‘ w/ Slna‘Olench g IN THE HIGH OURT OF CHHATTI GARH AT BILASPUR CRIMINAL APPEAL No. ? D 2008 S/o Brijial Sahu, Aged About 38 LY“é v 1. MURLIDHAR SAHU Years, Occupation, Labour APPELLANT IN JAIL PHOOLBAI ‘ Wife Of Brijlal Sahu, Aged About 58 Yrs, Occupation, Labour, Both Resident 0f Village Jhanakpur Tahsil Sarangarh, Police Station, Baramkeia, District Raigarh. (C.G.) -VERSUS- ' STATE OF CHHATI‘ISGARH Through, Poiice Station BaramAeia, Distt. Raigarh. CRIMINAL APPEAL U S 374 2 OF THE CODE OF CRIMINAL PROCEDURE .. , mg RESPONDENT HIGH COURT OF CHHATTISGARH AT. BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 420 of 2008 Murlidhar Sahu an another. d APPELLANTS VERSUS RESPONDENT State of Chhattisgarh. Shri Prakash Tiwari counsel for the appeHa‘nts. " Shri Pankaj Shrivastava PL for the respondent/State CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF ' CRIMINAL PROCEDURE / / JUDGMENT (28 1o 2009) In the Instant appeal an attack Is sought to be mae by the accused/appellants to the Impugned judgment dated 31 72007 ‘ passed by Additional Sessmns Judge Sarangarh Dlstrlct Ratgarh m V Sessmns Trial No. 129/2006 holding them gullty under Sec’uons 306/34 and 498-A of the Indian‘Pen‘al. Code and sentencing to undergo rigorous' imprisonment for six years with fine of Rs. 5000 and rigorous imprisonment for 2 years with fine of Rs. 2000, on each count respectively, plus default stipulations. '2. Narrowed factual configuration of the case leading to presentation of this appeal is put forth thus. Deceased Dhanmati and appellant No.1 were husband and wife and their marriage had been solemnized 16—17 years prior to the date of incident i.e.16.8.2000 I. and out of their wedlock they were blessed with children also.’ However, with the passage of time the accused/appellants started V' meting‘out cruel treatment against her which culminated in end of 'her’life on 16.8.2006. On 16.8.2006 deceased Dhanmati — wife of accused/appellant No.1 committed suicide by pouring kerosene on her body and setting herself afire. Merg intimation .(Ex. P-3) was given by one Chitrasen (PW-5) on the same day. Thereafter, FIR (Ex; P-17) was registered on 31.8.2006 and the dead body of the i W ll l / , t9 Area d é? -2- deceased was sent for post mortem examination to Primary Health Centre, Baramkela where Dr. J. Choudhary (PW-16) conducted the post death mortem was asphyxia and vide due his to report 100 per (Ex. cent P-16) burn. opined After that completion cause of of I; investigation charge sheet was fiied against the accused/appellants. '3' 3. So as to hold the accused/appellants guilty, prosecution has examined as many as 22 witnesses. Statement of the 313 of the ’\ accused/appellants was also recorded under section Code of Criminal Procedure in which they have denied the charges ainst them and pleaded their innocence and false levelled ag implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellants as mentioned above. Hence this appeaL 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellants submits. that the appellants have been Convicted mainly on the basis of evidence of Tularam (PW-1) — . brother of the deceased, Nanbai (PW-2), father of the deCeased namely Ganpat Sahu (PW-3), Kaushaliya (PW—6), Durjan (PW-7) - neighbours of the deceased and Sewakram Sahu (PW-8) — the President of the Sahu Samai. He further submits that Tularam stated in his cross examination that at the llant No.1 Murlidhar (PW—1) has categorically time when the marriage of deceased with appe was fixed, no dowry was settled by anyone and whichever articles n as per their own were given at the time of marriage. they were give s. According to him, this witness has further stated that ily by earning livelihood wishe appellant Murlidhar used to maintain his fam as labourer. He further referred to paragraph 11 of the cross ich he has categorically stated that frequently with her the deceased used to visit her parents very examination of this witness in wh husband (appellant No.1 Murlidhar). He further referred to paragraph “n ...3__ 17 of the cross examination of this WJtness m which he has stated that he was Informed by his sister (the deceased) that her husband (appellant Murhdhar) was askmg for the fmancual aid as he wanted to go somewhere else In search of some better livelihood This Witness has however stated that such fmancral ard asked for by the appellant Murlrdhar was as ioan on the promise of repayment of the same. According to him, in the entire statement of this witness, there is no allegation of harassment by