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2019 DIGILAW 1561 (JHR)

Shambhu Pradhan v. State Of Jharkhand

2019-09-06

DEEPAK ROSHAN

body2019
JUDGMENT Deepak Roshan, J. - The instant application is directed against the judgment dated 6/2/14, passed by court of Principal Sessions Judge, Jamshedpur, in Criminal Appeal No.104 of 2012, whereby the learned appellate court, affirmed the judgment of conviction and order of sentence, both dated 30.04.2012, passed by 1st Assistant Sessions Judge, Jamshedpur, in S.T. Case No. 207 of 2008, whereby the learned trial court convicted and sentenced the petitioner to undergo simple imprisonment for 5 years, under Section 306 of IPC, and further sentenced to undergo imprisonment for 2 years, for the offence under Section 498 A of IPC and further directed that both the sentences were run concurrently and the period undergone in course of trial shall set off. 2. The prosecution case, in short, is that one Dhaneswari Devi made the statement before the police at about 8:00 p.m. on 30.12.2007, alleging that her daughter namely, Pratima Kumari (victim) had been hanged to death by her husband namely, Shambhu Pradhan. She further alleged that her daughter was well educated and was having the technical degree of BCA. She further stated that the marriage of her daughter was solemnized with the petitioner in a temple without her consent. It has also been alleged that her daughter took Rs.15,000/- from her to pay the advance rent of the rented house. It has also been stated that the husband of the informant, i.e. the father of the victim was an employee of cable company, which was closed since last 8 years, but he took P.F loan amounting to Rs. 1,00,000/- and the same was paid to the petitioner for running a coaching centre. It has also been stated in the fardbeyan that her daughter was also doing tuition and she was meeting the family expenses out of her own income and Shambhu Pradhan was not paying any amount to her daughter towards house expenses. She further alleged that after some time of marriage, the petitioner began to torture her daughter and compelled her for demanding more money from her parents. It has lastly been alleged that her daughter was physically and mentally tortured and whenever she conceived, she was forced to get aborted. She further stated in the fardbeyan that the petitioner was doing teaching job in River View School at Kadma and he was having love affair with a school student. It has lastly been alleged that her daughter was physically and mentally tortured and whenever she conceived, she was forced to get aborted. She further stated in the fardbeyan that the petitioner was doing teaching job in River View School at Kadma and he was having love affair with a school student. She has further stated in the fardbeyan that the mother-in-law of the victim never accepted her daughter-in-law after marriage. 3. After institution of FIR, the investigation started and charge-sheet was submitted against the petitioner, under Section 306/498A of the IPC. The learned CJM took cognizance and charges were framed and the petitioner pleaded not guilty and sent up for trial. 4. Altogether 11 witnesses were examined on behalf of the prosecution. P.W. 1-Ganga Prasad Sahu, is the uncle of the deceased, who has stated in his examination-in-chief that the deceased had a love affair with the petitioner and both got married in the temple without the consent of their parents. During his cross-examination, this witness stated that all fact of demand of dowry was never made before him, rather the same was narrated to him by the informant. P.W. 2- Siyaram Sahu is the father of the deceased. He has stated in examination-in-chief that his daughter was suffering from illness and, hence he had brought her to his home for getting her treated. During cross-examination, this witness stated that the petitioner use to teach her daughter as tutor and had fallen in love with her. P.W.3-Sevakraj Sahu is the brother of the deceased. In his crossexamination, he has stated that he identified the suicidal note, personal diary of his sister. He has also admitted the fact that the petitioner was in visiting terms with them before marriage and he has also deposed that he had no knowledge of any kind of illicit relation with any other student. P.W. 5-Janki Devi, who is landlady of the informant, said about the fact of marriage and further stated that she did not know anything beyond that. Apart from that, P.W.6- Rajesh Kumar @ Anjan Kumar Sharma who is the resident of Wasim Complex has deposed that the victim and the petitioner were having good relationship at their house. P.W. 7 has been declared hostile. P.W. 8 has also stated that he never heard any dispute between the petitioner and the victim. P.W. 9 is the doctor. Apart from that, P.W.6- Rajesh Kumar @ Anjan Kumar Sharma who is the resident of Wasim Complex has deposed that the victim and the petitioner were having good relationship at their house. P.W. 7 has been declared hostile. P.W. 8 has also stated that he never heard any dispute between the petitioner and the victim. P.W. 9 is the doctor. The investigating officer has examined himself as P.W. 10 and has stated that during course of investigation, he seized the personal diary and suicide note dated 29.12.2007. P.W. 11 is the Jamadar, helping the investigating officer in investigation. The prosecution also exhibited certain documents, i.e. suicide note of the deceased, which has been exhibited as Exhibit-1, Exhibit-2 is the seizure list. Exhibit (Article)-1 is personal diary of the deceased. Exhibit-3 is a written report. Exhibit-4 is the postmortem report. Exhibit-5 is the warrant of arrest. Exhibit-6 is the formal F.I.R of the witness and also Exhibit-7 is the inquest Report. 