IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.2946 of 2017
Arising Out of PS. Case No.-208 Year-2014 Thana- PALIGANJ District- Patna

Manoj Kumar, Son of Gyan Chand Mahto, resident of Village- Dharhara,
Police Station- Paliganj, District- Patna.

… … Appellant/s
Versus
The State of Bihar.

… … Respondent/s

Appearance :

For the Appellant : Mr. Krishna Pd. Singh, Sr. Advocate
Mr. Pramod Kumar, Advocate.

For the Informant : Mr. Ansul, Advocate.
For the Respondent : Ms. Abha Singh, APP.

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL JUDGMENT
Date : 26-03-2018

Heard the learned counsels for the appellant, the

informant and the State.

2. The appellant/Manoj Kumar has been convicted

under Section 306 of the Indian Penal Code by

judgment dated 26.08.2017 passed by the learned

Additional Sessions Judge VII, Danapur, Patna in

Sessions Trial No. 179 of 2016 arising out of Paliganj

P.S. Case No. 208 of 2014 and by order dated

30.08.2017, he has been sentenced to undergo R.I.

for five years, to pay a fine of Rs. 5000/- and in
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default of payment of fine, to further suffer S.I. for six

months for the offences under Section 306 of the IPC.

3. The appellant is said to have goaded his wife

Pinki Kumari to commit suicide.

4. Initially, case was filed under Sections 341,

323, 307, 498A, 201/34 of the Indian Penal Code and

Sections 3/4 of the Dowry Prohibition Act but with the

death of the deceased, Section 304B of the IPC was

added.

5. Apart from the appellant, two other persons viz.

his mother and sister were also put on trial but they

have been acquitted of all the charges.

6. The father of the deceased, Rajeshwar Singh

(P.W. 1) lodged a fardbeyan on 09.09.2014 alleging

that he had married his daughter about a year back

with the appellant. At the time of marriage, sufficient

gifts by way of money and articles were given to the

family of the appellant. After about 2-3 months of the
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marriage, a demand of Rs. 3 lakhs was regularly being

made by the appellant and his mother and sister. Non-

fulfillment of the aforesaid demand led to the physical

and mental torture of his daughter. The daughter of

the informant (P.W. 1), at one point of time, came in

family way and she had to be hospitalised. During that

period, despite the informant (P.W. 1) asking the

appellant and his family members to come to the

hospital to see her, nobody came. His daughter

thereafter again went to her matrimonial home. On

08.09.2014, at about 7 o’ clock in the evening, co-

villagers of the appellant informed him that his

daughter has been set on fire by pouring petrol over

her. On such information, P.W. 1 went to the house of

the appellant where he was informed that his daughter

is being treated at Patna. In the house of the appellant,

the informant could only find a small burnt piece of

cloth. There was no evidence of any fire in kitchen. The
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gas cylinder also was found to be intact. The informant

thereafter came to Patna on 09.09.2014 and visited

her daughter in Maurya Hospital, New Jaganpura on

the Bypass Road. His daughter was unconscious and

had suffered almost 100 percent burn injuries. The

appellant, his mother and his sister were present at the

time of occurrence in their village home. All of them

had conjointly made attempts to kill the deceased. In

the past also his daughter was tortured by the mother

and sister of the appellant. As such, it was asserted by

the informant (P.W. 1) that the appellant and others

have killed the deceased.

7. On the basis of the aforesaid fardbeyan-

statement, a case vide Paliganj P.S. Case No. 208 of

2014 dated 15.09.2014 was instituted for the offences

under Sections 498A, 307, 201, 341, 323 and 34 of

the Indian Penal Code read with Sections 3/4 of the

Dowry Prohibition Act. The deceased died after about a
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week i.e. on 14.09.2014 whereafter Section 304B of

the Indian Penal Code was added.

8. The trial court, after examining ten witnesses on

behalf of the prosecution and one on behalf of the

defence, did not find any material to convict the

appellant under Section 304B of the IPC and therefore

acquitted him of such charge. However on the

materials available on record, the appellant has been

convicted under Section 306 of the Indian Penal Code

and has been sentenced as aforesaid. The other two

accused persons who were put on trial, as has been

stated earlier, have been acquitted.

9. The informant has been examined as P.W. 1.

One of the cousins of the informant (P.W. 1) though

had not given his statement before the police but has

been chosen by the prosecution to enter the witness

box and depose as P.W. 10. He was summoned under
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Section 311 of the Code of Criminal Procedure by the

trial court.

10. The prosecution witness nos. 2, 4, 5, 6, 7 and

8 have neither been declared hostile nor have they

supported the prosecution version. Almost all of them

have stated that they saw fumes coming out from the

house of the appellant and when they entered the

house, they found Pinki Kumari (deceased) in flames.

