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When offence u/s 498A of IPC is not made out?

So far as the offence under Section 498A of the I.P.C. is concerned; it is not every kind ofcruelty which constitutes an offence under this section. Explanation given inSection 498A of the I.P.C. contemplates cruelty of two kinds. The first is that which isdetrimental to life, limb or health of woman and second kind of cruelty consists ofharassment with a view to coerce her or any person related to her to fulfill the unlawfuldemand. The case at hand is related with second type of cruelty or harassment.40. As regards section 498A of the IPC, the allegations against the applicants arevague, unspecific and indefinite. No time or date of the occurrence is given. It wascontended only that Ghurke, father-in-law of the deceased demanded dowry. Aperusal of the police statements shows that demand of the dowry was made onlyby Ghurke, father-in-law. There are no specific particulars regarding time, place andmanner of any beating, cruelty or harassment of the Rampyribai for demand ofdowry and in these circumstances it cannot be said that in ingredients of theoffense under section 498A of the IPC were spelled out.Citation: 2014CriLJ360 MPIN THE HIGH COURT OF MADHYA PRADESH AT JABALPURCriminal Appeal No. 2114 of 1996Decided On: 12.11.2013Appellants: Jalam, Smt. Gouri Bai and Smt. Lalti BaiVs.Respondent: State of Madhya Pradesh, Through District Magistrate

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Hon'ble Judges/Coram:Subhash Kakade, J.

1. In this appeal, the accused/appellants have called in question the soundness of thejudgment dated 20/11/1996 passed by the First Additional Sessions Judge, Tikamgarh tothe Court of Sessions Judge, Tikamgarh (MP) in ST No. 57/1994, each one of theappellants was convicted and sentenced as under:-

The appeal, so far as it related to appellant No. 1 Ghurka stands dismissed as abatedverifying the factor of his death on dated 06/03/2013.2. The basis of the prosecution case is the Marg Intimation No. 10/94 underSection 174 of Cr.P.C. which was lodged by complainant Gorelal at Kotwali Tikamgarh,father of the deceased Rampyaribai who died on 20.03.1994 under the mysteriouscircumstances which reads as under:-

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(emphasis supplied)

3. On basis of this report offence was registered; statement of complainant Gorelal andhis family members and others were recorded under Section 161of Cr.P.C. In the courseof investigation some dry earth was seized that it contains traces of Sulphas poison. Thesari and blouse of the deceased also seized, and sent for chemical examination. Oncompletion of other required formalities, investigating agency filed challan underSections 498(A), 306 and201 of the I.P.C. in the Committal Court which in his turncommitted the matter to the Court of Sessions, Tikamgarh and eventually the matter wastried by learned trial Judge.4. On basis of record, learned trial Court framed charges against the appellants whoabjured their guilt so they put to trial.5. The prosecution, to prove its case, examined 8 witnesses including complainantGorelal, and filed documents Ex. P/1 to P/12.6. During the statements recorded under Section 311 of Cr.P.C. the appellants denied allthe facts which were put forth against them and claims to be falsely implicated. Defencewas taken that Rampyaribai died due to illness. Pooranlal (DW/1) examined as thedefence witness.

