charges for
offence punishable under Sections 498A and 306 of IPC against
Kunchha Barela.
(c) On completion of trial, learned 3rd Additional Sessions Judge,
Barwani convicted the accused Kunchha for offence punishable
under Section(s) 498-A and 306 of IPC and sentenced him, as
stated in para 1 of the judgment.
3. The accused Kunchha filed present appeal assailing the impugned
judgment of conviction on following grounds:
A. The impugned judgment is contrary to law on facts and on record.
The ingredients of abetment defined u/S 107 of IPC are not made out.
Hence, the conviction of appellant for offence punishable u/S 306 of
IPC is bad in law.
B. The learned trial Court committed error in concluding that the
deceased had committed suicide because of the conduct of the
appellant. In fact, the deceased had gone to well to fetch water and
accidently fell into it. The prosecution has failed to prove the suicide
by Mamta Bai.
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
C. The investigation agency did not record the statement of first wife of
the appellant. The story of prosecution that the appellant has brought
his first wife to harass the deceased, was not proved.
D. There are material omissions and contradictions in the evidence of
prosecution witnesses. The investigation was conducted in very
casual manner.
4. On these grounds, it is requested that the impugned judgment of
conviction and order of sentence be set aside and the appellant/accused
Kunchha be acquitted.
5. The learned counsel for the appellant in addition to the grounds
mentioned in the appeal contends that the prosecution had failed to prove
the foundation of prosecution story regarding return of Santri Bai, former
wife of Kunchha. Learned trial Court ignored the exaggeration and
inconsistencies in the evidence of Gaja (PW-1), Jam Bai (PW-6) and
Mukesh (PW-7). The judgment of conviction is not sustainable.
6. Per contra, learned counsel for the State opposed the appeal and
submitted that the trial Court committed no error in convicting the appellant.
The appeal is meritless.
7. Heard, learned counsel for the parties and perused the record.
8. The points for determination, in the present appeal, are as under:
(i) Whether Mamta Bai had committed suicide?
(ii) Whether appellant/accused Kunchha abetted suicide of Mamta
Bai?
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
(iii) Whether Kunchha had subjected his wife to cruelty?
(iv) Whether learned Additional Sessions Judge committed error in
convicting the accused Kunchha for offence punishable under
Sections 498A and 306 of IPC ?
Point for determination no (i) - reasons for conclusion.
9. Allegedly, Mamta Bai committed suicide by jumping into well located
in the agricultural field of Bhagda in village Bhulgaon whereas the accused
raised defence that Mamta Bai accidentally fell into the well and died. It is
trite law that prosecution must prove its case beyond reasonable doubt. In
case of Sarwan Singh Rattan Singh Vs. State of Punjab reported in AIR 1957
SC 637, the Supreme Court observed that even when considered as a whole,
the prosecution story may be true but between "may be true" and "must be
true", there is inevitably a long distance to travel and the whole of this distance
must be covered by legal, reliable and unimpeachable evidence.
10. In case of Kishore Chand v. State of H.P., (1991) 1 SCC 286, it was
held that-
4. The question, therefore, is whether the prosecution proved guilt of the
appellant beyond all reasonable doubt. In a case of circumstantial evidence, all
the circumstances from which the conclusion of the guilt is to be drawn should be
fully and cogently established. All the facts so established should be consistent
only with the hypothesis of the guilt of the accused. The proved circumstances
should be of a conclusive nature and definite tendency, unerringly pointing
towards the guilt of the accused. They should be such as to exclude every
hypothesis but the one proposed to be proved. The circumstances must be
satisfactorily established and the proved circumstances must bring home the
offences to the accused beyond all reasonable doubt. It is not necessary that each
circumstance by itself be conclusive but cumulatively must form unbroken chain
of events leading to the proof of the guilt of the accused. If those circumstances
or some of them can be explained by any of the reasonable hypothesis then the
accused must have the benefit of that hypothesis.
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
5. In assessing the evidence imaginary possibilities have no role to play. What is
to be considered are ordinary human probabilities. In other words when there is
no direct witness to the commission of murder and the case rests entirely on
circumstantial evidence, the circumstances relied on must be fully established.
