Chattisgarh High Court
Girish Kumar Sharma vs State Of Chhattisgarh on 27 June, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
Neutral Citation
2024:CGHC:22580
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on: 25.04.2024
Judgment Delivered on: 27.06.2024
Criminal Appeal No. 965 of 2003
Girish Kumar Sharma S/o Late Shri Ramkrishna Sharma, aged about
46 years, R/o Hurri, District- Bilaspur (C.G.)
---- Appellant
Versus
State of Chhattisgarh through Station House Officer Police Station-
Mungeli, District- Bilaspur (Now Mungeli) C.G.
----State/Respondent
______________________________________________________________
For Appellant : Mr. A.S. Rajput , Advocate
For State/Respondent : Mr. Pankaj Singh, Panel Lawyer
__________________________________________________________
Hon'ble Smt. Justice Rajani Dubey
C A V Judgment
1. This appeal is preferred under Section 374 (2) of the Code of Criminal
Procedure, 1973 against the judgment dated 28.08.2003 passed by
Second Additional Sessions Judge (FTC), Mungeli, District- Bilaspur
(C.G.) in Sessions Trial No. 30/99, wherein the said Court convicted the
appellant and sentenced him as under :-
Conviction Sentence
U/S 306 of IPC R.I. for 07 years with a fine amount of
Rs. 2,000/- and in default of payment
of fine, to undergo additional R.I. for
03 months
2. Brief facts of the case are that the deceased Sunita Sharma, daughter of
Shri Bharat Lal Pathak and Smt Urmila Pathak, was married to the
appellant 14 years before the date of incident. After the marriage they
Neutral Citation
2024:CGHC:22580
were residing at Mungeli where appellant was working as a government
servant in Irrigation Department and out of their wedlock three children
were born PW-08 Rahul Sharma, PW-09 Mridul Sharma and one girl
child. Deceased Sunita Sharma was also working as an Anganwadi
worker in Women & Child Development Department of State
Government. The case of the prosecution is that the appellant used to
torture his wife deceased Sunita Sharma on alleged suspicion regarding
her character and relation between the appellant and deceased was
strained and appellant used to instigate her to commit suicide. On such
instigation and torture by the appellant, the deceased (wife) of the
appellant consumed pesticide which was kept in the house on the date
of incident i.e. 04.12.1998 at 8 am. Thereafter, the deceased's parents
had got information, then they admitted the deceased at Primary Health
Centre, Mungeli for treatment, but she could not survive. The appellant
himself informed to the police about the incident, on which morgue
information (Ex.P/11) was recorded by K.S. Thakur (PW-11.)
Investigation Officer. As per the postmortem report (Ex.P/9), it is said that
cause of death of the deceased was due to consumption of poisonous
substance. Upon investigation, the matter was registered at Police
Station for offence under Section 306 of IPC against the appellant. After
completion of due and necessary investigation, a charge-sheet was led
before the Court of Judicial Magistrate First Class, Mungeli. However,
the said case was committed to the Court of Second Additional Sessions
Judge (FTC), Mungeli, District- Bilaspur (C.G.) and the matter was
registered as Sessions Trial No. 30/99 and the appellant was put to trial
for the offence punishable under Section 306 of IPC.
3. So as to hold the accused/appellant guilty, the prosecution has examined
as many as 12 witnesses. Statement of the accused/appellant was also
recorded under Section 313 of Cr.P.C. in which he denied the charges
leveled against him and pleaded his innocence and false implication in
the case.
4. The learned trial Court after hearing the counsel for the respective
parties and considering the material available on record has convicted
Neutral Citation
2024:CGHC:22580
and sentenced the accused/appellant as mentioned in para 1 of this
judgment.
