Chattisgarh High Court
Chetan And Ors vs The State Of M.P on 27 September, 2022
-1-
AFR
HIGH COURT of CHHATTISGARH, BILASPUR
Judgment Reserved on 18.08.2022
Judgment Delivered on 27.09.2022
CRA No. 2004 of 2000
1. Chetan, Son of Samaru Ram, aged 23 years,
2. Khileshwar Kumar, son of Samaru Ram, aged 19 years,
3. Prabatbai, wife of Samaru Ram, aged 45 years (since dead)
All residents of village- Ramtara, Police Station- Gurur, District-Durg
(MP) (now CG)
---- Appellants
Versus
The State Of M.P. through Police Station, Gurur, District-Durg (MP) (now
CG)
---- Respondent
For Appellant : Mr. Pragalbha Sharma, Advocate For State/Respondent : Ms. Akshra Amit, Panel Lawyer S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Judgment
1. This appeal is heard with respect to appellants No.1- Chetan and appellant No.2- Khileshwar Kumar as appeal filed by appellant No.3- Parbatbai has been ordered to have abated vide order dated 28.07.2021.
2. The appellants have questioned the legality and sustainability of the impugned judgment of conviction and order of sentence dated 2nd August 2000 passed in S.T. No.35 of 2000 passed by learned Additional Sessions Judge, Balod, District-Durg (CG) whereby learned -2- Sessions Judge convicted appellant No.1 under Section 306 IPC and sentenced him to undergo RI for 7 years and appellant No.2 under Section 306 read with Section 34 of IPC and sentenced to undergo RI for 7 years.
3. Facts relevant for disposal of this appeal are that Meena Bai, daughter of Kriparam (PW2) married with appellant No.1 Chetan Kumar in the month of May 1998. Meena Bai committed suicide on 21.09.1999 by hanging in her matrimonial home. Morgue was reported to the concerned police station on same day. Dead body of the deceased was sent for postmortem and death is reported to be suicidal in nature. Kripa Ram, father of the deceased lodged written report on 27.09.1999 (Ex.P-
3) before the concerned police station making allegation that after marriage, his daughter was being ill-treated, assaulted by appellant No.1 (husband of deceased) because of, he having extramarital relationship. Based on the written report, First Information Report (Ex.P11) was registered on 28.09.1999 against three persons i.e. appellants No.1 & 2 and deceased Parbatbai. After completion of investigation, police submitted charge sheet for offence defined under Section 306 and 34 of IPC against all three i.e. husband (appellant No.1), brother-in-law (appellant No.2) and mother-in-law. Learned trial Court framed charges under Section 306 of IPC and in alternate, Section 306 read with Section 34 of IPC. Accused persons denied the charges levelled against them. During course of trial, prosecution exhibited 13 documents that are summon to panch witnesses (Ex.P-1), naksa panchnama (Ex.P-2), written complaint (Ex.P-3), photograph of Kekti bai (Ex.P-4), seizure memo (Ex.P-5), dead body supurdnama -3- (Ex.P-6), spot map (Ex.P-7), postmortem request memo (Ex.P-8), duty certificate of constable (Ex.P-9), morgue intimation (Ex.P-10), FIR (Ex.P.11), postmortem report (Ex.P-12) and crime details form (Ex.P-13) and examined as many as 10 witnesses namely Shyamlal (PW1), Kriparam (PW2), Mukut Ram (PW3), Sukhlal (PW4), Jalam Singh (PW5), S.L. Gedam (PW6), Shakun Bai (PW7), S.K. Dwivedi (PW8), Dr. B.R. Kosariya (PW9) and S.K. Bisen (PW10) to prove the charges levelled against the accused persons. Learned trial Court recorded statements of the accused persons under Section 313 of Cr.P.C. After conclusion of trial, learned Court below recorded finding that prosecution proved assault by appellant No.1- Chetan (husband) and she had intimated her father about extramarital relationship of her husband with one Kekti Bai, two other accused persons, brother-in-law and mother-in-law used to favour appellant No.1 -Chetan and convicted appellant No.1-husband for offence under Section 306 IPC, appellant No.2-brother-in-law for offence under Section 306 read with Section 34 of IPC and Parbat Bai, mother-in-law, for offence under Section 306 read with Section 34 of IPC and sentenced them as mentioned in paragraph -2 of this judgment.
