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2012 DIGILAW 330 (CHH)

DARBAR SINGH v. STATE OF C. G.

2012-12-12

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against judgment dated 5-8-2004 passed by 9th Additional Sessions Judge (FTC), Bilaspur in Sessions Trial No. 459/2003. By the impugned judgment, appellant Darbar Singh has been convicted and sentenced in the following manner with a direction to run the sentences concurrently and co-accused Smt. Jamunabai and Manohar have been acquitted of the charges framed against them: Conviction Sentence Under Section 498-A IPC Rigorous imprisonment for 2 years and to pay fine of Rs. 300/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month. Under Section 306 IPC Rigorous imprisonment for 5 years and to pay fine of Rs. 700/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. 2. Case of the prosecution, in brief, is as under: Appellant Darbar Singh is husband, acquitted accused Jamunabai is mother-in-law and Manohar is Jeth (brother-in-law) of deceased Indirabai. Marriage of deceased Indirabai was solemnized with the appellant 3 months prior to the date of incident. Deceased Indirabai committed suicide in her matrimonial house by pouring kerosene on her person and setting herself on tire on 13-8-2003. Gajpal Singh (PW-1, father of the deceased) had given sufficient dowry including TV and jewelry at the time of marriage. Within a few days after the marriage, the appellant and acquitted accused persons started ill-treating the deceased and caused severe mental torture to her telling that she had brought substandard quality of TV and such articles should be taken back. Instead of TV they demanded Rs. 10,000/-. Deceased Indirabai narrated the incident to his father Gajpal Singh (PW-1), brother Ravi Singh (PW-2) and other members of the family. The appellant wanted Rs. 10,000/- from them and there for physical and mental torture was given by the appellant and other acquitted accused persons to the deceased, as a result of which, the deceased committed suicide by pouring kerosene on her person and setting herself on fire. Deceased Indirabai was admitted in CIMS, Bilaspur where she died on the same day at about 9:05 P.M. Intimation was sent to Police Station Kotwali, Bilaspur where merg intimation (Ex.P-13) at 0/2003 was registered. Investigating Officer reached CIMS hospital, gave notice (Ex.P-3) to Panchas and prepared inquest (Ex.P-2) on the dead body of the deceased. The dead body of the deceased was sent to CIMS, Bilaspur for post mortem examination vide Ex.P6. Dr. Investigating Officer reached CIMS hospital, gave notice (Ex.P-3) to Panchas and prepared inquest (Ex.P-2) on the dead body of the deceased. The dead body of the deceased was sent to CIMS, Bilaspur for post mortem examination vide Ex.P6. Dr. A.K. Shukla (PW-8) conducted post mortem examination on the dead body of the deceased along with Dr. Smt. K. Mittal and they gave their report (Ex.P-6), in which, they mentioned that the cause of the death was complicating extensive bum. In further investigation, panchnama (Ex.P-1) of the place of occurrence was prepared. A burnt stick of match-box, a match-box and pieces of burnt saree were seized from the place of occurrence vide Ex.P-5. Site map (Ex.P-9) was prepared. First Information Report (Ex.P-8) was registered in Police Station Kotwali, Bilaspur. Thereafter, regular First Information Report (Ex.P7) was registered in Police Station Masturi. After completion of the investigation, charge sheet was filed against the appellant in the Court of Additional Chief Judicial Magistrate, Bilaspur, who, in turn, committed the case to the court of Session, Bilaspur, from where, it was received on transfer by the 9th Additional Sessions Judge (FTC), Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted co-accused Jamunabai and Manohar of the charges framed against them. 3. In support of its case, the prosecution has examined Gajpal Singh (PW-1), Ravi Singh (PW-2), Ratna (PW-3), Prahlad Singh (PW-4), Chandan Singh (PW-5), Raju Singh (PW-6), Subhash Singh (PW-7), Dr. A.K. Shukla (PW8), Harwindra Khunte (PW-9), Dr. Swati Somawar (PW-10), Inspector (Rtd.) C.R. Tandiya (PW-11), DSP M.L. Sandilya (PW-12), Sub-Inspector D. Singh (PW-13), ASI S.R. Bhagat (PW-14) and ASI Lallan Pandey (PW-15). The appellant examined Head Constable Sharda Singh (DW-1) as a defence witness in