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2012 DIGILAW 263 (CHH)

RAJESH KUMAR v. STATE OF C. G.

2012-10-08

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 22-7-2004 passed by the Sessions Judge, Durg in Sessions Trial No.169/2003. By the impugned judgment, appellant/accused Rajesh Kumar has been convicted under Section 306 of the IPC and sentenced to undergo rigorous imprisonment for 3 years and to pay fine of Rs.50/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. Learned Sessions Judge acquitted co-accused Smt. Shanti Bai, Smt. Godavari Bai and Smt. Rupa Bai of the charges framed against them. 2. Case of the prosecution, in brief, is as under :- On 3-5-2002, Ku. Ramala (deceased) had gone to Kotha (place where pet animals are kept) to put water there. The appellant entered the Kotha and caught the hand of the deceased. Jeevanlal (PW-2) saw them. Village Panchayat was called. The appellant was warned not to do the same act again in the village. Panchayat asked the appellant to leave village but the appellant did not leave the village. Hence, on 6-5-2002, Badrinath (PW -1, father of the deceased) lodged report in police station. On 8-5-2002, police arrested the appellant. Thereafter, the appellant was released on bail by the Court on the same day. The appellant along with the other co-accused said that marriage of the deceased should not be performed and told to bring her forcibly. Besides this, the appellant burst the crackers and shown the video in the village because he had been released on bail on the same day. Having seen the deceased, acquitted accused persons Smt. Shanti Bai and Smt. Godavari Bai abused and threatened the deceased to take her forcibly as a result of which the deceased committed suicide on 10-5-2002 by consuming poison. Badrinath (PW-1, father of the deceased) lodged merg intimation (Ex. P-1) in Police Station Dhamdha. The Investigating Officer reached the place of occurrence and gave notice (Ex.P-2) to Punchas and prepared inquest (Ex.P-3) on the dead body of the deceased. The dead body of the deceased was sent to Primary Health Centre Dhamdha for post mortem examination vide Ex.P-4. Dr. B.N. Dewangan conducted the post mortem examination on the dead body of the deceased and gave his report in which he found that the death of the deceased was due to asphyxia due to cardio respiratory arrest caused by insecticidal poisoning. In further investigation, First Information Report (Ex.P-6) was registered in Police Station, Dhamdha. Dr. B.N. Dewangan conducted the post mortem examination on the dead body of the deceased and gave his report in which he found that the death of the deceased was due to asphyxia due to cardio respiratory arrest caused by insecticidal poisoning. In further investigation, First Information Report (Ex.P-6) was registered in Police Station, Dhamdha. Sealed jar and sample were seized vide Ex.P-5. Seized articles were sent to Forensic Science Laboratory, Sagar for chemical examination vide Ex.P-7. FSL Report (Ex.P-9) was received vide Ex.P-8. In Ex.P-9, it is found that articles A and B contained dyclorovas (oregano phosphorus) insecticide. After completion of the investigation, charge sheet was filed against the accused/appellant and the acquitted co-accused persons in the Court of Judicial Magistrate, First Class, Durg, who, in turn, committed the case to the court of Sessions Judge, Durg, who conducted the trial and convicted and sentenced the accused/appellant as mentioned above and acquitted co-accused Smt. Shanti Bai, Smt. Godavari Bai and Smt. Rupa Bai of the charges framed against them. 3. Shri N.S. Dhurandhar, learned counsel for the appellant, argued that Badrinath (PW -1) and Jeevanlal (PW - 2) are father and brother of the deceased, respectively, therefore, they, are highly interested witnesses. The prosecution failed to prove that the deceased was abetted or instigated by the appellant. There is no evidence which could indicate that the appellant abetted or instigated the deceased. It is also not proved that due to abetment or instigation by the appellant, the deceased committed suicide. The evidence in this respect is wholly insufficient to convict the appellant under Section 306 of the IPC. The prosecution has utterly failed to prove the ingredients of Sections 107 and 306 IPC. Therefore, the appellant deserves to be acquitted of the charge framed against him. Learned counsel for the appellant placed reliance on Nihaluddin alias Munna Vs. State of C.G. 2012(2) CGLJ 222 and Deepak Vs. State of Madhya Pradesh, 1994 Cri.L.J. 767. 4. On the other hand, Shri Vinay Harit, learned Deputy Advocate General with Shri R. R. Sinha, learned Panel Lawyer 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. I have heard learned counsel for the parties and have also perused the record of Sessions Trial No. 169/2003. 5. I have heard learned counsel for the parties and have also perused the record of Sessions Trial No. 169/2003. The conviction of the appellant under Section 306 IPC is based on the evidence of Badrinath (PW -1), Jeevanlal (PW2), Girvar Palel (PW-3) and Madanlal (PW-7). 