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2007 DIGILAW 428 (GAU)

Ram Santosh Chauhan v. State of Assam

2007-06-19

HRISHIKESH ROY

body2007
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. B.K. Mahajan and Mr. A. Choudhury, learned Counsels appearing for the appellant. Also heard Mr. B.S. Sinha, learned P.P., Assam. 2. This appeal is filed against the Judgment and Order dated 30.4.2004 in Sessions Case No. 403/2003 rendered by the Sessions Judge, Morigaon, where by the appellant/accused has been convicted for an offence punishable under Section 306 of the IPC. On the basis of such conviction the appellant has been sentenced to undergo Rigorous imprisonment for a period of 8 years with a fine of Rs.1,000 in default. Although, the appellant was charged also for an offence Under Section 498A of the IPC, the finding of the learned trial Court is that the offence of Section 498A is not attracted in the present case. 3. The prosecution case is that the deceased Gudari was married about 5-6 years prior to the incident with the accused Ram Santosh Chauhan. The deceased was the second wife of the accused and bore him 2 children. The first wife of the appellant (Ram Santosh Chauhan) was alive at the time of the of the incident. On 17.2.2003, the father of the deceased heard his daughter had expired by taking poi-son and he lodged an F.I.R. in connection with the death of his daughter. In the F.I.R. lodged, the father of the deceased indicated that his son-in-law tortured his daughter on the previous night of the occurrence and drove out his daughter from his house and as such, she spent the night outside the house. On the morning of the occurrence also torture was inflicted on the daughter by the accused, for which the daughter Gudari consumed poison. The informant also intimated that he was told by the deceased that the accused in-tended to marry the sister of the deceased and because of this reason quarrel was going on between his deceased daughter and his son-in-law. It is the prosecution story that as the de-ceased was subjected to cruelty by the husband, she was forced to commit suicide. Although there was no direct evidence implicating the appellant, presumption Under Section 113A of the Evidence Act, 1872, against the accused can be drawn and he can be held liable for abetment of suicide of his wife, and thereby liable to conviction punishable under Section 306 of the IPC. 4. The prosecution examined as many as 8 witnesses. Although there was no direct evidence implicating the appellant, presumption Under Section 113A of the Evidence Act, 1872, against the accused can be drawn and he can be held liable for abetment of suicide of his wife, and thereby liable to conviction punishable under Section 306 of the IPC. 4. The prosecution examined as many as 8 witnesses. But no witness was present on behalf of the defence. 5. The PW-1, the informant and father of the deceased indicated that the house of the accused and his own house were located at a distance of 10 Nals and at the time of torture of his daughter, he did not go to the house of the deceased to enquire about the matter. He further stated that he heard about torture of his daughter from the other people. He also stated that his deceased daughter occasion-ally suffered from mental trouble after the birth of the second child. 6. PW-2, Kumila Chauhan is the first wife of the appellant, who indicated that she bore 5 children with the accused after which the accused married the deceased Gudari. As this witness does not support the prosecution case she was declared as a hostile witness. However, this witness had indicated that there was quarrel going on between her husband and his second wife Gudari on the previous evening of the occurrence. 7. PW-3 and PW-4, Gita Chauhan and Urmila Chauhan are the sisters of the deceased. These two witnesses were also declared hostile witnesses. It appears from the evidence adduced by the two sisters of the deceased PW-3 and PW-4 that as the appellant wanted to marry Geeta (PW-3) there was quarrel between the appellant and the deceased and the deceased was beaten up by the appellant in the previous night of occurrence. It is further averred that because of the atrocities committed on the deceased by the appellant, she was forced to take her life. 8. PW-5 is the Doctor who conducted post-mortem examination. The Doctor opined that the cause of death was cardiac arrest resulting from acute pulmonary embolism. The Doctor also indicated that the viscera of the deceased were preserved for forensic examination. 9. PW-6, Fazlul Haque was the Investigating Officer of the case. 8. PW-5 is the Doctor who conducted post-mortem examination. The Doctor opined that the cause of death was cardiac arrest resulting from acute pulmonary embolism. The Doctor also indicated that the viscera of the deceased were preserved for forensic examination. 9. PW-6, Fazlul Haque was the Investigating Officer of the case. It appears from the evidence of PW-6 that quarrel was taking place between the appellant and his deceased wife as the appellant wanted to marry Geeta, the sister of the deceased. On the previous night also, the appellant had beaten and assaulted the deceased, which was noticed by the family of the deceased whose houses were adjacent to each other, being separated by the single house. 10. PW-7 was the Circle Officer who conducted inquest on the body of the de-ceased. PW-8 was the Investigating Officer who took over the investigation after transfer the previous Investigating Officer. P.W.-8 proved the forensic report exhibited as Ext.-5, which disclosed the fact of common poisoning. 