Madhya Pradesh High Court
Rajkumar @ Pappu vs The State Of Madhya Pradesh on 2 March, 2017
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No.501 of 2008
Rajkumar alias Pappu and another
Versus
State of Madhya Pradesh
Present : Hon. Shri Justice S.K.Gangele &
Hon. Shri Justice Anurag Shrivastava,J.J.
Shri Sharad Verma, counsel for the appellants.
Shri Prakash Gupta, Panel Lawyer, for the respondent/
State.
Whether approved for reporting: Yes/No.
JUDGEMENT
(02.03.2017) The appellants have filed this appeal against the judgment dated 18.2.2008 passed in Sessions Trial No.1/2005 by the Sessions Judge, Satna; whereby they have been convicted under section 302 of the IPC and sentenced to rigorous imprisonment for life with a fine of Rs.1,000/-, in default of payment of fine to undergo further rigorous imprisonment for six months.
2. The prosecution story in brief is that the deceased was living along with her children at Village Berhana, District Satna. Her husband was working at Pune (Maharashtra). To travel other side, deceased had to 2 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. pass through the house of Uma Shankar. Uma Shankar and his family members used to put their cattle on the way. On 25.10.2005 at around 6:00 O'Clock in the evening, when the deceased went to the side of Kolia, at that time the family members of the deceased abused her and Gudda told her not to use the passage. Thereafter, it is alleged that when the deceased was coming after milking cow, the accused persons poured kerosene on her and ablaze her. The FIR was registered by the police. Thereafter spot map was prepared. The Investigating Officer seized materials i.e. Plastic cane, red earth from the spot and match box. After investigation, the Investigating Agency filed the charge-sheet before the trial court.
3. On committal, the trial court framed charges against the appellants for commission of offence punishable under section 302 of the IPC. The appellants abjured their guilt. The trial court, after trial, found the charges proved against the appellants and awarded sentence of life.
4. Learned counsel for the appellants has contended that the findings of trial court that the prosecution proved the offence against the appellants 3 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. beyond reasonable doubt, are perverse. There is no evidence that the appellants had poured kerosene on the deceased and ablaze her. The evidence of Ramkrishna Pyasi (P.W.1) is not reliable because there are so many omissions and contradictions. The dying declaration of the deceased in the shape of FIR does not inspire confidence because the deceased was alive for three days when she was admitted in the hospital and the Investigating Agency had not taken any step to get the dying declaration recorded by an Executive Magistrate. It is further submitted by the counsel that the statements of other witnesses recorded by the Investigating Officer under section 161 of CrPC do not support the prosecution version. Hence, the appellants are liable for acquittal. In support of his contentions, the learned counsel relied upon the decisions rendered in the cases of M.Mohan Vs.State Represented by the Deputy Superintendent of Police, AIR 2011 SC 1238, K.Prema S.Rao and another Vs. Yadla Srinivasa Rao and others, AIR 2003 SC 11, State of Maharashtra Vs. Sanjay S/o Digambarrao Rajhans (2004) 13 SCC 314, Dhammu Choudhary Vs. The State of M.P., 2009 (4) MPHT 271(DB), Virendra Singh Vs. State of Madhya Pradesh, 2009(4) MPHT 333 and 4 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. Surinder Kumar Vs. State of Haryana, 2012 (1) MPLJ (Cri) 185).
5. Counsel for the State has submitted that the trial court has rightly appreciated the evidence of prosecution. The trial court has relied on the dying declaration of the deceased, it is natural and the statements of the son of deceased and other witnesses. Hence, the judgment of the trial court is in accordance with law.
