Om Prakash @ Prakash And Another. vs The State Of U.P.
2023 Latest Caselaw 24093 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC-LKO:58586
 
Reserved on 24.08.2023
 
Delivered on  06.09.2023
 
Court No. - 29
 
Case :- CRIMINAL APPEAL No. - 107 of 2000
 
Appellant :- Om Prakash @ Prakash And Another.
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- J.P.Awasthi,Anuj Pandey,Sheikh Wali-Uz Zaman
 
Counsel for Respondent :- Govt Advocate
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Sri Sheikh Wali-Uz Zaman, learned counsel for the appellants and Sri Ajay Kumar Srivastava, learned AGA for the State.

2. This criminal appeal has been filed by the appellants-Om Prakash @ Prakash and Naresh @ Ram Naresh challenging the order of conviction and sentence dated 08.02.2000 passed by the VIIth Additional Sessions Judge, Hardoi in ST No. 652 of 1995 whereby the appellant has been convicted under section 306 IPC and sentenced to undergo imprisonment of 5 years.

3. A number of legal and factual points have been raised by the appellants which shall be dealt with at appropriate stages in the body of the judgment.

4. Relevant facts in nutshell are as below:-

(i) The first informant Asharfi Lal gave a type written report before the police station concerned with the allegations that his real sister-Ramladaiti was married to Prakash about 7 years ago; she had two daughters from this marriage alliance; the members of her family used to harass her because she was not good looking; the accused persons used to threaten first informant's sister saying that her husband Prakash shall perform second marriage; his sister had disclosed all the facts to the first informant and he counseled his sister and sent her to her matrimonial house again; in the month of 'agahan' when he went for 'vidah' of his sister, the accused persons first refused to send her but when he persisted, they sent her after physically assaulting her. In the morning of 10.07.1995 the first informant's brother in-law (chachera behnoi)-Braj Mohan came and informed him that his sister has hanged herself the previous night; the first informant went to the place of occurrence and found her hanging with a plastic rope; her sister was maltreated and put to misbehavior to such an extent by Prakash and other members of his family that she was compelled to take her life.

(ii) As per prosecution case on the basis of earlier written information dated 10.07.1995 given by the first informant-Asharfi Lal, the inquest on dead body of the deceased was conducted on 10.07.1995 from 1pm onwards and postmortem was conducted on 11.07.1995 at 3.30 pm.

(iii) On the basis of another type written report case crime no. 174 of 1995 under section 306 IPC was registered on 11.08.1995 at 12.30 and investigated upon.

5. The investigating officer proceeded to inspect the site of the occurrence collected the documentary evidence, recorded the oral evidence of the witness and submitted a chargesheet against all the accused persons under section 306 IPC. The case proceeded and the Sessions court framed charges under section 306 IPC against both the accused persons.

6. The prosecution examined PW1-Asharfi Lal (the informant), PW2-Raj Kumar, PW3- Dr S.K. Rastogi, PW4-ASI Dal Bahadur, PW5-Braj Mohan, PW6-Ramkhelawan, PW7-SI Ram Sahai.

7. Following documentary evidence was produced (i) Typed written tehrir dated 11.07.1995 (Exhibit Ka-1), (ii) Typed written tehrir dated 09.08.1995 (Exhibit Ka-2), (iii) Copy of GD dated 11.07.1995 (Exhibit Ka-6), (iv) Chik (Exhibit Ka-5), (v) Copy of GD No. 14 dated 10.07.1995, (vi) Copy of GD No. 32 dated 10.07.1995, (vii) Memo seizure rope (Exhibit Ka-13), (viii) Site Map (Exhibit Ka-14), (ix) Postmortem (Exhibit Ka-4), (x) Inquest (Exhibit Ka-3), (xi) Copy of GD No. 14 dated 10.07.1995 (Exhibit Ka-16), (xii) Chargesheet (Exhibit Ka-15), (xiii) Hand written tehrir of Asharfi Lal dated 10.07.1995 (Exhibit Ka-10).

8. In the statement recorded under section 313 Cr.P.C., the accused persons claimed to be innocent and denied having any involvement in the offence. No evidence has been produced in defence.

