.ll" HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANTS: RESPONDENT: Criminal ADpeal No.1209 of 1993 1. Ram Kumar Singh, son of Veer Singh Thakur, aged about 36 years, Cultivator, r/o Village Kargi Khurd, P.S. Kota, Distt. Bilaspur(M.P.)(nowC.G.) 2. Smt. Jamuna Bai, wife of Ram Kumar Singh Thakur, aged about 20 years, r/o Kargi Khurd, P.S. Kota, Distt. Bilaspur '(M.P.)(nowC.G.) 3. Smt. Champa Bai @ Sisli Bai (Died and Deleted) Versus The State of Madhya Pradesh (now the State of Chhattisgarh) {Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Sunil Sahu, counsel for appellant No.2. Mr. Sushil Dubey, Govt. Advocate for the State/respondent. Single Bench: Hon^ble hflr. T.P. Sharma, J ORAL JUDGMENT (29-6-2010) 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 10-12-1993 passed by the 2nd Additional Sessions Judge, Bilaspur in Sessions Trial No.224/87, whereby & whereunder learned Additional Sessions Judge after holding appellant No.2 Smt. Jamuna Bai along with other co-accused for commission of offence under Section 306 ofthe I.P.C., sentenced each ofthem fo undergo R.l. forfive years. 2. After serving the sentence, appellant No.1 Ram Kumar Singh has been released. -D.uring the pendency oftrial, appellant No.3 Smt. Champa Bai @ Sisli Bai died and on accoynt of her death, the appeal so far it relates to appellant No.3 abates. . 3. Appellant No.2 fcias impugned his conviction on the ground that without any iota of evidence the trial Court has convicted & sentenced him and therebycpmmitted illegality. IIIKI f! ^a^a^"' ^' n*.-'Case of the prosecution, in brief, is that Bina Bai (since deceased) - younger sister-in-law (devrani) of appellant No.2 was married to Shiv Kumar. On account of family dispute, Bina Bai & Shiv Kumar left the house of appellant No.2 and were residing at Ratanpur. Two months prior to the date of incident i.e. 4-5-87, husband of Bina Bai left Bina Bai in the house of appellant No.2. Appellant No.2, her husband appellant No.1 and her mother appellant No.3 (since deceased) used to commit torture & cruelty upon Bina Bai on account of demand of dowry, even one day before the incident i.e. on 3-5-87, appellant No.2 along with other co-accused demanded dowry.and appellant No.1 assaulted Bina Bai. On account of cruelty and torture, Bina Bai committed suicide on 4- 5-87. Merg was intimated and after summoning the witnesses vide Ex.P- 2, inquest over the dead body of Bina Bai was prepared vide Ex.P-3. Plain soil and spotted soilwere seized from the spot vide Ex. P-5. Other articles were seized. Dead bpdy of Bina Bai was sent for autopsy vide Ex.P-6. Dr. A. Sen (PW-5) conducted autopsy vide Ex.P-7 and opined that cause of death was asphyxia as a result of burning. F.1.R. was lodged vide Ex.P-18. Statements ofthe witnesses were recorded under Section 161 ofthe CnP.C: 5. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Bilaspur, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned Additipnal Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of th6 accused, the prosecution has examined as many as fifteen witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleadeel innocence and false implication. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge~'convicted & sentenced appellant No.2 and other co- accused in-'the aforesaid manner. '-»r 8. I have heard learned counsel for the parties, perused the judgment and . record ofthe trial Court. 9. Learned counsel for appellant No.2 vehemently argued that conviction is solely based pn the evidence of Thakur Bhola Singh (PW-1) - father of ^•;ftie cteceased whose evldence is not safe to rely for conviction of the -,accused, in-aBsence ,of any corroboration. As per his evidence, the .y.. 's'sssssss.^.-^^^^SSSSShE^^anr ff~ri' ^ a ^b *g ^ste- deceased was living with the accused in the same circumstanGes for the last two years. The prosecution has not adduced any evidence to show thatvirtually what has happened on the date of incident which compelled the deceased for commission of suicide. 