Jharkhand High Court
Baby Devi vs The State Of Jharkhand on 16 December, 2021
1
Cr. Appeal (SJ) No. 637 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 637 of 2003
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(Against the judgment of conviction dated 10.04.2003 and order of
sentence dated 19.04.2003 passed by the learned Additional
Sessions Judge, F.T.C.-II, Dhanbad in Sessions Trial No. 310 of 1996
in connection with G.R. Case No. 4128 /1995 Dhanbad, Jharkhand.)
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1. Baby Devi
2. Soni Mandal ... Appellants
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. Arjun N. Deo, Advocate
For the Respondent : Mr. Tapash Roy, Advocate
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PRESENT
HON'BLE MR. JUSTICE NAVNEET KUMAR
Order No. 06 : Dated: 16th December, 2021
Navneet Kumar, J. This appeal is preferred against the judgment of conviction
dated 10.04.2003 and order of sentence dated 19.04.2003 passed by
learned Additional sessions Judge, F.T.C.-II, Dhanbad, in S.T. No. 310
of 1996 whereby and whereunder the appellants were found guilty
and have been convicted under sections 306/34 of the Indian Penal
code and all of them have been sentenced to undergo R.I. for 7 years
and also to pay a fine of Rs. 2000/- each, in default of payment of fine
they have been further sentenced to undergo R.I. for 6 months.
It is found from the record that originally there were four
appellants including Appellant no.1 Tara Devi (mother-in-law),
Appellant no.2 Jagat Ram Mandal (father-in-law),Appellant no.3
sisters-in-law (Nanad) Baby Devi and Appellant no.4 sister-in-law
(Nanad) Soni Mandal. Out of the said four appellants two of them,
namely, Appellant no.1 Tara Devi (mother-in-law) and Appellant
no.2 Jagat Ram Mandal (father-in-law) have died during pendency of
this appeal and hence names of Appellant no.1 Tara Devi (mother-in-
Cr. Appeal (SJ) No. 637 of 2003
law) and Appellant no.2 Jagat Ram Mandal (father-in-law) have been
deleted from the Cause Title of the appeal and the rest of the
appellants have been renumbered as Appellant no.1 Baby Devi and
Appellant no.2 Soni Mandal.
Prosecution Story
2. The prosecution case in brief is that one Bimla Pankaj (P.W. 4)
had given her fardbeyan before the officer In charge Hariharpur
Police Station on 13.11.1995 stated that she had two sons and three
daughters.
She further stated in her fardbeyan that her husband P.P.
Pankaj who was Railway Employee had been traceless since last four
years. Her youngest daughter, namely, Sapna Tigga solemnized her
love marriage with one Pramod Mandal, who was unemployed and
was the son of retired train driver, namely Jagat Ram Mandal (A.2)
who was residing at retired colony Jitpur, Gomoh.
In her fardbeyan she has further stated that her youngest
daughter, namely Sapna Tigga started leaving in her sasural. She
further stated that the father-in-law Jagat Ram Mondal (since
deceased), mother-in-law Tara Devi (since deceased) and sister-in-
law, namely Soni Mandal (Appellant no.2) used to always torture and
tease the daughter of the informant and the informant used to receive
this information from the neighbours and also from Sapna Tigga, the
daughter of the informant.
It is further alleged that on the eve of Chhatha Puja the elder
Sister-in-Law, namely, Baby Devi (Appellant no.1) came from her
sasural and since then all of them started torturing the daughter of
the informant.
It is further alleged that Pramod Mandal Son-in-Law of the
informant had gone to Patratu in search of job and as soon as he went
out from the house the accused persons started torturing her, as a
result of which the daughter of the informant, namely, Sapna Tigga
committed suicide by hanging.
Cr. Appeal (SJ) No. 637 of 2003
3. The aforesaid fardbeyan was forwarded to the officer In Charge
of Topchanchi Police Station for instituting the case u/s 306/498 A/
34 of IPC. Accordingly, the case was registered as Topchanchi Police
Station no. 144 of 1995 dated 13.11.1995.
4. After completion of the investigation the charge sheet was
submitted and after framing the charge u/s 306/34 of IPC the case
was committed to the court of sessions and after completing the trial
passed the impugned judgment of conviction and order of sentence
which are under challenge.
5. Heard Mr. Arjun N. Deo, learned counsel for the appellant and
Mr. Tapash Roy, learned A.P.P. for the State.
Arguments on behalf of the appellants
6. Assailing the impugned judgment of conviction and order of
sentence the learned counsel has stated that the learned trial court
without there being any evidence of abetment direct or indirect
convicted the appellant u/s 306 IPC.
7. In absence of suicide note left by the deceased Sapna Tigga, it
has been contended on behalf of the learned defense counsel that
there is no iota of evidence with respect to the instigation by the
accused appellant to the deceased Sapna Tigga to commit suicide. It
has been pointed out that there is no evidence of alleged torture by
the appellants nor there is any evidence of specific type of torture
committed by the appellants. The entire allegations are general and
vague with respect to torture leveled against the appellants. Further it
is submitted on behalf of the appellants that no independent witness
has been examined on the point of instigating the deceased or any
kind of torture or cruelty in furtherance of their common intention for
causing harassment and misery to the deceased for committing
suicide.
