Ghan Shyam Singh vs State Of U.P.
2013 Latest Caselaw 7366 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
RESERVED
 

 
COURT NO. 41
 

 
CRIMINAL APPEAL U/S 374 Cr.P.C. No. - 5666 of 2003
 

 
Ghan Shyam Singh
 

 
Versus
 

 
State of U. P.
 

 
Counsel for the appellant -  Sri P. N. Mishra, Senior Advocate assisted 				       by Sri Apul Mishra, Advocate
 

 
Counsel for the respondent - A.G.A.
 

 
CORAM:
 
HON'BLE ANIL KUMAR SHARMA, J.

Challenge in this appeal is to the judgment and order dated 7.11.2003 passed by Sri Umesh Chand Pandey, the then Addl. District & Sessions Judge, Court no. 11, Mathura in S. T. no. 700 of 1998 whereby the appellant has been found guilty for the offence punishable u/s 306 Indian Penal Code and had been sentenced to seven years' rigorous imprisonment and fine of Rs. 5,000/- with default stipulation. However, the learned trial Court has acquitted co-accused Veena, with whom the accused has contracted Dhareja (customary marriage).

2. Facts germane to the appeal are that on 26.2.1997 complainant Phool Singh submitted a written report in Kotwali, Mathura alleging that the marriage of his daughter Usha Devi was solemnized with accused Ghan Shyam Singh on 4.3.1977 and they resided in Shanti Nagar, Maholi Road, Mathura. Her husband was employed as Junior Engineer in the office of the S. D. O., Telegraph Department. On 14.2.1997 he had contracted second marriage with a girl resident of Neem Gaon and 2-4 days thereafter he asked his daughter to give a writing that for seven years she had no relationship with him. When she declined, he (the accused-appellant) extended life threat to her. On 24.2.1997 she came to him and narrated the incident, whereupon he talked with the accused and she went along him. In the morning of 26.2.1997 accused along with his new wife admitted Usha Devi in Methodist Hospital, Jai Singh Pura, informed the complainant and after her death, made his escape good. The complainant found the dead body of Usha Devi in the hospital. According to doctor's report she had died due to intake of Sulphos. The report further stated that the accused used to harass and torture Usha Devi on the premise that he is Junior Engineer and her father had given nothing to him, she is only High School pass and he would marry an educated lady. On the basis of this report case at crime no. 87 of 1997 u/s 498-A, 506, 306 IPC and 3 /4Dowry Prohibition Act was registered. During investigation inquest and autopsy on the cadaver of the deceased were conducted. In the viscera of the deceased, the Forensic Science Laboratory, Agra found aluminum phosphide poison. The investigation culminated into charge sheet against the appellant and his alleged new wife Veena Devi.

3. After committal of the case to the Court of Session, charge for the offence punishable u/s 306 IPC was framed against the accused who abjured their guilt and claimed trial.

4. In support of the charge, the prosecution examined complainant Phool Singh PW-1, Chander Bhan PW-2, Dharmendra Singh PW-3, Dr. N. K. Mittal PW-4, SI Jai Krishna Soni PW-5, Retired SI Shiv Ratan Singh PW-6, S.I. R. K. Yadav PW-7 and Santosh Kumar Singh PW-8.

5. In his statement u/s 313 Cr. P. C. accused-appellant admitted his marriage with the deceased but has denied the other part of the prosecution story stating that Rajvir (brother of the deceased) was pressurizing the deceased to adopt his son Golu. He insisted for execution of adoption deed and transfer of property, but the deceased was not ready and on the day of incident there was some scuffle between the deceased and Rajvir. He received information in his office that his wife is not well, he immediately took her to Mehodist Hospital, admitted for treatment and he had relevant papers. On his information the family members of the deceased also arrived in the hospital and when he could not be saved they had beaten him and thereafter lodged false report against him. He had emphatically denied that he had performed second marriage with Veena Devi. In defence the accused-appellant had also filed six papers per list 83-Kha, which are bills/receipts regarding treatment of the deceased in Methodist Hospital, certified copy of will executed by the deceased in favour of her brother Rajvir, two days prior to her death, certified copy of sale deed dated 21.11.1994 in favour of the deceased executed Suresh Chand Gupta, certificate of nominee issued by Divisional Manager (Admn) office of TDM, Mathura regarding Provident Fund and Central Govt. Employees Group Insurance Scheme and nominee certificate in respect of shares of Mastergain-92 issued by Chief General Manager, UTI, New Delhi. The defence also summoned two applications dated 26.2.1997 and 10.9.1997 filed by the complainant in the department of the accused-appellant for suspension/termination of the accused-appellant regarding his criminal act committed by him on 26.2.1997.

