U.C. Maheshwari, J.@mdashThe appellant/accused has directed this appeal u/s 374(2) of Cr.P.C. being aggrieved by the judgment dated 20.12.1999 passed by 2nd Additional Sessions Judge, Jabalpur in S.T. No. 698/92, convicted him u/s 498A and 306 of IPC for RI one year with fine of Rs. 200/-, in earlier section while RI three years with fine of Rs. 300/- in later. The facts giving rise to this appeal in short are that the deceased Leelabai got married with the appellant on 24.6.1988. As alleged subsequent to marriage in matrimonial home Leelabai was subjected to beating in regular course under the influence of liquor by the appellant. She was used to ask by the appellant to bring Rs. 20,000/- in dowry from her parental family. On 6.6.1992 in the morning the appellant under the influence of the liquor carried out beating of his wife Leelabai by means of kicks and fists, consequently she got ill and was admitted in the hospital by her brother-in-law Ganesh. On receiving such information at the Police Station, a preliminary inquiry was held in which it was known that she had consumed some poisonous substance but was not found fit to give her statement so the same was not recorded. Later in the late night during treatment she passed away, on which an inquest intimation was registered, in it''s inquiry after preparing the dead body Panchnama, her corpus was sent to the hospital for autopsy. The same was carried out by Dr. A. K. Yadu, (P.W.12). According to postmortem report (Ex.P.9), no definite opinion regarding her cause of death was given by the doctor, however viscera was preserved for chemical examination and the same was sent to the FSL Sagar. On establishing some prima-facie circumstances of the offence the crime was registered and the same was investigated. On completion of the same the appellant was charge sheeted for the offence of Section 306 and 498A of IPC.
2. After committing the case to the Sessions Court initially the charge of Section 304B of IPC was framed against the appellant subsequently on 15.1.1998 the same was modified and the charge of Section 498A and 306 in alternate 304B of IPC were framed against the appellant, he abjured the guilt, on which the trial was held. After recording the evidence on appreciation holding the appellant guilty for the offence of Section 498A and 306 of IPC he was punished with the above mentioned punishment while he was acquitted from the charge of Section 304B of IPC. Being dissatisfied with such conviction and sentence the appellant has come to this Court with this appeal.
3. Appellant''s counsel Shri R.S. Patel, after taking me through the record without challenging the impugned conviction of the appellant u/s 498A of IPC assailed the conviction and sentence of the appellant u/s 306 of IPC. In this regard he argued that the prosecution has utterly failed to prove the exact cause and nature of death of the deceased Leelabai whether her death was homicidal, suicidal or in any case was accidental. In this connection by referring the deposition of aforesaid Dr. A.K. Yadu (P.W.12), who carried out the autopsy and prepared postmortem report (Ex.P.9) of the deceased, argued that such doctor has specifically stated in the postmortem report as well as in his deposition that he could not find out the exact cause and nature of death of Leelabai, however her viscera was preserved to rule out the possibility of her death due to consuming any poisonous substance. In this regard he further argued that although preserved viscera of the deceased was sent to FSL for it''s chemical examination but it''s report had neither produced nor proved on record and in the lack of such report there was no occasion with the trial Court to draw the inference that Leelabai by consuming some poisonous substance committed the suicide. In the lack of material and admissible evidence showing that Leelabai died with suicidal or unnatural death, it could not be assumed that she was abated by the appellant to commit suicide and in such premises prayed for setting aside the conviction and sentence of the appellant u/s 306 of IPC. Besides this he also argued that considering the long pendency of the present matter in which the appellant has suffered the mental agony of it for years together along with the judicial custody of 56 days during trial between 11.6.1992 to 7.8.1992, by adopting the lenient view his awarded jail sentence u/s 498A of IPC be reduced up to the aforesaid period for which he has already undergone by enhancing the amount of fine under the discretion of the Court and prayed to allow this appeal accordingly.
4. On the other hand State counsel Shri Yogesh Dhande by justifying the impugned conviction and sentence of the appellant under both the sections said that the same being based on proper appreciation of evidence do not require any interference at this stage. He further said that once the charge of Section 498A of IPC is found to be proved against the accused then in view of provision of presumption enumerated u/s 113A of Evidence Act the conviction of such accused u/s 306 of IPC is justifiable and does not require any interference at the stage of appeal. However, in response of some query of the Court he fairly conceded that unless the nature and cause of death of deceased is proved on the record as suicidal the accused like appellant could not be convicted u/s 306 of IPC. In such premises he also fairly conceded that in view of available postmortem report (Ex.P.9) and in the lack of FSL report regarding viscera of Leelabai, it could not be inferred that Leelabai died due to suicidal death or the homicidal death because no injuries either internal or external was found on the body of the deceased and in the lack of viscera report showing some poisonous substance was found in the same, it could not be assumed that she died with suicidal death. He further argued that in any case even on extending the acquittal to the appellant from the charge of Section 306 of IPC the conviction and awarded jail sentence of the appellant u/s 498A of IPC for which sufficient evidence is available deserves to be sustained and looking to the nature of the case the awarded jail sentence of the appellant under such section could not be reduced from one year to some lessor punishment by enhancing the amount of fine and prayed for dismissal of this appeal.
