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2012 DIGILAW 177 (CHH)

MADAN SAHU v. STATE OF C. G.

2012-07-24

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 26-12-2003 passed by 1st Additional Sessions Judge, Durg in Sessions Trial No. 239/2002. By the impugned judgment, accused/appellant Madan Sahu has been convicted and sentenced in the following manner with direction to run the sentences concurrently : Conviction Sentence Under Section 498A of the Rigorous imprisonment for 2 years and to Indian Penal Code pay fine of Rs.500/-, in default of payment of fine, to undergo rigorous imprisonment for 1 month. Under Section 306 of the Rigorous imprisonment for 7 years and to Indian Penal Code pay fine of Rs.500/-, in default of payment of fine, to undergo rigorous imprisonment for 1 month 2. Case of the prosecution, in brief, is as under : The appellant was residing in Village Odaragahan. His first wife is Rekhabai. Her being alive, the appellant performed second marriage with Bisahinbai, resident of Village Pachmedi under Chun form. Due to committing Marpeet with Bisahinbai by the appellant, panchayat meetings had been arranged in this regard twice. Bisahinbai had also reported the matter in Police Station Ranchirai. Due to committing severe Marpeet with Bisahinbai by the appellant, she, having told the same to Panchas, went to her maternal house two years before. Thereafter, the appellant performed third marriage with deceased Sukhwantinbai at Gayatri Temple in April, 2001 and brought her home. At the time of marriage of the deceased, her family members had given Loti, Thali, Balti (bucket), Ghadi (watch) etc. to the appellant happily. After their marriage, few days passed happily. Thereafter, mother-in-law, father-in-law, brother-in-law (Devar) etc. said that the deceased came with no wearing. After becoming the deceased pregnant, the appellant said her that he did not want child as he had children from his first wife. After delivery of the child by the deceased, the appellant pressurized her to undergo vasectomy operation. The appellant used to commit Marpeet with the deceased on small things. Having pestered, the deceased left the house of the appellant on 30-3-2002. When, on the occasion of Tija festival, she had come to her maternal house, she had told her mother Agnibai (PW-3) about her being subjected to cruelty by the appellant and her in-laws by committing Marpeet with her. The appellant had gone to his in-laws and told them that the deceased had left his house and had gone away. When, on the occasion of Tija festival, she had come to her maternal house, she had told her mother Agnibai (PW-3) about her being subjected to cruelty by the appellant and her in-laws by committing Marpeet with her. The appellant had gone to his in-laws and told them that the deceased had left his house and had gone away. All of them had searched for the deceased, but she could not be traced. On the next day, i.e., 1-4-2002, Sarpanch Kanti Sahu saw the deceased hanging on a Kahawa Tree in the Khar of Village Karela. She told to Ruprai Patel (PW-8) about the incident. Some people gathered and all they went near the Kahawa Tree. Doman, son of Kaka of the deceased, identified the deceased there. Ruprai Patel (PW-8) lodged Merg Intimation (Ex.P-10) in Police Chowki Ranitarai. Sub-Inspector Embros Kujur (PW -12) reached the place of occurrence, gave notice (Ex.P-9) to Panchas and prepared inquest (Ex.P-8) on the dead body of the deceased. The dead body was sent to Primary Health Centre Patan for post mortem examination vide Ex.P-4. Dr. S.K. Agrawal (PW -11) conducted post mortem examination on the dead body of the deceased and gave his report (Ex.P-4A), in which, he found that cause of the death was asphyxia due to ante mortem hanging. After Merg investigation, First Information Report (Ex. P-12) was registered in Police Station Patan. After completion of the investigation, charge sheet was filed against the accused/appellant in the Court of Judicial Magistrate, First Class, Durg, who, in turn, committed the case to the Court of Session at Durg, from where it was received on transfer by 151 Additional Sessions Judge, Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Vivek Sharma, learned counsel for the appellant argued that Pusauram Sahu (PW -1) is brother, Sunahre Sahu (PW -2) is father, Agnibai (PW3) is mother of the deceased. They are interested witnesses. The independent witnesses did not support the case of the prosecution. The prosecution failed to prove that the deceased was subjected to cruelty or harassment by the appellant in connection with any demand of dowry. The provision of Section 113-A of the Evidence Act is not applicable in this case. The prosecution has not established that prior to the death of the deceased, she had been either subjected to cruelty or harassment. The provision of Section 113-A of the Evidence Act is not applicable in this case. The prosecution has not established that prior to the death of the deceased, she had been either subjected to cruelty or harassment. Evidence in this respect is wholly insufficient to convict the appellant, therefore, the appellant deserves to be acquitted of the charges framed against him. 4. On the other hand, Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. Having heard rival contentions of the parties, I have perused the record of Sessions Trial No.239/2002. 