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Madhya Pradesh High Court · body

2010 DIGILAW 717 (MP)

Ashok Kumar v. State of M. P.

2010-07-16

J.K.MAHESHWARI

body2010
JUDGMENT : J.K. MAHESHWARI, J. 1. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment of conviction dated 10/10/1995 passed by 9th Additional Sessions Judge, Bhopal in Sessions Trial No. 12/94, whereby the appellants have been convicted for the charges under Sections 306 and 498A, IPC and directed to undergo five years RI and fine of Rs. 1,000/- and two years RI and fine of Rs. 500/- respectively, in default of payment of fine one year and three months additional rigorous imprisonment respectively and both the sentences were directed to run concurrently. As per prosecution story, deceased Shobha Bai was the wife of accused-Ashok, daughter-in-law of Kala Bai and sister-in-law of Raju @ Rajesh. It is said that the marriage of deceased Shobha Bai was solemnized about five years back with accused. As alleged accused persons subjected her with cruelty, however, she had consumed Sulphas tablets and committed suicide on 21/10/1993. Initially Marg Intimation was received thereafter offence under sections 306/198A of IPC was registered at crime No. 116/93 by Police Station, Gunga, Distt. Bhopal and the challan was filed against the accused persons. As the offence was triable by the Court of Sessions, however, committed to the said Court and the charges under Sections 306 and 498A of IPC were framed. The accused- persons have abjured their guilt and put the defence of false implication. 2. The prosecution has produced as many as eleven witnesses in the case. Hariprasad (PW-1) and Himmat Singh (PW-2) both have not supported the prosecution case, Vijay Singh (PW-3), ASI, who recorded the statement of Shyama Bai, Jaswant and Chen Singh. Dr. O.K. Satpathi (PW-4) proved the post- mortem report and opined that cause of death is due to consuming poisonous substance i.e. Aluminium Phosphide. Jagsay Ram (PW-5), Naib Tahsildar, reached on the spot i.e. Hamidiya Hospital, Bhopal and under whose instruction Panchayatnama of the dead body was prepared. Mangilal (PW-6), is the Chowkidar of the village and a witness to the investigation. Bhagwan Singh (PW-7) Independent witness has also not supported the prosecution story. Chen Singh (PW-8) father, Shyama Bai (PW-9) mother and Jasmal (PW-10) is the brother of the deceased and Kamal Singh (PW-11) is the brother-in-law (husband of real sister of the deceased). In defence accused persons have examined Hari Prasad DW-1 and Lakhan Singh @ Laxmi Chand DW-2. 3. Bhagwan Singh (PW-7) Independent witness has also not supported the prosecution story. Chen Singh (PW-8) father, Shyama Bai (PW-9) mother and Jasmal (PW-10) is the brother of the deceased and Kamal Singh (PW-11) is the brother-in-law (husband of real sister of the deceased). In defence accused persons have examined Hari Prasad DW-1 and Lakhan Singh @ Laxmi Chand DW-2. 3. The trial Court found that the death of the deceased was due to consuming the poisonous substance i.e. Sulphas tablets as apparent from the post-mortem and viscera report and the statement of the doctor. The finding has also been recorded by the trial Court that the deceased was subjected to cruelty and harassment by the accused persons relying upon the statement of Chen Singh (PW-8), Shyama Bai (PW-9), father and mother of the deceased. It has further been observed that because deceased Shobha died within seven years from the date of her marriage in other than normal circumstances, therefore, the presumption under Section 113A of the Indian Evidence Act, 1872 may be drawn against the appellants for abetting the offence. In view of foregoing discussion, finding of conviction against the appellants under Section 306 and 498A, IPC has been recorded and directed them to undergo the sentences as aforementioned. 4. Shri Imtiaz Husain, learned counsel representing the appellants has contended that no legal evidence to prove the charge of abetment to commit suicide for the offence under Sections 306 and 498A of the IPC has been brought by prosecution. It is submitted that abetment of a thing has been defined under Section 107 of IPC whereby it is apparent that whoever instigates any person to do that thing or engages himself or with others in conspiracy for doing of that thing, if the said act or illegal omission takes place in pursuance to the conspiracy to do that thing or intentionally aids, by an act or illegal omission of doing that thing would be abettor. In the present case Shobha Bai committed suicide by consuming Sulphas tablets contains Aluminum Phosphate. But, to prove the charge, it is to be established by the evidence that commission of the suicide by the deceased is by virtue of an abetment made by the accused persons. In the present case Shobha Bai committed suicide by consuming Sulphas tablets contains Aluminum Phosphate. But, to prove the charge, it is to be established by the evidence that commission of the suicide by the deceased is by virtue of an abetment made by the accused persons. In this respect statements of Chain Singh (PW-8) (father of the deceased) and Shyama Bai (PW-9) (mother of the deceased), who are star witnesses, have been referred and contended that ingredients to abet the act of suicide have not proved. The other independent witnesses Hari Prasad (PW-1), Himmat Singh (PW-2), Bhagwan Singh (PW-7) and Kamal Singh (PW-11) have not supported the prosecution story. In the statement of Chain Singh (PW-8), Shyama Bai (PW-9) and Jasmal (PW-10), it has come on record that Shobha Bai was married with Ashok about four years back and they were not behaving properly with the deceased. Chain Singh (PW-8) states that because the motorcycle was not given, therefore, the deceased was subjected to cruelty and harassment while Shyama Bai states that Rs. 10,000/- has not been given, therefore, she was subjected to cruelty. Jasmal (PW-10) has not stated regarding demand of dowry. It has further been stated