support of his case. 4. Shri N.K. Chatterjee, learned counsel for the appellant, argued that the prosecution has utterly failed to prove the case against the appellant. Co-accused persons have been acquitted by the trial Court, therefore, on the basis of same set of evidence the appellant cannot be convicted. Dying declaration (Ex.D-7) recorded by Police Officer is not admissible and reliable. The prosecution has failed to prove that the deceased was subjected to cruelty or harassed by the appellant. The prosecution has not established that prior to death of the deceased she had been either subjected to cruelty or harassment for any demand of dowry. Dying declaration (Ex.D-7) recorded by Police Officer is not admissible and reliable. The prosecution has failed to prove that the deceased was subjected to cruelty or harassed by the appellant. The prosecution has not established that prior to death of the deceased she had been either subjected to cruelty or harassment for any demand of dowry. Evidence in this respect is wholly insufficient to convict the appellant under Sections 306 and 498A IPC. The prosecution has utterly failed to establish the ingredients of Sections 306 and 498A IPC against the appellant. 5. On the other hand, Shri Sushil Dubey, learned 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. 6. Having heard the rival contentions of the parties, I have perused the record of Sessions Trial No. 459/2003. 7. The conviction of the appellant under Sections 306 and 498A IPC is based on the evidence of Gajpal Singh (PW-1), Ravi Singh (PW-2), Ratna (PW-3), Prahlad Singh (PW-4), Raju Singh (PW-6) and Subhash Singh (PW7). 8. It is not disputed that the deceased died due to burn injuries. It is also not disputed that she died within 7 years of her marriage and her death was otherwise than under the normal circumstances. 9. Gajpal Singh (PW-1), Ravi Singh (PW-2), Ratna (PW-3), Prahlad Singh (PW-4), Chandan Singh (PW-5) and Raju Singh (PW-6) deposed that deceased Indirabai was daughter of Gajpal Singh (PW-1) and sister of Ravi Singh (PW-2). They further deposed that the marriage of the deceased was solemnized with the appellant 1 year prior to the date of their deposition. They further deposed that Ravi Singh (PW-2), Prahlad Singh (PW-4) and Raju Singh (PW-6) had gone to the matrimonial house of the deceased to bring the deceased to her parental house. At that time, the appellant and acquitted accused persons told them that they had given substandard quality of TV which was not a colour TV, almirah was small and Palang was damaged and they demanded Rs. 10,000/-. They further deposed that the appellant and acquitted accused persons refused to send the deceased along with them Gajpal Singh (PW-1) deposed that the deceased had told him that the appellant committed marpeet with her. 10,000/-. They further deposed that the appellant and acquitted accused persons refused to send the deceased along with them Gajpal Singh (PW-1) deposed that the deceased had told him that the appellant committed marpeet with her. He further deposed that the appellant and acquitted accused persons poured kerosene on her person and set her on fire. Prahlad Singh (PW-4), Chandan Singh (PW-5) and Raju Singh (PW-6) also deposed in similar fashion. 10. In Gangula Mohan Reddy Vs. State of A.P. (2010) 1 SCC 750 , the Hon'ble Supreme Court while interpreting Section 306 IPC held that “Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. It was further held that to attract Section 306 IPC there has to be a clear mens rea to commit the offence." 11. In Ramesh Kumar Vs. State of Chhattisgarh (2001) 9 SCC 618 , the Hon'ble Supreme Court held that "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 heat of anger or in emotion without intending the consequences to actually follow cannot be said to be instigation." 