^^ ^n •^e Bench (Criminsl;, ' IN THE RIGH COtJRT OF 3HOICATDRE ^T 3ABALP8R^ CRimHAL APPEAL HSDER SECTION 374(2) CRimSALJPSOCEDUIiE^^COM^^ CR I WINAt. APPEAL_?^M /97 APPEU.ANT Y". -•, Nykva Singh aMas JVR^a Simgti, sen of Nyrari Singh, aQed abBBt 35 years^ cyltivator, jcesident of vlllagB tar©d, Poii^e StaUon Akaltaray Tahsll 3anjg Olstrict Bilaspeir. |ir, -yBrsus- RESPONQENT t The State of.Nadhya Pr|ade3h ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 774/1997 APPELLANT RESPONDENT Hukum Singh alias Munna Singh Versus State of Madhya Pradesh Shri Manoj Mishra counsel for the appellant. Smt. Smita Ghai PL for the respondent/State. CRIMINAL APPEALUNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (11.05.2011) This appeal is directed against the judgment and order datedl 31.3.1997 passed by the Additional Sessions Judge Janjgir, Districtj Bilaspur, in Sessions Trial No. 98/1991 convicting thej accused/appellant under Section 306 IPC and sentencing him to| undergo rigorous imprisonment for three years and pay fine of Rs.| 1000, 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 deceased] namely Vimla Bai alias Buti was solemnizedwith the accused/appellant| about six years prior tc the date of her death i.e. 29.6.1990. It is alleged] that on 29.6.1990 the deceased died in her matrimonial house and her| cremation was also done on the same day. On 1.7.1990 merg\ intimation Ex. P-1 was given by Hira Singh (PW-1) - the father of the| deceased to the effect that on 29.6.1990 he received information from) one Gadwa of village Taraud that his daughter (the deceased herein)| was ill. When this witness told him that he being unwell was not in a| position to go to the matrimonial house of the deceased at village) Taraud, the informer disclosed to him about thedeath of the deceased.] Thereafter, in the evening, the father of the deceased along with thej village Kotwar had gone to village Taraud where he found that] / ..^' '^stSk I € ~"^9 / .t^^ ^ cremation of his daughter was already over. He however is said to have offered certain ritual in the cremation ground by dropping five wooden pieces on pyre. It is alleged that his daughter was subjected to cruelty by the accused/appellant as a result of which she died. On the basis of said merg intimation, FIR Ex. P-5 was registered against the appellant u/s 306 IPC and after completion of investigation, challan was filed by the police on 20.12.1990 for the said offence. 3. So as to hold the accused/appellant guilty, prosecution has examined 09 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. | 1 4. After hearing the parties, the trial Court has convicted and | sentenced the accused/appellant as mentioned above in paragraph ! No.1 of this judgment. ! 5. Counsel for the appellant submits that even if the entire case of the prosecution is taken as it is, the appellant cannot be convicted under Section 306 IPC as basic ingredients of abetment as defined under Section 107 IPC are not attracted to the case in hand. He submits that the deceased died on account of illness and the allegation of cruelty made against the accused/appellant is absolutely false. 6. On the other hand counsel for the respondenVState supports the judgment impugned and submits that the findings of the Court below being based on the evidence available on record, are just and proper and require no interference in this appeal. 7. Hira Singh (PW-1) - the father of the deceased has stated in his evidence that marriage of the deceased was solemnized with the accused/appellant 12-13 years priorthereto and thatjust 1-2 years after the marriage there used to be dispute between the husband and wife. According to this witness, the accused/appellant used to subject the deceased to beating also on account of which she had come down to his house but after making her understand he had sent her back to her •€^ w^-^ ..^ ^"""'" ,,..;?? ^ ~3>- matrimonial house. This witness has further stated that sometime thereafter the deceased had again visited his house and informed him that the accused/appellant used to misbehave with her and on account of illicit relations with his sister-in-law (Bhabhi) he also used to beat her. Then, according to him, he along with Shivnarayan, Pitamber Singh and Rajeshwar had gone to village Taraud and asked the accused/appellant as to why he used to beat the deceased, on which he told him that he never did so. However, after making the accused/appellant understand this witness got back. This witness has further stated that thereafter someone from village Taraud came to him and informed that his daughter was not keeping well, on which he told him that as he was not feeling well, it was not possible for him to go there. Thereupon, the said messenger made it clear to him that his daughter was dead and on hearing the same in the evening he along with the village Kotwar went to Taraud but by that time his daughter's body was already cremated. However, he went to the cremation ground and performed some ritual by dropping five wooden pieces in the pyre. He has further stated that delay of two days in lodging the report was caused for the reason that after the death of his daughter he had lost his mental balance but as soon as the same became normal, the report was lodged. There appear to be certain contradictions in the court statement of this witness if compared to his case diary statement. 8. Rajeshwar Singh (PW-2) - the maternal uncle of the deceased has made almost the same allegation as has been made by Hira Singh (PW-1). Mahesh Kumar (PW-3) has stated in his evidence that one day when he had gone to the house of Rajeshwar Singh (PW-2), he came to know about the death of the deceased. According to him, whenever the deceased used to visit village Pakaria, she informed that accused/appellant used to beat her. Hullas Singh (PW-4) and Aniruddh Singh (PW-5) have not supported the case of the prosecution and have been declared hostile. Gokul Singh (PW-6) - the witness of inquest Ex. P-4 has not stated anything specific. Bhupendra Singh (PW-7) - cousin of the deceased has stated in his evidence that whenever the deceased came to village Pakaria, she informed him that the accused/appellant was having illicit relations with his sister-in-law (Bhabhi) but he had ^ 0 i.^ -^- made his sister understand saying that quarrels between husband and| 1 wife are common. Gomti Bai (PW-8) - the maternal aunt of the deceased and wife of Rajeshwar Singh (PW-2) has made almost similar allegations as have been made by other witnesses. R.R. Shukla (PW-9) is the investigating officer who has supported the case of the prosecution. | 9. Thus in the light of the aforesaid discussion, the important question to be answered by this Court is whether the allegations made against the appellant can make out a case under Section 306 IPC. Answer to the same would of course be in negative for the reason that the ingredients of abetment defined under Section 107 IPC are| completely missing in this case. To have a ready reference, the said| provision is reproduced as under: Section 107. A person abets the doing ofa thing, who - First. - Instigates anyperson to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy forthe doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in orderto the doing 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 of a material fact which tie is bound to disclose, voluntarily causes or procures, oi> attempts to cause or procure, a thing to be done, is said to instigate the doing ofthat thing. Explanation 2.- Whoever, either prior to or at the time of the commission ofan act, does anything in orderto facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing ofthat act." 10. While convicting a person for an offence under Section 306 IPC| it has to be seen that instigation to do a particular thing must be there.) 'lnstigation' literally means provocation, incitement, urge or persuasionj to do any thing. In this case none of the witnesses has made even a| whisper that death of the deceased was as a result of abetment by| anyone. The entire evidence brought on record goes to show that the| deceased was not abetted by the accused/appellant to end her life. 11. The aforesaid discussion if weighed with the evidence on record,] does not give any ground to maintain the impugned judgmentj -r- convicting and sentencing the appellant as shown above. Impugned judgment is not in consonance with the material collected by the prosecution and therefore, it has to be dislodged. 12. Appeal, as a result, is allowed and the judgment impugned is set aside. Appellant is acquitted of the charge levelled against him. As the appellant is on bail, his bail bonds stand discharged. Sd/- Pritinker Diwaker Judge CTj^