Shivcharan vs The State Of Madhya Pradesh
2021 Latest Caselaw 7 MP

  IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR

                    Cr. Appeal No. 8469/2019

                            Shivcharan

                                   Vs.

                     State of Madhya Pradesh

............................................................................

For the appellant    :- Mr. Pramendra Singh Thakur Ld. Adv,

For the respondent :- Mr. Utkarsh Agarwal, Ld. Panel Lawyer
............................................................................


Coram: Atul Sreedharan J.
Whether approved for reporting: Yes
Law Laid down: Abetment of an offence, falls under the category
                of "Inchoate Offences" - Characteristics of an
                Inchoate Offence - When can an accused be held
                guilty of having abetted an offence - assessing the
                guilt of an accused in abetment of suicide by wife
                from domestic violence/matrimonial cruelty.

Significant paragraphs: 16 to 20


Heard through video conferencing




                                         (Atul Sreedharan)
                                               Judge
                                 1




     IN THE HIGH COURT OF MADHYA PRADESH,
                   JABALPUR

                    Cr. Appeal No. 8469/2019

                           Shivcharan

                                Vs.

                    State of Madhya Pradesh

............................................................................

For the appellant      :- Mr. Pramendra Singh Thakur Ld. Adv,

For the respondent :- Mr. Utkarsh Agarwal, Ld. Panel Lawyer
............................................................................

                      JUDGEMENT

20/01/2021

The present appeal has been filed by the appellant,

aggrieved by the judgment and order dated 10-07-2019

passed by the II Additional Sessions Judge, Multai,

District Betul, in Sessions Trial No. 101/2018. The

appellant has been found guilty and convicted to suffer

seven years RI for the offence under Section 306 IPC and

a fine of Rs. 1,000/- with an additional RI of three months

in default thereof. He has also been convicted for an

offence under Section 498-A of IPC and sentenced to

rigorous imprisonment for two years and fine of Rs.

1,000/- in default of the same, to undergo RI of an

additional three months. With the consent of parties, this

appeal is finally heard.

2. Briefly stated, the case of the prosecution is that the

appellant herein who is a labourer, is the husband of the

deceased Bhimibai. The marriage was solemnised with the

consent of both the parties and their families on 16-05-

2017. The deceased consumed poison and died on 04-07-

2018, just about a year after she got married.

3. Vide order dated 10-12-2018, charges were framed

against the appellant u/ss. 304-B and 498-A of IPC.

However, as the prosecution was unable to prove the

demand of dowry, the learned court below acquitted him

of the charge under Section 304-B but convicted him for

an offence under Section 498-A and 306 of IPC. It would

be relevant to mention here that the appellant was never

charged under Section 306 of IPC.

4. PW 1 and 2, are the father and the mother of the deceased,

who have stated in their evidence that the deceased, after

marriage was a victim of physical violence by the

appellant. This violence, according to the prosecution was

inflicted upon the deceased by the appellant under the

influence of alcohol or, upon the refusal of the deceased

to give money to the appellant to consume alcohol. These

witnesses have also stated that the appellant had pawned

the manga sutra and silver anklets of the deceased for the

purpose of consuming alcohol. They have stated that

whenever the deceased used to come to her parental

home, she used to inform them about the violence being

inflicted upon her by the appellant for extracting money

from her for the purpose of consuming alcohol.

5. PW 3 and 4, are the aunt and uncle of the deceased whose

testimonies reveals that their evidence is hearsay, as none

of them state that they have ever heard the deceased

inform PW 1 and 2, in their presence, about the violence

being inflicted upon the deceased by the appellant and

neither do they state that the deceased herself had ever

informed them directly.

