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2013 DIGILAW 335 (CHH)

RASHMI DEWANGAN v. STATE OF C. G.

2013-11-25

MANINDRA MOHAN SHRIVASTAVA

body2013
ORDER 1. This appeal is directed against the impugned judgment of conviction and sentence dated 26/03/03 passed by the Sixth Additional Sessions Judge, Durg (CO.) in sessions trial No. 265/2000, whereby and whereunder, the appellant has been held guilty of commission of offence under Section 306 of Indian Penal Code and sentenced to undergo simple imprisonment of 2½ years and fine of Rs. 1000/-, in default of payment, three months S.I. 2. The story of the prosecution, as unfolded from the records of the case is that the appellant was married to deceased Anil on 06/06/98. Soon after marriage, there started certain dispute between the husband and the wife and it is alleged that the appellant used to enter into frequent quarrel with her husband and threatened him to implead in a false case. She was not inclined to stay in the matrimonial house and insisted her husband to live separately and also insisted her husband to change his religion or adopt Christianity or Muslim religion. It is further submitted that because of this harassment meted out, the deceased husband - Anil committed suicide on 09/10/99 by consuming poison (salfaas). He was taken to hospital but Anil succumbed to death on that very day. On information given by J.L. Gendle (PW10), a merg intimation in police station - Durg was recorded in Ex.P/8. Inquest over dead body was prepared in the presence of witnesses vide Ex.P/11 and dead body of Anil was sent for post mortem. A.P. Sawant (PW 4) conducted post mortem on 10/10/99 and prepared rep0l1 in Ex.P/3. However, no definite opinion regarding cause of death of the deceased was given and visra was preserved for chemical examination. Those articles were sent for chemical examination and report in Ex.P/36 was received from forensic science laboratory reporting that in the visra and other organs, Aluminum Phosphide 'Sulfaas' insecticide, a poisonous substance, was found. During merg enquiry, a diary and some letters alleged to be written by the deceased were seized. FIR in Ex.P/9 was also recorded vide order dated 19/11/99. The writings in the letters and diary were sent for examination of the hand writing expert as questioned documents along with standard writing documents in a copy and report in P/34 and P/35 was prepared. FIR in Ex.P/9 was also recorded vide order dated 19/11/99. The writings in the letters and diary were sent for examination of the hand writing expert as questioned documents along with standard writing documents in a copy and report in P/34 and P/35 was prepared. Upon completion of usual investigation, charge sheet was filed in the Court of Judicial Magistrate 1st Class, Durg who in turn committed the case to the Sessions Court, Durg and was received on transfer by the 6th Additional Sessions Judge, Durg for trial. 3. Learned Trial Court, on the basis of the material collected by the police and submitted in the charge-sheet, framed charges on 31/07/2000 against the appellant alleging commission of offence under Section 306 IPC. The appellant abjured guilt and was put to trial. 4. In order to prove its case, the prosecution examined as many as 12 witnesses. The accused was, thereafter, examined under Section 313 of CrPC in respect of the incriminating evidence appearing against her in the evidence led by the prosecution. The appellant denied all the allegations and stated that after the death of her husband, in order to deprive her from the ownership and possession of the shop of her husband, she is being falsely implicated. 5. Relying upon the evidence led by the prosecution, the Trial Court held the appellant guilty of commission of offence and imposed sentence as described above. 6. Assailing the legality and validity of the impugned judgment of conviction and sentence, learned counsel for the appellant argued that the evidence led by the prosecution and proved circumstances of the case do not make out a case of commission of offence under Section 306 IPC and there is no evidence or any proved circumstances that the appellant instigated the deceased by subjecting him to harassment in order to commit suicide. It is argued that the deceased was a hyper sensitive man and there was a report lodged by the appellant against the deceased and family members alleging cruelty and commission of offence under Section 498-A IPC in which, certain proceedings were drawn and later on, there was settlement of dispute also. If because of this dispute and tension prevailing, the deceased committed suicide, it cannot be said that the appellant used to quarrel with the deceased in order to instigate him to commit suicide. If because of this dispute and tension prevailing, the deceased committed suicide, it cannot be said that the appellant used to quarrel with the deceased in order to instigate him to commit suicide. Further argument is that the FIR has been lodged after about 40 days of the date of incident. At the time of inquest proceedings or merg or till the FIR was lodged, there were no such allegations of harassment and abetment of commission of suicide and in order to deprive appellant from rights of succession of the shop of the deceased, false case has been reported. Lastly, it is submitted that the entire case which has come on record, even if it is accepted, no case of abetment of commission of suicide is made out because the evidence brought by the prosecution only shows that there was some dispute and quarrel between the husband and the wife and if the deceased being hyper sensitive, has committed suicide, the appellant cannot be charged of instigating the deceased to commit suicide. 