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2013 DIGILAW 27 (CHH)

RAJENDRA DAS v. STATE OF C. G.

2013-01-10

RADHE SHYAM SHARMA

body2013
JUDGMENT 1. This appeal is directed against judgment dated 04-11-2004 passed by Additional Sessions Judge Rajnandgaon in Sessions Trial No.03/2004. By the impugned judgment, accused/appellants Rajendra Das, Sita Bai and Rumila Bai have been convicted under Section 306/34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs.500/-, in default of payment of fine amount to further undergo rigorous imprisonment for 3 months. 2. The case of the prosecution is as under :– Appellant Rajendra Das is husband and appellant Sita Bai is mother-in-law and Rumila Bai is sister-in-law (Nanand) of the deceased Gyan Manjari. The marriage of deceased Gyan Manjari was solemnized with appellant Rajendra Das in the year 1996. Sufficient dowry was given in the marriage as per their status. After marriage the deceased was residing with the appellants in her matrimonial house. During the wedlock between appellant Ranjendra Das and deceased, two children one daughter namely Barkha aged about 6 years and one son namely Dadu aged about 4 years had begotten. Then a few days after the marriage, the appellants started ill treating the deceased and causing severe mental torture to her saying that she had not brought sufficient dowry and appellant Rumila Bai calling her as ^^jk¡M] dqfr;k^^ . Due to ill treatment of the appellants, the deceased consumed poison. The deceased was taken to the hospital Chhuriya. The deceased was died. Intimation was sent to the police station Chhuriya. Merg intimation Ex.-P/3 was recorded in police station Chhuriya. Investigating officer reached the place of occurrence and gave notice to Panchas vide Ex.-P/8 and prepared inquest on the dead body of the deceased Ex.-P/9. The dead body of the deceased was sent to Community Health Center, Chhuriya for postmortem examination vide Ex.-P/10. Doctor A.K. Bansod (PW-19) conducted the postmortem on the dead body of the deceased along with Doctor T.S. Thakur (not examined) and gave their report vide Ex..-P/10A, in which they mentioned that the cause of death was due to poisoning effect into the body. In further investigation empty bottle of chlorohit, sealed bottle of chlorohit and Lota were seized from the place of occurrence vide Ex.-P/2, soil was also seized from the place of occurrence. Khinwa, Pairpatti, fully were also seized from Chandrakala vide Ex.-P/4. Patwari Viruram Netam (PW-12) prepared spot map vide Ex.-P/5. In further investigation empty bottle of chlorohit, sealed bottle of chlorohit and Lota were seized from the place of occurrence vide Ex.-P/2, soil was also seized from the place of occurrence. Khinwa, Pairpatti, fully were also seized from Chandrakala vide Ex.-P/4. Patwari Viruram Netam (PW-12) prepared spot map vide Ex.-P/5. During the merg intimation Tulsidas Vaishnav (PW-16) made written complaint to the Police Station, Chhuriya vide Ex.-P/ 7. After merg investigation a regular FIR was recorded in Police Station Chhuriya. After completion of the investigation, charge-sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Rajnandgaon, who, in turn, committed the case to the Court of Session, Rajnandgaon, from where it was received on transfer by Additional Sessions Judge, Rajnandgaon, who conducted the trial and convicted and sentenced the appellants as mentioned above. 3. Shri PKC Tiwari, leamed Senior Advocate with Shri Shashi Bhushan, learned counsel for the appellants argued that prosecution has not proved the case against the appellants. The prosecution has failed to prove that the deceased was subjected to cruelty or harassment by the appellants. The evidence of Tulsidas (PW-6), Smt. Alka Vaishnav (PW-10), Shri Bai (PW-7) and Omprakash Vaishnav (PW-11) can not be believed, they were relative of the deceased. Independent witnesses have not supported the case of the prosecution. The prosecution has not established that prior to the death of the deceased she had been either subjected to cruelty or harassment or any demand of dowry was made to her, evidence in this respect is wholly insufficient to convict the appellants under Section 306 IPC, the prosecution has utterly failed to establish the ingredients of Section 306 IPC against the appellants. 4. On the other hand, Shri R.R. Sinha, learned Panel Lawyer for the State/respondent supporting the impugned judgment submitted that the conviction and sentence awarded to the appellants do not warrant any interference by this Court. 5. Having heard the rival contentions of the parties, I have perused the record of Sessions Trial No.3/2004. The conviction of the appellants under Section 306 IPC is based on the evidence of father of the deceased, Tulsidas Vaishnav (PW-16), mother of the deceased, Shri Bai (PW-7), sister-in-law of deceased, Smt. Alaka Vaishnav (PW-10) and brother of the deceased, Omprakash Vaishnav (PW-11 ). 6. The conviction of the appellants under Section 306 IPC is based on the evidence of father of the deceased, Tulsidas Vaishnav (PW-16), mother of the deceased, Shri Bai (PW-7), sister-in-law of deceased, Smt. Alaka Vaishnav (PW-10) and brother of the deceased, Omprakash Vaishnav (PW-11 ). 6. It is not disputed that the deceased died due to consuming poison on October, 2003 which is after seven years of her marriage. 7. For offence under section 306, the offence by the appellant by instigation depends upon the intention of a person who abets and not upon the act which is done by the person who is abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, words uttered in a fit of anger or omission without any intention can not be termed as instigation. Instigation has to be gathered from circumstances of a particular case. In a particular case, there may not be direct offence in regard to instigation which may have direct nexus to suicide. Therefore, in such case, an inference has to be withdrawn from the circumstances and it has to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. 