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Naurang vs State Of U.P. on 6 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 14.10.2019

Delivered on 06.01.2020

Case :- CRIMINAL APPEAL No. – 2972 of 2009

Appellant :- Naurang

Respondent :- State of U.P.

Counsel for Appellant :- Amit Singh,Krishna Mohan Tripathi,Sunil Kumar

Counsel for Respondent :- Govt. Advocate

Hon’ble Siddharth,J.

Heard Sri Sri Krishna Mohan Tripathi, learned counsel for the appellant and Smt. Seema Shukla, learned AGA, appearing on behalf of the State.

This criminal appeal has been preferred by appellant, Naurang, against the judgement and order dated 05.05.2009 passed by the Additional Sessions Judge, Court no.7, Moradabad in Sessions Trial No.375 of 2007 (State Vs. Naurang) convicting and sentencing the appellant for committing offence under Section 306 I.P.C to rigorous imprisonment of five years and fine of Rs.3,000/- and in default of payment of fine appellant has been directed to under go further simple imprisonment of three months.

Prosecution case in brief is that informant, Jai Singh, son of Prem Singh Jatav is resident of Karnawala Japti, Police Station Thakurdwara. On 11.12.2006 at 1.00 p.m. his daughter, Nemwati, aged 16 years, went to the field along with her mother. There was some gap between them. A boy hidden in the field named, Naurang, came from behind and nabbed her daughter with intent to outrage her modesty and began to drag her in the field. On her alarm and cry for help, her mother came and on seeing her, the boy fled away leaving behind his sleepers. Her daughter came back to the house and being shocked and mentally upset she committed suicide by hanging herself. At the time of commission of suicide by the deceased no one was present in the house. At about 3.00 p.m. younger brother of the deceased, Vipin Kumar, came and saw her hanging. On his shouting people nearby came and she was brought down. Deceased was taken to the doctor who found her brought dead.

On the basis of written report submitted before the police first information report was registered as Case Crime No.1554 of 2006, under Section 306 I.P.C on 11.12.2006 at 17.45 hours. The Investigating Officer conducted investigation and submitted charge-sheet.

Charges under Section 306 I.P.C were framed against the appellant to which he denied and sought trial.

PW-1, Jai Singh, father of the victim and informant repeated the case mentioned in the first information report against the appellant and proved the application given before the police station and his signature on the inquest report.

PW-II, Vipin Kumar, younger brother of the deceased stated that he returned to his house at 3.00 p.m from school. The main door of his house was closed. When he made noise in the house no one responded. Then he climbed the roof of the neighbour and came down through the stairs in his house, then he found his sister hanging from roof inside the house. He raised alarm and then the neighbours, Vinod, Ramesh, his mother Nirmla, grand-mother, Urmila and aunt, Jaswanti came. He stated that his sister committed suicide on account of attempt made by, Naurang to outrage her modesty.

PW-III, Nirmala, mother of the deceased, proved that she was with the deceased when the appellant tried to outrage her modesty. On her hue and cry her mother-in-law and sister-in-law reached on the spot. The clothes of the deceased were torned and accused, Naurang fled away leaving behind his slippers. Her daughter informed her that Naurang had taken her in his arm and embarrassed her. She could not bear the shame and committed suicide by hanging herself.

PW-IV, Jaswanti, aunt of deceased stated that she along with her mother-in-law, Urmila and sister-in-law (Jethani), Nirmala had gone to the field for scrapping cane. Deceased was coming behind at some distance. When she reached the cane field of Sunita, Naurang who was hidden in the field, nabbed and dragged her with intent to outrage her modesty. On her cry for help she and other family members of her family rushed to the scene of incident and found Naurang wrapped with the deceased. On seeing them he fled away leaving behind his slippers. The clothes of the deceased were torned. She consoled the deceased and took her to the house and leaving her she came back to the field. When she was working in the field along with other ladies of the house she came to know that deceased has committed suicide by hanging due to shame and guilt caused by the conduct of the appellant.

