rl—y mCWA ¢Crc V 7 0f200 2% . ea. QAku.‘ Applicant State ofM P through S HO P S Mahasamund, Dlstt Mahasamund. CF0000064569 Vs. Non-applicantg Toran Chandrakar son of Shn Gunmdm Chandtaka Aged about 22 years res1dent ofHadabandh P S Mahasamund D1stt Mahasamund APPLICATION FOR GRANT OF LEAVE TO APPEAL UNDER SECTION 378ml! OF Cr P C f xCRIMINAL APPEAL UNDEg SECTION 378(1) OF Cr P C r \ 1 N9R.. a @ ,1 I HIGH COURT OF CHHATI’IsGARH AT BILA$PUR Singh Bench : Hayfble Mr. Justice Pri'tinhr Diwaker Criminal Appcai No. 2360 of 2Q00 APPLICANT 5mm 9f Madhyc Pmdesh V Varsus NON-APPLICANT ' Tamn Chondmkcr' Shri Vaibhav A. Goverdhan, PL for *he smre/applicam. CRIMINAL APPEAL UNDER $ECTION 378 (1) OF THE CODE OF CRIA‘INAL PROCEDUR§ W‘s JUDGMENT (21.06.261G) § Present nppeal arises out of the impugned judgment and order- dafed 2.5.2000 passed by Second Addi?ionai Sessions- Judge, Mahasamund in Sessions Trial No. 194/1999 acquif‘ring The non-apphcanf of fhe offence under Secfion 306 of The Indian Penal Code. 2. Case of The prosecufion in brief is that on 22.1.1999 deceased Rekha Bai _commif1ed suicide by consuming poism; After consuming poison she was admitted to the hospifoi where she died on 24.1.1999. Merg intimation (Ex,P-13) was recorded on 24.1.1999 and F.I.R. (Ex.P«12) was registered on 29.3.1999. Ailegation against the applicant is that he was having an affair with the deceased and when she insisted him to marry her, he told her that if he married her against the wishes of his father, he would commit suicide. On this, the deceased told i i the respondent that if he did not marry her, she would commit I suicide and then, the respondent/accused had told her that she wanted to die, she could do that but he would not let his l father die. - ' ‘1 2 @ 3. In supporf of ifs case, fhe prasecurion has examined as many as 16 witnesses. Smfemem of The nop-applicunt/accused was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges leveiied against him and pleaded his innocence and faise impiicdi'ion in the case. \ 4. By The impugned judgmem the couri below has acquitted- ‘ihe respondent/accused of The charge punishable under Seciion 306 of ihe Indian Penal Code. Hence this appeai. 5. w “Counsel for fhe State/applicant submii‘s ‘ihai ihere is enough material against the accused/respondent and more particulary the decewed herself had givm the dying declaration (Ex.P-7) clearly narrating the entire incident. He aibmits that offence under Section 306 of IPC is apparently made out but the court beiow has erred in law in acquitting the respondent by the judgment impugned. 6. Heard counsel for the State/applicant and perused the material available on record including judgment impugned. 7. Shanti Bai (PW-1) — mother of the deceased has stated that respondent/accused in whose house the deceased was earlier working. had assured her daughter for marriage and one occasion the respondent/accused had come to her house and administered poison to her dmghter i.e. deceased. She has further stated that letters (Ex.P-3 d P-4) written by the respondent/accused were seized from her house. She has also stated that before making her court statement, she'had not g disclosed to police that her daughter had consumed poison. From the statement of this witne§ it cannot be said that the deceased was abetted in any manner by the respondent/accused to commit suicide. Dwarika (PW-2), Q Mantheer (PW-3), Dayaiu (PW-4), Kamibai (PW—5), Sameer \ ‘ Sarkur (PW-6) and Shyamlai (PW—.7) have not deposed anything ‘ against The respondenT/accused, AR. Dhurve (PW-8) had recorded dying deciarafion of 1he deceased (EXP—7). In The dying declmfion (EXP-7), deceased has stafed That : “Question :— How did The incidem fake place ? ReP'W- Tomn had said the? he would marry me. But his father Gunidih 1'oid Toran Thai if he would marry her, he would die. Toran further fold her ihaf he would no? marry her and further said that he would no'r let his father die‘and asked her to die if she so wants. I brought the poison from Toran's house and consumed it in my house. I consumed the poison/medicine in front of Toran and he told me to die if I so desire. I do not want to say anything else." Though the mother of the prosecutrix has stated that\ deceased had told her that accused/respondent had administered poison to her, in the dying declaration