'\. i^^^^i ifill S89El ^^W^T E%?!3S^1 El ^;i-£:rfS^?"^fS.ij!M>'^i<SS& •^^^SsiS^f^^Si^iisMSS'^ V^f^WW/ix, Bli8iBj! cn .<S. rl- P^ (U H rt- I-' H- R)' .itn o W fli'Q'.0 IQS~ w.ffi;': .» • -, ^...'-? %i^ HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 1723/1996 APPELLANT RESPONDENT Ashok S/o Kholan Versus State of Madhya Pradesh Smt. Indira Tripathi counsel for the appellant. Shri Pravin Das Dy. GA for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (23.06.2011) This appeal is directed against the judgment and order dated 20.9.1996 passed by the Additional Sessions Judge Dhamtari, in Sessions Trial No. 349/1994 convicting the accused/appellant under Section 306 IPC and sentencing him to undergo rigorous imprisonment for five years and pay fine of Rs. 1 OOO/-, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Facts of the case in brief are that marriage of the accused/appellant was solemnized with the deceased namely Parvati about two years prior to the date of incident i.e. 8.12.1993. On 8.12.1993 the deceased died after suffering 95-100 per cent burn injuries in her matrimonial house. Merg intimation Ex. P-10 was given on 9.12.1993 by one Bhaiyalal and subsequently an undated written report was made by one Vasudeo (PW-1) - the brother of the deceased. Entry was made in the Rojnamcha Sanha at S.No. 123 and after merg inquiry FIR (Ex. P-7) was registered against the accused/appellant for the offence under Section 306 IPC. After completion of investigation charge sheet was filed by the police on 26.2.1994 for the said offence. -2— 3. So as to hold the accused/appellant guilty, prosecution has examined 18 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 against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No.1 ofthisjudgment. 5. Counsel for the appellant submits that statements made by Vasudeo (PW-1), Ahalya (PW-2), Ramdhani (PW-7) and Sukhbati (PW-12) are not very reliable and considering the in consistencies in the same the accused/appellant deserves acquittal. She further submits that even if the entire case of the prosecution is taken as it is, offence under Section 306 IPC is not made out against the accused/appellant because there is not even a single evidence that the deceased was abetted by the accused/appellant in any manner which drove her to commit suicide. She further submits that as the deceased had suffered 95-100 per cent burn injuries, she was not in a position to make any statement. Lastly she submits that there is inordinate delay in lodging the FIR. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that the deceased was subjected to cruelty to such an extent that there was no other option for her except to commit suicide. According to him, Vasudeo (PW-1), Ahalya (PW-2), Ramdhani (PW-7) and Sukhbati (PW-12) have duly supported the case of the prosecution and that being so the judgment impugned convicting and sentencing the accused/appellant as mentioned above is fullyjustified. 7. Vasudeo (PW-1) has stated in his evidence that marriage of the deceased who was his sister, was solemnized with the accused/appellant about four years prior to recording of his statement in the Court. He has further stated that the deceased had 3> 1 >- informed him that her father-in-law and mother-in-law used to suspect her character and that her husband used to beat her as a result of which once she had rushed to his house. According to this witness, two days after the deceased was sent to her matrimonial house, her mother-in-law had again beaten her suspecting her character. This witness has stated that once the accused/appellant saying that he would not keep the deceased, had come to drop her to his house but he got back after leaving her about kilometer before his house. According to this witness, at village Semra the accused/appellant had taken the deceased to the house of his relative and told them that as she had not taken food since two days therefrom, after serving her food she should be sent to her maternal home. Thereafter, according to this witness, when on the second day he along with some other persons went to the house of the accused and made certain inquiry, he picked up quarrels with them. Thereafter, when the accused/appellant came to his house to take the deceased with him, the deceased refused to accompany him saying that she would not go unless 2-4 persons came there. Then a village meeting was called and when the accused/appellant took the responsibility of the deceased on him, she was sent with him. After the said meeting, the deceased lived in her matrimonial house for about one year and in the meanwhile she delivered a child. According to this witness, even thereafter the deceased was subjected to beating by the accused/appellant. This witness has further stated that after receiving the information regarding the deceased suffering burn injuries, he had gone to the hospital at Dhamtari where he came to know that she had expired. When no reason was assigned by the accused/appellant for the death of the deceased, suspicion grew in his mind and he lodged the report in the police outpost. He has admitted the fact that a typewritten repori: was lodged by him about 8-10 days after the incident but he was not aware as to who had typed it. According to him, he was also not aware whether the said report was in Hindi or Chhattisgari. According to him, the report was written by his neighbour namely Baratu and then he had got it typed. This witness has admitted the -4 ^ fact that in the Panchayat meeting his sister had asked the accused/appellant that she would live with him