5. On the basis of evidences, both oral and documentary, the learned trial court came to the conclusion that the prosecution has been able to prove and establish the charges, under Section 498 A and 306 IPC against the accused and accordingly, convicted him for the same and sentenced him as stated hereinabove. 6. Being aggrieved, the petitioner challenged the order passed by the learned trial court before the court of Principal Sessions Judge, East Singhbhum at Jamshedpur, who fully concurred with the judgment of conviction and order of sentence and dismissed the appeal, filed by the petitioner. 7. The learned counsel for the petitioner vehemently argued that the statements of the prosecution witnesses are contradictory among themselves. The prosecution has failed to point out any misbehavior or torture on part of the accused petitioner. As a matter of fact, no evidence has been proved to show any instigation on part of the petitioner. No evidence has been proved to show bad attitude of the petitioner. He further submitted that even the suicide note, clearly transpires that the petitioner is not involved in abetment. He further argued that the allegation of abortion of the victim girl has not been proved by any chit of paper. The allegation of extra-marital affair has also not been proved. All the independent witnesses have clearly stated that their relations were not bad. He further argued that the allegation of abortion of the victim girl has not been proved by any chit of paper. The allegation of extra-marital affair has also not been proved. All the independent witnesses have clearly stated that their relations were not bad. He further submitted that the payment of Rs.1,00,000/- was evidently done ex-gratia for running the coaching institute, which was to be opened by the petitioner and the victim girl-lady. As a matter of fact, there is no proof of any demand of dowry. Last but not the least, there was no mark of violence found on the body of the deceased. He has further submitted that as a matter of fact, the victim was very sentimental girl and due to her mental status, the petitioner cannot be found guilty and be convicted under Section 306 of IPC. He further submitted that it is an admitted fact that the marriage of the petitioner with the deceased girl was without the consent of the informant or his husband and that is the reason that after the death of the deceased, the petitioner is being falsely implicated in this case. Learned counsel for the petitioner has further submitted that extra-marital affair, if any, cannot be the ground of conviction, under Section 498 A IPC. He relied upon the judgment passed in Ghusabhai Raisangbhai Chorasiya Vs. State of Gujarat, (2015) 11 SCC 753 and also in case of Dipendra Mishra Vs. State of Rajasthan,2008 SCCOnlineRaj 642 . 8. Per contra, the learned A.P.P. for the state submitted that there is no infirmity in the impugned order and the petitioner has rightly been convicted by the learned trial court. Since there is a concurrent finding, as such, this Court should not interfere with the finding and no relief should be granted to the petitioner. 9. After hearing both the parties and perusing the impugned orders including the lower court record, I am tempted to look into the evidences to decide this case. I find that the learned trial court has based its entire judgment on the basis of a personal diary of the victim which is Exhibit (article) -1 and came to the conclusion that the petitioner is guilty of charges under Section 498 A and 306 of IPC. I find that the learned trial court has based its entire judgment on the basis of a personal diary of the victim which is Exhibit (article) -1 and came to the conclusion that the petitioner is guilty of charges under Section 498 A and 306 of IPC. Interestingly, the learned trial court himself observed in para-11 of the judgment as " .the victim was deeply involved, attached sensitive with the accused, which forced her to take decision of marriage with the accused ignoring consent of parents . The learned trial court further observed in its order that the prosecution story about illicit/love affairs of the accused with a school girl, though remain uncorroborated, but sufficient light has been thrown by Exhibit (article)-1, wherein victim has blamed the mother of the accused as well as the accused that he was the victim and he was handsome and young and did not care the sentiment of his wife. As a matter of fact, learned trial court himself has observed in the same paragraph that " the prosecution''s story about demand by the accused through the victim has not been refuted in clear words, by way of suggestion, rather a counter allegation has been levelled, vide suggestion that it was mother and brother of the victim, who were frequently demanded money to meet their own family expenses. From the personal diary of the victim, no such fact emerges out that she was being repeatedly demanded by her mother and brother, rather it has come in clear words that she had no money in her purse and she was fully depending on her husband, for which, she was thinking to do some job to stand on her leg. It has come in Exhibit (article)-1 that she was feeling herself as an unmarried girl and she was living with the accused only to maintain the relationship, but as an unknown person ..". In paragraph-12 of its judgment, the trial court has observed that " .. it has also come in evidence that in personal diary written on 29th December,2007, she has expressed her feelings speaking nature, behavior, character, mode of life of her husband as well as personal thoughts/philosophy which prompted her to end her life, lastly, prompted to make a note that her husband is not reasponsible for her death. it has also come in evidence that in personal diary written on 29th December,2007, she has expressed her feelings speaking nature, behavior, character, mode of life of her husband as well as personal thoughts/philosophy which prompted her to end her life, lastly, prompted to make a note that her husband is not reasponsible for her death. Facts discussed, examined and considered speaks the circumstance prompting to commit suicide speaks so many things and its cause. The feeling of victim noted down in her personal diary speaking to maintain dignity in a society believing herself to be of pious genes speaks the circumstances to forgive her husband, commission of suicide and this circumstance might have prompted her to make a note that her husband is not responsible for her death. The concluding line of suicidal note goes to fortify this observation as it is mentioned that after her death someone would be happy and their life would be joyful. It does not indicate about the parents and brother of the deceased, rather it indicates towards the expected life of husband of deceased .". 