It has also been argued by the learned defense counsel that the
trial court has failed to take into consideration the fact that the
appellant no. 2 Soni Kumari Mandal was the minor at the time of
Cr. Appeal (SJ) No. 637 of 2003
alleged occurrence and therefore her trial along with other accused
persons was absolutely illegal as the date of birth of Soni Kumari
Mandal was 10.07.1980 and on the date of occurrence the age of Soni
Kumari Mandal was 15 years and four months and, therefore, the
trial should have been conducted under the provision of the Juvenile
Justice Act and as such the trial is vitiated. The learned trial court has
also failed to take into consideration that there was no earlier report
of torture or any cruelty before the authority and in absence of any
specific nature of torture the entire allegations made by P.W. 4
appears to be after thought with a view to give some lessons to the
appellants and as such the impugned judgment of conviction and
order of sentence is fit to be set aside.
8. It is also pointed out that the I.O. in this case has not been
examined by the prosecution and the non-examination of the I.O. has
caused serious prejudice and no explanation by the prosecution for
non-examination of the I.O. has been given and as such no
contradiction could be brought before the learned trial court. Further,
it has also been contented that the doctor who has conducted the
post-mortem did not notice any external injuries and, therefore, the
allegations of torture and cruelty appears to be after thought and,
therefore, the impugned judgment of conviction and order of
sentence is not sustainable in the eyes of law and fit to be set aside.
Arguments on behalf of the State
9. On the other hand, leaned A.P.P. appearing for the State
submitted that it is a clear cut case of the abetment to commit suicide
instigated by the appellant and the learned trial court has rightly
appreciated the evidence brought on record and no error is found in
appreciation of the evidence by the learned trial court and the appeal
is fit to be dismissed being devoid of any merit.
FINDINGS
10. Having heard the learned counsel for the parties, perused the
records of the case including the lower court record.
Cr. Appeal (SJ) No. 637 of 2003
11. It is found that the informant was the mother of the deceased.
The husband of the informant, namely, Peter Paul Pankaj, was
traceless since last 4 yrs. The case of the prosecution is that the
informant's daughter Sapna Tigga had solemnized love marriage
with Pramod Mandal in the year 1995. Thereafter, it is alleged that
the daughter of the informant, Sapna Tigga committed suicide on
13.11.1995 at 1 p.m. The statement of the informant was recorded as a
fardbeyan in which she made the allegations against the appellants
who are the sisters-in-law (nanad) of the deceased apart from mother-
in-law and father-in- law (since both of them died during pendency
of this appeal) has tortured the deceased. The husband Pramod
Mandal of the deceased was not made accused by the informant.
12. Both the appellants for the offence punishable u/s 306/ 34 of
I.P.C are sisters-in-law (nanad) of the deceased.
In order to substantiate its case, the prosecution has examined
altogether 5 witnesses. At the outset the testimonies of P.W.5 Dr.
Shailendra Kumar are taken into consideration by which it is found
that the deceased Sapna Tigga had died due to asphyxia as a result of
hanging. This P.W.5 has proved his post-mortem report as Ext.3
which clearly suggests that the deceased had died due to asphyxia
and as such the case of the prosecution that she had committed
suicide is substantiated. But, then the guilt of the accused-appellant
to instigate the deceased to commit suicide is to be appreciated from
the evidences available on record as abettors from the testimonies of
the rest of the witnesses. P.W. 1 Ritik Kumar Gupta, examined on
behalf of the prosecution, has identified his signatures on the inquest
report and on the Fardbeyan which are marked as Ext. 1 and Ext.2
respectively. This witnesses in his examination-in-chief has stated
that the marriage of the deceased was solemnized in the year 1995
and since then she had been living in her in-laws place. He did not
know as to how she died and this witness has been declared hostile.
In the examination-in-chief conducted on behalf of the prosecution
the attention of this witness has been confronted with his earlier
Cr. Appeal (SJ) No. 637 of 2003
statement recorded by the police under section 161 of Cr.P.C. but the
prosecution is failed to examine I.O. in this case and as such it has
caused prejudice to the appellants substantially. In the cross-
examination conducted by the defense, this witness had stated that
he did not know about the incident and there had been a good
relationship between husband and wife and thus falsifying the case
of the prosecution.
13. P.W. 2-Raj Kumar Mandal has also been declared hostile and he
stated that the marriage had taken place in the year 1995 and she had
been living with her husband who has not been made accused in this
case. This witness categorically stated that his statement was not
recorded by the police and as such serious prejudice has been caused
to the defence as the accused-appellants did not get the opportunity
to bring out the contradiction in their statement. Thus, the
prosecution has hopelessly failed to prove its case beyond doubt.
