Ram Awtar And Ors vs State
2022 Latest Caselaw 6713 Chatt

                                                                                                           AFR
                       HIGH COURT OF CHHATTISGARH, BILASPUR


                                 Judgment reserved on 17.08.2022
                                 Judgment delivered on 10.11.2022

                                        CRA No. 1845 of 2000


     1. Ram-Awatar, s/o Mahendra Satnami, aged about 24 years, Occupation-
        Agriculturist
     2. Vishram, s/o Jhumur Satnami, aged about 55 years, Occupation-
        Agriculturist
     3. Mohan s/o Jumuk Satnami (abated)
     4. Kunti Bai, w/o Ramji Satnami, aged about 25 years, Occupation-Labour
     5. Gita Bai, w/o Mohan Satnami, aged about 60 years, Occupation- Labour
        All residents of village- Gothiya, PS Kawardha, Distt-Kawartha, MP
                                                                                ---- Appellants (In jail))


                                                   Versus


     • State of MP through the PS Kawardha, Distt: Rajnandgaon, MP
                                                                                          ---- Respondent


------------------------------------------------------------------------------------------------------------------

For Appellants                                         : Smt Renu Kochar, Advocate
For Respondent/State                                   : Shri Himanshu Sharma, PL

------------------------------------------------------------------------------------------------------------------

Hon'ble Shri Justice Parth Prateem Sahu CAV Judgment

1. Appellants have preferred this appeal challenging impugned judgment of

conviction dated 19.07.2000, whereby appellants have been convicted for

offence defined under Section 306 of IPC and have sentenced to undergo RI

for 8 years and to pay fine of Rs.1,000/- each, in default of payment of fine,

additional RI of six months.

2. Facts relevant for disposal of this appeal are that Shiv Kumari (since

deceased) was married to appellant-Ramavatar and residing in her matrimonial Cra 1845 of 2000

home at village-Ghothiya, Police Station-Kawardha. On 01.04.1999, at about 6

pm, Shiv Kumari suffered burn injuries. She was taken to the Hospital.

During the course of treatment, her statement was recorded by the Executive

Magistrate. She died on 06.04.1999 at about 2 pm. Based upon merg

intimation, FIR was registered on 10.04.1999 by the Investigating Officer

(PW8). After completion of investigation, Police submitted charge-sheet before

the Court of competent jurisdiction against appellants for commission of

offence under Section 306 of IPC and they were put to trial.

3. During trial, prosecution examined as many as 9 witnesses, such as

PW1 Dhanesh Das, PW2 Chandrahas, PW3 Dr KK Sharma, PW4 Anjoriya Bai

PW5 Maniram, PW6 Sawaldas, PW7 Bhuneshwar, PW8 SSS Bhadoriya and

PW9HC Nag; and exhibited 22 documents, ExP1 & P7Spot Map, ExP2

Information to Police Station by Doctor, ExP3 MLC report of Shiv Kumari,

ExP4 Medical Case Report, ExP5 Application for medical examination of

victim, ExP6 Application for recording dying declaration of victim, ExP8 & 18

Seizure Memo, ExP9 & 10 FIR, ExP11 Merg intimation, ExP12 to P16 Arrest

memo, Ex.P17 Request for FSL report, Ex.P19 Agreement, Ex.P20

Postmortem report, and Ex.P22 Dying declaration to prove charges levelled

against appellants. After conclusion of trial, learned trial Court, discussing

evidence available on record, held that prosecution proved charges levelled

against appellants and convicted them for commission of offence and

sentenced as mentioned above.

4. Ms Renu Kochar, learned counsel for the appellants would submit that

learned trial Court erred in convicting appellants under Section 306 of the IPC,

without there being any proof of ingredients under Section 107 of the IPC. She

submits that to bring home the guilt under Section 306 of the IPC, prosecution

is required to prove that appellants/accused instigated the deceased; the Cra 1845 of 2000

persons engaged in conspiracy for doing of that thing, intentionally aided by

any act or illegal omission, the doing of that thing. None of aforementioned

three ingredients is present in the facts of case. She submits that witnesses

examined by prosecution before the trial Court have not stated in specific terms

that appellants have instigated deceased to commit suicide or they have

intentionally aided by means of any act to do the said act. But from the

evidence it appears that deceased was not having cordial relationship with her

in-laws as she was having suspicion upon character of her husband. She also

pointed out that witness-1 and 2, Ghanesh Das and Chandrahas, who are

residents of same village where deceased was residing, have clearly stated

that there was some quarrel of deceased with her husband on account of

suspicion raised by her on the character of her husband. No admissible piece

of evidence is brought on record by prosecution that appellant Ramavatar,

husband of deceased, is having illicit relationship with any other woman, but

bald allegations have been levelled against appellant-Ramavatar. Referring to

evidence of PW4 Anjoriya Bai, mother of deceased, she would argue that

allegations levelled against appellant of ill-treatment and harassment is false

because mother of deceased in her evidence before the trial Court has stated

that her daughter is residing properly in her matrimonial home. In her

evidence, this witness further stated that whenever deceased used to visit her

parental home, she informed her that she is residing properly in her

matrimonial home. Allegation levelled by this witness before the trial Court

that her daughter was ill-treated and harassed by in-laws at matrimonial home

is an after thought. Other witness also not stated that appellant-Ramavatar is

having some illicit relationship with any other woman. Consideration of trial

Court that Ramavatar is having illicit relationship with sister-in-law of deceased,