10. Based upon the aforesaid observation and conjecture, the learned trial court came to a specific finding that the petitioner is guilty for the offence under Sections 306 and 498A IPC. 11. By critically examining the entire document as well as the personal diary, which has been quoted by the learned trial court also it appears that the victim girl was very much sensitive. Further it also transpires that in the entire records or the suicidal note, there is no whisper of physical assault. The learned trial court completely based its judgment on the basis of personal diary of the victim and passed the order of conviction on surmises and conjectures. So far as ocular evidence is concerned, the uncle of the deceased categorically stated that the fact of demand of dowry was never made before him and he was actually informed about this by the informant. It is clear from the evidences as the father of the deceased has conceded in his cross-examination that there was a good relationship between the deceased and the petitioner. Even, the brother of the deceased has stated that the petitioner was in visiting terms before the marriage. The independent witness, P.W.-5 who is the landlady of the informant said about the fact of marriage, but never said anything against the petitioner. Even, the brother of the deceased has stated that the petitioner was in visiting terms before the marriage. The independent witness, P.W.-5 who is the landlady of the informant said about the fact of marriage, but never said anything against the petitioner. Even co-resident of the victim of the petitioner has categorically stated in his deposition that the deceased and accused lived together normally and they were having a good relation. Even assuming the fact of extra-marital affair which could have been the reason for suicide then also the same cannot be attracted the charges, under Sections 498 A and 306 IPC. In this regard, the Hon''ble Apex Court in the case of Ghusabhai Raisangbhai Chorasiya Vs. State of Gujarat, (2015) 11 SCC 753 has held at paragraph nos. 18,19,20 and 21, which is as under: "18. From the aforesaid authorities it is quite clear that the first limb of Section 498-A IPC, which refers to cruelty, has nothing to do with demand of dowry. In the present case, in fact, there is no demand of dowry. If the evidence is appropriately appreciated, the deceased was pained and disturbed as the husband was having an illicit affair with Appellant 4. Whether such a situation would amount to cruelty under the first limb of Section 498-A IPC is to be seen. 19. A two-Judge Bench of this Court in Pinakin Mahipatray Rawal v. State of Gujarat[ Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 : (2013) 4 SCC (Civ) 616 : (2013) 3 SCC (Cri) 801] , while dealing with extra-marital relationship, has held thus: (SCC pp. 56-57, paras 19 & 23) "19. ''Marital relationship'' means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on. Extramarital relationship as such is not defined in the Penal Code. Though, according to the prosecution in this case, it was that relationship which ultimately led to mental harassment and cruelty within the Explanation to Section 498-A and that A-1 had abetted the wife to commit suicide. 23. Extramarital relationship as such is not defined in the Penal Code. Though, according to the prosecution in this case, it was that relationship which ultimately led to mental harassment and cruelty within the Explanation to Section 498-A and that A-1 had abetted the wife to commit suicide. 23. We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to ''cruelty'', but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498- A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one''s life. We, on facts, found that the alleged extramarital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide." The Court further proceeded to state: (Pinakin Mahipatray Rawal case [ Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 : (2013) 4 SCC (Civ) 616 : (2013) 3 SCC (Cri) 801] , SCC p. 58, para 27) "27. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extramarital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide." 20. After holding as aforesaid, the Court found on facts and especially referring to suicide note that one can infer that the deceased was so possessive of her husband, and was always under an emotional stress that she might lose her husband and that apart she had exonerated the husband and accordingly it would not come within the scope and ambit of Section 306 IPC. 21. Coming to the facts of the present case, it is seen that the factum of divorce has not been believed by the learned trial Judge and the High Court. But the fact remains is that the husband and the wife had started living separately in the same house and the deceased had told her sister that there was severance of status and she would be going to her parental home after the "Holi" festival. True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal [ Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48 : (2013) 4 SCC (Civ) 616 : (2013) 3 SCC (Cri) 801] , but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498-A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted." 12. After perusing the entire record and analyzing the situation as well as documents including the personal diary, simply suggests that the deceased namely, Pratima Kumari was mentally very upset and depressed. From the recital of the personal diary, which has been elaborately dealt by the learned trial court, it clearly transpires that she was highly sensitive and it appears that it is not the torture or physical assault, but it was her own sentiment, which led her to commit suicide. Even the appellate court in paragraph-9 of its order has held that the suicidal note of the deceased which has been marked as Exhibit-1 itself shows that she was very depressed and ultimately she committed suicide. 