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PETITIONER: BIHARILAL SONI & OTHERS

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       06/08/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Nanavati, J.      The three  appellants were  convicted under Section 302 read with Section 34 IPC, in Sessions Case No. 320/89 by the Court of  Sessions Judge,  Bhopal.   Appellant Murarilal was also  convicted  under  Section  201  IPC.  The  High  Court confirmed their  conviction. Therefore, they have filed this appeal.      It was  alleged by  the prosecution  that all the three appellants were treating Sarita cruelly and that they caused her death  on 25.11.1988  by causing burn injuries to her on 16.11.198.      In order  to prove  that she was treated cruelly by the three appellants,  the prosecution examined PW.1 Bhagwandas, PW-6 Purshotamdas  and PW.7  V.K. Sharma.   The  prosecution also led  evidence to  prove that  Sarita had  received burn injuries some  time on 16.11.1988 and that she had died as a result of  those burn  injuries on  25.11.1988. The  medical evidence   led    by   the   prosecution   remained   almost unchallenged. The  defence of the appellants was that Sarita was suffering from mental illness and schizophrenia and that she had  received burn injuries either while lighting a lamp or by  bursting crackers.  In   order to  prove that she was suffering from  the disease of schizophrenia, the appellants had examined  Dr. Malvia,  Dr. Handa,  Dr.  Sharma  and  Dr. Tandon  as   defence  witnesses.   The  trial   court  after appreciating  their  evidence  held  that  even  if  it  was accepted that Sarita was suffering from some mental disease, the defence raised by the appellants was not believable. The trial court  also came  to the  conclusion that it was not a case of accidental or suicidal death. The possibility of her having received  burn injuries  while bursting  crackers was completely ruled  out by  the medical  evidence.  The  trial court observed  that if Sarita had caught fire accidentally, she should  have raised cries for help, the appellants would have taken  her to  a hospital.  But nothing was done by the appellants.      The trial  court after  considering the evidence of the three neighbours  held that  it was  established that Sarita was treated  in a  cruel manner  by her  in-laws. The  trial

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court also took into consideration subsequent conduct of the appellants in  not getting  her treated  medically,  in  not informing  her   parents  about  her  having  received  burn injuries till  she  died  after  nine  days  and  the  false explanation given  by appellant  Murarilal  as  regards  the cause of  her receiving  burn injuries  for holding that the prosecution  had  established  its  case  beyond  reasonable doubt. It,  therefore, convicted all the three appellants as stated above.      The High Court on reappreciation of the evidence agreed with the  findings recorded by the trial court and confirmed the  conviction   of  the  appellants  and  dismissed  their appeals.      The learned  counsel for  the appellants submitted that in view  of the  evidence of  the four  doctors examined  in defence, the  High Court  ought to have held that Sarita was suffering from  schizophrenia and, therefore, the defence of the appellants  was probable.  He also  submitted  that  the evidence regarding  cruelty ought not to h ave been believed as witness  Bhagwandas  was  not  on  good  terms  with  the appellants. As  regards PW  Bhagwandas,  he  submitted  that there was  a litigation between t he father f Bhagwandas and the father f appellants Biharilal and Murarilal in respect f a piece  of land  adjoining the  house of the appellants and therefore he  was an interested witness. With respect to the two other  witnesses Purshotamdas  and Sharma  he  submitted that their  evidence is  vague and  nor worthy f acceptance. After scrutinising  the evidence  f Bhagwandas, we find that there is  nothing  on record to show that Bhagwandas was not on good  terms with  the appellants.  He admitted that there was a  civil litigation  between his  father  and  father  f appellants  Murarilal  and  Biharilal,  but  that  suit  was disposed f  30 years  back and  thereafter he  had n dispute with the  appellants. Bhagwandas  was admittedly  doing  his business f  selling tea  opposite the house f appellants and therefore, he  could have  seen the  ill-treatment that  was given by  the in-laws  to Sarita.  The other  two witnesses, though  not  specific  have  also  deposed  about  the  ill- treatment and complaints made to authorities in that behalf. They had no reason t falsely depose against the appellants.      The courts  below were,  therefore, right  in accepting their evidence. We find no infirmity in appreciation f their evidence. In  our opinion, the court below have rightly held that the  deceased was  ill-treated by her in-laws. However, we find that the  witnesses Purshotamdas and Sharma have not specifically stated that Biharilala was also treating Sarita cruelly. There  was not  reason for him to do so. He being a government servant  and a  married man  would not have taken part in  treating  Sarita  cruelly  and  causing  her  death without any  reason. There is no other evidence against him. He, therefore, deserves to be acquitted.      We agree  with the  findings recorded  by the High Curt and hold  that Murarilal  and Leelabai appellant nos.2 and 3 have been  rightly convicted  under Section  302  read  with Section 34 IPC. Conviction of Murarilal under Section 201 is also proper  and legal. However, the conviction of Biharilal under Section  302 read  with Section 34 IPC will have to be set aside.      We, therefore,  partly allow this appeal. The appeal of appellant nos.2 and 3, Murarilal and Leelabai, is dismissed. Appeal of  appellant Biharilal is allowed and his conviction and sentence  under Section 302 read with Section 34 IPC are set aside.      Bail of  appellant  No.  3  is  cancelled  and  she  is directed to  surrender to custody to serve out the remaining

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sentence.