9. All the accused persons namely, Om Prakash @ Prakash, Naresh @ Ram Naresh, Ram Saran, Roop Rani and Smt. Jaidevi were put to trial. Only two of them were convicted by the trial court who are now before this court in this appeal.

10. Before proceeding to evaluate the evidence given on behalf of the prosecution, it shall be useful to briefly refer to the oral evidence given by the witnesses:-

(i) PW1-Asharfi Lal, the first informant has stated that his sister was not good looking, therefore the accused persons used to beat her frequently and used to commit physical and mental atrocities on her; they demanded a 'buffalo' from her; it is alleged by him that they wanted his sister to leave the house so that Om Prakash @ Prakash can remarry; he has further stated that when he went to receive his sister for her 'vida' to 'maika', she was beaten by the accused persons in his presence on two occasions.

(ii) PW2-Raj Kumar is essentially a witness of inquest and has no useful thing to say in support of prosecution story; he has in fact been declared hostile and has declined to support the prosecution case by saying that he never gave a statement under section 161 Cr.P.C. that her husband, devar and saas used to harass the deceased.

(iii) PW3-Dr. S.K. Rastogi conducted the postmortem and found ligature mark on her neck and a lacerated wound on the base of her right thumb and a contusion on left heal.

(iv) PW4- ASI Dal Bahadur, a formal witness who has proved the chik and the copy of G.D of different dates, which shall be referred to at appropriate places in this judgment.

(v) PW5-Braj Mohan, the winess who gave the information about death of Ramladaiti to her brother, has said in his statement that the deceased was, though not very beautiful but was not bad either; he has said that the accused persons never threatened her by saying that Prakash will remarry some other woman.

(vi) PW6-Ram Khelawan has supported the prosecution case in his chief-examination saying that the accused Om Prakash and Naresh (devar) and other members of the family used to maltreat and humiliate her saying that she was not beautiful enough.

(vii) PW7-SI Ram Sahai, the investigating officer who has, besides proving the inquest report, related papers, the site map, the chargesheet etc. has also stated about the evidence of the witnesses recorded by him.

11. In his testimony PW1, who is the first informant as well as the real brother of the deceased, has alleged that the deceased was being harassed by her husband Prakash and other accused persons to attain an objective that she leaves the house so that her husband can remarry; it is added that she was not good looking, therefore he wanted to marry some other woman; Secondly, the accused were demanding a 'buffalo' from her. In his testimony, he said that two times it happened that his sister was physically assaulted by her in-laws in his presence.

This is all the witness has to say regarding the facts preceding the commission of suicide.

12. As regards filing of an FIR, PW1 has said that he reached the place of occurrence, the 'chappar'/house of her sister at about 9.30 in the morning; they reached at the Police Station-Beniganj at about 12 in the afternoon and told everything to the police officer there; the written report regarding the incident was prepared with the help of one Lalaji (the scribe of the tehrir); he has denied the suggestion that he never went to the police station concerned on that day. He has stated that copy of the chik FIR was handed over to him the same day and he delivered that paper to a lawyer on 3rd day after the incident; he gave a written report to the District Magistrate; he received the copy of that report after a month. This witness has given divergent statements as regard reporting the matter to the police. The PW1 has stated as below:-

"eSa blds ckn eqfYte vkse izdk'k ds ?kj ds vUnj tkdj ns[kk rks eqfYtek t; nsoh ds vykok ?kj esa vU; dksbZ lnL; ekStwn ugha FkkA vk/kk ?kUVk rd :dus ds i'pkr eSa Fkkuk csuhxat fjiksVZ djus x;kA Fkkuk csuhxat esa eaq'kh dks EkSaus ?kVuk dk tckuh gky crk;k Fkk ijUrq eqa'khth us tSlk eSus crk;k Fkk oSlk gky eqa'khth us ugha fy[kk FkkA blds ckn eSa njksxk jkelgk; ls feykA rks mUgksus eq>s MkaV&QVdkj dj Hkxk fn;kA eSa ykSVdj xzke [ksjok ykSV vk;kA blds ckn iksLVekVZe gksus ds nwljs fnu ,d izk0i= ftyk eftLVsªV] dIrku rFkk CO dks fn, FksA eSaus ;g izk0 i= jftLVªh fd, FksA dksbZ dk;Zokgh u gksus ij eSus ,d eghus ckn ,d izk0i= CO l.Mhyk dks fn;k FkkA eSa vkt jftLVªh j'khn rkjh[kh 11-7-95 vUMjiksfLVax lVhZfQdsV fpfdRlkf/kdkjh gjnksbZ fnukad 11-7-95 rFkk vius nLr[krh izk0i= dh izfr ftl ij esjs gLrk{kj gSA"

The witness has proved the type written reports dated 11.07.1995 and 09.08.1995 Exhibit Ka-1 and Ka-2. In his cross examination he has given inconsistent statements as is evident from his cross examination on page nos. 7 and 8 of his testimony.

