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2014 DIGILAW 402 (CHH)

Kodu Ram v. State of Madhya Pradesh

2014-11-18

GOUTAM BHADURI

body2014
JUDGMENT Goutam Bhaduri, J. 1. This is an appeal against the judgment dated 04.07.1998 passed by the First Additional Sessions Judge, Raipur in Sessions Trial No. 439 of 1997, whereby the appellant has been convicted under section 306 of the Indian Penal Code (for short 'the IPC) and has been sentenced to undergo seven years rigorous imprisonment with fine of Rs. 2000/- and in default of payment of fine, further six months simple imprisonment has been awarded. 2. The brief facts which are involved in this case as stated by the prosecution were that the appellant was the husband of the deceased Kalabai. The deceased Kalabai was married to the appellant 20-22 years back and out of their wedlock, they had one daughter and two sons. The daughter was also married. It was the case of the prosecution that one or two years before the death of the deceased, she was subjected to both physical and mental torture and even the children of the deceased were segregated from her and were residing at village Rawan with the appellant, thereby mental agony and torture was caused to her. It was the case of the prosecution that on the date of the incident, the appellant had gone to his house and had a quarrel with the deceased and subsequently, on the next date, when Kalabai did not woke ('wake' should be) up, the doors of house were broke open by the villagers wherein it was seen that Kalabai was dead because of burn injuries. The matter was reported by (PW-3) to the police and a morgue was registered. Thereafter, investigation was carried out and it was the case of the prosecution that because of the torture and abetment, Kalabai, wife of the appellant committed suicide by pouring kerosene on herself. 3. On the basis of the report, a morgue was registered on 12.08.1997 vide Exhibit P/1 and panchnama of the dead body was prepared vide Exhibit P/8. Thereafter, the other articles were seized from the scene of incident. Near the dead body, kerosene was also found and even from the clothes of the deceased, strong smell of kerosene was present. After taking away the dead body, it was subjected to postmortem and on examination of the body, in the postmortem report (Ex. Thereafter, the other articles were seized from the scene of incident. Near the dead body, kerosene was also found and even from the clothes of the deceased, strong smell of kerosene was present. After taking away the dead body, it was subjected to postmortem and on examination of the body, in the postmortem report (Ex. P/15), it was revealed that the deceased had 80% burn injuries and the death was as a result of shock due to extensive burning. Subsequently, on the basis of statement of witnesses, charge sheet was filed before the court below under section 306 IPC. 4. During the course of trial, the prosecution has recorded the statements of Tejram Verma (PW-1) and Kaliram (PW-2), brothers of the deceased, Premlal Yadu (PW-3), Sarpanch of the village, Mongra Bai (PW-4) and Basanta Bai (PW-5), neighbours of the deceased, Meena (PW-6), who is also in relation to the deceased, Santosh Kumar (PW-7), Radha Bai (PW-8), Pyarelal (PW-9), Teejuram Verma (PW-10), Babulal (PW-11), Pawan Kumar (PW-12), Ganesh Ram (PW-13), Dr. Koshlesh Paikra (PW-14), Dr. D.R. Verma (PW-15), Chaitram Sahu (PW-16), Baleshwar Ram (PW-17), Patiram (PW-18), B.L. Sahariya (PW-19) and Vishwas Chandrakar (PW-20). 5. The learned court below, after evaluating the evidence of the witnesses and the materials placed on record, predominantly on the basis of the evidence of Tejram Verma (PW-1), Kaliram (PW-2), Basanta Bai (PW-5), Meena (PW-6), and Radha Bai (PW-8), by its order dated 04.07.1998 has come to the conclusion that the appellant has committed abetment to commit suicide by the deceased Kalabai and thereby convicted the appellant under section 306 IPC and sentenced him as detailed in the first paragraph of this judgment. 6. Learned counsel for the appellant would submit that in this case, there is no evidence existing with regard to abetment. He would submit that in order to hold a person guilty of abetment, there has to be specific assertion and evidence should be on record that abetment was caused. He would further submit that even if some quarrel had taken place between the appellant and the deceased, it cannot be said that the commission of suicide by the deceased was as a result of the abetment. He would therefore state that no sufficient reason was existing to convict the appellant and prayed for his acquittal. 