only if he was ready to live separately from his parents. This witness has further stated that the accused and the deceased lived separately from the parents for about one and a half years and during this period there was no complaint from the deceased regarding being beaten by the accused. This witness has admitted that the incident of beating related to the period when the deceased and the accused lived along with the parents and that on the occasion of Tija festival when he had gone to bring the deceased, she was living separately from her in-laws and was happy. Ahalya (PW-2) - the wife of Vasudeo (PW-1) and sister-in- law of the deceased has stated that whenever the deceased visited her house, she used to tell her that her mother-in-law used to suspect her character and subject her to beating also. According to this witness, in the meeting called in the village, the accused/appellant had assured not to repeat the mistake and after making the deceased understand he had taken her with him. In paragraph 4 of her deposition, she has clarified that two years prior to the date of the incident when the deceased had come to her house, she told her of being beaten in the matrimonial house. This witness has further stated that the deceased had told her that her mother-in-law used to have quarrel with her and that she would go only if the accused lived separately from his parents. Dharam Singh (PW-3) is the witness of spot maps prepared by the police and Patwari (Ex. P-1 and P-2) respectively. Ramji (PW-4) has not stated anything specific. Dr. Virendra Kumar Sahu (PW-5) and Dr. S.C. Godheja (PW-6) are the witnesses who had conducted post mortem examination on the body of the deceased vide Ex. P-4. According to these witnesses, the cause of death was dehydration due to 95-100 per cent burn injuries. Ramdhani (PW-7) has stated in his evidence that on the date of incident after being informed by the village Kotwar when he went to the house of the accused, he saw that the deceased had sustained burn injuries and then -£> arrangements were made to shift her to the hospital. According to this witness, when he asked the deceased, she informed him that as the harassment at the hands of the accused had become intolerable.she set herself on fire. Shiv Prasad Sahu (PW-8) is the witness who had attended the deceased, has not made any allegation against anyone. On the contrary, he has stated that he did not inquire anything from the deceased and that in the hospital she had told him that while cooking food her sari caught fire. Pravin (PW-9) is the witness in whose presence the inquest was made. Rajlal (PW-10) is the Patwari who had prepared spot map. Assistant Sub Inspector namely S.R. Kore (PW-11) is the witness who did part ofthe investigation. Sukhbati (PW-12) -the neighbour of the deceased has stated that on the date of incident at about10- 11 in the night when she reached the house of the deceased, she was asking for water and then embraced her. On being asked as to why she got burnt, she told her that it was due to being beaten by the accused/appellant. Inderbati (PW-13) is the mother of the deceased and she has not supported the case of the prosecution and has been declared hostile. Maniklal (PW-14) - the witness who had attended the deceased immediately after the incident has not made any allegation against anyone and has been declared hostile. Jeetu Ram (PW-15) - the witness of Panchayat meeting has not stated anything against the accused/appellant. In cross examination he has however stated that the deceased and the accused were living separately from parents. Sub Inspector - J.K. Bani (PW-16) is the witness who had done part of the investigation. Rajiv Sharma (PW-17) is the investigating officer who has fully supported the case of the prosecution. Ramcharan (PW-18) has not made any allegation against anyone. 8. So as to convict a person u/s 306 IPC the prosecution is obliged to prove the abetment as defined under section 107 IPC. To have a ready reference, the said provision is reproduced as under: Section 107. A person abets the doing ofa thing, who - -A First. - Instigates anyperson to do that thing; or Secondly- Engages with one ormore otherperson 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 ofthat thing. Explanation 1. - A person who, by willful misrepresentation, or by willful 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 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." 9. Having thus perused the record this Court finds that none of the witnesses has stated that the deceased ended her life as a result of abetment by the accused/appellant. On the contrary, brother of the deceased namely Vasudeo (PW-1) has specifically stated that the incident of beating if any, pertaining to the deceased related to the period when she lived in the joint family consisting of her in-laws and ever since the accused/appellant and the deceased started living separately from the parents, she was all along happy. Even otherwise, if the evidence of the witnesses is seen in its entirety, the allegation of suspecting the character of the deceased is only against her mother-in-law and not against the accused/appellant. In these circumstances, the conviction of the accused/appellant under Section 306 IPC being not based on the material available on record cannot be sustained in the eye of law. 10. In the result, the appeal is allowed. Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against him. Accused/appellant is reported to be on bail. His bail bonds stand discharged. - —-—^ sdl- pritinker Diwaker Judge