The chain of events furnished by the circumstances should be so far complete as
not to leave any reasonable ground for conclusion consistent with the innocence
of the accused. If any of the circumstances proved in a case are consistent with
the innocence of the accused or the chain of the continuity of the circumstances is
broken, the accused is entitled to the benefit of the doubt.
6. In assessing the evidence to find these principles, it is necessary to distinguish
between facts which may be called primary or basic facts on one hand and
inference of facts to be drawn from them, on the other. In regard to the proof of
basic or primary facts, the court has to judge the evidence in the ordinary way and
in appreciation of the evidence in proof of those basic facts or primary facts, there
is no scope for the application of the doctrine of benefit of doubt. The court has to
consider the evidence and decide whether the evidence proves a particular fact or
not. Whether that fact leads to the inference of the guilt of the accused or not is
another aspect and in dealing with this aspect of the problem, the doctrine of
benefit would apply and an inference of guilt can be drawn only if the proved
facts are inconsistent with the innocence of the accused and are consistent only
with his guilt. There is a long distance between may be true and must be true. The
prosecution has to travel all the way to establish fully all the chain of events
which should be consistent only with hypothesis of the guilt of the accused and
those circumstances should be of conclusive nature and tendency and they should
be such as to exclude all hypothesis but the one proposed to be proved by the
prosecution. In other words, there must be a chain of evidence so far consistent
and complete as not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to show that in all
probability the act must have been done by the accused and the accused alone.
11. Gaja Barela (PW-1), Jambai (PW-6) and Mukesh (PW-7), relatives of
deceased Mamtabai, alleged that Kuncha has killed Mamtabai and thrown
her dead body in the well. However, there is no evidence on record to
substantiate these allegations. There is no evidence to substantiate the
allegation of killing of Mamtabai by accused Kuncha. These allegations are
obviously exaggeration because the previous statements recorded under
Section 161 of Cr.P.C. of these witness do not contain such allegations.
Initially, these witnesses alleged that Mamtabai had committed suicide by
jumping into the well. Dr. Vijay Patel (PW-9) conducted postmortem
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
examination and opined that Mamtabai had died due to cardio-respiratory
failure caused by drowning. No injury marks were found on dead body of
Mamtabai. There is no evidence to substantiate the fact that Mamtabai
herself jumped into the well to commit suicide. Therefore, the circumstances
need to be considered.
12. Geetabai (DW-1), neighbour of Mamtabai and Kuncha stated that
Mamtabai used to go to unfinished well to fetch water which had no parapet
wall. Mamtabai slipped and fell into the well. The Investigation officer
Diwakar Singh Baghel (PW-11), Sub Inspector Chain Singh (PW-12),
Basiya (PW-3), Banwari (PW-4), Door Singh (PW-5) also deposed that the
well, on the spot of incident, was unconstructed (kacha kunwa). It had no
parapet wall. A person may slip and fall into the well, if not cautious.
13. The material on record shows that there is strong possibility of the fact
that Mamtabai might have slipped and fallen into the well which was not
protected by a parapet wall. Thus, the prosecution has failed to prove
beyond doubt that Mamtabai committed suicide by jumping into the well.
Points for determination no (ii) (iii) and (iv) - reasons for conclusion.
14. All these points for determination are considered simultaneously, as
the facts and conclusions are inter-related.
15. In case of K.V. Prakash Babu v. State of Karnataka, (2017) 11 SCC
176, the Supreme Court held as under-
12. The aforesaid analysis of the provision clearly spells how coercive
harassment can have the attributes of cruelty that would meet the criterion as
conceived of under Section 498-A IPC. Thus, the emphasis is on any wilful
conduct which is of such a nature that is likely to drive the woman to commit
suicide. The mental cruelty which is engraved in the first limb of Section 498-A
IPC has nothing to do with the demand of dowry. It is associated with mental
cruelty that can drive a woman to commit suicide and dependent upon the
conduct of the person concerned.
