JUDGMENT
Tej Shankar, J.
1. This appeal is directed against the order of conviction and sentence recorded against the appellant Under Section 498A, IPC to a term of 18 months R.I. and a fine of Rs. 1,000/- by Shri R.K. Jain, the then First Additional Sessions Judge, Vidisha, on 31.7.1992.
2. The facts leading to the prosecution of the appellant lie in narrow compass. It is admitted that accused Smt. Anwari Bi is the mother-in-law of the deceased Mehmuna Bi. It is daimed by the prosecution that the marriage of deceased had taken place according to the custom of the family with Sharif khan who was working as driver about 8 months prior to the occurrence. She was being kept by her in-laws properly but her mother-in-law and sister-in-law, namely. Mst. Anwari Bi and sister-in-law used to harass her and treated her with cruelty on account of lesser dowry. On 23.2.90 she consumed poison. It is claimed that the accused as well as her daughter, i.e. sister-in-law, drove her to commit suicide. She was taken to hospital where She died. The investigation is alleged to have been conducted by Shri Vara the then SDO (P) and thereafter PW 10 R.K. Gurjar, who was SQO (P) on 20.2.91. He recorded statements of witnesses Mahila Juweda Bi, Babukhan, Tajmohammad, Shaminavi, Sagira Bi, Bablialias Fatima, Sharif khan and Pratap singh. He took investigation after it was left by previous 1.0. Shri Vara and submitted charge-sheet. The accused was charged u /Section 306, IPC a s well as Under Section 498A, IPC. The accused denied the charge and claimed that she kept Mehmuna Bi as her own daughter. She herself used to cook food and she used to graze catties and returned in the evening. She was falsely implicated. The prosecution examined 10 witnesses and relied upon documents Exs. PI to P5 in support of its case. The accused also filed documents Ext. Dl to D6 in her defence and has also examined DW 1 Sharif Khan, husband of the deceased.
3. The learned Trial Court after hearing parties and considering the material on record exonerated of the charge Under Section 306, IPC but held her guilty of the offence Under Section 498A, IPC and sentenced her as aforesaid. Hence this appeal.
4. The learned Counsel for the appellant contended that there is practically no FIR and the FIR has been suppressed. There is inordinate delay in recording statements u/Section 161, Cr.P.C. The evidence shows that dying declaration of the deceased was recorded but it has been suppressed. It is also contended that the 1.0. has not been examined for the reasons best known to the prosecution. The evidence on record does not go to prove the prosecution story which has been concocted. The learned Counsel for the State contended that the evidence on record clearly goes to show that the deceased was tortured on account of lesser dowry. He referred to para 14 of the judgment of the learned Court below.
5. I have carefully gone through the record and considered the contentions raised before me by the learned Counsel for the parties. As said earlier, the accused was charged Under Sections 306 and 498A, IPC but the learned Court below has exonerated her of the charge Under Section 306. We should, therefore, concentrate ourselves to the evidence relating to the offence punishable Under Section 498A, IPC. It is important to mention that there is nothing on record to show that there has been any complaint to any Authority with respect to the alleged Maarpeet on account of lesser dowry. It is one of those cases where the record shows that the prosecution has been extremely careless and no importance appears to have been attached to the investigation of the case. PW 10, R.K. Gurjar, SDO (P) who had submitted the charge-sheet himself stated that he recorded statements of witnesses on 20.2.91 though the occurrence was of 23.2.90. He further stated that the reason for recording the statements of witnesses after such a delay was that the matter was lying unattended and then he proceeded with the investigation. It is not understandable as to how and under what circumstances the investigation was lying unattended for such a long period. It is significant that this witness has also stated that previous investigation was conducted by his predecessor Shri Vara but the investigation remained with him has not been brought on record. The contention of the learned Counsel for the appellant is that as the statements of witnesses were recorded after inordinate delay which has not been satisfactorily explained and the 1.0. Shri Vara who according to the statement of PW 10 R.K. Gurjar conducted the main investigation has not been examined, the prosecution case is liable to be thrown. He placed reliance upon AIR 1979 SC 135(Ganesh Bhavan Patel v. State of Maharashtra). In this case the Apex Court observed that where the delay in recording statements of eye-witnesses is simplicitor it does not amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitment circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. The other case relied upon is AIR 1980 SC 1750 (Bhagwan and Anr. v. State of M.P.). In that case the Apex Court allowed the appeal and acquitted the accused observing that the material witness was examined by the police long after the occurrence apart from other factors. In the case in hand there are circumstances to suggest that the statements of witnesses were recorded earlier but they have been suppressed and subsequent statements recorded by PW 10 SDO (P) R.K. Gurjar have been brought to light. The witnesses have stated that their statements were recorded earlier but the prosecution has suppressed those statements for the reasons best known to it. In this connection reference may be made to the statement of PW 2 Babukhan who stated that after 4 or 6 days of death of Mehmuna Bi the Police had recorded his statement. PW3 Taj Mohammad deposed in this connection that his statement was recorded the next day. He specifically denied the fact that his statement was recorded by the Police after a year. PW 4 Ku. Babli also stated that her statement was recorded by the police after 2 or 3 months of the occurrence and not after one year. PW 5 Sharif Khan stated that after 4 or 5 days of the death of Mehmuna Bi the police had recorded his statement and not after one year. Thus, it is established beyond all doubt that the statements were recorded during investigation after the occurrence but unfortunately those statements have not been brought to light for unknown reasons and the statements recorded by PW 10 were supplied to the accused. It can, therefore, safely be inferred that in the earlier statements there must not be anything against the accused and they may not be in line with the prosecution case and hence they have been suppressed. It is very important flaw in the prosecution case. I am supported by the decision of the Apex Court 1978 Cri.L.J. NOC 134 (Ganpatlal and Ors. v. State of M.P.). If the fact is that statements were recorded a year back by the I.0. there is no sufficient explanation for this inordinate delay and it by itself under the circumstance of the case goes to show that the police must have been in the look out of some sort of evidence to implicate the accused and this circumstances on the basis of the facts of this case is an important circumstance to throw the case of the prosecution. Learned Court below has considered this fact that the statements were recorded after inordinate delay it does not appear to have taken note of the fact that earlier statements were suppressed by we prosecution and there is no sufficient explanation for this delay.