4. Shri Pragalbha Sharma, learned counsel for the appellants would submit that there is delay in lodging FIR. Though the material available in the record would show that immediately after the incident, Kripa Ram (PW2), father of deceased, reached to the place of incident i.e. matrimonial home of deceased but had not levelled any allegation immediately. Written report is filed after six days of the incident, which is an afterthought. He also contended that except Kripa Ram (PW2), father -4- of the deceased, none of the other witnesses had stated about any cruelty committed upon the deceased by the appellants. Allegation of extramarital relationship is not proved by cogent and reliable piece of evidence. He submits that appellants have not quarreled or assaulted the deceased as alleged, but even if there was some quarrel of appellant No.1 with the deceased, it was only because, the deceased suspects upon the character of appellant as appearing in evidence of Mukut Ram (PW3) and Shakun Bai (PW7) i.e. uncle-grandfather and sister of the deceased. It is further contended that even if there is allegation of some extramarital relationship of appellant No.1, then also, it will not amount to abetment. In support of his contention, he placed reliance upon judgment passed by coordinate Bench of this Court in Criminal Appeal No. 2561 of 1998 dated 22.08.2017 and judgment of Hon'ble Supreme Court in the case of Pinakin Mahipatray Rawal Vs. State of Gujarat (2013) 10 SCC 48. He also submits that learned trial Court only considered that the death of wife of appellant No.1 is unnatural, within seven years of the marriage and, therefore, there is presumption under Section 113-A of the Indian Evidence Act of appellants committing the offence. It is contended that for drawing presumption against the appellants, to have committed the offence as alleged against them, it is burden upon the prosecution to prove that the appellants have committed cruelty as defined under Section 498 of IPC, which, in the facts of the case, is not proved.
5. Ms. Akshara Amit, learned counsel for the State opposing the submission of learned counsel for the appellants would submit that the prosecution examined Kriparam (father of deceased) as PW2 who -5- specifically stated that when the deceased came back to her parents house on Teeja festival, she stated about marpeet committed by appellant No.1 (husband). He stated that when his daughter came to his house on last occasion, she showed photograph of the lady with whom, appellant No.1 was having extramarital relationship as stated by witness. Mukut Ram (PW3) uncle-grandfather of deceased also stated that deceased told him about quarrel by her in-laws. Shakun Bai (PW7) (sister of deceased) levelled allegation of having extramarital relation of appellant- Chetan with some other woman. She contended that the death of deceased was within seven years of marriage. Hence, learned trial Court taking into consideration, evidence available on record has rightly passed the judgment of conviction against appellants, which does not call of any interference.
6. I have heard learned counsel for the parties and also perused the records of the trial Court.
7. Marriage of the deceased with appellant No.1 was solemnized in the month of May 1998 and late Meena Bai wife of appellant No.1 committed suicide by hanging on 21.09.1999. In postmortem report (Ex.P-12), doctor opined that the death is suicidal in nature and cause of death is asphyxia due to hanging. Written complaint submitted by father of deceased Kriparam is available on record as Ex.P-3, wherein, he made allegation that appellant No.1 was having extramarital relationship with one Kekti Bai, resident of village Bagtarai, prior to his marriage and for this reason, Chetan used to harass and assault the deceased Meena Bai. The allegation against the other accused i.e. brother-in-law and mother-in-law is that they favoured appellant No.1. -6-
8. To prove the allegations levelled in the written complaint (Ex.P-3) and FIR (Ex.P-11), prosecution examined Kripa Ram, father of deceased as PW2. In para-9 of his evidence, he stated that after marriage when the deceased, for the first time came to celebrate Teeja festival, she intimated that appellant used to assault her. He did not report this fact at any place. Deceased has also not made complaint anywhere. This witness further stated that the other lady Kekti Bai is a married lady and further that she was married prior to marriage of Meena Bai. The other witness Shakun Bai (PW7) sister of deceased, in para-4 of her evidence, stated that her sister, deceased Meena suspects upon Chetan (appellant No.1) that he is having extramarital relationship with other woman. She further stated that she is not aware as to where the another woman resides, with whom her sister suspects of appellant having extramarital relationship. Mukut Ram (PW3) uncle-grandfather of deceased also stated that Kekti Bai is relative of appellant Chetan and deceased Meena Bai suspects upon her husband Chetan of extramarital relationship with Kekti Bai. He further stated that marriage of Kekti bai was much prior to marriage of Meena Bai and after marriage Kekti is residing in Jagdalpur district. This witness further admitted that Meena Bai informed that quarrel with in-laws was on account of the photograph of Kekti. Except the aforementioned evidence of Kriparam (PW2), Mukut Ram (PW3) and Shakun Bai (PW7), there is no evidence to prove that appellant No.1, husband of deceased, was having extramarital relationship with Kekti Bai as alleged against him but it only shows that there was suspicion in the mind of deceased of her husband having any extramarital relationship. Suspicion cannot take place of proof of allegation. Hence, in the opinion of this Court, prosecution failed -7- to prove the allegation of extramarital relationship of the appellant No.1 with any other woman.
