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2012 DIGILAW 175 (CHH)

VINOD SINGH v. STATE OF M. P.

2012-07-23

PRITINKER DIWAKER

body2012
JUDGMENT : PRITINKER DIWAKER, J. 1. This appeal arises out of judgment and order dated 30.6.1997 passed by Seventh Additional Sessions Judge, Bilaspur in S.T. No. 153/96 convicting the accused/appellant u/s 306 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years and to pay fine of Rs. 3,000 in default of payment of fine to further undergo rigorous imprisonment for one year. In the present case, deceased is Rameshwari, wife of appellant and their marriage was solemnized two years prior to the date of incident i.e. 8.8.1995. It is alleged that on 8.8.1995 deceased set herself a blazed in her matrimonial house after pouring kerosene oil on her. She was immediately shifted to hospital and from there memo Ex. P/3 was sent to concerned police station on the same day. Dying declaration of the deceased Ex. P-5 was recorded on 8.8.1995 by Additional Tahsildar Arjun Singh Sisodiya (PW-18). Deceased died on 9.8.1995, post mortem was performed on the same day vide Ex. P-4 by Dr. Arvind Sriukla (PW-7). Merge intimation Ex. P-20 was recorded on 9.8.1995 whereas Dehati Nalishi Ex. P-7 was recorded on 12.8.1995. Based on the Dehati Nalishi and merge inquiry on 13.8.1995, FIR (Ex. P-8) was registered against the accused/appellant and acquitted accused persons namely Sahant Singh and Smt. Ramkali under Sections 306/34, IPC. After investigation, charge sheet was filed against all the three accused persons u/s 306/34, IPC on 4.11.1995 and charges were also framed under the aforesaid section. 2. So as to prove the guilt of the accused persons, prosecution has examined 18 witnesses. Statement of the accused persons were also recorded u/s 313 of the Cr.P.C. in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. One defence witness namely Nandu Singh has also been examined. 3. After hearing Counsel for the parties, the Trial Court has acquitted the other co-accused persons namely Sahant Singh and Smt. Ram Kali (father-in-law and mother-in-law of the deceased) for the said offence but has convicted the present appellant and sentenced as mentioned above. Hence this appeal. 4. Contention of Mr. 3. After hearing Counsel for the parties, the Trial Court has acquitted the other co-accused persons namely Sahant Singh and Smt. Ram Kali (father-in-law and mother-in-law of the deceased) for the said offence but has convicted the present appellant and sentenced as mentioned above. Hence this appeal. 4. Contention of Mr. Kochar, Counsel for the appellant is that even if the entire case of prosecution is taken as it is, the appellant cannot be convicted u/s 306, IPC because the basic ingredients of Section 306, IPC in particular, Section 107, IPC are completely missing. He submits that in the dying declaration, the deceased has not made any allegation against the appellant and allegation was against her mother-in-law and father-in-law who have already been acquitted by the Court below. He submits that the case of the appellant is better than the case of two acquitted accused persons but yet he has been convicted. 5. On the other hand, supporting the impugned judgment it has been argued by Mr. Chandresh Shrivastava that Lal Singh (PW-1) father of the deceased, Krishna Devi (PW-3) mother of the deceased, Savitri Bai (PW-4) sister of the deceased and Jayanti Bai (PW-5) have categorically stated as to in what manner the deceased was subjected to cruelty by the accused/appellant. He submits that the cruelty was to the extent where the deceased was left with no other option but to commit suicide. He further submits that the dying declaration is not in favour of the accused/appellant. 6. Heard Counsel for the parties and perused the material on record. Lai Singh (PW-1) father of the deceased has not supported the prosecution case and has been declared hostile however in cross-examination, he has made allegation against the accused/appellant for beating the deceased. He has stated that demand of colour TV and motorcycle was made from the deceased. He has further stated that when after the incident he met the deceased in the hospital she informed him that all the accused persons had taken his life. Ahiran Singh (PW-2) is a witness of inquest notice Ex. P-1 and inquest Ex. P-2 has not stated anything against the accused/appellant. He has further stated that when after the incident he met the deceased in the hospital she informed him that all the accused persons had taken his life. Ahiran Singh (PW-2) is a witness of inquest notice Ex. P-1 and inquest Ex. P-2 has not stated anything against the accused/appellant. Krishna Devi (PW-3) mother of the deceased has stated that marriage of the deceased was solemnized with the appellant two years prior to the date of incident and after few days of her marriage, she was subjected to cruelty and beating by all the three accused persons. She has stated that she was also informed by Jayanti Bai (PW-15), her grand daughter that all the accused persons used to beat the deceased. Savitri Bai (PW-4) sister of the deceased has stated that after one year of the marriage accused/appellants started ill-treating the deceased. She has stated that she came to know that it is the accused/appellant who used to beat her. There appears to be material omissions in the Court statement of this witness from that of her case diary statement Ex. P-3. It further appears that while deposing in the Court she has exaggerated her version and had improved her version. Ranjit Singh (PW-5) has not made any allegation against the accused/appellant. Dr. M.K. Rai (PW-6) had attended the deceased when she was brought to hospital at Primary Health Centre, Masturi and then he referred her to District Hospital, Bilaspur and intimated the police. Dr. Arvind Shukla (PW-7) performed the post mortem of the deceased vide Ex. P-4 has stated that the cause of death was extensive burn due to shock. He has further stated that on 8.8.1995, Executive Magistrate recorded the dying declaration vide Ex. P-5 and he gave certificate that the deceased was in a fit state of mind to make the said dying declaration. Raju Sarathi (PW-8) is a ward boy who informed the police vide Ex. P-6. A.R. Qureshi (PW-9) recorded the FIR Ex. P-8) on the basis