Q1 c1=ouoooe1 41 o giagg IN T‘rE HIGH GOURT OF MJEXA AYE JAEALPUR JUDICA’I‘UREw CRIMINAL APFaAL No” Z f; (3"; € OF 1997 Sam; Kmnar son of ifgtwari Gend, aged 26 yearsx, resident‘ef village Police Ghowlri /7935 V Char-(aha, Charchag K ‘ Emma Staticm Bailmthpur, paegwmmwlxzilmww District $argu§aa jwbg§m i, . .APmLLAW“ Aémte ‘ VERSUS ( i A 3&4? > WvW' 9k A. Q. The State of Macihya Pradesh . . .REXSPONBEM CRIMINAL APPEAL UNDEE SECTION 37h(2) 1‘ CRIMTNM, PROCEDURE OF THE CODE CF .- ESJ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 2290 of 1997 yj APPELLANT Sant Kumar S/o Katwari Gond 0 ‘ VERSUS RESPONDENT State of Madhya Pradesh. Shri Neeraj Mehta counsel for appellant. Shri Akhil Mishra Dy. GA for respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. ' ' V - J U D G M E N T (09.04.2010) This appeal is directed against the judgment and order dated 18.10.;997 pas§ed by Additional Sessions Judge, Baikunthpur, District Sarguja, in Sessions Trial No. 346/1996 convicting the accused/appellant for the offence punishable under Section 306 IPC and sentencing him to undergo rigorous imprisonment for five years and pay fine of Rs. 1,000 in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Case of the prosecution in brief is that on 5.3.1996 deceased), Smt. Harbans Kumari died by jumping into thexwell. Merg intimation Ex. P—1 was given on the same day by Mahendra Kumar (PW-1) and based on that an enquiry was made. 0n 10.3.1996 FIR Ex. P-9 was ” ' registered against the accused/appellant his father Katwari Gond ij and mother Rajobal under section 306/34 IPC Further case of thel " prosecution Is that marriage of the deceased was solemnized With‘ the accused/appellant 6 years prior to the date of inCIdent and as the deceased had given birth to two daughters, the appellant and his family members used to harass her for the same. 3. So ars‘to hold thei"§CCused/appellant guilty, prosecution has examined 13 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code .of Criminal Procedure in which he denied the charges levelled O g I ‘ l ‘ ‘i 3 1 -2_ against him and pleaded his innocence and faise impiication in the Case. 4. ‘ After hearing the parties the trial Court has acquitted the other accused persons of the charge ieveiled against them but convicted and sentenced the accused/appeiiant as mentioned above. 5. i Counsei for the accused/appellant submits that the appeiiant has been faiseiy implicated in the case and that there is no evidence available on record on the basis of which he can be convicted under Section 306 IPC. He submits that it was an accidental death where the deceased fell into the well while drawing water from it. He submits that at the time of inquest, father of the deceased namely Ransai (PW—4) was very much present but he has not made any allegation against the accused/appellant nor had he expressed any suspicion on him. He submits that in the inquest report it is clearly mentioned that on the eve of Holi festival country made liquor was prepared and after consuming the same the deceased started vomiting and when she went to the well for fetching water, on account of her being in a drunken condition, she fell into it and died. 6. On the other-hand counsel for the respondent/State supports i the judgment impugned and submits that thex‘harassment to the deceased was to such an extent that she was left with no other optiOn but to end her life. 7. Mahendra Kumar (PW—1) is the witness who got recorded the merg intimation vide Ex. P-1 has stated that after hearing the noise when he had gone to the spot, he saw that number of persons had assembled there and mother-in-law of the deceased was shouting I saying that the deceased had jumped into the well. Thereafter, when the deceased was taken out of the well, she was no more. Pran Kunwar (PW—2) — the mo'tt’r‘er' of the deceased has stated that one month prior to the death of her daughter i.e. deceased, when she had gone to her house, she was informed by her that all the accused persons used to harass her and subject her to beating. According to this witness, the deceased was also insisting to take her with her. In cross examination, this witness has stated that'no Panchayat l l l f ...3__ meeting was called in the village nor had she informed anyone that her daughter wasv subjected to cruelty by the accused persons. Phuieshwari (PW-3) —sister of the deceased has stated that after birth of second issue she had gone to the matrimonial house of the deceased where she ‘had stayed for two weeks and during this period the accused/appellant used to beat her and other accused persons used to quarrel with her. In cross examination this witness has-stated that she had not disclosed to her mother regarding ill treatment to the deceased at the hands of the accused persons. Ransai (PW—4) — father of the deceased has stated in his evidence that his wife and daughter had informed him that accused/appellant V . used to beat the deceased. Rampyare Sonwakar (PW-5) is the witness of inquest who has not supported the case of the prosecdtion and has been declared hostile. Shiv Mohan Dhusiya (PW-6) is the witness who had prepared the spot map. Santlal (PW- 7) —‘ Kotwar of the village has not supported the case of the prosecution and has been declared hostile. Raj Kumar Tamrakar (PW—9) Dy. Superintendent of Police is the witness who had recorded the FIR. Constable Mahesh Kumar (PW—10) is the witness of seizure of visra. Sudesh Tiwari (PW—1 1) is the investigating officer who has supported the case of the prosecution. Dr. D.K. Chikinjuri (PW-12) who had conducted the post mortem~ examination on the” body of the deceased found injuries on her right knee and left wrist. Amar Singh (PW-13) - the neighbour of the accused/appellant is the witness of seizure of cloths of the deceased. 6. To see whether the act of the accused/appellant can be termed as cruelty, a glimpse of “abetment” enshrined in Section 107 IPC appears to be the need, which reads as under: who — Section 107. A person abets the doing of a thing, First. — Instigates any person to do that thing; or Secondly 4 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 places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. — A person who, by willful misrepresentation, or by willful concealment of a material , —q_ fact Which he is bound to disclose, voluntarily causes or prooures, 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 the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid‘the doing of that act. ” None of the witnesses has deposed that the deceased was ever instigated by accused/appellant prompting her to go for suicide. Ev,en if looked from any angle, the allegations made against the appeliant do not constitute the offence under Section 306 IPC as the ingredients of abetment defined in Section 107 IPC are completely absent in this case. The trial Court has thus committed an illegality in convicting and sentencing the accused/appeHant under‘Section 306 IPC though the basic ingredients of abetment provided under section 107 IPC are quite amiss. 7. Accordingly, the appeal is allowed. Impugned judgment dated 18.10.1997 is hereby set aside. Accused/appellant is acquitted of the charge under Section 306 IPC. He is on bail. His bail bonds stand discharged. Soil- Pritinker Diwaker Judge ,rtfff’