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2010 DIGILAW 2401 (ALL)

Rajendra Kumar Maurya v. State of U. P.

2010-08-09

VEDPAL

body2010
Hon'ble Vedpal,J. 1. Accused Rajendra Kumar Maurya has filed this appeal through jail authorities against the judgment and order dated 28.4.2009 passed by Shri I.D. Dubey, Additional Sessions Judge/F.T.C.No.IV, Lucknow in S.T.No.406 of 2001(Case Crime No.6 of 2000) Rajendra Kumar Maurya Vs. State related Police Station Mahanagar, Lucknow whereby the appellant was convicted and sentenced, for the Offences punishable U/S306 I.P.C to undergo Rigorous imprisonment for a period of four years and to pay a fine of Rs. 3,000 and in default of payment of fine to further undergo simple imprisonment for a period of two months, for the Offences punishable U/S452 I.P.C to undergo Rigorous imprisonment for a period of three years and to pay a fine of Rs. 2,000 and in default of payment of fine to further undergo simple imprisonment for a period of two months, for the Offences punishable U/S504 I.P.C to undergo Rigorous imprisonment for a period of one years and to pay a fine of Rs. 500 and in default of payment of fine to further undergo simple imprisonment for a period of one month,. for the Offences punishable U/S506 I.P.C to undergo Rigorous imprisonment for a period of two and a half years and to pay a fine of Rs. 1,000 and in default of payment of fine to further undergo simple imprisonment for a period of one month and for the Offences punishable U/S120-B I.P.C to undergo Rigorous imprisonment for a period of three years and to pay a fine of Rs. 3,000 and in default of payment of fine to further undergo simple imprisonment for a period of two months. All the sentences were made to run concurrently. 2. Along with the present appellant, one other accused namely Mahesh Kumar Maurya was also tried in S.T.No.1526 of 2000 by consolidating both the Sessions Trial and he was also convicted and sentenced as above but he has not preferred any appeal against his conviction and sentence as per office report. 3. On the request of both parties this appeal was finally heard. 4. The prosecution version as is revealing from the record is that one Smt. Jeevan Kumari Maurya, wife of Sri Virendra Prakash Maurya R/O 511/38 Purana Badshah Nagar, Lucknow,U.P. who happens to be the sister of accused appellant gave a written report to Sub-Inspector Smt. Shivakanti on 22.11.1999 which is Ext. Ka-1 on the record. 4. The prosecution version as is revealing from the record is that one Smt. Jeevan Kumari Maurya, wife of Sri Virendra Prakash Maurya R/O 511/38 Purana Badshah Nagar, Lucknow,U.P. who happens to be the sister of accused appellant gave a written report to Sub-Inspector Smt. Shivakanti on 22.11.1999 which is Ext. Ka-1 on the record. It was stated in this application that the husband of applicant Virendra Prakash Maurya is Sub-Inspector in C.B.C.I.D.,Lucknow and she along with her husband and family resides in a house constructed over the land given by her father; That Rajendra Kumar Maurya and Mahesh Kumar Maurya, who are her brothers along with their wives Smt. Mithilesh Maurya and Smt. Usha Maurya respectively wanted to get the said house vacated and used to quarrel with them. That on 6.8.1999, Rajendra Kumar Maurya and Mahesh Kuma Maurya along with their wives came to her house and threatened her son Himanshu Maurya by aiming countrymade pistol at him and pressed them to vacate the house. When her husband Virendra Prakash Maurya returned to house the incident was told to him by her, but he did not take any action. It is further stated in the application that it upseted Himanshu Maurya and he stated that neither they take any action against Mahendra Kumar Maurya and Mahesh Kumar Maurya nor allow him to take any action and it is better to die. That on 8.8.1999. Himanshu Maurya consumed Sulphas due to the said incident, as a result of which he died on 9.8.1999 in Medical College while under treatment. That considering it is a family dispute, report of incident was not lodged at that time. That elder brother of Jeevan Kumari Maurya and his wife Kusum Maurya also wanted that house be vacated . It is further stated in the application that again on 22.11.1999 Rajendra Kumar Maurya and Mahesh Kumar Maurya along with their wives threatened her that her son has committed suicide and now they should vacate the house otherwise her husband Virendra Prakash Maurya will no longer be alive and they have also purchased Silver Bangles for her. Apprehended that some untoward incident may happen, she submitted the said report . Apprehended that some untoward incident may happen, she submitted the said report . On the basis of the said written report, chik F.I.R. Ext.-Ka-7 was prepared at the police station on 6.8.2000 at 2:50 p.m. and a case crime no.6 of 2000 for the offence punishable under Sections 452,306,504,506,120B I.P.C. was registered against Rajendra Kumar Maurya, Mahesh Maurya @ Palu, Smt. Mithilesh Maurya, Smt. Usha Maurya, Rakesh Kumar and Smt.Kusum Maurya. 