H j mmmwl%m W m THE HIGH com? OE micmm AT ; JABALPUR. ‘%\ CF000003972 I cw¢ /c .Cr.c.N gugg @.Appggl Na. 0f 1998. ppg;w: $tate of Madhya Praéesh , Vsaj’l‘ : :, REspomEm : 1 Jg1am singh, s/o uaayram Sahu,aged '34 ’ years. ; A v 2.mhunn11a1 S/oUdayram Sahu, aged 28 years, v 3 ant Tara Bai w/o Uday‘am Sahu, aged 4a years. r ' A11 resident cf village Jenjra P S. [66% 124$; 9- m... _ hf/V Mww ' “ wa m ? A 7 Me. w W W” A g W EEGH CGiEEiT 6F CHEATTESSEERE Eff £ILA$§EER ' $3 : Haw LE MR; Ju‘swcE PmTmKER n’IWAZKEE' Acg. Aggeai NQ. 56i2f309 i’emus _ Stat€ of Ch hattisgarh RE$§3§§¥§3ENT Jalagn Singh (‘35 Otimrs AF?LEC&I‘ET CREMIDQ‘AL APWIA’L NNEER SECTION 3’78! 13 OF THE £r.?-.fi. Aggearance. ‘ ‘ “w” 51111 bamlr Bphax i4 L for thy p malt} Stats, Shn Sum} Qah 1 coimyl for ths rsspendgnts GRDER ’15 12 Q09§ fmaiiv. WM: m6 conSen‘v: 0f the parties €316 mafia i$ imam ’Thxi prasént appeai has. been directecl agajlmt tba impugned judgment tia’tad 4.8.98 passed by the. First Aéditiomai Sessions Judge, Raipur m ST. No. 2’7j95 vhereby the resigondants have béeiq acquittsd o the G§~uys maxim“ Section " 0&4 oi 113$ {PC ‘2. Casa of the proseciltion in 'briéf is h t on tha basis of msrg intimaton Fx‘P/é datéd 16 3 94L Mrst hiomatn Report bx F18 was. mgmmred on 18 94 KPC. ls aJJegéd *hai +hx, manage of the rnsp ‘ dent VO i was smemmzal vnib Qumxa Ba1 {smcs dFceasedl 20 22 years prior to the date of m dui 1 r, Ea,” Sm are the . accaeed nea‘sans used to harass her as a resui ofwlnch she '\ 1 commlteci swam? on me said date bv consummg poxson accu‘md parscms for tin: ovifénw umier §€cti0n 0(3 34 0i The ‘l I? has exammed as many as 18 Witnesses. I‘vm derenee imesses have also been examiried. Statement of the \ ‘ 3, in order to prove the gust of me accusee proseeunon l \ 1 m / ” w accused were aiso memaa} unafn sPctton ‘313 (Jr? L J1 which they danied tha charge leveiea against thetm and pleaded imlocence and false impiicaiéon in the case. 4. Contention of the counsel {01‘ the Stete] ap§1ica11t iS That on the basis of maten'al available on recorci, the Court ‘below oughi to have convicted fhe accuser} i respond ems“ 5. On the other hancl counsei for the respenc‘iem‘s submits that even if the entire case of prosecution is taken as it is the offence under Section 306 IPC i5; not made out agamst them. He submits that the respondent NO. 1 and the deceased Eived happily for more than twenty years and. if for one 01‘ the other reason, the deceased had. oommitted suicide, it does not mean that the accused persons have committed the offence under Section 306 IPC, 6. The main witnesses of the prosecution are P.W.—3 Thakur Ram $ahu brother of the deceased, P.W.-5 ‘T‘rjioki Ram father of the deceased, P.W.—6 Khilawan Satin brother of the deceased, P.W.-7 Lekhlam brother—in-iaw of the net asee REM-8 Chitteshwari Bai sisteein-‘taw of the deceased. 7. A11 the above Witnesses have stated that there was some dispute in the family and the deceased use-d to complain against a1} the accused persotgs. From the 1 statement of the father of the deceased namely Triiokj Ram iwJ (PW 5t 1t aiso comes that on the eve of Rakshabandhan some money was demanded by toe deceased from her mother-indaw tor inure dasme (‘oconut but the same was not given. Likewise an the Witnesses gave stated about the d1 mute ot some tnv1ai matters m the famuv 1t also comes 1n the evidence t tt on the date ot moident the accusedt persons were consoling the deceased as she was annoyed! for some minor dispute and alt of a sudden she ieft the t v‘ place, went to the terrace aad consumed Dotsonous‘ t suhstance. _'b'— 8. EVEn if. tha entire prosecution case is taken as it is, the offence under Section 306/ 34 of the KPC is 110$ attracted. “is convict the accused] respondents under Section 306 IPC the prosecution is required to prove the Easic ingredienis of Section 306 IPC. Sections 3&3 and 107 of the Indian ?enal Code read as under: \ 3G5. ébetmeat of $uiciéerlf any person the commits suicide, whoever abeis commission of such suicide, shal! be punished with imprisonment of eMler descripiion for a §erm which may exz‘end to ten years: and shaii afso be liable t0 Ezfe. To see whether the act of file respondents/accused can be termefi as cruehy, a glimpse of “abetmen " enshrined in Section 10’? We, (‘i appears to he the need: which reads as. under: Seca‘ion 1'07 A person abets the doing of a thing; who — First. — Metigates aizy person to do that thing; or Secondig — Engages with oaze or more other person oi" persons if; any conepimcy for the doing of that thing, 1f cm act or iizegai omission takes piaoes in pwsyance of that conspiracy, and in oréer f0 the doing of {thai‘ thing; or E‘hirdig.