14. P.W. 3-Uttam Kumar Das has also been declared hostile and he
did not know about the incident. Thus three witnesses P.Ws. 1, 2 & 3
are declared hostile and only witness upon which the trial court has
relied upon and passed the impugned judgment of conviction and
order of sentence is the P.W. 4.
15. P.W. 4 Bimla Pankaj is the informant of this case and she is said
to be the mother of the deceased, has stated that her deceased
daughter married in the year 1995 with Pramod Mandal and since
then she had been living in her in-laws place with her husband. She
further stated that that her deceased daughter had told her mother
P.W.4 to provide job to her husband in her place by leaving her job.
She also stated that her mother-in-law and sisters-in-law were
causing torture to her. This witness did not state that as to who were
the sisters-in-law (Nanad) causing torture to her and what kind of
torture or harassment were being caused to the deceased by them
and by whom and in what manner. The deposition is completely
vague and sweeping in nature in order to ascertain as to whether it
amounts abetment within the meaning of section 306 of I.P.C. or not.
Cr. Appeal (SJ) No. 637 of 2003
In view of the definition of abetment the ingredients of intentional
instigation is the most important element to be established and that is
completely lacking in deposition of P.W. 4. In order to appreciate the
said sweeping testimony of P.W. 4, it is necessary to appreciate the
definition of abetment as given in section 107 of IPC which reads as
under:
Section 107:-
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.
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.
From the definition of the abetment as given u/s 107 of IPC vis-
a-vis the testimony of P.W. 4, this Court does not find any slightest
ingredients of abetment in order to establish that these appellants
have either instigated or conspired or intentionally did any act or
omission that led the deceased to commit the suicide. The learned
trial court relied upon only on the version of P.W.4 who did not
disclose the name of the any sisters-in-law as both the appellants are
sister-in-laws (Nanads) and this witness P.W.4 also did not state any
specific act caused by these appellants either to instigate or to
conspire to compel the deceased to commit suicide and therefore, in
Cr. Appeal (SJ) No. 637 of 2003
absence of any iota of evidence against any of them the prosecution
failed to establish the abetment caused by these appellants to lead the
deceased to commit suicide. Learned defense counsel has relied upon
the rulings of the Hon'ble Supreme Court reported in 2010(1) East
Cr. C. 297 (SC) whereunder in the circumstances of the case it has
been observed in para 20 and 21 of the case as under:-
20. 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.
21. The intention of the Legislature and the ratio of the cases
decided by this court is 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
committed suicide.
In view of the aforesaid observations of Hon'ble Supreme
Court it is found that in the testimony of P.W. 4 there is nothing
about the instigation with respect to any of the two appellants and
not a single word has been uttered by the P.W. 4 in her testimonies in
order to establish the instigation caused by any of the two appellants.
This informant P.W.4 did not depose even a slightest act done
directly or indirectly by any one of the appellants or any kind of their
positive intention to substantiate the charges of abetment against any
one of the appellants. Neither any evidence of wilful
misrepresentation or wilful concealment of any fact or any kind of
procurement to instigate her to commit suicide. Rather in para 6,
P.W.4 has explicitly stated that she did not know as to how the
deceased died by hanging herself and this statement unequivocally
establishes her complete ignorance about the incident. In para 4 of the
deposition, P.W.5 Dr. Shailendra Kumar stated that there was no
external injuries was found indicating the absence of any kind of
mental and physical cruelty or harassment or torture of any nature
either of demand of dowry or day to day bickering of house hold
affairs or any kind of teasing by these two appellants. It is also
Cr. Appeal (SJ) No. 637 of 2003
pertinent to take into consideration that the husband of the deceased
has neither been arrayed as an accused in this case nor he has been
examined as a witness for the reasons best known to the prosecution,
although the deceased had categorically asked from her mother
(P.W.4) to provide job to her husband by leaving her service as
evident from Para 1 of P.W.4.
16. Further a major lacuna of prosecution is manifest in the cross
examination of P.W.4. It is found in the cross examination of P.W.4
that the defense had confronted version of the earlier statement of
this witness as recorded by the I.O. u/s 161 Cr.P.C. in para 5 during
the course of the trial but the accused-appellants have been debarred
to afford an opportunity to bring the contradictions of the earlier
statement of this witness P.W. 4. in absence of non-examination of the
I.O. and, therefore, the submission advanced on behalf of the learned
defense counsel that the non-examination of the I.O. has seriously
caused prejudice to the appellants has got force of law under the
facts and circumstances of this case.
17. In the backdrop, taking into consideration the totality of the
testimonies of the witnesses examined on behalf of the prosecution it
is well established that there is no positive act on the part of the
accused appellants to instigate the deceased in committing suicide
and, therefore, the conviction cannot be sustained in the eyes of law.
18. In the result of the impugned judgment of conviction and order
of sentence is set-aside and this appeal is allowed.
19. Since the appellants of this appeal are on bail, they are
discharged from the liabilities of their bail bonds in this case.
20. Let the Lower Court records be sent back to the Court
concerned forthwith, along with a copy of this Judgment.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 16.12.2021/NAFR
MM/-