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7. Learned Trial Court after consideration of the evidence placed before it, found theappellants Jalam, Smt. Gouri Bai, Smt. Lalti Bai and Ghurka (now deceased) guilty of theoffence punishable under Sections and imposed the sentenced them as mentionedhereinabove.8. Shri Ashish Tiwari, learned counsel for the appellants submitted that the learned trialCourt has made a wrong judicial approach to the facts and circumstances of the casecame to the wrong conclusion which cannot be sustained on a dispassionate scrutiny ofthe facts and law. The case of the prosecution depends entirely on circumstantialevidence and chain of the circumstances is at all not completed. The learned trial Courtrelied on the testimony of the interested witnesses. There is no corroboration of theprosecution case by the independent witnesses. Rampyaribai committed suicide becauseof the reasons that she had a sense of frustration that she could not became a mother.The learned trial Court found that dead body of Rampyaribai was cremated in a hurriedmanner without informing her parents and it is the reason that the appellants are foundguilty but, it is not taken under consideration by the learned trial Court that parents of thedeceased were living at another village at a considerable distance and massage was alsosent to them but, since the body was getting decomposed giving foul smell, therefore itwas cremated on the advice of villagers therefore, there was no question of attempting toscreen evidence within the meaning of Section 201 of the IPC. Therefore, appeal beaccepted and the appellants be acquitted.9. Shri Amit Kumar, learned Panel Lawyer for the State has opposed the appealvehemently contending that the appellants have rightly been convicted and sentencedthus, the appeal is liable to be dismissed.10. Considered the rival submissions made by learned counsel for the parties andperused the impugned judgment as well as evidence available on record carefully, thisappeal deserves to be allowed.11. Marg Intimation (Ex. P-1) is not alike First Information Report, it is an informationregarding unnatural death of one person, which leads to criminal investing agency inaction. Therefore, Investigation Officer Shri S.J. Jafrin (PW/8) recorded statements of thewitnesses, out of them Kishorilal (PW/1) and Sobaran (PW-4) are brothers and Gorelal(PW/2) and Shyambai (PW/3) are parents of Rampyaribai, Gajara Bai (P.W. 5) is wife ofHanumat, third brother of Rampyaribai and Balchand (PW/5) and Latori (PW/6) areresident of village of the appellants, i.e. Hanuman Sagar.12. It is pertinent to mention here that maker of the Marg Intimation Ex. P-1 Gorelal(PW/3) stated that he did not report this Marg Intimation (Ex. P-1) when the contents readover to him, but we will ignore this denial.13. Kishorilal (PW/1) has stated that the marriage of Rampyari Bai was solemnized withthe appellant Jamana about 8-9 years before the incident and she was issue less. Thisevidence of Kishorilal (PW/1) has been fully corroborated by Shyam Bai (PW/2), Gorelal

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(PW/3), Sobaran (PW/4) and Gajara Bai (P.W. 5). Nothing has been elicited in their crossexaminations to discredit their evidence, therefore, by the evidence of these witnesses, itis established that the marriage between the Rampyri Bai and appellant Jamana wassolemnized about 8-9 years ago, but the couple was not blessed with a child.14. Now, the first question that arises for determination is whether the death ofRampyaribai occurred otherwise than under normal circumstance?15. It is rightly held by learned trial Court that the entire prosecution case is depend onlyon circumstantial evidence. But, it is pertinent to mention here that the learned Trial Courtfailed to appreciate the prosecution evidence available on record, when there is cleardirections of the Apex Court how the contradictions, omissions, etc. will be looked into.16. In all criminal cases, normal discrepancies are bound to occur in the depositions ofwitnesses due to normal errors of observations, namely, errors of memory due to lapse oftime or due to mental disposition such as shock and horror at the time of occurrence.Where the omissions amount to a contradiction, creating a serious doubt about thetruthfulness of the witness and other witnesses also make material improvement whiledeposing in the court, such evidence cannot be safe to rely upon. However, minorcontradictions, inconsistencies, embellishments or improvements on trivial matters whichdo not affect the core of the prosecution case, should not be made a ground on which theevidence can be rejected in its entirety. The court has to form its opinion about thecredibility of the witness and record a finding as to whether his deposition inspiresconfidence. Exaggerations per se do not render the evidence brittle. But it can be one ofthe factors to test credibility of the prosecution version, when the entire evidence is put ina crucial for being tested on the touchstone of credibility. Therefore, mere marginalvariations in the statements of a witness cannot be dubbed as improvements as the samemay be elaborations of the statement made by the witness earlier. Irrelevant details whichdo not in any way corrode the credibility of a witness cannot be labeled as omissions orcontradictions. The omissions, which amount to contradictions in material particulars, i.e.Materially affect the trial or core of the prosecution's case, render the testimony of thewitness liable to be discredited. Please see-State Represented by Inspector of Police v.Saravanan & anr., MANU/SC/8113/2008: AIR 2009 SC 152:(2008 AIR SCW 7060);Arumugan v. State, AIR 2009 SC 33]:(2008 AIR SCW 7354); Mahendra Pratap Singh vs.State of Uttar Pradesh MANU/SC/0279/2009 : (2009) 11 SCC 334:(2009) AIR SCW2849); Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State ofMaharashtra, MANU/SC/0947/2010 : JT 2010(12) SC 287:(2010 AIR SCW 7049); Vijayalias Chinee v. State of M.P., MANU/SC/0522/2010 : (2010) 8 SCC 191:(2010 AIR SCW5510); State of U.P. v. Naresh & Ors., MANU/SC/0228/2011 : (2011) 4 SCC 324:(2011AIR SCW 1877); and Brahm Swaroop & Anr. v. State of U.P., MANU/SC/0903/2010 : AIR2011 SC 280:(2010 AIR SCW 6704).Where the omission amount to a contradiction, creating a serious doubt about thetruthfulness of a witness and other witness also make material improvements before the