6. The learned trial Court after hearing the parties' counsel has convicted and sentenced the appellant through impugned judgment as stated above in para-1. However, the alleged second wife of the appellant co-accused Smt. Veena Devi was acquitted of the charge. Aggrieved, the appellant has come up in appeal.

7. I have heard the learned senior counsel for the appellant and learned AGA for the State and carefully perused the record of the trial Court.

8. According to the learned counsel appearing for the appellant, ingredients of abetment are totally absent as envisaged under Section 306 IPC read with Section 107 of the IPC and, therefore, the appellant is liable to be acquitted, particularly when the alleged second wife of the appellant namely - Veena, has already been acquitted by the trial Court. It was further submitted that on a proper interpretation of the facts as also the provisions of Section 306 IPC it cannot be said that the appellant herein was in any manner responsible for abetting the suicide committed by the deceased which was an independent act of the deceased. It was also submitted by him that the appellant did not in any manner substantially assisted the deceased in committing the offence of suicide and since there was no such participation of the appellant in abetting the offence of suicide, the conviction and sentence under Section 306 IPC is required to be set aside and quashed. It has been further contended that the trial Court has acquitted co-accused Smt. Veena Devi, with whom the accused has contracted marriage, so the accused-appellant cannot be convicted for the offence punishable u/s 306 IPC. Lastly it has been contended that all the witnesses of fact namely PW-1 to PW-3 are close relatives of the deceased i. e. her father, cousin and real brother, no implicit reliance should be placed on their testimony as they are highly interested witnesses.

9. Per contra learned AGA supporting the impugned judgment has contended that acquittal of co-accused Veena has no bearing on the present appeal and conviction of the appellant in the case; that there is ample evidence supported with circumstances available on record which clearly prove the guilt of the accused-appellant to the hilt and as such the appeal is liable to be dismissed.

10. Before I dwell upon to consider the rival submissions it would be proper and appropriate to narrate the evidence led by the prosecution in support of the charge.

11. Complainant Phool Singh PW-1, father of the deceased has stated on oath that he had given her daughter in marriage to accused Ghan Shyam Singh on 4.3.1977 and she was living with him. The accused is posted as Junior Engineer in Telephone Department. In the marriage, performed according to Hindu rites, he had given sufficient dowry which included jewellery of 18 tolas gold and 2 Kg. Silver, but he always continued to harass and beat her. He used to pacify her daughter, which could survive for some time. He taunted that due to her his progeny is not progressing, she is less educated and he would marry a upto date girl and his father had not given dowry according to his status. He used to drive her out for nights saying that she is sterile. On 14.2.1997 after performing marriage he brought home Veena d/o Keshav Singh and four days thereafter her started bickering and forced her to write (in his words) 'fd rw eq>s lkr o"kZ igys dh rkjh[k esa ;g fy[k dj ns ns fd esjk bl O;fDr ds lkFk ¼?ku';ke flag½ ifr ifRu dk dksbZ laca/k ugha gSA eSa vius ek;ds esa jgrh gwWA' On 24.2.1997 the deceased came to his house and narrated all the incident all family members, but again he persuaded her to go back. On 26.2.1997 he got information that his daughter Usha has died in Methodist Hospital. They reached there but the accused along with his new wife went away. They found dead body of the deceased, which was cremated by him after he post-mortem examination. He has further stated that on his enquiry the doctor of the hospital told him that the deceased has suffered death due to intake of sulphos tablet. Thereafter he lodged report of the incident in Kotwali, Mathura in his hand writing and signature, which has been proved by him as Ex. Ka-1.