13. In similar circumstances, the High Court of Rajasthan at Jaipur has held in the case of Dipendra Mishra Vs. State of Rajasthan,2008 SCCOnlineRaj 642 at paragraph nos. 8,9 and 16, which is quoted hereinbelow: "8. Section 107 (supra) defines abetment of an offence. Abetment is a separate and distinct offence described as such in the penal Code. A person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) instigates that one or more other person in any conspiracy for doing that thing; or (3) intentionally aids, by act or illegal commission by doing that thing. Any of these three ingredients are essential to complete the abetment as a crime. The word ''instigate'' in law means ''to promote'', ''to urge on'' or ''to bring about'' any pursuation to do any thing. Abetment may be by instigation, conspiracy or intentional aid as provided in one of three clauses of Section 107. 9. Any of these three ingredients are essential to complete the abetment as a crime. The word ''instigate'' in law means ''to promote'', ''to urge on'' or ''to bring about'' any pursuation to do any thing. Abetment may be by instigation, conspiracy or intentional aid as provided in one of three clauses of Section 107. 9. It would be thus evident from the scheme of the penal policy of the legislature reflected in the aforesaid provisions that a person who abates the commission of an offence or of an act which would be an offence if committed by a person capable by law of committing of an offence with the same intention only as that of the abator, such person, if the alleged abatement to commit offence happens to be suicide, according to Section 306 of the IPC, shall be punished with imprisonment for a term which shall extend to ten years and shall also be liable to fine. Though ordinarily the commission of offence as well as the abatement to commit such offence are both made punishable in the law. This is so because the liability of an abator of the crime is coextensive with that of the principle of offender. Suicide however, contemplates a situation where the person committing suicide is no longer available for being punished and therefore, not amenable to the jurisdiction of the Court. Like any other offence, the element of intention or knowledge or at least one of them, on the part of the person alleged to have committed the offence of abatement, is required to be proved. In the facts of the present case, even if the circumstances, as are alleged on the basis of evidence, are assumed to be proved and taken cumulatively, they do not indicate any such mens rea on the part of the accused-respondent. 16. Notwithstanding the fact that the accused-respondent threatened the deceased two days before the date on which he actually committed suicide, the ingredients of abatement which may have made him to commit suicide, are not available on record. The evidence that has come on record simply suggests that the deceased Banwarilal Mishra was not having a healthy mental state. This is admitted by his brother-in-law PW-5 Amarchand. In fact, PW. The evidence that has come on record simply suggests that the deceased Banwarilal Mishra was not having a healthy mental state. This is admitted by his brother-in-law PW-5 Amarchand. In fact, PW. 7 V.K. Devdas Menon, a neighbor of the deceased while denying the suggestion that the deceased Banwarilal Mishra was a mad person, clearly stated that he was a patient of depression and he was undergoing severe state of depression for last 5-6 months and this got aggravated when his daughter received notice for divorce. Some persons may withstand enormous amount of pressure brought upon them by circumstances, while some other may over react to the slightest of the difficulties in life. The case of the deceased Banwarilal Mishra would obviously fall in the later category of the cases. Unfortunate though his death was, but on that basis the case cannot be held to fall within the category of abatement to suicide." 14. Last but not the least, the learned trial court has committed a gross error in not taking into consideration the deposition of independent witnesses and also the sole defense witness and convicted the petitioner on the basis of mere surmises and conjectures, as admittedly, there is no evidence on record to establish that the petitioner has intentionally aided the commission of suicide by the deceased and as such, the prosecution has failed to prove its case beyond all shadow of reasonable doubts. 15. It is well settled law that a revisional jurisdiction should be exercised normally on question of law. However, when factual appreciation is involved, then it must find place in class of cases resulting in perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court. ( Chandra Babu Vrs. State, (2015) 8 SCC 744 ). 16. In view of the aforesaid facts, discussions and judicial pronouncements, this revision application is allowed and the petitioner is discharged from the liability of the bail bonds. 17. Let the lower court record be sent to the concerned court forthwith.