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Madhya Pradesh High Court · body

2016 DIGILAW 1095 (MP)

Bana Bai v. State of M. P.

2016-11-30

J.P.GUPTA

body2016
JUDGMENT : J.P. Gupta, J. 1. The appeal has been filed under section 374 (2) of the Code of Criminal Appeal by the appellants challenging the impugned judgment of conviction and order of sentence dated 27.10.2005 passed by the learned Additional Sessions Judge, Burhanpur (Presided by Smt. Premlata Bhavsar) in Sessions Trial No. 221/2004, whereby the appellants have been convicted under Section 306/34 of the IPC and sentenced to undergo RI for 7 years along with fine of Rs. 500/- with default stipulation as mentioned in the impugned judgment. 2. In brief, relevant facts of the case are that, on 12.7.2004 at about 12:30 pm in village Sagarwadi, Police Station Lalbag, District Burhanpur, deceased Bharti Bai and the appellants were gathered for filling water from the hand-pump where a quarrel took place between them, in which, the appellants used some filthy words against the deceased and said that she was a lady of bad character like prostitute and also asked to prove her good character and also provoke her to set ablaze herself. Thereafter, the deceased went to her house and poured kerosene on her and came out on the spot and set ablaze herself. Thereafter, her husband came on spot and tried to save her and took her to the hospital where her dying declaration was recorded by the doctor. Thereafter, the deceased succumbed to the burn injuries. In the police station Lalbag, Burhanpur, a merg no. 26/04 was registered and after enquiry, an FIR at crime no. 192/04 was registered on 30.7.2004. Thereafter, on completion of formalities of investigation, charge sheet was filed against the appellants for the offence under section 306/34 of the IPC. 3. On committal of the case, the learned Sessions Judge framed charge for the offence under section 306/34 of the IPC against the appellants but the appellants/accused abjured their guilt and on examination under section 313 of the Cr.P.C. stated that they have been falsely implicated in the case but no evidence in defence has been adduced. However, the learned trial court by its impugned judgment convicted and sentenced the appellants as mentioned earlier. Against that, this appeal has been filed by them. 4. However, the learned trial court by its impugned judgment convicted and sentenced the appellants as mentioned earlier. Against that, this appeal has been filed by them. 4. On behalf of the appellants it is submitted that the finding of the learned trial court is bad in law, illegal, incorrect and improper as the learned trial court has committed grave error in placing reliance on the testimony of the prosecution witnesses as they were full of contradictions, omissions and improvements and also inconsistencies with the statements of each other. It is further submitted that there is no evidence on record to indicate that any sort of abetment, instigation, goading, encouraging and enticement was done by the appellants/accused towards the deceased so as to take extreme step of committing suicide. Learned trial court has failed to appreciate that to cause to commit suicide by the deceased and abetment to commit suicide are two different things. Hence, the conviction is unsustainable and sentence is also too severe and uncalled for. Therefore, the appellants deserve to be acquitted. 5. Learned PL has opposed the contentions of learned counsel for the appellants and supported the finding of learned trial court and prayed that the appeal be dismissed. 6. In this appeal, it is not disputed that on 12.7.2004 the deceased poured kerosene on herself and set ablaze herself and on account of injuries sustained by her in the incident, she succumbed on 13.7.2004 and this fact has been proved by the husband of the deceased Amar (PW-7); eye witness Gulab Chand (PW-3); Dr. M.P. Garg (PW-11) who treated the deceased and recorded dying declaration; Investigating officer Nirbhay Singh (PW-12) and Dr. Rakesh Chukse (PW-5) who conducted autopsy on the body of the deceased. The statements of the aforesaid witnesses with regard to death of the deceased on account of the burn injuries sustained in the incident by the deceased are reliable and believable and in this appeal, the learned counsel for the appellants has also not challenged their veracity. Hence, it is held that the deceased died on 13.7.2004 on the injuries sustained by her on 12.7.2004 as she set ablaze herself, in other way, she committed suicide by burning herself. 7. Now, the moot question is that whether the deceased committed suicide on account of the instigation given by the appellants or not. Hence, it is held that the deceased died on 13.7.2004 on the injuries sustained by her on 12.7.2004 as she set ablaze herself, in other way, she committed suicide by burning herself. 7. Now, the moot question is that whether the deceased committed suicide on account of the instigation given by the appellants or not. In this regard, on behalf of the prosecution, dying declaration of the deceased (Ex.P/19) has been proved by the statement of the Dr. M.P. Garg (PW-11). He has stated that on 12.7.2004 at 6.40 pm he recorded dying declaration of the deceased Bharti W/o. Amar Choukse, in which, she stated that her neighbor Bana Bai W/o. Sitaram Mahajan and her daughter-in-law, Usha Bai W/o. Gyaneshwar Mahajan used to abuse her everyday and on the relevant day, she was filling water and the aforesaid ladies/appellants said her that she is a lady of bad character (Chhinal) i.e. prostitute of Sagarwadi etc. When she tried to restrict them, they asked her that if she burnt herself they would get peace. Thereafter, she poured kerosene in front of them and warned that if they further abuse her, she would set ablaze herself. When, the appellants asked for matchbox then she set ablaze herself assuming that they would save her. Thereafter, her husband reached on the spot and tried to save her and took her to the hospital and her statement was recorded by Dr. M.P. Garg (PW-11) as Ex.P/19 and took thumb impression of right hand. Apart from it, the deceased's husband Amar has also stated that at the time of incident, he reached the spot and on account of abusing by the appellants, her wife Bharti poured kerosene and set ablaze herself. Other witnesses, Dama (PW-1) and Gulab Chand (PW-3) have also corroborated the aforesaid facts. 