12. Chander Bhan PW-2 is the real nephew of the complainant. He has stated that complainant Phool Singh is his neighbour whose daughter Usha was married with Ghan Shyam Singh about 24 years ago. In the marriage he had given more than sufficient dowry. She was issue less and that's why Ghan Shyam Singh contracted second marriage with Veena d/o Keshav Singh of village Neem Gaon on 14.2.1997. Ghan Shyam Singh used to harass and torture Usha and insisted to give in writing that they had no relationship of husband and wife for seven years. He has further stated that this incident was narrated in the village by Usha before him on 24.2.1997. Thereafter the accused had abused her at the house of Rajvir situated in Jamunapar and took her. Thereafter, God knows what happened, accused forced Usha to eat some thing or she had herself taken and she died in Methodist Hospital.

13. Dharmendra Singh PW-3 is the younger brother of the deceased. He has stated that the marriage of his sister Usha was performed by his father with Ghan Shyam Singh. She was issue-less and from the beginning he used to harass and torture her saying that she is less illiterate and lacks urban manners and had not brought dowry. Ghan Shyam Singh is J.E. in Telephone Exchange. On 14.2.1997 he performed second marriage with Veena d/o Keshav Singh of Neem Gaon and after marriage they both used to harass her saying to give writing that he had no relation/connection with him for seven years. Two days before her death she had come to their house and in presence of parents she had told them that Ghan Shyam and Veena are harassing and torturing her. On 26.2.1997 he got information that his sister is admitted in Mehtodist Hospital and when he reached the hospital he came to know that Usha had died due to poison. Ere that Usha had come to back to her matrimonial home on 24th from his village.

14. Before I proceed to analyse the evidence adduced in support of the charge by the prosecution against the accused-appellant, it would be pertinent to note the concept of 'abetment'. Section 306 of the Code deals with 'abetment of suicide' which reads as under:

"306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine."

Word 'suicide' in itself is not defined in the Indian Penal Code, however, its meaning and import is well known and requires no explanation. `Sui' means `self' and `cide' means `killing', thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.

15. Our Penal Code does not prescribe any punishment for suicide, because the offender is no more in the world, however attempt to suicide is an offence under section 309 of I.P.C. 'Abetment of a thing' has been defined under section 107 of the Code, which reads as under:

"107. Abetment of a thing - 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 aides, by any act or illegal omission, the doing of that thing.

Explanation 2 which has been inserted along with section 107 reads as under:

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 facilitate the commission thereof, is said to aid the doing of that act."

16. In the case of Ramesh Kumar Vs. State of Chhatisgarh (2001) 9 SCC 618, a three Judge bench of the Apex Court in para-20 of the report, after examining different shades of the word 'instigation', has observed as under:

"20. Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act';. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."

17. In State of West Bengal Vs. Orilal Jaiswal and another (1994) 1 SCC 73, the Hon'ble Supreme Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

18. In Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi) 2009 (16) SCC 605, the Apex Court had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word 'instigation' and 'goading'. The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

19. In Crl. Appeal no. 611 of 2011 M. Mohan vs State represented by Dy. Supdt. of Police (Arising out of SLP (Crl.) No.2550/2010) decided on 1 March, 2011, a constitution Bench of the Supreme Court consisting of 7-Hon'ble Judges has observed that abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. Thus, we have to find out whether there was any positive act on the part of the accused-appellant to instigate or aid in committing suicide by the deceased.

20. From the oral and documentary evidence on record, it transpires that the following facts are not disputed:

i) that the accused and the deceased were married on 14.2.1997;

ii) that the couple was issue-less;

iii) that they resided together till the death of the deceased;

iv) that the deceased was admitted in Methodist Hospital, Mathura by the accused-appellant on 26.2.1997 and she died there the same day at 1.40 p.m.;

v) that in the viscera report of the deceased poison aluminum phosphide was found;

vi) that on 24.2.1997 the deceased had executed will regarding her movable and immovable properties in favour of her younger brother Rajvir Singh.

