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2012 DIGILAW 284 (CHH)

Sanjay Jain v. State of Madhya Pradesh

2012-10-30

PRITINKER DIWAKER

body2012
JUDGMENT This appeal has been preferred against the judgment and order dated 26-4-1998 passed by Sessions Judge, Raipur in Sessions Trial No. 74/1997 convicting the accused/appellant under Sections 306 and 498-A, IPC and sentencing him to undergo RI for five years with fine of Rs. 500 u/S. 306 and RI for one year with fine of Rs. 200/- u/S. 498-A IPC, plus default stipulations. 2. Facts of the case in brief are that marriage of deceased Neema Jain had taken place with the accused/appellant four years prior to the date of incident i.e. 11-11-1996. On the date of incident the deceased set herself on fire in her matrimonial house and was immediately taken to Medical College Hospital Raipur and looking to her serious condition shifted to Sector 9 Hospital, Bhilai. On 11-11-1996 itself intimation vide Ex. P-7 was sent to Police outpost, Medical College Raipur by staff of the hospital and thereafter vide Ex. P-8 query was made from the doctor whether injured Neema was in a fit state of mind to give dying declaration. After obtaining the fitness report from the doctor, dying declaration was recorded on 11-11-1996 vide Ex. P-20 by Dr. N. Das (PW-10). After enquiry, un-numbered report Ex. P-10 was registered at Sharda Chowki Police outpost on 12-11-1996 and based thereon numbered FIR Ex. P-6 was registered on that day itself at Police Station Maudhapara for the offence under Section 498-A IPC. Despite best efforts injured Neema succumbed to the burn injuries on 19-12-1996. Thereafter, post mortem examination on the body of the deceased was conducted by Dr. Suresh Kumar Sinha (PW-9) according to whom caused of death was shock septicemia due to 80% deep burn. Charge sheet was filed by the police on 15-1-1997 for the offences under Sections 498-A and 306 IPC. Court below however framed the charge under Sections 302 in the alternative 304-B IPC. However, as in the revision filed by the appellant herein charge under Section 302 in the alternative 304-B IPC was quashed, the Court below restituted the charge u/S. 306 and 498-A IPC. 3. In support of its case, prosecution was examined 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. 3. In support of its case, prosecution was examined 10 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No. 1 of this judgment. 5. Counsel for the accused/appellant submits that the prosecution has not been able to prove that the accused/appellant had ever ill-treated the deceased or subjected her to cruelty. He further submits that dying declaration cannot be relied upon because it does not bear the signature or thumb impression of the deceased. Counsel for the accused/appellant further submits that on the date of incident there was quarrel between the accused and the deceased over food only and the solitary instance involving quarrel between husband and wife cannot constitute an offence under Section 498-A IPC. Similarly, according to the counsel for the accused/appellant, the prosecution has utterly failed to prove that the ingredients of abatement as defined under Section 107 IPC are not attracted to the case in hand. He further submits that the findings recorded by the Court below are not based on due appreciation of the evidence on record and therefore liable to be set aside. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that judgment impugned has been passed after due appreciation of the evidence of the witnesses and there is no illegality or infirmity in the same. He submits that there is ample material to show that there was a quarrel between the accused and the deceased which rose to such an extent that the deceased chose to embrace death and looking to all this accused/appellant is not entitled for any sympathetic consideration. 7. Heard counsel for the parties and perused the material available on record. 8. Ram Bai (PW-1) mother of the accused/appellant has stated that the accused/appellant has one son and one daughter and that he along with his wife (deceased herein) and children used to reside in the first floor whereas she herself was residing in the ground floor. 7. Heard counsel for the parties and perused the material available on record. 8. Ram Bai (PW-1) mother of the accused/appellant has stated that the accused/appellant has one son and one daughter and that he along with his wife (deceased herein) and children used to reside in the first floor whereas she herself was residing in the ground floor. She has further stated that on the date of incident in the evening when she was cooking food in her room situated in the ground floor, deceased was also sitting with her. Thereafter, the accused/appellant came back from his shop, went to his room in the first floor and called out the deceased. After the deceased went to her room, her sister Nima came there, offered salutations to her and went to the room of her sister (deceased). According to this witness, after staying in the room of deceased, Nima came down, saluted her and then got back. Sensing