o^-' •^•^ ^\<^"":. 1 \-K'/".^6 ^•^.J-x^^ o^-'i M 9WU'3 ^s^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT Criminal Appeal No.*7^ ^2007 'Neelamber Sahu, son of Kunjan Sahu, aged 23 years, resident of Mokha -Phutaka, P.S. Saraipali, Distt. Mahasamund (C.G.) VERSUS RESPONDENT State of Chhattisgarh through P.S. Basna, district Mahasaraund (C.G.) CRIMINAI^APPBAI^UNDER^ECTION 374 QF THE CRIMI^AL PROCEDURE CODE •ai ':!' ,<l'""lt.: APPELLANT RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 738 of 2007 Neelamber Sahu VERSUS State of Chhattisgarh •^! w Post for pronouncement of the judgment on /z,.7.2010 ay Sd/- Pritinker Diwakar Judge s^fS:Ss!SS-9vk '-:-^"l~^-/~si^ 4 eee-.-t-way »}%S^^5SiS^K sa, •^^z; HIGH COURT OF CHHATTISGARH AT BILAS P UR (Hon. IVIr. Justice Pritinker Diwaker) Criminal Appeal No. 738 of 2007 APPELLANT RESPONDENT VERSUS- Neelamber Sahu State of Chhattisgarh Dr. N.K. Shukla learned Sr. counsel with Shri Shailendra Shukla Advocate for the appellant. Shri Ravindra Agrawal PL for respondent/State. CR1MINAL APPEAL UNDER SECTION 374 (2)OF THE CODE OF CRIMINAL PROCEDURE. JUD^MENT (f3.0'7.2010) This appeal is directed against the judgment and order dated 24.7.2007 passed by Sessions Judge, Mahasamund, in Sessions Trial No. 28/2006 convicting the accused/appellant under Section 306-IPC and sentencing him to undergo rigorous imprisonment for five years and pay fine of Rs. 5000, in default of payment of fine to further undergo rigorous imprisonment for two years. 2. Facts of the case in brief are that in the intervening night of 24/25.4.2006 deceased - Ku. Geeta committed suicide first by consuming some poisonous substance and then by drowning in Chandan pond of the village. Merg intimation Ex. P-1 was given on 25.4.2006 and based on that, FIR Ex. P-18 was registered on 26.4.2006 against the accused/appellants. Case of the prosecution is that one year prior to the date of incident, marriage of the deceased was fixed with the accused/appellant but ultimately it was broken at the instance of her family members. Further case of the prosecution is that thereafter marriage of the deceased was fixed with one Bhupendra Sao (PW-5) to be solemnized on 30.4.2006. Meanwhile, accused/appellant wrote a letter to said Bhupendra Sao asking him not to marry the deceased as he already had the relations with her. Case ofthe prosecution is that one letter was found in the vanity box ofthe deceased on 7.5.2006 mentioning that on account of her being defamed, she had decided to end her life. Though in the said letter name of the •appellant is not mehtioned,,according to the case of the prosecution the deceased committed suieide for that reason orily. After investigation the •\ ! »?a:sHa ?'^^~ '^^s^ -2-- challan was filed on 4.7.2006 and the charges were framed by the Court belowon 26.10.2006. 3. So as to hold the accused/appellant guilty, prosecution has examined 11 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 charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Counsel for the appellantsubmits that present appears to be a case of false implication where oi*|ly the interested witnesses have been examined by the prosecutioi3. He submits that in the so-called suicidal note (Ex. P-7) written by the deceased, name of the appellant has not been mentioned and even the deceased was not aware as to the person who had written the letter to Bhupendra Sao (PW-5). He submits that the letter allegedly written by the accused/appellant has not been produced by the prosecution and in its absence the accused/appellant cannot be convicted under Section 306 IPC. He submits that though the letter alleged to have been written by the accused/appellant was seized by the prosecution and sent to the hand writing expert for examination along with other documents of the accused/appellant, there is nothing on record to show that it was written by none else but the accused/appellant only. Counsel for the appellant submits that there are several contradictions, omissions and improvements in the statements of the witnesses and on this count also the accused/appellantis entitled for acquittal. Lastly, he submits that even if the entire case of the prosecution is taken as it is, conviction of the accused/appellant under Section 306 IPC as awarded by the Court below cannot be sustained as the ingredients of abetment defined under Section 107 ofthe Indian Penal Code are missing. 6. On the pther hand counsel for the respondent/State supports the judgment impugned and submits that letter (Ex. P-7) written by the deceeised which has been duly proved by the prosecution reflects that the deceased was harassed by the accused/appellant to such an extent that she was left with no other optiori but to commit suicide. He submits that the '\\ ^. • ^ ""fs p T^^ < :^-ves •~.?