CF000065847S A' ^ ....\°' «Avy' V. G/'.^ J-^ './^' ^F^" <'•• 13 'EHE HIOI COCTRT OI' KAEHYA PRAI.ESll'. AT JAB?!.IiPUR, CR.AP.P3AL 30. Asll 1995 ^'/ r AppelljMltsAccused. s Siirjaarain soa of Baisakhu- (In 0"ail5 • ,.- ^.- aam Sahu, aged 62 years. no».' afcout 70 years, culti- -•vato.r , r/3 village sohpur i ff ^" i; P.S.Garar ,distrt. Durg,IiI£>* Versus. Respoadeats- State of M.P. Convlctl&n .. Sentence. •^..,,-. . "'^- . • .. u/s 306^6f XPC. R.I. 5 years, Appea.l U/s 374 af Cr.P.C. -*<». •u< !l.i R'4a u Fi f /-^- HI6H COURT OF CHHATTIS6ARH AT BILASPUft Single Bench : Hon'ble Mr. Justice Prftinker Diwaker Criminal Appeal No. 1587 of 1995 APPELLANT CTnjail) RESPONDENT Durjcmroim, son of Baisakhu Ram Sahu Versus State of Madhya Pradesh Shri D.N. Prajapat'i,counsel for the appellant. Shri Vivek Shorma, PL for the State. CRIMINAL APPEAL UN&ER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE JUOGMENT (06.01.2011) The present appeal arises out of the impugned judgment and order doted 15.11.1995 possed by Second Additional Sessions Judge, Dur-g in Sessipns Trial No. 39/1992 convicting the accused/appellant under S^ction 306 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for five years. 2. Brief facts of the case are that on 27.2.1991 deceased Hembai, wife of ©irdhan (acquitted accused) set herself ablaze in her matrimonial house. She was immedicrtety taken to the Christioin Hospital, Dhamtari. On 28.2.1991 written report- (Ex.P-6) was Jodged by Phool Singh (PW-7), fother of the deceasecl/' making certain allegations ogainst the accused/appeltcmt. On 4^-.1991 deceased died on account of bum injuries and F.I.R. (Ex.P-7) was registered against present appellont DuFJanram, &irdhari (husband of the deceased) ond Inder Bai, mother-in-taw of the deceased. After investigation elidHanwas filed hyt.he prosecution on 29.6.1991. "~T~ ntii[iinmiiM 'i, s^ f^ 3. So as to hold to accused persons guilty, prosecution has examined as many as 9 witnesses in support" of its case. Statement of the csccused persons were a\s> recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. Apart from this, witnesses namely Bhakturam (DW'-l) and Nemichand (DW-2) have also been examined by the defence in aipport of its case. 4. After hearing the part-ies, the court- below has acquitted the accused persons namety Girdhari and Inder Bai but has convicted theaccused/appellant under Section 306 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for fiveyears. 5. Counsel for the appellant submits that the accused/appelldnt hais been convictied on the basis of same set of evidence on which basis two other accused persons have been acquitted. He submits that two dying declarotions of the deceased were recorded i.e. Ex.P-4A and Ex.D-1 and in the second dying decloiration which is in the form of statement of the deceosed, there is no allegation against the accused/appeifant. He further submits that even if the entire cose of the prosecution is taken as it is, the offence under -Section 306 T^C \s not made out because the basic ingredients of Section 306 IPC in partigular Section 107 IPC are not attracted in the presen^ case. He also submits that the stfft-ementsof Sisal Singh (PW-1), Phool Singh (PW-7) and .Budhlal (PW-8) cannot be relied upon for convicting the .accused/appellant. 6. Support-ing the impugned judgment it has been argued by counset for the State/respondent that as prior to the incident accused/appellant caught hold the hand of the deceased, she committed suicide cmd- therefore, the conviction of the accused/appellant is 113 accordance with law. He further submits that specific allegations hwe been levelted against the accused/appellant and, therefdre, his conviction is in accordomce with law. 7. Heard counsel for the part'ies and perused the material avaitable on record includjng judgment impugned. 8. EX.&-I is a stcrtement of the deceased which was recorded on 27.2.1991 ie. immediately after the occurrence of the incident. This statement hois been recorded by Bhakturam (&W-1), l-1ead Constable and it can be treated as dying declarotion. In this statement, deceased has stated that- ofter her marriage, her mother-in-law <md father-in-law used to quarret with her and used to ask her husbcmd to teave the deceased, She has stated that they used to ask the deceased atso to leave the house as she was not fit for the house and does not perform the household work. She has further stcrt-ed thot on 8.2.1991 when she was on her fietd, Bisal Singh (PW-1), Sarponch cnd Budtjlal (PW-8) met with her and had asked her .; to make allegofions against her father-in-law by saying that it is he who caught hold of herTtond and if anysuch allegations is made by hep, a village meeting would be called and her fother- in-law .would be punished. She has stated that these persons 'have assured her that partition of the property of aceused/appellant would be done cnd she would be given her ShaFe, Sh&has stated tttat agreeing to the advice of these Iti^ "*l-i [111 ••~ri*«*aB»sl=silBGSa.SiaSiSiE'Si>tSEB Wua&C.«ia.a '•!'e 31 iil: i' i!l 1 il .^ ii i persons, she made allegations a9ainst the occused/appellcint and in the village meeting he was punished. She has stated that on account of the above act, she was upset and therefore, she decided to put an end to her life by ^tting herself on fire. Apart- for the above dying dectarotion of the deceased, one more dying dectarat-ion (Ex.P-4A) has been recorded by the Executive AAagistrate ond in the said dying declaration deceased has categoricatly stated that she set herself on fjre by pouring kerosen®oil because there used to be quarrel with her mother-in-faw, father-in-law and brother-in-law. She has also stated that she was threatened by the accused/appellant for throwing her out from the house. 