that due to the said act of cruelty and harassment, deceased was called at their home by them. A notice was also sent for taking the proceedings of restitution of conjugal rights in a court. After some time somewhere in the year 1992 there was a compromise in between the parties and in furtherance to it deceased has again resided with in-laws for about three months during such period no allegation of cruelty and harassment is there. In view of the aforesaid, it is contended by him that no iota of legal evidence to prove abetment to commit suicide is available on record, however, the conviction of the appellants for the offence under Section 306 of IPC is wholly unwarranted and the trial Court has committed error to record such finding merely drawing the presumption of Section 113A of Evidence Act It is also contended by him that even the charge under Section 498A has not been duly established on account of inconsistency in the evidence of Chain Singh (PW-8) and Shyama Bai (PW-9) for demand and they have deposed regarding cruelty, harassment for non fulfilment of the demand of dowry. Therefore, conviction of the appellants for the said charges is without due appreciation of the evidence. Consequently, the sentence as awarded is also not in accordance to law, therefore, the judgment passed by the trial court may be set aside and the appellants may be acquitted from the said charge. 5. Smt. Sheetal Dubey, learned Government Advocate appearing on behalf of the respondent/State, contends that the finding of conviction has rightly been recorded by the trial Court proving the charge under Section 306 of IPC as the deceased committed suicide due to abetment, and also of Section 498A of IPC as per the statements of the prosecution witnesses, however, the trial Court has not committed any error to convict the appellants and to sentence them as specified herein above. It is submitted by her that as per the statement of Chain Singh, Shyama Bai and Jasmal, it is apparent that deceased-Shobha Bai was not happy in the house of her in-laws. It is further apparent that the demand of dowry was made with her and she was subjected to cruelty and harassment, however, by consuming Sulphas tablets which contains Aluminum Phosphate deceased committed suicide. It is also submitted that if the death of a woman is within seven years from the date of marriage, however in drawing presumption under Section 113A of the Evidence Act, the trial Court has not committed any error in proving the charge under Section 306 of IPC and also the offence under Section 498A of IPC. In that view of the matter, it is prayed that the judgment passed by the trial Court may be upheld dismissing the appeal. 6. After having heard the rival contention of learned counsel for the parties at length and on perusal of the impugned judgment, it is apparent that the finding of cause of death on account of consuming the Sulphas tablet which contains the Aluminum Phosphate as found by the trial Court other than normal circumstances appears to be just and proper. But to prove the charge of abetment against accused persons the legal ingredients of abetment under Section 306 of IPC as per the evidence adduced by the parties is required to be seen, however, to understand ingredients Section 306 is reproduced as thus: 306. But to prove the charge of abetment against accused persons the legal ingredients of abetment under Section 306 of IPC as per the evidence adduced by the parties is required to be seen, however, to understand ingredients Section 306 is reproduced as thus: 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. Bare reading of the aforementioned on committing suicide by a person it is required to be examined that, "who has abetted for the commission of such suicide". The abetment of a thing has been defined under Section 107 of IPC 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 things 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 1--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. 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 facilitate the commission thereof, is said to aid the doing of that act. In a case where a woman committed suicide within seven years of marriage, then in the context as per the language specified under Section 113A of Evidence Act presumption of abetment may be drawn. In a case where a woman committed suicide within seven years of marriage, then in the context as per the language specified under Section 113A of Evidence Act presumption of abetment may be drawn. The contents of Section 113A of the Evidence Act are relevant which is reproduced as under:-- 113-A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation.- For the purposes of this section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860) 7. In the said context to prove the abetment its meaning is required to be seen thereby instigating is to goad, urge, forward, provoke, incite or encourage to do 'an act'. In view of the aforesaid and looking to the explanation 1-2 it can safely be observed that for instigation though it is not necessary mat actual words to do an act ought to be used or what constitutes instigation must necessarily be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out Thus, for abetment to commit suicide in the context of the word abetment as defined under Section 107 of IPC appears that whoever abets the doing of the thing to instigate any person to do that thing or he himself engages with one or more persons in any conspiracy for doing all that thing and if an act or illegal omission takes place in pursuance to that conspiracy for that thing or otherwise intentionally aids,. by any act or illegal omission, the doing of that thing. In the said context the word, 'doing of that thing' co-relates with the word encourage to do an act required for instigation. by any act or illegal omission, the doing of that thing. In the said context the word, 'doing of that thing' co-relates with the word encourage to do an act required for instigation. In the context