- IyitemionolZy aiczs, by cmy act or illegal omission, ‘ihe doing of that thing. Expianaéioia i, — A person who, by wiiljm misrepresemaz'ion, or by wiiidmi conceaiment of a maeem'ai fact which he is Eound to disciose, volumiariiy causes or pi‘ocm-es, or azfempts to cause or promre, a thing to be done, 7s' said to instigam the doing of mat thing. Explanation 2- Whoeven either orior to or at the time of ihe eommfssion of a‘iz act, ones anything in order to foeiéitoie the commission of moi act, oi'zd- iiiereby facilibaies the commission mereoj: is said to aid the doing of that act ” @ 9. ha mmesh Kumar vs. $tate 9f Chhattisgasél, M& 20¢)1 SK} 383‘7, ths Supreme Court. observw as xmdar: “22. Semioms 498-A azld 386 IPC are imiepsndent arid conStituie <§i§ar€nt offiencas. Though, éspémdmg on the facts anri circumstaxww of an méividual casa, subjecting a woman to mushy may amoum i0 an offeaca Lmder Ssctjml 498—A am may aisa, if a. csm‘se 0f conduct amounting i0 crudty is eStabEs‘msé leaving no other option fer the womem except $0 commit suicide, amount to abetmen: i0 commit suicide. However, merely because an accused hae been heic'i Liable to be punished under Section 498-A EPC it does not follow that on the same evidence he must aleo and necessarily be heki guil‘ry of having abetteii the commission of suici&e by the woman coxlcexeeol, Evidentia value of the two writmgs contained m tiiary Article A is that of dying decimations. On the prmcipie underrying asicessibiiity of dymg dec1ara1ion in evidence i mt truth siis on the tips of a dying person aild the Court can convict an accused on fhe 'hasis of such decimation where it inseires fuil comEIience, there is no reason wlhy the same principle shouki not be apckied when such a dying éeclaration speaking of the cause of § cieafh exonerates the accused un1ess there is material availabie to foml an opmion that the. deceased while making such statement was trying to conceal the Trufh either having been persuaded to do so or because of senn’ments for 1 \ her husband. The writing on page 11 of rliary 1 t {Articie A) clearly states that the cause for committing suicide was her own feeEing ashameé. l of her own fan'its. She categoricaliy (ieciares »— i none to be hem responsible or harassed for her committing suicide. The writing on pags 1‘2 of diary (Article A) clearly suggssts that some time €ar1ier also she had axpresssd her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably toid the deceased that she was free to go wherever she wiehed ahd wanted to go ahd this revived the eariier impulse of the deceased for committing suicide. The dying declaratiozi Exbt. P/ 10 corroborates the inference ilowing form the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his Wife to hospital also improbablises the theory of his having abetted suicide.” 10, In Saniu alias sanjay Singh Senga: v3. State of Madhya Pradesh, AIR 2002 SC 1998, the Supreme Court observed as under “13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant has used abusive language and had reportedly told the deceased ‘to go and die’. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming hack from the house of the appellant, told. him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan. recorded under Section .161 CLPC. is annexed as annexure P—3 to this appeal and going through the statement, we find that he has : not stated that the ciewassd had toid him that the appeliant had asked him ‘to go and die’. Even if we accept the prosecution story that the appellant did tell the deceased ‘to go and die’, that itse}f does not constitute the ingredient of ‘instigation’. The word ‘instigate’ denotes incitement or urging to do some drastic or tmadvisable action or to stimulate or incite, Presence of meris rea. therefore, is the necessary concomitant of instigation It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a tit of anger and emotional Secondly, the a11eged abusive words, said to have been told to the deceased were on 25d“ July, 1998 ensued by quarrel. The deceased was found hanging on 27m July, 1998. Assuming that the deceased had taken the abusive 1angnage seriously; he had enough time in between to think over and reflect and. therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1993 drived the deceased to commit suicide. Suicide by the deceased on 27th Juiy; 1998 is not proximate to the abusive language uttered by the appeliant on 25th July; 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below. 15. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason couic’i 13a that the. d€0€as€~c2 was Wiiho ut aiw work 0: avocation ‘ami at me. samr: time inc‘iuigsd m drinking as revgalad fmm the statemeni of thé \vife-Smt. N€€1am Sengar. He wasa i‘mmiratec‘l. mall . y R€ading 6f i116 suicirie notE Wm Clsariy suggest that such a uote is not a hamiy work of a man with soumi mmd and sansa. Smt, Naelam Sengar, wifs 0:" the (iecc-ta$ed, made a smtement under Sectiml 161, Cr.P.C. bsfore tha Investigation O$ce1n She steted that the - deceased always mduiged m {kinking wiee and was 130T. doing am? work. She aiso stmed that on 26th July, 1998 her hueband came 1'0 them in an ine’briated condi‘doa wadnwas a‘mssing her and other members of the family. The prosecution stoxy, if believed, shows thaf the quarrek between fhe éeeeased aed the appeliant had taken place 0:1 25th July; 1998 and if the. deceased came hack to The house again on 26th July, 1998, it caimet be said thai the suicirie bv the deceased was the. chrect result of the quanei that had taken piece on 25th July, 15%}8, Viewed from the aforesaid circumstances imiependentiy, we are cieajiy of the View that the ingredients of ‘abetment’ are totaliy absent in the instant ease for an ofi‘eoce under Section 306 IPC. 1t is in the statemetlt of the wife that the deceased a'iways :‘emameci "1 a drunkened condition. It is a commoti knowteti ge that excessive drixlking leac‘is one to debauchery. It clearly appeareci, therefore: that the deceaseo was a victim of his own conduct 1111connected with the qumel that had ensued on 25th July, 1S}98 where the appeliant is stated to have used abusive language. Taking the totality of materials on recorzi- ans facts and circumstances of the case into consideration, it waj lead to irresistibte conclusion that it is the deceased and w? ha alone: and none elSe: is responsibls for his (iea' ." 1 1. 1n Metai Eutta vs. State of West Bengai, AIR 2005 SC i775, me Suereme Court observed as under: ‘3. Them is ahsslumly no avemmnt in the alieged suicicis note that the présant appeiiant had causai any harm to him or wa$ in any way rcsgonsi’bie for (iaiay m paymg saiaxy to ciacsase<i—' Pranab Kumar Nag. It seams that thr: deceased was very much dissatisfied with fhe workiag conditions at the Work p1ace. But, it may also be noticed that > tEe (leceased after his transfer in 1999 had never joined t‘he office at 160, B.L. Saha Road, KoEkata and had absenEd himseif for a period of Ewo years aud That the suicide took place on 16.2.2001. it cannot be said that the present appe§a11t had in any Way instigated the deceased to commit suicide or he was lespousible for the suicide of Prana‘b Kumar Nag. An‘offence wider Section 306, EPC wouid stand oniy if There is an abetment for me commission of the crime. ’Ehe parameters of ihe ‘abefment’ have been stated in Seetiozx 167 of the inciian 13631131 Corie. Sectiorjv 107‘ says that a person abets the doing ofa thmg: who instigates any person to do that film-g; or engages with one or more other person or persons in any conspiracy for the doieg ofthat thing, ifan aci or illegal omission rakes place in ‘ursuance of that conspiracy, or the person sneak} have mtentionaliy airied any act or iilegai omission; The explanation to Section 107 says that. any Wilifui misrepresentation or WiEifii coneeaiment of a material fact which he is bound to disclose. may also come within the contours of ‘abetment’. 6. In the suicide note, Except refcrring to tha nam€ of the appe31a11t at two piaces, there is no reference cf any act or incidence whereby me apyellant herein is alieged to have committed amy wiliful act 0r mnissicn or mientioaaji ' aizied or instigated the deceased—Pranab Kumar Rag in committing the act of suicide... There is no case that the appeiiazit has piayed. any part or any role 1'11 any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased — Pranab Kumar Nag.” 12‘ In KamaEakax Eaadram Bhavsar ané others vs. State of Maharashtra, AIR 2im4 $63 5Q3 {in pemcuiar paragraphs 10:12 6a 15); the Supreme Court observed as under: “19. The perusai of the evidence ied 'bv the Drosecution. it: this case shows that because of the ill-treamieiut ami iiarassment meted out to the victim, she had to ieave her matrimonial home aod in one case had even to take sheiter in the house of Samiie Palathi Wherefrom she was taken to her parent house by her brother. The fact that she was living with her parents whee she was taken back to her house for attending a r Satyanarayana Puja has also gone unchailengeci. The fact that she did file a. ‘petition for maintenance under § 125 of the Cr.P.C. is also admitted. 