&^°T HIGH COURT OF CHHATTISGARH, BILASPUR ^ APPELLANT: (InJailT RESPONDENT: Criminal Appeal No.388 of 2007 Ramcharan Dhruv,S/o Khorbahra Dhruv, aged about 40 years, R/o Village Bharrakona, Police Station Simga, Distt. Raipur (C.G.) Versus State of Chhattisgarh, Through Station House Officer, Police Station Simga, Distt. Raipur (C.G.) <Appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Pres^nt: Mr. Chhabeshwar Sahu with Mr. Vivek Rathore, counsel for the appellant. Mr. Sushil Dubey, Govt. Advocate for the State/respondent. SinaleBench: Hon'ble Mr. T.P. Sharma. J ORAL JUDGMENT (10-8-2009) 1. This appeal is directed against the judgment of conviction & order of sentence dated 28-4-2007 passed by the 2ndAdditional Sessions Judge, Baloda Bazaar in Sessions Trial No.164/2006, whereby & whereunder learned Additional Sessions Judge after holding the accy.ged/appellant guilty forcommission of offence under Sectlons 306 & 498A of the I.P.C., sentenced him to undergo R.I. for ten years & pay fine of Rs.5,000/-, in default of payment of fine to furi:her undergo R.I. for 2 1/2 yearsand to undergo R.I. for three years & pay fine of Rs.1,000/-, in default of payment of fine to furtherundergo R.I. for six months, respectively. 2. Judgmentof conviction & order of sentence is challenged on the ground that withoutany iota of evidence relating to jnstigationor abetment of suicide or even commission of suicide by the deceased, the Court below has convicted & sentenced the appellant as aforementioned. 3. Case of the prosecution, inbrief, is that the appellant & deceased Rambai were husband & wife, they used to resjde under common roof, the accused used to consume liquor and assault his wife, and - he also suspects that the deceased was having illicit relation with spme other person. On 26-1-2006 at about 8 p.m. theaccused & his wife were quarrelling and during the course of such quarrel, the deceased poured kerosene oil upon herself with intent to create fear upon the accused on which the accused lit the match box and told that he may set her fire whereupon during the course scuffle the deceased snatched lighting stick of match box and thereby she was burnt. The accused poured water on the body of the deceased to save-her and ultimately along with other villagers, he took her who was in injured condition to hospital for treatment where she was treated by the doctorand her dying declaration was recorded by the Tahsjldar vide Ex.P-8. Dauaram, father-in-law ofthe deceased, has lodged written report vide Ex.P-land on the basis of thesaid report, F.I.R. was registered vide Ex.P-11. On 28-1-2006 the deceased succumbed to the injuries sustained by her. The Police prepared spot map vide Ex.P-2. Spot map was also prepared by the Patwari vide Ex.P-3. Articles were seized from thespot vide Ex.P-4. Merg intimation was recorded vide Ex.P-14. Inquest over the body of the deceased was prepared vide Ex.P-15 and the body was sent for autopsy. The dead body ofthe deceased was examined by Dr. Ulhas Gonnade (PW-6) vide Ex.P-10 and cause of death was cardio Fespiratory arrest as a result of burn. Statements of the witnesses were recorded under Section 161 of the Cr.P.C.and after completion of investigatjon, charge sheet was filed before the Judicial Magistrate Fjrst Class, Baloda Bazaar, who in turncommitted the case to the Courtof Sessions, Raipur from where learned 2nd Additional Sessions Judge, Baloda Bazaar received the case on transfer for trial. 4.1norderto prove the guilt of the appellant, the prosecution has examined as many aseleven witnesses. Statement of the accused was recorded under Section313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & false implication. The accused has taken defence that while his wife was buming he is the person who tried to save herand took her to the hospital. 5. After hearing counsel for the partjes/learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner. 6. I have heard learned counsel for the parties and perused the impugned judgment as also the recordof the trialCourt. 7. Learned counsel for the appellant frankly admits that there is sufficient evidence againstthe appellant forcommission of normal cruelty not of seriousnature. Learned counsel submits that the alleged cruelty or quarrel is of such trivial nature which is quite normal in the matrimonial life of a person. Learned counselargued fhatthe dyingdeclaration ofthe deceased reveals that the deceased herself has poured kerosene oil on her body to create fear upon the accused, but during the course of scuffle she herself has snatched the lighting stickof match box from the accused, therefore, this is a casefofonly accidental injury or accidental death and the appellant has notabetted or aidedor assisted suicide of the deceased. 