of Dehati Nalishi (Ex. P-7). R. Tigga (PW-10) has done preliminary investigation i.e. inquest of the dead body and handed over the same to the relatives. Vide Ex. P-10 and had sent the body for post-mortem. Manmohan Prasad (PW-11) police constable helped in the investigation. Keshav (PW-12) is the seizure witness of Exs. P-8) on the basis of Dehati Nalishi (Ex. P-7). R. Tigga (PW-10) has done preliminary investigation i.e. inquest of the dead body and handed over the same to the relatives. Vide Ex. P-10 and had sent the body for post-mortem. Manmohan Prasad (PW-11) police constable helped in the investigation. Keshav (PW-12) is the seizure witness of Exs. P-14, 15, 16, 17, 18 by which certain articles from the place of incident were seized, is also witness of spot map Ex. P-18. Amar Singh (PW-13) neighbour of the accused/appellant has stated that behaviour of the accused persons with the deceased was good and on the date of incident he was informed by his daughter that Rameshwari had set herself ablaze. He has stated that immediately after coming to know about the incident he reached the house of accused persons and saw the deceased in a burnt condition and at that time she was alive. Bhuwan Singh (PW-14) is uncle of the deceased has stated that he was informed by the father of the deceased that the accused persons were harassing his daughter and then he asked him to meet the accused persons. This witness has been declared hostile. Jayanti Singh (PW-15) is a child witness aged about 13 years and daughter of sister of the deceased has stated that she was informed by the deceased that the accused/appellant used to beat her and once her father-in-law slapped the accused/appellant to make his wife understand and then the accused/appellant beat the deceased. B.C. Singh (PW-16) ASI recorded the dehati nalishi Ex. P-7 and had helped in preliminary investigation. Dr. Neelima Sharma (PW-17) conducted the post mortem on the dead body of the deceased along with Dr. Arvind Shukla (PW-7). Arjun Singh Sisodiya (PW-18) recorded the dying declaration of the deceased Ex. P-5 has stated that after obtaining the certificate from the doctor he recorded the dying declaration and during which deceased was fully conscious. Nandu Singh (DW-1) neighbour of the accused/appellant has stated that immediately after coming to know about the incident he rushed to the spot and then he saw the deceased in a burnt condition. He has stated that the accused persons were called and then the deceased was shifted to hospital. 7. Nandu Singh (DW-1) neighbour of the accused/appellant has stated that immediately after coming to know about the incident he rushed to the spot and then he saw the deceased in a burnt condition. He has stated that the accused persons were called and then the deceased was shifted to hospital. 7. From the evidence it is clear that though Lal Singh (PW-1), Krishna Devi (PW-3), Savitri Bai (PW-4) and Jayanti Singh (PW-15) have made some allegation against the appellant and the acquitted accused persons for subjecting the deceased to cruelty but these allegations are general in nature. Most importantly in the dying declaration (Ex. P-5) deceased has not made any allegation against the accused/appellant and has only made allegation against mother-in-law and father-in-law. She has categorically stated that on the date of incident, as she had some quarrel with her mother-in-law she poured Kerosene oil on her and set herself ablaze. She has further stated that at the time of incident, her husband had gone to the field and that earlier also there used to be quarrel between herself and her in-laws. It is relevant to note that father-in-law and mother-in-law have already been acquitted by the Court below. Considering the dying declaration of the deceased, where she has not made any allegation against the accused/appellant, the fact that the mother-in-law and father-in-law of the deceased against whom she had made allegations have already been acquitted by the Trial Court, this Court finds it difficult to maintain the conviction of the accused/appellant. 8. Accordingly, in the light of the aforesaid discussion, the allegation of abetment to commission of suicide is concerned, if it is seen in the light of abetment as defined in Section 107, IPC, nothing to be termed as instigation or abetment to do a particular thing is visible setting the provision of Section 107 in motion. Section 306 of the Indian Penal Code reads 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 life. To see whether the act of the accused/appellant can be termed as cruelty, a glimpse of "abetment" enshrined in Section 107, IPC appears to be the need, which reads as under: Section 107. To see whether the act of the accused/appellant can be termed as cruelty, a glimpse of "abetment" enshrined in Section 107, IPC appears to be the need, which reads as under: Section 107. 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 places 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 willful misrepresentation, or by willful 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 facilitates the commission thereof, is said to aid the doing of that act. 9. Keeping in view the ingredients of Sections 306 and 107, IPC and the fact that in the dying declaration, she has not made any allegation against the accused/appellant and had only made allegation against the acquitted accused persons, I am of the considered view that the ingredients of 'abetment' are totally absent in the instant case for an offence u/s 306, IPC. An offence u/s 306, IPC would stand only if there is an 'abetment' for the commission of the crime. Accordingly, in the present case offence u/s 306, IPC is not made out against the appellant/accused. 10. Thus, having analyzed the factual position of the case in hand in the light of the evidence adduced by the prosecution, In the opinion of this Court, the impugned judgment convicting and sentencing the accused/applicant as mentioned above is based on doubtful evidence and therefore he is entitled for the benefit of doubt. Consequently, the appeal is allowed. Impugned judgment convicting and sentencing the accused/appellant as mentioned above is set aside. He is acquitted of the charges levelled against him. Accused/appellant is reported to be on bail. His bail bonds stand discharged.