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
13. In this regard, Mr Singh has drawn our attention to the authority in Pinakin
Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48. In the said case, the
Court was dealing with as to whether relationship between the appellant and the
second accused therein was extra-marital leading to cruelty within the meaning of
Section 498-A IPC and whether that would amount to abetment leading to the act
of suicide within the meaning of Section 306 IPC. Dealing with the extra-marital
relationship, the Court has opined that marital relationship means the legally
protected marital interest of one spouse to another which include marital
obligation to another like companionship, living under the same roof, sexual
relation and the exclusive enjoyment of them, to have children, their upbringing,
services in the home, support, affection, love, liking and so on, but extra-marital
relationship as such is not defined in the Penal Code. The Court analysing further
in the context of Section 498-A observed that the mere fact that the husband has
developed some intimacy with another woman, during the subsistence of
marriage and failed to discharge his marital obligations, as such would not
amount to "cruelty", but it must be of such a nature as is likely to drive the spouse
to commit suicide to fall within the Explanation to Section 498-A IPC. The Court
further elucidated that harassment need not be in the form of physical assault and
even mental harassment also would come within the purview of Section 498-A
IPC. Mental cruelty, of course, varies from person to person, depending upon the
intensity and the degree of endurance, some may meet with courage and some
others suffer in silence, to some it may be unbearable and a weak person may
think of ending one's life. The Court ruled that in the facts of the said case the
alleged extra-marital relationship was not of such a nature as to drive the wife to
commit suicide. The two-Judge Bench further opined that : (Pinakin Mahipatray
Rawal v. State of Gujarat, (2013) 10 SCC 48 )
"27. Section 306 refers to abetment of suicide [which] says that if any
person commits suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment for a term which may extend to 10
years and shall also be liable to fine. The action for committing suicide is
also on account of mental disturbance caused by mental and physical
cruelty. To constitute an offence under Section 306, the prosecution has
to establish that a person has committed suicide and the suicide was
abetted by the accused. The prosecution has to establish beyond
reasonable doubt that the deceased committed suicide and the accused
abetted the commission of suicide. But for the alleged extra-marital
relationship, which if proved, could be illegal and immoral, nothing has
been brought out by the prosecution to show that the accused had
provoked, incited or induced the wife to commit suicide."
(emphasis added)
14. Slightly recently in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat,
(2015) 11 SCC 753, the Court perusing the material on record opined that even if
the illicit relationship is proven, unless some other acceptable evidence is brought
on record to establish such high degree of mental cruelty the Explanation (a) to
Section 498-A IPC which includes cruelty to drive the woman to commit suicide,
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
would not be attracted. The relevant passage from the said authority is reproduced
below : (SCC pp. 759-60, para 21)
"21. ...True it is, there is some evidence about the illicit relationship and
even if the same is proven, we are of the considered opinion that cruelty,
as envisaged under the first limb of Section 498-A IPC would not get
attracted. It would be difficult to hold that the mental cruelty was of such
a degree that it would drive the wife to commit suicide. Mere extra-
marital relationship, even if proved, would be illegal and immoral, as has
been said in Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10
SCC 48, but it would take a different character if the prosecution brings
some evidence on record to show that the accused had conducted in such
a manner to drive the wife to commit suicide. In the instant case, the
accused may have been involved in an illicit relationship with Appellant
4, but in the absence of some other acceptable evidence on record that
can establish such high degree of mental cruelty, the Explanation to
Section 498-A IPC which includes cruelty to drive a woman to commit
suicide, would not be attracted."
15. The concept of mental cruelty depends upon the milieu and the strata from
which the persons come from and definitely has an individualistic perception
regard being had to one's endurance and sensitivity. It is difficult to generalise but
certainly it can be appreciated in a set of established facts. Extra-marital
relationship, per se, or as such would not come within the ambit of Section 498-A
IPC. It would be an illegal or immoral act, but other ingredients are to be brought
home so that it would constitute a criminal offence. There is no denial of the fact
that the cruelty need not be physical but a mental torture or abnormal behaviour
that amounts to cruelty or harassment in a given case. It will depend upon the
facts of the said case. To explicate, solely because the husband is involved in an
extra-marital relationship and there is some suspicion in the mind of wife, that
cannot be regarded as mental cruelty which would attract mental cruelty for
satisfying the ingredients of Section 306 IPC.
