:^^i ^i^^..g^ yiSH COl»TOF CHHATHS6ARH AT BILASPUR Criminci Aopeal No.764 of 1993 Lai Singh son of Krishna Singh ©ond aged about 23 yaotf-s, r'esident of village Chcpar'a, P.S.Ratanpur District Biiaspur (M.P.) (Now C.6.) Versus State of M.P. (now C.6.) ttirouqh Ratcnpur, bistrict Biiaspur (M.P.) C.6.) (Criminai Appeal under Section374 (2) of Cr.P.C.) Hon'bleMr.T.P. Sharma.J. Present:- Miss Sharmila Shinghai, counsel for the appeitunt. Mi'.Rakesh Kumsr Jha, tteputy Sovernment Advocate for t+ie State. JU&eMENT O'asssd OR 15th Juiy. 2010) 1. Chalienge in this appeal is to the jud9ment of conviction & order of sentence dated 20.7.1993 passed by the 5T" Additionai Sessions Jud^e, Biiaspur,in Sessions Trial No.86/93, whereby & whereunder iearhed Q Additionni Sessions Judge after holding the (ypeliant gujlty for the offence punishable under Sections 496-A & 306 of the IncSian Penal Code sentenced him to undergo R.I. for two years exnd R.I. for six years. 2. Conviction is chaiienged on the ground that without any ioTa of eyidence of commission of suicide of the deceased cnd crueity anfi toriiire comBnitted by the appeliant, the trial court hcs convicted & sentenced •the appelksnt as aforementioned and thereby committed iilegality. 3. Csse of the prosecution, in brief, is that Neel Bai @ 6ouri Bni was married to the appellant in the year 1988, the appeSlnnt used to coiTimit tortureand cruelty upon her and as a resuit of aich torlure snd crueity in the intervening night of 24/25.11.92 Neei Bai © Souri Bai (since steceased) commiti'ed suicide by consuming poison. Dehati nalishi wcs recorded vide Ex.P/4. AAerg intimation was recorded vide Ex.P/2. On the basis of dehal'i nGiishi, F.I.ft. was recorded vide Ex.P/5. After summoning the witnesses, inquest over the dead body of the deceased was conducted vide Ex.P/1. Dead body was sent for autopsy to -the fiovemment Hospital, Ratanpur vide Ex.P/6. Autopsy was conducted by the team of the doctors vide Ex.P/14 and suspected the aiuse of death was poisonin9. Viscera were preservsd for chemicat examination. After death of deceased Nael Bai @ 6ouri Bai, appellant wrote a letter Ex.P/13 ond consumed poison, he was inimediateiy shifted to hospital foi* treatment. Letter Ex.P/13 was seized vide Ex.P/7 along with one sari. Visceru were seized vid®Ex.P/8. Spot map u»as pr-epcred vid®Ex.P/9. Viscera were sent for diemicai examjnation vide Ex.P/11. 4. StaTement of the witnes^s were recorded undsr Section 16i of the Code of Criiriinal Procedure, 1973 (in short'the Code') ond after completjon of •the inyestigation, charga sheet wos fiied before the Judicid McgiStrate First Ciass, Bilaspur, who in tijrn, committed the «iseto Ihe Court of Sessions, Bilaspur, from where iearned 5 Additional Sessioihs Judge, Biiaspur received th®ccse on traasfer for triai. 5. In ordar to prove the guiit of the accused/appeibnt, the prosecution has examined as many as 10 witnesses. The ccajsed/'appeliant wcs examined under Section 313 of the Code whara he denied the cireumstances appearing sgainst him ond explained •that in Ihe intsryening fli^it of the alleged incident the deceased was sufferin9 from loose-motion and omitting and as a resuit of such ioose-motion and omitting she become unconscious, he called the doctor who after examination of the deceased informed that Neel Bai was expired. then he slso tried tocommi't' syieide. 6. After providing opportunity of hearjng to ths parties, learned 5 Additional Sessions Judge, Bitaqiur convicted & sentenced the appeilont as aforementioned. .,f .^••.^ !@ '^'•"^Y k' ." s /• \. "!.-^^ 7. I hwe heard ieamed counsel for the parties, perused the judgment impugned and record of the triai Court. 8. Learned counsei for the qipeilont vehemently argued -that in order to convict the appeSlcnt under Sections 498-A & 306 of the Sndiim Penal Code, 1tie prosecution is required to proye t+ie commission of suieide, abetment by •the accused and commission of torture and croeity by the appeilant, but in the present case, the prosecution has ytteriy failed to prove the commission of suicide by Neei Bai. In ttie obsence of such proof, the evidence relating to (tbetment is of no use. The present cppeliant has not committed any crueity or torhjre upon •t+ie cieoeased. 9. Learned counse! piaced reliance in the matter of Bhogwan Oas v. Kortar Sirgh and Ors. in which the Apex Court has held that hantssment of wife by husband or in-laws due to differences per se does npt attTact Section 306 read with Sect'ion 107 IPC. if the wife committed suicide. Learned counsel further picoed retianta in the mort-t'er of Kishori Lci V. State of Madhya Pradesh in which the Apex Court has held that mere'y on allegation of haroissment conv'iction under Section 306 of the IPC is not sustainabie. Learned counsei relied upon in the matter of Arym Kimar Dhritiahre v. State of ChhffM-isgarh' in which ttiis Court has heid 1+iat m the absence of evidence of abetment, conviction of the oppeliont under Section 306 of the IPC is not sustainabie. 