21. The witnesses of fact PW-1 to PW-3 are no doubt the close relatives of the deceased, but considering the nature of the offence coupled with the facts and circumstances of the case, there was no possibility of any other out sider, who was well acquainted with the internal family affairs of the deceased and the accused-appellant and their inter-se relations. Thus, non-examination of independent witnesses is no impediment for the prosecution story.

22. Although the accused has emphatically denied to have contracted any marriage with acquitted accused Veena Devi, but the affidavits filed on behalf of the accused appellant in the bail application before the Sessions Judge, which have been brought on record on behalf of the complainant, do clearly show that the accused-appellant has contracted marriage with Veena Devi with a reservation that it was performed with the consent of the deceased as she failed to bear child. The complainant has brought on record the certified copies of affidavits filed by Ramvir son of Hubb Lal, Sugriv Singh s/o Keshav Singh r/o Neem Gaon, P. S. Raya, Mathura, Smt. Ganga Devi w/o Sheodan Singh, Hubb Lal s/o Dilmor Singh, who have in unison stated that Dhareja (customary marriage) was performed by the accused appellant with Veena Devi with the consent of the deceased as she was unable to bear a child. Out of these persons Hubb Lal is the real brother of the accused-appellant and Ramvir Singh is son of Hubb Lal. Sugirv Singh is real brother of Veena Devi while Smt. Ganga Devi is the sister of the accused-appellant. Undoutdely the accused-appellant has filed several medical papers of the deceased, which show that she was medically treated by the accused during the period of 1992-1995 in various cities, but considering the date of incident, these documents do not help the accused-appellant to prove his innocence in the case. Similarly his nomination of the deceased in provident fund or group insurance scheme are of no avail to the accused-appellant as they too are remote in time. It is pertinent to note that although in her statement u/s 313 Cr. P. C. recorded on 4.9.2003Veena Devi had described herself as wife of Raju and resident of Neem Gaon, P. S. Raya, Mathura, but on 5.2.2000 the accused-appellant and Smt. Veena have filed vakalatnama of Sri Uma Kant Chaturvedi, Advocate in this case wherein they have described themselves as husband and wife resident of B-68, Pratap Nagar East, Maholi Road, P. S. Kotwali, Mathura. A man can lie, but circumstances would never tell lie. This conduct of the accused-appellant strengthens the prosecution case about his having performed second marriage in the life time of his 1st wife (deceased) with Veena Devi.

23. All the witnesses of fact examined in the case have proved that the deceased was being maltreated, harassed and tortured by the accused-appellant as he intended to get a writing from her that she had no relations with him for past seven years as husband and wife. This was the immediate cause for the deceased to have killed herself by taking poison in her matrimonial home. Since the accused appellant is a Govt. servant who could not have contracted second marriage in the life time of his 1st wife and in fear of losing the job, he was pressurizing the deceased to give a writing on the above lines. The suggestions given to these witnesses on behalf of the accused-appellant do not indicate that the deceased has consumed poison by mistake or accidentally.

24. The defence on the basis of will executed by the deceased in favour of her younger brother Rajvir has tried to show that in greed of property he was instrumental in her suicidal death. The accused-appellant has not adduced any oral evidence in his defence. It is noteworthy that the prosecution has filed the will alleged to have been executed by the deceased two days prior to her death in favour of her younger brother to prove the guilt of the accused-appellant. The accused-appellant has himself filed the certified copy of the aforesaid will, which is reproduced as under:

" olh;rukek"