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court in order to make the evidence acceptable, it cannot be safe to rely upon suchevidence. Please see-State of Rajasthan v. Rajendra Singh, MANU/SC/0446/1998 :(2009) 11 SCC 106:(AIR 1998 SC 2554).17. From the evidence of Kishorilal (PW/1), Shyam Bai (PW/2), Gorelal (PW/3), Sobaran(PW/4) Gajara Bai (P.W. 5), Balchand (PW/5) and Latori (PW/6) only this fact isestablished that the Rampyari Bai died otherwise than under normal circumstance.18. It is pertinent to note here that at the time of lodging of Marg Intimation (Ex. P-1)nothing was clear in mind of Gorelal (PW/2) that's why he mentioned that the reason ofdeath of Rampyaribai is doubtful. Kishorilal (PW/1) also admitted that his father andhimself were doubtful regarding the death of his sister Rampyaribai therefore, theyreported the matter. This fact is also admitted by Kishorilal (PW/1) that the facts whichwere informed by the villagers of Hanuman Sagar are the basis on which doubt wascreated. Gajrabai (PW/5) also admitted that she did not went to the village ofRampyaribai, therefore, she herself stated during examination-in-chief that she is not ableto say how Rampyaribai died?19. This doubt is not looked into by the learned Trial Court nor discussed the availableevidence on this vital issue. Learned Trial Court was duty bound to find out what was thecause of death of Rampyaribai?20 Therefore, scrutiny is necessary for the evidence available in this regard. Kishorilal(PW/1) stated that when he reached at village Hanuman Sagar it was stated by familymembers of the appellants that Rampyaribai was died due to fever. It was Ratan, youngerbrother of the Ghurke (deceased appellant) who informed him that Rampyaribai was dieddue to fever, but, Ratan is not examined by the prosecution. Therefore, this first reason ofdeath of Rampyaribai due to fever is not acceptable as it was also not case of theprosecution nor proved beyond doubt.21. Gorelal (PW/3) stated first new fact that the intention of appellants was to killRampyaribai so the appellant Jalam ceremonised second marriage due to "Banjhpan" ofRampyaribai.22. Gorelal (PW/3) stated that when they reached at village Hanuman Sagar they foundthe Atari of the house of the appellants was locked when he saw the blood in the Atari andasked villagers to see that blood.23. Shyamabai (PW/2) also stated that when her husband and both son reached at thehouse of the appellant at village Hanuman Sagar, the appellant went out from Atari whichwas stained by blood. It is pertinent to mention here that Shyamabai (PW/2) is not thewitness of village Hanuman Sagar because she did not went there so whatever in hisknowledge or information is hearsay only.24. Entire statements of Shyamabai (PW/2), mother of the deceased is based on thisstory that appellants were not offering food to Rampyaribai, hence she died due tostarvation. She specifically blamed that all the four appellants conspired and killed her

