Madhya Pradesh High Court
Chatra Chamar vs The State Of M.P. on 20 June, 2023
Author: Rajendra Kumar Verma
Bench: Rajendra Kumar Verma
1
CRIMINAL APPEAL No.2006 of 1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE RAJENDRA KUMAR (VERMA)
CRIMINAL APPEAL NO. 2006 OF 1998
BETWEEN :-
CHATRA CHAMAR SON OF
MULLA AHIRWAR, AGED ABOUT
30 YEARS VILLAGE ATTARA,
POLICE STATION RAJNAGAR,
DISTRICT CHHATARPUR (M.P.)
....APPELLANT
(BY MS. SUSHILA PALIWAL - ADVOCATE (AMICUS
CURIAE))
AND
STATE OF MADHYA PRADESH
THROUGH POLICE STATION
RAJNAGAR, DISTRICT
CHHATARPUR (M.P.)
....RESPONDENT
(BY SHRI ATMARAM BEN - DEPUTY GOVERNMENT ADVOCATE)
-------------------------------------------------------------------------------------------------------
Reserved on : 20/04/2023
Pronounced on : 20/06/2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Shri Justice Rajendra
Kumar (Verma) pronounced the following :
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 6/20/2023
5:29:06 PM
2
CRIMINAL APPEAL No.2006 of 1998
JUDGMENT
This Criminal Appeal under Section 374 (2) Cr.P.C. has been preferred by the appellant being aggrieved by the judgment of conviction and sentence dated 07.09.1998 in S.T. No.56/1998 passed by learned IVth Additional Sessions Judge Chhatarpur, District Chhatarpur whereby the learned ASJ has convicted the appellant for the offence punishable under Sections 498-A and 306 of Indian Penal Code (hereinafter referred as 'IPC') and sentenced him to undergo R.I. for three years with fine of Rs.100/- and four years with fine of Rs.100/- respectively. Default stipulation has also been imposed by the learned trial Judge.
2. According to prosecution case, on 09.01.1998 at about 05:00 in the evening, Rampyari Bai (deceased) was brought at Government Hospital in burnt condition. On the information of duty doctor Ajay Singh Parihar (PW-7), Police registered the marg intimation report. Thereafter, Naib Tehsildar K.K. Pathak (PW-9) recorded the dying declaration of Rampyari Bai wherein she levelled certain allegations against the appellant. On 21.01.1998, the deceased got succumbed due to burn injuries. The postmortem of deceased was performed by Dr. Neeraj Pathak (PW-5) and the postmortem report is marked as Ex.P/5. Thereafter, police registered the FIR and recorded the statements of several witnesses and came to the final investigation that the deceased was subjected to cruelty by the appellant/accused and he abetted her to commit suicide.
3. After completing the investigation, police filed the charge sheet. The appellant/accused abjured his guilt and claimed to be tried. In order Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 3 CRIMINAL APPEAL No.2006 of 1998 to substantiate the prosecution case, the prosecution has produced 13 prosecution witnesses whereas the defence has produced 02 defence witnesses. The trial Court also recorded the statement of appellant/accused under Section 313 of Cr.P.C. After considering the evidence adduced by the parties, the learned trial Judge, came to conclusion that the appellant found guilty for the offence as mentioned in para 1.
4. The learned counsel for the appellant submitted that the judgment passed by the learned trial Court is bad-in-law and contrary to facts and evidence of the case. The evidence led by the prosecution witnesses suffers from serious infirmity. The learned trial Judge failed to see that there is no ingredient to constitute the offence under Section 498-A and 306 of IPC. The learned trial Court has also not considered the fact that the deceased was not conscious while she was admitting in hospital and there was also contradictory opinion between two medical expert regarding burning percentage of deceased. Therefore, it is hard to believe that deceased made her dying declaration before Naib Tehsildar. She submitted that even if the dying declaration of deceased is taken into consideration, the same is not of that category to constitute the offence as alleged by the prosecution. She further submitted that the learned trial Court overlooked the evidence produced by the defence via examination of DW-1 Parmalal and DW-2 Ramadhar, who stated before the trial Court that the appellant and deceased were living peacefully. She further submitted that the learned trial Court also failed to appreciate the fact that prosecution witnesses namely Daruwa (PW-1), Asharam (PW-2), Kamlua Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 4 CRIMINAL APPEAL No.2006 of 1998 (PW-3) and Gudda (PW-4) have turned hostile who reached on the spot immediately after the incident. Indeed, the deceased was hyper sensitive lady and on account of minor tiff between the family members, she committed suicide being hyper. In support of her contention, she relied upon the judgment passed by Hon'ble Supreme Court in the case of Jagdishraj Khatta v. State of Himachal Pradesh reported in AIR 2019 SC 2872 as well as this High Court in the case of Sanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh reported in 2002 AIR SCW 2035.