11. The learned Counsel for the appellant by referring to the evidence adduced had indicated that there is no direct evidence to implicate the accused with the offence of abetment of suicide of his wife. It is further submitted that the accused/appellant has been implicated in the present case by drawing presumption of guilt with reference to the provisions enacted Under Section 113A of the Evidence Act, 1872. The learned Counsel for the petitioner has also referred to the provisions of Section 107 of the IPC, which defines abetment and submits that in the instant case, no evidence to indicate abetment by the husband into the suicide of his wife is present and accordingly, the conviction of the appellant Under Section 107 of the IPC is totally unjustified. It is further argued that for drawing up presumption for abetment of suicide by a married woman, the first requirement of law is to prove cruelty and such cruelty must be on account of dowry demand for any property or any valuable security from the wife and her family. It is submitted that in the instant case no evidence is introduced to indicate any such dowry demand has been made by the husband and accordingly, recourse to the provisions of Section 113Aof the Evidence Act to implicate the husband, is clearly unwarranted in the facts of the instant case. It is submitted that in the instant case no evidence is introduced to indicate any such dowry demand has been made by the husband and accordingly, recourse to the provisions of Section 113Aof the Evidence Act to implicate the husband, is clearly unwarranted in the facts of the instant case. In support of the contentions raised by the learned Counsel for the appellant, a decision of this Court reported in 2005 (2) GLT 580: Gautam Sahu v. State of Assam has been cited. In this case, while examining the scope of the provisions of Section 113A of the Evidence Act, 1872, this Court indicated that harassment of a wife prior to her committing suicide, must relate to or be connected with a demand for dowry and without evidence to indicate that the harassment was for non fulfilment of dowry demand the presumption Under Section 113A cannot be drawn to rope in the accused for abetting the suicide of his wife. 12. The learned Counsel for the appellant has also referred to the Supreme Court decision reported in 2006 CriLJ 554 : Hari Singh v. State of Punjab; wherein the Supreme Court has taken the view that before invoking the provisions of Section 306 of the IPC, it is necessary to establish that (i) the deceased committed suicide and (ii) she had been subjected to cruelty within the meaning of Section 498A of the IPC. The Supreme Court went on to hold that only in the event that these facts are established the presumption in terms of Section 113A of the Evidence Act, 1872 can be raised. In the facts of the case before the Supreme Court, the Supreme Court held that, as the prosecution had not been able to prove that the deceased was subjected to cruelty within the meaning of Section 498A of the IPC, the case against the accused of abetment is not made out. 13. In the instant case, although the appellant was also charged with an offence under Section 498Aof the IPC, the learned trial Court found that the ingredients of the said offence are absent and accordingly, the accused was not convicted for the offence Under Section 498A of the IPC. 13. In the instant case, although the appellant was also charged with an offence under Section 498Aof the IPC, the learned trial Court found that the ingredients of the said offence are absent and accordingly, the accused was not convicted for the offence Under Section 498A of the IPC. The learned trial Court gave a finding that the ingredients of Section 498A of the IPC, which refers to cruelty on a married woman by her husband or his relatives, are absent in the instant case. Since the learned trial Court held that the charge Under Section 498A of the IPC has not been made out, the very basis for drawing up presumption Under Section 113A of the Evidence Act, to implicate the appellant with the suicide of his wife under the provisions of Section 306 IPC, in my opinion are absent in the instant case. 14. No doubt, from the evidence of the witnesses who were declared hostile, it can be seen that the appellant wished to marry the younger sister of his deceased wife, PW-3 and because of this, there was quarrel between the husband and the wife on the previous night of the incident also. The appellant assaulted his wife as she opposed the husband from marrying her younger sister. 15. In the present case, there is no direct evidence to implicate, the appellant with abetment of suicide of his wife and it appears that no evidence whatsoever was introduced to indicate the conduct of the respondent to prove the offence of abetment given Under Section 107 of the IPC. The Supreme Court in the cited ease reported in (2004) 13 SCC 129 : Randhir Singh Anr. v. State of Punjab held that: Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence Under Section 306 IPC. 16. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence Under Section 306 IPC. 16. From reading of the aforesaid judgment of Supreme Court as well as on consideration of the arguments advanced by the learned Counsels, I am of the view that the conviction of the appellant based on presumption Under Section 113A of the Evidence Act was unjustified and such presumption cannot be drawn, on the basis of the evidence introduced in the instant case. 17. Since the conviction of the appellant is based solely on the presumption drawn without there being any direct evidence, the conviction does not appear to be sustainable. Under such circumstances, the impugned conviction of sentence are hereby set aside.