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2011 DIGILAW 42 (ORI)

State of Orissa v. Pirasta Pradhan

2011-01-19

S.K.MISHRA

body2011
JUDGMENT S.K. MISHRA, J. — In this appeal, the State has assailed the acquittal of the respondent from the charge under Section 306 of the Indian INDIAN PENAL CODE, 1860, hereinafter referred to as the ‘IPC’ for brevity, in S.T. No.18 of 1992/S.C. No.32 of 1992 of the Court of learned Asst. Sessions Judge, Phulbani. 2.The case of the prosecution, bereft of unnecessary details, is that Sulochana Mallik, daughter of late Nagulu Mallik of village B. Dakebadi was given in marriage to the accused on 22.05.1985 as his second wife because of the fact that his first wife could not beget any male child. The prosecution, further, alleges that the marriage was performed according to the castes-customs governing the parties and in proof of thereof, a plain paper writing laying down terms and conditions of the marriage was executed. Some amounts of dowries in the shape of gold ornaments were given to the deceased Sulochana Mallik at the time of marriage. They led a happy conjugal life for about four to five years. About 1 and ½ years prior to the death of the deceased, it came to the notice of the informant, Bairagi Mallik, who is the uterine brother of the deceased Sulochana Mallik that the accused had assaulted his sister for dowry. Therefore, he along with co-villagers Rutu Pradhan and Mangara Pradhan went to the village of the accused and called a Panchayat. A meeting was held in presence of Pingra Pradhan, Jayadev Pradhan and Bedabar Padra. The accused was present there. He undertook before the Panchayat not to commit any such act in the future. On 16.09.1991, Bairagi Mallik received information that his sister committed suicide. Hence, he along with others went to the village of the accused and found the dead body of the deceased lying beneath a ‘Sirisa’ Tree on the land of one Pingara Pradhan close to the house of the accused. By the time the police had already arrived at the scene and sent the dead body of his sister of Daringibadi for postmortem examination. On these allegations, the informant lodged a report before the O.I.C., Daringibadi Police Station on 21.10.1991, which was registered as a P.S. case and was investigated. After completion of investigation finding a prima facie case, the Investigating Officer submitted charge-sheet under Section 498-A, 306 of the IPC read with Section 4 of the D.P. Act. On these allegations, the informant lodged a report before the O.I.C., Daringibadi Police Station on 21.10.1991, which was registered as a P.S. case and was investigated. After completion of investigation finding a prima facie case, the Investigating Officer submitted charge-sheet under Section 498-A, 306 of the IPC read with Section 4 of the D.P. Act. 3.The prosecution examined 7 witnesses in this case and the defence did not examine any witness on its behalf. Taking into consideration the materials available on record, the learned trial Court came to the conclusion that the prosecution has proved its case for commission of offence by the appellant under Section 498-A and sentenced him to undergo rigorous imprisonment for three years. However, the learned Asst. Sessions Judge came to the conclusion that the prosecution has failed to prove that the accused did abate the commission of the suicide by the deceased. Accordingly, it acquitted appellant of the charge under Section 306 of the I.P.C. 4.The accused has preferred an appeal before the learned Sessions Judge, Phulbani against his conviction under Section 498-A of the IPC, which is still pending. 5.In course of hearing, the learned Addl. Government Advocate submitted that the evidence of the witnesses proves the case of the prosecution and the acquittal of the accused for the offence under Section 306 of the IPC is illegal. The learned counsel for the respondent, on the other hand, submitted that the acquittal is justified as there is no material on record to show that the accused abetted the suicide committed by the deceased. 6.In this case, the doctor, who conducted post-mortem examination, has not been examined but the post-mortem examination report has been accepted in evidence under Section 294 of the Code of Criminal Procedure, 1973 and has been marked as Ext.6. It reveals that the cause of the death is due to asphyxia resulting from suicidal hanging. Thus, the prosecution has proved that death of the deceased was due to suicide committed as her death was due to hanging. The residual question that requires to be decided in this case, is whether the prosecution has established beyond reasonable doubt that the accused-respondent has abetted the suicide. Thus, the prosecution has proved that death of the deceased was due to suicide committed as her death was due to hanging. The residual question that requires to be decided in this case, is whether the prosecution has established beyond reasonable doubt that the accused-respondent has abetted the suicide. Section 306 of the IPC provides that 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 also be liable to fine. Section 107 of the IPC defines abetment. The said section provides that a person abets doing of a thing, who- First, -Instigates any person to do thing; or Secondly,- Engages with one or more other 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. 7.Thus, in order to bring home the charge under Section 306 of the IPC, the prosecution must establish that either the accused instigated the deceased to commit suicide or he aided, by act or omission, the doing of that thing or he entered into a conspiracy for doing of that thing. The learned Addl. Government Advocate has placed the entire evidence led in this case. There is no whisper about any active abetment or passive abetment by act of omission against the respondent, abetting thereby prompting the deceased, to commit the suicide. There is some allegation of demand of dowry and torture for which the respondent has been convicted under Section 498-A of the IPC. Though, depending upon the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option to the woman except to commit suicide, amount to abetment to commit suicide. Though, depending upon the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option to the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A of the IPC, it does not follow that on the same evidence he must also be necessarily held guilty for having abated the commission of suicide by the woman concerned (Ramesh Kumar v. State of Chhattisgarh, (2001) 9 Supreme Court Cases, 618 relied on). 8.Applying the aforesaid principle to the case at hand, it is seen that there is some material regarding demand of dowry. There is no evidence to the effect that the course of conduct amounting to cruelty was of such a decree leaving no other option to the deceased except to commit the suicide. Thus, the prosecution has failed to prove its charge under Section 306 of the IPC and, therefore, this Court comes to the conclusion that the findings recorded by the learned Asst. Sessions Judge, as far as it concerns the offence under Section 306 of the IPC, cannot be found fault with. Accordingly, finding no merit in the appeal the same is dismissed. It is observed here that any observance made in this judgment shall not influence the appellate Court while disposing connected criminal appeal preferred by the respondent. Appeal dismissed.