quarrelsome activities in the first floor, this witness asked her elder daughter-in-law to go and get the accused/appellant down so that quarrel may come to an end. On this, elder daughter-in-law of this witness namely Shashi and her son Kamal went up and saw that the deceased had set her self afire after pouring kerosene on her body. Thereafter, this witness also went up and saw the deceased burning and unable to see all this she called out the people of the vicinity. Deceased then, according to this witness was taken to hospital at Raipur and then shifted to Bhilai where after about one month she died. Smt. Shashi Jain (PW-2) sister-in-law of the accused/appellant has made almost the similar statement as by Ram Bai (PW-1). She has further stated that accused/appellant and the deceased used to quarrel but nothing relating to the incident has been put forth by her. Smt. Ganga Bai (PW3) elder sister of the accused/appellant has not supported the case of the prosecution and has been declared hostile. Shivji Singh (PW-4) is the scientific officer who has given his reports Ex. P-4 and P-5. Smt. Ganga Bai (PW3) elder sister of the accused/appellant has not supported the case of the prosecution and has been declared hostile. Shivji Singh (PW-4) is the scientific officer who has given his reports Ex. P-4 and P-5. Ajit Kumar (PW-5) - neighbour of the accused/appellant has stated that after hearing the cries coming out from the house of the accused/appellant when he reached the spot, he came to know that deceased had suffered burn injuries and then he took her to the hospital in his auto rickshaw along with three other persons. Then, according to this witness, the deceased was shifted to Bhilai. Albert Kujur (PW-6) is the witness who recorded un-numbered FIR Ex. P-6. Sub Inspector namely Jaisingh Maravi (PW-7) is the witness who did part of the investigation. Har Prasad Kaivert (PW-8) is the constable who took the body of the deceased for post mortem examination. Dr. Suresh Kumar Sinha (PW-9) is the witness who conducted post mortem examination and submitted his report Ex. P-16 opining the cause of death as shock septicemia due to 80% deep burn. Dr. N. Das (PW-10) is the witness who recorded dying declaration of the deceased vide Ex.P-20 and stated that at that time she was in a fit state of mind to give statement. Investigating officer has not been examined by the prosecution. 9. In the dying declaration Ex. P-20 the deceased has stated that on the date of incident she was beaten by the accused/appellant and out of anger she poured kerosene on her body and set herself afire and that at the time of recording her statement her husband and sister were also present. 10. First of all it is to be ascertained whether the act of the accused/appellant was sufficient to instigate or abet the deceased to take a drastic step of putting an end to her life, as per the requirement of Section 107 IPC. To have a ready reference, the said provision is reproduced as under : Section 107. A person abets the doing of a thing, who First. To have a ready reference, the said provision is reproduced 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 wilful 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. The record goes to show that on the date of incident there was some quarrel between the deceased and the accused. None of the witnesses has stated that deceased and the accused used to pick up quarrel frequently or was there any disharmony between them. In this case, almost all the witnesses examined by the prosecution are the relatives of the accused/appellant and none of the witnesses are from the side of the deceased such as parents or siblings. Even the sister of the deceased namely Nima who had visited the deceased on the date of incident has not been examined by the prosecution. Mere stray instances of quarrel between husband and wife or the evidence that at times the appellant used to consume liquor cannot be termed as abetment as defined under Section 107 IPC. In these circumstances, it cannot be said that the accused/appellant instigated or abetted the deceased to end her life and that being the position his conviction under Section 306 IPC is not justified, and therefore liable to be set aside. 11. Likewise, Section 498A IPC reads as under : 498A Husband or relative of husband of a woman subjecting her to cruelty. 11. Likewise, Section 498A IPC reads as under : 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 fine. Evidence of Ram Bai (PW-1) and Shashi Jain (PW-2) though reflects that there used to be some quarrel between the deceased and the accused/appellant yet there is no evidence on record that he used to subject her to harassment or cruelty such as causing grave injury or danger to her life or limb (mental or physical). That being so, conviction of the accused/appellant under Section 498-A IPC is also not sustainable in law. 12. Accordingly, the appeal is allowed, judgment impugned is set aside. Accused/appellant is acquitted of all the charges levelled against him. Accused/appellant is already on bail. His bail bonds stand discharged. Appeal allowed.