5. Learned counsel for the appellant submits that the findings recorded by
the learned trial Court is that the prosecution has proved its case against
the appellant for offence under Section 306 of IPC is erroneous and
against the evidence on record. Learned trial Court has misconceived
the law involved in the case and miss-appreciated the evidence on
record and has utterly failed to appreciate the statement of prosecution
witnesses. The learned trial Court mechanically accepting the version of
prosecution witnesses ignoring the material admitted the fact on record
that the marriage was solemnized 14 years before the date of incident,
but the learned trial Court did not appreciate oral and documentary
evidence and no material contradictions and omissions evidence was led
by the prosecution to the fact that appellant was a person of bad
character and there was a dispute between the appellant and deceased(
wife of appellant). But, such evidence by itself does not satisfy the
ingredients of Section 306 of IPC to hold that appellant abetted
commission of suicide. It is clear that brother of the deceased namely
Devendra Pathak (PW-07) who did not support the exaggerated story of
his father, Bharat Lal Pathak (PW-01) and his brother, Vimal Kumar
Pathak (PW-02). So, the learned Trial Court ought to have given the
benefit of doubt to the appellant. He further submits that other
prosecution witnesses have not supported the prosecution case, so the
learned trial Court has grossly erred in holding the suicidal notes as
proved, but the learned trial Court wrongly convicted the appellant. So,
the impugned judgment is liable to be set aside.
6. Reliance has been placed on the decision of Hon'ble Apex Court in the
matter M. Mohan Vs. State Represented by the Deputy
Superintendent of Police reported in 2011 (3) SCC 626 and the
decision of this Court passed in Praveen Kumar Lunia & Another Vs.
State of Chhattisgarh passed in Criminal Revision No. 922 of 2019.
7. Per contra, learned counsel for the respondent/State supported the
impugned judgment and submitted that the learned Trial Court minutely
Neutral Citation
2024:CGHC:22580
appreciated the oral and documentary evidence available on record and
rightly convicted the appellant. Therefore, this appeal is liable to be
dismissed.
8. Heard learned counsel for the parties and perused the material available
on record including the impugned judgment.
9. It is clear from record of learned trial Court that prosecution has
examined as many as 12 witnesses to prove its case against the
appellant.
10. It is not disputed that deceased (Sunita Bai), who was the wife of
appellant and their marriage was solemnized 14 years before the date of
incident. Dr. R. Bhattacharya (PW-05) after conducting the postmortem
of deceased, he opined that death was due to consuming poisonous
substance and gave his report as (Ex.P/9). He sent her body for viscera
chemical analysis to FSL and as per FSL report (Ex.P/22)
organophosphorus pesticide 'democrone' was found in viscera of
deceased. Therefore, as per postmortem and FSL report, it is proved
that deceased committed suicide by consuming poisonous substance.
11. Now, this Court has to be examined the fact that whether deceased
committed suicide or not due to abetment of appellant.
12. At this juncture, it is appropriate to look into the provisions of Section 306
of Indian Penal Code, 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 of
which may extend to ten years, and shall also be liable to fine.
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 in any
conspiracy for the doing of that thing, if an act or
illegal mission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
Third- Intentionally aids, by any act or illegal omission,
Neutral Citation
2024:CGHC:22580
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, and thereby facilitate the commission
thereof, is said to aid the doing of that act."
13. PW-01, Bharat Lal Pathak, who is the father of deceased Sunita Bai
stated that appellant is a person of bad character and his daughter
(deceased) was complaining about her husband's/appellant's bad
character and she stated that appellant had bad intentions towards other
women and used to eye on them and the appellant always said to
deceased either to break the marriage or to leave the house. He further
stated in his deposition that the appellant never gave of his full salary to
the deceased and his daughter (deceased) was educated and was
graduated in M.A. whereas the appellant passed only matriculation. So,
his daughter started working as Aanganwadi worker.
14. Vimal Kumar Pathak (PW-02), who is the brother of deceased also
stated that deceased told him about the bad character of appellant and
also stated that appellant was trying to make illicit relations with other
women. Urmila Pathak (PW-03), who is the mother of deceased also
stated about the bad character of appellant and stated that deceased
always tried to live happily together with the appellant, therefore,
deceased started working as Aaganwadi Worker. However, other
witnesses Avinash Pathak (PW-04), Chedi Singh Thakur (PW-06),
Devendra Pathak (PW-07), who is the brother of deceased did not
support the prosecution case. Rahul Sharma & Mridul Sharma (PW-08
& PW-09), who are the sons of appellant and deceased, also not
supported the prosecution case and they stated that relations between
the appellant and deceased were good.