PW-V Dr. D. P. Sharma, stated on oath that on 11.12.2006 at 3.p.m. he was deputed in district hospital as Senior Child Specialist. On the very same day he conducted autopsy of deceased, Nemwati aged 16 years daughter of Jai Singh, who was brought by Constable C.P.157 Mahipal and H.C. 2535, Amit Kumar in seal condition and sealed was found intact. Death was one day old. On external examination deceased was found of medium height and body structure. Mouth and both eyes were half opened. Blood stained foam liquid was flowing from both of her nostrils. Rigour mortis was present on both, upper and lower part of the body. Eyes were congested. Tongue was protruding. The ante-mortem injuries found as below :-

1. Ligature mark 2½ cm x 3cm present in the front of neck at level of cricoid cartilage passing from left ear to right ear 2 cm below. Skin is echymosed chiromma on hyoid bone intact.

2. L.W. 2cm x 0.8cm x muscle deep on the right side buttock. Clotted blood present.

Vaginal smear was taken, sealed, preserved and handed over to constable.

From the external examination, brain and its cartilages, both lungs of the deceased was congested and there was petechial haemorrhage present. Hearts right chamber was filled with dark blood and left was empty. There was 4 Oz. Semi digested rice and gas present in the stomach. The organ of generation, left libia was lacerated and blood clot was present. In his opinion death is due to asphyxia and shock as a result of ante mortem injuries. Nine papers received with corpse were handed over to police. The post mortem report was prepared at the time of examination in his handwriting and signature. In his opinion death of Nemwati was possible on 11.12.06 at 3 p.m.

PW-6, Dr. M. C. Golecha, stated on oath that on 13.12.06 he was deputed as senior pathologist in Government Hospital. Post Mortem report of Nemwati was conducted by doctor deputed at that time who referred vaginal smear in sealed envelope through lady constable 1066, Pushpa, P.S. Thakurdwara for ascertaining pressure of spermatozoa in the vaginal smear. He examined and found that there was no spermatozoa in the referred vaginal smear and prepared report in his handwriting and signature.

PW-VII, C.P. 60, Yashpal Singh, proved the G.D. report of lodging of the first information report.

PW-VIII, S.I. Vikram Pal Sharma, Investigating Officer of the case, proved the entire investigating record of the case and the charge-sheet submitted before the court.

PW-IX, Devendra Singh Tomar, proved the inquest report, sending of body of the deceased for post mortem through Head Constable.

PW-X, Head Constable, Amit Kumar, stated that he took dead body of the deceased for post mortem and it was safely brought to the mortuary.

Statement of the accused under Section 313 Cr.P.C was recorded. He denied the allegations made against him. He stated that he has been falsely implicated in this case and expressed his ignorance about the inquest report and other documents implicating him prepared by the prosecution.

Learned Trial Court found that from the evidence on record, it is clear that the accused outraged modesty of deceased, Nemwati, as clear from evidence of the witnesses of fact and in the state of shock and shame she committed suicide when there was nobody in the family. The medical evidence fully supports the allegation of suicide and corroborates the oral testimony. The first information report was prompt and there is nothing on record to prove false implication of the accused in the alleged crime. The act of accused abetted the victim to commit suicide and hence held the appellant liable for punishment under Section 306 I.P.C and accordingly, convicted and sentenced him, hence this appeal.

Learned counsel for the appellant has raised number of factual arguments and has also submitted that deceased did not died on account of asphyxia due to anti mortem hanging but due to throttling. He has submitted that the ligature mark on the neck of the victim was continuous and hyoid bone was fractured and there was no explanation of injury no.2, found on the right buttock with clotted blood on the body of the victim. He has also submitted that trial court did not framed charges under Section 354 I.P.C against the appellant. He has wrongly been convicted and sentenced for the offence under Section 306 I.P.C.