13. Admittedly, this FIR was registered on the basis of a type written report which is Exhibit Ka-2 and proved by PW1; this type written report dated 09.08.1995 was addressed to Additional Superintendent of Police, Sandila, Hardoi and it named five persons. The first informant in this written report has mentioned that the accused persons used to harass her because she was not good looking and used to exhort Prakash to marry a second time. There is one more written report which again has been proved by the prosecution Exhibit Ka-1 which mentions not 5 persons but merely 4 persons; Nothing of this sort has been mentioned in this written report. Exhibit Ka-1 dated 11.07.1995 does not say anything about threats of remarriage because of the reason that his sister was not good looking; Instead in type written report dated 11.07.1995, it is alleged that because the demand for 'buffalo' etc could not be fulfilled, therefore they had killed his sister.

14. There is yet another hand written report dated 10.07.1995 admittedly signed by the first informant-Asharfi Lal, and proved by the prosecution witness PW7 in which simply an information to police station has been given stating that at about 5 in the morning his brother in-law Braj Mohan (chachera behnoi) came to his house and informed him that the first informant's sister had died and her dead body was hanging inside her house; there is none in her house except her mother in-law; on receiving such information, the first informant immediately rushed to his sister's place taking with himself the co-villagers Suraj Prasad Pal, Chandra Bhal, Shiv Raj Pal and Majir Ali; he found that she was hanging by a rope inside the chappar.

I perused this paper. Importantly, this report bears date 10.07.1995 i.e., just a day before Exhibit Ka-1 was type written and this paper does not mention anything about illegal demand for 'buffalo' or maltreatment or threats of remarriage.

15. On the basis of the above facts, it has been vehemently argued that the prosecution has gradually improved and developed a story to convert an unfortunate incident into an offence under section 306 IPC; it is argued that there is no truth in the allegations; the most important witness PW1, who is the first informant and on whose instance three reports were prepared, has not, in his testimony denied having prepared these three reports as aforesaid. In his cross examination, he could not give any satisfactory explanation regarding insertion of newer allegations in the reports which were subsequent to previous one; at this juncture, it may be noted that in this case on the basis the report dated 10.07.1995, the inquest and the postmortem was conducted. In this case the FIR has been registered almost a month after conduct of postmortem and inquest etc. The prior reports which have been proved by the prosecution cannot be ignored altogether. Though reports dated 10.07.1995 and 11.07.1995 are not being treated as a first information but they are definitely relevant and admissible in evidence.

16. In the background of facts as mentioned above, the evidence of PW1 needs to be evaluated. It is more than evident that there has not been any whisper of the fact that she was being maltreated for not being so good looking, in earlier information which the deceased's brother tried to give to the police station. Later on, the case was registered on the basis of Exhibit Ka-2 which contained a fact of demand for buffalo as well as illtreatment for deceased being not good looking.

In my view the intermediate period afforded an opportunity to the first informant to insert embellished and false facts; The factors which motivated him to file an FIR may include anger, dissatisfaction or to take revenge for untimely death of his sister or any other fact of like nature.

17. Before I draw any conclusion on the basis of most important witnesses and the prosecution papers, it may be noted that PW2-Raj Kumar has not supported the prosecution case and has been declared hostile; PW5-Braj Mohan who, as per prosecution story, first informed the brother of the deceased regarding this incident, too has not supported the prosecution case; he has demolished the theory that the deceased was not good looking and therefore was being maltreated by her husband; this is quite surprising that despite not supporting the prosecution case he has not been cross examined by the prosecution.

18. The third witness of fact Ram Khelawan has, in his chief examination merely said that Om Prakash and another used to maltreat deceased Ramladaiti because she was not good looking; he has not stuck to this version in his cross examination.