is perverse to the evidence available on record. She further contended that

dispute, if any, between deceased and her in-laws, as stated by witnesses, is Cra 1845 of 2000

on account of some trivial household work and the suspicion raised by

deceased herself on her husband. Appellants have not ill-treated or harassed

deceased at any point of time. She also submits that PW8 Investigating

Officer, in his evidence stated that one other dying declaration of deceased

was recorded by the Executive Magistrate, and that was not produced before

the Court. Evidence of PW8 shows that dying declaration which might be in

favour of appellants was not placed before the Court for consideration. She

also contended that dying declaration Ex.P22 stated to be recorded by the

Executive Magistrate does not mention date and time of recording statement,

which, in the facts of case, is important because deceased suffered 75% burn

injuries on her person. According to evidence of doctor KK Sharma, who

examined the deceased initially, condition of deceased was serious. She also

pointed out that in the dying declaration, there is no averment regarding reason

of quarrel of deceased with her in-laws, and there is clear mention that at the

time of incident, her husband was not present in the house. She submits that

as the ingredients of Section 107 IPC are not present in the case, learned trial

Court erred in convicting appellants under Section 306 of IPC. In support of

her contention, she relied upon judgments passed by Hon'ble Supreme Court

in cases of Mahendra Singh Vs State of Madhya Pradesh reported in (1995)

Supp3 SCC 731; Sanju @ Sanjay Singh Sengar, Vs State of Madhya

Pradesh reported in AIR 2002 SC 1998; judgments passed by this Court in

cases of Gautam Chatterji and another Vs State of MP reported in 2012(4)

CGLJ 538; and judgment dated 06.12.2018 in Ghanshyam Sahu Vs State of

Chhattisgarh.

5. Shri Himanshu Sharma, learned State counsel, opposing submissions of

learned counsel for the appellants, would submit that learned trial Court

appreciating evidence available on record, has rightly came to conclusion that Cra 1845 of 2000

prosecution proved charges under Section 306 of IPC. In support of his

contention, he read over paras 24 to 27 of the judgment and evidence of PW5,

PW6 and PW7. He submits that learned trial Court on appreciation of

evidence, came to conclusion that appellant-Ramavatar (husband of

deceased) is having illicit relationship with another woman. Finding of

conviction recorded by the trial Court is on appreciation of evidence which does

not call for any interference. Referring to Ex.P19, agreement between

deceased and Ramavatar, he submits that learned trial Court has also taken

note of contents of this agreement, wherein, appellants have agreed to keep

the deceased properly, and they will not harass her.

6. I have heard learned counsel for the parties and also perused the

records of Court below.

7. Appellant-1 Ramavatar is husband of deceased; appellant-4 Kunti Bai is

sister-in-law of deceased; appellant-5 Gita Bai is mother-in-law of deceased.

Appellant-1 got married with deceased- Shiv Kumari about five years prior to

the date of incident. She committed suicide by setting herself on fire on

01.04.1999. In FIR Ex.P9 allegations are that appellants ill-treated deceased;

they were not giving food; and asked her to leave her matrimonial home; which

was the cause for committing suicide by her. In document Ex.D1, D2 and D3,

statement of Anjoriya Bai, Maniram and Sawaldas, recorded under Section 161

of CrPC, allegations are that appellants engaged the deceased in labourer

work and when she refused to do so, she was assaulted, not provided with

food, clothes, footwear and there was illicit relationship of appellant-1 with his

sister-in-law (Bhabhi). Prior to the date of incident, they received massage

from the deceased that her inlaws were forcing her to leave her matrimonial

home and when Sawal Das, father of deceased went there, they asked for

money. Statement recorded under Section 161 of CrPC of Bhuneshwar Cra 1845 of 2000

(brother of deceased) is marked as Ex.P4, wherein allegation is of ill-

treatment, harassment for want of dowry. On 31.03.1999 he went to

matrimonial home of deceased and saw some dispute/ quarrel in the house

was going on.

