Madhya Pradesh High Court
Sunder Singh vs The State Of M.P. on 16 March, 2023
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 16th OF MARCH,2023
CRIMINAL APPEAL NO 173 OF 2004
Between:-
SUNDER SINGH SON OF SHRI
AMAR SINGH JAT, AGED 23 YEARS,
RESIDENT OF F.L. 313, DINDAYAL
NAGAR, GWALIOR (MADHYA
PRADESH)
........APPELLANT
(BY SHRI DEEPENDRA SINGH RAGHUVANSHI,
ADVOCATE APPINTED THROUGH LEGAL AID
SERVICES AUTHORITY ALONG WITH SHRI AYUSH
SAXENA- ADVOCATE)
AND
STATE OF MADHYA PRADESH,
THROUGH POLICE STATION
MAHARAJPURA, DISTRICT
GWALIOR (M.P.)
........RESPONDENT
(BY SHRI CP SINGH- PANEL LAWYER)
--------------------------------------------------------------------------------------------
This appeal coming on for hearing this day, the Court passed the
following:
JUDGMENT
Being aggrieved by judgment of conviction and order of sentence dated 23-01-2004 passed by Seventh Additional Sessions Judge, Gwalior in 2 Sessions Trial No.228 of 2003, the present criminal appeal under Section 374 of CrPC has been preferred by the appellant whereby he has been convicted under Section 306 of IPC and sentenced to suffer ten years rigorous imprisonment with fine of Rs.1,000/- with default stipulation. (2) In brief, prosecution case is that on 09-04-2003 at around 06:30 pm, Lalita Bai, sister-in-law (Devrani) of Kallo Bai (since deceased) gave an information to Police Station Mahrajpura, Gwalior stating therein that Kallo Bai committed suicide by hanging herself inside the room. Her husband and brother-in-law (herein appellant) were not at home. Her neighbour advised her to go to police station. On her information, merg no.7 of 2003 was recorded under Section 174 of CrPC vide Ex.P7. The dead body of deceased was taken out from the room at 09:00 pm. On the next day i.e. 10-04-2003 the dead body Panchnama was prepared in the presence of father of deceased Ramesh Singh (PW6) and PW8 Lalita Bai (Devrani of deceased). Although, all the witnesses i.e. mother of deceased Smt. Sheela (PW4) father of deceased Ramesh Singh (PW6), Rajendra Singh (PW5) and Bachhu Singh (PW7) were present at the time of preparation of dead body Panchanama and all of them stated that deceased had committed suicide by hanging herself but no injury were found on the body of the deceased. Thereafter, postmortem of deceased was conducted. As per postmortem report, the deceased died due to asphyxia as a result of hanging and duration of death of deceased was within 6 to 24 hours since postmortem examination. During merg enquiry, statement of mother of deceased Smt. Sheela (PW4) was recorded on 12-04-2003 vide Ex.D2 i.e. after three days of incident in which she stated that on the date of incident i.e. 09-04-2003 while she was in her home, appellant Sunder Singh through telephone called her at his house. On that, she told that her husband is not in her home, therefore, she cannot come. Thereafter, the appellant 3 compelled her to come with money. She came by a bus and when she reached alone the house of appellant at Dindayal Nagar, she found that her daughter Kallo Bai was lying on a cot and the appellant was having a country-made liquor in his hand and woke up her daughter by giving a kick and told her how much money she has brought with her. On that, she told that she had no money. Meantime, the sister of appellant Guddi came there. Thereafter, appellant started committing marpeet with her daughter Kallo Bai and hurled abuses and pressed her neck. On seeing such incident, when she ran away from there and tried to inform police on reaching Chaurah of Dindayal Nagar, from her behind, the appellant came with his auto and told her to drop her at home. At that time, Guddi, the sister of appellant also came there and informed that Kallo Bai committed