5. On the other hand, learned counsel for the respondent-State opposed the submission made by appellant's counsel submitting that the prosecution succeeded to prove its case beyond any reasonable doubt. There is specific allegation against the appellant for cruelty. The prosecution witnesses has clearly stated that the appellant/accused used to beat the deceased. Prior to the incident, the deceased also lodged the complaint against the appellant/accused. Soon before the incident, the appellant had beaten the deceased and instigated her to commit suicide. The deceased had also given her dying declaration wherein she clearly stated that she was tortured by appellant/accused. He submitted that the dying declaration is concrete piece of evidence and solely on that basis, appellant can be convicted. Learned trial Judge has rightly convicted the appellant/accused. No interference is required. He prays for dismissal of the instant appeal.
6. Heard and perused the record.
Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 5CRIMINAL APPEAL No.2006 of 1998
7. Before going into merits of the case, it would be appropriate to consider the legal aspect first regarding applicability of Section 498-A and 306 of IPC. The said provisions are quoted herein under:-
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.-- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty"
means--(a)any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
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."
8. Further, the abetment has been defined in Section 107 of IPC which is also quoted herein 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 takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 6 CRIMINAL APPEAL No.2006 of 1998 (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."
9. Now the question arises, under what circumstances, these sections would be applicable and said question has been answered by Hon'ble Apex Court by passing various pronouncements. The ingredients of Section 306 IPC have been extensively laid out by Hon'ble Apex Court in the case of M. Arjunan v. State, represented by its Inspector of Police reported in (2019) 3 SCC 315 which are as under :--
"The essential ingredients of the offence under Section 306 I.P.C. are : (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C."
10. Further, in the case of Mariano Anto Bruno and Another vs Inspector of Police, reported in 2022 SCC OnLine SC 1387, the Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 7 CRIMINAL APPEAL No.2006 of 1998 Hon'ble Apex Court reiterated the judgment passed in the case of Ude Singh v. State of Haryana [ (2019) 17 SCC 301 and held as under :
"30. In order to convict an accused under Section 306 IPC, the state of mind to commit a particular crime must be visible with regard to determining the culpability. With regard to the same, a two-judge bench of this Court in Ude Singh v. State of Haryana observed as under :--
"16. In cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behavior and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case.
16.1. For the purpose of finding out if a person has abetted commission of suicide by another; the consideration would be if the accused is guilty of the act of instigation of the act of suicide. As explained and reiterated by this Court in the decisions above-referred, instigation means to goad, urge forward, provoke, incite or encourage to do an act. If the persons who committed suicide had been hypersensitive and the action of accused is otherwise not ordinarily expected to induce a similarly circumstanced person to commit suicide, it may not be safe to hold the accused guilty of abetment of suicide. But, on the other hand, if the accused by his acts and by his continuous course of Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 8 CRIMINAL APPEAL No.2006 of 1998 conduct creates a situation which leads the deceased perceiving no other option except to commit suicide, the case may fall within the four-corners of Section 306 IPC. If the accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim to commit suicide, the accused may be held guilty of abetment of suicide. The question of mens rea on the part of the accused in such cases would be examined with reference to the actual acts and deeds of the accused and if the acts and deeds are only of such nature where the accused intended nothing more than harassment or snap show of anger, a particular case may fall short of the offence of abetment of suicide. However, if the accused kept on irritating or annoying the deceased by words or deeds until the deceased reacted or was provoked, a particular case may be that of abetment of suicide. Such being the matter of delicate analysis of human behaviour, each case is required to be examined on its own facts, while taking note of all the surrounding factors having bearing on the actions and psyche of the accused and the deceased."