8. Prosecution examined Dhanesh Das as PW1. In his evidence, he stated

that deceased was residing in her matrimonial home properly; she has not

made any complaint to him at any point of time. Prior to 3-4 months of

incident, he saw appellant-1 and deceased in the Court and upon asking he

was informed that due to quarrel, they wanted chod chutti (divorce). Upon

advice given by him, they agreed for compromise and deed was written. In

cross-examination, this witness admitted that deceased was suspecting upon

character of her husband (appellant-1), which is the cause of dispute between

them. Chandrahas was examined as PW2, who also made similar statement

that deceased was suspecting upon character of her husband, which was

cause of their dispute. PW4 Anjoriya Bai, mother of deceased in her evidence

stated that after marriage, deceased used to come to her parents' house and

during her stay, she informed that she was residing properly in her matrimonial

house. She did not inform her mother of any problem in her matrimonial

house. Witness further stated that when she met deceased during her

treatment in Hospital at Raipur after the incident, deceased informed that all

persons set her on fire (all accused persons). In her cross-examination also,

she made statement that her daughter informed her that appellants (husband,

mother-in-law, father-in-law, and sister-in-law) set her on fire. She also

admitted that her daughter used to suspect upon character of her husband

(appellant-1) and for that reason only, there was quarrel between them. PW5

Maniram in his evidence made allegation that upon asking, deceased informed

him that her in-laws used to assault, and harass her stating that she has not Cra 1845 of 2000

brought proper dowry and asked her to leave her matrimonial home. PW6

Sawaldas (father of deceased) in his evidence stated that in-laws of deceased

used to say that she brought less dowry. She was not being given proper food,

and she was assaulted by them. When Sawaldas went to matrimonial home of

deceased one day prior to the incident, her in-laws made demand of

Rs.20,000/- for sending his daughter with him. Bhuneshwar, brother of

deceased was examined as PW7. He also made statement making allegation

that his sister was asked to bring money from her parents' house and for that

reason, her in-laws used to quarrel with her. He further stated that one

Budhaari informed him that her sister was not being provided with proper food

and thereafter, he went to meet his sister. He also stated that when he met

her, he gave advice to his brother-in-law Ramavatar to keep his sister properly,

then, he stated that deceased does not listen to words of her in-laws. He was

threatened by in-laws of deceased of his life. One agreement was written

between the parties about 1-2 months prior to the incident, wherein appellants

were advised to reside properly with deceased and he was informed by

deceased that all accused persons set her on fire.

9. Dying declaration of deceased was recorded by Police as Ex.P22 dated

06.01.1999. In dying declaration, deceased has not made any allegation of

demand of dowry, stated that no one has set her on fire, she herself by pouring

kerosene oil, committed suicide. Her husband used to follow the words of his

parents. On the date of incident, she had a quarrel with her father-in-law and

mother-in-law. In dying declaration, there is no allegation of any demand of

dowry or that in-laws/accused persons set her on fire. Dying declaration was

recorded by the Executive Magistrate and the Doctor in his statement

/evidence stated that before recording dying declaration, deceased to be in fit

condition and gave certificate vide Ex.P4.

Cra 1845 of 2000

10. In view of aforementioned evidence available on record, particularly,

dying declaration of deceased, evidence of PW4 Anjoriya Bai, mother of

deceased; and statement made by other witnesses that appellants/accused

persons used to harass her for not bringing proper dowry and making demand

of dowry, and further setting deceased on fire is contradictory. Deceased

being a girl, might be having closer relation with her mother, than other

relatives; PW4 Anjoriya Bai had not made any statement that when deceased

used to visit her parents' house, she intimated about any harassment ill-

treatment or assault upon her. If the mother of married girl has not made any

allegation of ill-treatment, harassment or assault, then the evidence of other

relatives like brother and father or uncle making all allegations of ill-treatment,

assault or harassment and demand of dowry becomes suspicious.

11. Evidence with respect to ill-treatment, harassment for demand of dowry,

therefore, in the eyes of Court, is not acceptable because not proved by

prosecution beyond reasonable doubt. The quarrel/dispute as stated by the

witnesses and deceased in her dying declaration of asking her to leave her

matrimonial home, may be on account of her behaviour of raising suspicion

upon her husband all the time, of having illicit relationship with his sister-in-law

(bhabhi), which is also stated by independent witnesses PW1 and PW2,

residents of same village. PW4 mother of deceased also admitted in her

evidence that her daughter was having suspicion upon her husband of having

illicit relationship and this was the cause of dispute between them. Evidence

of PW6 Sawaldas, PW7 Bhuneshwar, father and brother of deceased

respectively, that deceased told them of setting her on fire by all accused

persons falsifies by dying declaration of deceased recorded on 01.04.1999,

wherein she stated that there was quarrel with her mother-in-law and father-in-

Cra 1845 of 2000

law and her husband Ramavatar was not there in house, she herself pour

kerosene and set herself on fire.

