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2012 DIGILAW 250 (CHH)

Sitaram v. State of C. G.

2012-09-25

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 30-12-2003 passed by 4th Additional Sessions Judge, Bilaspur in Sessions Trial No.351/2001. By the impugned judgment, accused persons/appellants Sitaram and Aghan Bai have been convicted and sentenced in the following manner:- Conviction Sentence Under Section 306 of the IPC Rigorous imprisonment for 7 years and to pay fine of Rs. 1,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for 6 month 2. Case of the prosecution, in brief, is as under: Deceased Smt. Sangeeta was married to Laxmi, son of dead appellant Sitaram about 3 years prior to the date of incident and she was residing with her husband in her matrimonial house along with the appellants. She died due to burn injuries in Government Hospital, Bilaspur. The appellants were calling her as Charkat, Veshya and saying that she was not delivering any child, they were asking her to go out of their house. Due to ill-treatment and continuous harassment by the appellants, the deceased pouring kerosene on her set her on fire. Deceased Smt. Sangeeta was taken to Government Hospital, Bilaspur. She was admitted in burn-unit of the hospital. She died during treatment on 2-6-2001 at about 4:45 P.M. Dr. Smt. S. Jitpure sent intimation of death of the deceased to Police Station City Kotwali, Bilaspur vide Ex.P-8. Merg No.33/ 2001 was recorded in Police Station City Kotwali, Bilaspur. The Investigating Officer reached Government Hospital, Bilaspur, gave notice (Ex.P-1) to Panchas, and prepared inquest (Ex.P-9) on the dead body of the deceased. The dead body of the deceased was sent to Government Hospital, Bilaspur for post mortem examination. Dr. V.R.Hotchandani (PW 4) conducted post mortem on the dead body of the deceased along with Dr. Smt. M. Pandey. They gave their report (Ex.P-7). They opined that the caused of death of the deceased was septicemia due to ante mortem burn injuries. In further investigation, memorandum statement (Ex.P-4) of appellant Sitaram was recorded under Section 27 of the Evidence Act and at his instance, a godari and a plastic container were seized vide Ex.P-5. Spot-Map (Ex.P-6) was prepared by the Investigating Officer. Saree, blouse and underwear were seized from the place of occurrence vide Ex.P-3 and a godari was seized from the place of occurrence vide Ex.P-5. Regular First Information Report (Ex.P-13) was registered in Police Station Masturi. Spot-Map (Ex.P-6) was prepared by the Investigating Officer. Saree, blouse and underwear were seized from the place of occurrence vide Ex.P-3 and a godari was seized from the place of occurrence vide Ex.P-5. Regular First Information Report (Ex.P-13) was registered in Police Station Masturi. The seized articles were sent to Forensic Science Laboratory, Raipur vide Ex.P-14. Report (Ex.P-15) was received therefrom. After completion of the investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Bilaspur, who, in turn, committed the case to the Court of Session, Bilaspur, from where, it was received on transfer by 4th Additional Sessions Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellants as mentioned above. 3. Appellant Sitaram died during pendency of the appeal on 8-9-2006 and, therefore, his appeal has abated. 4. Shri Basant Kaiwartya, learned counsel for the appellant Aghan Bai argued that Ramratan (PW 1) is father and Ganeshiya (PW 3) is mother of the deceased. They are highly interested witnesses. The independent witnesses did not support the case of the prosecution. He further argued that the prosecution failed to prove that the deceased was subjected to cruelty or harassment by the appellants. 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 by the appellants. Evidence in this respect is wholly insufficient to convict the appellants. The prosecution adduced the evidence of oral dying declaration of the deceased made before Ramratan (PW 1), which is wholly unreliable. He further argued that Executive Magistrate S.S. Dubey (DW 2) recorded the dying declaration (Ex.D 1) of the deceased after obtaining certification from treating Dr. Rajnikant Verma (DW 1). The dying declaration (Ex.D-1) reveals that the death of the deceased was accidental. Therefore, appellant Aghan Bai deserves to be acquitted of the charge framed against her. 5. On the other hand, Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, supported the impugned judgment and pleaded for no interference with the same by this Court. 