suicide. Thereafter, the mother of deceased along with present appellant in the auto came to the house of appellant and saw that her daughter has committed suicide by hanging herself. When the mother of deceased started weeping, the appellant also committed marpeet with her. It is alleged that the appellant also used to commit marpeet with her daughter due to which she committed suicide. Thereafter, it was informed to her village through telephone by which her husband Ramesh Singh and Rajendra Singh (uncle of deceased) and one Bachu Singh reached Dindayal Nagar to whom the mother of deceased had narrated the incident. On basis of which FIR vide Crime No.60 of 2003 vide Ex.P9 was registered at Police Station Maharajpura for offence under Section 306 of IPC against present appellant and the sister of appellant Guddi. Both of them were arrested. Statements were recorded. After completion of investigation and other formalities, challan was filed before the competent Court from where the case was committed to Sessions Court for its trial. (3) Appellant and his sister co-accused Guddi abjured their guilt and 4 pleaded complete innocence. Prosecution in order to prove its case, have examined as many as ten witnesses. Appellant and his sister Guddi examined Surendra and Sanjay Singh Kushwah in their defence as DW1 and DW2. (4) After conclusion of trial, the Trial Court vide impugned judgment acquitted Guddi (sister of appellant) of charge levelled against her and convicted the present appellant for commission of offence under Section 306 of IPC and sentenced him accordingly, as stated in para 1 of this judgment. (5) Challenging the impugned judgment, learned counsel for the appellant submits that the prosecution case solely rests upon the evidence of mother of deceased Smt. Sheela (PW4). Uncle of deceased PW5 Rajendra Singh, father of deceased PW6 Ramesh Singh and PW7 Bachu Singh are interested as well as related witnesses, therefore, their evidence is subjected to minute scrutiny and they are not reliable. There are lot of contradictions and omissions in their evidence as they were informed by Smt. Sheela (PW4). There are major contradictions and omissions in relation to previous statement recorded at the time of merg under Section 174 of CrPC vide Ex.P7 and statement recorded under Section 161 of CrPC. If contents of impugned FIR are accepted in its entrity, prosecution story creates a serious doubt. The author of merg intimation, namely, Devrani of deceased Lalita Bai (PW8) has specifically in her statement deposed that at the time of incident the appellant was not present in house and since morning he had gone with his auto and returned home at about 09:00 in the night. The learned trial Court has committed an error in convicting and sentencing present appellant. It is further contended that since ingredients of Section 107 of IPC are lacking, therefore, prosecution utterly failed to establish the guilt of appellant beyond reasonable doubt for holding him guilty for offence under Section 306 of IPC. Hence, appellant deserves to be acquitted.
5(6) On the other hand, learned Counsel for the State supported the impugned judgment and submitted that there being no infirmity in the impugned judgment of conviction and sentence and the findings arrived at by the Trial Court do not require any inference by this Court. Hence, prayed for dismissal of this appeal.
(7) Heard the learned counsel for the parties. (8) The first question for consideration is that whether the appellant in
any manner abetted his wife deceased to commit suicide or not ? The next question for consideration is that whether the sole evidence of mother of the deceased Smt. Sheela Bai (PW4) is reliable for conviction of appellant or not?
