KfXS^ ,!!•;.'a% ,i: ;?.^ :rs-<S'^?tl Ch^ --*:'?i- ;--~-gi*^?§s-;^', £?S^:?'c:^h '^^^SgSs^ APPELLANT: (Injail) RESPONDENT: HIGH COURT OFCHHATTISGARH, BILASPUR Criminal Appeal No.1923 of 1999 Rajesh Kumar, S/o Hincharam Sharma, aged about36 years, R/o Bajrang Nagar, Durg, M.P. (nowC.G.) Versus .State of Madhya Pradesh (now Chhattisgarh), Through P.S. Durg, M.P. (nowC.G.) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. P.K.C. Tiwary, Senior Advcycate with IVIr. Rakesh Thakur, Advocate for the appellant. Mr. Sudhir Bajpai, Deputy Govt. Advocate with Mr. Ashish Gupta, Panel Latvyer for the State/respondent. Sinale Bench: Hon'ble Mr, T.P. Sharma, J ORAL JUDGIWENT (5-12-2008) 1. By this appeal the appellant has challenged legality & propriety of the judgment of conviction & order of sentence dated 20-7-1999 passed by the 5 Additional Sessions Judge, Durg in Sessions Trial No.203/96, whereby learned Additional Sessions Judge after holding the appellant guilty for commission of the offence of abetment of suicide & cruelty, convicted him under Sections 306 & 498A of the I.P.C. and sentenced him to undergo R.l. for fen years & pay a fine of Rs.2,000/-, in default of payment of fine to further undergo S.l. for three months and to undergo R.l. for three years ^pay a fine of Rs.2,000/-, in default of payment of fine to further undergo S?l. for three months, respectively. 2. The judgment is challenged on the ground that without being any evidence of abetment of suicide and cruelty, the Court below has convicted & sentenced the appellant in the aforesaid manner. 3. Case ofthe prosecution, in brief, is that Sasikala (since deceased) was married- with accused/appellant Rajesh Kumar in the year 1991-92 and she was residing with the accused & her mother-in-law Mongra Bai (since deceased) at r sat! sy ••^•"f :;Sai.BS!!gaS» ':-^s^^ Durg. She was working as teacher in Primary School, Mohlai. On 23-5-95 she was present in her house. At about 3 p.m. her two years aged son came out of the house, he was weeping. l-1er mother-in-law called Sasikala, but Sasikala was not responding on which her mother-in-law went to the room of Sasikala where she saw that Sasikala has committed suicide by hanging. Her father-in- law lodged merg intimation vide Ex.P-5 in Police Station Durg. The investigating officer left for the house of the accused and after summoning the witnesses vide Ex.P-2 inquest over ttie dead body of Sasikala was prepared vide Ex.P-3. The dead body was sent^or autopsy to District Hospital, Durg vide Ex.P-9. Autopsy was conducted by the team of doctors viz., Dr. Lal Mohammed (PW-1) & Dr. P.C. Deshmukh (PW-6) and the reportwas prepared vide Ex.P-1. Cause of death was found to be asphyxia due to hanging and the death was ante-mortem in nature. One suicide note found under the pillow, two diaries written by the deceased, pass book, Rs.450/- in the purse and three applications were seized vide Ex.P-8. F.1.R. was registered vide Ex.P-13. Spot map was prepared vide Ex.P-6. Suicide note Art. B was sent to the handwriting expert along with the diaries and the admitted handwriting of the deceased. The handwriting expert has opined vide Ex.P-13 that the entries in the diaries & suicide note were ofthe same person who has written the register sizedvide Ex.P-14. 4. After recording the statements of the witnesses & completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Durg, who in turn, committed the case to the Court of &ssions Judge, Durg, from where tearned 5 Additional Sessions Judge, Durg, received the case on transfer for trial. 5. In order to prove the guilt of the accused persons, the prosecution has examined as many as 17 witnesses. Statements of the accused persons were recorcted under Section 313 of the Cr.P.C. in which they denied the . cireumstances appearing against them and pleaded innocence & false imptication. They have also adduced the defence evidence of Ramanand .4 sn 3t ^ gsSg£^g-S@: ss':''': ^:-:&^ ^§^ Mishra (DW-1) & Shailendra Tiwari (DW-2) who have deposed that relations of the deceased with the accused persons were cordial. 6. After affording the opportunity of hearing to the parties, the Court below has convicted & sentenced the present appellant as aforementioned and acquitted Seema Tiwari of the charges under Sections 306 & 498A of the I.P.C., however convicted & sentenced Mongra Bai under Section 498A of the I.P.C. Mongra Bai had preferred Cr.A.No.203/98, but the same was finally abated on her death. 7. I have heard learned counsel for''the parties and perused the impugned judgment as also the record ofthe trial Court. 