6. Ramkrishna Pyasi (P.W.1), who is the son of the deceased, deposed that her mother was died one year before. At around 11:00 am, her mother was going to Kolia and a Hero-Honda motorbike was parked on the way. Mother requested to park the vehicle at the other place, on that Raj Kumar abused her in filthy language. Uma Shankar and Raj Kumar abused my mother whole day. On 29.10.2004 when the cattle came after grazing, my mother went to tie up the cattle. When she was coming from Kolia, Uma Shankar, Raj Kumar, Vijay and Sajju were standing on the way. Uma Shankar and Raj Kumar had taken my mother to Usari. Mother of Raj Kumar had kept kerosene oil at the Usari. At that time, Raj Kumar and Uma Shankar poured kerosene on her. My mother cried and I called my grand-father Kamta Prasad. Raj Kumar ablaze my mother. 5 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. Thereafter, police came there and Panchanama, Ex.P.1, was prepared and I signed the same. Map of the incident was prepared as Ex.P.3 and I signed the same. Plastic container containing kerosene oil was seized vide seizure memo, Ex.P.4. In his cross-examination he admitted the fact that it has not been written in his statement given before the police, Ex.D.1 that the accused persons abused my mother and they were abusing my mother whole day. He further admitted the fact that this fact has also not been mentioned in 161 CrPC statement that accused Uma Shankar and Raj Kumar had taken my mother to Usari and I had called Kamta Prasad by crying. He further deposed that he had told these facts to the police, but the same have not been mentioned in the police statement.
7. In Para 9 of cross-examination, this witness admitted the fact that one of the co-accused Raj Kumar tried to extinguish the fire. He had taken out a mattress from his house and tried to extinguish the fire. He admitted the fact of his signature on Ex.P.3, which is a map. He further denied the fact that oil container was seized from other place, as mentioned in the spot map, Ex.P.3.
8. Kamta Prasad (P.W.2) deposed that his nephew told him that five persons had set the deceased on fire and 6 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. when he reached the spot, deceased was lying infront of door of Raj Kumar. Her condition was serious. He inquired from the deceased that what had happened. She told him that she was burnt. Thereafter, the police reached at the place and the deceased was taken to the hospital at Satna. He admitted the fact that he had signed the dying declaration, Ex.P.5 and in the aforesaid dying declaration, deceased stated that Raj Kumar, Gudda and Sajju ablaze her. He denied his signature on Ex.P.3 and seizure memo, Ex.P.4.
9. Yaduvansh Prasad Pyasi (P.W.3) deposed that he had signed Panchanama of dead body, Ex.P.1 and also the information, Ex.P.2. The evidence of husband of deceased Devraj Pyasi (P.W.5) is not very much relevant because he had subsequently came to Satna.
10. Subhash Chandra Gautam (P.W.6) deposed that he came to know at around 7:30 in the evening on 29.10.2004 that deceased set herself on fire. I went to see her. She was lying on a cot. I inquired from her about the incident. She told me that Gudda and his brother ablaze her and when he came out, number of persons including Ramchere Gautam, Mahabali Gautam, Madhusudan Prasad Gautam and Sagar, son of Kedar Prasad were 7 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. present. They told me that deceased set herself on fire and falsely implicated Gudda and his brother. Kodulal Gautam (P.W.7) deposed that he had gone with the deceased to Satna Hospital where she was admitted for treatment.
11. Dr.P.D.Agrawal (P.W.9) is the doctor, who performed postmortem of the deceased. He deposed that on examination, he found burn injuries on the whole body of the deceased and due to these burn injuries and septicemia, the death was caused. Injuries which I noticed on the person of the body of deceased could be caused due to burn by kerosene oil.