6. PW 7 is the Doctor who performed the post-mortem

examination. He says that there was a lacerated injury on

the neck of the deceased measuring 2x1x1.5 cms and the

same was caused by hard and blunt instrument within 24

hours of the post-mortem examination and that it was

simple in nature. As regards the opinion pertaining to

cause of death, he says that it is inconclusive and left it

open to be inferred on appreciating the report of the

chemical analyst, pertaining to the viscera. The post-

mortem report proved by the witness is Exhibit P/6. The

viscera report dated 24-09-2018 is Exhibit P/13. It reveals

that Phorate, an organophosphorus insecticide was found

in the visceral organs (parts of liver, kidney, spleen, lungs,

heart, stomach and stomach contents, large intestine and

small intestine) thus, it could be inferred that the

deceased died on account of ingesting the aforementioned

toxic substance.

7. Learned counsel for the appellant has submitted that PW

1 and 2 have been declared hostile and therefore, their

statements are unworthy of reliance and that the rest of

the witnesses are hearsay witnesses. In fact, he has

submitted that there is no legal evidence on which the

learned trial Court could have based the conviction of the

appellant.

8. Having gone through the statement of PW 1, this Court

finds that in paragraph-1 and 2 (Examination-in-Chief),

the witness has clearly indicted the appellant herein of

having physically assaulted the deceased as recently as

one week before her death. The reason for the physical

violence given by PW 1, is non-fulfilment of the appellant's

demand for money to consume alcohol. He further states

that he did not make any report to the police as the

appellant was his son-in-law. The reason why this witness

has been declared hostile and cross-examined by the

prosecution is that he has forgotten to reproduce in

totality his statement u/s. 161 Cr.P.C and not because he

wanted to aid the appellant/accused. To leading

questions put by the Public Prosecutor after having been

declared hostile, this witness has reiterated as correct

what he has given in his police statement, of the various

instances of physical violence meted out to the deceased

by the appellant. In the cross-examination by the defence,

no material contradiction has been brought out with

regard to the physical assaults on the deceased by the

appellant and neither has there being any substantial

confrontation with the 161 statement of this witness to

shake the substratum of the prosecution's case with

regard to physical violence inflicted upon the deceased by

the appellant.

9. Similar is the statement of PW 2, the stepmother of the

deceased. She says that the deceased is the daughter of

PW 1 from his first wife. In her examination-in-Chief this

witness states that the deceased had come to her parental

home two to three times before her death and informed

her that her husband (the appellant) used to fight with her

and beat her. She was also declared hostile and then

subjected to cross-examination by the Public Prosecutor

and in her cross-examination, she has reiterated her 161

statement and has stated the instances when the

deceased was beaten by the appellant. She further states

that the appellant may have murdered the deceased or the

deceased may have committed suicide on account of the

beatings received by her from the appellant. Therefore,

this Court finds that as regards the fact of violence being

perpetrated upon the deceased by the appellant, the same

stands proved by the deposition of PW 1 and 2 in their

examination in chief itself which remains uncontroverted

in cross examination.

10. Learned counsel for the appellant has also stated that as

regards the injury on her neck, there is no evidence to

show that it was the appellant, who had caused the said

injury immediately preceding the death of the deceased.

In this regard, he has referred to the statement of PW 7,

the doctor who performed the post-mortem. In paragraph

7, a suggestion was put to the doctor by the defence that

besides the external injury on the neck, there were no

other injuries on the body of the deceased. The doctor has

answered in the affirmative. It was also suggested that

the injury on the neck could have happened on account

of falling on an iron box, which was kept in the same room

where the body was found. The doctor has answered the

same as a probability which could have taken place.