12. In Sanju alias Sanjay Singh Sengar Vs. State of M.P. (2002) 5 SCC 371 , the deceased committed suicide on 27-7-1998, whereas, the alleged quarrel had taken place on 25-7-1998 when it was alleged that the appellant had used abusive language and also told the deceased to go and die. In Sanju alias Sanjay Singh Sengar Vs. State of M.P. (2002) 5 SCC 371 , the deceased committed suicide on 27-7-1998, whereas, the alleged quarrel had taken place on 25-7-1998 when it was alleged that the appellant had used abusive language and also told the deceased to go and die. The Hon'ble 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. In M. Mohan Vs. State Represented by the Deputy Superintendent of Police AIR 2011 SC 1238 , the Hon'ble Supreme Court observed thus: "17. ........... while interpreting Section 306, I.P.C. held that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. It was further held that to attract Section 306, I.P.C. there has to be a clear mens rea to commit the offence. It is further stated that the present case is squarely covered by the above decision as even if the case of the prosecution is taken to be true and the finding of the High Court that there are no elements of cruelty or dowry related harassment and that the witnesses have improved upon their earlier statements is ignored, then also Section 306, I.P.C., is not attracted in the facts of the present case." 14. Section 107 IPC reads thus: “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 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 facilitate the commission thereof, is said to aid the doing of that act." 15. In Bhaskar Lal Sharma and Anr. Vs. Monica (2009) 10 SCC 604 , the Hon'ble Supreme Court observed as follows: "28. The "Explanation" appended to Section 498-A thereto defines cruelty to mean : (i) 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 (ii) 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. 29. Thus, the essential ingredients of Section 498-A are: 1. A woman must be married. 2. She must be subjected to cruelty. 3. Cruelty must be of the nature of: (i) any willful conduct as was likely to drive such woman: a. To commit suicide; b. Cause grave injury or danger to her life, limb, either mental or physical; (ii) harassment of such woman, (1) with a view to coerce her to meet unlawful demand for property or valuable security, (2) or on account of failure of such woman or by any of her relation to meet the unlawful demand; (iii) woman was subjected to such cruelty by: (1) husband of that woman, or (2) any relative of the husband. For constitution of an offence under Section 498-A IPC, therefore, the ingredients thereof must be held to be existing. 39. In Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281 , this Court held: (SCC pp.285 & 287-88 paras 10 & 19) “10. For constitution of an offence under Section 498-A IPC, therefore, the ingredients thereof must be held to be existing. 39. In Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281 , this Court held: (SCC pp.285 & 287-88 paras 10 & 19) “10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short 'CrPC') and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty." 16. In Preeti Gupta and Anr. Vs. State of Jharkhand and Anr. 2010 AIR SCW 4975, the Hon'ble Supreme Court observed as follows: "30. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same, rapid increases in the number of genuine cases of dowry harassment is also a matter of serious concern." 17. Section 498A IPC reads 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 fine. Section 498A IPC reads 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 fine. 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." 18. Gajpal Singh (PW-1) deposed that on the day of Rathyaatra, the appellant along with other 5-6 persons, had come to his house to take the deceased with him. He further deposed that they took a lunch. After having lunch, the appellant asked the deceased for Rs. 10,000/- against which deceased Indirabai replied to the appellant that her father was a poor man and unable to give Rs. 10,000/-. Gajpal Singh (PW-1) in his cross-examination deposed that the appellant had demanded Rs. 10,000/- and commented about substandard of articles. He did not narrate anybody in the village. In paragraph 10 of his cross-examination, he deposed that the appellant committed marpeet with the deceased with a Danda and acquitted accused persons along with the appellant poured kerosene on the person of the deceased and set her on fire. He further deposed that he had stated this in his case diary statement. The above statement of Gajpal Singh (PW-1) is not mentioned in his case diary statement. Case diary statement (Ex.D-1) of Gajpal Singh (PW-1) was recorded on 14-8-2003 and another statement (Ex.D-2) was recorded on 18-8-2003. Case diary statements of Ravi Singh (PW-2) and Prahlad Singh (PW-4) were recorded on 18-8-2003 vide Exs.D-3 and