8. 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." 9. 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. 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." 10. In Sanju alias Sanjay Singh Senger 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. 11. 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, IP.C., is not attracted in the facts of the present case." 12. 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. 13. Tulsidas Vaishnav (PW-16), Smt. Alka Vaishnav (PW-10), Omprakash Vaishnav (PW-11) and Shri Bai (PW-7) deposed that the marriage of the deceased was performed with appellant No.1 Rajendra Das on 1996. They further deposed that when deceased came to her parental house on Tija festival, the deceased told them that the appellants were committing Maarpeet with her. Appellant Rumila Bai used to taunt her by saying ^^jk¡M] dqfr;k^^ . On being instigated by Rumila Bai, appellant Rajendra Das committed Maarpeet with the deceased. They further deposed that Tulsidas Vaishnav (PW-16) had given Rs. 2,000/- and Rs. 3,000/- to the appellant Rajendra Das. 14. Shri Bai (PW-7) deposed that she did not know when the sums of Rs. 2,000/- and Rs. 3,000/- had been given to the appellant. Smt. Alka Vaishnav (PW-10) did not state regarding the dowry. Omprakash (PW-11) deposed that he did not know whether the sums of Rs. 2,000/- and Rs. 3,000/- had been given to the deceased Gyan Manjari. His father told him that the appellants demanded money but he did not told him whether he gave money or not to the appellants. 15. Tulsidas Vaishnav (PW-16) deposed that it is true that he visited the house of the appellants, the appellants treated him properly and paid proper regards. It is also true that appellant Rajendra Das never demanded money from him. He further deposed that he gave Rs. 2,000/- and Rs. 3,000/- in the year 2000. He did not know for what purpose he gave the above money to the appellants. He further deposed that he gave the above money to his daughter (deceased). It is also true that appellant Rajendra Das never demanded money from him. He further deposed that he gave Rs. 2,000/- and Rs. 3,000/- in the year 2000. He did not know for what purpose he gave the above money to the appellants. He further deposed that he gave the above money to his daughter (deceased). He further deposed that he gave the above money during the marriage ceremony of his daughter. 16. Tulsidas Vaishnav (PW-16) deposed that the deceased wrote a letter to him, but the deceased did not make allegation in the said letter against the appellant. It is true that during the marriage, the appellants did not demand dowry. Janardan Das (PW-20) deposed that appellant Rajendra Das is his Saadhhu (husband of wife's sister). He further deposed that when he visited the house of the appellants they behaved properly with him and paid proper regards to him. It is true that the deceased lived in the appellants' house happily. He further deposed that he asked the deceased regarding harassment/cruelty but the deceased did not state anything. 17. Shri Bai (PW-7) deposed that the appellant Rajendra Das had about 25 acres of land. Gopidas Vaishnav (PW-1) deposed that it is true that appellant Rajendra Das had a tractor since last 30 years. Tulsidas Vaishnav (PW-16) also deposed that the appellant had a tractor. Sitaram Vaishnav (PW-17) deposed that the deceased did not state against appellant Rajendra Das that he used to torture or harass her. 18. Smt. Alka Vishnav (PW-10) deposed that it is true that she first time narrated the incident before the Court that the appellants harassed and tortured the deceased. It is true that the quarrel took place between the deceased and appellant Rumila Bai was general in nature. 19. Tulsidas Vaishnav (PW-16) and Bharatdas (PW-9) deposed that Bharatdas received telephonic information that Gyan Manjari (deceased) was ill, Bharatdas (PW-9) informed the illness of deceased to his brother and parents, thereafter, they went to Village Bamhani. They further deposed that the deceased died in hospital, but post mortem examination was not got conducted by the appellants. Tulsidas Vaishnav (PW-16) deposed that it is true that the appellant and co-accused did not try to get post mortem examination conducted on the dead body of the deceased, therefore, he doubted that the appellants had committed murder of the deceased. 20. Tulsidas Vaishnav (PW-16) deposed that it is true that the appellant and co-accused did not try to get post mortem examination conducted on the dead body of the deceased, therefore, he doubted that the appellants had committed murder of the deceased. 20. The essential ingredients of Section 498-A IPC 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 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. 21. Looking to the evidence available on record, I am of the view that the prosecution has not been able to prove with conclusive evidence that the appellants subjected the deceased to cruelty or harassment and abetted or instigated the deceased to commit suicide, as a result thereof, the deceased committed suicide. 22. In light of the above discussion, the conviction of the appellants under Section 306/34 IPC can not be sustained. In the result, the appeal is allowed and the conviction and sentence awarded to the appellants under Sections 306/34 IPC are set aside. The appellants are acquitted of the charges framed against them. Presently, they are on bail. Their bail bonds are cancelled and sureties stand discharged. Appeal Allowed.