12. Visheshar Singh (P.W.10) is the Investigating Officer. He deposed that on 29.10.2004 he was posted at Police Station Sabhapur as Assistant Sub-Inspector of Police. He received information as per Rojnamcha Sanha No.837 that the deceased received burn injuries. When I reached on the spot I noticed that deceased was lying on a cot and she had burn injuries. I lodged the report under section 307/34 of the IPC vide Ex.P.8 and also got thumb impression of the deceased. He further deposed that I recorded the statement of the deceased, Ex.P.5, and also taken the signature of the witnesses and thumb impression of the deceased. I also recorded the statement of Ram 8 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. Krishna, which is Ex.D.1 and statements of other witnesses Krishna Kumari, Balkrishna, Ramchere, Mahabali, Ganga Prasad, Kedar Prasad, Madhsudan, Subhash Chandra and Devraj Pyasi, which is Ex.D.2. Spot map, Ex.P.3, was prepared and it was signed by me and other witnesses. I also seized from the place of incident plastic gallon, match box vide seizure memo, Ex.P.4, and I had taken the same for examination. The deceased was sent for medical treatment vide Ex.P.9 to District Hospital, Satna. The offence under section 307/34 of IPC was registered against Gudda, Raj Kumar and wife of Uma Shankar vide Crime No.140/2004. The deceased was died during treatment. Thereafter dead-body was sent for postmortem. The accused persons Raj Kumar, and Gudda were arrested on 30.10.2004 vide arrest memo, Ex.P.11 and Ex.P.12. Co- accused Pushpa on 18.3.2005 vide arrest memo Ex.P.13.
13. In his cross-examination, he admitted the fact that when an information was received about the deceased at the police station, Mr.Diwakar Pandey recorded the information in police Rojnamcha because he was not present at that time. The information was registered in Rojnamcha Sanha. He admitted in Para 11 of his cross- examination that after reaching on the spot, he recorded 9 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. the statement of Krishna Kumari daughter of the deceased, she told him that mother came back after milking the cow and she had a container of kerosene oil with her and again went to the side of Kolia. Thereafter, on hearing the hue and cry, I and my brother reached on the spot and I noticed my mother crying. The container of kerosene oil was seized, there was a smell of kerosene oil and the container was the same, which was with the mother at the time of incident. In Ex.P.3 the place has been mentioned from where the container of kerosene oil was seized and Ram Krishna and Kamta signed Ex.P.3. He further admitted in his cross-examination that he had recorded the statements of Ganga Prasad and Kedar Prasad. Both had stated that deceased herself ablaze her due to humiliation, she was under tension. They also stated that the statement of the deceased that Gudda, his mother and his brother ablaze her, is not correct. Their statements have been produced along with the charge-sheet.
14. Diwakar Prasad in his evidence deposed that on 29.10.2004 he was posted as Head Constable at Police Station, Sabhapur. On 20:50 Uma Shankar Shukla, Chhedilal Prajapati, Subhash Chandra Gautam came to the police station and informed orally that wife of Devraj 10 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. Pyasi, aged 45 years, resident of Village, Barhara received burn injuries. I recorded the information in Rojnamcha Sanha No.637 on 29.10.2004. The certified copy is Ex.P.15, on which I had put my signature.
15. Dr. Alok Khanna (P.W.13) deposed that on 30.10.2014 I had been posted at District Hospital, Satna. At that time, I had examined the deceased. She told me that she had received burn injuries. I found burn injuries on the person of the full body of the deceased. She was admitted in the female surgical ward. I neither recorded any statement of the deceased nor the fact about the condition of the deceased.
16. Appellants have also produced Ramchere Gautam (D.W.1), Dadan alias Shiv Kumar (D.W.2), Uma Shankar Shukla (D.W.3) and R.K.Choudhary (D.W.4) in their support as defence witnesses.
17. First of all we would like to consider the dying declaration of the deceased. Dehati Nalsi Ex. P/8 was recorded. There is thumb impression of the deceased. It is mentioned in the aforesaid statement which was recorded on 29/10/2004. The deceased stated that on 29/10/2004 she had gone to Kolia side to tie up the cattle, at that time Gudda, Uma Shankar, Raj Kumar, Vijay and Sajju were 11 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. standing on the way, they were abusing me and Gudda told me not to come on this side again. When I returned back after milking cow and gone to provide fodder to cow at around 7 O'clock, Gudda and his elder brother came behind me and elder brother of Gudda poured kerosene on me and Gudda lit the fire by match stick and I received burn injuries. I ran away from the spot and fell down in front of the house of Umashankar. This dying declaration was recorded by ASI PW/10 on 29/10/2004. He also deposed the same facts. The deceased was died on 02/11/2004 after three days of the incident. She was admitted in the hospital. There is no explanation that why the investigating officer or prosecution had not taken any step to record dying declaration of the deceased by the Executive Magistrate when she was admitted in the hospital. There is also no evidence that the deceased was unconscious for all the time but her dying declaration was not recorded by the Executive Magistrate. The Apex Court in Surinder Kumar Vs. State of Haryana reported in [2012 (1) M.P.L.J. (Cri.) 185] has held as under in regard to evidentiary value of dying declaration after considering various judgments on the point.
12Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. "6) Before considering the acceptability of dying declaration (Ex.PD), it would be useful to refer the legal position.
(i) In Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165, this Court held as under:
"10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying 13 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. declaration, which c ould be summed up as under as indicated in Pa niben v. S tate of Gujarat (1992) 2 SCC 474 (SCC pp.480 -8 1, para 18) (Emphasis supplied)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P.,(1976) 3 SCC 104)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 and Ramawati Devi v. State of Bihar, (1983) 1 SCC 211)
(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor,(1976) 3 SCC 618)
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P., (1974) 4 SCC 264 )
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P., 1981 Supp SCC
25)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(See Ram Manorath v. State of U.P.,(1981) 2 SCC 654)
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu,1980 Supp SCC
455)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself 14 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. guarantees truth. (See Surajdeo Ojha v. State of Bihar,1980 Supp SCC 769.)
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P.,1988 Supp SCC 152)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan, (1989) 3 SCC
390)
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra,(1982) 1 SCC 700)"
(ii) In Puran Chand vs. State of Haryana, (2010) 6 SCC 566, this Court once again reiterated the abovementioned principles.
(iii) In Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190, a Bench of three Judges of this Court reiterating various principles mentioned above held that it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of the conviction unless it is corroborated and the rule requiring corroboration is merely a rule of prudence.
7) In the light of the above principles, the acceptability of the alleged dying declaration in the instant case has to be considered. If, after careful scrutiny, the Court is satisfied that it is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make a basis of conviction, even if there is no corroboration. With 15 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. these principles, let us consider the statement of Kamlesh Rani and its acceptability."
18. The Apex Court has considered number of judgments in the aforesaid judgment, hence, it is not necessary to consider other judgments on this point. The principle of law laid down by the Apex Court is that the dying declaration has to be carefully scrutinized and it has to be ensured that the deceased has given statement without any influence and it was consistent. In such circumstances, the dying declaration may be accepted.
19. Another evidence of PW/1 who is son of the deceased. He deposed that her mother was going to Kolia side and at that time Uma Shankar and Raj Kumar and Sajju were standing at a gali. Uma Shankar and Raj Kumar had taken my mother to Usari. Mother of Raj Kumar had kept kerosene oil at the Usari. At that time, Raj Kumar and Uma Shankar poured kerosene on her. My mother cried and I called my grand-father Kamta Prasad. Raj Kumar ablaze my mother. Thereafter, police came there and Panchanama, Ex.P.1, was prepared and I signed the same. Map of the incident was also prepared as Ex.P.3 and I signed the same. Plastic container containing kerosene oil was seized vide seizure memo, Ex.P.4. In his cross- examination he admitted the fact that it has not been 16 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. written in his statement given before the police, Ex.D.1 that the accused persons abused my mother and they were abusing my mother. He further admitted the fact that this fact has also not been mentioned in 161 CrPC statement that accused Uma Shankar and Raj Kumar had taken my mother to Usari and I had called Kamta Prasad by crying. He further admitted the fact that he had told these facts to the police, but the same have not been mentioned in the police statement. PW/10 is the investigating officer. He in his evidence admitted the fact that he had recorded the statement of Krishna kumari daughter of the deceased and she told me that when my mother came back after milking cow, she had kerosene oil container with her and she went to Kolia side. Thereafter, I heard hue and cry, I reached at the spot along with my brother and found that my mother was crying. Upto this extent the evidence of daughter could be accepted. This evidence established the fact that the deceased had kerosene oil with her and she went to Kolia side.