10.0n the other hand, learned State counsel opposed the appeal and submitted that the prosecutipn has proved its case beyond all reasonable doubts and the evidence of Thakur Bhola Singh (PW-1) - father of the deceased is sufficient for cdnviction of appellant No.2. 11.1n order to appreciate the arguments advanced on behalf of the parties, l have examined the material availableon record. 12. In the present case, death of Bina Bai as a result of suicide has not been substantially disputed on behalf of appellant No.2, on the other hand, the factum of suicide is admitted on behalf of appellant No.2. 13.As regards complicity of appellant No.2 in the crime in question, conviction is solely based on the evidence ofThakur Bhola Singh (PW-1) who has deposed that just after the marriage of Bina Bai, appellant No.2 and other co-accused used to commit torture & cruelty upon Bina Bai and the incident took place as a result of such cruelty & torture. Thakur Bhola Singh (PW-1) has also deposed in para 5 of his evidence that Hasim Bai met him whom he asked and she told that on account of quarrel appellant No.2 & other co-accused persons had poured kerosene oil over the body of Bina Bai and set her ablaze. This shows that appellant No.2 has committetf the murder of deceased Bina Bai. However, for the reasons best known to the prosecution, the prosecution has not examined Hasim Bai to ynfold its case, inter alia, the prosecution has examined Ghasin Bai (PW|15) - aunt of deceased Bina Bai @ Ledgi, who has not supported the case of the prosecution. The prosecution has declared her hostile. In her cross-examination, even ^ - Ghasin B^i (fW-15) has denied the statement given by her in Ex.P-13 to the»police. -The police has recorded the statement ofGhasin Bai (PW- -*^- 15) as Ex.P-13 which reveals that appellant No.2 along with other •accused persons used to commit torture & cruelty upon Bina Bai on account ofdemand ofdowry, even on 3-5-87 they demanded dowry and ' a^pellant No.1 Ram Kumar Singh assaulted her, and second dayshe eoramitted suicide. - '"v'. • •^..' ^!'^K^.. iA. ^^~.. 4 'TCExcept the evidence of Thakur Bhola Singh (PW-1) & the statement of Ghasin Bai (PW-15) Ex.P-13, nothing is substantial for the prosecution and both these statements show that appellant No.1 has assaulted his younger sister-in-law i.e. bhai bahu (deceased Bina Bai) which is uncommon and as a result of such incident she committed suicide on second day. The prosecution has not adduced any evidence to show that on 3-5-87 or on 4-5-8-7 i.e. on the date of incident, theseappellants have assaulted the deceased or had played positive-role resulting in the death ofthe deceased. However, the evidence adduced oh behalfofthe prosecution is sufficient for drawing inference that appellant No.2 has also committed torture & cruelty upon the deceased. 15.While convicting the appellants under Section 306 ofthe I.P.C. learned Additional Sessions Judge has not considered the most material aspect of the case i.e. the fact ttiat appellant No.1 has assaulted his younger sister-in-law (bhai bahu) which was most uncommon in the family and this fact was sufficient to compel a person to commit suicide and in these circumstances, appellant No.2 was liable for abetment of the commission ofsuicide by the deceased, and thereby committed illegality. ^ . ' - - . 16.For the foregoing reasons, the appeal is partly allowed. Conviction of appellant No.2 Smt. Jamuna Bai under Section 306 of the I.P.C. is altered to Section 498A of the I.P.C.. Appellant No.2 Smt. Jamuna Bai was in custody from 11-5-87 to 25-6-87 during trial i.e. for about one month fifteen days and after her conviction from 10-12-93 to 20-12-93 for about ten days, thereby she w3s in custody for one month twenty-five days. Again sending this woman to jail after lapse of seventeen years under Section 498A of the I.P.C. would not serve any purpose. Consequently, appellant No.2 |s sentenced to the period already undergone by her and pay fine of Rs.2,000/-. She shall pay the fine amount within two months from today failing which she shall undergo additional R.l/forsix months. ^ / Soma Sd/- T.P. Sharma Judge