(9) Smt. Sheela (PW4), mother of the deceased in examination-in-chief of her Court statement deposed that the appellant used to commit marpeet with her daughter and used to take liquor. On the date of incident, the appellant called her by telephone at his house and told her to bring rupees ten thousand otherwise, he will broke hands and legs of her daughter. She told that her husband is not at her house. Thereafter, the appellant compelled her to come whereby she reached the house of appellant at Dindayal nagar alone and at that time, appellant had also arrived along with his auto and entered in the house. He was having a red-coloured bottle of country-made liquor and started consuming same. Then, he woke up her daughter deceased by giving a kick. Her daughter started weeping and the appellant enquired from this witness as to whether she has come bringing the money or not. This witness deposed that when she refused that she had no money, the appellant and the sister of appellant Guddi started committing marpeet with her daughter. When she tried to intervene in the matter, appellant pressed her neck. Her daughter(deceased) Kallo Bai rescued her. Thereafter, she ran away from the 6 spot and reached at Chaurah of Dindayal Nagar. The appellant came there along with his auto and told her where are you going. On that, she told that she is going to her house. Meantime, sister of appellant Guddi reached behind her there and informed that her daughter Kallo Bai committed suicide. She along with auto of appellant reached the house of appellant and found that her daughter Kallo Bai is hanging with a saree. On hearing her cries, the appellant pelted a stone at her hand and slapped her. This witness in para 4 of her examination-in-chief deposed that the appellant used to commit marpeet and harass her daughter due to which she committed suicide. Thereafter, thepolice reached the spot and informed her husband Ramesh Singh and brother-in-law Rajendra Singh by which both of them reached Dindayal Nagar to whom, she narrated the incident. In para 8 of her cross- examination, this witness admitted that appellant had telephoned at around 02:30 pm. This witness further stated that there is no phone facility in her home and she had talked through phone of her brother-in-law Rajendra Singh. This witness also deposed that she does not know telephone number of her brother-in-law. At the time of receiving phone call, her younger daughter Nidhi who was present in the house of her brother-in-law had received phone call and after calling her, she had talked with the appellant. (10) Uncle of deceased Rajendra Singh (PW5) in para 13 of his cross- examination has specifically stated that before four-five days of incident, his telephone was not in working condition and after four-five days of death of deceased Kallo Bai, his telephone was prepared. Appellant had never telephoned him on the date of incident. Phone was received by one Devi Singh because he was the informant of police.
(11) On going through the evidence of mother of deceased Smt. Sheela (PW4), it is clear that appellant telephoned her brother-in-law Rajendra 7 Singh (PW5) is not at all acceptable. Besides this, the police diary statement of Smt. Sheela (PW4) was recorded on 12-04-2003 vide Ex.D2 in which she stated that appellant had telephoned her to come his house by bringing rupees ten thousand. Further, this fact does not contain at all in merg intimation Ex.P7 that if mother of deceased will not bring aforesaid amount, appellant will broke hands and legs of deceased. Further, it is not mentioned in the merg intimation that when mother of deceased reached the house of appellant, appellant was having a country-made liquor and consumed same and thereafter, when she told that she had no money, appellant and the sister of appellant Guddi started committing marpeet with her daughter i.e. deceased.
(12) In the present appeal, in order to consider as to whether the act or conduct of present appellant would amount to abetment or not, it would be appropriate to consider the provisions of Sections 107 and 306 of IPC.
Section 306 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 which may extend to ten years, and shall also be liable to fine.
Section 107 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 lakes 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.
8Explanation1.--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."
(13) The Hon'ble Apex Court in the matter of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 while dealing with term "instigation"has held as under:-
"16. ... instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of 'instigation', though it is not necessary that actual words must be used to that effect or what constitutes 'instigation' must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an 'instigation' may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.'' (14) Further, the Hon'ble Apex Court in the matter of Gangula Mohan Reddy Vs. State of A.P. (2010) I SCC 750 has held as under:-
"abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing - Without a positive act on part of accused to instigate or aid in committing suicide, conviction cannot be sustained - In order to convict a person under Section 306 of IPC, there has to be a clear mens rea to commit offence - It also requires an active act or direct act which leads deceased to commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide - Also, reiterated, if it appears to Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to society to which victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstances individual in a given society to commit 9 suicide, conscience of Court should not be satisfied for basing a finding that accused charged of abetting suicide should be found guilty- Herein, deceased was undoubtedly hypersensitive to ordinary petulance, discord circumstances of case, none of the ingredients of offence under Section 306 made out- ence, appellant's conviction, held unsustainable".
(15) The Hon'ble Apex Court in the matter of Praveen Pradhan Vs. State of Uttaranchal reported in (2012) 9 SCC 734 has also held as under:-
"17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh((1991) 3 SCC
1), Surender v. State of Haryana((2006) 12 SCC 375, Kishori Lal v. State of M.P.( (2007) 10 SCC 797) and Sonti Rama Krishna v. Sonti Shanti Sree ((2009) 1 SCC 554) (16) In the matter of Amalendu Pal @ Jhantu vs. State of West Bengal (2010) 1 SCC 707, Hon'ble Supreme Court has held as under:-
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence 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 the 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.
