Dinesh Yadav Vs State of Chhattisgarh

This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 18.08.2005 passed by the learned Fourth Additional Sessions Judge (FTC), Ambikapur, District Surguja (C.G.) in Sessions Trial No. 323/2004, whereby the learned trial Court convicted and sentenced the appellant as under:-

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Conviction	Sentence
U/S 498 (A) of IPC	R.I for 03 years with fine amount of Rs. 500/-, in default of payment of fine to undergo additional R.I. for 03 months.
U/S 306 of IPC	R.I. for 10 years with fine amount of Rs. 500/-, in default of payment of fine to undergo additional R.I. for 05 months.

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(Both the sentences are directed to run concurrently.)

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The case of the prosecution, in brief, is that the present appellant/accused is the husband of the deceased Smt. Savitri Devi and their marriage was solemnized about 8 years ago, thereafter on the date of incident i.e., 29.04.2004, the co-accused Ramgahan went to graze his buffalo and her wife was sweeping the house and his son was throwing the cow dung, after returning from grazing his buffalo, the co-accused found that one of the room was locked from inside, thereby he pushed the door and opened it and he saw his daughter-in-law was struggling as she had committed suicide by hanging herself with Saree. They tried to rescue her by cutting her Saree by which she hung herself, however after 15 minutes she died. The co-accused gave statement in the Police Station Sitapur that the deceased's father had died before Holi festival, and since then she was crying over it due to which she died. On being informed by the co-accused Ramgahan, the police registered morgue intimation bearing No. 43/04 and started investigating into the matter. During investigation, the map of the deceased’s body was made before the Executive Magistrate and the postmortem of the body was done by the Doctor. The spot map was prepared of the said incident and the Saree was seized. On the basis of morgue

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intimation it was found that the accused person and his family members subjected her to dowry and due to that the deceased committed suicide by hanging herself.

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After completion of due and necessary investigation, the chargesheet was filed against the accused person/appellant and his family members namely Rajgahan, Rajendra, Smt. Phulkumari and Mahendra before the learned Judicial Magistrate First Class, Ambikapur who committed the matter before the learned Fourth Additional Sessions Judge (FTC) Ambikapur, for trial under Sections 306/34 & 498-A/34 of the IPC.

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In order to bring home the charge, the prosecution has examined as many as 11 witnesses. The statement of the accused person/appellant was also recorded under Section 313 of CrPC in which he denied all the inculpatory circumstances appearing against him in the prosecution case and pleaded his ingenuousness and false entailment in the case. In his defence, the accused/appellant examined one witness.

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The learned trial Court after appreciation of oral and documentary evidence has acquitted the co-accused persons of Sections 306/34 of IPC & 498-A of IPC, but convicted the present accused/appellant under Sections 306 & 498 (A) of IPC, to which the accused person/appellant abjured his guilt and prayed for trial. Hence, this appeal filed by the appellant.

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Learned counsel for the appellant submits that the impugned judgment of conviction is against the facts, evidence and material available on record. The learned trial Court failed to understand that the marriage between the appellant and the deceased was solemnized 07 years ago, therefore, the presumption under Section 113 of the Evidence Act could not be drawn against the

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appellant and as such, he is liable to be acquitted. The learned trial Court failed to appreciate that all the prosecution witnesses namely Ganga Devi (PW-01), Sukhdev (PW-03) and Jagropan Yadav (PW-04) are interested witnesses. The learned trial Court also finds that demand of dowry is not proved beyond reasonable doubt, as such the prosecution case automatically becomes doubtful, but the learned trial Court convicted the appellant under Sections 306 & 498-A of IPC without any reliable and clinching evidence. As such, the impugned judgment is liable to be set aside.

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Alternatively, he submits that if this Court ultimately comes to the conclusion that the conviction of the appellant under Sections 306 & 498-A of IPC as imposed by the trial Court is just and proper, considering the fact that the incident took place in the year 2004, this appeal is pending since 2005, The appellant is now aged about 45 years; he has remained in jail for more than 10 months, has no criminal antecedents against him and no useful purpose would be served in again sending him to jail, therefore, in the interest of justice, it would be appropriate if the sentence imposed upon him may be reduced to the period already undergone by him.

