^-_ A /r-'F'^?'..-.?''! (in^e Sench [Lrimlnai] IN IHE HIGH CCOET II 1: ! ^ '-7 MAQHIA BIABBSH AI J'ABALPOE CE. APgiAL HO., " irl/^ , OE* 1993. ^' 1« Jiwaiy-al<son of Holkersingh, alias Laxniina'th Cliouhan<,aged . 23 years/re^ldent of Bhar'dakai.a, 2. Kacliaribal ^ife of Holkersingli alias Laxmlnath Choatian^aged ?? years{ resiaeat of Bhardakal^. Bo-bh SS ArjnBda'IaIiBil and Eistt. Burg, HP - vs. IHS STA'IE OS' M.P. APPBlIAIiTS {TS JAIL) EBSPOffiSHT ®tBISAI,^^P 'AI,.UgaB SEC2ION 334(2') OF :SBE, •3t2.. a< KiSi. HIGH COURT OF CHHATTISGARH AT BILASPUR • TSSf^VSfS" ; f' versus Jiwaalal & Aaofher State of Madhva Rcadesh Shri Vishiiu Koshta, counsel for the appeUauts. Shri Vaibiiav Goverdhan, P.L. for the State. APPL2CATIQN U/S 374 (21 OF THE CR.P.C. The present appeal is directed again.st ftie judgment dated 12.7.1993 passed by the Additional Sessions Judge, Durg, iu Session Trial No. 37/1991 convicting fhe accused/appeUaa.ts for the offence piinishable zmder Section 306 ofthe Indian Penal Code and sentenciag them to undergo rigorous imprisoninent for five years and to pay fiae of Rs. 500, in default of payment of luie to furffaer undergo simple unprisonment for one monfh. 2. Brief facts of the case are that on 29.9.89, Usha Bai wife of appeUant N0.1 coinnutted siiicide by settmg herself ablaze and on the sam.e day Merg intmiation (Ex.P/8) was given by Jhadu Ram (P.W.-l) aad on 30.9.89 a written coinplaiat was lodged by brofher of the deceased nauiely Muiishi Ram aUegiag ia it that the deceased was subjected to cruelly and harassinent by the appeHants aad fherefore action be taken agaiust thein. Based on fhis written icport, FIR (Ex.P/11) was registered by flie poUce on 30th Septeiaber 1989 itsett' for the offence punishable under Section 306 IPC. 3. In support of its case the prosecution has examiaed 12 witaesses. Stateinent of fhe accused oersous were also recoid.ed under Section 313 of the Cr.P.C. in which they have denied fhe chai^es leveUed agaiust fhein and pleaded their innocence and fslse implication iu fhe case. 4. After hearing leamed couiisel for the parties, fhe trial Court has convicted and sentenced the. accused/appeUauts as laentioaed above. Hence fhis aBpeal. 5. Contention of the counsel for the appeUants is that nierely on fhe basis of general aBegatious. tb;e accused/ appetlants have been convicted for the offeiice under Section 306 iPC. He submits that even if fbe entire case of piDseciitiou is taken as it is, the accused/appeBants cauaot be convicted under Section 306 JPC because fhe basic iagredieats ofSectioii 107 aie missiag. 6. On the other haad, supportiag the impugii.ed judginent it has been argued bv Shri Groverdhan that the deceased was harassed to -Uie extent where she was left with no ofher option but to coxiunit siiicide. He submits fhat the deceased has died withiD. orie and half year of her laarriage aiid therefore the conviction of the accused/ appeHaats is in accordaiice •witb. law. 7. I have heat-d counsel for the parties. Munshi Ram. (P.W.-l) elder brofher of fhe deceased has stated fhat the laamaae of tlie deceased was soienuuzed with tlie accused/appellant No.l ia fhe year 1988 aad initiaUy her sister was happy wiffa fhe accused/appellaiit. He has stated that on the eve of Teefa festival when his sister came to his house she had infonned that the accused/appeBants are deruaadiag for ear rings and she was beiag abused by fhe accused/appellants and was also beaten. He has fiirttaer stated that he had made written coiaplamt Ex.P/1 before the concemed poUce station. In cross exaEiinatioa this \vitaess has stated that after niarriage of fhe deceased whenever he had visited her house he was treated very weU and the accused/appeUant had never objected ia. sendiag his sister (siuce deceased) along wifh him. He has further stated tiiat even after receiving fhe infonnation froin her sister when she was being subjected to cruelty by tlie accused/appeUants, he had not given this iiifomiati.011 to anvone. He has stated that whenever fhe accused/appeSant N0.1 used to visit Tais house to take back his wife he was also treated weU. This witaess has admitted fhe fact that before ttie marriage of his sister (siiice deceased) wifti fhe -c\ accused/appellaiit No.l her engageiaent was done wifh anofh.er person however, the said laarriage was broken due to his poor finaacial conditioa and ultiniatelv she was aiarried wifh the accused/appeUant No.l Though this witness has denied fhat tiie deceased was suilering iroin epilepsy but has adnutted the fact that even at fhe time of inarriE^e on 3-4 occasions, fbe deceascd becaiae uacoiiscious. Furfher he has m.ade an atteinpt to clarilv ttiat fhis was because of her weak phvsical coBdition. T'his wdtaess has adnutted the fact fhat at fhe tiine of oaiichnaina. his faitulv inenibers were present but he has iiot stated aaything about fhe harassiaent by the accused/appeUants. Siat. Leela Bai (P.W.