•v^-v.-c^. ^-^^•^<^^^;-'>-^-^~^v'^'-^;^..^'-.^^^j-<yZ^^^-,^^^.^^ 'G) ^^L IN 'ME HIGH COURT OP JUDIGATURE OF GFIHATTISGA^H AT BILASP15R Cr .Ap-peal No. C^C-(hLS /2001. ( Crirninal Appeal imder Qriminal grocedure Code) Appellant Accused• ^ l^. ^llip Kumar aged about 27 years^ S/0 Bodhan Dewangan R/0 Vlllage- Kochera^P^S^Daundi Lohara^ Tahsil Balod, Distt* Durg (C.G.) '^.w^ ,.-^> , . . 2» Boc3han aged about 52 years^ ^ \/ ^ ^CoT r€~l's//ro Mak8udan -D^^ngan, ^)/-^ / ^ !"^^" presently resldent of Konddl,Power House, ^•'^/ / " Dalli Rajhara,P.S.R5jhara,Distt.Balod Distt, Durg (C.G.) Af 7 •^y r^/ s ' Respondent VERSUS : Stateof Chhsttisgarh Through Pollce Station Daundj. Lohara, Dlstt. Durg (C.G.) Grimlnal Appeal Utider Sectlon 37^4_Q-lminal Rrocedure Code 1973| HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 448 of 2001 APPELLANTS RESPONDENT VERSUS Dilip Kumar and another. State of Chhattisgarh. ^-'-i Shri V.G. Tamaskar counsel for the appellants. Shri Pankaj Shrivastava PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (04.01.2010) This appeal is directed against the judgment dated 11.5.2001 passed by the Additional Sessions Judge, Balod in Sessions Trial No. 71/2000 convicting the appellants for the offences punishable under Section 306 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for three years and pay fine of Rs. 2000, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Case of the prosecution in brief is that on 2.6.1998 deceased Hemkumari, the wife of appellant No.1 Dilip Kumar and daughter in law of appellant No.2 Bodhan has committed suicide by consuming some poisonous substance. FIR Ex. P-3 was lodged by Jhumuklal (PW-1) - the father of the deceased on 3.6.1998 alleging that the appellants were demanding Rs. 10,000 as dowry from the deceased as a result of which she committed suicide. 3. So as to hold the accused/appellantsguilty, prosecution has examined as many as 08 witnesses in support of its case. Statements of the accused/appellants were also recorded under section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, two witnesses namely ;:t.^^t.- Baishakhu Ram (DW-1) and Krishna Kumar Sharma (DW-2) were examined by the defence in support of its case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellants for the offence as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellants submits that appellant No.1 Dilip Kumar was residing at village Kochera whereas appellant No.2 Bodhan who was an employee of Bhilai Steel Plant was residing separately at Dallirajhara. He submits that on the date of incident, the deceased was residing separately at village Kochera and after receiving the information the appellant No.2 Bodhan and Jhumuklal (PW-1) had rushed to the hospital where they came to know about the deceased having consumed some poisonous substance. He submits that in his statement, Jhumuklal (PW-1) has not made any allegation regarding demand of dowry or cruelty against appellant No.1 Dilip Kumar. According to him, even if the entire statement of Jhumuklal (PW-1) is taken as it is, neither of the appellants can be held liable for the offence under Section 306 IPC. He submits that there are omissions and contradictions in the statements of the witnesses examined by the prosecution. He submits that when the deceased was admitted in the hospital, Dr. S.S. Deodas (PW-4) had put a specjfic question to her as to what had happened to her and the deceased had told him that she had consumed the rat poison. According to him, the Court below has convicted the accused/appellants merely on the basis of presumption and thereby landed itself in a legal error in doing so. 7. On the other hand counsel for the respondenVState supports the judgment impugned and submits that Jhumuklal (PW-1) has categorically stated as to the manner in which the deceased was subjected to cruelty by the accused/appellants. He submits that had there been no demand of dowry or cruelty at the instance of the appellants, there was no occasion for the deceased to commit ^, — ^3 — suicide. He submits that in the FIR there is a categorical ailegation against both the accused/appellants and therefore the conviction and sentence awarded to them is strictly in accordance with law and does not call for any interference in appeal. 8. In the present case, the prosecution has examined only one important witness i.e. Jhumuklal -the father ofthe deceased (PW-1) who has stated in his court statement that he was informed by his daughter i.e. the deceased that her father in law i.e. appellant No.2 Bodhan used to harass her saying that the articles given in dowry were of substandard quality. He has further stated that on one occasion the appellant No.2 Bodhan had demanded Rs. 24,000 and asked him to keep his daughter as also the appellant No.1 with him. This witness has however admitted that the deceased had consumed poison at village Kochera and after receiving the information he along with appellant No.2 Bodhan had gone to the hospital where they found the deceased to be dead. This witness has admitted in hisinquest statement that he has not made any allegation against the accused persons but subsequently he has lodged the report in the police station. In the Court statement of this witness there is absolutely no allegation against the appellant No.1 and the allegations are only against appellant No.2 who at the relevant time was staying at Dallirajhara. Rest of the witnesses namely Radheshyam (PW-2), Amardas (PW-3), Ramlal (PW-5), Sawanlia Singh (PW-6) and R.N. Giri (PW-7) are not in relation to the allegations against the accused/appellants but they are the witnesses to the Panchnama and seizure. Krishna Kumar (PW-8) is the head constable who had made entries in the Rojnamcha Sanha. Dr. S.S. Deodas (PW-4) has categorically stated in his evidence that when he examined the deceased she was in a conscious state and when he asked her as to what had happened to her, she had informed him that she had consumed rat poison. 9. The allegations made against the appellants if seen in the light of the evidence led by the prosecution in this case, this Court is afraid to observe that they are incapable of attracting the provisions .^y^.,.^ y'^^. '"%, ^' "^"% ^ ^ '°": ^,-%!^ 1 '".,,'r-;^ -^- of abetment as is enshrined under Section 107 of the Indian Penal Code. For the sake of convenience Section 107 IPC is reproduced as under: Section 107. A person abets the doingofa thing, who - First. - Instigates anyperson todo that thing; or Secondly - 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, andin order to thedoing ofthat 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 ofa 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, eitherpriorto orat 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." Having undertaken a minute scrutiny of the entire evidence led by the prosecution does not give a pointer to even a single allegation to the effect that the deceased was abetted by the appeltants in any manner whatsoever to end her life by consuming poison. Even the fatherof the deceased namely Jhumuklal (PW-1) has notstated anything specifically regarding abetment ever made by the appellants prompting the deceased to choose an end of her life. Thus the trial Court has fallen in legal error by ignoring the fact that the allegations made in this case do not attract the provisions of section 107 IPC and that being so the appellants cannot be convicted under Section 306 of the Indian Penal Code. 10. Consequently, the appeal is allowed. Impugned judgment dated 11.5.2001 convicting the accused/appellants under section 306 IPC and sentencing them to undergo rigorous imprisonment for three years and pay fine of Rs. 2000 plus default stipulations is set aside. The accused/appellants are directed to be set free if not required in any other case. Sd/- pritinker Diwaker Judge