of abetment an act of a person coupled with the evidence of abetment for committing suicide ought to be proved by the prosecution and in the said context the evidence brought in the facts and circumstances of the case requires analysis while recording the finding of guilt. As per the language implied under Section 113A after amendment in the Evidence Act, it is apparent that the said presumption is directory and not mandatory. In addition to the aforesaid, on the availability of the ingredients that a woman committed suicide; the commission of suicide is within 7 years from the date of marriage the husband or any of relative of her husband has subjected her with cruelty; however on availability of the aforesaid three ingredients the court may draw presumption regarding abetment by a married woman. It to be noted here that in Section 113A of the Evidence Act, the legislature has enacted caution using the words "the court may presume" "having regard to all the other circumstances of the case". Thus on availability of aforesaid two conditions, the presumption may be drawn otherwise it may be rebuttable. 8. As per the judgment of Hon'ble the Apex Court in the case of State of West Bengal v. Orllal Jaiswal [ (1994) 1 SCC 73 ] the caution is required to be observed by the Courts, the Court has made certain observations, relevant are reproduced as under:-- This 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 her life by committing suicide. It is transpires 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. 9. Bare reading of the aforesaid, it is clear that while assessing the facts of the individual case on the basis of the evidence adduced in trial to record the finding that the cruelty indicated in the case had induced the victim to end her life committing suicide. It is to be weed out that if a common man would not commit suicide ordinary looking to the petulance, discord and differences in spouse in domestic life which is quite common, however the conscience of the Court should be satisfied looking to the facts and circumstances of the case to arrive at a conclusion that the commission of suicide by the woman is an act of abetment. Now it is to be seen whether the death of deceased-Shobha Bai is due to abetment by the appellants and in the facts and circumstances of the case, the presumption under Section 113A of the Evidence Act may be drawn in this case. As per the statement of Chain Singh (PW-8) and Shyama Bai (PW-9), it appears that the marriage of the deceased was solemnized about four years back from the date of incident and the demand of motorcycle or in terms of cash was made which was not satisfied, however, due to some misunderstanding deceased started residing with her mother and father. After sometime the legal notice was served on husband for restitution of conjugal rights thereupon in 1992 settlement took place and the deceased came back to her in-laws house where she committed suicide after 3-4 months by consuming sulphas tablets due to not fulfilling the demand of dowry. In the statement of Chain Singh (PW-8) it is said that the cycle and bike has not been given, therefore, she was subjected to cruelty while in the statement of Shyama Bai, due to non payment of Rs. 10,000/- deceased was subjected to cruelty. In the statement of Chain Singh (PW-8) it is said that the cycle and bike has not been given, therefore, she was subjected to cruelty while in the statement of Shyama Bai, due to non payment of Rs. 10,000/- deceased was subjected to cruelty. In the testimony of the brother of the deceased namely Jasmal (PW-10) the evidence regarding demand of dowry is not there, therefore, on the point of demand of dowry the inconsistent statement is on record but the evidences causing such demand with cruelty and harassment by beating the deceased through husband and the brother-in-law (dewar) is in ocular. Further as per evidence by consuming sulphas tablets on 22.10.1993 deceased committed suicide, however, it is to be seen that after settlement of the dispute of the deceased as well as the accused persons any evidence of cruelty and harassment is available which incited the victim for commission of suicide or any other evidence of abetment has been brought by prosecution to prove the charge at home under Section 306 of IPC. 10. After going through the testimony has been brought on record to prove the charge of abetment after settlement of matrimonial dispute. Merely a bald statement of cruelty and harassment is not sufficient to convict appellants, but the trial Court applying the presumption under Section 113A of the Evidence Act convicted them because the deceased died within 7 years. The provision of Section 113A of Evidence Act has read and also its object which was brought by way of amendment to understand it, it is clear that such amendment has been brought to made a social demand to resolve difficulty of proof where helpless marriage women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to any one outside the occupant of the house. Simultaneously, it is to be observed that the said presumption is intended to operate against the accused in criminal law. Before drawing presumption as per the material brought the foundation must exists in the circumstances as enumerated in Section 113A of the Evidence Act. The Parliament while making amendment has taken sound note of caution that the said presumption is not mandatory, therefore, the word 'may presume' has been used. Before drawing presumption as per the material brought the foundation must exists in the circumstances as enumerated in Section 113A of the Evidence Act. The Parliament while making amendment has taken sound note of caution that the said presumption is not mandatory, therefore, the word 'may presume' has been used. Simultaneously, by using the word all other circumstances of the case' prior to drawing the presumption by the Court makes it clear that the conscience of the Court must dictated on the facts and circumstances and circumstances otherwise abstained