"eSa fd m"kk nsoh ifRu ?ku';ke flag o iq=h Qwy flag fuoklh 'kkgiqj rg0 ekWV ftyk eFkqjk] gky fuoklh izrki uxj bZLV 68&ch] eFkqjk dh gwWA esjk fookg ekpZ] 1977 esa gqvk Fkk ijUrq nqHkkZX;o'k esjs dksbZ larku iSnk ugha gqbZ] blh dkj.k ls esjs ifr eq>ls vlarq"V o vizlUu jgus yxs gSa] ;gkW rd fd dbZ ckj esjs lkFk vHknz O;ogkj fd;k gS vkSj ,d nwljh L=h ftldk uke ohuk gS dks ykdj ifRu ds :i esa ?kj esa j[k fy;k gSA bu ifjfLFkfr;ksa esa eq>s ?kj ls fudky nsaxs ;k ekj nsaxs rFkk rykd ds fy, Hkh eq>s ck/; fd;k tk jgk gS vkSj esjs euk djus ij esajs lkFk ekjihV dh gSA bu ifjfLFkfr;ksa esa esjh gkfnZd bPNk gS fd esjh tks py o vpy lEifRr gS tks eq>s esjs ekrk firk ls feyh gS py lEifRr esa esjs ikl pkWnh o lksus ds tsojkr tks iatkc us'kuy cSd Hkjriqj njoktk eFkqjk esa ykWdj ua0 460 esa jD[ksa gSaA cSad esa tek /ku rFkk vpy lEifRr esa ,d nqdku nks QM dh gjh dqat egksyh jksM izrki uxj oSLV esa fLFkr gS] dh ckcr olh;r dj nwW D;ksafd eq>s vius ifr ls [krjk gS] fd esjs lkFk dksbZ Hkh nq?kZVuk gks ldrh gSA

vr% eSa viuh LosPNk ls olh;r djrh gwW fd eSa tc rd thfor jgwWxh eSa viuh mijksDr lEifRr dh ekfyd jgwWxh vkSj esjh e`R;q ds i'pkr esjh mijksDr py o vpy lEifRr dk efkyd esjk HkkbZ jktohj flag iq= Qwy flag fuoklh tequkikj gksxkA vr% ;g olh;rukek jkth[kq'kh o fcuk fdlh ncko ds fy[k fn;k fd lun jgsa o le; ij dke vkosA"

25. The contents of the will corroborate the allegations levelled by the prosecution against the accused-appellant in the case. The deceased on account of second marriage of her husband was apprehensive that either she might be driven out of her matrimonial home or killed by the accused-appellant or divorced. This will executed two days prior to the death of the deceased can be treated her dying declaration, which is in consonance with the prosecution story. Since the deceased was a Government employee so he could not have contracted second marriage without divorce from his first wife in her life time, as in that event he might lose his Government job and that's why the accused-appellant was compelling his wife (deceased) to give him in writing that she has no relations with him as husband and wife for seven years and is living with her parents. No Hindu wife would like to live with the second wife of her husband under the same roof. The story set up by the complainant in his written report in the wake of recitals of the will executed by the deceased cannot be called or termed as concocted or after thought. It is true that the complainant has filed applications in the department of the accused-appellant for his suspension/termination from service as he has killed his daughter by administering poison, but that would not affect the prosecution story, as it is the tendency of the complainant in a criminal case to exaggerate the facts particularly when they relate to commission of henious offence by any one.

26. The evidence on record clearly prove that the accused-appellant after contracting second marriage with Veena Devi harassed her to such an extent that she executed a will of her movable and immovable property in favour of her younger brother on 24.2.1997 i. e. only two days prior to her taking drastic step of committing suicide. Her parents had again persuaded her to go back and live with accused-appellant. Thus, in the facts and circumstances of the case it can safely be concluded that cruelty or harassment sans any dowry demands which drives the wife to commit suicide attracts the offence of abetment of suicide' under Section 306 IPC.

27. In view of what has been said and done above, I find that the appellant has been rightly convicted and sentenced by the learned trial Court for the offence punishable u/s 306 I. P. C. and the impugned judgment and order are not liable to be interfered. The conviction of the appellant and sentence imposed upon him are hereby confirmed. The appeal fails and is accordingly dismissed. The accused-appellant is on bail. Immediate steps be taken to arrest him and sent to jail to serve out the sentence imposed upon him by the trial Court.

28. Let a copy of this judgment be transmitted to the Court concerned and Chief Judicial Magistrate, Mathura for ensuring compliance which should be reported to the Court within 6-weeks.

(Anil Kumar Sharma, J)

December 10, 2013

Imroz/-