>v';-- -3- chastity which is the most precious asset for the girls particularly in Indian society is tried to be played with, it puts a big scar on their forehead which makes their life more miserable than anything else. He submits even if the so called letter of the accused/appellant has not been proved by the prosecution, there is other evidepce available on record i.e. statements of Mayaram (PW-2), Navin Sahu (PW-3), Tulsi Sao (PW-4) and Bhupendra Sao (PW-5) from which it is apparent that the deceased was compelled to commit suicide. He submits that in the present case, ingredients of Section 107 IPC are very much attracted and that being so the findings of conviction and sentence are just and proper and call for no interference in this appeal. r. 7. Heard counsel for the pafties and perused the material available on l^ record including the judgmerit impugned. 8. Rameshwar (PW-1) - uncle of the deceased has stated in his evidence that marriage of the deceased was fixed with Bhupendra Sao (PW-5). According to this witness, Bhupendra Sao had come to him and informed of having received a letter mentioning that its author would not let him get married with the deceased. This witness is also said to have read said letter but he was not aware as to who had written the same. According to him, two-three days after receipt of the said letter, deceased committed suicide by consuming poison. However, at this stage, this ^^•Ss^si^'-^^-. '^^^^^^ witness has been declared hostile. Mayaram (PW-2) - the father of the deceased has stated that one year prior to recording of his court statement, there was a talk with respect to the marriage of the deceased with the accused/appellant. Subsequently, according to this witness, the marriage of the deceased was fixed with one Bhupendra Sao (PW-5) who two-three days prior to the date on which the marriage was to be solemnized, had come to him and told that someone had sent an inland letter to him and was also threatening him on phone. According to this witness, by way 6f this letter, its author had asked Bhupendra Sao (PW-5) not to marry the deceased as she was a girl of lax morals. This witness has stated that on coming to know about the same, the deceased consumee) some poisonous substance and left the house. Thereafter, the ."-police had seized a letter Ex. P-7 from the vanity box of the deceased which was in her own hand writing. According to this witness, the k'/l r\ '-^-^ -4- accused/appellant was creating a hurdle in the marriage of the deceased with Bhupendra Sao (PW-5). According to him, the letter addressed to Bhupendra Sao was written by theaccused/appellant himself. On two- three earlier occasions also, the accused/appellant is said to have visited the village of this witness and tried to defame the deceased saying that he was in love with her. He has stated that it is only due to the hurdle in her marriage created by the accused/appellant, the deceased has committed suicide. This witness has stated that one Navin Sahu (PW-3) had informed him that the accused/appellant had disclosed to him about his gesture of being in love with the deceased. Jhe accused/appellant had told this witness also that he was-in los/e with the deceased and if she was not married to him, he woufd not l&t her marriage take place anywhere else. @gy According to this witness, as he did not foresee the incident, conduct of the accused/appellant in putting his daughter to ignominy was not reported either to the Panchayat or to the police. Another reason for non disclosure of the conduct of the accused/appellant to the police or the Panchayat has been assigned by this witness to be the apprehension of defamation ofthe deceased. This witness has stated that after going through the letter allegedly written by the accused/appellant, the deceased had given up food and said that the accused/appellant had spoiled her life. Navin Sahu (PW-3) - the Sarpanch of the village has stated that one year prior to recording of evidence talks for the marriage of the deceased with the accused/appellant were going on but the-same did not go ahead and were ultimately dropped. According to this witness, engagement of the deceased was fixed for 22.3.2006 and on that very day the accused/appellant had asked him on phone for cancellation of the same. The accused/appellant had also told this witness that even the deceased had informed the police in writing for cancellation of her engagement. This witness is stated to have asked the accused/appellant not to spoil the life of the deceased as he was already married, on which he had told him that since his marriage with the deceased