7. He would further submit that even if some quarrel had taken place between the appellant and the deceased, it cannot be said that the commission of suicide by the deceased was as a result of the abetment. He would therefore state that no sufficient reason was existing to convict the appellant and prayed for his acquittal. 7. Per contra, learned State counsel would submit that there is sufficient evidence present in this case to hold the appellant guilty of the aforesaid offence. He would further state that the order passed by the court below is well merited and it does not call for any interference. 8. I have heard the learned counsel for the parties at length and perused the evidence and material placed on record. 9. The prosecution, in this case has examined Tejram Verma (PW-1) who is the brother of the deceased Kalabai. In his statement, he has stated that in the month of November, 1997, he had met her ('his' should be) sister in some marriage wherein the deceased had complained about the appellant that he used to assault her and the appellant had stated that he would perform a second marriage. It was further stated by this witness that the relationship between the appellant and the deceased were not cordial for the last two years, therefore, he advised the appellant not to quarrel with each other. He also stated that he had heard about the fact that the deceased was subjected to assault but the deceased has not stated anything to her ('him' should be). This witness has further stated that the appellant used to reside at village Rawan where he got a job in Grasim Cements whereas the deceased was residing at village Tulsi. The witness has further stated that subsequently, her2 sister was left alone at village Tulsi and the children of the deceased were also taken to village Rawari by the appellant, where he was working. Further, in her statement, the witness stated that when he reached after hearing the news that her 2 sister has committed suicide, he saw that the appellant was absolutely normal and it could not be ascertained on seeing the appellant that his wife had died. Therefore, that raised a presumption of doubt that it was not an accidental death, but the deceased was burnt by someone. 10. Therefore, that raised a presumption of doubt that it was not an accidental death, but the deceased was burnt by someone. 10. The other witness Kaliram (PW-2) who is also the brother of the deceased, has stated that it was disclosed to him by the deceased herself that the appellant was torturing her and was talking about performing of a second marriage. He also stated that the appellant used to stay at village Rawan where he was working in Grasim Cement and also kept his one son with him. 11. The prosecution witness Pyarelal (PW-3) has stated that to his knowledge, the appellant and the deceased had good relation. One of the neighbour namely Basanta Bai (PW-5) has stated that being the neighbour of the deceased, she had the knowledge and had described an incident. It was stated that the accused appellant had assaulted the deceased which was disclosed to her by the deceased herself. This witness has further stated that the deceased used to tell her that she was living in fear and she could be murdered by her husband, the appellant. 12. Meena (PW-6) has stated that the relationship between the deceased and the appellant were not very cordial. She stated that the appellant was related to her as her in-law. She also narrated an incident and stated that the appellant, at one time, had assaulted the deceased which was disclosed to her by the deceased herself and because of such beating, the deceased had became ('become' should be) unconscious. 13. Santosh Kumar (PW-7) has stated that the accused appellant had started working at Grasim Cement, in village Rawan and before coming to Rawan, the relationship between the accused and the deceased was cordial. Pyarelal (PW-9) has stated that before the date of incident, the accused appellant had gone to Raipur. This witness had accompanied the appellant and left him at the station. So the presence of the appellant at the time of incident was negated. 14. Dr. Koshlesh Paikra (PW-14) in his statement states that he had treated the deceased one year before as she had some injuries because of breaking of the bangle on her wrist but has not stated categorically how it happened. The other witness namely Dr. D.R. Verma (PW-15) had conducted postmortem of the dead body of the deceased. In the postmortem report (Ex. The other witness namely Dr. D.R. Verma (PW-15) had conducted postmortem of the dead body of the deceased. In the postmortem report (Ex. P-15), this witness has stated that the reason of death was shock due to extensive burning. He has further opined that the mode of death could be suicidal or accidental and it was the matter of investigation. 