Sarvesh vs State Of U.P. on 31 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 11 Reserved

Case :- JAIL APPEAL No. – 5050 of 2012

Appellant :- Sarvesh

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Radhey Shyam Yadav Ac

Counsel for Respondent :- A.G.A.

Hon’ble Shailendra Kumar Agrawal,J.

1. This Jail Appeal has been filed by the accused/ appellant Sarvesh challenging the impugned judgment and order dated 09.10.2012 passed by the Additional Sessions Judge, Court No.8, Firozabad in Sessions Trial No.39 of 2011 (State of U.P. Vs. Sarvesh Kumar); Crime No.264 of 2010, Police Station Ramgarh, District Firozabad, whereby accused/ appellant was convicted and sentenced under Section 306 IPC with seven years’ rigorous imprisonment along with fine of Rs.3000/- and in case of default in payment of fine to further undergo one year’s additional rigorous imprisonment.

2. The brief facts of the case are that a written report Ex. Ka-1 scribed by complainant Lankush Singh (PW-1) was lodged at Police Station Ramgarh, District Firozabad on 03.07.2010 against the appellant alleging therein that 13 years ago from the date of incident marriage of his daughter namely Smt. Sunita was solemnized with the appellant according to Hindu rites and rituals. The appellant had bad habits of drinking, gambling etc. and he had sold his house and other properties. His daughter was surviving anyhow by doing the labour job and from the earning of this job, she had purchased a plot, which was registered in her name. The appellant used to demand the papers of sale deed from the deceased, due to which she was very puzzled. She was living at the house of Gaya Prasad at Narayan Nagar, Firozabad and was paying the rent of the room. In the night of 02/03.07.2010, his daughter consumed some poisonous substance due to the violence of the appellant, due to which she died. His daughter used to narrate all the facts regarding violence committed by the accused-appellant to him and his other family members. Today i.e. on the date of incident, his grandson (Dhevata) Chetan told him about the cause of death on mobile and lastly he prayed for registering the case and taking legal action against the appellant.

3. On the basis of this written report Ex. Ka-1, chik FIR Ex. Ka-9 was recorded by PW-5 CP Rashid and the same was entered into G.D. Ex. Ka-10. The Investigating Officer proceeded to the place of occurrence, where inquest report Ex. Ka-2, challan lash Ex. Ka-3, photo nash Ex. Ka-4, letter to R.I. Ex. Ka-5, letter to C.M.O. Ex. Ka-6 were prepared and the site plan of the place of occurrence Ex. Ka-7 was also prepared. Thereafter, the corpse of Smt. Sunita was sent for postmortem to the District Hospital, Firozabad.

4. The autopsy was conducted on the corpse of Smt. Sunita by PW-6, Dr. S.S. Chhavara on 03.07.2010 at 2.50 p.m. and on external examination the doctor found that the deceased was aged about 30 years, body was average built up, rigor mortis was present all over the body, froth was coming out from mouth and nostrils, but there was no visible injury on the corpse of the deceased.

On internal examination the doctor found that membranes were congested, both the lungs and all other internal organs were also congested, left chamber of the heart was full while the right was empty, the stomach was filled with pasty food and the death was occurred 3/4 days ago. Cause of death could not be ascertained, hence the viscera was preserved. The doctor has proved the postmortem report as Ex. Ka-11. Viscera report from Forensic Science Laboratory was received on 05.12.2011, which was proved by PW-7 Dr. Ravi Chaturvedi, according to which Aluminium Phosphide was found in stomach, intestines, liver, kidney spleen etc.

5. After completion of investigation, charge sheet Ex. Ka-8 was submitted by the Investigating Officer against accused-appellant namely Sarvesh Kumar for the offence under Section 306 IPC before the Magistrate/ Additional Civil Judge-II (Jr. Div.), Shikohabad, Firozabad and the learned Magistrate on 23.12.2010 committed the case to the court of Sessions.

6. Learned Additional Sessions Judge, Court No.8, Firozabad framed charge against the accused on 31.01.2011 for the offence under Section 306 IPC. The appellant pleaded not guilty and claimed to be tried.