19. Before proceeding to draw a conclusion, it will be useful to first examine the scope of section 306 IPC, the abetment to commit suicide and to examine broadly what kinds of acts can be construed as bringing the matter within the confines of section 306 IPC.

Section 306 IPC is as below:-

"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."

Abetment is defined under Section 107 of IPC 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 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 wilful misrepresentation, or by wilful 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 facilitate the commission thereof, is said to aid the doing of that act."

20. For the application of section 306 IPC, the law requires that there should be a proximity between the act of suicide with the acts and conduct or treatment meted out by the accused to the victim or acts which would amount to intentionally aiding or instigating or abetting the deceased to take his/her life.

21. A two Judges Bench of the Supreme Court in Ude Singh and Ors. vs. State of Haryana, (2019) 17 SCC 301 observed as below:-

"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behavior and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.

16.1. For the purpose of finding out if a person has abetted commission of suicide by another; the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-

referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners ofSection 306 IPC. If the accused plays an active role in tarnishing the self- esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased."

The Supreme Court in Mariano Anto Bruno and Another vs. The Inspect of Police passed in Criminal Appeal No. 1628 of 2022 dated 12.10.2022 observed as below:-

"25. The ingredients of Section 306 IPC have been extensively laid out in M. Arjunan Vs. State, represented by its Inspector of Police; (2019) 3 SCC 315 which are as under: -

"The essential ingredients of the offence underSection 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C."

In the same judgment the Supreme Court observed in Para nos. 36 and 38 as below:-

"36. To convict a person under Section 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and Appellant No. 1 abetted the commission of suicide of the deceased. In the present case, both the elements are absent.

37. .................

38. This Court has time and again reiterated that before convicting an accused under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."

22. The Supreme Court cautioned by observing that each suicide is a personal tragedy that prematurely takes the life of an individual and has a continuing ripple effect, dramatically affecting the lives of families, friends and communities, however, the court of law while adjudicating is not to be guided by emotions or sentiments but the dictum is required to be based on analysis of facts and evidence on record.

23. In the instant matter, the case of the prosecution is that the accused instigated the commission of crime. As has been held by the Supreme Court, the 'instigation' means to goad, urge forward, provoke, incite or encourage to do "an act". Obviously the intention is to be gathered on the basis of peculiar facts and circumstances of each and every case. No formula for general application can be laid down.

24. There are ample indicators in the evidence produced by the prosecution to give an impression that the prosecution story has been developed later on. Had there been truth in the allegations that the deceased was being harassed for being not so good looking, this fact would certainly have been mentioned in the previous application/written reports admittedly prepared by her real brother. Lack of any whimper in Exhibit Ka-1 and tehrir dated 10.07.1995 creates reasonable doubts. For the sake of arguments, if it is presumed that whatever has been said in the FIR or in the evidence given by PW1 is reasonably true, even then this will not amount to an act of instigation to commit suicide. There is not much substance in the rhetoric of PW1 that accused persons used to exhort deceased's husband to marry again. The evidence on such theory is quite inadequate to brand it as truthful. Moreover there is no evidence to show that just before the deceased took this extreme step of taking of her life, there was some immediate provocation from the side of the accused person which propelled her to commit suicide. In my firm opinion, the prosecution has failed to prove any proximity between the act of suicide with the act or conduct or treatment meted out to the deceased by the accused. In my opinion the prosecution has failed to prove that in fact she was maltreated or harassed to such an extent which shall essentially fall within the term of 'instigation' to commit suicide.

25. The judgment and sentence order dated 08.02.2000 passed by the VIIth Additional Sessions Judge, Hardoi in ST No. 652 of 1995, is hereby set aside and the accused persons are acquitted.

26. Accordingly, this criminal appeal is allowed.

27. Let copy of the judgment be immediately sent to the court concerned for necessary action.

28. The appellant shall before the court concerned, within a period of next four weeks, execute bail bonds with two sureties and personal bond of the same amount, to the satisfaction of the court concerned, to ensure his appearance before the higher court as and when such court issues notice in respect of this case. Such bail bonds shall be in force for a period of six months from the date of execution thereof.

Order Date :- 6.9.2023

*Vikram*