16. We are absolutely conscious about the presumption engrafted under Section
113-A of the Evidence Act. The said provision enables the court to draw
presumption in a particular fact situation when necessary ingredients in order to
attract the provision are established. In this regard, we may reproduce a passage
from Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 :
"26. ... Criminal law amendment and the rule of procedure was
necessitated so as to meet the social challenge of saving the married
woman from being ill-treated or forcing to commit suicide by the
husband or his relatives, demanding dowry. Legislative mandate of the
section is that when a woman commits suicide within seven years of her
marriage and it is shown that her husband or any relative of her husband
had subjected her to cruelty as per the terms defined in Section 498-A
IPC, the court may presume having regard to all other circumstances of
the case that such suicide has been abetted by the husband or such
person. Though a presumption could be drawn, the burden of proof of
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
showing that such an offence has been committed by the accused under
Section 498-A IPC is on the prosecution."
We have reproduced the aforesaid passage only to highlight that the Court can
take aid of the principles of the statutory presumption.
17. In the instant case, as the evidence would limpidly show, the wife developed a
sense of suspicion that her husband was going to the house of Ashwathamma in
Village Chelur where he got involved with Deepa, daughter of Ashwathamma. It
has come on record through various witnesses that the people talked in the
locality with regard to the involvement of the appellant with Deepa. It needs to be
noted that Anjanamma, being not able to digest the humiliation, committed
suicide. The mother and the brother of Anjanamma paved the same path. In such
a situation, it is extremely difficult to hold that the prosecution has established the
charge under Section 498-A IPC and the fact that the said cruelty induced the
wife to commit suicide. It is manifest that the wife was guided by the rumour that
aggravated her suspicion which has no boundary. The seed of suspicion planted in
mind brought the eventual tragedy. But such an event will not constitute the
offence or establish the guilt of the appellant-accused under Section 306 IPC.
18. Having said that we intend to make it clear that if the husband gets involved
in an extra-marital affair that may not in all circumstances invite conviction under
Section 306 IPC but definitely that can be a ground for divorce or other reliefs in
a matrimonial dispute under other enactments. And we so clarify.
16. In case of Naresh Kumar v. State of Haryana, (2024) 3 SCC 573,
while dealing with the presumption under Section 113A of the Evidence
Act, the Supreme Court held as under-
29. Section 113-A of the Evidence Act requires proof : (1) that her husband or
relatives subjected her to cruelty, and (2) that the married woman committed
suicide within a period of seven years from the date of her marriage.
31. In this appeal, we are concerned with Section 113-A of the Evidence Act. The
mere fact that the deceased committed suicide within a period of seven years of
her marriage, the presumption under Section 113-A of the Evidence Act would
not automatically apply. The legislative mandate is that where a woman commits
suicide within seven years of her marriage and it is shown that her husband or any
relative of her husband had subjected her to cruelty, the presumption under
Section 113-A of the Evidence Act may be raised, having regard to all other
circumstances of the case, that such suicide had been abetted by her husband or
by such relative of her husband.
30. Although, it is not necessary for us to refer to Section 113-B of the Evidence
Act which raises presumption as to dowry death yet with a view to indicate the
fine distinction between the two presumptions we are referring to Section 113-B.
In Section 113-A the legislature has used the word "may", whereas in Section
113-B the word used is "shall".
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
32. What is important to note is that the term "the court may presume having
regard to all other circumstances of the case that such suicide had been abetted by
her husband" would indicate that the presumption is discretionary, unlike the
presumption under Section 113-B of the Evidence Act, which is mandatory.
Therefore, before the presumption under Section 113-A is raised, the prosecution
must show evidence of cruelty or incessant harassment in that regard.