6. I have heard learned counsel for the parties and have also perused the record of Sessions Trial No.351/2001. The conviction of appellant Aghan Bai is based on the evidence of Ramratan (PW 1) and Ganeshiya (PW 3). 7. 6. I have heard learned counsel for the parties and have also perused the record of Sessions Trial No.351/2001. The conviction of appellant Aghan Bai is based on the evidence of Ramratan (PW 1) and Ganeshiya (PW 3). 7. It is not disputed that the marriage of the deceased was performed with Laxmi Prasad, son of dead appellant Sitaram 3 years prior to the date of incident. It is also not disputed that the deceased died on 2-6-2001, i.e., within 7 years of her marriage and her death was otherwise than under normal circumstances. 8. Ramratan (PW 1) and Ganeshiya (PW 3) deposed that when their daughter (the deceased) returned from her matrimonial house. she told them that her father-in-law and sister of her father-in-law were subjecting her to cruelty saying that she was not delivering any child and calling her Charkat and Veshya. They further deposed that a resident of their village told them that the deceased was admitted in Dharam (Government) Hospital, Bilaspur in burnt condition. They reached the hospital. The deceased was admitted in burn-unit of the hospital. 9. Ramratan (PW 1) deposed that the deceased told him that the appellants were committing Marpeet with her and taunting her saying that she was Charkat and Veshya and seeing her face was a sin. In examination-in-chief, in paragraphs 6 to 11, he deposed regarding oral dying declaration made by the deceased before him. In paragraph 11, he deposed that appellant Sitaram had said the deceased to hang herself. Appellant Sitaram further said the deceased that he had brought kerosene, she should pour kerosene on her and set her on fire. Therefore, the deceased died pouring kerosene on her and setting her on fire. 10. Now, I shall examine whether the evidence of Ramratan (PW 1) regarding oral dying declaration made by the deceased is reliable and can be based for conviction. 11. 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. 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." 12. 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: "113A. 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 Halsbury’s 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." 13. 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 fit 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." 14. 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." 15. In Sanju alias Sanjay Singh Sengar Vs. State of MP, (2002) 5 SCC 371 the Hon'ble Supreme Court observed as follows: "12. ...... Even if we accept the prosecution story that the appellant did tell the deceased "to go and die", that itself does not constitute the ingredient of "instigation". The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion. Secondly, the alleged abusive words, said to have been told to the deceased were on 25-7-1998 ensued by a quarrel. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion. Secondly, the alleged abusive words, said to have been told to the deceased were on 25-7-1998 ensued by a quarrel. The deceased was found hanging on 27-7-1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25-7-1998 drove the deceased to commit suicide. Suicide by the deceased on 27-7-1998 is not proximate to the abusive language uttered by the appellant on 25-7-1998. The fact that the deceased committed suicide on 27-7-1998 would itself clearly point out that it is not the direct result of the quarrel taken place on 25-7-1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below." 16. Ganeshiya (PW 3) deposed that it is true that the deceased did not tell her anything about her burn. She further deposed that it is also true that she deposed whatever was told to her by her husband Ramratan (PW 1). If the deceased had really made oral dying declaration, the same would have also been made to her mother Ganeshiya (PW 3), but from the evidence of Ganeshiya (PW 3) the same is not reflected, therefore, making of oral dying declaration by the deceased appears to be doubtful. 