Madhya Pradesh High Court
Devi Singh Rattan Singh vs State Of Madhya Pradesh on 2 September, 1994
Equivalent citations: 1995(0)MPLJ757
JUDGMENT D.P.S. Chouhan, J.
1. Devi Singh, the appellant on having been convicted for offence under Section 306, Indian Penal Code by Shri Satish Chandra Dubey, Additional Sessions Judge, Harda in S. T. No. 153/90, approached this Court by means of the present appeal.
2. Nirmalabai was the wife of the appellant. They married 20 years hence the alleged occurrence. It appears that she committed suicide sometime in the night intervening 7th and 8th January, 1990 by consuming poison. She died while on way to hospital on 8-11990 and the F.I.R./Marg (Ex.P/1) was lodged by Ward Boy. Garibdas (P.W.I) at 8.35 A.M. at P.S. Timarni.
3. The prosecution case in brief was that deceased Nirmalabai, the wife of the appellant, was married 20 years hence the alleged occurrence. During her life time about 15-16 years hence the date of alleged occurrence he married a second woman namely Kotubai. The appellant usedto beat and accuse Nirmalabai. On a night between 7th and 8th of January, 1990 Nirmalabai was given a beating, as a result of which she consumed poison which resulted in her death. The accused took Nirmalabai to Timarni Hospital where Dr. Sharad Kumar Gadre on 9-1-1990 sent a written information Ex.P/2 to the police Station Timarni and a case of sudden death was registered and the panchnama was prepared but no cause for death could be ascertained by the Police Officers or the panch witnesses, therefore, the body was sent for post mortem. In the post mortem it was detected that the death was on account of consuming some poison. It was also detected that in the night at about 11.00 A. M. Nirmalabai was shouting in her house for seeking help by saying ^^cpkvks & cpkvks**- On this basis the case was registered against the accused-appellant for an offence punishable under Section 306, Indian Penal Code and after investigation the charge-sheet was filed for offence punishable under Sections 306 and 498A of the Indian Penal Code.
4. The prosecution examined as many as 8 witnesses. Garibdas, the Ward boy of the Govt. Hospital, Timarni was examined as P.W.I who sent the information of the death of Nirmalabai to the police. Sushilabai, who is alleged to have heard the voice of Nirmalabai, was examined as P.W. 2. Bhagwat Singh, who accompanied the deceased to the Hospital in the bullock-cart was examined as P.W. 3 Jagdish, who heard the voice of Nirmalabai, was examined as P.W. 4. Karan Singh, who was alleged to have heard the voice of Nirmalabai seeking help, was examined as P.W. 5. Dr. Sharad Kumar Gadre, who conducted the post mortem of the deceased, was examined as P.W 6 Nawab Raza, the Investigating Officer, was examined as P.W. 7 and Ramsajivan Mishra, A.S.I. of Police, who conducted the inquest proceedings and the seizure proceedings, was examined as P.W. 8.
5. There was no dying declaration of the deceased. The cause of death as per the opinion of Dr. S. K Gadre (P.W. 6) was consumption of the poison.
6. In defence, the prosecution allegation was denied and the accused stated that he did not commit any cruelty, did not assault her wife Nirmalabai in the alleged night and it was he who took her to the hospital.
7. Heard the learned counsel for the appellant and learned Panel Lawyer for the State.
8. Learned counsel for the appellant made three-fold submissions :-
(i) That the prosecution has failed to establish beyond reasonable doubt the presence of the appellant in the house at the relevant point of time and as a result whereof no guilt can be fastened on the appellant for the offence under Section 306, Indian Penal Code.
(ii) Apart attribution of beating to the deceased it cannot be said and held to be an act of abetting of suicide by the appellant and at the most if any liability in regard to the beating could be found that could be an offence only under Section 323, Indian Penal Code.
(iii) In the present case the provisions of Section 113A of the Evidence Act cannot be taken in aid by the prosecution as no presumption can be drawn on account of the fact that the marriage was performed more than 7 years before the date of incident.