7. To substantiate the charge, the prosecution has examined following witnesses:-

i. Lankush Singh, father of the deceased as PW-1;

ii. Anita Devi, sister of the deceased as PW-2;

iii. Anil Kumar, brother of the deceased as PW-3;

iv. S.I. Vishwanath Singh, Investigating Officer of the case as PW-4;

v. C/C Const. 1209 Rashid as PW-5;

vi. Dr. S.S. Chhavra, who prepared postmortem as PW-6; and

vii. Dr. Ravi Chaturvedi prepared the report regarding viscera as PW-7.

8. Accused-appellant in his statement u/s 313 Cr.P.C. has denied all material facts of the prosecution. He has also stated he has been falsely implicated in the present case.

9. After scrutinizing and appreciating the evidence, available on record, the learned trial court convicted the appellant for the offence under Section 306 IPC.

10. Heard Sri Radhey Shyam Yadav, learned Amicus Curiae for the appellant and Sri Nagina Singh, learned A.G.A. for the State and perused the record.

11. PW-1, father of the deceased Sunita, is only an informant and not eye witness. He has supported the FIR version and has deposed that due to his bad habits of gambling and drinking, Sarvesh had sold his whole property and he was asking for the papers of the plot purchased by Sunita from own funds and there were squabble between them, due to which his daughter either consumed some poisonous substance or Sarvesh poisoned her and Sunita died. This version of witness shows that he is not sure about the way the poison was swallowed by Sunita. PW-1 has stated that Sunita was the tenant in the house of Gaya Prasad, who is his elder son-in-law, the husband of his elder daughter Anita.

12. PW-2 Anita has also corroborated the version of PW-1. She has further stated that Sarvesh has beaten Sunita during day hours after taking drinks one day before the night of incident, due to which she committed suicide in the night of 2nd /3rd July, 2010. Though in her examination-in-chief PW-2 has not stated that Sunita was her tenant, but in her cross-examination she has admitted that Sunita was living with her since one year before her death. She has also admitted that Sarvesh and Sunita were in talking relations and terms, but they used to quarrel. PW-3 Anil Kumar, brother of deceased Sunita also corroborated the above facts. But all the witnesses have admitted that they do not know about the date of sale deed or the location of that land.

13. In this case PW-2, Anita is a prime witness because Sunita was tenant in her house, who is her real sister. She has stated that she came to know about the consumption of something by Sunita at 5.00 a.m. In the light of above evidence this Court has to analyze whether such facts constitute the offence of abetment of suicide and when a person would be guilty for that offence.

14. Abetment means some active suggestion or support to the commission of the offence. The word ‘instigate’ literally means to goad, urge forward, provoke, incite or encourage to do an act and a person is said to instigate another when he actively suggest or stimulates him to the act by any means, or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. It is also not necessary that the instigation should be only in words and may not be conduct. In the absence of any specific allegation that the accused did any of the acts for abetment, he cannot be convicted of the charge of abetment of suicide. It is to be made clear that a specific allegation must be made as to what particular act was done by the accused which may be interpreted as an act of abetment. To sustain conviction for abetment, it is not necessary that the act abetted must be committed rather abettor’s guilt depends upon the nature of the act abetted (Jamuna Singh Vs. State of Bihar, AIR 1967 SC 553). In order to constitute abetment, the abettor must be shown “to have intentionally aided the commission of crime”. Mere proof that the crime charged could not have been committed without his interposition is not enough. Presence of mens rea is a necessary concomitant for instigation. Direct evidence of any instigation or aid is not necessary. In Mahendra Singh Vs. State of MP, 1995 SCC (Crl) 1157, it was held that conviction for abetment merely on the allegations of harassment to the deceased is not punishable. For committing the offence under Section 306 IPC, there must be some intention and some positive act on the part of the accused to instigate the victim or to aid her in committing the suicide. The lady was harassed and ill-treated by her husband, who refused to accompany her to her parents’ house for celebration of a festival. Therefore, she committed suicide by setting herself to fire. It was held that accused husband was not blamed anywhere at any stage, so it could not be said that he in any way had instigated her to commit suicide.