11. Learned counsel for the appellant has drawn the attention

of this Court to Exhibit P/3, which is the site map

prepared by the police at the scene of occurrence. Where

the body of the deceased was found, on the right-hand

side of the body, there is an iron box which is marked as

number 3 in the map. Learned counsel for the appellant

has submitted that the probability of the deceased having

fallen over the iron box injuring herself on the neck,

cannot be discounted and that it does not go to reflect that

the said injury was caused by the appellant immediately

before the death of the deceased. He further states that

none of the witnesses have stated that the appellant was

responsible for the injury on the neck of the deceased. He

also states that no question to that effect was put to the

appellant in his 313 statement. This Court has gone

through the statement u/s. 313 Cr.P.C of the appellant in

detail. Questions at serial No. 68, 69, 72, 73, 87, 99 and

100 are questions disclosing to the appellant of the injury

on the neck of the deceased. However, there is no question

in the 313 statement to the effect that the appellant was

responsible for that injury on the neck by assaulting the

deceased with a hard and blunt object. Understandably

so, as no witness has spoken to that effect. Under the

circumstances, the contention of the learned counsel for

the appellant is accepted that the injury on the neck of

the deceased cannot be considered as having been caused

by the appellant.

12. Learned counsel for the State has submitted that the

appeal deserves to be dismissed and that the order passed

by the learned court below is just and proper and there is

no deficiency in the impugned order requiring interference

by this Court. As the learned counsel for the appellant has

not argued on the point that conviction under Section 306

IPC is bad on account of the appellant not having been

charged with the same, and in view of the observations of

the learned trial court in paragraph-47 of the judgment,

this Court does not find fault with the findings of the

learned trial Court that a conviction under a lesser offence

could be imposed even though the accused was not

specifically charged with. However, this court has to

examine whether the conviction under Section 306 of IPC

of the appellant was proper or not?

13. Heard the learned counsel for the parties and perused the

Trial Court record. As regards the offence of abetment of

suicide punishable u/s. 306 IPC, it is imperative that it

must satisfy the ingredients of s. 107 of IPC. The

ingredients of abetment are given in Section 107 IPC.

Abetment can be effected by three means:

        a]     By instigation

        b]     By illegal act or omission pursuant to a conspiracy,

               and

        c]     By participation.


14.     In State of Maharashtra Vs. Rajendra and Ors.,1          the

Supreme Court held that there must be specific evidence

which reveals abetment on the part of the accused which

resulted in the deceased committing suicide (paragraph 33

at page 506). In that case, the deceased wife had committed

suicide by setting herself on fire. Allegations were levelled

against the entire family of harassing the deceased for

dowry and subjecting her to mental and physical cruelty.

The Supreme Court held that the harassment of the

deceased was with the view of coercing her to convince her

parents to meet the demand for dowry. However, as regards

the question whether the harassment would result in the

1 (2014) 12 SCC 496

deceased committing suicide, the Supreme Court held that

the same was a matter of doubt. The Supreme Court

acquitted the appellants for the charge u/s. 306 IPC.

15. In Gurjit Singh Vs. State of Punjab2, the Supreme Court

was dealing with a case where the appellant was convicted

for an offence u/s. 498-A and 306 IPC. As the sections

suggest, the case was one where the deceased committed

suicide, allegedly on account of matrimonial cruelty. The

Supreme Court held that there was sufficient evidence to

sustain conviction u/s. 498-A but acquitted the appellant

for the charge u/s. 306 IPC in the following words "There

is no material on record to show that immediately prior

to the deceased committing suicide there was a cruelty

meted out to the deceased by the accused due to which

the deceased had no other option than to commit the

suicide. We are of the view, that there is no material

placed on record to reach a cause and effect relationship

between the cruelty and the suicide for the purpose of

raising presumption" (paragraph 33).

16. The offence of abetment falls in the category of "Inchoate

Offences". In criminal jurisprudence, inchoate offences are

a species which are also known as "incomplete" or "incipient

offences". Those guilty of the same fall under Principals in

the Second degree (present at the scene of occurrence and

2 2019 SCC OnLine Supreme Court 1516

"assisting" or "instigating" the principal offender) or Third

degree (as in a conspirator or instigator - not present at the

scene of occurrence) and may be guilty even where the

principal offence intended has not attained fruition. In such

offences, what remains inchoate or incomplete is the

principal offence intended. However, the abettor may still be

liable for punishment as the offence of abetment is complete

against the abettor. Besides the offence of abetment, the

other offence is "attempt" which also falls under this

category of offences.