12. Evidence of PW1, PW2 and PW4 would show that quarrel between

deceased and appellant-1 (husband) was on account of suspicion in the mind

of deceased of having illicit relationship of her husband, which was not proved

by prosecution by placing admissible evidence on record.

13. For holding any person guilty for commission of offence under Section

306 IPC, it is required for the prosecution to prove that accused person abeted

deceased to commit suicide. Abetment is defined under Section 107 of IPC,

which reads as under :

Section 107. Abetment of a thing.--A person abets the doing of a thing, who-- Firstly -- 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.

Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

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.

Cra 1845 of 2000

14. From the evidence brought on record by prosecution there is no material

to prove that appellants herein instigated the deceased in any manner or have

conspired for doing of that thing or intentionally aided by any act or illegal

omission. Just before the incident as stated by deceased in her dying

declaration, that she was having quarrel with her father-in-law and mother-in-

law, but no specific reason has been stated by her. There is no allegation of

demand of dowry, except allegation that she was asked to leave her

matrimonial home, which may be on account of her behaviour of raising

suspicion upon character of her husband and quarreling on that issue, as

admitted by PW4 mother of deceased.

15. Hon'ble Supreme Court in case of Mahendra Singh and another

Gayatribai Vs State of MP reported in 1995 supp (3) SCC 731, wherein there

was allegation against husband of having illicit relationship with sister-in-law of

deceased, who committed suicide and held thus:

"2. Learned Counsel for the appellant rightly submitted that but for the statement of the deceased there is no other pointed evidence from which it could be inferred that there was any abetment so as to bring the acts of the appellants within Section 306 I.P.C. under which the appellants have been punished. The dying declaration, per se, could not involve the appellants in offence punishable under Section 306 I.P.C., because it provides for abetment of suicide. Whoever abets the commission of suicide, and if any person commits suicide due to that reason, he 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 has been defined in Section 107 I.P.C. to mean that a person abets the doing of a thing who firstly instigates any person to do a 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. Neither of the ingredients of abetment are attracted on the statement of the deceased. The conviction of the appellants under Section 306 I.P.C. merely on the allegation of harassment to the Cra 1845 of 2000

deceased is not sustainable. The appellants deserve to be acquitted of the charge."

16. In case of Amlendu Pal @ Jhantu Vs State of West Bengal reported in

(2010) 1 SCC 707, Hon'ble Supreme Court has held thus:

"17. We have already considered a number of decisions of this Court on the aforesaid aspect and having done so we revert back to the factual position of the present case. The prosecution has specifically alleged that on 26.09.1991, the day prior to the date of commission of suicide by the deceased, the deceased was tortured by the appellant, Anita and the other accused persons present in the house of the appellant, as a result of which the deceased committed suicide on the next day. On a perusal of the record of the present case, we find that both the trial Court as well as the High Court have disbelieved the said incident as, according to them, the statement of the witnesses to establish the said fact are not reliable and trustworthy. Those findings recorded by the trial Court and the High Court have not been challenged before us."

17. In KV Prakash Babu Vs State of Karnataka reported in (2016) 4

Crimes 184 (SC) Hon'ble Supreme Court held that extra marital relationship,

per se or as such, would not come within the ambit of Section 498A of IPC. It

would be an illegal or immoral act, but other ingredients are to be brought

home, so that it would constitute a criminal offence. To explicate, solely

because husband is involved in an extra marital relationship and there is

suspicion in the mind of wife, that cannot be regarded as mental cruelty, which

would attract mental cruelty for satisfying ingredients of 306 of IPC.

18. In case of Kishori Lal Vs State of MP reported in (2007) 10 SCC 797,

Hon'ble Supreme Court while considering the act of abetment to commit

suicide and for convicting any person under Section 306 of IPC, prosecution is

required to prove that there is abetment of doing anything or committing

suicide.

Cra 1845 of 2000

19. In case of Randhir Singh and another Vs State of Punjab reported in

(2004) 13 SCC 129, Hon'ble Supreme Court has held that abetment involves

process of instigating a person or intentionally aiding that person in doing of a

thing. In case of conspiracy also, it would involve that mental process of

entering into conspiracy for doing of that thing.

20. In the case at hand, prosecution failed to prove the ingredients of Section

107 of IPC by producing clinching and admissible piece of evidence on record.

Prosecution failed to prove the charges against appellants beyond reasonable

doubt. The finding recorded by learned Court below that appellants committed

cruelty on account of appellant-1 having illicit relationship and asking her to

leave her matrimonial house and ill treated her to be abetment is not

sustainable.

21. In view of above discussion, judgment of conviction passed by trial Court

convicting the appellants under Section 306 of IPC is set aside. Appellants are

acquitted from charges levelled against them under Section 306 of IPC.

Appellants are on bail. Their bail bonds are discharged.

22. In the result, appeal is allowed.

Sd/-

(Parth Prateem Sahu) JUDGE

padma