9. So far as the allegation of assault by appellant No.1 is concerned, Kriparam (PW2) father of deceased has only stated that the deceased informed him of assault upon her by her husband. Witness further stated that ill-treatment or treating the deceased with cruelty by her in-laws was not reported anywhere. Mukut Ram (PW3) uncle-grandfather of deceased has only stated that deceased intimated that, her in-laws used to quarrel with her. He did not make any specific statement before the Court with regard to allegation of assault/ marpeet by appellant No.1. Shakun Bai (PW7), sister of deceased in her examination-in-chief only stated that when she met with deceased during Teeja festival, she narrated that her husband does not talk with her and further stated that deceased informed of extramarital relationship of her husband with other woman. She also stated in para-4 of her evidence that her sister suspects upon her husband of extramarital relationship with other woman. She has not stated anything about marpeet.
10. Mother of the deceased was not examined as witness nor any of the neighbour of matrimonial house of the deceased was examined as witness. In the aforementioned evidence brought on record by prosecution, of father, uncle-grandfather and sister of deceased are not sufficient to prove the allegation of assault and treating the deceased with cruelty.
11. Appellants have been charged and convicted under Section 306 read with Section 34 of IPC. Section 306 of IPC deals with abetment of -8- suicide, which 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."
12.Abetment is defined under Section 107 of IPC which 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 takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly -- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.--A person who, by 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.-9-
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, willfully 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."
13. To convict any person under Section 306 of IPC, there should be abetment to do a thing is precondition. From the evidence as discussed above and available on record, in the opinion of this Court, prosecution failed to prove that there was any instigation, conspiracy of the appellants, to do the act, which the deceased committed or any evidence of intentionally aided, by any act or illegal omission, the doing of that thing.
14. In the case of Kishori Vs. State of M.P. (2007) 10 SCC 797, Hon'ble Supreme Court has held thus:
" 6. Section 107, IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the -10- doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. "Abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence."
15.In the case of Randheer Singh and Anr. Vs. State of Punjab (2004) 13 SCC 129, Hon'ble Supreme Court has held that the abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also, it would involve that mental process of entering into conspiracy for the doing of that thing.
16. Hon'ble Supreme Court in the case of Gurucharan Singh Vs. State of Punjab (2020) 10 SCC 200, reiterated that mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 -11- of the IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. Hon'ble Supreme Court further considered the earlier judgment in the case of Amalendu Pal alias Jhantu vs. State of West Bengal (2010) 1 SCC 707 in para-17 as under:
"17. While dealing with a case of abetment of suicide in Amalendu Pal alias Jhantu vs. State of West Bengal, Dr. Justice M.K. Sharma writing for the Division Bench explained the parameters of Section 306 IPC in the following terms:
"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 of IPC there must be a -12- case of suicide and in the commission of the said offence, the person who is said to have abetted the 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."
In para-18 of the aforementioned judgment, Hon'ble Supreme Court considered its earlier decision in the case of Mangat Ram Vs. State of Haryana (2014) 12 SCC 595 , as under:
"18. In Mangat Ram Vs. State of Haryana, which again was a case of wife's unnatural death, speaking for the Division Bench, Justice K.S.P. Radhakrishnanan rightly observed as under:-
"24. We find it difficult to comprehend the reasoning of the High Court that "no prudent man is to commit suicide unless abetted to do so". A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning."
17.Hon'ble Supreme Court in the case of Pinakin Mahipatray Rawal (supra) while considering the issue of suicide on account of extramarital relationship, held thus:
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"30. We are, therefore, of the considered view that the relationship A-1 had with A-2 was not of such a nature which under normal circumstances would drive one to commit suicide or that A-1 by his conduct or otherwise ever abetted or intended to abet the wife to commit suicide. The courts below, in our view, have committed serious error in holding that it was due to the extra marital relationship A-1 had with A-2 that led the deceased to take the extreme step to commit suicide, and A-1 was instrumental for the said act.