17. Instigation is the actus reus by the abettor on the abetted,

where the abettor intends/desires or has sufficient

knowledge, that the abetted would follow a particular course

of action, in the manner desired or intended by the abettor.

It is only in such a circumstance, proved beyond reasonable

doubt by evidence, that the accused can be held guilty of

having abetted the offence.

18. Section 113-A of the Evidence Act requires that the abetted

is a married woman who committed suicide on account of

the cruelty inflicted by the abettors. The difficulty is in

assessing the intensity and extent of cruelty inflicted upon

the deceased woman. The normal rigours of two human

beings living under the same roof, can see strife between

them. More so in a matrimonial home, where the existence

of the normal stress of matrimony sees some extent of strife

taking place regularly amongst married people. Where a

slap or humiliation may constitute cruelty for the purpose

of s. 498-A, the same would be grossly inadequate to hold

the husband guilty for an offence u/s. 306 IPC. An

extramarital relationship of a wife may be grounds for

divorce for the husband, but the wife cannot be held guilty

u/s. 306 IPC only because the husband committed suicide

on account of it. A hypersensitive individual may have a low

breaking point and may commit suicide on account of even

trivial matters.

19. In such cases, it would be essential for the Courts to

examine whether the victim in a matrimonial relationship

had access to legal redress. Today, with the availability of

effective legal aid assistance available to even the most

indigent of women suffering in matrimonial relationships

gone sour and also the availability of police stations,

specially established to cater to women of domestic violence

arising from matrimonial strife, manned by women police

personnel trained and sensitised in the handling of

matrimonial cases, not every case of suicide by a wife can

disclose a case against the husband and other members of

his family for the offence u/s. 306 IPC.

20. In cases where the suicide takes place in the matrimonial

home, abetment by incitement, which is sublime and

indirect, may be inferred by proved circumstances. Where

the deceased had no option but, to commit suicide on

account of the circumstances, created by the abettor, which

prevented her, either from seeking recourse to legal remedy

or, the absence of any avenue by which she could escape

the overbearing cruelty of the abettor, abetment of suicide

may be inferred. it is only in a situation where the deceased

was faced with a "Hobson's Choice", can abetment be

inferred in a matrimonial home. However, before that

inference is drawn, evidence must be brought to that effect.

21. In the present case, the evidence on record, goes to reveal

that the deceased had recourse to legal remedy as the

parents of the deceased themselves have stated before the

learned trial court that the deceased used to come to her

parental home several times and therefore, could have

sought legal redress if she wanted to. The evidence also goes

to show that the appellant never restrained the deceased

from leaving the matrimonial home and going to her

parental home as and when she wanted and therefore, the

circumstances in this case do not go to show that the

deceased did not have any option before her but, to commit

suicide.

22. The record of the learned trial Court does not indicate or

reveal that it was the appellant, who purchased and gave

her poison which she consumed on account of which she

died. The record also does not bear evidence that the

appellant directly or indirectly instigated the deceased by

action or omission, to commit suicide.

23. Under the circumstances, this Court is of the opinion that

the conviction under Section 306 of IPC cannot be sustained

as, evidence with regard to abetment by the appellant

resulting in suicide by the deceased, is unavailable.

24. Therefore, this appeal is partly allowed and the conviction

of the appellant under Section 306 IPC is set aside. As

regards the conviction of the appellant under Section 498-

A of IPC is concerned, the conviction and sentence is

sustained in view of the evidence that has come on record.

The appellant shall be released by the jail authorities if he

has completed the two years sentence that was imposed

upon him by the learned trial Court and if his continued

incarceration is not wanted in any other case.

25. With the above, the appeal is finally disposed of.

(Atul Sreedharan ) Judge PG/

Digitally signed by PARMESHWAR GOPE

PARMESH DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh,

WAR GOPE 2.5.4.20=82e4be00421d7168dfc282cfc357 856fc6fa58156627841fc401a18c2955934c, cn=PARMESHWAR GOPE Date: 2021.02.01 17:57:59 +05'30'