5. The investigation of the case was entrusted to Sub-Inspector Shri Harishchandra Singh and subsequently to Sub-Inspector Santosh Giri. During investigation of the case, the Investigating Officer recorded the statement of the witnesses under Section 161 Cr.P.C., collected the relevant papers of the case including panchanama of the dead body of Himanshu Maurya prepared by Sub-Inspector Navratan Kumar Dubey, post-mortem report of Himanshu Maurya and papers relating thereto. After having completed the formalities of the investigation, the investigating officer submitted seprate charge sheets against Rajendra Kumar Maurya and Mahesh Kumar Maurya in the Court of learned Magistrate. On the basis of the said charge sheets, case against Rajendra Kumar Maurya and Mahesh Maurya were committed to the court of Sessions by the learned Magistrate, where they were numbered as S.T.No. 406 of 2001 and 1526 of 2000, respectively. As stated above a joint trial was held. Since the appeal has been preferred by Rajendra Kumar Maurya only, therefore case against him is being dealt with. 6. In the Court of Session, accused Rajendra Kumar Maurya was charged for the offence punishable under Sections 452,306,504,506,120B I.P.C. He denied the charges levelled against him and pleaded not guilty. 7. The prosecution in order to prove its case, has examined Virendra Prakash Maurya as P.W.-1,Jeevan Kumari Maurya, as PW-2 Dr. I.K. Ramchandani as PW-3, Soniya Maurya as PW-4 Shivakanti as PW-5 Neelam Maurya as PW-6 Navratan Kumar Dubey as PW-7 Head constable Laxmi Narayan Choudhary as PW-8. No other witness was testified by the prosecution. 8. The accused in his statement U/S 313 of the Code of Criminal Procedure, denied the prosecution allegations against him and stated that he has been falsely implicated in the case on account of property dispute. The accused did not adduce any evidence in his defence. 9. The learned court below, relied the prosecution version and convicted and sentenced the appellant as stated above. The accused did not adduce any evidence in his defence. 9. The learned court below, relied the prosecution version and convicted and sentenced the appellant as stated above. Feeling aggrieved with the said judgment and order the appellant has preferred this appeal through jail authorities. 10. I have heard Ms. Archana Mishra, learned Amicus Curiae for the appellant as well as Shri Rajendra Prasad Dwivedi, learned A.G.A. for the state and perused the record of the case carefully. 11. Learned Amicus Curiae for the appellant assailing the impugned judgment and order, contended that in the present case ingredients of abetment are totally absent as envisaged under Section 306 IPC read with Section 107 of the IPC and, therefore, Accused is liable to be acquitted. It was further submitted that on proper analysis of the facts and also the provisions of Section 306 IPC it cannot be said that the appellant herein was in any manner responsible for abetting the suicide allegedly committed by the deceased. It was also submitted that the appellant did not in any manner substantially assisted the deceased in committing the suicide .It was also submitted that the prosecution version is extremely doubtful and and self contradictory and as such there is no reliable evidence to connect the accused with the incident in question and as such the offences for which appellant has been charged, do not stand proved against him and as such he is liable to be acquitted. to all the charges levelled against him. 12. The aforesaid submissions were, however, refuted by learned A.G.A appearing for the State contending inter alia that there is sufficient evidence in support of the finding that appellant is guilty of the offences for which he has been charged and, therefore, the said findings recorded by the Court below cannot be said to be in any manner arbitrary or unjustified. He further contended that Charge U/S 306 I.P.C. is clearly made out and appeal is liable to be dismissed. 13. In order to properly comprehend the scope and ambit of Section 306 IPC, it is important to carefully examine the basic ingredients of Section 306 IPC. He further contended that Charge U/S 306 I.P.C. is clearly made out and appeal is liable to be dismissed. 13. In order to properly comprehend the scope and ambit of Section 306 IPC, it is important to carefully examine the basic ingredients of Section 306 IPC. The said section is reproduced as under:- " 306 Abetment of suicide-If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 14. The word "suicide" in itself is nowhere defined in the Penal Code, however its meaning and import is well known and requires no explanation. "Sui" means "self" and "cide" means "killing", thus implying an act of self-killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself. 15. In our country, while suicide in itself is not an offence, considering that the successful offender is beyond the reach of law, but abetment to commit suicide and attempt to commit suicide are offences under Section 306 and 309 IPC.respectively. "Abetment" has been defined under Section 107 of the Indian Penal Code. I deem it appropriate to reproduce Section 107, which reads as under: "107. Abetment of a thing-A person abets the doing of a thing, who- First-Instigates any person to do that thing; or secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or Thirdly-Intentionally aids, by any act or illegal omission, the doing of that thing." Explanation 2 which has been inserted along with Section 107 reads as under: "Explanation 2- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof, is said to aid the doing of that act." 16. The learned Amicus Curiae has placed reliance on a judgment of Hon'ble Supreme Court in Mahendra Singh Vs. State of M.P. 1995 Supp (3) SCC 731. The learned Amicus Curiae has placed reliance on a judgment of Hon'ble Supreme Court in Mahendra Singh Vs. State of M.P. 1995 Supp (3) SCC 731. The allegations levelled against accused by deceased were as under: "My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning." 17. Hon'ble Supreme Court on the aforementioned allegations came to a definite conclusion that by no stretch, the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law. 18. The learned amicus curiae placed reliance on another judgment of Hon'ble Apex Court in Ramesh Kumar Vs. State of Chhattisgarh (2001) 9 SCC 618 . In this case, a three-Judge Bench of Apex Court had an occasion to deal with a case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. The Apex Court in para 20 has examined different shades of the meaning of "instigation". Para 20 reads as under: "20. Instigation is to goad, urge forward, provoke, incite or encourage to do an act. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation" 19. In State of West Bengal Vs. A word uttered in the fit of anger in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation" 19. In State of West Bengal Vs. Orilal Jaiswal (1994) 1 SCC 73 , Hon'ble Supreme Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. 20. Hon'ble Supreme Court in Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Apex Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 21. In view of above the legal position is clear that "abetment" involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. The intention of the legislature and the ratio of the cases decided by this court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active role or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. 22. Now it is necessary at this stage to refer briefly the evidence of the prosecution and circumstances of the case on the question in controversy between the parties. It is admitted between the parties that accused appellant and complainant Smt. Jeevan Maurya are brother and sister interse, and at the time of incident in question, the complainant was residing in a house constructed over the land of the father of the parties and their relations were very strange as the appellant and his brothers wanted to get the land vacated from the possession of complainant. It is thus evident that at the time of the alleged incident, and when the FIR was lodged, the parties were on inimical terms with each others. In these circumstances the evidence adduced by the prosecution require careful scrutiny. 23. As stated earlier the prosecution in order to prove its case has examined eight witnesses in all, out of whom five witnesses namely PW-1 Virendra Prakash Maurya, PW-2 Jeevan Maurya, PW-4 Soniya Maurya, PW-5 Shivakanti, PW-6 Neelam Maurya are witnesses of fact while rest witnesses i.e. PW-3 Dr. I.K.Ramchandani, PW-7 Navratan Kumar Dubey and PW-8 Laxmi Narayan Choudhary Head Constable are formal. 24. Dr. I.K.Ramchandani (PW-3) on 9.8.1999 had conducted post mortem examination of the dead body of deceased. He has proved the post mortem examination report of the deceased and stated that the cause of death of deceased could not be ascertained at the time of post mortem examination and as such viscera of the deceased was preserved. In the instant case, chemical examination report of viscera has not been produced by the prosecution, thus exact cause of death of deceased remains uncertain. Navratan Kumar Dubey (PW-7) is the Investigating Officer. He had conducted investigation of the case and has deposed on the factum of investigation. PW-8 Laxmi Narayan Choudhary head constable had prepared chick report Ext Ka-7 on the basis of written report Ext. Navratan Kumar Dubey (PW-7) is the Investigating Officer. He had conducted investigation of the case and has deposed on the factum of investigation. PW-8 Laxmi Narayan Choudhary head constable had prepared chick report Ext Ka-7 on the basis of written report Ext. Ka-3 submitted by PW-2 Jeevan Maurya on 22.11.1999 and had also registered the case for the offence punishable under Sections 452, 306, 504, 506,120B I.P.C. at Crime No.6 of 2000 in the general diary of the police station. His evidence is confined to this fact alone. 25. Now I proceed to scan the evidence of witnesses of fact produced by the prosecution on the factum of incident. 26. The incident is alleged to have taken place on 6.8.1999 when the appellant along with others, threatened deceased with the countrymade pistol and asked him and his mother Jeevan Maurya (PW-3) to vacate the house. It is alleged by the prosecution that due to this incident, the deceased had committed suicide. The time of the incident of 6.8.1999 has neither been mentioned in the written report nor in the chik report Ext. Ka-7. Soon after the incident, the first report which was submitted to the police is Ext. Ka-2 on record. This report was submitted by PW-1 Virendra Prakash Maurya at the police station wherein there is not a single word regarding the incident of 6.8.1999. In this report, it has been stated that Himanshu Maurya was student of Class-X and he had failed in the examination and he consumed poisonous substance on 7.8.1999 as a result of which he died on 9.8.1999. Contrary to it in the written report Ext. Ka-3 it is stated that deceased had consumed poisonous substance i.e. Sulphas on 8.8.1999. Thus when the deceased consumed poisonous substance is not clearly made out which is serious infirmity in the prosecution case. 27. Virendra Prakash Maurya P.W.