33. The court should be extremely careful in assessing evidence under Section
113-A for finding out if cruelty was meted out. If it transpires that a victim
committing suicide was hypersensitive to ordinary petulance, discord and
differences in domestic life quite common to the society to which the victim
belonged and such petulance, discord and differences were not expected to induce
a similarly circumstanced individual in a given society to commit suicide, the
conscience of the court would not be satisfied for holding that the accused
charged of abetting the offence of suicide was guilty.
34. Section 113-A has been interpreted by this Court in Lakhjit Singh v. State of
Punjab, 1994 Supp (1) SCC 173, Pawan Kumar v. State of Haryana (1998) 3
SCC 309 and Shanti v. State of Haryana (1991) 1 SCC 371.
35. This Court has held that from the mere fact of suicide within seven years of
marriage, one should not jump to the conclusion of abetment unless cruelty was
proved. The court has the discretion to raise or not to raise the presumption,
because of the words "may presume". It must take into account all the
circumstances of the case which is an additional safeguard.
36. In the absence of any cogent evidence of harassment or cruelty, an accused
cannot be held guilty for the offence under Section 306 IPC by raising
presumption under Section 113-A.
39. In the case of accusation for abetment of suicide, the court should look for
cogent and convincing proof of the act of incitement to the commission of suicide
and such an offending action should be proximate to the time of occurrence.
Appreciation of evidence in criminal matters is a tough task and when it comes to
appreciating the evidence in cases of abetment of suicide punishable under
Section 306IPC, it is more arduous. The court must remain very careful and
vigilant in applying the correct principles of law governing the subject of
abetment of suicide while appreciating the evidence on record. Otherwise it may
give an impression that the conviction is not legal but rather moral.
17. In case of Velladurai v. State, reported in (2022) 17 SCC 523, it
was observed that:
12. Now so far as the offence under Section 306 IPC is concerned, in a case
where if any person instigates other person to commit suicide and as a result of
such instigation the other person commits suicide, the person causing the
instigation is liable to be punished for the offence under Section 306IPC for
abetting the commission of suicide. Therefore, in order to bring a case within the
provision of Section 306 IPC, there must be a case of suicide and in the
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
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 instigating or
by doing a certain act to facilitate the commission of suicide. As observed and
held by this Court in Amalendu Pal [Amalendu Pal v. State of W.B., (2010) 1
SCC 707 : (2010) 1 SCC (Cri) 896], mere harassment without any positive action
on the part of the accused proximate to the time of occurrence which led to the
suicide would not amount to an offence under Section 306 IPC.
13. Abetment by a person is when a person instigates another to do something.
Instigation can be inferred where the accused had, by his acts or omission created
such circumstances that the deceased was left with no other option except to
commit suicide. In the instant case, the allegation against the appellant is that
there was a quarrel on the day of occurrence. There is no other material on record
which indicates abetment. There is no material on record that the appellant-
accused played an active role by an act of instigating the deceased to facilitate the
commission of suicide. On the contrary, in the present case, even the appellant-
accused also tried to commit suicide and consumed pesticide. Under the
circumstances and in the facts and circumstances of the case and there is no other
material on record which indicates abetment, both the High Court as well as the
learned trial court have committed an error in convicting the accused for the
offence under Section 306 IPC.
18. The evidence on record is examined in the light of aforestated
propositions of law. Gaja Barela (PW-1) (father of deceased), Jambai (PW-
6) (mother of deceased) and Mukesh (PW-7) (brother of deceased) have
made similar allegations that Kuncha had married Mamta after his first wife
Santaribai left him. Mamta was the second wife of Kuncha. A day before her
death, Mamtabai called Mukesh on phone. Mamtabai was weeping. Mamta
Bai informed that Kuchan is harassing her, he had gone to bring his first
wife. So, Mukesh went to meet Mamtabai at village Bhulgaon but Kuncha
refused to send Mamtabai with Mukesh, therefore, Mukesh returned home.
On the same night, Kuncha informed that Mamta is missing. Bhagda (father
of Mukesh), came to their house searching for Mamtabai. Next day,
Mamtabai was found dead in the well. Kuncha had brought back his first
wife. Kuncha had killed and thrown Mamtabai in the well.
