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2023 DIGILAW 849 (JHR)

Hari Sahu v. State of Jharkhand

2023-07-10

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction and order of sentence, dated 23/24.06.2004, respectively, passed by the learned Additional District and Sessions Judge, cum Fast Track Court No. I, Gumla in Sessions Trial No. 49 of 2002; whereby the appellants were convicted for the offences punishable under sections 306/34 IPC and also under section 498-A IPC and sentenced to undergo R.I. for 7 years under section 306/34 IPC and they have also been sentenced to undergo R.I. for 2 years each under section 498-A IPC; however, both the sentence have been ordered to run concurrently. Hari Sahu has further been sentenced to pay fine a sum of Rs. 10,000/- and in default of payment of fine he has been sentenced to undergo R.I. for 6 months and after recovery of the fine, Rs. 7,500/- shall be given to informant. However, by the same judgment the other accused persons namely, Nanki Devi, Khudi Sahu and Funi Sahu have been acquitted. 3. The case of the prosecution, in brief is that the informant has stated that his daughter was married with appellant no. 1 about 3 years back. After marriage, for a period of 6 months she lived peacefully and thereafter the appellants started torturing the daughter of the informant. Hari Sahu-appellant no. 1 has two wives. First wife of appellant no. 1 was the daughter of his elder brother. The first wife gave birth to a girl child thereafter, she did not give birth to any other children then the second marriage was performed. The appellant no. 1 used to assault and torture the informant’s daughter. On 24.07.2000 she consumed poison. 4. Learned counsel for the appellants submits that all together five accused persons faced trial but the learned trial court acquitted three accused on the same set of evidence but convicted the appellants. He further submits that there was no allegation of demand of dowry. Further, there is no direct evidence adduced by the prosecution to satisfy the ingredients of abetment which are set out in section 107 IPC that the accused/appellants abetted the deceased to commit suicide. 5. Learned Addl. P.P. submits that no error has been committed by the learned trial court and the deposition of prosecution witnesses fully supports the prosecution case, as such no interference is required. 6. 5. Learned Addl. P.P. submits that no error has been committed by the learned trial court and the deposition of prosecution witnesses fully supports the prosecution case, as such no interference is required. 6. Having heard learned counsel for the parties and after going through the judgment passed by the learned trial court and the LCR it appears that all together five accused persons faced trial but the learned trial court acquitted three accused persons on the same set of evidence and convicted the appellants. Thus, the issue which requires consideration is “whether any act of the appellants can be held to be abetment within the meaning of Section 107 of the Act” so as to attract the conviction under section 306/34 IPC. As such, to decide this issue, few provisions of law require to be deliberated. For brevity Section 306 and 107 IPC are quoted herein-below: “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 ten years, and shall also be liable to fine. 107. Abetment of a thing-A person abets the doing of a thing, who: First - Instigates any person to do that thing. 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. Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1 - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2 - Whoever, either prior to or at the time of 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 the act.” 7. Explanation 2 - Whoever, either prior to or at the time of 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 the act.” 7. From conjoint reading of the aforesaid provisions of law and the deposition of PWs it transpires that all witnesses who have been examined by the prosecution have not made any specific allegation only against the appellants; rather all allegations of either assault or torture are omnibus and general in nature. Further, the doctor (PW-6) who conducted post mortem examination has not given any such statement regarding sign or symptoms of poisoning and was not sure about the cause of death. It also emerges that there is no report of FSL to prove that deceased consumed poison, though VISCERA was preserved and was sent for chemical examination. It further transpires that all the witnesses were closely related to the deceased and certainly are not an eye witness to any occurrence either of alleged assault or of alleged harassment and the trial court has not examined any agnates, neighbour of the appellants or examined any co-villager to substantiate the allegation of the prosecution. From fact it further transpires that deceased was issueless even after three years of her marriage and was depressed and due to that reason, she might have committed suicide. The learned trial court has also failed to take into the consideration that the disclosure by the informant about the alleged occurrence is in contravention of section 60 of the Evidence Act which says - oral evidence must be direct-If it refers to a fact which could be seen, it must be the evidence of the witness, who says he saw it, if it refers to a fact which could be heard it must the evidence of the witness, who says he heard it, and, in the present case, no witness has stated either they heard or saw the occurrence as alleged by the informant and the learned trial court has made an error while convicting the appellant. It further transpires that there is no direct evidence adduced by the prosecution to satisfy the ingredients of abetment which are set out in section 107 of the Indian Penal Code that the accused/appellants abetted the deceased into committing suicide. It further transpires that there is no direct evidence adduced by the prosecution to satisfy the ingredients of abetment which are set out in section 107 of the Indian Penal Code that the accused/appellants abetted the deceased into committing suicide. It further transpires that there is no evidence on record to prove that appellants have uttered even a word. Even if, the allegations of assault if taken, on the face of it cannot and does not mean even by stretching that the accused/appellants made deceased free “to commit suicide.” 8. From the above discussions it can be safely held that there is no proof that appellants compelled the deceased to commit suicide and as such they deserve benefit of doubt; as such, conviction of appellants under section 306 of Indian Penal Code is liable to be set aside. Reference in this regard may be made to the case of S.S. Chheena vs. Vijay Kumar Mahajan, (2010) 12 SCC 190 where the Hon'ble Apex Court in paragraph 25 has held as under: “25. Abetment involves a 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 in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.” Further in the case of Madan Mohan Singh vs. State of Gujarat, (2010) 8 SCC 628 the Hon'ble Apex Court has laid down the law in paragraph 12 which is quoted herein-below: “12. In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note.” 9. Now coming to the issue of conviction u/s 498A IPC; it emerges from record that the allegations were general and omnibus against all the accused persons but the learned trial court acquitted three accused on the same set of evidence. Further, there was no allegation of demand of dowry as such, even the conviction u/s 498A IPC is not sustainable in the facts and circumstances of this case. 10. Having regard to the discussions made hereinabove, the impugned judgment requires interference. Consequently, the judgment of conviction and order of sentence dated 23/24.06.2004 respectively passed by the learned Additional District and Sessions Judge, cum Fast Track Court No. I, Gumla in Sessions Trial No. 49 of 2002, is hereby, quashed and set aside. 11. The appellants shall be discharged from the liability of their bail bonds. 12. Accordingly, the instant appeal stands allowed. 13. Let a copy of this order be communicated to the learned trial court and the LCR be sent to the court concerned forthwith.