6. The conviction and sentence of the appellant under Sections 498A and 306 IPC are based on the evidence of Pusauram Sahu (PW-1), Sunahre Sahu (PW-2) and Agnibai (PW-3). It is not disputed that the marriage of the deceased was performed with the appellant in the year 2001 and the deceased died between 31-3-2002 and 1-4-2002, i.e., within 7 years of her marriage. It is also not disputed that the death of the deceased was otherwise than under normal circumstances. 7. In Amar Singh Vs. State of Rajasthan, AIR 2010 SC 3391 , the Hon'ble Supreme Court observed thus: "23. ........ A prosecution witness who merely uses the word "harassed" or "tortured" and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Sections, 498A and 304B IPC. For this reason, the High Court has taken a view that the charges against Jagdish and Gordhani have not been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and Gordhani appear to have been implicated because they were members of Amar Singh's family." 8. In State of Tamil Nadu Vs. For this reason, the High Court has taken a view that the charges against Jagdish and Gordhani have not been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and Gordhani appear to have been implicated because they were members of Amar Singh's family." 8. In State of Tamil Nadu Vs. Manmatharaj, AIR 2009 SC 1757 , the Hon'ble Supreme Court observed thus: "Appreciation of evidence - Accused allegedly assaulted deceased with stone - Extra judicial confession given to Village Administrative Officer does not find corroboration on general particulars - withholding of information as to time at which material records had come to be prepared also created doubt- Failure to follow procedure on extrajudicial confession being given to Village Administrative Officer made prosecution version unacceptable - Acquittal of accused is proper." 9. In Gurbachan Singh Vs. Satpal Singh and others, (1990) 1 SCC 445 , the Hon'ble Supreme Court observed as follows : "34. It is also convenient to refer in this connection to the provisions of Section 113-A of Indian Evidence Act, 1872 which provide that: "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." 36. It has been contended on behalf of the accused-respondents that Section 113-A of the Indian Evidence Act was inserted in the statute book by Act 46 of 1983 whereas the offence under Section 306, IPC was committed on June 23, 1983 i.e. prior to the insertion of the said provision in the Indian Evidence Act. It has, therefore, been submitted by the learned counsel for the respondents that the provisions of this section cannot be taken recourse to while coming to a finding regarding the presumption as to abetment of suicide committed by a married woman, against the accused persons. 37. It has, therefore, been submitted by the learned counsel for the respondents that the provisions of this section cannot be taken recourse to while coming to a finding regarding the presumption as to abetment of suicide committed by a married woman, against the accused persons. 37. The provisions of the said section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case. It is profitable to refer in this connection to Halsburys Laws of England, Fourth Edition, Volume 44 page 570 wherein it has been stated that : "The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature.... ..." 38. It has also been stated in the said volume of Halsbury's Laws of England at page 574 that : "The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament." 10. In M. Mohan Vs. State Represented by the Deputy Superintendent of Police, AIR 2011 SC 1238 , the Hon'ble Supreme Court observed as follows: "40. 'Abetment of a thing' has been defined under section 107 of the Code. We 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 places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, 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 facilitate the commission thereof, is said to aid the doing of that act." 41. Learned counsel also placed reliance on yet another judgment of this court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618 : ( AIR 2001 SC 3837 ), in which a three-Judge Bench of this court had an occasion to deal with the 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. This Court in paragraph 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 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 the tit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation." 