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2018 DIGILAW 1913 (RAJ)

Murti Devi v. State of Rajasthan

2018-09-12

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. - Admit. 2. Record is received. 3. With consent of the parties, matter is taken up for final disposal. 4. Appellant has preferred this appeal aggrieved by judgment and order dated 07.07.2018, passed by Additional Sessions Judge No.2, Alwar, whereby appellant has been convicted for offence under Section 306 of IPC and has been sentenced to undergo five years rigorous imprisonment and a fine of Rs. 5,000/-, has been imposed on non payment of fine petitioner is to further undergo two months simple imprisonment. 5. In brief, the factual matrix of the case are that on 20.08.2017, deceased gave her parcha bayan Ex.P-18 to the effect that at 6:00 am in the morning, deceased went to the mines to give tea to her husband. A day prior to the incident brother-inlaw had a fight with her sister who also happens to be her sister in law, her brother-in-law kicked her husband. In the morning, her mother-in-law abused her, slapped her and told her to leave the house, on which she took petrol from motorcycle of her husband and set herself ablaze. On the said parcha bayan, police registered a case against the appellant and after due investigation submitted charge-sheet against the appellant. 6. Trial Court after hearing the charge arguments framed charges under Section 306 IPC against the appellant. Appellant denied the charges and sought trial, whereupon as many as twenty two witnesses were examined on behalf of the prosecution and thirty documents were exhibited. Appellant was examined under Section 313 Cr.P.C., 1973 Trial Court after hearing the final arguments convicted the appellant under Section 306 of IPC and sentenced her as herein above mentioned, aggrieved by which the present appeal has been preferred. 7. It is contended by counsel for the appellant that offence under Section 306 IPC is not made out as there is no evidence that the appellant instigated the offence. It is also contended that from parcha bayan Ex.P-18 and dying declaration Ex.P-19, it is revealed that appellant-mother-in-law was staying separately. It is contended that all the witnesses produced on behalf of the prosecution including sister, uncle and aunt of the deceased have turned hostile. Court below has convicted the appellant only on the basis of dying declaration. It is also contended that from parcha bayan Ex.P-18 and dying declaration Ex.P-19, it is revealed that appellant-mother-in-law was staying separately. It is contended that all the witnesses produced on behalf of the prosecution including sister, uncle and aunt of the deceased have turned hostile. Court below has convicted the appellant only on the basis of dying declaration. It is also contended that Court below has overlooked the statement of PW-2 Manju, sister of the deceased who has also stated that her sister got angry on petty matters. She has also stated that she along with her husband is staying separately from the deceased and her husband and that her mother-in-law is also staying separately. Court has also ignored the statement of PW-16-Lalita, aunt of the deceased who has also stated that her niece remained mentally upset and would become agitated without any reason on the petty and small matters. She has also stated that she always remained very angry. 8. Counsel for the appellant has placed reliance on " M Mohan vs. State Tr. Dy. Supdt. Of Police ", 2011 (3) SCC 626 and " Heera Lal and Anr. vs. State of Rajasthan", 2017 (2) R.C.R. (Criminal) 839 . 9. Learned Public Prosecutor has opposed the appeal. His contention is that a dying person never lies. There was no reason why the deceased would implicate her mother-inlaw. It is also contended that the deceased in her dying declaration made before the Magistrate has stated that appellant, mother-in-law quarreled with the deceased and told her to leave the house. She has also stated that the mother-in-law was always quarreling with the deceased and she slapped the deceased in the morning due to which the deceased poured petrol upon her and set herself on fire. 10. I have considered the contentions. 11. All material prosecution witnesses in this case have turned hostile including sister, uncle and aunt of the deceased. Sister PW- 2 who happens to be material witness in this case has stated that her sister got angry on petty matters. She has also stated that no dispute took place between her mother-in-law and her sister and that the deceased under pressure of her uncle has given statement against her mother-in-law. PW-16-Lalita, aunt of deceased has also deposed that her niece was mentally upset and would become agitated for no reason. She has also stated that no dispute took place between her mother-in-law and her sister and that the deceased under pressure of her uncle has given statement against her mother-in-law. PW-16-Lalita, aunt of deceased has also deposed that her niece was mentally upset and would become agitated for no reason. If we go by the dying declaration of the deceased and her parcha bayan, it is clear that the deceased took the extreme step only on account of the appellant slapping her and asking her to leave the house. If the dying declaration is considered to be a gospel truth then also it establishes the version of PW-2 and PW-16 that the deceased got annoyed on petty matters and would become agitated without any reason. 12. It is evident from the evidence that the appellant was staying separately from the deceased and her husband. A dispute took place between two brothers a day prior to the incident in which the deceased and her husband participated, as a result of which the appellant got annoyed with the deceased and slapped her. 13. For the offence to fall under Section 306 I.P.C., abetment has to be established. Abetment is the mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid no offence under Section 306 IPC, would be made out. There has to be a clear mensrea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide and this act must have been intended to push the deceased into such a position that she committed suicide. 14. In the present case in hand, even considering the dying declaration as gospel truth the only allegation is that there was dispute between the two brothers a day prior to the incident, mother-in-law slapped the deceased and told her to leave the house, this cannot be considered to be an act which would fall within the purview of aiding or instigating the deceased to commit suicide. 15. In "M Mohan vs. State Tr. Dy. Supdt. Of Police ", (supra), the victim who was hyper sensitive committed suicide, Court held that offence under Section 306 IPC is not be made out. 15. In "M Mohan vs. State Tr. Dy. Supdt. Of Police ", (supra), the victim who was hyper sensitive committed suicide, Court held that offence under Section 306 IPC is not be made out. In the present case in hand sister and aunt of the deceased have deposed that the deceased was hyper-sensitive. The deceased taking extreme step on a petty matter which took place between mother-in-law and the deceased would go to show that the deceased infact was hyper-sensitive, hence applying "M Mohan vs. State Tr. Dy. Supdt. Of Police ", (supra), offence under Section 306 IPC would not be made out against mother-in-law. 16. In "Heera Lal and Anr. vs. State of Rajasthan", (supra), the deceased was residing separately from her in laws. Her in laws visited her residence and wanted to stay with her. Deceased objected to their staying with her but they insisted on staying in her house on which she got angry and set herself on fire by pouring petrol. The Apex Court held that offence under Section 306 IPC in the facts of the case is not made out. 17. The facts of this case are almost akin from the evidence adduced, no aiding or instigation is made out hence, offence under Section 306 IPC is not made out. The appeal therefore, deserves to be allowed. 18. The criminal appeal is allowed. Judgment and order passed by the Court below is quashed ans set aside. Appellant is acquitted of the charges under Section 306 IPC. 19. Appellant is directed to furnish personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.