9. Before the trial Court there were two questions for consideration as have been stated in paragraph 5 of the Judgment :-
^^1- D;k vfHk;qä tks e`rd fueZykckbZ dk ifr Fkk mlds lkFk Øwjrkiw.kZ O;ogkj djrk FkkA 2- D;k vfHk;qä us ?kVuk fnukad 7&1&1990 ,oa 8&1&1990 dh e/; jkf= e`rd fueZykckbZ dks vkRegR;k ds fy;s nq"izsfjr fd;kA**
10. So far as the question of cruelty at the hands of the appellant against her wife Nirmalabai was concerned, the Court recorded a finding in paragraph 37 of the judgment. So far as the earlier incident was concerned, the cruelty cannot be established against him and for that he cannot be held guilty and that question was decided in negative. Second question was decided in affirmative but the appellant was not found guilty for offence under Section 498A of the Indian Penal Code. He was found guilty for committing abetment between the period 7-1-1990 and 8-1-1990 which resulted in commission of suicide by Nirmalabai.
11. The submissions as advanced by the learned counsel for the appellant are in a circumscribed limit.
12. Learned counsel for the appellant in connection with his first submission invited the attention of the Court to paragraph 20 of the judgment where the court stated that the accused is the husband of the deceased and did not say that in the night of alleged incident he was not in his house. Learned counsel for the appellant submitted that there is no evidence on the record so to establish the presence of the appellant at the relevant point of time in his house and the view taken by the Court below which in fact amounts to placing of the cart before the horse, is not sustainable and the burden lies on the prosecution to have established the presence of the appellant during the hours of the alleged incident in his house by leading evidence, leaving no scope for creation of the doubt. Learned counsel for the appellant also submitted that apart from this, prosecution has not led any evidence which could be said to be independent evidence. It has come in the evidence of P.W. 2 Sushilabai in paragraph 6 that in the house apart from Nirmalabai, her husband's elder brother Ajabsingh, Tulsabai (wife of Ajabsingh) and Kotubai (second wife of the appellant) were living in the same house. None of these persons has been examined by the prosecution. So far evidence of Sushilabai (P.W.2) is concerned, there was enmity as a result of which she was not in talking terms with the deceased since last 8 years. Further in paragraph 12 she has stated that there are other houses adjacent to the house of the appellant. House of Ramdas is in the south. In the east side are the houses of Jagdish Wadi, Shyamabai and Ramesh Wadi. In the north side, adjacent to the house of the appellant, are the houses of Anarsingh, Yavalsingh, Umeshsingh etc. and in front of the house of the accused are the houses of Madansingh Master, Mastan Singh, Manohar Singh and Jeevan Singh. None of these witnesses has been examined. P.W.2 Sushilabai was not an independent witness as she was an interested witness, She has stated in her statement that Nirmalabai did not use to come to her place. She has stated that her father and brother are in the party of Madan Singh Master with whom the appellant is having litigation. Learned counsel further pointed out that P.W. 2 Sushilabai in her statement stated that on the date of occurrence she went to the temple and after returning back from the temple she heard the voice of Nirmalabai. On that day other ladies, whose houses were in the vicinity, adjacent to the house of the appellant, also went to temple and they returned with her from the temple when she heard the voice of Nirmalabai soliciting help. But in spite of availability of the witnesses, the prosecution did not examine any independent witness. P.W. 4 Jagdish, who was the witness of hearing voice of Nirmalabai soliciting help and calling for not beating, was declared hostile. The witness in the statement stated that the voice which he heard was that of a lady as it was a lady like voice. In his statement in paragraph 6 he has stated that he was working with Gajraj Singh, who is in the party of Madan Master. He worked at his place and was still working on the date of deposition. He clearly stated that between the parties of Devi Singh and Madan Master cases are going on in the Court of S.D.O. He also admitted a case against him where he was included in the party of Madan Master. The witness accordingly is not an independent witness. That apart, from the independent witnesses, the prosecution itself got the witness declared hostile. He was declared hostile on the point that in the statement under Section 161, Criminal Procedure Code the police recorded that at that time the voice of Devi Singh was coming out and he was scolding his wife, which statement he denied, that he never gave any such statement to the police and he categorically stated that he did not hear any voice of Devi Singh. Then the prosecution examined Karan Singh as a witness for hearing the voice of Nirmalabai, but this witness did not support at all the prosecution case and he made a statement that on the relevant night no voice of shouting of Devi Singh or his wife was heard by him and he did not give any such statement to the police under Section 161, Criminal Procedure Code. On this basis, the prosecution got him declared hostile. There is no other evidence which could link the appellant or establish the appellant about his presence in the house at the relevant point of time. As such the presence of the appellant in the house at the relevant point of time has not been established by the prosecution beyond any reasonable doubt and when the presence of the appellant in the house at the relevant time when occurrence took place has not been established then the question of abetment by instigation does not arise. The trial court has presumed the presence of the appellant on the basis of non-explanation by the appellant regarding his not being present in his house at the relevant time. Now learned counsel for the appellant invited the attention of the Court to Section 107, Indian Penal Code which reads as :-
"107. 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."