the appellants on account of demand of dowry. He submits that so far as the allegation of cruelty is concerned, her' brother Tularam (PW~1) has stated that deceased was subjected to harassment by the appellants as they used to taunt her saying that she was less educated and was not aware of the household work. He submits that even if the entire statement of this witness is taken as it is, neither a case of cruelty under section 498-A nor that of abetment to commit suicide under section 306 IPC would be made out against the appellants as the ingredients of abetment as enshrined in section 107 of the indian Penal Code are not attracted in this case 6. Counsel for the appellants further referred to the statement of Nandai (PW-2) — mother of the deceased who has stated therein that accused/appellants used to harass the deceased saying that she was less educated and thick headed and not versatile in the household matters. This Witness has also stated about the disputes on two three occasions between the deceased and the appellants. This witness has further stated that accused/appellant Phulbai used to deprive the deceased of the company of her children by keeping them with her and ask the deceased to go to some other State for livelihood. She has statedvthat accused/appellants used to prevent- the deceased from visiting her maternal home. According to this witness, once accused/appellant Murlidhar had demanded Rs. 25,000 from the deceased and threatened her of her life in case of failure to do so. Counsel for the appellants submits that though the allegation of demand of Rs; 25,000 has been made by this witness, no such allegation has been made by Tularam (PW-1) and therefore the same cannot be worth acceptance. Likewise, Ganpat Sahu — father of the deceased (PW-3) has stated in his evidence that the accused/appellants used to taunt his daughter saying that she was less educated and had brought iess dowry. However, in paragraph nine of his cross examination this witness has admitted that in the Panchayat meeting the appellant No.1 (Murlidhar) had agreed to keep the deceased with him, and it was decided by the Panchayat that if this witness failed to send his daughter to her matrimonial house he would have to pay fine of Rs. 50,000 and if the appellant No.1 — Murlidhar failed to bring the deceased, he would be liable to pay fine of Rs: 50,000. Counsel for the appellants further referred to the statement of Kaushaliya (PW-6) — the neighbour of the deceased and submitted that though this witness has stated that the accused/appellants and the deceased used to have quarrels with each other and the appellants used to taunt the deceased saying that she did not know the household work, in paragraph nine of her cross examination she has admitted that she has never visited the house of appellants and was not on talking terms with them. The other witness Durjan (PW—7) — the husband of Kaushaliya (PW-6) has not supported the case of the prosecution and therefore he was declared hostile. However, in paragraph 7 of his deposition this witness has categorically stated that he had never seen the appellants beating the deceased and he was not in a position to say as to why the deceased died. Counsel for the accused/appellants also referred to the evidence of Sewakram Sahu (PW-8) who in paragraph No.1 thereof has stated that on an enquiry made by him, the deceased has once told him that the appellants used to harass her on the pretext that she did not know the house hold work including the cooking. When this witness separately asked the accused/appellant Murlidhar about the'deceased, he told him that he did not have any problem with her. On a further question being put by this witness to the deceased as to whether she wanted to go to her matrimonial home, she replied that she did not have any complaint with her husband and thus she consented for the same. Counsel for the appellants further referred to the evidence of .- S‘_ Jogiram (PW-10), the grand father of the deceased who has categorically stated in his evidence that deceased had never informed her about having any dispute between her and the appellants. He further stated that the appellant No.1 — Murlidhar and the deceased used to visit his house. Thus after taking this Court through the entire evidence led by the prosecution, counsel for the accused/appellants submits that none of the witnesses has stated anything against the accused/appellants and therefore the a ppellants are entitled for acquittal. 