19. Gaja Barela (PW-1), in cross-examination, admitted he neither uses
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
a mobile phone nor spoke with Mamtabai on mobile before her death. His
son Mukesh used to communicate with Mamtabai on mobile phone. Jambai
(PW-6) also stated that Mamtabai called Mukesh on phone. Mukesh (PW-7)
in para 11 stated that Mamtabai did not possess mobile phone. He is
uncertain about whose phone Mamtabai used to contact him. He speculated
that she might have borrowed a mobile phone from a neighbour. The call
detail report showing mobile communication between Mamtabai and
Mukesh was not requisitioned during investigation. The testimonies of Gaja
Barela (PW-1), Jambai (PW-6) and Mukesh (PW-7) appear to be an
afterthought.
20. Gaja Barela (PW-1), Jambai (PW-6) and Mukesh (PW-7) alleged
that Kuncha had brought back his first wife Santaribai, therefore, Mamta
was distressed and committed suicide. But none of these witness has seen
Santribai at the house of Kuncha. Baju Barela (PW-2) (relative of deceased),
Vasiya (PW-3), Doorsingh (PW-5) and Geetabai (DW-1), neighbours and
residents of Bhulgaon had stated that Santaribai, first wife of Kuncha, had
left her children with Kuncha and went away. Thereafter, Kuncha married
Mamtabai. Santaribai never returned.
21. In view of aforestated evidence on record, the prosecution had
failed to establish the alleged reason for suicide of Mamtabai.
22. Gaja Barela (PW-1), Jambai (PW-6) and Mukesh (PW-7), in
cross-examination, have stated that Mamtabai was happy on marriage with
Kuncha. She had gone to Indore and Pune for labour job with Kuncha. She
was pregnant. They have not reported harassment of Mamtabai to any Police
Station. They did not call any Panchayat. The allegations about harassment
by Kuncha were levelled for the first time after death of Mamtabai. The
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
local resident of Bhulgaon did not support the allegations. Thus, the
prosecution had failed to prove beyond doubt that Kuncha had subjected
Mamtabai to mental cruelty on threat of bringing back his first wife.
23. Learned trial Court did not consider the afore-stated aspects of the
matter reflected by evidence on record. Learned trial Court discarded the
defense cursorily in Para 55, 56 and 58 of the impugned judgment. Learned
trial Court was moved by the fact that Mamtabai was pregnant for nine
months and concluded that any pregnant lady would not end her life until
she is severely harassed and left with no option but to commit suicide. The
learned trial Court ignored the fact that Mamtabai did not complain
continuous and severe harassment amounting to mental cruelty, rather, she
had gone out of state with Kuncha for labour job. There is no evidence to
substantiate the fact that Kuncha had, infact, brought back his first wife
Santribai. Therefore, learned trial Court committed an error in convicting
the accused Kuncha, merely on conjectures, surmises and unsubstantiated
inferences. The prosecution had failed to establish that Mamta bai had
committed suicide. The prosecution had failed to prove beyond doubt that
accused Kunchha had subjected Mamtabai to mental cruelty by bringing his
former wife and Mamtabai was driven to commit suicide due to deliberate
conduct of the accused Kunchha. On the contrary, the possibility of the
defense of accused is strongly made out in view of the scenario of the spot
of incident.
24. In view of the aforesaid, this Court is of the considered opinion
that the learned trial Court had committed error in convicting the
NEUTRAL CITATION NO. 2025:MPHC-IND:13915
accused/appellant Kuncha for offence punishable under Section 498-A and
306 of IPC.
25. Consequently, the present appeal is allowed. The impugned
judgment of conviction and order of sentence dated 02.02.2023 passed in
S.T. No. 131/2019 is set aside and the appellant/accused - Kunchha is
acquitted of the charge for offences punishable under Section 498-A and
306 of IPC giving him benefit of doubt. He shall be set at liberty forthwith.
The appellant shall be entitled to remittance of fine amount, if deposited.
The order of trial Court regarding disposal of property is affirmed.
Let a copy of judgment alongwith record be sent to the Learned Trial
Court for information and necessary action.
(SANJEEV S KALGAONKAR)
JUDGE
sh/-