They made efforts to extinguish the fire and took her to

Paliganj Hospital. Neither the appellant nor his mother

and sister were present in the house. According to

them, the appellant had gone to his service station.

Pinki Kumari (deceased) told the aforesaid witnesses

that she had caught fire and since her mother-in-law

and sister-in-law were not available, she should be

taken to the hospital. These witnesses have also

unanimously stated that the relationship between the

appellant and the deceased was very cordial.
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11. Since these witnesses have not been brought

at the instance of the appellant and have not been

declared hostile, their depositions have to be taken into

consideration.

12. The witnesses who have spoken against the

appellant are P.Ws. 1 and 10. The I.O. of this case has

been examined as P.W. 11 whereas the doctor who

conducted the post-mortem of the deceased has been

examined as P.W. 9. It would be relevant, in this

context now, to scrutinize the evidence offered by P.W.

1 and P.W. 10.

13. P.W. 1 has supported his initial version given

in the FIR. However in his cross-examination, he has

stated that after the marriage, he had visited the

matrimonial home of his daughter about 2-3 times. His

daughter was educated till intermediate and most of

the times she stayed in her matrimonial home, except

for approximately 1½ months when she stayed with
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him. During her stay in her matrimonial home, his

daughter never wrote any letter to him or to his other

family members regarding any torture for non-

fulfillment of dowry demand. He also admitted of not

giving/offering any medical paper with respect to his

daughter having become pregnant at some point of

time. He had not spoken about the torture to his

daughter to anybody, much less any police officer. He

had also not asked anyone of his relatives to intercede

with the appellant for not torturing his daughter. P.W.

1 was also not in a position to tell the court as to who

had told him that the deceased had been put on fire.

The father of the appellant and his neighbours told him

that his daughter is being treated at Patna. He had not

taken the name of the father of the appellant as he

had no complaints against him. He has also clarified in

his cross-examination that in the night of 08.09.2014,

when he along with 8-10 others had visited the home
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of the appellant, the father of the appellant did not

raise any objection in opening the door of the house

and letting them in to inspect the house. The deceased

was admitted in the hospital at the instance of the

family of the appellant and was being treated at their

instance. The treatment began on 08.09.2014 and till

about 11.09.2014, the expenses incurred on the

treatment was borne by the appellant. Thereafter the

informant spent money from the 12.09.2014 till

14.09.2014, when the deceased finally succumbed to

the burn injuries. P.W. 1 did not remember the name

of anybody who told him that the deceased was set on

fire by pouring petrol on her. He had visited the

hospital with around 8-10 persons of his village. A

suggestion was given to him that all the villagers had

told him that the deceased caught fire while cooking

food in the house and the fire was extinguished by the

villagers. He was also suggested that at the time when
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the deceased caught fire, there was nobody present in

the house and the appellant had gone to Paliganj. All

the aforesaid suggestions were denied by P.W. 1.

14. What appears to be evident from the

deposition of P.W. 1 that the deceased was brought to

hospital at the instance of the appellant. For half of the

period that the deceased was alive, the expenses of the

treatment were borne by the appellant himself. Only

later, the aforesaid witness paid for the expenses

incurred on treatment. If there was any intention on

the part of the appellant to have killed the deceased,

he would not have taken the care of bringing her to the

hospital and affording treatment to her. The other thing

which becomes very evident is that no effort was made

by the family members of the appellant to keep the

informant and his associates out of the house. Again, if

there was any suspicion about any incriminating

substance in the house to be present, the family
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members of the appellant would not have allowed easy

entry of P.W. 1 in the house.

15. These two facts which emerges from the

deposition of P.W. 1, if seen in the context of the

deposition of other prosecution witnesses, would very

clearly indicate that the deceased was not put on fire in

any spite or anger for not having provided her in-laws

and her husband with the additional money which was

being demanded. As noted earlier, P.Ws. 2, 4, 5, 6 and

7 have categorically stated that they went to the house

of the deceased on seeing smoke coming out. The

deceased told them that she caught fire while cooking

and that in the absence of her in-laws, she be taken to

hospital. The deceased was taken to hospital at

Paliganj from where she was referred to Patna.

16. Rightly and justifiably, the trial court, on the

aforesaid materials held that there was no evidence to

bring home charges under Section 304B of the IPC.
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The evidence of P.W. 10 who was summoned under

Section 311 Cr.P.C. is also only based on what he was

told to him by P.W. 1, his cousin. Though he claims to

have gone to the matrimonial home of the deceased

along with P.W. 1 and had also visited the hospital but

he could not answer to the specific questions put to

him. What he categorically admitted was that he had

seen the deceased for the first time in the hospital and

that he did not know the names of the persons who

had told P.W. 1 about the occurrence. He has also

admitted the fact that without any objection, P.W. 1

and his associates including P.W. 10 were allowed

entry in the matrimonial home of the deceased.