1n such circumstan ,es the fact that the victim was treated baaly, consequent to which she had to commit suicide can very weft be accepted. But the question that arises for our consideration is who is actuai‘r responsible for causing this harassment which ier'i to the death of Mina. if we examine the evidence of. P.W.2 as accepted by the High Court. it shows that this ' Witnsss sta‘ued mat the. deceased had told her that her mother—in—law, sister‘in—iaw amt? husband were ill-treating her on the ground tha‘i she was black in complexian and fhat she was short of hearhlg. P.W.3 also states fha’: the (ieceased had compiained about her husband, msther—in-law 911$ sister-in-law of beating her. This witness also stated that the (ieceased had told her fhat because of her harassment, she may even commit suicide. P.W.1 the brother simiiariy states {hat the deceased had compiaizied about the El-treatment meted out $0 her by her husband, mother—in-iaw ant} sister—i13- 1aw. lt is ciear from the evi<ience of these witnesses that so far as the harassment mefed out to the deceased the said prosecution Witnesses have consistentiy spoken about the involvement of the husband, mother-m—law and sister-in—iaw. Therefore, in our opinion, the High Court was justified in holding these accused persons responsible for offences punishable under Ss. 306 and. 498—A read with S. 34 ofl.P.C. because by this harassment meted. out to the iieceased, these accused persons have abetted her suicide. But so far as the father~in—1aw of the deceased, who is appellant No.2 before us. is concerned, we fmd no evidence at all to hold him guilty of the said offence. Therefore, to this extent, in our opinion, the High Com has erred. 12. We are of the opinion that this law laid down by a three-Judge Bench of this Court applies squarely to the facts of this case. Therefore, having come to the conclusion that the conviction by the High Court of appellants 1,3,4 and 5 is justified, we aft’hm the same under Ss. 306 and 498-A of the Code of Crimiaai Procedure _.\ \h but postpone the awarding of S€ntence to give an oppcrtunity tor the learned counsel for the appcnants to represent before us in regard to the quantum of sentence. We, however, allow the appeal} of 2nd appehant—Nandram Anaxld Bhavsar and set aside the conviction and sentence imposed on him by the Courts below and acquit him of the charges framed against him. We and Kamalakar Nandram Bhavsar (A~1), Tara Bai Nagdram Bhavsar (An3j, Hirabai Satish BhaVsar (A—4) and Mirabai NaJJdram Bhavsar (A-S) guilty of offences punishabk wider S. 306 read with S. 34 and S. 498-A read with S. 34, LRC. a11d confirm the conviction of the appellants on that score. 15. In regard to appellants—Hirabai Satish Bhavsar and Mirabai Nandram Bhavsar taking into. consideration the overall circumstances of the case against these appellants, we reduce the sentence under S. 498-A read with S. 34, LPIJ. to 1 year RI and to pay a fine of Rs.1,000/—; in default to undergo RI for 6 months. For the offence punishabie under S. 806 read with S. 34, LRC, also, we reduce the sentence to 1 year RI with a fme of Rs. 1,000/ —; in default to undergo R1 for 1 year. Substantive sentences to run concurrentiy.” 13. In the present case, none of the Witnesses has deposed that the deceased was ever instigated ‘by any of the respondentsjaccused prompting her to go for suicide. Even if looked from any angle, the allegations made against. the respondents]accused do not constitute the oifence under Section 306/ 34 IPC as the ingredients of anetment denned in Section 107 IPC are completely absent in this case. I gJ -m.’ 14. Keeping in View the ingredients of Sections 306 and 107 IPC and the above obsarvations of the Supreme Court. I am of the considered View that the ingredients of ‘abetment’ are totaily 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 the commission of the crime. Accordingly, in the present case offence under Section 306 IPC is not made out against the accused/ respondents. 15. Thus, after hean‘ng counsel for the parites and considering the material available on record as well as the elaborate judgment impugned passed by the Court below, and being Very much conscious of the existing legal position that in an appeal against acquittal if two views are possible on the basis of the evidence led by the prosecution and the trial Court taking one View favoured the accused, reversion of the nndings of acquittal by the appellate Court taking the other nossihie View into consideration is not permissible in law, this Court is of the View that the judgment impugned acquitn‘ng the respondents/accused of the offence under Sections 306/34 of the Indian Penal Code is just and proper and does not want anv interference by this Court. Accordingly, the appeal being without substance is hereby dismissed. Sdl— Pritinker Diwaker Judge