7. On the other hand counsel for the respondent/State supports the impugned judgment and Submits that as the accused/appellants used to harass the deceased and the cruelty was to the extent that the deceased decided to put an end to her life and therefore the Court below was wholly justified in convicting and sentencing the accused/appellants and no interference with the same is called for. 8. Heard counsel for the parties and perused the evidence available on record. The main point to be decided by this Court is whether the prosecution has adduced any evidence sufhcient to necessitate conviction of the appellants under Section 306 of the Indian Penal Code? To find an answer to this question, the evidence led by the prosecution is obviously a determinative factor. Evidence of the prosecution witnesses in this case though studded with serious contradictions needs to be tested in the touchstone of section 107 of the Indian Penal Code to make out a case under Section 306. To have a ready reference, section 107 IPC is quoted below: 9. Section 107. A person abets the doing of a thing, who — First. — Instigates any person to do that thing; or Secondly — Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. Q\‘ Explanation 1. —- A person Who, by Willfu/ misrepresentation, or by wil/ful concealment of a material fact Which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.— Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. A composite perusa! of entire provision makes it explicitly ciear that there should be ‘an instigation to do a particular thing. The word “instigation” literally. means to provoke, incite, urge or bring about by persuasion ‘to do any thing. The abetment may be by instigation, conspiracy or intentionally an aid to do a thing. ln this case none of the witnesses has stated that the deceased was instigated by the accused/appellants to put an end to her life. All the witnesses examined by the prosecution including the mother, father and brother of the deceased have stated that the appellants used to harass the deceased saying that she was of week mental faculty and did not know the household work. The only thing which can be gathered from the entire evidence available on record happens to be that the victim was hypersensitive to ordinary petulance, discord and differences in domestic life which are quite common in the society and all these things are not expected to have induced her to take such an extreme step. Thus unfortunately, even if the entire case of the prosecution is taken as it is, ingredients of section 107 of the Indian Penal Code are amiss in toto for the obvious reason that none of the witnesses examined in this case including the mother, father and brother of the deceased has made any specific allegation against the appellants except that they used to pass taunt against the deceased branding her to be of weaker mental faculty and not well-versed with the house-hold matters such as cooking etc., which cannot at all be termed as abetment. Speaking legally, the abetment or instigation literally means to goad, urge forward, provoke, incite or encourage to do an act, which if applied in the i , instant case, conviction for abetment appears t0 be a diétant and envious neighbour and the same is liable to receive a forceful jolt. 10. Now let’s turn to conviction under Section 498—A IPC. lt is not in dispute that the deceased had stepped in the house of the accused/appellants as a bride 17 years prior to the date of incident. Prosecution has not brought forth any material to show that the deceased was subjected to cruelty at the hands of the accused/appellants as is provided under Section 498-A IPC. The taunts made by the accused/appellants to the deceased for not knowing the household work and that of her being a woman of weaker mental faculty as has been deposed by the witnesses in their evidence, cannot be construed to be cruelty in accordance with Section 498—A IPC. 11‘ After giving a patient hearing to the arguments of the parties and subjecting the overall evidence available on record to judicial surgery, this Court reaches an unflinching conclusion that the impugned judgment convicting and sentencing the appellants under sections 306/34 and 498-A/34 IPC suffers with manifest illegality and irregularity and is thus liable to be set aside. 12. As a result, the appeal is allowed. impugned judgment dated 31.7.2007 is set aside. Appellants are acquitted of the offences under sections 306/34 and 498—A/34 IPC. They be set free if not required in any other case; Sd/— Pritinker Diwaker Judge