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daughter, it goes to show that Shyamabai (PW/2) is not supporting case of dowry demandor abetment of suicide.25. Kishorilal (PW/1) did not state any fact regarding the starvation which was cause ofdeath of Rampyaribai. He did not utter a single word during his evidence that his sisterwas died due to starvation.26. As per prosecution story on 20.03.1994 Rampyaribai swallowed Sulphas tablets, inconsequence of which she had badly vomiting and loose motions resulting in her death atabout 4 p.m.27. Kishorilal (PW/1) stated that some villagers informed him that Rampyaribai wasvomiting since 3:00 p.m. He specifically stated that Latori and Balchand were informedhim that Rampyaribai swallowed Sulphas tablets and bad smell was coming from hermouth. It is also stated by him that Balchand and Latori informed this fact in presence of25 to 50 villagers.28. Villagers of Hanuman Sagar Balchand (PW/6) and Latori (PW/7) were not supportedthe case of the prosecution and specifically denied all the facts stated by Kishori (PW/1)and other prosecution witnesses regarding the information given at village HanumanSagar about the reason of death of the Rampyaribai by taking Sulphas tablets.29. It is pertinent to mention here that no medical evidence is available on record becausewithout any opportunity of postmortem, collection of viscera etc. the body of Rampyaribaiwas cremated by the appellants, though they are charged for it also.30. Therefore, the Investigation Agency in the course of investigation collected some dryearth suspecting that it might contain traces of Sulphas poison. The sari and blouse of theRampyaribai was also seized to prove this fact and all the seized articles were sent tochemical examination at FSL Sagar and vide report Ex. P-11 traces of Sulphas wasdetected on these articles.31. Learned trial Judge has given utmost emphasis on the fact that traces of Sulphaswere found on the cloths of Rampyaribai and in para 15 of the impugned judgment heldas under:

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32. Above finding of the Learned trial Court is solely based on the statement ofInvestigation Officer Jafri (PW/8), which is not as per the requirement of law nor lawpermits that the Court will convict accused person(s) on the statement of the InvestigationOfficer when the case is related with the offence punishable underSection 498A, 306 and 201 of IPC.33. Apart from this, Learned trial Court failed to see that whether the prosecution hadproved this fact beyond doubt that these cloths was only and only belongs toRampyaribai, she was wearing these cloths at the time of incident and these cloths werestained with her vomiting.34. The clothes of Rampyaribai were seized by the Investigation Officer Shri S.J. Jafrin(PW/8) vide seizure memo Ex. P-6 which was worn by Rampyaribai at the time of incidentbut, Gorelal (PW/3) stated that one doctor advised to the applicants so they burntRampyaribai with her cloths. These statements of prosecution witness's creating doubtfulsituation.35. Vide seizure memo Ex. P-6 Shri Jafrin (PW/8) also seized ash and other burnt articlesin presence of witnesses. But, against above facts Gorelal (PW/3) stated that appellantswere disposed of ash so if report be made, ash cannot be seized. This is alsocontradictory situation.36. Learned trial Court failed to see that whether cause of death of Rampyaribai wasconsuming Sulphas tablets, then why that bottle or box was not recovered in whichSulphas tablets were kept?37. In above mentioned facts and circumstances, learned trial Court wrongly come to theconclusion that the presence of traces of Sulphas on the cloths could be a circumstantialevidence, on the basis of which, conclusive inference could be drawn that cause of deathof Rampyaribai was the consuming of Sulphas tablets only.38. The another crucial question for determination:

Whether just before the death of Rampyaribai she was subjected to crueltyby the husband appellant Jalam and relative of the husband, his fatherGhurke, mother Gouri Bai and sister Lalti Bai for fulfillment of dowrydemand?