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Ex adverso , learned counsel for the respondent/State supporting the impugned judgment submits that the learned trial Court minutely appreciated the oral and documentary evidence on record and rightly convicted the appellant. So, this appeal is being devoid of any merit is liable to be dismissed.

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Heard both the counsel for the parties and perused the material available on record including the impugned judgment.

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From bare perusal of the record of the learned trial Court it is clear that the learned trial Court has framed charges under Sections 498-A and 306 of IPC against the accused/appellant and other coaccused persons and after appreciation of oral and documentary evidence, the learned trial Court acquitted all the other co-accused persons under Sections 306 & 498-A of IPC, but convicted the present accused/appellant under Sections 306 & 498-A of IPC.

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It is not disputed in this case, that the deceased Savitri Bai was wife of appellant Dinesh and she committed suicide on 29.05.2004 by hanging herself with a Saree. (PW-02) Smt. Ganga Devi, sister of the deceased stated that the accused/appellant Dinesh and his family members tortured her sister regarding dowry. (PW-03) Sukhdev Yadav, brother of the deceased also stated that deceased Savitri Bai told him that her husband Dinesh beats her and he also saw some injury mark on the body of her sister. In his cross-examination he admitted that regarding dowry she neither made any complaint in the Police Station nor in any Panchayat. He also stated to the police at the time of giving statement that death of his deceased sister was due to cruelty and harassment and he has no explanation as to why it not being reflected in his police statement Ex. D/02. Jagropan Yadav (PW-04) also stated that deceased Savitri Bai used to tell him that she is being subjected to cruelty and harassment by the appellant and his family members on the name of dowry. In cross-examination, he admitted that he does not know why Savitri Bai had died. The learned trial Court also minutely appreciated the statement of all witnesses and finds that the prosecution has failed to prove this fact that the accused person and the other co-accused persons tortured the deceased on the name of dowry and thereby acquitted the co-accused persons, but the learned trial Court finds that the appellant Dinesh Yadav abated the deceased to commit suicide and tortured her on the name of dowry, as such he has been

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convicted under Sections 306 & 498-A of IPC.

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It is well settled principle of law that Section 107 of the Indian Penal Code, 1860 is essential to make out Section 306 of IPC which is provided as under :-

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107. Abetment of a thing.- A person abets the doing of a thing, who-

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First.- Instigates any person to do that thing; or

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Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

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Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.

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Explanation 1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

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It is clear from the statement of all the witnesses that the prosecution has failed to prove the essential ingredients of Section 107 of IPC, so Section 306 of IPC is not made out against the appellant. The deceased's brother and sister have stated about the torture of their sister. As such, the learned trial Court rightly convicted the appellant under Section 498-A of IPC.

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In view of the aforesaid evidence of all witnesses and medical evidence, this Court finds no illegality or infirmity in the findings

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recorded by the learned trial Court holding the appellant guilty under Section 498-A of IPC, but Section 306 of IPC is not made out against the appellant. So the conviction of the appellant under Section 306 of IPC is not sustainable and the same is set aside and the appellant is acquitted, but his conviction under Section 498-A of IPC is affirmed.

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As regards sentence, it is clear that the incident took place in the year 2004 and this appeal is pending since 2005 and during pendency of trial the appellant had remained in jail for more than 10 months and the accused is now 45 years old middle aged person.

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In view of the facts and circumstances of the case, this Court is of the opinion that the ends of justice would be met if the sentence imposed by the trial Court is reduced to the period already undergone by him. However, the fine amount imposed by the trial Court shall remain intact.

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In the result, the appeal is allowed in part. While maintaining conviction of the appellant under Section 498-A of IPC, the sentence imposed thereunder by the trial Court is hereby reduced to the period already undergone by him.

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The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

Sd/-

(Rajani Dubey)

JUDGE

Uttej

Dinesh Yadav v. State of Chhattisgarh

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Dinesh Yadav v. State of Chhattisgarh

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