13. In order to bring a case within the purview of Section 306 IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the 10 commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.
14. The expression 'abetment' has been defined under Section 107 IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107 IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent State, however, clearly stated before us that it would be a case where clause 'thirdly' of Section 107 IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC.
15. In view of the aforesaid situation and position, we have examined the provision of clause thirdly which provides that a person would be held to have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further gives an idea as to who would be intentionally aiding by any act of doing of that thing when in Explanation 2 it is provided as follows:
"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 facilitates the commission thereof, is said to aid the doing of that act."
16. Therefore, the issue that arises for our consideration is whether any of the aforesaid clauses namely firstly along with explanation 1 or more particularly thirdly with Explanation 2 to Section 107 is attracted in the facts and circumstances of the present case so as to bring the present case within the purview of Section 306 IPC."
11(17) The Supreme Court in the matter of Sanju @ Sanjay Singh Sengar Vs. State of M.P. (2002) 5 SCC 371 has held as under :
"6. Section 107 IPC defines abetment to mean that a person abets the doing of a thing if he 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." Further, in para 12 of the judgment, it is held as under:
"The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation."
(18) From bare reading of ingredients of Section 107 of IPC as well as law laid down by the Hon'ble Apex Court in above-mentioned cases, it is clear that a person who instigates another to do a thing, abets him/her to do that thing. A person is said to instigate another when he goads, provokes, incites, urges forward or encourage another to commit a crime. A serious question that has arisen in the present matter is whether there is any material suggesting that the present appellant had incited her wife to commit suicide or not?
(19) It is not in dispute that the present appellant is the husband of deceased whose marriage was solemnized with deceased four years back and on 09-04-2003 the deceased committed suicide by hanging herself. The prosecution case is based on solely evidence of Smt. Sheela (PW4), the mother of the deceased. If all evidence narrated by Smt. Sheela, the mother of deceased for the first time before the Court appears to be true, then she ought to have stated the same facts in her statement Ex.D2. Besides this, although she has stated that appellant had committed marpeet with deceased 12 in her presence but after her death, when the dead body Panchnama was prepared in the presence of father of deceased Ramesh Singh, in the said Panchnama there is no mention regarding the mark of injuries on the body of deceased. Further, during performing postmortem of deceased, not a single injury has been found by the doctor on the body of deceased. If the mother of deceased Smt. Sheela (PW4) was the witness of incident, she ought to have complained to her husband Ramesh Singh (father of deceased) and her brother-in-law Rajendra Singh, when they promptly reached the spot before whom a dead body Panchnama was prepared. They ought to have narrated the incident in the said Panchnama. Even they kept silent in their statements and only stated that deceased committed suicide by hanging herself. Besides this, except omnibus allegation there is no other evidence available on record to show that essential ingredients of Section 107 of IPC can be attracted. Therefore, it cannot be said that present appellant had instigated, provoked, incited, urged or encouraged his wife to commit suicide. There is no direct act of the appellant which had left the deceased with no other option except to commit suicide. Without any positive act of the appellant to instigate or aid in committing suicide, his conviction cannot be sustained in the eyes of law.
(20) Considering the above facts and circumstances of the case as well as material available on record, this Court is of the considered opinion that the prosecution has utterly failed to establish the guilt of appellant beyond reasonable doubt for holding him guilty for offence under Section 306 of IPC. Accordingly, he is acquitted of charge under Section 306 of IPC. The impugned judgment of conviction and sentence dated 23-01-2004 passed by Seventh Additional Sessions Judge, Gwalior in Sessions Trial No.228 of 2003 is hereby set aside. Since appellant is on bail, therefore, his bail bond 13 and surety bond are hereby discharged.
(21) In the result, the appeal succeeds and is allowed accordingly.
Let a copy of this judgment along with record be sent to the concerned trial Court for information and compliance.
(DEEPAK KUMAR AGARWAL) JUDGE MKB MAHENDRA BARIK 2023.03.17 17:50:48 +05'30'