15. In this case, the reason of death of the deceased is not in dispute that the deceased died out of burn injuries. Since the conviction of the appellant is under section 306 IPC, the evidences have to ('be' should be) examined in the light of the provisions and ingredients of section 306 IPC. 16. The Hon'ble Supreme Court, in Kishangiri Mangalgiri Goswami v. State of Gujarat AIR 2009 SC 1808 has described the abetment of suicide. It interpreted that abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. The Hon'ble Supreme Court, while interpreting the provisions of section 306 IPC has reiterated the following dictum as under: "8. Section 306 IPC deals with abetment of suicide. The said provisions reads as follows: "306. ABETMENT OF SUICIDE. 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 10 years, and shall also be liable to fine." 9. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In case 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 it required before a person can be said to be abetting the commission of offence under Section 306 of IPC. 10. In State of West Bengal v. Orilal Jaiswal ( AIR 1994 SC 1418 ) this Court has observed that the courts should be extremely careful in assessing the fact 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 her life by committing suicide. If it transpires to the Court that a victim 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 charge of abetting the offence of suicide should be found guilty." 17. Even otherwise, in order to convict a person for abetment of suicide, mere fact that the deceased was treated with cruelty by the accused/husband may not be sufficient to prove abetment by the accused in commission of the suicide. In order to amount to abetment, there must be mens rea or community of intention. Without knowledge or intention there can be no abetment and the knowledge and intention must relate to the crime and the assistance must be something proximate and something more than a mere passive acquiescence. The mere fact even if it is admitted that the deceased wife was treated with cruelty by the husband or her in-laws may not be sufficient to prove the fact that the accused abetted commission of suicide by the deceased. There has to be some proof of any incitement to the commission of the suicide or conspiracy or act facilitating the commission of suicide. It cannot be stated that merely the deceased 'accused'/'husband' should be was treating the deceased with cruelty, therefore abetment was present. 18. In the light of the aforesaid principles, if the evidence of the witnesses namely Tejram Verma (PW-1), Kaliram (PW-2), Basanta Bai (PW-5), Meena (PW-6) and Santosh Kumar (PW-7), are examined, no incriminating facts has come on record which takes the case within the sweep of section 306 IPC. All the prosecution witnesses have tried to state that since there was a dispute between the appellant and the deceased and off late the relations were not cordial for such reason the deceased committed suicide. But the very fact that for the alleged suicide the appellant has abetted or instigated the deceased for committing suicide, appears to be absent. Some of the witnesses have stated that the relationship between the appellant and the deceased was not cordial. But the very fact that for the alleged suicide the appellant has abetted or instigated the deceased for committing suicide, appears to be absent. Some of the witnesses have stated that the relationship between the appellant and the deceased was not cordial. but by such statement, it cannot be substantially concluded that the appellant had caused the abetment to the deceased for committing suicide. 19. The word 'instigate' literally means to goad or urge forward or to provoke, incite, urge or encourage to do an act. Therefore, considering the evidence which is placed on record in this case, I am of the considered opinion that the order of the court below wherein it has been held that the ingredients of section 306 IPC appears to be present, is contradictory and without any evidence on record to convict the appellant under section 306 IPC. 20. Therefore, after evaluating the entire evidence and the material placed on record, I am of the considered opinion that the judgment and order of the court below cannot be sustained. 21. In view of the foregoing discussion, the judgment and order of conviction passed by the learned Court below is set aside. Accordingly, the appeal is allowed. 22. The appellant is on bail. His bail bonds are not discharged at this stage and it shall remain operative for a period of six months from today in view of section 437-A of the CrPC. Appeal Allowed.