the deceased has categorically stated that she herself had consumed poison in the presence of. respondent/accused when he asked her “go and die”. Except this dying declaration, there is no other evidence on record on the basis of which it can be said that the deceased had committed suicide as a result of abetment at the hands of the respondent. u‘F a £ e8. For convicting the accused/appellant the prosecution has l to bring its case within the definition of Section 306 of the Indim Penal Code. To have a ready refemnce, Section 306 IPC zis quoted below: 306. Abzfmenf of Suicide. — If any person commits ‘suicide, whoever chefs The commission of such suicide, shall be punished with imprisonment of either description for- a term which may extend to ten years, and shoil also be liabie to fine. To see whether the act of the accused con be termed gs cruelty, a glimpse of “abetment” enshrined in Section 107 IPC appears to be the need, which reads as under : Section IOZ A person abefs the doing of a thing, ulna - First - Instigates any person to do that thing; or 5:59ndly — Engages with one or more other person or persons in any conspiracy for the doling of that thing, if on act or illega/ omission twhes p/aces in pumuanoe of that consplhaoy, and in order to the doing of that thing; or Third/y - Intentiona/h/ aids, by any act or illegal omission, the doing of that thing, Expianotion 1. - A person who, by mi/fu/ misrepresentation, or by m'l/fu/ conceaiment of a ‘ materia/ foot which he is bound to disclose, voluntari/y comm or procures, or attempts to cause or procure, a thing to be done, is said to [instigate the doing of that thing. Evianation 2. - Whoever: either prior to or at the time of the commission of an act, does anything in order to facilitate the commission thereof, is said to aid the doing of that act. 9. If the evidence adduced Qt the prosecution is considered tn the tight oftiie a6ooe pmision what comes out is that though, the deceased had tohf the respondent that ifhe did not mary hen she wouidcommit suicide and then he asked her “go and die”. ‘Ihe wordy ‘jgo 6‘5 die” wgedéi used 5y the mpondmt accuseddo not constitute ‘imtigottbn’. / ‘lhe word ‘instzg’ote’ denotes incitement or urging to do some drastic or ‘ i fr ‘ unmfvilm6lé action or to stimulate or mate @resence of mm yea“ t5erefore, is tlie necessay concomitant qf instigation. It is common @owklge tfiat Me wm uttereJin a quamfor in a warqfme moment cannot 5e tam to 6e utterefwtw mm rea. It is in a_& qfanger and' emotioa 53601145! tlie pment is a case wfim accusei/myond'ent 5a.; stated’thtt fie woullrwt let .61sjiztiief die 6ecause affiu mamage Wu appears Wu tfie accuseé/mwonient was mung to exphm $e d'eceased' a5 to wig; fie was una6k to mam! oer 10. Considering a" aspects of the case, this Couri is of. fhe co§éidered view that on the basis of fhe evidence adduced by the prosecution, it wiil not be safe for this Court to convict the occusw/aoplicmt for the offence under Section 306 of the Indian Penai Code. After due appreciation of the evidence, both the courts ' below have rightly convicted the accused/applicant. Mere use of words “go é die" would not be enough to attract the provisions of Section 306 of the Indian Pena! Code. \ 11. . After due appreciation of the evidence available on record, the Court below has arrived to a conclusion that the prosecution has not been able to prove its case beyond all reasonable doubts the respondent is entitled for acquittal. 12. After hearing counsel for the parties and going through the evidence available on record and being very much conscious of the existing legal position that in a case against acquittal if two views are possible on the basis of the evidence led by the prosecution and the trial Court taking one view favourable to the accused, reversion of the findings of acquittal by the appellate Court taking the other possible view into consideration, is not permissible in law, this Court is of the O N a. View fha‘r the judgmerw impugned acquitfing fhe respondenf/ accused of the offence punishabie under-‘Secfion 306 of fhe’ Indian Penal Code, is JusT and proper and does not call for any interference by this Court. 1‘3. For the reasons aforementioned, there is no merit in the present case and the some is dismissed accordingly. Sdi— i Pritinker Diwaker Judge “s