was fixed earlier, he would not permit her to .get married elsewhere. According to this witness, he was informed by the father of the deceased that Bhupendra Sao (PW-5) - the -would-be husband of his daughter (deceased) had received a letter mentioning about its authdr's.love for her. In cross examination this witness has stated that on the date of engagement of the deceased, the K:-^:-^: w. -S-- accused/appellant had informed him on phone that he would not let the deceased marry elsewhere and on the same day he had disclosed the same to the father of the deceased also. According to this witness, eight days before the marriage ofthe deceased, when he again had a telephonic call from the accused/appellant^ he asked him to meet him personally. He has stated that the accused/appellant had met him personally but he did not disclose it to the police as the same was not asked by it. This witness has stated that he along with the maternal uncle of the deceased namely Jogendra had gone to the house of the deceased to console her but did not have any talk to her. Tulsi Sao (PW-4) - maternal uncle of the deceased has stated that one.yearprior to the date of incident a talk with respect to the marriage of thejdeceased with the accused/appellant was going on but ultimately at the instance of family members of the deceased it could not go ahead. This witness has stated that after refusal from the family of the deceased, the accused/appellant visited his village on various occasions and used to express his anger there-against. According to this witness, the accused used to say that as he had a liking for the deceased, he would not permit her marriage elsewhere. He has stated that after coming to know about the letter received by Bhupendra Sao, the deceased was up-set and apprehending her defamation in the society she had jumped into the pond after consuming poison. According to this witness, the letter Ex. P-7 was in the hand writing of the deceased. According to him, one Dhanesh Sahu and the Sarpanch of the village had also informed ^ ' ^ .. ...._',; him about the accused/appellant defaming the deceased. Bhupendra Sao (PW-5) with whom the marriage of the deceased was fixed has stated that some days prior to the date of marriage he had received a telephonic call from someone asking him not to marry the deceased as she was in love with somebody else. He wasalso threatened on phone saying that if he did not concede to his suggestion, none of the Baratis would return alive. However, the person calling him on phone did not disclose his name. According to this witness, 3-4 days prior to marriage he received a letter also. Thereafter, he went to the house of the deceased and informed her father about the threats given on phone as also by way of letter, on which . he wa^ informed by the family members of the deceased that earlier the ~. marriage of the deceased was fixed with the accused/appellant but later they had refused for the saroe:According to this witness, he had informed w - rf;:::i??SSSs£S^g§ sas -6- the deceased about the contents ofthe letter received by him and asked to her whether she liked him or not, on which she told him that she was marrying him with her own sweet-will and held the contents of the letter to be incorrect. In cross examination, this witness has stated that seeing the deceased weeping he had consoled her and given an assurance that he would marry her. This witness has stated that it is due to the pre-marriage defamation, the deceased was weeping. Jogender Sao (PW-6) -maternal uncle of the deceased has also made similar allegations as Tulsi Sao (PW- 4). Ganesh Ram Sao (PW-7) who is the witness who had taken out the body ofthe deceased from the. pond has stated that the photographs ofthe body were taken in his prespnce. Laxmi Prasad Dubey (PW-9) is the witness who had recorded tti^ merg and prepared the seizure memo. Pranesh Dubey (PW-10) is the investigating officer and he has supported the case ofthe prosecution. Dr. (Smt.) Roli Agrawal (PW-11) is the witness who had conducted the post mortem on the body ofthe deceased. 9. Before taking a turn to the evidence of the witnesses, a look to the letter (Ex. P-7) written by the deceased appears to be a necessity. In the said letter the deceased has categorically mentioned that the letter containing threat has totally perturbed her from inside but she was not aware as to who was playing the said tactics. In the said letter she has further stated that she had no affair with anyone. She has also pleaded forgiveness from Bhupendra Sao (PW-5) for not being able to convince l..- . . . . ' -. .' .