8. Learned counsel for the appellant submits that deceased Sasikala, who was wife of the accused/appellant, died within seven years of her marriage in abnormal circumstances by committing suicide, but the prosecution has not adduced any evidence to the effect that the accused/appellant has abetted or instigated the commission of her suicide or aided anything for her death. The ^ prosecution has utteriy failed to adduce any evidence againstthe accused for commission of cruelty upon the deceased. Conviction of the accused solely rests on the entries of the diaries, which the deceased has not written in routine manner or in regular course, but it appears from the entries of the diaries that the same have been written as an autobiography of the deceased prior to few days of her death. The facts mentioned in the diaries have been contradicted by the ocular evidence that patently, they are false. The facts and entries of the diary have not been questioned to the accused under Section 313 of the Cr.P.C. with a view to provide opportunity of explanation to the accused and in absence of such questions, the facts mentioned in the diary cannot be used against the accused. The prosecution has also not proved the fact that the diary & suicide note have been wntten only by the deceased. These documents were examined by the expert, but the expert or any other witnesses have not proved the fact that the alleged/admitted or undisputed handwriting was the handwriting of the deceased and on the basis of such undisputed ;;F :: 'i?S'k- handwriting, the expert has opined that the disputed document has been written by the deceased, Learned counsel further submits that only on the basis of commission of suicide by the wife of the accused/appellant, the accused cannot be held liable for commission of offence under Sections 306 & 498A ofthe I.P.C. unless abetment & cruelty have been proved by credibte and clinching evidence, •» 9. Learned counsel for fhe appellant has placed reliance in the matter of Sharad Birdhichand Sarda v. State of Maharashtra in which while dealing with the question of examination of the accused and its value, the Apex Court has held that circumstances in respect of which accused not examined under Section 342 (presently under Section 313) of the Cr.P.C., cannot be used against him. Learned counsel further placed reliance in the matter of Asraf Ali v. State of Assam in which it has been held by the Apex Court that the circumstances which were relied upon by trial Court to find the accused guilty are required to be questioned in the examination of the accused and in absence of putting such question to the accused, the said cirpumstances cannot be used against the accused. Learned counsel also placed reliance in the matter of Rajbabu & Anr. v. State of M.P. in which it has been held by the Apex Court that mere facts of suicide by woman within seven years and cruelty by husband does not automatically give rise to presumption that the accused has abetted the commission of suicide by the deceased. Further reliance has been placed by learned counsel in the matter of B. Venkat Swamy v. Vijaya Nehru and Anr. ^ in which it has been hetd by the^Apex Court that in case of cireumstantial evidence the prosecution is required to prove the entire chain of circumstances and only on ground of commission of suicide, the accused cannot be held responsible for cruelty or commission of the offence. 10. On the other hand, the judgment is supported on behalf of the State/ respondent and it is submitted that the prosecution has proved its case beyond '(1984) 4SCC 116 22008AIRSCW5608 3 2008 AIR SCW 5435 ^ 2008 AIR SCW 59.08 ^ ^SzSS-—'S i. '^,...^/ ""ite;^ all reasonable doubts and theprosecutionhas also proved that the entries in the diary have been written bythe deceased only and not by any other person. Entries in the diary have been supported by Kamal Prakash Pandey (PW-3), brother of the deceased, who has specifically stated in his evidence that the accused demanded money, the accused doubts the character ofthe deceased and he used to torture her by his regular behaviour which were intolerable to the deceased and as a result of such intolerable behaviour the deceased has ended her life, thereby the accused has abetted for commission of suicide by the deceased. Material facts relating; to the entries of diary have been asked to the accused in his statement recorded under Section 313 of the Cr.P.C. and the expert has examined the documents on the basis of admitted handwriting ofthe deceased. 11.1n this case, abnormal death of the deceased by hanging is not disputed by the defence, otherwise, same is established by the ocular evidence of Kamal Prakash Pandey (PW-3) - brother of the deceased, Bhagwati Prasad Pandey (PW-4) - father of the deceased & Hincrfaram (PW-5) - father-in-law of the deceased & father of the accused/appellant, which has been supported by the medical evidence of Dr. Lal Mohammed (PW-1) & Dr. P.C. Deshmukh (PW-6) as also their post-mortem report Ex.P-1. 12. In order to prove the complicity ofthe accused in the crime in question relating to abetment of suicide & cruelty, 1 have examined the evidence of the witnesses and the documents adducec^on behalf of the prosecution. ^ 13. Kamal Prakash Pandey (PW-3) - brother of the deceased whom the prosecution has declared hostile has stated in his evidence that he was informed by his brother-in-law Dushyant Sharma that his sister Sasikala died whereupon he went to the house of the accusedwhere he saw the dead body of his sister. He was told that his sister has committed suicide. In para 4 of his cross-examination, he has deposed that the accused and his mother, father used to compel the deceased to withdraw money from her GPF account, but she was not interested to withdraw the money. In-laws of the deeeased also ^ uaNBiBfiwiiitifii^S ^"sa-svsesssf used to blame her character. He has advised the accused, but the same became a futile exerciseand ultimately, his sister committed suicide. 