-2) cousin sister ofthe deceased has stated that on oue occasion when she ruet fhe deceased, she has iafortned her fhat fhe accused/appeBante kicked her fi-om the bed and she was beaten bv theia as she had not brought aav golden omaments. Kamla Bai (P.W.-3) elder sister of the deceased bas also inade general aUegations against the accused/appellants as has been made by Muashi Ram (P.W.-l) and Leela Bai (P.W.-2). 8. Gaya Bai (P.W.-9) is the mother of fhe deceased has also inade general aUegations against fhe accused/appellants. She has also stated that on the eve of Teeja festival her daugbter (sjnce deceasedl has coine to her house aad has iaformed that her husbaad does not like her and her niofher in law used to pass taunt on her. This witaess bas also adinitted fhe fact tliat before marrying the appeUant No. l, marriage of her daughter was Sxed with some ofher person however, the same could not be inaterialized. This witaess has also adnutted the fact fhat at the time ofinarriage the deceased becaine unconscious. 9. Dr. P.K.AgrawaI (P.W.-10) who had performed the post morteia of the deceased has given his report Ex.P/6 ia whicli he has ooined fhat tlie deceased died on account of shock due to extensive bura. Jhadu Ram (P.W.-4) neighbour of fhe deceased and fhe accused/appeBant has stated that on the date ofincident, after hearuig the cries, he rushed to the spot aad the bouse was bolted from iaside. He has stated that he had broken fbe door of fhe house aad saw fhe deceased bumnig. In cross exainiaation, he has categorically stated that he has never heard about the fact that the deceased was subjected to cruelty by the accused/appeUaats. He has also stated ftiat the deceased was suffenng from. epflepsy as a result of which she was distiessed. The ofher witaesses are the formal witnesses. In respect of seizure, preparation of spot inap and panch witaesses B.B.S.Rajput (P.W.-12) Investigatmg ofScer has supported the prosecution case. 10. Minute examination ofthe entire evidence as adduced bv tae prosecution., only generat ailegations have been ieveUed ^ainst fhe accused/appeUants on which basis itwfll not be safe for fhis C^oitrt to convict the accused/appeUaats for the offence as aileged. Further there is no evidence on record that ia aav uiaiuier the accused/appeUants have abetted fhe deceased. If fhe entire aUeeation is seen in the light of abetment as defined in Section 107 IPC, nofhing to be tenaed as instigation or abetnient to do a particular fhing is visible puttuig fhe provisions of Section 107 into motion. Sections 306 of the Indian Penal Code reads as under: 306. AJietment of Suicide.-If any person comjnife suidde, whoever abeis the cmnmission ofsudl suicide, shall be purvshed with imprisonnwnt of either descrsption for a term which Tnay extend to ten years, and shalJ a?so be lidble to ttfe. To see whether the act of fhe accused/appeUant caa be temied as cruelty, a gUmpse of "abetssienf enshrined in Section 107 IPC appears to be the need, wbich reads 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 for the doing of ihat ihing, if an act or Megal omission iakes places in pursuance of fhat conspiracg, and in orQer to the doing ofthat thing; or TM.rd.ly.- Intentionatly aids, by any act or illegal OTmssion, the doing ofthat ihing. Expiantttton 1. - A person who, by willfu.1 Tnisrepresentoliqn, qr by willful aincsalinenf of a nuxtenal-fact whtidz he is~bozcrt3.to dtsclose, votuntaniy ? causes or procures, or attempts to cause or procv.re, a thing to be done, is said to instigafe the doing of that i.h.ing. Bxplcutdtion 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facS.ttale the commission of that act and thereby fac&itates the oommission thereof, is scdd to aid the doing ofthat act." 11. Keepiag ia view fhe iagiedients of Sections 306 and 107 IPC, I am of fhe considered view fhat the iugredients of 'abetinent' are totatty absent in. fhe iustant case for au offence under Section 306 IPC. An offence uiider Section 306 IPC woiild stand onty iffhere is an 'abetment' for the conunission of fhe crune. Accordiagly, ia the present case oflence under Section 306 IPC is not niade out against the appeUaats. 11. In conclusion, fiie appeal is aBowed. The judgiaent impugned is hereby set aside. The accused/appellants are acquitted of the charges leveUed agamst theia. They be set free at once ifnotrequired in any ofhercase. --~~~'—-— ;r /