17. For the offence under Section 304B of the IPC

to be brought home, what is necessary is to ascertain

that the deceased died within seven years of her

marriage and soon before her death, she was tortured

for dowry. Though the period of one year between the
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marriage and the death of the deceased is “soon

enough” for the offence to be attracted but in the

absence of any other evidence apart from the

deposition of P.W. 1 regarding the demand of dowry, it

would be very difficult for any court to rely upon the

sole testimony of P.W. 1 regarding demand of money

and consequent torture. Even the evidence of P.W. 1 is

lacking in many respects in as much as he has stated

before the court that he did not ever make any

complaint in any quarter regarding the torture of the

deceased. The deceased also never told him or wrote

to him that she was subjected to any ill-treatment. In

that view of the matter, this Court is also of the view

that no offence under Section 304B of the IPC could be

said to have been made out against the appellant.

18. Now the question which remains to be

answered is that if the appellant has been acquitted

under Section 304B of the IPC for paucity of evidence,
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would there be any justification for convicting him

under Section 306 of the IPC on the sole ground that

the death had taken place during the period when the

deceased was residing in her matrimonial home.

19. Section 306 of the Indian Penal Code reads as

follows:

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.

20. For punishing a person for abetment to suicide,

it has to be proved beyond reasonable doubts that the

person charged has abetted or goaded the deceased

into committing suicide. A person is said to abet if he

instigate any person to do that thing or engages with

one or more other persons in any conspiracy for doing

that thing and intentionally aids by any act or omission
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to doing of that thing. Similarly, an abettor is a person

who abets the offence either in the commission of the

same or in the commission of an act which would be an

offence, if committed by a person capable by law of

committing an offence with the same intention or

knowledge as that of the abettor.

21. Thus to prove the charge of abetment, the

prosecution is required to prove that the abettor had

instigated the commission of suicide. In the present

case, there is no evidence with regard to the appellant

having committed any act which could be said to have

goaded/instigated the deceased into committing

suicide. This gets strengthened by the fact that P.Ws.

2, 3, 4, 5, 6, 7 and 8 have not stated anything which

could throw light on any such material warranting the

conviction under Section 306 of the IPC.

22. A question but remains unanswered is that if

the death had taken place while the deceased was
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staying in her matrimonial home, it was for the

appellant to have explained about the cause of death.

23. Section 106 of the Evidence Act enjoins upon

a person to prove a fact which is specially within his

knowledge. For the sake of completeness the provision

of Section 106 of the Evidence Act is being extracted

below:

106. Burden of proving fact
especially within knowledge. – When any
fact is especially within the knowledge of any
person, the burden of proving that fact is
upon him.

24. For the application of Section 106 of the

Evidence Act, the prosecution is duty bound to

discharge the initial burden of establishing the prima

facie guilt of the accused beyond all reasonable doubts.

As Section 106 is only an exception to 101 of the

Evidence Act which deals with onus probandi, it is not
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attracted unless the initial burden of the prosecution is

proved.

25. In the present case, though the appellant has

not stated anything in his defence under Section 313

of the Code of Criminal procedure but from the

deposition of the witnesses referred to above it

becomes apparent that the cause of death was not

suicide but the deceased having caught fire while

cooking.

26. True it is that the evidence with respect to

catching fire while cooking has not been completed;

nonetheless convicting the appellant under Section 306

of the IPC i.e. for abetment of committing suicide, by

taking aid of Section 106 of Evidence Act would not be

justified in the present case. This Court can only

lament about not being able to decipher the actual

cause of the occurrence. What can definitely be said,

but is that the appellant did not abet the commission of
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suicide. It was no suicide either. The reason for the

death of the deceased thus remains under wraps. That

obviously cannot be made the reason for convicting the

appellant under Section 306 of the Indian Penal Code.

27. For the reasons aforesaid, the appellant is

entitled to the benefit of doubt.

28. This Court has been informed that he has

already remained in jail for about 3½ years.

29. Finding the conviction and sentence of the

appellant under Section 306 of the IPC in cloud, there

is no option to this Court but to set aside the judgment

dated 26.08.2017 and order of sentence dated

30.08.2017 passed in Sessions Trial No. 179 of 2016

arising out of Paliganj P.S. Case No. 208 of 2014 and

set the appellant at liberty.

30. The appeal succeeds.

31. The appellant is in custody. He is directed to

be released forthwith, if not required in any other case.

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32. A copy of the judgment be transmitted to the

Superintendent of jail for information, compliance and

record.

(Ashutosh Kumar, J)
krishna/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28/03/2018
Transmission Date 28/03/2018