7. On the other hand, learned State counsel supported the judgment of conviction and sentence and submits that the prosecution has led reliable evidence to show that soon after marriage, the appellant started harassing her husband in many ways. Harassment and torture continued over a long period. The gravity and magnitude of harassment was so much so that her husband (Anil - the deceased) was left with no option but to end his life. Therefore, in these circumstances, conviction of the appellant does not warrant any interference. 8. Suicidal death of Anil is not substantially in dispute though in the post mortem report, no definite opinion has been given. Visra and internal organs of the deceased were preserved for chemical examination. FSL report dated 25/02/2000 in Ex.P/36 proves that visra and the intestinal liquid as also bottle (Ex. Article A-B D1 and D2) were found containing Aluminum Phosphide 'Sulfaas' which is an insecticide. Seema (PW3) has stated that while she was ironing her clothes, Anil (the deceased) came to her and stated that he has consumed poison and showed the bottle. Shankar Lal (PW1) and Brij Bai (PW2) have also stated that Seema (PW3) told that the deceased had consumed poisonous substance and thereafter, they went to see him and then Anil told them that he has consumed Sulfaas tablets whereafter, he was taken to hospital. Shankar Lal (PW1) and Brij Bai (PW2) have also stated that Seema (PW3) told that the deceased had consumed poisonous substance and thereafter, they went to see him and then Anil told them that he has consumed Sulfaas tablets whereafter, he was taken to hospital. In her examination under Section 313 CrPC, the appellant has stated that her husband consumed Sulfaas tablets and was taken to hospital. Dr. J.P. Meshram (PW8) who conducted examination of the appellant at 3:30 P.M. had observed that there was history of consumption of Sulfaas tablet and the deceased was unconscious. Dr.J.L.Gendle (PW 10) has also stated that Anil was brought to ICU at 4 P.M. as he had consumed sulfaas tablet and he died at 17:40 hrs. i.e. 5:40 P.M. and information in that regard was given to the police. Therefore, the aforesaid evidence brought by the prosecution is uncontroverted and reliable. Therefore, it is proved that the deceased committed suicide by consuming insecticide (poison). 9. The question which arises for consideration is whether the prosecution has been able to prove that the appellant abetted the deceased to commit suicide. Section 306 IPC deals with "abetment of suicide" which reads as under - "If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 'Abetment of a thing' has been defined under Section 107 of the Code. I deem it appropriate to reproduce Section 107, which reads as under: "107. I 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 long 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". In State of West Bengal Vs. Orilal Jaiswal and another (1994) 1 SCC 73 : AIR 1994 SC 1418 , the Supreme Court cautioned that the Courts 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. The Supreme Court in Chitresh Kumar Chopra Vs. 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. 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. In the case of Amalendu Pal @ Jhantu Vs. State of West Bengal 2010(1) SCC 707 , the Supreme Court explained abetment in following words - "10. The legal position as regards Sections 306 IPC which is long settled was recently reiterated by this Court in Randhir Singh v. State of Punjab, (2004) 13 SCC 129 as follows in paras 12 and 13 : (SCC p. 134) "12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. 13. In the State of WB. v. Orilal Jaiswal,. (1994) 1 SCC 73 , this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of finding whether the cruelty meted out to the victim had infact induced her to end the life by committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences 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." 11. Further, in Kishori Lal v. State of M.P., (2007) 10 SCC 797 , this Court gave a clear exposition of Section 107 IPC when it observed as follows in para 6 : (SCC p.799) "6. Section 107 IPC defines abetment of a thing. Further, in Kishori Lal v. State of M.P., (2007) 10 SCC 797 , this Court gave a clear exposition of Section 107 IPC when it observed as follows in para 6 : (SCC p.799) "6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word 'instigate' literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107, Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence." 12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms in Section 306 IPC is not sustainable. 13. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms in Section 306 IPC is not sustainable. 13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC." 11. The evidence on record is required to be scrutinized in the light of the aforesaid legal principles and provisions contained in section 306 and 107 of IPC in order to find out whether the appellant is guilty of abetting commission of suicide of her husband. 12. Shankar Lal Dewangan (PW1), father of the deceased has stated that soon after marriage, quarrel started between his son Anil and appellant-Rashmi and his son told him that his wife used to tell his husband to reside separately from his parents and earning should be given in her hands. He also stated that his daughter-in-law used to tell the deceased that if he does not act according to her wishes, she will falsely implicate him. He further states that the appellant got a false report of cruelty due to dowry lodged in Mahila Thana whereafter counseling was held and the husband and wife were advised to live properly. Thereafter, also the appellant insisted to go to her parental house saying that she was not comfortable in the matrimonial house. After counseling, the appellant resided with them for about two months, thereafter, she requested a neighbour to call her father to take her back to her parental house because she was not comfortable. Thereafter, the appellant's father came in and took away the appellant and at that time, she was carrying two month's pregnancy. She went to parental house against their advise. Thereafter, she remained in the parental house for about 10 months. The appellant was brought back by his son on 18/09/99. Thereafter, the appellant's father came in and took away the appellant and at that time, she was carrying two month's pregnancy. She went to parental house against their advise. Thereafter, she remained in the parental house for about 10 months. The appellant was brought back by his son on 18/09/99. After 1 or 2 days, again quarrel started but he did not know, what was the cause of dispute but his son told that the appellant use to insist him to go to her parental house. On 03/10/99 also, quarrel took place on the issue that the appellant was insisting to go to her parental house and the appellant told the deceased to renounce Hindu religion and adopt Christianity. She liked wandering along with others. On 09/10/99, he was informed by his daughter Seema (PW3) that the deceased - Anil has consumed poison. Anil told him that he has been harassed by his wife and therefore, he has decided to end his life. In cross examination, he has however admitted that the appellant became pregnant after 12-14 months of marriage. He has also admitted that the appellant had lodged report regarding cruelty on demand of dowry against them, whereafter, counseling was held. He has admitted that after counseling, the appellant had gone to her parental house and did not return till she delivered her child but they did not go to see her in her parental house. 13. Brij Bai (PW2), mother of the deceased has stated that appellant disclosed to her son on the first night after marriage that the marriage was against her wishes and she is in love with some other person. This fact was informed to her by her son. She has stated that after marriage, the appellant stayed in the matrimonial house for about two months and during that period, they used to quarrel. After two months she went to her parental house. After 15-20 days, when her son went to take her back, she did not come and she came only after Deepawali festival. 2-3 days thereafter, again dispute arose between them and one day, the appellant asked her son to adopt Christianity or Muslim religion and she held her husband by his collar. She also threatened that she would get them involved in some case. 2-3 days thereafter, again dispute arose between them and one day, the appellant asked her son to adopt Christianity or Muslim religion and she held her husband by his collar. She also threatened that she would get them involved in some case. Two months after, she got a phone call made to her father to take her back and when her father came, she was carrying pregnancy of two months and she was taken to her parental house. She has also stated that thereafter, the appellant did not come back and she lodged a report in the police station whereafter, counseling was held in the police station and though her son was ready to take her back, the appellant went to her parental house stating that she would come back after delivery. After delivery, when she came back, the appellant insisted her son to bring money from the shop and live separately. It is also stated that two boys had come to meet the appellant in their house, thereafter, her son was keeping quite and told that his wife was having relationship with one Teli Pathan. Thereafter, he committed suicide. In the cross examination, she has admitted that the