14. Bhagwati Prasad Pandey (PW-4) - father of the deceased has stated in his evidence that relation of his daughter Sasikala with the accused/appellant was normal, but her mother-in-law dften used to quarrel with her, the accused persons used to demand money and they used to harass her. He has also deposed that Sasikala used to tell him that her mother-in-law used to quarrel with her & torture her and she used to direct her to withdraw money. He has further stated that once Sasikala told him that her in-laws have demanded Rs.10,000/- and they directed to withdraw the same from her GPF account. 15. The prosecution has not adduced any other witness to prove cruelty, torture, harassment or abetment of suicide. Suicide note Art. B has been seized from the room ofthe deceased. The prosecution has relied upon the suicide note in which the deceased has written so many things, but she has specifically written that nobody should be held responsible for her death and no relation of her should be harassed, because she is committing suicide voluntarily. 16. Other documents which the prosecution has relied upon are the diaries Arts.E & F which contain about total 187 pages. Alleged entries in the diaries appear to be the autobiography of the deceased and same has been written probably within few days prior to her death. It has not been written in regular course of her business. The diaries contain the life history of the deceased especially ^ her relations with in-laws & husband, itheir behaviour including expectations and prospective hypothetical situation, her earnings, future plans, behavfour & misbehaviour of her mother-in-law, demand of money for construction of house &for purchase of land, advises of her mother-in-law, doubt on her character by her husband, abnormal behaviour of her husband from last 3-4 years since her marriage, tier work and duty in her house, some works of her daily routine, some instances of her family etc.. Last she had written that if the accused did not take her from Mohlai where she used to work that would be the last day of herlife. larai ~ma LStj f t) t3-^ r% 5-1 ' .•^;;s--' ssvss^s^s ?,:;.--:^.^w;;^i^^^- 's'^'w'^sssss 'l-:??:-'.^f:' 7 17. With a view to prove the genuineness of the handwriting, the prosecution has adduced the evidence of Smt. Chitralekha (PW-8), the teacher who worked with the deceased. She has stated in her evidence that the diaries contain the handwriting of the deceased. But in her cross-examination, she has admitted that there was no opportunity for her to see the handwriting of the deceased, therefore, she is not sure that whether the diaries were written by Sasikala or not. Dhiraji Lal Sahu (PW-15), Head Master, has deposed that the said documents were written by Sasikala, but in his cross-examination he has admitted that no document has beed written before him and he has stated on the basis of assumption that the documents were written by Sasikala. 18.The Court has examined the accused under Section 313 of the Cr.P.C. in which it put question No.4 relating to doubt on character and question Nos.19 to 23 relating to writing of diaries and their seizure. Writing of diaries and their seizure has not substantially disputed by the defence. Contents of diaries have been substantially disputed by the defence and the defence has vehemently argued and raised objection that the conterrts of the diaries which have been relied upon by the Court below have not been asked to the accused for providing opportunity to explain in accordance with Section 313 ofthe Cr.P.C., therefore, the contents of diaries have no evidentiary value and no reliance can be placed upon the contents of the diaries. 19.After adducing evjdence on behalf of the prosecution with a view to provide opportunity of explanation to the accuse^l, the Court is under obligation to put the circumstances appearing against <the accused which the Court may use against the accused and in absence of such opportunity to explain the circumstances, such circumstances cannot be used against the accused, as held in the case of Sharad (supra). 20. In this case, if the contents of the diaties are excluded from the case of prosecution, only the evidence of two witnesses namely, Kamal Prakash • Pandey (PW-3) & Bhagwati Prasad Pandey (PW-4) remain for consideration. Bhagwati Prasad Pandey (PW-4) - father .of the deceased has speeifically ir; lan ~lT.< ^o ^ ^. ^.'"y^^S'^sK&^ •^i-i'^^g^S" deposed that mother-in-law of the deceased used to harass & torture the deceased and she used to demand money. But he has not stated anything against the present accused i.e. husband of the deceased. Kamal Prakash Pandey (PW-3) - brother of the deceased whom the prosecution has declared hostile, on being asked by the Additional Public Prosecutor, has stated in his cross-examination that in-laws of the deceased used to pressurize the deceased for withdrawal of money to which the deceased was not agreeable and the in-laws also blam& her character. The deceased requested him to advise her in-laws whereupon once he has advised the accused/appellant. He has admitted in para 7 of his cross-examination that the deceased was shocked on account of blame on her character, she asked him to advise his brother-in-law i.e. the accused/appellant to whom he has advised, but ultimately, Sasikala died. If we examine