'^•^.i-^^^K^^^ WSSSgiSSSS'S .^3^:^.lt)..^ ^s-^'.^^^ "~1 • .^ .../}^& rf::&y^^.^"~—~ -isJA. IN THE HIGH COHRT OF M&DHS%: PR^ESH AT JAB.&LPBR Qe-.Apgeal No. APPBLIANT? 'n 'ScLi'l . Abdul Hafeez ali.as Sheikh Musselman S/o Sheikh NpOr MBhannied Musselaaaa aged $9 years, r/o Juna Shahar, ^<ltatanpur, Distt. Bllaspur. • vs. RESPONDENTs St.ateof MaShya Eiadesh. '• . : ; ••. • . 1 ••...'. '".'.' ' ' • '.. '; GRIMINAL'APPEAL UNIffiR SECTXON 374_< '_GRIKI^I> , ,E>ROeEiX)RE;,C<3BE«l973«;:-•-;: '-; , / ~ •Wfr. APPELLANT RESPONDENT HIGHCOURTOFCHHATnSGARHATBILASPLtK (Mon. hflr. Justice Pritinker Diwaker) Criminal Appeal N0. 611 of 1995 Abdul Hafeez alias Sheikh Musselman VERSUS Stateof Madhya Pradesh. Shri AliAsgar counsel for the appellant. Smt. Smitha Ghai PL for the respondent/S.tate. CRIMINAL APPEAL UNDER SECTION 374 OF THECQDe OF CRIWIiNAL PROCEDURE. JUDGNIENT (11.01.2011) This appeal is directedjagainst thejudgment dated 29.3.1995 passed by Additional Sessions Jud^e Bilaspur in Sessions Trial No. 195/1992 convicting the appellant under Section 306 of the Indian Penal Code and sentencing him toundergo rigorous imprisonment for six years and pay fine of Rs. 1000, in default of payment of fine to furi:her undergo rigorous imprisonment for two months. 2. Caseof the prosecution in brief is that on 19.8.1991 deceased Jahida alias Gita Bai - the wife of the appellaht committedsuicide by consuming some poisonous substance. On 20.8.1991 merg intimation Ex. P-5 was given by the appellant fo fhe police and based on that FIR Ex. P-9Was registered on that day itself under Section 306 IPC. After inves'tigation challan was fited dn 26.11.1991. • '->. . ' • • • . ' . • • . 3. So a&-te tiold the accused/appellant guilty, prosecution has examrned as many as 10 witnegses in support of its case. Statemerit of the accused/appellant was.also recorded undersection 313 of the Code ofCriminal Procedure in which he denied the chargelevelled against him and pleaded his innocenGe and false implication in the .case. : f•^ S'?*'i!%-N *K,^'.^' —S2-— 4. After hearing the parties the trial Court has convicted and senteneed the accused/appellant as mentiohed above. Bli. 5. Heard counsel for the parties and perused the material available on record including thejudgmentjmpugned. 6. Counsel for the appellant submits that at the time of commission of offence the accused/appellant was aged about 55 years whereas the deceased was aged about 35 years and therefore question of appellant harassing the deeeased at such a fag ehd of hislife does not arise. He submits that even if it is accepted that there was some mihor dispute between the couple and the deceased committed suicide, accused/appellant cannot be roped in an offence under Section 306 IPC. He submits that most of the prosecution witnesses have not stated anything against the appell'ant and have been declared hostile and that the main evidence against the appellant is the statement of Bhagwano (PW-3) but even if the statement of this witness is taken as it is, the offence under Section 306 IF'.C is not made out as the ingredients of abetment laid down in Section 107 IPC are totally missing. ri. 7. On the other hand counsel for the respondent/State supports the judgment impugned stating that as the deceased was subjeGted to cruelty by the accused/appellant to such an extent where she was left with no other option but fo commit suicide, his conviction under Section 306 IPC is strictly in accordance with law. s. 8. Ram Kumar ,(PW-1) who is a witness to the inquest has not cfeposed anything/against the accused/appellant. He has merely stated that hesaw the dead body ofthe'deceased, froth was coming out ftom her mouth and two bottles of Demecron were lying near the dead body. Anil Kumar (PW-2) has also notstated anything against the accused/appellant arid has been declared hostile. Bhagwano (PW-3) is the star witness of the prosecution who has stated in his eviderice that on.th&date-of mcidehfrat about 9 a.m. when he was sitting along with ?An •^.^rf'..