11. On perusal of Section 107 and 306 of IPC as well as verdict pronounced by the Hon'ble Apex Court in the above referred cases, a person would be accountable for abetment to suicide when any of the following conditions are fulfilled :-
(i) He/She instigates any person to commit suicide.
(ii) He/She involves in a conspiracy to compel any person to commit suicide, and
(iii) He/She helps the victim deliberately with the intention that the victim would commit suicide by doing an act or not doing something that he was bound to do.Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 9
CRIMINAL APPEAL No.2006 of 1998
12. Further, it appears that cruelty is being meted out to the deceased in both the section but the gravity of cruelty to constitute the offence under section 306 IPC would be of higher than cruelty to constitute an offence under Section 498-A IPC. It has been also settled that the evidence led by the prosecution to support their case under Section 498-A of IPC should not be read to hold the same accused guilty under Section 306 of IPC. It depends upon the facts and circumstances of individual case.
13. Now, this court will examine the evidence to reach at conclusion.
14. On perusal of impugned judgment, it is undisputed that the deceased committed suicide by ablaze herself. The case of prosecution was that the deceased was subjected to cruelty by the appellant/accused since long due to which she committed suicide. The learned trial Judge convicted the appellant mainly on the ground of dying declaration of deceased and statement of Sukhiya Bai (PW-10)/mother of deceased. The appellant/accused took the defence that he did not commit any offence, dying declaration of deceased is doubtful, there were only minor tiff between them and he never intended to see the deceased dead.
15. As noted above, the appellant disputed the dying declaration of deceased saying that the deceased was not capable to give dying declaration. He also pointed out some ambiguity on the point of burning percentage. On perusal of record, it is seen that on 09.01.1998 K.K. Pathak (Naib Tahsildar)/PW-9 recorded the dying declaration of deceased which is marked as Exbit P-10. On perusal of said dying declaration, it is seen that before recording the dying declaration, Naib Tahsildar obtained the certificate from Dr. Ajay Singh Parihar (PW-7) regarding Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 10 CRIMINAL APPEAL No.2006 of 1998 consciousness of deceased for giving dying declaration. As Per Dr. Ajay Singh Parihar, deceased was capable to give her dying declaration and he gave certificate in this regard. The appellant also tried to dispute the dying declaration pointing out the dissension regarding burn percentage of deceased between two medical expert Dr. Neereaj Pathak (PW-5) who performed the postmortem of deceased and Dr. Ajay Singh Parihar (PW-
7) who performed medical examination of deceased while admitting her into hospital. As per PW-7, the deceased was burnt 96 percent whereas according to PW-5, she was burnt only 70 to 80 percent. The learned trial Judge also considered the said dissension in his judgment and discarded to disbelieve the dying declaration applying the theory of capability of burnt person to give statement even in 100 percent burnt case. In the case of Purshottam Chopra v. State (NCT of Delhi), (2020) 11 SCC 489, the Hon'ble Apex Court observed that merely for 100% burn injuries, it cannot be said that the victim was incapable to make a statement which could be acted upon as dying declaration and the fitness of the maker of the declaration and the admissibility and reliability of the dying declaration, have all to be determined in the facts and circumstances of each case, even one involving 100 percent burn injuries. Since, it clearly suggest from the record that before recording the dying declaration, Naib Tahsildar (PW-9) obtained the certificate from medical expert Dr. Ajay Singh Parihar (PW-7) regarding capability of deceased to give her statement and the deceased was found capable to do so and no other incriminating thing brought on record which compel the Court to create doubt upon dying declaration, therefore, merely on the ground of dissension in burn percentage, dying declaration can not be said to be Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 11 CRIMINAL APPEAL No.2006 of 1998 doubtful. Dr. Ajay Singh Parihar (PW-7) has been extensively cross- examined by the defence counsel and he found stable on the point of consciousness of deceased before recording the dying declaration. Therefore, the learned trial Court did not make any error in believing upon the dying declaration of deceased.
16. Now the question arises whether the contention made in the dying declaration and other evidence are of that category which is sufficient to convict the appellant/accused for the offence punishable under Section 306 and 498-A of IPC.