-1 is the father of deceased, Jeevan Maurya PW2 is the mother of deceased while Sonia Maurya PW-4 is the sister of deceased. Shivakant Maurya PW-5 and Neelam Maurya PW-6 are alleged to be the eyewitnesses of the incident of 6.8.1999 and are said to be independent witnesses but neither Shivakant Muarya nor Neelam Maurya has supported the prosecution version on any count. Shivakant Maurya PW-5 had deposed that she does not know the accused persons and also does not know who was Himanshu Maurya. Shivakant Maurya PW-5 had deposed that she does not know the accused persons and also does not know who was Himanshu Maurya. She was declared hostile by the prosecution. Neelam Maurya PW-6 has also stated that on the alleged date of incident i.e. on 6.8.1999, she was not at her house and was out of her house and when after fifteen days, she return back, then she came to know that incident had occurred. Thus independent witnesses have not supported the prosecution version of the incident of 6.8.1999 and thus there remains the testimony of PW-1 Virendra Prakash Maurya, PW-2 Jeevan Maurya and PW-4 Sonia Maurya for analysis who are related to each other and are closely related to the deceased being his father, mother and sister. 28. It reveals from the perusal of the testimony of these witnesses that their testimonies are contradictory with each other on important facts and suffer from infirmities which in itself belies the prosecution version. PW-1 Virendra Prakash Maurya has admitted that regarding the incident of death of Himanshu Maurya, he had submitted a report of incident at police station Mahanagar, Kotwali wherein it was stated by him that Himanshu Maurya was a private student of Class-X and he had failed thrice in the examination and he consumed some poisonous substance on 7.8.1999. There is not even a single word in report Ext. Ka-2 regarding the alleged incident of 6.8.1999 or 8.8.1999. There is contradiction in the testimony of these three witnesses regarding the date on when deceased consumed some poisonous substance and the place and manner of consuming the poisonous substance. Thus there are major contradictions in the prosecution version as to on which date the poisonous substance was consumed by the deceased. There is no explanation as to why the incident of 6.8.1999 was not disclosed in the report submitted on 11.10.1999 by PW-1 Virendra Prakash Maurya at police station Mahanagar Kotwali. In the F.I.R. of the present case, it has been stated that when deceased took poisonous substance he was taken to Medical College for treatment while in the report Ext. Ka-2, it has been stated that he was taken to Civil Hospital and thereafter to Medial College and some other hospitals. Bed Head Ticket of the deceased has also not been produced. Ka-2, it has been stated that he was taken to Civil Hospital and thereafter to Medial College and some other hospitals. Bed Head Ticket of the deceased has also not been produced. PW-1Virendra Kumar Maurya has tried to improve the prosecution version by stating that deceased has consumed some poisonous substance before him in the evening on 8.8.1999 at the roof of his house and this was told by his daughter Soniya Maurya to him and thereafter he was taken to hospital but Soniya Maurya PW4 has stated that deceased has come house after consuming some poisonous substance and had not consumed Sulphas before her. PW-2 Jeevan Maurya has also stated that her son consumed some poisonous substance on 8.8.1999 and she did not take any action up to 22.11.1999. There is no convincing reason for not taking any action up to 22.11.1999. Written report Ext. Ka-2 is the first version given to police after the incident, which was submitted on 11.10.1999 to police and it has been stated therein that deceased has consumed poisonous substance on 7.8.1999. Thus the prosecution version is full of doubts and there are several infirmities on each and every important aspect and the independent eye witnesses have not supported the prosecution version and even the cause of death could not be ascertained by post mortem examination. 29. In view of the above no reliance can be placed on the testimony of the prosecution witness produced by the prosecution in support of its case and the prosecution has miserably failed to prove its case against the appellant and the learned court committed illegality in convicting the accused for the said offence. 30. In view of the above, on careful scrutiny of the evidence on record and in the light of the above settled legal position, the conclusion become obvious that no conviction can be legally sustained in the present case against the appellant and the appellant deserved acquittal and the appeal is liable to be allowed. 31. In view of the above, the appeal is allowed. The impugned judgment and order dated 28.4.2009 convicting and sentencing the appellant, is hereby set aside and the appellant is acquitted to the charge for the offence punishable under Sections 452,306,504,506,120B I.P.C. The accused-appellant is in jail. If he is not wanted in any other case, he be set at liberty forthwith. 32. The impugned judgment and order dated 28.4.2009 convicting and sentencing the appellant, is hereby set aside and the appellant is acquitted to the charge for the offence punishable under Sections 452,306,504,506,120B I.P.C. The accused-appellant is in jail. If he is not wanted in any other case, he be set at liberty forthwith. 32. Trial Court is directed to comply the order. Office is directed to send a copy of this order to the court below for compliance forthwith.