39. So far as the offence under Section 498A of the I.P.C. is concerned; it is not everykind of cruelty which constitutes an offence under this section. Explanation given inSection 498A of the I.P.C. contemplates cruelty of two kinds. The first is that which isdetrimental to life, limb or health of woman and second kind of cruelty consists ofharassment with a view to coerce her or any person related to her to fulfill the unlawfuldemand. The case at hand is related with second type of cruelty or harassment.

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40. As regards section 498A of the IPC, the allegations against the applicants are vague,unspecific and indefinite. No time or date of the occurrence is given. It was contendedonly that Ghurke, father-in-law of the deceased demanded dowry. A perusal of the policestatements shows that demand of the dowry was made only by Ghurke, father-in-law.There are no specific particulars regarding time, place and manner of any beating, crueltyor harassment of the Rampyribai for demand of dowry and in these circumstances itcannot be said that in ingredients of the offense under section 498A of the IPC werespelled out.41. That too, this demand of T.V. as dowry is also doubtful Shyamabai (PW/2) stated thatthere was demand of T.V. as dowry by Ghurke (deceased appellant). But, during crossexamination, she admitted that this fact of demand of T.V. was specifically stated by herduring police statement Ex. D-2, why these facts not mentioned she cannot say anything.42. Merely because the appellant Jamana is husband and the appellants Smt. Gouribaiand Laltibai are mother and sister respectively of the appellant/husband Jamana unlessthere is not any cogent and convincing evidence to show that the appellants Smt.Gouribai and Laltibai also harassed and ill-treated the Rampyribai, it can not be held thatthe appellants Smt. Gouribai and Laltibai are liable with the appellant Jamana for theoffense punishable under section 498A of the IPC, because, there is no evidence onrecord particularly to show the part played by these three appellants in instigating.43. Therefore, as discussed in above facts and circumstances, this question related withSection 498A of IPC is not proved beyond doubt by the prosecution, therefore, theimpugned judgment is set aside and the appellants are acquitted from the chargespunishable under Section 498A of IPC.44. Next question for determination:-

Whether the appellants abetted Rampyaribai to commit suicide?

45. Making a person liable for an offence punishable under Section 306 of I.P.C., theprosecution has to establish that such person has abetted the commission of suicide.46. Suicide no doubt is self-murder. In order to be suicide the person who commits suicidemust commit it by himself. One who committing suicide places himself or herself beyondthe reach of the law and necessary beyond the reach of any punishment too. If he is killedby another with his consent the offence is homicide and not suicide and the person killingis so be liable. Between these two offences the difference may sometimes be very little;but there is difference.47. According to evidence of the parents and brothers of Rampyaribai it is only evidentthat Rampyaribai was married to appellant Jalam about 8-9 years ago and because shehad no child, therefore, the appellants used to taunt her saying "Banjh" (incapable of