and learned counsel submitted that first clause deals with instigation, the second clause deals with conspiracy and the third clause deals with aids. Present case cannot be covered under the conspiracy as nothing has been assigned to the appellant regarding doing of any particular act or doing of any illegal omission. Apart from this, the conspiracy cannot be by one person. In this connection, case of Haradhan Chakrabarty v. Union of India, AIR 1990 SC 1210 is relevant wherein in paragraph 9, the Supreme Court while considering the matter relied on the case of Topan Das v. State of Bombay, AIR 1955 SC 33 where it was held that "two or more persons must be parties to such an agreement and one person alone can never be held guilty of criminal conspiracy for the reason that one cannot conspire with oneself."
13. Learned counsel for the appellant submitted that it is not a case that for the act of commission of suicide any aid was given by the appellant or any illegal omission on the part of the appellant resulted in commission of the suicide. The submission has got substance. It is not a case of aiding by the appellant as there is no material on the record to show that he did any act which resulted in abetment. In view of the fact that it has already been held earlier that it is not established beyond reasonable doubt that the appellant at the relevant time gave any beating or caused any cruelty to lady, even the presence of the appellant at the relevant point of time has not been established beyond reasonable doubt and the presence itself being doubtful, the other role of the appellant as set up by the prosecution in the statement of P.W. 5 Karan Singh was not established as Karan Singh denied the fact as has been stated earlier and he is declared hostile. Apart from this witness there is no evidence on record to establish the presence of the appellant in the house. Now the question remains about the instigation. The instigation can be done by a person only by some act of commission or omission whereby the presence of the appellant ought to have been established by the prosecution in the house at the relevant point of time. Nothing has been attributed or founded by evidence that on the fateful day the appellant had quarrelled with the deceased and the said quarrel resulted in some surcharge of the atmosphere and as a result whereof the lady might have preferred death. Thus, the case of the appellant cannot come under the category of abetment.
14. When abetment is not established by the prosecution then the question is whether the liability of guilt under Section 306, Indian Penal Code can be fastened on the appellant? The language of Section 306, Indian Penal Code is clear so far as the abetment is concerned. The liability of offence therein is dependent upon the act of abetment and abetment must be for commission of the suicide. In the present case, the abetment has not been established and as a result thereof the liability of guilt under Section 306, Indian Penal Code cannot be fastened on the appellant.
15. So far as the third question regarding the attraction of provisions of Section 113 of the Evidence Act is concerned, proposition is not beyond doubt that the provisions cannot be attracted in the present case as the marriage took place much anterior to 7 years from the date of the commission of suicide. So far as the second question is concerned, it requires no consideration in view of the finding on the first question.
16. In the circumstances of the case the appeal is allowed. The conviction as imposed on the appellant under Section 306, Indian Penal Code is set aside and consequently the sentence. The appellant is on bail. His bail-bonds shall stand cancelled and the sureties shall stand discharged.