15. The learned trial court relied upon suicide letter (Ex.P/3 & Ex.P/4) of
deceased for ready reference, the contents of suicide notes are
Neutral Citation
2024:CGHC:22580
reproduced herein as under:-
eSa lqfurk 'kekZ vkt fnukad 4-12-98 dks vkRek gR;k djus tk jgh 'kknh dks 14 o"kZ gks
pqdsa gSa vkt rd 14 iy Hkh eSa buds lkFk ugh jgh dgus dks rks esjs ifr exj flQZ
uke ds jaxhu fetkt ds O;fDr gS izk;% gj izdkj dk u'kk gS fo'ks"kdj os';ko`r dk
T;knk tgka lqanj lh vkSjr ns[krs gS ikxy gks tkrs gS ;gka rd dh vius gh ?kj esa
vius HkkHkh ds lkFk vkt rd eSa lc dqN lgu djrs vk jgh gWw fd ;s lq/kj tk;sxsa
ysfdu vc lhek ls T;knk gks x;k gS tc ls eqxsayh esa Mka- HkV~Vkpk;Z vk;s gS mldh
iRuh dks ns[kus ds ckn ;s gj oDr mlds ihNs ikyx jgrs gS 'kk;n Mka- dh iRuh blls
vufHkK gks eqgYys esa Hkh vki yksx irk dj ldrs gS fdrus yksxksa dk uke fxukÅ
ysfdu vc lhek yka?k pqdsa gS HkV~Vkpk;Z dh iRuh ds dkj.k gh ;s edku fdjk;s ls fy;s
gS nks o"kZ gksus dks vk jgk gS euk djus ij ;gka vkus ds ckn esjs dks ekjuk & ihVuk
dbZ ckj gks x;k gS tku ls ekjus dk Hkh izz;kl dj pqdsa gS ckr&ckr esa ekjrs gS vkt 6
ekg gks x;k gS edku [kkyh djus dks dgk x;k gS exj ;s blh vkSjr ds dkj.k gh
edku ugh NksM+ jgs gSa vkt Hkh lqcg eq>s mlh vkSjr ds dkj.k fQj ls tku ls ekjus
ds iz;kl fd;s gS blfy, jkst&jkst ekj [kkus ds ctk;sa ,d ckj ejuk gh Bhd gS vr%
eSa tgj [kk jgh gWw esjs ejus ds ckn esjh yk'k dks ;s gkFk uk yxk;s esjs rhuksa cPpksa dks
vxj j[k ldsaxsa rks esjs cM+s HkS;k ys tk,xsa D;ksafd og fu%lrku gSA eSa vius vki ejuk
ugha pkgrh Fkh D;k d:a vc eSa 'kkjhfjd ,ao ekufld :i VwV pqdh gWwA
** lquhrk 'kekZ **
vkt fnukad 4-12-98 eSa lquhrk 'kekZ tgj [kkdj vkRegR;k dj jgh gwW D;ksafd
esjs ifr cgqr gh uhp] dehuk bUlku gS MkW- HkV~Vkpk;Z dh iRuh ds ihNsa ikxy gS mlds
dkj.k gh esjs dks ges'kk ekjrs &ihVrs jgrs gS dbZ ckj tku ls ekjus dh dksf'k'k fd;s
Hkh gS vkSj mlh vkSjr ds dkj.k gh jketh ;kno dk edku fy;s gS vkt 6 ekg gks x;k
gS edku [kkyh djus dks cksyrs ugh dj jgsa gS bl dkj.k eSa cgqr gh ekufld vkSj
'kkjhfjd :i ls ijs'kku gwW ;s rks esjs fy;s ej pqdsa gSa cgqr gh nq"V vkSj dehuk bUlku
gSA dqRrk ls Hkh ?kfV;k gS Hkxoku bldks dHkh {kek u djsaA
** lquhrk 'kekZ **
16. As per prosecution, (Ex.P/3 & Ex.P/4) i.e. suicide notes of deceased. It is
clear that she has committed suicide due to illicit relation with wife of Dr.
Bhattacharya and on being alleged by the deceased regarding this, the
appellant used to assault the deceased.
17. In present case also the prosecution has failed to establish this fact and
failed to prove this fact that whether the suicidal letter was written by the
deceased or not. The learned trial Court also finds that in both suicidal
letters, it was stated that she committed suicide by consuming poisonous
Neutral Citation
2024:CGHC:22580
substance and this fact was supported by medical evidence i.e. Ex.P/6
and Ex.P/22. So, learned Trial Court finds that both suicidal letters were
written by deceased Sunita bai, but It is clear from record that
prosecution did not appoint any handwriting expert to examine the
writing. K.S. Thakur (PW-11) who is the Investigation Officer also
admitted this fact in para 13 of his deposition that at the time of incident
no panchnama was prepared of house and after some days, Ex.P/3 &
Ex.P/4 suicidal letters were seized and he also admitted this fact that he
did not take any action for examining the handwriting of suicidal letters.