- him about her innocence. She has'specifically mentioned about the miseries for a girl who is -put to such a defaming situation even before getting married. By thesaid letter the deceased had pleaded for pardon from her father also for the extreme step to be undertaken by her. She has also clarified that in such a demoralizing situation it would be better for her to end her life than to live a miserable life. Thus, the letter written by the deceased makes it clear that on coming to know about the letter containing threat said to have been received by Bhupendra Sao, she had lost her mental balance. The letter also clarifies that she was not having any affair with anyone and it is due to her being defamed in the society before marriage, she had taken the ' extreme step of committing suicide. f' / ''•' *i«, ^ \ 9^s»,-" a s ^"*tei I 'ti.^?J ^s»-.£'-i(>" ,<-( •M 7- ^^^?':^^~'"K®@ 10. Admittedly, the letter received by Bhupendra Sao has not been produced by the prosecution and in absence of the same evidence of the witnesses becomes very important. Mayaram (PW-2) - the father of the deceased has categorically stated that he had read the letter received by Bhupendra Sao. The said letter mentioned that Bhupendra Sao should not marry the deceased as she was a girl of easy virtue. According to this witness, it is after going through the said letter, the deceased consumed poisonous substance. This witness has also stated that the said letter also mentioned that theaccused/appellant was in love with the deceased and was trying to defame her in the society. From the evidence of this witness it also emerges that two-three months before the marriage of the deceased, the accused had tolt| him that he was in love with his daughter and if she was not married to him, he would not permit her marriage elsewhere. Most important witness in this case is Navin Sahu (PW-3) who at the relevant time was the Sarpanch of the village. From the evidence of this witness, it is clear that the accused had asked him on phone to cancel the engagement ceremony of the deceased and had also told him that if she was not married to him, he would not let her marry elsewhere. Tulsi Sao (PW-4) and Jogendra Sao (PW-6) who happened to be the maternal uncle of the deceased have also stated that after the engagement ceremony of the deceased with Bhupendra Sao was fixed, the accused/appellant used to visit their village and was trying to defame the deceased. According to them, the accused/appellant had also told one Dhanesh who runs a grocery shop in the village that if the deceased was not married to him, he would not get her married elsewhere. Of course, there are minor contradictions and omissions in the statements of these witnesses but merely on that count, their entire version narrating the attitude of the accused/appellant forcing the deceased to commit suicide cannot be ignored. Almost all the witnesses have stated that the accused/appellant was hell bentin thwarting the marriage of the deceased with Bhupendra Sao. It is also clear from the material available on record that by way of letter and also on phone the accused/appellant was trying to put the deeeased to social ignominy and thus feeling herself to be in lurch.'stie chose the path of heaven. / ' •;-1:' •^. ' '.' '•^fe-. 's -"---?^ ^ ^^*---^ ''<»=..:•-'•" 11. To convict the accused under Section 306 IPC instigation is one of the basic ingredients which means to goad, urge, provoke, incite or encourage someone to do an act. It is not necessary that express words should be used in order to instigate. The offence of abetment by instigation depends upon the intention o the person who abets and not upon the act which is done by the person who has abetted". ® "•^s^ 12. From the elaborate factual discussion made in the preceding paragraphs, it is clear as broad day light that the act of the accused/appellant in persistently putting the chastity of the deceased at stake which culminated in the ^end of her life, falls within the purview of abetment as defined under Seciion 107 IPC. Had the appellant who was .asgaw already married somewhere else, not undertaken such a foul play in posing a peril to the deceased who must have been cherishing a dream in her bosom for happier married life lying ahead, such a spine-chilling situation would not have arisen. Needless to say, if the chastity of an un- married girl is put a question mark, nothing can be a more indelible scar for her than the same. That is what has happened in the case in hand, which, sorry to say, needs no sympathetic consideration. 13. In conclusion, the appeal has no substance and the same is accordingly dismissed. As the appellant is on bail, his bail bonds are gss9s hereby cancelled. He be sent to custody forthwith to undergo remainder of the sentence. Sd/- Pritinker Diwakar Judge