31. In the circumstances, we are inclined to allow this appeal and set aside the order of conviction and sentence imposed on the appellant, and he is set at liberty. Ordered as above."
18. In the case of Mahendra Singh and Anr. Vs. State of MP 1995 Sup (3) SCC 731, Hon'ble Supreme Court considered the allegation of harassment, abuse and torture as also allegation by the deceased-wife of her husband having illicit relationship with the sister-in-law and allowed the appeal, set aside the conviction holding that neither of ingredients of abetment are attracted. In the case of Pinakin Mahipatray Rawal (supra) Hon'ble Supreme Court observed that prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. In the case of Ghusabhia Raisangbhai Chorasia and Ors. Vs. State of Gujarat (2015) 11 SCC 753, Hon'ble Supreme Court -14- observed that even if illicit relationship is proved, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty, Explanation (a) to Section 498-A of IPC which includes cruelty to drive the woman to commit suicide would not be attracted.
19. In K.V. Prakash Babu Vs. State of Karnataka 2016 (4) Crimes 184 (SC), Hon'ble Supreme Court held that extramarital relationship, per se, or as such would not come within the ambit of Section 498-A IPC. It would be an illegal or immoral act, but other ingredients are to be brought home so that it would constitute a criminal offence. To explicate, solely because the husband is involved in an extramarital relationship and there is some suspicion in the mind of wife, that cannot be regarded as mental cruelty which would attract mental cruelty for satisfying the ingredients of Section 306 IPC.
20. Hon'ble Supreme Court while considering the presumption under Section 113-A of IPC in case of K.V. Prakash Babu (supra) held thus:
"17. We are absolutely conscious about the presumption engrafted under Section 113-A of the Evidence Act. The said provision enables the Court to draw presumption in a particular fact situation when necessary ingredients in order to attract the provision are established. In this regard, we may reproduce a passage from Pinakin Mahipatray Rawal (supra):-
"Criminal law amendment and the rule of procedure was necessitated so as to meet the -15- social challenge of saving the married woman from being ill- treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-AIPC is on the prosecution."
We have reproduced the aforesaid passage only to highlight that the Court can take aid of the principles of the statutory presumption."
21. If in the light of the aforementioned judgments of Hon'ble Supreme Court, the facts of the case at hand is tested, it would show that it is only the father Kripa Ram (PW2) who has stated that deceased complained him of assault by appellant No.1-husband. Other witnesses have not made specific statement, of assault by appellant No.1 upon the deceased wife. Even Shakun Bai (PW7) sister of the deceased has not made any such statement who could be the best witnesses being sister to have informed about all big and small problem if any faced by the deceased in her matrimonial home. Kriparam (PW2), father stated that the deceased complained of the appellant No.1 husband having extra- marital relationship with one Kekti Bai and other two witnesses Mukut Ram (PW3) and Shakun Bai (PW7) stated that the deceased suspects upon the husband of having extramarital relationship. Mukut Ram (PW3) -16- in his evidence admitted that the woman with whom it is alleged that the appellant No.1 is having extramarital relationship, was married much prior of the marriage of the deceased and was residing at Jagdalpur district, which is far away from the place of resident of the appellant and deceased i.e. Village- Ramtala District- Durg. As observed above that suspicion cannot be a proof, the suspicion of the deceased upon her husband may be the cause of quarrel, which, in the opinion of this Court, would not fall within the ambit of cruelty in terms of Section 498-A of IPC.
22.For the aforementioned discussions, I am of the opinion that the allegation of extramarital relationship of appellant No.1 with another woman is not proved, in absence of any proof of incitement, provocation or inducement to deceased to commit suicide, the same would not amount to abetment as defined under Section 107 of IPC. Therefore, conviction of the appellants under section 306 of IPC is not sustainable.
23. Accordingly, the appeal is allowed. Impugned judgment of conviction and sentence is hereby set aside. Appellants are acquitted from the charges levelled against them. As the appellants are already on bail on account of suspension of sentence by order of this Court, the bail bond stands discharged.
Sd/--/--
(Parth Prateem Sahu) Judge Praveen