Even if the prosecution case is accepted to be correct, solitary incident of pulling the deceased by indecent intent cannot be said to be an act of abetment of deceased for suicide as defined under Section 107 I.P.C. The appellant was aged about 19 years at the time of incident in the year 2009 and now he is aged about 29 years.

Learned AGA has vehemently opposed the arguments advanced by the learned counsel for the appellant. She has submitted that from the prosecution evidence on record clear case of abetment of suicide is made out against the appellant. The trial court has rightly concluded that from the medical and ocular testimony on record, the prosecution has been able to prove the case of suicide against the appellant beyond all reasonable doubts. Therefore, appellant has been rightly punished.

After considering the rival contentions this court finds that the factual arguments of the learned counsel for the appellant are misconceived and deserve to be turned down. The hyoid bone of the victim was not found fractured by the doctor and argument in this regard is also not tenable. The argument of the learned counsel for the appellant that ingredients of Sectionsection 306 I.P.C. are not made out from the material on record only deserves consideration. There is no direct evidence of abetement of suicide by the appellant which led to the suicide by the deceased. The Apex Court in paragraphs 27, 28 and 29 of the case of Gurcharan Singh (Supra) has held as follows:-

“27. The pith and purport of Section 306 IPC has since been enunciated by this Court in SectionRandhir Singh vs. State of Punjab, (2004)13 SCC 129, and the relevant excerpts therefrom are set out hereunder.

“12. 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. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.

13. In State of W.B. Vs. Orilal Jaiswal (1994) 1 SCC 73, this Court has observed that the courts should be extremely careful in assessing the facts and circumstances 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 transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences 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.”

28. Significantly, this Court underlined by referring to its earlier pronouncement in Orilal Jaiswal (supra) that courts have to be extremely careful in assessing the facts and circumstances of each case to ascertain as to whether cruelty had been meted out to the victim and that the same had induced the person to end his/her life by committing suicide, with the caveat that if the victim committing suicide appears to be hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which he or she belonged and such factors were not expected to induce a similarly circumstanced individual to resort to such step, the accused charged with abetment could not be held guilty. The above view was reiterated in SectionAmalendu Pal V. State of West Bengal (2010) 1 SCC 707.

29. That the intention of the legislature is that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option, had been propounded by this Court in SectionS.S. Chheena v. Vijay Kumar Mahajan (2010) 12 SCC 190.”

In the above decision of the Apex Court the ingredients for constituting the offence under Sectionsection 306 I.P.C. stated are missing in the present case. Prosecution has not proved that the appellant instigated the victim to commit suicide. There was no mens rea to commit the offence on the part of the appellant proved on record. It appears that on account of shame or scolding of the deceased by her family members she committed suicide in the tender age. Therefore, conviction of the appellant for the offence under Sectionsection 306 I.P.C. is not correct.

On the assessment of evidence on record this Court, finds that victim was sixteen years old minor girl and appellant was caught catching her with bad intention. Therefore, the offence under Sectionsection 354 I.P.C. stands proved against the appellant. The conviction of appellant under Section 306 I.P.C is converted to one under Section 354 I.P.C.

Instead of punishing the appellant with imprisonment, he is punished with fine of Rs.25,000/- for committing the offence under Section 354 I.P.C. The amount of Rs.25,000/- shall be deposited by the appellant within three months from the date of order. The amount of Rs.25,000/- shall be paid as compensation to the informant, or if he is not alive, to his legal heirs.

The appellant is on bail. His bail bonds and sureties shall be discharged only after deposit of amount of fine of Rs.25,000/-. In case of default, appellant will carry out the sentence under Section 354 I.P.C which shall be rigorous imprisonment of one year.

The office is directed to send the record of the court below within two weeks from today along with copy of this judgement for compliance.

The appeal is partly allowed.

Order Date :-06.01.2020

SS

 

 

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