Srimati Sharda Devi vs The State Of U.P.
2017 Latest Caselaw 5852 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 27
 
Case :- CRIMINAL APPEAL No. - 50 of 2007
 

 
Appellant :- Srimati Sharda Devi
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Rishad Murtaza
 
Counsel for Respondent :- Govt.Advocate
 

 
					-::  A N D ::-
 

 
Case :- CRIMINAL APPEAL No. - 51 of 2007
 

 
Appellant :- Arvind Upadhyaya
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Rishad Murtaza
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Rang Nath Pandey,J.

1. Since both the afore-captioned criminal appeals have been filed by the appellants challenging the judgment and order dated 06.12.2016 arising out of same case crime number, hence they are being decided by this common judgment.

2. The instant appeal has been preferred against the Judgment and Order dated 6.12.2016 passed by the Additional Sessions Judge, Court No.3, Sultanpur in Session Trial No.380 of 2000 arising out of crime No.272 of 2000 under Sections 498A/304B of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act, Police Station Banda, District Sultanpur whereby learned Additional Sessions Judge convicted the appellants under Section 306 of the Indian Penal Code while acquitting them of the offences under Sections 498-A/304-B of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act and sentenced them to undergo five years' imprisonment and fine of Rs.2000/- under the said section and in default of payment of fine, to undergo six months' additional imprisonment.

3. In brief, the prosecution case is that marriage of daughter of the complainant, namely, Rekha was solemnized 4 years ago with Bhagauti Prasad son of Arvind by Hindu rituals. It was settled to give Rs.25,000/- cash and Rajdoot motorcycle in marriage as dowry. He had given Rs.25,000/- cash in the marriage but could not give Rajdoot motorcycle. Promise was made to give Rajdoot motorcycle in Gauna. During settlement of marriage, maternal grandparents namely Ninha wife of Parasnath Tiwari and Parasnath Tiwari son of Ramraj used to reside at Village Marchhe with their son and were also involved in demanding dowry besides mother-in-law Sharda Devi and father-in-law Arvind. Due to not giving motorcycle, aforesaid four persons were annoyed with the complainant. After serious persuasion and making commitment to give motorcycle in Gauna, in the third year of marriage they got done the Vidai and Gauna of Rekha- the daughter of complainant. The complainant could not give motorcycle in Gauna. Whenever the complainant used to visit the house of his daughter to meet her then all aforesaid persons used to continuously demand motorcycle. When the complainant got done vidai of his daughter and taken her to his home then the daughter of the complainant told that mother-in-law Sharda Devi, father-in-law Arvind, maternal grandmother Ninha and maternal grandfather Parasnath used to torture her continuously due to non-giving of motorcycle. The daughter of complainant told this also that if motorcycle would not be given then they will kill her. After being persuaded intensively about 3 months ago the father-in-law Arvind got done the vidai of his daughter and in the night of 14/15.5.2000, mother-in-law Sharda Devi, father-in-law Arvind Upadhyay, maternal grandfather Parasnath and maternal grandmother Ninhe killed Rekha due to not getting motorcycle.

4. After lodging F.I.R., investigation was made by the concerned Police and charge-sheet for the offence under Sections 498A/304B of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act was filed. Thereafter, learned trial Court framed charges against the accused appellants under Sections 498A/304B of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. The accused denied the charges and claimed to be tried.

5. In support of its case, the prosecution has examined P.W.1 (Ram Kripal), P.W.2 (Brahmjeet), P.W.3 (Surendra Nath Singh, Naib Tahsildar), P.W.4 (Dr. Subhash Chandra), P.W.5 (Awadhesh Kumar, Circle Officer), P.W.6 (Ashok Kumar, Circle Officer) and P.W.7 (Rajendra Prasad Mishra, Circle Officer).

6. P.W.1 has proved original Tahreer (Exhibit Ka-1); P.W.3 has proved inquest report (Exhibit Ka-2), specimen seal, photo nash, report to C.M.O., report to R.I., report for constituting a panel of police officials i.e. Exhibits Ka-3 to Ka-8; P.W.4 has proved postmortem report (Exhibit Ka-9); P.W.5 has proved sit plan (Exhibit Ka-10), charge-sheet (Exhibit Ka-11); P.W.6 has proved site plan no.20Ka/2, Exhibit Ka-12, P.W.-7 has proved chik first information report (Exhibit Ka-13), lodging of case on G.D. (Exhibit Ka-14) and written Tahreer of the office of Superintendent of Police, Sultanpur (Exhibit Ka-15) and has also proved the submission of application by Arvind Kumar Upadhyay on 15.05.2000 at 15.05 hours which is recorded at Report No.20.

7. Whatever oral as well as documentary evidence is available on record, it is sufficient to prove that the death of deceased Rekha was caused due to burns on her body. As per the statement of P.W.4, Dr. Subhash Chandra and postmortem report Exhibit Ka-9, this fact has been clearly established. Dr. Subhash Chandra has stated that the degree of burns was sufficient in the ordinary course of nature to cause death of the deceased. Further, as per the prosecution case, it is clear that deceased was killed by burning on account of non-fulfillment of demand of motorcycle. Now, the question arises as to whether accused appellants namely Srimati Sharda Devi and Arvind Upadhyay abetted Rekha to commit suicide.