18. In M. Mohan Vs. State Represented by the Deputy Superintendent of
Police (AIR 2011 SCC 1238) the Hon'ble Supreme Court by the
following observation, has clearly held that in order to convict a person
under Section 306 of IPC there has to be a clear mens rea to commit the
offence.
"45. 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.
46. The intention of the Legislature and the ratio of the cases
decided by this Court are clear that in order to convict a person
under Section 306, IPC there has to be a clear mens rea to
commit the offence. It also requires an active act or direct act
which led the deceased to commit suicide seeing no option and
this act must have been intended to push the deceased into such
a position that he/she committed suicide."
19. Hon'ble Supreme Court in Sanju Vs. State of MP (Criminal Appeal No.
572 of 2002, decided on 01.05.2002) held in para 15 as under:-
"15. A plain reading of the suicide note would clearly show that the
deceased was in great stress and depressed. One plausible reason
could be that the deceased was without any work or avocation and at
the same time indulged in drinking as revealed from the statement of
the wife- Smt. Neelam Sengar. He was a frustrated man. Reading of
the suicide note will clearly suggest that such a note is not a handy
work of a man with sound mind and sense. Smt. Neelam Sengar, wife
of the deceased, made a statement under Section 161 of Cr.P.C. before
the Investigation Officer. She stated that the deceased always indulged
in drinking wine and was not doing any work. She also stated that on
26th July, 1998 her husband came to them in an inebriated condition
and was abusing her and other members of the family. The prosecution
story, if believed, shows that the quarrel between the deceased and the
Neutral Citation
2024:CGHC:22580
appellant had taken place on 25th July, 1998 and if the deceased came
back to the house again on 26th July, 1998, it cannot be said that the
suicide by the deceased was the direct result of the quarrel that had
taken pace on 25th July, 1998. Viewed from the aforesaid
circumstances independently, we are clearly of the view that the
ingredients of 'abetment' are totally absent in the instant case for an
offence under Section 306 I.P.C. It is in the statement of the wife that
the deceased always remained in a drunken condition. It is a common
knowledge that excessive drinking leads one to debauchery. It clearly
appeared, therefore, that the deceased was a victim of his own conduct
unconnected with the quarrel that had ensued on 25th July, 1998 where
the appellant is stated to have used abusive language. Taking the
totality of materials on record and facts and circumstances of the case
into consideration, it will lead to irresistible conclusion that it is the
deceased and he alone, and none else, is responsible for his death."
20. In the light of above judgments and in the present case also PW-01, PW-
02 & PW-03 stated about the bad character of appellant and deceased
too was complaining about his bad character to her family members.
Hence, both suicidal letters i.e. (Ex. P/3) & (Ex. P/4) also reveals same
allegation against the appellant that his character was not good.
21. In the light of above judgments and looking to the provisions of Section
107 of IPC, statement of prosecution witnesses and Ex. P/3 & Ex.P/4
does not constitute any explanation as defined under Section 107 of
IPC, therefore, on the basis of material available on record offence under
Section 306 of IPC is not proved against the appellant, but the learned
Trial Court convicted the appellant. So, findings recorded by learned Trial
Court are perverse and are not sustainable.
22. Thus, from overall discussion of prosecution witnesses and material
available on record, it is difficult to infer that the appellant in any manner
abetted the deceased to commit suicide. The learned Trial Court while
convicting the accused has not considered the prosecution witnesses in
its true perspective.
23. In the result, the present appeal is allowed and the impugned judgment
of conviction and order of sentence dated 28.08.2003 is hereby set-
aside. Appellant is acquitted of the charge under Section 306 of IPC.
24. The appellant is reported to be on bail, therefore, his bail bond shall
remain in operation for a period of six months from today in view of
Neutral Citation
2024:CGHC:22580
provision of Section 437-A of CrPC.
25. The Trial court record along with a copy of this judgment be sent back
immediately to the trial court concerned for compliance and necessary
action.
Sd/-
(Rajani Dubey)
JUDGE
Amit Patel