appellant had lodged report against her husband, mother-in-law, father-in-law and sister-in-law. Suggestions have been given, though denied, that the appellant was being harassed in the matrimonial house. She has further admitted in the cross examination that on the date of reception itself, her-son stated that the character of the appellant was doubtful. Similar is the evidence of Seema (PW3), sister of the deceased who deposed that her brother was sick of his wife as she always insisted the deceased to go to the matrimonial house and taunt her by saying that his family is orthodox and does not allow her to wear salwar suit and also used to say that Christian and Muslim religion is better than Hindu religion. She has also stated regarding appellant holding her husband by his collar and raising voice and the deceased told her that his in laws (parents of the appellant) want that he should live separately with his wife. She, however, admits that the appellant had lodged report against them in the police station alleging harassment and cruelty in connection with demand of dowry. She, however, admits that the appellant had lodged report against them in the police station alleging harassment and cruelty in connection with demand of dowry. Nirmal Kumar (PW5), younger brother of the deceased has also given similar evidence as given by Shankar Lal (PW1), Brij Bai (PW2) and Seema (PW3). 14. From the contents of the letter said to be written by the deceased, all that has been stated is that the appellant insisted to adopt Christianity or Muslim religion; once she held him by his collar and pushed him on the bed; her husband and family members are of 18th century and Dewangan community is backward and that he never wept so much and the appellant should tell how long she would give this mental torture to him and when she would be able to see his feelings. 15. The entire evidence led by the prosecution as analysed and scrutinized above only goes to prove that there were certain dispute between the husband and the wife. This had started soon after the marriage. The deceased had committed suicide just after one year of his marriage. The other evidence is that once the appellant caught hold of her husband by his collar and pushed him on to the bed and once she told that she will get every body implicated in a case. Further evidence is that she taunted her husband and other family members by saying that they are backward and highly orthodox and further that the husband should live separately, give earnings in her hands and leave Hindu religion, adopt Christian or Muslim religion. The above evidence, if appreciated in the light of other proved circumstances that the husband and wife lived together for a short period and the appellant used to live in her parental house for a long period, the appellant and her husband had cohabilitation, out of which a child was born, during that period, the appellant resided in the parental house and she had also lodged case against them alleging cruelty in connection with demand of dowry, this Court is unable to come to the conclusion that the dispute, quarrel, utterance, taunts etc. would amount to instigation with intention that the deceased should commit suicide. would amount to instigation with intention that the deceased should commit suicide. There is also one important circumstance brought in the evidence led by the prosecution that immediately after marriage, the deceased started doubting the character of his wife and he told his mother that the appellant was having extra marital relation. Therefore, vexed in these circumstances, dispute and quarrel between the husband and wife leading to commission of suicide by the husband, it cannot be said to be a case of instigation by the appellant with intention that her husband should commit suicide. In the proved circumstances and the evidence led by the prosecution, it appears to this Court that the deceased was hyper sensitive to things which are quite common to the society, to which he belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide. In the case of Mahendra Singh and another vs. State of M.P. 1995 (Suppl. 3) SCC 713, the allegations leveled were as under :- "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 Supreme Court held that neither of the ingredients of abetment were attracted on such statement of the deceased. In view of the above discussion and consideration, the impugned judgment of conviction and sentence is found unsustainable in law. The appeal is accordingly allowed. The judgment of conviction and sentence is set aside and the appellant is acquitted of the charges of commission of offence under Section 306 of IPC. As the appellant is on bail, the bail bonds stands discharged and she need not surrender. However, as required under Section 437-A of CrPC, the appellant shall furnish a personal bond of Rs. 10,000/- before the Trial Court within two months for her appearance as and when directed by the higher court in proceedings, if any, against this judgment of acquittal. The bond shall remain operative for a period of six months. Appeal Allowed.