from drawing such presumption. The connotation 'all other circumstances of the case' suggest a way to arrive at a right conclusion showing relationship of cruelty and the act of commission of suicide to draw such presumption In the facts of the present case as discussed herein is totally missing. In such circumstances the guidance may be taken from the judgment of Hon'ble the Apex Court in the case of Ramesh Kumar V. State of Chhatisgarh ( (2001) 9 SCC 618 ) the Court has observed as under:-- The picture which emerges from a cumulative reading and assessment of the material available is this: presumably because of disinclination on the part of the accused to drop the deceased at her sister's residence the deceased felt disappointed, frustrated and depressed. She was overtaken by a feeling of shortcoming which she attributed to herself. She was overcome by a forceful feeling generating within her that in the assessment of her husband she did not deserve to be his life partner. The accused may or must have told the deceased that she was free to go anywhere she liked. Maybe that was in a fit of anger as contrary to his wish and immediate convenience the deceased was emphatic on being dropped at her sister's residence to see her. Presumably the accused may have said some such thing -you are free to do whatever you wish and go wherever you like. The deceased being a pious Hindu wife felt that having being given in marriage by her parents to her husband, she had no other place to go excepting the house of her husband and if the husband had "freed" her she thought impulsively that the only tiling which she could do was to kill herself, die peacefully and thus free herself according to her understanding of the husband's wish. The suicide note written in the diary was corroborated by the dying declaration. The conduct of the accused trying to put off the fire and taking his wife to the hospital also improbabilises the theory of his having abetted suicide. There is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted the commission of suicide by his wife may necessarily be drawn. The totality of the circumstances especially the dying declaration and the suicide notes left by the deceased herself, which fall for consideration within the expression "all the other circumstances of the case" employed in Section 113A of the Evidence Act, do not permit the presumption there under being raised against the accused. The accused-appellant, therefore, deserves to be acquitted of the charge under Section 306 IPC. (Paras 22 and 23) 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 had by his acts or omission or by a continued course of conduct created such 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 a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires 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. 11. In view of the facts of the present case and the evidence brought on record and discussed herein above it is apparent that by evidence of cruelty and harassment for an act of committing suicide and to abet such offence, the legal evidence is totally missing. 11. In view of the facts of the present case and the evidence brought on record and discussed herein above it is apparent that by evidence of cruelty and harassment for an act of committing suicide and to abet such offence, the legal evidence is totally missing. In absence thereof the presumption under Section 113A, which is re-buttable cannot be drawn, therefore, the trial Court in absence of any legal evidence of abetment to commit suicide has wrongly drawn the presumption convicting the appellants for the charge under Section 306 of IPC. Thus, in the considered opinion of this Court no iota of evidence of abetment of commission of the suicide to strike the conscience of the Court to draw the presumption is available, therefore, the judgment of conviction proving the charge under Section 306 of IPC is hereby set aside. 12. Now coming to the charge under Section 498A of IPC is concerned, it is to be observed here that looking to the evidence of Chain Singh (PW-8) and Shyama Bai (PW-9), which is in ocular on the point of cruelty and harassment Although on the point of demand of dowry, it has much inconsistency but in the facts and circumstances of the case, it can be accepted that there was some demand either in terms of cash or in terms of kind for which deceased was subjected to cruelty and harassment. In such circumstances in the opinion of this Court, charge under Section 498A of IPC has been fully established by the aforesaid evidence and by the evidence of Jasmal (PW-10). Therefore, the findings as recorded to prove the charge under Section 498A of IPC by the trial Court against the appellants are liable to be upheld. 13. Now coming to the point of sentence for the charge under Section 498A of IPC, it is seen from the record that the appellants have remained in custody for some time and the incident is of the year 1993 since then approximately 17 years have already been passed away. During such period the appellants have faced trial and after releasing from bail consistently they are appearing before this Court on so many dates i.e. since last about 16 years. During such period the appellants have faced trial and after releasing from bail consistently they are appearing before this Court on so many dates i.e. since last about 16 years. However, in the aforesaid facts, in the opinion of this Court, even on maintaining the conviction under Section 498A of IPC, the sentence already undergone by appellants would be sufficient to mitigate the circumstances prevalent and explained in the facts of this case. Accordingly, the appeal filed by the appellants is hereby allowed in part. The conviction of the appellants under Section 306 of IPC is hereby set aside while their conviction under Section 498A of IPC is hereby maintained modifying the sentence to the extent already undergone by them. In consequence to the aforesaid, the bail bonds of the appellants shall stand discharged.