42. In the said case this court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema (appellant's wife therein) may necessarily be drawn. 43. In the said case this court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema (appellant's wife therein) may necessarily be drawn. 43. In State of West Bengal v. Orilal Jaiswal & another (1994) 1 SCC 73 : ( AIR 1994 SC 1418 ), 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 the life by committing suicide. If it appears to the Court that a victim committing suicide was hyper-sensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference 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. 44. This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), 2009 (16) SCC 605 , had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "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 others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 45. 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. 46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. 46. The intention of the Legislature and the ratio of the cases decided by this court are 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 act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide." 11. In Chitresh Kumar Chopra Vs. State (Government of NCT of Delhi, (2009) 16 SCC 605 ), the Hon'ble Supreme Court observed as follows : "19. As observed in Ramesh Kumar, (2001) 9 SCC 618 , where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that : (i) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation." 12. Pusauram Sahu (PW-1), Sunahre Sahu (PW-2) and Agnibai (PW3) deposed that Sukhwantinbai (the deceased) was married to the appellant two years prior to her death. The marriage of the deceased was performed in Gayatri Temple. They further deposed that they had given Thali, Lota, Balti and Ghadi (watch) to the appellant in the marriage of the deceased. 13. Pusauram Sahu (PW-1), Sunahre Sahu (PW-2) and Agnibai (PW3) deposed that when, on the occasion of Tija festival, the deceased had come to her paternal house, she had told them that she was being subjected to cruelty by the appellant and his in-laws due to not bringing sufficient dowry. They further deposed that the appellant had left the deceased in their house and had gone. 14. They further deposed that the appellant had left the deceased in their house and had gone. 14. Pusauram Sahu (PW-1) deposed that at the time of marriage of the deceased, no talk was done regarding dowry. Nothing was demanded by the appellant as dowry at the time of marriage. It is true that the marriage was performed in Gayatri Temple, but it was an ideal marriage. Sunahre Sahu (PW 2) deposed that it is true that at the time of marriage of his daughter (the deceased), the appellant had not demanded dowry. After the marriage, both the families visited each other's houses. 15. Girdhar (PW-4) deposed that the appellant was his neighbourer and their houses are situated adjacent to each other. He never heard• about quarrel between the appellant and the deceased. 16. Agnibai (PW-3) deposed that on the occasion of Madai, the appellant had brought the deceased to her house. The appellant had left the deceased at their house on their request. Sunahre Sahu (PW-2) deposed that he used to go to the matrimonial house of the deceased, but the deceased never told him anything. On coming to her paternal house also, the deceased never told him anything. 17. Sunahre Sahu (PW -2) and Pusauram Sahu (PW -1) deposed that they had not made any complaint in police station against the appellant before the death of the deceased. Pusauram Sahu (PW -1) deposed that due to death of his sister (the deceased), he had annoyed with the appellant. Sunahre Sahu (PW-1) deposed that the appellant had also accompanied him in search of the deceased. 18. Section 498A of the Indian Penal Code runs thus: "498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to tine. Section 498A of the Indian Penal Code runs thus: "498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to tine. Explanation.-For the purpose of this section, "cruelty" means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. " 19. Looking to the facts and circumstances of the case and the evidence available on record, I am of the view that the prosecution has not been able to prove with conclusive evidence that the appellant subjected the deceased to cruelty or harassment and he abetted or instigated the deceased to commit suicide, as a result thereof, the deceased committed suicide. 20. In the light of above discussion, the conviction of the appellant under Sections 498A and 306 IPC cannot be sustained. 21. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 498A and 306 IPC are set aside. The appellant is acquitted of the charges framed against him. Presently, he is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.