*' —-3- •\ Milan, Derhia and Karan, deceased had come there weeping and told them that her husband usedtobeat her, and also requested them to make him understand. On being asked by them as to when the aGcused/appellant returns home, the deceased had informed that he used to get back home at about 8 in the night. According to this witness, the accused/appellant also used to doubt the character of the deceased. From paragraphs4, 5, 6 arxl 7 of the evidence of this witness, it is apparent that there are material contradictions and omissions in her court statement and the statement recorded by the police under Section 161 of the Code of Criminal Procedure. Dr. H.S. Thavrati (PW-4) is the witness who conducted post mortem on the body of the deceased has stated that she died because of cardio respiratory failure on accountof poisoning. Shyarh Singh alias Burga (PW-5) has also not supported .the case of the prosecution and has been declared hostile. Station Mouse Officer namely Hanuman Prasad Gourha (PW-6) has stated that he received the merg intimation Ex. P-5 and had done part of the investigation. Kunwar Bai (PW-7) is the mother of the deceased but she has 'also not made any allegation against fhe accused/appellant. Karan Singh (PW-8)who was in the company of Bhagwano (PW-3) at the time when the deceased had made a complaint against the accused/appellant, has stated that the deceased had requested them to make the appellant understand and also told them that there lised to be some dispute between the couple. This witness has also not made any specific allegation against the accused/appellant. Milan Singh "(PW-9) has made almost similar statement as made by Karan Singh (PW-8). This witness has however gdded fhat the cteceased had infdrmed him that the accused/appellant - / - . ........ used to beat'her and .on account of-.that she would die. In cross examination this witness has ^tated that he was not aware as to how the'•accused/appellant used to beat his wife. Station House Officer Ashok Kumar Mishra (PW-10) who had done the investigation has supported the case ofttie prosecution. :* -^f- •T'' 9. To see whether the act of the accused/appellaht can be termed as cruelty, a glimpse of "abetment" enshrined in Section107IPC appears to be the need, which reads as under: Section 107. A person abetsthe doing ofa thing, who— F/rsfc - Instigates anyperson to do that thing; or Secondly - Engages wifh one or more other persan or persons in any conspiracy for the doing ofthaf thihg, 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. Expianation 1, - A person who, by willful misrepresentation, or by willful concealment ofa matehal fact which he is bound to disclose, voluntahly causes or procures, or attempts to cause or procure, a thing to be done, is said to instigatethe doing ofthatthing. Explanation 2.- Whoever, either priorto or at the time of the commission of an act, does anything in order to facilitate the commissidn of that act, and thereby facilitates the commission thereqf, Is said to aidthe doing ofthat act." 10. Moreover, dealing w h an Fdentical quesfion in the matter of BhagwanDas v. Kartar Singh and ors. AIR 2007 SC 2045 it has been held by the ApexCourt that death of wife due to harassment by husband or in-laws for certain differences per se does not attract Section 306 read with Section 107 IPC and for the said purpose there has to be something more. t3 . • •• . . ~ . 11. Thus keeping in view the ingredients of Sections 306 and 107 IPC and the material collected by the prosecution, this Court is of the considered opinion that the ingredients of 'abetment' are totally absent in the instant case for an offence'under Section 306 IPC. An offence under Section 306 IPC would stand only if there is an 'abetment' for commission ofjhe'&rime. This being the position, in the present case offenceunde/Section 306 IPC is not ngade out against the appellant. >»- .. . -. 12. As a result, the appeal fs allowed. The judgment impugned is hereby set aside. The accused/appellant is acquitted of the charge levelled against him. The appellant is-already on bail. His bail bonds stand discharged. i Pritinker Biv/afecr Judge •>!?.