6. 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. 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 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. 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 ofsc1f-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. 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." 7. In Nihaluddin alias Munna Vs. State of C.G. (supra), High Court of Chhattisgarh observed as follows : "11. In Sanju alias Sanjay Singh Sengar Vs. State of MP., (2002) 5 SCC 371 , the deceased committed suicide on 27-7-1998, whereas, the alleged quarrel had taken place on 22-7-1998 when it was alleged that the appellant had used abusive language and also told the deceased to go and die. The Supreme Court in the said circumstances held that the fact that the deceased committed suicide on 27-7-1998 would itself clearly point out that it was 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. 13. The Supreme Court in the said circumstances held that the fact that the deceased committed suicide on 27-7-1998 would itself clearly point out that it was 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. 13. On a close reading of the above provisions of IPC and the principles laid down by the Supreme Court in various decisions, it is apparent that in a case u/s 306 IPC, there should be clear mens rea to commit offence under this Section and there should be direct or active act by the accused which led the deceased to commit suicide. That is to say that there must be some evidence, of "instigation", "co-operation" or "initial assistance" by the accused to commit would be suicide by the victim/deceased." 8. In Gangula Mohan Reddy Vs. State of Andhra Pradesh, (2010) 1 SCC 750 , the Hon'ble Supreme Court observed as follows: "10. "Abetment" 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 place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-Intentionally aids, by any net 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 facilitates the commission thereof, is said to aid the doing of that act." 11. The learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh Vs. State of M.P., 1995 Supp (3) SCC 731. In Mahendra Singh, the allegations leveled were as under : (SCC p. 731, para 1) "1. ... My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. State of M.P., 1995 Supp (3) SCC 731. In Mahendra Singh, the allegations leveled were as under : (SCC p. 731, para 1) "1. ... My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning," The Court on the aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 IPC merely on the basis of the aforementioned allegation of harassment of the deceased is unsustainable in law. 12. The learned counsel also placed reliance on another judgment of this Court in Ramesh Kumar Vs. State of Chhattisgarh, (2001) 9 SCC 618 . A three-Judge Bench of this Court had an occasion to deal with a 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. The Court in para 20 has examined different shades of the meaning of "instigation". Para 20 reads as under : (SCC p. 629) "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." 9. Badrinath (PW-1) deposed that Ramala (decea3ed) was his daughter. He further deposed that on 3-5-2002, the deceased had gone to Kotha to put water there. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation." 9. Badrinath (PW-1) deposed that Ramala (decea3ed) was his daughter. He further deposed that on 3-5-2002, the deceased had gone to Kotha to put water there. The appellant entered Kotha and caught hand of the deceased and gagged her mouth. Jeevanlal (PW-2) deposed that the deceased was his sister and Nandani Bai is his wife. He further deposed that Nandani Bai told him someone entered the Kotha. Then he went to the Kotha and saw that the appellant caught his sister Ramala. He slapped the appellant. The appellant fled from there. He further deposed that he narrated the incident to his father. Laxman (PW-6) and Madanlal (PW-7) deposed that Jeevanlal (PW-2) narrated the incident to them. 10. Badrinath (PW-1), Jeevanlal (PW-2), Girvar Patel (PW-3), Madanlal (PW-7) deposed that Village Panchayat was conducted. In Village Panchayat, the appellant asked by Panchas to leave village, but the appellant did not leave the village. Badrinath (PW -1) deposed that he lodged report in Police Station Dhamdha. Police Officer came to his village for investigation but the appellant was not present in the village. The appellant was arrested by the police and thereafter the appellant was released on bail by the Court on the same day. The appellant and acquitted co-accused persons burst the crackers and shown the video in the village because the appellant was released on bail on the same day. The appellant also published in Dainik News- Paper regarding this. As a result of which, the deceased committed suicide on 10-5-2002 by consuming poison. 