17. On perusal of dying declaration, it is seen that the deceased ablaze herself. She stated that appellant used to beat her, due to which she ablaze herself. The dying declaration made by the deceased clearly shows that she was subjected to cruelty by the appellant/accused and no doubt the suicide of deceased was result of maltreatment of appellant/accused. Further, on perusal of statement of mother of deceased Sukhiya Bai (PW-
10), it is found that appellant used to beat the deceased. She stated before the Court after the incident deceased told her that due to some quarrel between matrimonial family member and deceased, she ablaze herself. She also stated that on that day, the appellant/accused had beaten her and instigated her by saying "fxYyk dh yM+dh gks rks ej tkvks". In her cross examination, she stated that four years prior to incident, a police complaint was also filed against the appellant/accused regarding altercation with the deceased but, due to settlement took place between the parties, deceased went back to her matrimonial house. It is pertinent to mention herein that appellant/accused has not disputed the fact Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 12 CRIMINAL APPEAL No.2006 of 1998 regarding lodging of complaint by the deceased against him four years prior to incident. The deceased herself disclosed that in her dying declaration that she was used to beaten by appellant/accused. The dying declaration of deceased itself sufficient to ascertain that she was subjected to ill-treatment by the appellant/accused and this Court has no hesitation to say that the evidence led by the prosecution is sufficient to constitute the offence under Section 498-A of IPC . Therefore, this Court is of the opinion that the learned trial Court did not make any error in convicting the appellant under Section 498-A of IPC.
18. Now, this Court has to examine, whether evidence led by the prosecution is sufficient to constitute the offence under Section 306 of IPC ?
19. As discussed in above paras while considering the legal aspect regards applicability of Section 306 of IPC, there should be some evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C. Herein, it is found that the learned trial Court convicted the appellant/accused basing the statement of mother of deceased Sukhiya Bai (PW-10) coupled with the allegation made by the deceased in her dying declaration. The incident narrated by the mother of deceased was occurred four years back from the incident to which the deceased lodged the complaint against the appellant. In my opinion, such an incident which took place long before the death of the deceased cannot be treated as the conduct which led the deceased to commit suicide, there Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 13 CRIMINAL APPEAL No.2006 of 1998 much be existence of live and proximate link. Moreover, the mother of deceased herself disclosed the behavior of deceased towards her matrimonial family members which led the appellant/accused to beat her. As per mother of deceased, on the day of incident appellant/accused instigated the deceased to commit suicide saying "fxYyk dh yM+dh gks rks ej tkvks" is itself not sufficient to constitute the offence under Section 306 IPC. In the case of Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the Hon'ble Apex Court has held as under :-
"20. 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. The present one is not a case 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 been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
(emphasis supplied)
20. Therefore, on foregoing discussion it is found that the evidence led by the prosecution is not sufficient to constitute the offence under Section 306 of IPC against the appellant/accused. However, as stated above the offence under Section 498-A of IPC is clearly made out against the appellant/accused.
Signature Not Verified Signed by: KAFEEL AHMED ANSARI Signing time: 6/20/2023 5:29:06 PM 14CRIMINAL APPEAL No.2006 of 1998
21. Therefore, this appeal is partly allowed. Conviction under Section 306 of IPC is hereby set aside, however, conviction passed by the trial Court against the appellant/accused under Section 498-A of IPC is hereby upheld.
22. So far as sentence period is concerned, there is no minimum sentence is prescribed for the offence punishable under Section 498-A of IPC. The incident took place in the year 1998 and more than two decades have elapsed. The appellant has already suffered 08 months of incarceration out of 03 years conviction and it would be appropriate to reduce the jail sentence of the appellant under Section 498-A of the IPC to the period already undergone by enhancing the fine amount from Rs.100/- to Rs.10,000/-.
23. The appellant is directed to deposit the enhanced fine amount within a period of 60 days from today, failing which, he has to undergo the sentence awarded by the trial court.
24. The appellant is on bail, his bail bonds shall remain discharged subject to deposit of enhanced fine amount within stipulated period.
Copy of this judgment along with record of the learned trial court be sent to the learned trial court for information and compliance.
Certified copy, as per rules.
(RAJENDRA KUMAR (VERMA))
Kafeel JUDGE
Signature Not Verified
Signed by: KAFEEL AHMED
ANSARI
Signing time: 6/20/2023
5:29:06 PM