8. Learned trial Court has convicted the accused for the offence punishable under Section 306 of the Indian Penal Code. For the purpose of proper appreciation of legal as well as factual aspect, it seems appropriate to analyze the ingredients of Section 306 of the Indian Penal Code as well as Section 107 of the Indian Penal Code, which are as follows:

"Section 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 extend to ten years, and shall also be liable to fine."

"S.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 place in pursuance of that thing, if an act or illegal omission takes place 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.

Explanation 1.-A person who, by willful misrepresentation, or by willful 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."

9. In view of the provisions mentioned above, the crucial question is as to whether the accused-appellants are liable to be convicted for the offence under Section 306 of the Indian Penal Code in the light of the provisions of Section 107 of the Indian Penal Code.

10. I have carefully examined the material evidence on record with the aid of the learned counsel for both the sides and have also considered the arguments advanced by them.

11. Perusal of the judgment impugned reveals that the prosecution has failed to prove that the marriage of the deceased was solemnized within seven years of the incident. From the statement of P.W.1 it is evident that the dispute was arisen in Gauna regarding demand of motorcycle, whereas from the statement of P.W.2 it is evident that the dispute was arisen in the marriage itself at the Khichdi custom. The prosecution has also failed to establish the allegation of demand of motorcycle and harassment of deceased by the accused on not getting the motorcycle. D.W.1, in his statement, has deposed that the deceased sprinkled kerosene on her body, locked itself herself in a room and burnt herself and at that time, the accused-appellants were outside the house. After death, the appellants had given the information to the Police Station. The prosecution has also could not prove the reason behind suicide.

12. Had there been any harassment or ill-treatment, it would have certainly come to the knowledge of the persons of the locality and neighbourhood but the prosecution has not examined any witness from the neighbourhood. Thus, the prosecution has failed to establish the harassment or coercion.

13. During Post Mortem Examination, no injury was found on the dead body of deceased Rekha, therefore, it can not be said that the accused persons had assaulted the deceased which promoted her to commit suicide. It is unnatural that the appellants went on harassing the deceased Rekha for several years, yet the matter was not reported to the police.

14. The learned Additional Sessions Judge has highlighted the material contradictions in the statements of the prosecution witnesses, but has erred in considering that the evidence adduced by the prosecution as to demand of dowry is too general and weak. There is no definite evidence to show that Rekha was subjected to cruelty and harassment in connection with any demand of dowry. The prosecution has not established beyond reasonable doubt that the deceased Rekha committed suicide and the respondents abetted the commission of suicide.

15. When conduct of the accused is examined on the touchstone of three ingredients mentioned in Section 107 of the Indian Penal Code, it is found that none of the ingredients exists in the case in hand. No instigation by the accused is proved by the evidence available on record that he has led the deceased to suicide. There is no even an iota of evidence about being engaged in any conspiracy with some other person or of committing an act or illegal omission in pursuance of that conspiracy by the accused. At the same time, there is no evidence of intentional aid by an act or illegal omission on the part of the accused in committing suicide by his wife. The prosecution evidence not at all proves the ingredients of Section 107 of the Indian Penal Code against the accused-appellants.

16. The conclusion drawn by this Court further gets fortified by the principles enunciated by Hon'ble Supreme Court in following cases:

In State of West Bengal v. Orilal Jaiswal and Anr. reported in 1994 SCC (Cri.) 104, it held as follows:

"17. We may add here 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 here to end the life by commiting suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences were not expected to induce a similarly circumstances 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."

Hon'ble Supreme Court has recently endorsed the view expressed in Orilal Jaiswal case (supra) in Gurucharan Singh v. State of Punjab (2017)1 SCC 433. The principle laid down in Randhir Singh v. State of Punjab has also been retiatered by Hon'ble Supreme Court in following words:-

"27. The pith and purport of Section 306 IPC has since been enunciated by this Court in Randhir Singh Vs. State of Punjab, and the relevant excerpts therefrom are set out hereunder:

"12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 of the Indian Penal Code"

17. In view of above, it clearly comes out that there was no just basis to record conviction against the accused for the offence punishable under Section 306 of the Indian Penal Code. Commission of suicide by the deceased, while putting herself on fire cannot be attributed to any act of instigation, conspiracy or intentional aid of the accused. It appears that deceased has done so on account of fact that the husband of the deceased left the house and went to Surat, for which liability cannot be fastened upon the accused for abetting suicide.

18. In my considered view, learned trial Court has erred in coming to the conclusion that the accused-appellants have committed the offence punishable under Section 306 of the Indian Penal Code.

19. In view of the above discussion, the appeals are liable to be allowed and is accordingly allowed. The judgment dated 6.12.2016 is quashed and set aside.

Order Date :- 27.10.2017

GK Sinha/Rahul/Ashish