20. Other witness PW/2 deposed that he had seen that the deceased was lying at the door of Rajkumar and she was crying. Another witness PW/6 deposed that he had inquired from other persons namely Ramvere Gautam, 17 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. Mahavali Gautam, Madhusudan Gautam and son of Kedar Prasad who told me that the deceased herself set her on ablaze.
21. PW/12 Diwakar Prasad deposed that he had recorded information in Rojnamcha that the deceased received burn injuries and at that time Uma Shankar, Chhedilal Prajapati, Subhash Chandra Gautam were present.
22. The appellants in their statements deposed that the deceased abused their family members and she had threatened that she would send all the family members to jail and the deceased herself ablaze her in front of our door and we had informed the police and thereafter, other persons came on the spot. The son of the deceased himself admitted in his cross-examination that appellant Rajkumar tried to extinguish the fire. He had taken-out a pillow from his house. There is inconsistency between the dying declaration of the deceased recorded in the shape of dehati nalsi and the statement of PW/1 who is said to be eye witness. The deceased in her dying declaration stated that the appellant Gudda and his elder brother came and elder brother poured kerosene on her and Gudda set her on fire by match stick. PW/1 deposed that Umashankar 18 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. and Rajkumar caught hold my mother and they had taken her to Usari and there was kerosene oil already kept by the mother of Rajkumar and thereafter, Rajkumar and Umashankar poured kerosene on her. This is the material contradiction. As per the spot map and the statement of PW/10 I.O. the container was recovered from the place in front of the house of Rajkumar.
23. In view of the aforesaid statements, in our opinion, dying declaration of the deceased does not inspire confidence. The statement of PW/1 is also contradictory. Daughter of the deceased deposed that she and her brother PW/1 reached on the spot. Apart from this her mother was carrying container of oil. Other witnesses also deposed the same fact. From the evidence of prosecution, it is established that the deceased herself ablaze her and PW/1 reached on the spot along with his sister. Hence, in our opinion, the conviction of the appellants for commission of offence punishable under Section 302/34 of IPC is liable to be set-aside.
24. From the evidence of the prosecution and other witnesses, it has been established that the appellants abused the deceased and they had threatened her not to come on the side.
19Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P.
25. The deceased was deeply heart by the abuses. The Apex Court in K. Prema S. Rao and another Vs. Yadla Srinivasa Rao and other reported in AIR 2003 SC 11 has held as under in regard to instigation to commit suicide.
"25. As provided in Section 215 of Cr.P.C. commission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPCand a consequent failure of justice. The same facts found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death" under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498A, IPC. "
Further the Apex Court in M. Mohan Vs. State represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238 has held as under:-
"43. In State of West Bengal v. Orilal Jaiswal & Another (1994) 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances 20 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
44. This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (16) SCC 605, had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self- esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
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."
26. From the judgment of the Apex Court and principle of law laid down by the Apex Court, in our opinion, the appellants could be convicted for commission of offence punishable under Section 306 of IPC. The appellants are in jail for last 10 years, hence the sentence can be modified to maximum sentence 10 years prescribed 21 Cr.A.No.501/2008 Raj Kumar alias Pappu & another Vs. State of M.P. under Section 306 of IPC. The appellants have already undergone the jail sentence of 10 years.
27. Consequently, the appeal filed by the appellants is partly allowed. Their conviction under Section 302/34 is set-aside, however, the appellants are convicted for commission of offence punishable under Section 306 of IPC. The sentence awarded by the trial court is modified to already undergone by the appellants. They be released immediately if they are not required in any other case.
(S.K.GANGELE) (ANURAG SHRIVASTAVA)
JUDGE JUDGE
MISHRA