D-4, respectively. Case diary statement (Ex.D5) of Chandan Singh (PW-5) was recorded on 19-8-2003 and case diary statement (Ex.D-6) of Raju Singh (PW-6) was recorded on 22-8-2003. Case diary statements of Ravi Singh (PW-2) and Prahlad Singh (PW-4) were recorded on 18-8-2003 vide Exs.D-3 and D-4, respectively. Case diary statement (Ex.D5) of Chandan Singh (PW-5) was recorded on 19-8-2003 and case diary statement (Ex.D-6) of Raju Singh (PW-6) was recorded on 22-8-2003. Looking to the above case diary statements of Gajpal Singh (PW-1), Ravi Singh (PW2), Prahlad Singh (PW-4), Chandan Singh (PW-5) and Raju Singh (PW-6), it is found that their evidence are exaggerated and full of omissions and contradictions. 19. Considering the testimonies of all the above witnesses, it appears that they have made allegations of harassment against the appellant. But such sweeping allegation would not amount to abetment of offence of commission of suicide and something more is required under Section 107 of the IPC which provided that the harassment should be of such a nature which should amount to instigation to any person to commit suicide. But, the said ingredients are missing in the instant case. 20. Looking to the facts and circumstances of the instant case and the evidence available on record, I am of the view that the prosecution has not been able to prove it with conclusive evidence that it was the appellant who subjected the deceased to cruelty in such a nature which amounted to instigate the deceased to commit suicide. Therefore, offence under Section 306 IPC cannot be made out against the appellant. 21. On perusal of Section 498A of the IPC, it reveals that it has two parts. First part of Section 498A of the IPC provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished. 'Cruelty' has been defined in Clause (a) of the explanation of the said section. 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 are required to be established in order to bring home the application of Section 498A of the IPC. 22. In the instant case, Gajpa1 Singh (PW-1) deposed that the deceased was admitted in CIMS, Bilaspur. Dr. Swati Somawar (PW-10) deposed that on 13-8-2003, deceased Indirabai was admitted in CIMS, Bilaspur. Sharda Singh (DW-1) deposed that she was posted as lady Head Constable in City Kotwali, Bilaspur. 22. In the instant case, Gajpa1 Singh (PW-1) deposed that the deceased was admitted in CIMS, Bilaspur. Dr. Swati Somawar (PW-10) deposed that on 13-8-2003, deceased Indirabai was admitted in CIMS, Bilaspur. Sharda Singh (DW-1) deposed that she was posted as lady Head Constable in City Kotwali, Bilaspur. On 13-8-2003, she was on duty in CIMS, Bilaspur. She further deposed that on 13-8-2003, she had received memo (Ex.D-8) from City Kotwali, Bi1aspur. Firstly, memo (Ex.D-8) was sent to Police Station City Kotwali and thereafter, she received it. She further deposed that she recorded statement (Ex.D-7) of the deceased on the same day. Deceased Indirabai died on the same day. Therefore, Ex.D-7 may be treated as dying declaration. 23. Learned counsel for the appellant argued that Ex.D-7 was recorded by a Police Officer and not by a Magistrate, therefore, it cannot be treated as dying declaration and it is not reliable. 24. Above submission of learned counsel for the appellant is not acceptable. 25. Sharda Singh (DW-1) was examined by the appellant himself as a defence witness and Ex.D-7 was also tendered by defence as defence document and it is proved by Sharda Singh (DW-1). 26. Ex.D-7 is treated as dying declaration and it would not lose its efficiency merely because it was recorded by the Head Constable and not by the Magistrate. The statement of a Police Officer can in fact be treated as a dying declaration if other requirements in this regard are satisfied. Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court and where the Court is satisfied that the dying declaration is true and voluntary, it can be based for conviction without further corroboration. 