the entries of the dairies, the alleged autobiography, it reveals that the accused is doubting upon the character ofthe deceased right from the beginning since her marriage i.e. since last 3-4 years. The deceased was working as a teacher and she used to go to Village Mohlai. According to the evidence of Smt. Chitralekha (PW-8), colleague of the deceased, the accused/appellant used to leave the deceased to her school, he also used to pick up her from the school to his house daily and their relations were good. 21. Contents of the diaries show that it is the autobiography and thoughts of the deceased, expectations & repercussions of the deceased, behaviour & fr expectations of her in-laws and dout(t on her character by her husband. Contents of the diaries further show that the deceased was a hypersensitive lady and her expectations from her in-laws were very high. She was in the habit of comparing the behaviour with other persons. But it is not written in the diaries that what was the regular positive & intentional action of the accused which according to her was cruelty & torture to her. The deceased has not stated the details of diaries to any of her relatives. These diaries were not written iri regular course of business. It appears that they have been written as are 1 c r ^^B^f^^;^ ^ .•y ^^^•fc-^S-S5^.^ an autobiography. It is not n6cessary that each & every expectations of the daughter-in-law should be fulfilled by her in-laws. Entries in the diaries contain her life style and expectations of her life style in her matrimonial house. 22. It reveals from the diaries that the accused was doubting on the character of the deceased right from the beginning since her marriage, but for the last four years she was living with the accused, even she conceived and gave birth to a child. She was working as a teacher while she was residing in her matrimonial house. This is not the case that all of a sudden on the date of commission of suicide she came to know that her fiusband is doubting upon her character or her husband has committed anything which was shocking to her or he has instigated for commission of suicide on the date of incident. The diaries show that on the date of incident she has decided that if her husband will not take her to Village Mohlai where she was working as a teacher and where she used to go with her husband by motorcycle or by bicycle, that would be the last day of her life and it appears that on that day she has committed suicide. But the evidence adduced on behalf of the prospcution is crystal clear that on the *h/*-3 -^ fateful day, the accused 4fe not present in his house, he went to his office at 10.30 a.m. in routine course and before coming from his office the deceased committed suicide, although she has not cautioned her husband that if he will not take her to Mohlai, then she will commit suicide. There was no occasion for the accused to take the deceased to Mohali, at the time of commission of suicide. '&. 23. Contents of the diaries also show thSt the deceased was a hypersensitive lady and her expectations from her matrimonial house & relatives were very high. Being a working woman, her expectations were of specific nature and probably they have not been fulfilled by her matrimonial relatives. Similarity in behaviour and equal treatment are normally or sometimes not possible in a joint family, but they should not be presumed as harassment or torture. Although, contents of the diaries have not been put to the accused in his examination under Sectipn 313 of the Cr.P.C. which was mandatory for placing reliance upon ll?:ii!siSMSSt |3';'ssfif; SN5sl 10 those entries, in absence of such questions the circumstances not asked to the accused cannot be relied upon or cannot be used against the accused. Even otherwise, entries in the diaries have not been written in regular course of business or in routine course or instance-wise, same have been written as an autobiography or history of the life during certain period which according to the deceased was not satisfactory to her, she was not satisfied with the behaviour or activities of her matrimonial relatives and she has committed suicide, which is not sufficient for constituting harassment or torture leading to commission of suicide ofa woman (deceased). • ( 24. In the circumstances, even if the contents of.the diaries are believed to be true, it cannot be inferred on the basis of the entries in the dairies that the accused or other relatives are responsible for abetment or instigation of suicide by the deceased. 25.The Court below has not considered the mandatory provisions of Section 313 of the Cr.P.C. and has placed reliance upon the contents of the diaries which are not sufficient for drawing inference ^of instigation & abetment for commission of suicide and thereby committed illegality. 26. For the foregoing reasons, conviction & sentence of the appellant under Sections 306 & 498A of the I.P.C. are not sustainable. 27. Consequently, the appeal deserves to be allowed and it is accordingly, allowed. Conviction & sentence of the appellant under Sections 306 & 498A of the I.P.C. are set aside. The appellaRt is acquitted of the charge under Sections 306 & 498A of the I.P.C., he be released forthwith, if not required in any other case. io'na Sd/- T.P. Sharroa Judge 2-