8. The aforesaid statements of the witnesses are reliable. There is nothing in the statements of the aforesaid witnesses, on account of which, they may be treated unbelievable or liar. They established the fact that the appellants/accused persons abused the deceased and levelling imputation about bad character like prostitute and also asked to prove her chastity and on account of aforesaid act of the appellants/accused, the deceased committed suicide. 9. They established the fact that the appellants/accused persons abused the deceased and levelling imputation about bad character like prostitute and also asked to prove her chastity and on account of aforesaid act of the appellants/accused, the deceased committed suicide. 9. Learned counsel for the appellants has submitted that if the aforesaid facts are found to be proved in the case, it cannot be held that the appellants instigated the deceased to commit suicide. It has to be seen that what uttered by the appellants was enough to instigate the deceased to commit suicide. These words are casual in nature which are often employed in the heat of moment between quarrelling women in the slum area. Nothing serious is expected to follow thereafter. The said act does not reflect the requisite mens rea on the assumption that these words would be carried out in all events. Learned counsel for the appellants has placed reliance on the judgment of the Apex Court in the case of Sanju @ Sanjay Singh Sengar vs. State of Madhya Pradesh, AIR 2002 SC 1998 . Relevant paras are mentioned as under:- 7. Section 107 I.P.C defines abetment to mean that a person abets the doing of a thing if he firstly, 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. 8. Before we advert further, at this stage we may notice a few decisions of this Court, relevant for the purpose of disposal of this case. 9. In Swamy Prahaladdas vs. State of M.P. and Another, 1995 Supp. (3) SCC 438, the appellant was charged for an offence under Section 306 I.P.C. on the ground that the appellant during the quarrel is said to have remarked the deceased to go and die. This Court was of the view that mere words uttered by the accused to the deceased to go and die were not even prima facie enough to instigate the deceased to commit suicide. 10. In Mahendra Singh vs. State of M.P. 1995 Supp. This Court was of the view that mere words uttered by the accused to the deceased to go and die were not even prima facie enough to instigate the deceased to commit suicide. 10. In Mahendra Singh vs. State of M.P. 1995 Supp. (3) SCC 731, the appellant was charged for an offence under Section 306 I.P.C basically based upon the dying declaration of the deceased, which reads 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." 11. This Court, considering the definition of abetment under Section 107 I.P.C. found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased. 12. In Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618 , this Court while considering the charge framed and the conviction for an offence under Section 306 I.P.C. on the basis of dying declaration recorded by an Executive Magistrate , in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said: "A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. 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 charged for abetting the offence of suicide should be found guilty." 13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased to go and die. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him to go and die. Even if we accept the prosecution story that the appellant did tell the deceased to go and die, that itself does not constitute the ingredient of instigation. The word instigate denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. 10. In view of the aforesaid verdict of the Apex court, in the present case, it cannot be deemed that the appellants had mens rea to instigate the deceased to commit suicide. The whole act of the appellants was the part of the routine quarrel took place in the slum area at the spot due to filling water. It appears that it is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea as it is in a fit to anger or emotional. Undoubtedly, the cause of death is the quarrel took place with the appellants and the deceased and ill-behaviour of the appellants but similarly on these grounds, they cannot be held liable for instigating to commit suicide by the deceased. 11. Undoubtedly, the cause of death is the quarrel took place with the appellants and the deceased and ill-behaviour of the appellants but similarly on these grounds, they cannot be held liable for instigating to commit suicide by the deceased. 11. In the result, the findings of the learned trial court that the prosecution has succeeded to prove the charge, are erroneous. Therefore, the prosecution has failed to prove the charge under section 306/34 of the IPC. Hence, the impugned judgment of conviction and sentence is liable to be set-aside. 12. Consequently, the appeal is allowed and the impugned judgment dated 27.10.2005 passed in ST No. 221/04 is hereby set-aside. The appellants are acquitted from the charge levelled against them. The appellants are on bail, their bail bonds stand discharged.