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being a mother).48. Above mentioned evidence is no evidence in eyes of law for recording the convictionunder Section 306 of IPC of the appellants. Presuming that the appellants harassed thedeceased for not begetting the children and caused her mental agony, but certainly thereis no evidence that just before her death there was harassment by the appellants to thedeceased. In the absence of such an evidence showing that due to that harassment thedeceased committed suicide, it cannot be said that the appellants had abetted the deathof the deceased.49. The prosecution evidence consisted of parents and brothers of the deceased, but,there being no legal evidence in eyes of law to establish that any of the appellants abettedthe deceased to commit suicide and suspicion however strong, cannot take place of thetruth.50. Instances of cruelty in remote past cannot be a ground to drive the deceased tocommit suicide. Please see Dwarika Prasad Soni,MANU/MP/0046/2002 : 2002(I) MPJR299:2002(1) MPLJ 274: 2002(I) MPHT 311.51. In the present case, there is no direct evidence to the effect that the appellantsabetted Rampyari Bai for commission of suicide. There is also lake of evidence that theappellants committed any physical cruelty against the deceased.52. In order to make out the offence of abetment of suicide it is necessary that culprit haseither instigated the victim to commit suicide or has engaged in conspiracy with others fordoing the act. Mens rea is necessary to prove the offence. Act done should be closelyproximate in time to time of incident. Khyaliram vs. State of M.P. MANU/MP/0223/2008:2008(III) MPJR 91: 2007(5) MPHT 407.53. In case of Aarti Arya vs. State of M.P., MANU/MP/0562/2007 : ILR 2007 MP1733:2008(1) MPHT 483, the deceased consumed poison and died. Case of theprosecution was that the accused used to insult the deceased by talking in objectionableand insulting manner. It was held by this Court that accepting the allegations as they are,it cannot be said that the accused incited or "instigated" the accused to commit suicide.Affirmed in "Kailashi Bai vs. Aarti Arya, MANU/SC/0783/2009 : 2009(2) JLJ 419 (SC).54. It was held by the apex Court in the case of Kishorilal vs. State ofM.P., MANU/SC/7815/2007 : 2007(3) JLJ 148 (SC) that there must be proof of direct orindirect acts of incitement to the commission of suicide. Mere fact that the husbandtreated the deceased wife with cruelty is not enough and merely on the allegation ofharassment, conviction in terms of Section 306 of IPC is not sustainable.55. Therefore answer of this question is in negative, hence, the impugned judgment ofLearned Trial Court is set aside in light of above discussed facts and circumstances andthe appellants are acquitted with regard to the charges punishable under Section 306,IPC.56. Gorelal (PW/3) stated that villagers of Hanuman Sagar informed him that his daughteris murdered by the appellants. About the massage of death of Rampyaribai, Gorelal

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(PW/3) also stated new fact that one person from village Hanuman Sagar came to KotwaliTikamgarh but Kishori was not there therefore, Advocate Hari Kishan of his villageinformed Head Constable to inform Kishori that his sister is died.57. It is pertinent to mention here that Kishorilal (PW/1), brother of deceased Rampyaribaiadmitted this fact that at about 4:30 p.m. Kamlapat informed him about the death of hissister. Kishorilal (PW/1) stated when they reached at Hanuman Sagar they found that thedead body was putting on fire for cremation.58. As per statements of Gorelal (PW/3) the distance between two villages Madumar andHanuman Sagar is 6 miles = 10 kms.59. The defense witness, resident of village Hanuman Sagar, Pooran Lal (DW/1) statedthat the family members of Rampyaribai and other villagers including himself broughtRampyaribai for treatment at Tikamgarh, but during the way, she died. It is further evidentfrom the statement of defence witness therefore, they returned to her matrimonial houseand also informed to the parents of Rampyaribai. Finally, it is stated by Pooran Lal (DW/1)that after waiting for a long time up to 7 p.m. when the parents of Rampyaribai did notcome, hence, with advice of the villagers, she was cremated.60. In the light of above discussed facts and circumstances, it has been found that theoffences punishable under Sections 498A and 306 of I.P.C. are not proved against theappellants therefore, their conviction punishable under Section 201 of I.P.C. also cannotbe sustained, hence the appellants are also acquitted from the charges punishable underSection 201 of I.P.C. For the reasons aforesaid, I do not agree with the conclusionrecorded by the learned trial Court that the offences charged against the appellantspunishable under Sections 498A, 306 and 201 of I.P.C. are proved. The appeal istherefore, allowed. Conviction of the appellants Jalam, Smt. Gouri Bai and Smt. Lalti Baiand sentences awarded to them by the trial Court are hereby set aside and the appellantsare acquitted of the charges leveled against them. The bail bonds of the appellants standsdischarged.

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