15. Where there is no evidence of any abetment and the evidence showed that the deceased used to pick-up quarrels for flimsy reasons and the wife who committed suicide was thoroughly dissatisfied because of economic disparity between the two families that of her husband and that of her parents, the charge of abetment to commit suicide must fail (Tapan Pal Vs. State of West Bengal 1992, Crl.L.J. 1017). In Thangappandian Vs. State, 1998, Crl.L.J. 993 (Mad), it was held that each and every misunderstanding of petty quarrel between husband and wife cannot be included within the term of cruelty. So where there was no evidence that willful conduct of accused husband was of such a nature as was likely to drive his wife to commit suicide. There was no other evidence of cruelty and harassment, it was held that accused was entitled to the acquittal of offence under Section 306, 498A IPC. Where the deceased was alleged to have committed suicide by hanging as she could not get a plot in her name even after paying money to the accused. It was held that mere non-fulfillment of promise about getting plot allotted in her name would not be sufficient for fulfilling ingredients of Section 306 IPC. In Sanju @ Sanjay Singh VS. State of MP (2002) Crl.L.J. 2796 (SC), it was held that accused was in the habit of drinking and out of frustration one day asked the deceased to go and die. It was held that this much was not sufficient to constitute the offence of instigation as there was absence of mens rea. Charge framed under Section 306 IPC against the accused was, therefore, quashed.

16. The word “instigate” denotes incitement or urging to do some in drastic or inadvisable action or to stimulate or incite. The vague allegation like inciting the husband by the in-laws for contracting second marriage would not be enough in constituting the offence of abetment. Instigation in the contest of conduct of a husband towards wife means creating a situation by conduct whereby the wife who is in complete dependence and at the mercy of the husband, sees no other way, except to end her life ( Ram Kumar Vs. State, 1998, Crl.J 952 (M.P.).

17. In State Vs. Sunil Kumar, 1997 Crl.L.J. (2014) Gujarat, it was held that mere quarreling with the wife would not amount to abetment. In the same way mere misbehavior on the part of the accused cannot be equated with abetment.

18. The suicide must be the proximate to the quarrel if it is not so accused cannot be held guilty for the offence under Section 306 IPC though the accused may be named in the suicide note.

19. Thus, it would be evident on plain reading of Section 306 IPC that, in order to make out the offence of abetment of suicide, the necessary proof required is that the culprit has either instigated the victim to commit suicide or has engaged himself in conspiracy with others, for the commission of suicide or has intentionally aided, by any act or illegal omission in the commission of suicide.

20. There has to be element of positive complicity on the part of the abettor at the point of time just to prior to the actual commission of the offence or within such short space of time prior to suicide that there may be found a reasonable and rational nexus between the act done by the abettor and the resultant death. It is of the essence of the crime to make out the offence of abetment of suicide that the abettor should be proved to have substantially assisted in the commission of the offence of suicide. Stray domestic quarrels, perfunctory abuses by mother-in-law to her daughter-in-law in the Indian society, crude and uncultured behaviours by the in-laws or the husband towards his wife being mundane matters of normal occurrence in the traditional joint Hindu families, will not go to form and constitute ‘abetment’ unless these acts of conduct singly or cumulatively, or found to be of such formidable and compelling nature as may lead to the commission of suicide or may facilitate in a singular and prime manner, the commission of the same.

21. Now in the proposition of law discussed above, if I analyze the facts of this case, I find that PW-2 has stated that there was often quarrel only regarding asking by accused regarding papers of the plot. Prosecution has failed to prove the fact that there was any plot in the name of Sunita, its location or when it was purchased. There is also no evidence on record that accused in any way has instigated Sunita to commit suicide or aid her in any manner to commit suicide particularly on that day. All other witnesses have admitted that oftenly husband and wife used to quarrel, inspite of that they were in talking terms. Sunita was doing her own business of assembling of bangles and they do not know about the business of Sarvesh. They also admitted that they never complained to any of the officer of the administration or police station in the last 13 years.