11. Jeevanlal (PW-2) deposed that the deceased committed suicide after 7-8 days of the first incident. Girvar Patel (PW-3) also deposed that the appellant burst the crackers and shown the video in the village because the appellant was released on bail. 12. In Deepak Vs. State of Madhya Pradesh (supra), the Hon'ble Supreme Court observed thus : "9. The first question which falls for decisions is whether the two accused persons can be held guilty of offence under Section 306 of the I.P.C. Abetment has been defined under Section 107 of the Penal Code. 12. In Deepak Vs. State of Madhya Pradesh (supra), the Hon'ble Supreme Court observed thus : "9. The first question which falls for decisions is whether the two accused persons can be held guilty of offence under Section 306 of the I.P.C. Abetment has been defined under Section 107 of the Penal Code. On the evidence led by the prosecution in the case, can it be said that the two accused persons, in any manner, either 'instigated', were 'engaged' in conspiracy or intentionally 'aided' in commission of suicide by the deceased. As is the statement of the deceased, disclosed from her three dying declarations, the two accused persons, at late hour of tire night, entered her room and tried to take advantage of the situation to commit sexual offence against her. This act on the part of the accused might or might not have driven the woman to commit suicide. In the facts as have been brought on record, the two accused persons could not have foreseen that such act on their part, may be that it was a serious offence, would necessarily drive that woman to commit suicide. It is admitted by the deceased in her own dying declarations that not soon after the incident of outraging her modesty, hut after about an hour she set herself afire. In my considered opinion therefore, this is not a case where it can be said that the two accused persons were abettors to the act of commission of suicide by the deceased. This is not a case of a married woman, who having been subjected to a continuous treatment of torture, had ended her life. No presumption under S. 113-A of the Evidence Act arises in such a case. Here is a case of a woman whose modesty was outraged while she was with her paramour. There was neither any intention nor any positive act on the part of the accused to instigate her or aid her in committing suicide. The two accused persons, therefore, cannot be held guilty of the offence under Section 306 of the I.P.C. and their conviction on that count by the trial Court, is liable to be set aside." 13. In the instant case, the appellant entered the Kotha of Badrinath (PW-1) and caught the hands of the deceased. Jeevanlal (PW-2) deposed that the deceased was his sister and Nandani Bai is his wife. In the instant case, the appellant entered the Kotha of Badrinath (PW-1) and caught the hands of the deceased. Jeevanlal (PW-2) deposed that the deceased was his sister and Nandani Bai is his wife. He further deposed that Nandani Bai told him someone entered the Kotha. Then he went to the Kotha, he saw that the appellant caught his sister Ramala. He slapped the appellant. The appellant fled from there. It appears that when Jeevanlal (PW-2) went to the Kotha, he saw the appellant and the deceased both in the Kotha. Looking to the evidence of Jeevanlal (PW-2), it also appears that the Kotha was closed from inside and Jeevanlal (PW-2) entered the Kotha by jumping the wall. 14. The appellant entered the Kotha on 3-5-2002. Village Panchayat was held and Panchayat directed the appellant to leave Village Silli, but the appellant did not leave the village. Thereafter, Badrinath (PW - 1, father of the deceased) lodged the report in Police Station Dhamdha against the appellant. The appellant was arrested and he was released on bail. Thereafter, on 10-5-2002, the deceased committed suicide by consuming poison. 15. Looking to the evidence of prosecution witnesses, it appears that there was neither any intention nor any positive act on the part of the appellant to instigate the deceased or aid her in committing suicide. The first incident took place on 3-5-2002 and the deceased committed suicide on 10-5-2002, i.e., after 7 days. Therefore, it cannot be said that the appellant was abettor to suicide committed by the deceased. 16. 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. The intention of the legislature and the ratio of the cases decided by the Hon'ble Supreme 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 committed suicide. 17. In the instant case, the deceased committed suicide after 7 days of the first incident. 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 committed suicide. 17. In the instant case, the deceased committed suicide after 7 days of the first incident. Therefore, it cannot be said that the accused abetted the deceased to commit suicide. Therefore, in the light of the above settled legal position, the conviction of the appellant under Section 306 IPC cannot be sustained. The learned trial Judge erred in convicting and sentencing the appellant. 18. For the foregoing reasons, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted of the charge under Section 306 IPC. He is on bail. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.