8. On the other hand, learned State counsel supported the judgment and submjtted that the dying declaration set force on the fact that under compulsion she poured kerosene oil upon her and even after pouring of kerosene oil, the accused has not tried to save her and he himselfhas lighted the match stick which is suggestive of thefact thafthe appellant has aided & instigated the commission of suicide ofthe deceased who lastly died on 28-1-2006. 9. In order to appreciate the contentions of the parties, I have examined the evidence adduced on behalf of the parties. lO.Dauaram Sahu (PW-1), father-in-law of the deceased, has deposed that on the date of incident, he heard the sound of weeping of children of the deceasedon which he along with Jageshwarwentto the accused and knocked the door, the accused opened the door,the deceased was present inside the room, she herself told that she was burnt and requested to save her whereupon they took her to the hospital where she lastly died. Baisakhin Bai (PW-3) & Jageshwar (PW-4) have also substantially supported the same thing. ll.Case of the prosecution rests upon the dying declaration of the deceased recorded by A.S. Paikra (PW-5) who has deposed that on 28-1-2006 after necessaryenquiry and after getting certifjcate from the doctor, he has recorded the dying declaration of the deceased vide Ex.P-8. He has specifically deposed that deceased Rambai has voluntarily given her dying declaration which he has recorded and h ^v&^ has also taken the thumb impression of Rambai. The dying declaratjon specifically reveals that at the time of incident the accused was quarreling with her after consuming liquor and assaulted her, then with iritent to create fear upon her husband she poured kerosene oil upon herself on which the accused lit match box and told that he will set fire whereupon she herself has snatched the lightTng stick of match box thereby she was burnt. Written complaint was filed by Dauaramin which substantjally the same thing has been written. 12.In caseof abetment tocommission of suicide, the prosecution is required to prove the essential ingredient that the deceased has committed suicide and her suicide has been abetted/instigated or aided by the accused. But jn this case, the substantive pieceof evidence i.e. dying declaration & written report reveal that the deceased has not committedsuicide, even the deceasedwas not intending to commit suicide, but only with a view to create fear upon the accused she has poured kerosene oil upon herself and she herself has snatched thelighting stick as a result of which she received burn injuries, however, it did not exclude the possibility of accident. l3.Admittedly, in this case/the deceased died as a result of burn injury. The accused/appellant has tried to save his wife and he has shifted the injured (deceased) from house to hospital for treatment where she died. In absence of commission of suicide and its instigation or abetment, conviction of the accused under Section 306 of the I.P.C. is nbt sustainable. Learned Court below has considered the evidence, but has not considered the material aspect i.e. essential ingredient of the commission of offence under Section 306 of the I.P.C. and thereby committed illegality. l4.As regards the quesfion of conviction under Section 498A of the I.P.C., the dying declaration & other statements reveal that the appellant used to harass & assault the deceased after consuming liquor and the appellant also used to suspect that the deceased is havjng illicit relation with some other person. Evidence of the pro^cution is sufficient fordrawinginference that the appellant used to commit torture and cryelty upon his wife, though nature of cruelty & torture are not so serious. Learned Court below has convicted the Soma 5^-) appsllant under Section 498A of the I.P.C. and sentencea~tTlm to undergo R.I. for three years & pay fineof Rs.1,000/-, in default of payment of fine to further undergo R.I. for six months. tS.Taking into consideration the evidence of the prosecutionand the material available on record, I do not find any ground for interference in the finding of the trial Court relating to conviction & sentences of the appellant under Section 498A of the I.P.C. l6.Consequently, the appeal is partly allowed. Conviction & sentences of the appellant under Section 498A of the I.P.C. is maintained. Hov\igver, conviction & sentences under Section 306 of the I.P.C. are set aside and the appellant is acquitted of the said charge. Since, the appellant has completed the sentence, he be released at once, if notrequired in any other case. Sd/- T.P. Sharma Judge