22. PW-2 has also admitted that on the night of incident Sunita was sleeping alone on the ground floor and rest members of the family were out of station and she was sleeping with the youngest son of Sunita. Nothing is on record to show that there was any quarrel in the night of incident and no special role has been assigned against Sarvesh for instigating or abetting Sunita specially on that day for committing this offence. PW-2 has not narrated anything that what conversation took place during day at the time of quarrel/ beating the victim which provoked the victim for committing suicide in the night after a long gap. PW-2 only has stated that in the day Sarvesh had beaten Sunita after taking wine. This was not the unusual thing because as per evidence of witnesses oftenly he was in the habit of taking liquor and they were in the habit of quarreling, nothing special can be said to happen there on that day, so it cannot be said to be the proximate cause for committing suicide. PW-1 has admitted that when he received the information about the death of his daughter, he went to the house of his daughter and the accused was not there. PW-2 Anita has also not stated that Sarvesh was present in the house on that night. PW-3 also admitted that when he reached on the spot only his nephew and neighbourers were present. PW-2 has already admitted that the deceased slept alone on that night, then how the accused can be charged for the abetment or to instigate his wife to commit suicide. Even for argument if in the day there was quarrel between husband and wife and in the night she has committed suicide how the accused can be charged for the offence when PW-2 even is not stating that what actually happened in the day which compelled the victim to commit suicide.

23. As per postmortem report of PW-6 Dr. S.S. Chhavara, no ante-mortem injury has been found on the corpse of deceased Sunita. Even no injury report of the last 13 years after marriage of Sunita has been filed by the prosecution so that it might be proved that Sarvesh ever tortured or ill-treated the deceased in a cruel manner.

24. PW-1 has stated that he knew regarding these quarrels after elapsing five or six years of marriage while PW-2 has stated that her father PW-1 came to know about these quarrels just six months before death of Sunita. It falsifies the version of PW-1 that Sunita used to tell him regarding the conduct of the appellant.

25. As the marriage took place 13 years ago so presumption under Section 113A of the Indian Evidence Act can not be invoked. Prosecution has to prove its own case beyond all reasonable doubts.

26. PW-3 has admitted that he reached on the spot immediately after getting news from his nephew. Police did not ask anything from him. He cannot tell regarding his statement how police recorded it.

27. PW-1 has admitted that Sunita was married with Sarvesh on the recommendation of Gaya Prasad, the husband of PW-2 Anita and later on Sunita and Sarvesh were living in the house of Gaya Prasad and there were illicit relations between Gaya Prasad and Sunita. Due to this illicit relation, there were quarrels between Sarvesh and his wife Sunita. Witness has denied the suggestions. No evidence in this regard is on file. Suggestions cannot take form of evidence. This story has also no impact on the case.

28. It is admitted that in the morning Chetan, the nephew of PW-3 informed his maternal side regarding this incident, but Chetan has not been examined.

29. In my opinion there is not so much evidence on record on the basis of which accused can be held guilty for such offence. There is no direct or indirect evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. There is no proximate cause between the quarrels of that ‘day’ and the suicide committed on 02/03.07.2010. The evidence on record is not enough to satisfy the conscience of the court to conclude that for the reasons given by the witnesses the deceased had committed suicide due to any action or conduct of accused. The prosecution could not prove the allegations against the appellant beyond all reasonable doubts.

30. I do not agree with the findings recorded by the learned trial court.

31. For the reasons mentioned above, the jail appeal deserves to be allowed and the judgment and order of conviction passed by the learned trial court is liable to be set aside.

32. In the result, the jail appeal is allowed. The judgment and order dated 09.10.2012 passed by the Additional Sessions Judge, Court No.8, Firozabad in Sessions Trial No.39 of 2011 (State of U.P. Vs. Sarvesh Kumar); Crime No.264 of 2010, Police Station Ramgarh, District Firozabad, whereby the appellant was convicted under Section 306 I.P.C. is set aside. Appellant Sarvesh is acquitted of charge under Section 306 I.P.C. Appellant, if in jail be set at liberty forthwith unless his detention is required in connection with any other case provided that he furnishes bail bonds and sureties complying Section 437-A Cr.P.C. within a period of one month from the date of this judgment in the court of C.J.M., Firozabad.

33. The Registry is directed to send a certified copy of the judgment with all original documents to the concerned court below for compliance.

34. The learned Amicus Curiae Sri Radhey Shyam Yadav shall be paid Rs.7,000/- for providing active assistance to the Court from the fund of State Legal Services Authority.

Order Date :- 31.10.2017

Anoop

 

 

Leave a Comment

Your email address will not be published. Required fields are marked *