10.0n the other hand, learned State counsel supported the judgment impu9ried ond argued thut evidence adduced on beha!f of the prosecution is sufficient for drawing inference thot Neei Bai has committed suicide, her suicide hns been instigated smd abett-ed by ths appeiiant cnd he has committed torture cnid cruelty her. Leamed counsel further argued thct after appreciating tiie evidence waiiable on record, the triai Court has rightiy convicted & sentenced the appeifcnt as aforementioned. 'AIK 2007 SC 204S EAIR 2007 SC 2457 32010 L.T. (C6) 76 Klfts 11. In order to appreciate the arguments advanced on behaif of the parties, have examined the evidence adduced on behalf of tha proseajtion. 12*.In fne. present cdse, commission of suicide is sina qua non to atiTact the pr-ovisions of Section 306 of the Indian Penai Code. Oeath of Neel Bai 6ouri Bai in the intervening night of 24/28.11.92 in Ihe house of the appeltont is not disputed. Autopsy has conducted by br.H.C.Thawrani (PW-10) along with the doctors. As per evidenGe of &r.H.C.Thowr(»ii (PW-10), he conducted autopsy on 26.11.92. As per his opinion, he has suspected that cause of death moy be os a resuit of poisoning. Viscera were preserved. In pcra 7 of his cross-exammation, he has adffiitted that in case of death as a result of poisoning and death as a reailt of diarrhea, symptom may be one cnd the same. He has admitted in para 8 of his cross- exnmination that as per po!ice report this is a case of ioose-motion aiso. Autopsy report Ex.P/14 creates suspicion upon the cause of dealh and viscera were pi'eserved to enajr«the cause of death whether same wds os a result of poisoning or as a result of other infection, but resson best known to the prosecution, the prosecution has not produced viscera report to unfoid -t+ie rea! story, in-ter aiia, the accused has taken specific defence thct in the m-t'ervening night of 24/25.11.92, his wife was suffsring from loose-motion i.e. diarrhea cnd omitting, he cailed the doctor but finaily she died, then he himseif has tried to commit suicide. 13. On the baste of autopsy report, it is difficult to hoifi -rtiat Neel Bai died as a result of commission of suteide and has not died as a resu!t of omitting and diarrhoea. In the absence of proof of commisston of suicide, any eyidence relating to abetment, instigation or aid in connmission of suicide is of no use. 14.As regards •ttie question of 1-orture and cruelty cornmitted by the appeliont, Kamlediin Bai 03W-4), mother of the deceased, has deposed in her evidence the appeilant used to commit torture and crueity.One occasion the appel!<»ithas pushed the dececsed in the weit to kili her, on •the other occasion, the appeiiant has poured kerosene oil over hsr with a 5''^' !iSE:UBU ^^^^••1^13: sr'-s'Sf"sv .^' A-~ view to kill her. She has further deposed that the q^peiiant used to assault the deceased. In her cross-examination, Ae has deposed that they haye not lodged any report retating to the aforesaid incident of attempt to commit mur-der of her daughter. Eyen theaileged factum of tort-ure has not been written in her previous statement Ex.D/1. Another wltness Jamuna Bai (PW-7) has deposed that on one occasion the appeitant and the deceased were quarreting. Except Ihese wi-tnesses, the prosecution has not adduced any evidence reiating to torhjra and cruelty. No specific incident has been stated by any of the witnesses in aippor? of torture and crdeS-ty committed by the appelieait. Tne appellant and the deceased were husbond ond wife and normal differences bstween husband and wife was naturai.. 15. As held by the Apex Court and this Cour-t 'm the matt'ers of Bhngwan Das. Kishori Lai and Arjun Kuiaar bhritlahre (supra), tha pro^cution is required to proye comiTiission of suicide and abetnnent, but in the present case, the prosecution has not pr-oyed any ingredient of Section 30S of the Indian Penal Code. The prosecution has also faiied to adAice evtdence relating to comniission of torhjre and cruetty by the appeliant wjth his wife, inter a!ia evidence shows that on the death of wife of the oppeiiant i.e. Neei Bai, the appeltant himseif hcs tried te connmit suicide which shows the cordiai reiation and affinity of the appellont towards his wife. 16. White convicting the appe!lant under Sections 498-A <S 306 of the Indicn Penai Code, learned 5 Additionai Sessions Judge has not considered the most materiai ospect of the case that the prosecution has not proyed the factuns of commission of suicide by the deceased and commission of torture and crueity <md thereby committed iiie9ality. 17. For the foregoing reasons, I am of -the cansiaered view that cpnviction A sentence of the oppellont under Sections 49S-A A 306 of the Indian Penai Code are not sustainable under the law. The appeai is aiiowed. Conviction & sentence of the appeilant under 5ections 498-A & 306 of the Indian Code are he-r&by set oside. 1-te be set at iibert^ at once. Sd/- . T. P. Sharma Judge "