17. Ramratan (PW 1) deposed that when the deceased was admitted in Government Hospital, Bilaspur, a woman resident of their village was also admitted there. He further deposed that the said woman of their village told him that his daughter (the deceased), due to ill-treatment by the appellants, had poured kerosene on her and set her on fire and she was admitted in Government Hospital, Bilaspur in burnt condition. It appears that the deceased told the incident first to that woman and thereafter that woman told the incident to Ramratan (PW 1), but Ramratan (PW 1) did not disclose the name of that woman nor the prosecution examined her, who was a material witness for the prosecution. It appears that the deceased told the incident first to that woman and thereafter that woman told the incident to Ramratan (PW 1), but Ramratan (PW 1) did not disclose the name of that woman nor the prosecution examined her, who was a material witness for the prosecution. Nondisclosure of the name of that woman and her non-examination by the prosecution is fatal to the case of the prosecution. 18. Executive Magistrate/Naib-Tahsildar S.S.Dubey (DW 2) deposed that he recorded the dying declaration of the deceased on 31-5-2001 at Government Hospital, Bilaspur. He further deposed that before recording the dying declaration, he had obtained a certificate from Dr. Rajnikant Verma (DW 1) regarding her heath and mental condition for making dying declaration. Dr. Rajnikant Verma (DW 1) deposed that on 31-5-2001, the deceased was admitted in Bum-Unit of Government Hospital, Bilaspur. He further deposed that at about 12:50 P.M., after examining the deceased, he gave certificate in Ex.D-1 that the deceased was fit to make dying declaration. He further deposed that the dying declaration was recorded for about 10 minutes. Thereafter, he further gave certificate regarding mental condition of the deceased in EX.D-1. 19. S.S. Dubey (DW 2) deposed that the deceased had told him that while burning fire for cooking food, the fire caught in her clothes. In Ex.D-1, it is mentioned as under: ^^?kVuk dSls ?kVh & eS [kkuk idkus ds fy;s vkx tyk jgh Fkh] vkx tykrs le; vkx us esjs diM+s dks idM+ fy;k ftlds dkj.k eS ty xbZA dc ?kVuk ?kVh & dy fnukad 30@5@2001] 10 cts fnu esA dkSu&dkSu Fks ?kj es & ?kj es ml le; dksbZ ugh FkkA eS vdsyh FkhA tyus ds ckn esjh vkokt lqudj iM+kslh vk;sA^^ 20. Madhav Chandrakar (PW 7) and Laxman (PW 5) deposed that they went to the house of the deceased. They saw that the deceased was lying in burnt condition. On being asked from her, she told them that while burning fire for cooking food, the fire caught in her clothes. 21. In case-diary statement (Ex.D-2) of Ramratan (PW 1), it is mentioned that the dying declaration of the deceased was recorded by an officer. Looking to Ex.D-2, it appears that the dying declaration of the deceased was recorded. Therefore, the evidence of S.S. Dubey (DW 2) is corroborated by Ex.D-2 and also by the evidence of Laxman (PW 5) and Madhav Chandrakar (PW 7). Looking to Ex.D-2, it appears that the dying declaration of the deceased was recorded. Therefore, the evidence of S.S. Dubey (DW 2) is corroborated by Ex.D-2 and also by the evidence of Laxman (PW 5) and Madhav Chandrakar (PW 7). Therefore, the dying declaration recorded by Executive Magistrate/Naib-Tahsildar S.S.Dubey (DW 2) is reliable and looking to the dying declaration (Ex.D-1) and the evidence of Laxman (PW 5), Madhav Chandrakar (PW 7), Dr. Rajnikant Verma (DW 1), it appears that the death of the deceased was accidental. Therefore, I am of the view that the prosecution has not been able to prove with conclusive evidence that appellant Aghan Bai subjected the deceased to cruelty or harassment and she abetted or instigated the deceased to commit suicide and as a result thereof the deceased committed suicide. 22. From the above discussion and circumstances, I find that the evidence of Ramratan (PW 1) and Ganeshiya (PW 3) are not reliable and cogent. Therefore, conviction of appellant Aghan Bai under Section 306 IPC cannot be based on the basis of their evidence. The prosecution utterly failed to prove the charge against appellant Aghan Bai for the reasons aforementioned. The impugned judgment cannot be sustained. 23. In the result, the appeal is allowed. The conviction and sentence awarded to appellant Aghan Bai under Section 306 IPC are set aside. She is acquitted of the charge framed against her. She is in jail. She be released forthwith, if not required in any other case. Appeal Allowed.