5. Having heard the parties at length keeping in view their arguments, I have carefully gone through the record.
6. It is undisputed fact on record that the deceased Leelabai died within seven years from the date of her marriage with the appellant. As per settled proposition in order to prove the unnatural death of any person the prosecution is duty bound to prove the mode of his death by admissible medical evidence, whether such death was homicidal, suicidal or accidental in nature. If it is stated to be suicidal then the prosecution has to prove further that such suicide was committed by which mode either by hanging or consuming some poisonous substance or setting fire on herself or otherwise. Till some extent the above mentioned cause, nature and mode of death could be proved by the FSL report from viscera or any other organs collected from the dead body while carrying out the postmortem.
7. Keeping in view the aforesaid in order to examine the question whether Leelabai committed suicide or died with some other mode of death like homicidal or accidental, I have carefully gone through the postmortem report (Ex. P.9) prepared by Dr. A. K. Yadu (P.W. 12), so also the deposition of such doctor. According to such report as well as deposition of such doctor, no external or internal injury was found in the corpus of the deceased Leelabai. On page No. 6 of such postmortem report such doctor had given his opinion regarding her cause of death in these words "Time since death within 24 hours. No cause of death found viscera to be chemically examined." in such premises, it could be said that prosecution could not prove the exact cause of death of Leelabai through postmortem report. In the lack of any injury on the corpus of the deceased Leelabai, it could not be assumed that she died with homicidal or accidental death. It is apparent on the record that seized viscera was sent to the FSL for it''s chemical examination but its report was neither filed nor proved on record. Even the explanation regarding non-production of such report has also not been placed on record. Therefore, in the lack of such report of FSL showing that some poisonous substance was found in the alleged viscera of the deceased, mere on imagination it could not be assumed that Leelabai might have committed suicide by consuming some poisonous substance. In such premises, I am of the considered view that in the lack of admissible and reliable evidence to prove the case beyond reasonable doubt that Leelabai committed suicide or died with unnatural death, the accused like appellant could not be convicted u/s 306 of IPC. In such premises, even on taking into consideration the ocular evidence of the witnesses examined from the parental family of the deceased the awarded conviction and sentence of the appellant u/s 306 of IPC could not be upheld. Mere on the basis of evidence or deposition of witnesses showing that in the life time of the Leelabai, she was subjected to harassment, torture or cruelty by the appellant, it could not be assumed that she instigated by the appellant to commit suicide and pursuant to that she committed the same. In view of the evidence available on the record, the possibility of natural death of the deceased Leelabai could not be ruled out. Therefore, the conviction of the appellant u/s 306 of IPC being not sustainable along with it''s awarded punishment is hereby set aside.
8. Setting aside the conviction and sentence of the appellant u/s 306 of IPC does not mean that he is also entitled for acquittal from the charge of Section 498A of IPC. On going through the depositions of Dhaniram (P.W.1), Gulab Patel (P.W.2), Harishankar (P.W.3), Ganesh (P.W.9), Rama Patel (P.W.15), uncles of the deceased, Dropdi Bai (P.W.8), mother of the deceased and Ganesh Patel (P.W.17) brother-in-law of the deceased so also the deposition of defence witnesses Kandhilal Patel (D.W.1), uncle of the appellant Bachchi Bai (D.W.2), mother of the appellant I have found sufficient prima-facie evidence against the appellant showing that in the life time of the deceased whenever she resided in the matrimonial home with the appellant she was subjected to harassment and torture by him and such act of the appellant comes under the preview of cruelty defined u/s 498A of IPC but from the available evidence it has not been proved that such cruelty was committed by the appellant with Leelabai on account of demand of dowry. In such premises the trial Court has not committed any error in acquitting the appellant from the charge of Section 304B of IPC. Even otherwise in the lack of evidence proving that Leelabai died with unnatural death the acquittal of the appellant from the charge of Section 304B of IPC could not be said to be faulty. But in view of the depositions of aforesaid witnesses the approach of the trial Court holding guilty to the appellant u/s 498A of IPC does not require any interference at this stage. Consequently, the awarded conviction of the appellant u/s 498A of IPC is hereby affirmed.
9. Coming to consider the prayer of the appellant''s counsel for reducing the awarded jail sentence of the appellant u/s 498A of IPC is concerned, I have found some substance in it. Considering the long pendency in which the appellant has suffered the mental agony of this case for more than fourteen years and also appeared on the various dates in the trial Court so also before this Court. Beside this he also suffered the judicial custody of fifty six days during trial as stated above and as per available record he did not have any criminal antecedents, so considering overall circumstances of the matter after affirming the conviction of the appellant u/s 498A of IPC, I deem fit to reduce his jail sentence up to the aforesaid period of fifty six days for which he has already undergone, by enhancing some amount of fine.
10. In view of the aforesaid discussion, by affirming the conviction of the appellant u/s 498A of IPC, this appeal is allowed in part and appellant is acquitted from the charge of Section 306 of IPC, consequently the awarded punishment of such section is also set aside while the awarded jail sentence of the appellant u/s 498A of IPC is hereby modified and reduced from one year to the aforesaid period of fifty six days for which he has already undergone by enhancing the amount of fine from Rs. 200/- to Rs. 7,500/-. The amount of fine deposited by the appellant u/s 306 of IPC shall be adjusted in the above mentioned enhanced fine amount u/s 498A of IPC. The remaining enhanced, fine amount is to be deposited by the appellant in the trial Court within four months from today, failing in depositing the enhanced fine he has to suffer further six months ''RI. The bail bond of the appellant is hereby discharged. Till the aforesaid extent the impugned judgment is modified while other findings of the same are hereby affirmed. Appeal is allowed in part as indicated above.