27. Sharda Singh (DW-1) deposed that deceased Indirabai was admitted in CIMS, Btlaspur in burnt condition. She further deposed that she received memo (Ex.D-8) and thereafter she recorded the statement of the deceased. She further deposed that before recording the statement of the deceased, she had obtained certificate from Dr. K.K. Sav. Dr. A.K. Shukla (PW-8) deposed that he conducted the post mortem examination on the dead body of the deceased and gave his report vide Ex.P-6, in which, he found burnt injuries on the head, neck and chest of the deceased. He further deposed that the deceased had sustained 50% burn injuries. Looking to the evidence of Dr. K.K. Sav. Dr. A.K. Shukla (PW-8) deposed that he conducted the post mortem examination on the dead body of the deceased and gave his report vide Ex.P-6, in which, he found burnt injuries on the head, neck and chest of the deceased. He further deposed that the deceased had sustained 50% burn injuries. Looking to the evidence of Dr. A.K. Shukla (PW8), it appears that the deceased would have been in a position to speak and Sharda Singh (DW-1) specifically deposed that before recording the statement of the deceased she had obtained certificate from the doctor. Therefore, the evidence of Sharda Singh (DW-1) is reliable and Ex.D-7 is treated as dying declaration. 28. In Ex.D-7, it is mentioned that: HINDI 29. On perusal of Section 498A of the IPC, it reveals that it has two parts. First part of Section 498A of the IPC provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished. 'Cruelty' has been defined in Clause (a) of the explanation of the said section. 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 are required to be established in order to bring home the application of Section 498A of the IPC. 30. In the instant case, prosecution witnesses Gajpal Singh (PW-1), Ravi Singh (PW-2), Ratna (PW-3), Prahlad Singh (PW-4) and Raju Singh (PW-6) specifically deposed that the appellant committed marpeet with the deceased and their evidence are corroborated by Ex.D-7 and evidence of Sharda Singh (DW-1). Therefore, it appears that the deceased committed suicide due to harassment done by the appellant. Hence, the evidence against the appellant comes within the purview of cruelty under Section 498A of the IPC. 31. In light of the above discussion, the conviction of the appellant under Section 306 of the IPC cannot be sustained. The prosecution has clearly been able to establish the charge leveled against the appellant under Section 498A of the IPC beyond reasonable doubt. 32. As regards the sentence, learned counsel for the appellant argued that the incident took place on 13-8-2003. The prosecution has clearly been able to establish the charge leveled against the appellant under Section 498A of the IPC beyond reasonable doubt. 32. As regards the sentence, learned counsel for the appellant argued that the incident took place on 13-8-2003. The case is pending for about 9 years and the appellant was in custody from 26-8-2003 to 10-9-2004, i.e., 1 year and 15 days. Therefore, instead of sending the appellant back to jail, he may be sentenced for the period already undergone by him. 33. Shri Sushil Dubey, learned Government Advocate for the State/respondent, opposed the above argument. 34. In the instant case, the incident occurred on 13-8-2003 and almost 9 years have passed since then. The appellant was in custody from 26-8-2003 to 10-9-2004, i.e., 1 year and 15 days. He also suffered agony of the trial and long pendency of the appeal. It appears that no fruitful purpose would be served by sending the appellant back to jail in these circumstances. Considering the facts and circumstances of the case, I do not feel it appropriate to send the appellant back to jail. I am of the view that the ends of justice would be met if, while upholding the conviction of the appellant under Section 498A of the IPC, the jail sentence awarded to him is restricted to the period already undergone by him besides enhancing the amount of fine. 35. In the result, the appeal is partly allowed. The conviction of the appellant under Section 306 IPC is set aside and he is acquitted of the charge there under, but his conviction under Section 498A IPC is upheld, however, the jail sentence awarded to him is reduced to the period already undergone by him. So far as the sentence of fine is concerned, fine of Rs. 300/- is enhanced to Rs. 5,000/- for the offence under Section 498A of the IPC. The appellant is granted 3 months time to deposit the above amount of fine, failing which, he shall be liable to undergo rigorous imprisonment for 2 months. If any amount has already been deposited towards fine, the same shall be adjusted in the amount of fine enhanced by this Court today. Appeal Partly Allowed.