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Radheshyam vs State Of Chhattisgarh 44 … on 29 October, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 4 of 2010
Judgement reserved on 6-9-2018
Judgement delivered on 29-10-2018

• Radheshyam S/o Haldhar Saura aged about 29 years, R/o
Salhejhariya Police Station Basna, Mahasamund (CG).
—- Appellant
Versus
• State of Chhattisgarh through Police Station Basna, District
Mahasamund (CG).
—- Respondent
——————————————————————————————–

For Appellant : Mr. Manoj Paranjpe, Advocate.

For Respondent/State : Ms. K. Tripti Rao, Panel Lawyer

(SB: Hon’ble Mr. Justice Ram Prasanna Sharma)
CAV Judgment

1. This appeal is directed against the judgment of conviction

and order of sentence dated 3-12-2009 passed by the Sessions

Judge, Mahasamund (CG) in Sessions Trial No. 53 of 2009

wherein the said Court convicted the appellant for the

commission of offence under Sections 306 of the Indian Penal

Code and sentenced him to undergo rigorous imprisonment for

eight years and to pay fine of Rs.5000/- with default stipulations.

2. In the present case, deceased namely Subhashini was

wife of the appellant who committed suicide by hanging herself in

the house of the appellant on 15-6-2009. The matter was

reported and investigated. In investigation it is found that
2

deceased committed suicide due to harassment and continuous

beating by the appellant. The appellant was charge-sheeted.

After completion of the trial Court, the trial court has convicted

the appellant as mentioned above.

3. Learned counsel for the appellant submits as under:

I) Ingredient of abetment which is defined in
Section 107 of IPC is not established by the
prosecution, therefore, charge is not
established;

ii) There is no sufficient evidence on record to
show that the deceased was subjected to
cruelty and it is also not clear as to what
happened on the date of occurrence,
therefore, finding recorded by the trial Court is
not sustainable.

Iii) It is not a case where the appellant by his act
or omission or by continuous course of
conduct created such circumstances that the
deceased had left with no option except to end
her life;

iv) Element of positive complicity on the part of
the abettor at the point of time is lacking in the
present case.

v) Domestic quarrel and perfunctory abuses
3

normally occur in the family and the same is
not constituting the abetment.

vi) Prosecution has not examined any witness
from neighbourhood regarding cruelty on the
part of the appellant, therefore, finding of the
trial Court is liable to be reversed.

4. On the other hand, learned State counsel would submit

that the finding arrived at by the trial Court is based on proper

marshaling of the evidence and the same is not liable to be

interfered while invoking jurisdiction of the appeal.

5. I have heard learned counsel for the parties and perused

the record of the court below in which impugned judgment is

passed.

6. To substantiate the charges, the prosecution has examined

as many as 11 witnesses.

7. In the present case, place of incident is Salhejhariya where

the deceased committed suicide. PW/1 Jagannath Bisal is father

of the deceased who is resident of village Toshgaon. This

witness has made general statement regarding beating to the

deceased by the appellant. PW/2 Prakash Barik is also resident

of village Toshgaon to whom the deceased informed about

beating by the appellant. PW/3 Mahesh Bhoi is resident of village
4

Atarla to whom father of the deceased namely Jagannath

informed that the appellant used to beat the deceased. PW/4

Ram Bihari is also resident of village Toshgaon and as per

version of this witness when he reached to the house of the

appellant on14-6-2009 the deceased informed him that the

appellant had beaten her. PW/6 Sanyasi deposed that in the

meeting arranged by the people of locality the appellant assured

that he will not beat the deceased in future.

8. From the entire evidence, the only evidence established by

the persecution is that the appellant had beaten the deceased.

Though Dr. Jaya Prakash Prathan (PW/10) examined the

deceased after her death, but as per report of this witness he did

not find any mark of injury, therefore, version of prosecution

witnesses is not supported by the version of medical evidence.

9. All the witnesses appear to be hearsay. In Kalyan Kumar

Gogoi vs. Ashutosh Agnihotri reported in (2011) 2 SCC 532,

Hon’ble the Supreme Court has held as under:

“(a) the person giving such evidence
does not feel any responsibility. The law
requires all evidence to be given under
personal responsibility, i.e., every witness
must give his testimony, under such
circumstance, as expose him to all the
penalties of falsehood. If the person giving
hearsay evidence is cornered, he has a line of
escape by saying “I do not know, but so and
so told me”,
5

(b) truth is diluted and diminished with
each repetition and

(c) if permitted, gives ample scope for
playing fraud by saying “someone told me
that………..”. It would be attaching importance
to false rumour flying from one foul lip to
another. Thus statement of witnesses based
on information received from others is
inadmissible.”

10. When second hand evidence is inadmissible then it is

difficult to hold that any physical or mental harassment was

done by the appellant.

11. In order to hold a person guilty under Section 306 of the

IPC, it is necessary that the case should fall within the ambit of

Section 107 of the IPC, which should comprise :

(i) instigating a person to commit an offence.

(ii) engaging in a conspiracy to commit an
offence

(iii) intentionally aiding a person to commit an
offence.

Therefore, a person said to have abetted, doing of a thing

when he or she instigates any person to do so with any other

means of abetment besides instigating are conspiracy and

intentionally aid the commission and it is sometime more than

co-operation.

12 In the present case, though prosecutrix informed about

beating by the appellant, but the same is not substantiated by the
6

medical evidence. The witnesses cited by the prosecution are

not the eye witnesses, but they are stating before the trial court

what is informed to them by the deceased or family members of

the deceased. In absence of the evidence of the deceased,

version of other witnesses is treated to be hearsay evidence

which has been held inadmissible in Kalyan Kumar Gogoi

(supra).

13. Looking to the inadmissible evidence, it is not established

that the deceased was beaten by the appellant. Charge under

Section 306 of the IPC is not established, therefore, conviction of

the appellant under Section 306 of IPC is not sustainable.

14. Consequently, the appeal is allowed. Judgment of

conviction and order of sentence passed by the trial Court is set

aside. The appellant is acquitted of the charge under Section

306 IPC. The appellant is reported to be on bail. His bail bonds

shall remain operative for a further period of six months from

today in terms of Section 437-A of CrPC.

Sd/-

(Ram Prasanna Sharma)
JUDGE
Raju

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