9. Bisat Singh (PW-l);whose name has been referred to by the deceased in her- statement dated 27.2.1991, in his courf- stotement has stated that after receiving the complaint of the husband of the deceased 'm respect of the behaviour of the decieased, a village meefing was called and in the said meeting the deceased has made allegations against her- husband, mother-in-law and father-in-law (accused/appetlant). He has furt-her stated that the deceased had also informed in the said meeting that on 26 January accused/appellant caught hold of herhand.Ke has stated that in the said meeting alt the part-ies were persuaded not^f-o induige themselves in such activities and ./ it was evsn agi/eed to by the parties. Ravi Prosad Sharma (PW-2) is a Naib Tahsitdar, who had recoPded dying declarcrt'ion (Ex.P-4A) of the deceased. Dr. Anil Kumar Henari (PW-5), wfho had first attended the deceased in the Christian Hospitat, Dhamtari, has stated that at the time of admissrontfyhen he had asked histpry of the incident, he was l-;~s^-»" ''^. . •- -fnfor'med by'the:~deeaased that in the mam'ina there was some -.: w / s quarrel in her house and, therefore, she put herself on fire. Budhlal (PW-8) had made almost similar statementas has been made by Bisal Singh (PW-1). Bhakturam (DW-1) - Head constable has stated thoton 27.2.1991 he recorded the statement of the deceased (Ex.D-1) and at the time of recording the said stotement, she was ina position to make the same and the said document was duly signed by him and also signed by the deceased in the presence of ©irdhariand Dropati. Nemichand (&W-2) has stated that he knows the famity of the accused persons and also the deceased and immediately after the incident when he had reached to the spot,the deceased was in a position tospeak ond had informed him thot on account of Bisal Singh (PW-1) and Budhlal (PW-8) she had made statemerrt against her father-in-law in the village panchayat and cs she was not comfort-able after making such statemerit, she decided to commit suicide. 10. Thus, in the lighf 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 of the Indian Penal Code. Answer to the same would of course be in ne9crt-ive for the reason thort- the ingredients of abetment defined under Section 107 of the I.P.C. are eompletely missing in this case. 7° tiave a ready reference, the said provision is reprbduced as under :- ^»». ', "Section 107. A person abets fhe doing of a thing, who- ; First. - Instigdtes any person to do that thing; or ,i ^ Secondly - Engages with one ormore other person or ^ — persoosih.any conspiracy for the doing of that thing, if c»ieict or illegal omission fcd<es Dlaces in wi^^wice '^!! S^ifcs-j-H---- S—ffi-vSSfsS;!?!^ '^ of that conspirvcy, and in order to the doing of that thiry; or Thlrdly - Intentionally aids, by cny act or illegal omission. the doing of that fhing. Explanation 1. - A perwn who, by willful misrepresentation. or by willful concealment of a materiat fact which he is bound to disclose, voluntarily causes orprocures, or attempts to cause orprocure, a thing to be done, is said to instigate thedoiry of that thing. Exfslanation 2. - Whoever, either prior to or at the time of the commission of cn act, does arsythmg in order to facilitate the commission thereof, is said to aid the doing of that act. 11. While convicting a person for an offence under Section 306 of the Indian Penal Code it hos to be seen thort- instigation to do a part-icular thing must' be there. 'Instigation' titerally meoms provocation, incitement, urge or peraiasion to do anything. In the ccise in hand, none of the witneaes has been made even a whisper thot the deceased was abett'ed in any manner by the appetlant to commit suicide. Though in the dying declaration (Ex.P-4A), deceased has start-ed that there used to be some quarrel between her ond her family members and her father-in-lcw had given a threat to her for leaving the house but merely on this allegation, it cannot be said thot the accused/appellapt has committed offence under Section 306 of the Indian Penal Code, moreover, altegoitions are against the s^. acquitted accused Inder Bai also who has been acquittedby the }ria\ Court. Furt-hermore, in her stat-ement doted 27.2.1991 (Ex.D-1), deceased had stated that in the village meeting she made false allegationsagainst the accused/appellant cnd as she iso'afd^not digest the some, she decided to put an end to her life ^ .A.^ ^ 1 ^^"^ "'•{is SssS^' by setting herself on fire. Merely on the basis of some allegations made by father of the deceased Phool Singh (PW- 7). Bisal Singh (PW-1) and Budhlal (PW-8), it will not be safe for this Court to convict the occused/appellant under Section 306 of the Indian Penal Code. •V t2. Considering the totality of the case, the entire evidence brought on record goes to show that the deceased was not abetted by the present appeltaht to end her life by committing suicide. 13. The oforesaid discussion if weighed with the evidence on record, does not give any ground to maintain the impugned judgment convicting and sentencing the appellant as shown above. Impugned judgment is not in consonance with the materiat cotlected by the prosecution and therefore, it has to be dislodged ond the appellant is entitled to benefit of doubt. 14. In conclusion, the appeal is allowed. Impugned judgment convicting and sentencirig the accused/appellant as mentioned above is set ceide. Appellant is acquitted of the charges levetled against him. The appellant be set at liberty, if not required in any other case. Sd/- Pritinker Diwaker Judge / / - '*»-