6. Apart from what has been said above, I may mention that evidence on record goes to show that FIR was lodged by PW 3 Taj Mohammad and that FIR has not seen the light of the day. PW 3 in his statement stated in para 3 that on the same day he lodged a report at P.S. Kurwai. In para 4 it is made clear that he lodged a written report. It is not understandable as to what happened to that written report because it has not been brought on record and it has been suppressed. This again shows great suspicion on the prosecution story and suggests that the earliest version must not have been in line with the prosecution case. This again makes the prosecution case suspicious.
7. Having observed two important factors which make prosecution case suspicious I now proceed to deal with the statements of the witnesses and to find out how far they are truthful. PW 1 Juweda Bi is the mother of the deceased. In her examination-in-chief she deposed that her daughter was kept by her in-laws properly. In the next breath she stated that her mother-in-law and sister-in-law did not keep her properly. They used to beat her. Her daughter Mehmuna used to tell us that she did not want to go as her mother-in-law and sister-in-law used to give her trouble. On account of not giving dowry the mother-in-law and sister-in-law used to harass her inasmuch as they used to give her counted bread. Milk, eggs and bread were kept under lock and it was her duty to press hands and limbs daily. However, in para 6 she stated that after four months of the marriage she had asked the accused about the trouble that she gave to her daughter and said that she will not send her. The accused and her daughter went to take her daughter (deceased) her husband then sent her after 8 days. Her daughter again came with her husband. She again made enquiry and her daughter told her that she will go to Bhopal. With respect to treatment she stated that it was alright. To quote her own words she stated “Bartab Ke bare main bataya tha ki ab thik hai”. Thus, even if there was any Maarpeet or any torture as stated by her it had subsided as has been stated by the witness herself. PW 2 Babukhan is father of the deceased and he has not said about her on the basis of his personal knowledge. He has stated on the basis of the information given to him by his wife Juweda. Thus, his statement is nothing but hear-say and no reliance can be placed upon his testimony. I may add, it is against the natural conduct that the girl did not tell anything to him. Had there been any torture as claimed by the prosecution it was very natural for the daughter to have said it to her father over and above telling it to her mother. PW 3 Taj Mohammad has not said anything about torture or harassment. PW 4 Ku. Babli is a minor sister of the deceased. She has stated that she had gone to the house of deceased and Mehmuna’s mother-in-law had asked her as to whether her Masoor has been sold and she replied in negative whereupon she stated that she should tell her father Babukhan to send fridge and golden ring and then Mehmuna will be went. Thus, demand has not been stated even by the parents. This witness too has not said about the torture. PW 5 Sharif khan has stated that Babli had told him that Mehmuna’s mother-in-law Anwari was demanding gas-oven and fridge and golden ring and tins was disclosed about 6 or 7 days before the death of Mehmuna. Besides the statements of these witnesses, there is no statement. I may add that the earliest statements given by the witnesses to the 1.0., as pointed out above, have been suppressed. Had they been produced they would have shown that they were the earliest version and they would have given an opportunity to the accused for contradicting the statements and if such statements were not there. But in absence of those statements the accused-appellant has been greatly prejudiced. Taking into consideration all these facts and the circumstances mentioned above, I conclude that no reliance can be placed upon the statements of the witnesses regarding the allegation of cruelty on account of dowry. The learned Court below was, therefore, not justified in accepting the statements of witnesses. Consequently I find that there is no reliable evidence to fasten the guilt against the accused Under Section 498A as well. She is, therefore, entitled to acquittal.
8. The appeal accordingly succeeds. The order of conviction and sentence recorded against the accused is set aside and the appellant is acquitted of the charge for which she has been convicted. She is on bail. Her bail bonds are cancelled and sureties discharged. The fine, if paid, shall be refunded.