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Sant Ram vs The State Of C.G. 84 Wa/230/2017 … on 29 November, 2018

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved on 25-10-2018
Delivered on 29-11-2018
CRIMINAL APPEAL No. 196/2001
(Arising out of judgment of conviction and order of sentence dated 15-
2-2001 passed by the Additional Sessions Judge, Balod Distt. Durg,
CG in ST No. 279/2000 )

Sant Ram son of Banwali Ram aged 29 years, R/o village Parsada, PS
Balod, Distt. Durg (CG)

—-Appellant

-Versus-

State of Chhattisgarh through P.S Balod, Distt. Durg (CG)

—-Respondent

For appellant : Mr. Adil Minhaj, Adv.

For State : Mr. S. K. Mishra, PL.

Hon’ble Shri Sharad Kumar Gupta, Judge
CAV JUDGMENT

1. In this criminal appeal the challenge levied is to the judgment of

conviction and order of sentence dated 15-2-2001 passed by the

Additional Sessions Judge, Balod Distt. Durg, CG in ST No. 279/2000

whereby and whereunder he convicted the appellant for offence

punishable under Section 306, of the Indian Penal Code (in brevity

‘IPC’) and sentenced to undergo RI for 3 years, and to pay a fine of Rs.

500/-, in default of payment of fine, to further undergo RI for 1 month.

2. This is admitted by the appellant that he was married with his

wife- deceased Durga Bai two years prior to her death, 5 – 6 months

prior to 9-2-2001, deceased Durga Bai died.

3. In brief the prosecution story is that deceased Durga Bai was

residing in village Parsada. On 12-5-2000, P.W. 3 Jeevrakhan came to
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know that deceased Durga Bai has died due to consuming poisonous

substance, she herself stated appellant that she consumed some

poisonous substance. P.W. 3 Jeevrakhan intimated police station Balod

where merg intimation was lodged. After the inquiry, on 11-6-2000 an

FIR was lodged in police station Balod against the appellant. After

completing the investigation a charge sheet was filed against him. Trial

Court framed charge against him under Section 306 of the IPC. To

bring home the charge against him, prosecution examined as many as

12 witnesses. Appellant did not examine any witness in his defence.

After conclusion of the trial, trial Court convicted and sentenced him as

aforesaid.

4. Hence this appeal.

5. Mr. Adil Minhaj, counsel for the appellant strenuously argued that

trial Court has not appreciated the evidence in its proper perspective.

Prosecution failed to prove that death of the deceased was suicidal in

nature which is essential ingredient for the offence punishable under

Section 306, IPC. There is no cogent evidence regarding cruelty, thus

no presumption can be drawn under Section 113-A of the Indian

Evidence Act. Thus, aforesaid conviction and sentence are bad in the

eyes of law and not sustainable. Thus, aforesaid conviction and

sentence may be set aside and the appellant may be acquitted of the

aforesaid charge.

6. Shri S.K. Mishra, Panel Lawyer for the State submitted that

aforesaid conviction and sentence are based on clinching evidence led

by the prosecution. He supported the aforesaid conviction and sentence

and submitted that no interference is called for by this Court.

7. It would be pertinent in this case to extract the provision of
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Section 113-A of the Indian Evidence Act which reads as under :-

“[113A. Presumption as to abetment of suicide by a married
woman

When the question is whether the commission of suicide by a
woman had been abetted by her husband or any relative of her
husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to
cruelty, the Court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by
her husband or by such relative of her husband.

Explanation.-For the purposes of this section,”cruelty” shall have
the same meaning as in section 498A of the Indian Penal Code
(45 of 1860)].

8. Counsel for the appellant also placed reliance on judgment of

Hon’ble Supreme Court in Satvir Singh and others -v- State of

Punjab and another (AIR 2001 SC 2828) wherein Hon’ble Supreme

court has laid down the following judicial precedent :-

“Section 306, IPC renders person who abets commission of
suicide punishable for which condition precedent is suicide
should necessarily have been committed.”

9. Counsel for the appellant Shri Adil Minhaj placed reliance on

judgment of Hon’ble Supreme Court in Mangat Ram -v- State of

Haryana (AIR 2014 SC 1782) wherein Hon’ble Supreme court has laid

down the following judicial precedent :-

“No evidence showing whether the deceased had committed
suicide or it was an accidental death possibility of an accidental
death since she was suffering from epilepsy cannot be ruled out.
Offence under Section 498 and 306 not established against the
accused.”

10. Counsel for the appellant further placed reliance on judgment of

Division Bench of Hon’ble Himanchal Pradesh High Court in State of
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Himachal Pradesh -v- Mohar Singh and others [2017 CRI. LJ 3077]

where following judicial precedent has been laid down :-

“Death by strangulation- only vague assertions against accused-

-no cogent evidence disclosing that accused subjected deceased
with cruelty in respect of demand of dowry. Nothing on record to
establish that accused restricted deceased from moving
anywhere or using telephone etc. accused not instigating
deceased in any manner to commit suicide- No nexus between
conduct of the accused and suicide committed by deceased.”

11. As per the post mortem report Ex. P-14, P.W. 8 Dr. Smt. P.

Baghel and Dr. G.D. Baghel had conducted the autopsy, they opined

that death of the deceased was asphyxia due to suspected poisoning.

12. P.W. 8 Dr. Smt. P. Baghel says in para 7 during her cross-

examination that she could not say whether cause of death is

poisoning.

13. There is no such evidence on record on strength of which it can

be said that Ex. P-14 is not believable. Thus this Court believes on Ex.

P-14.

14. Looking to the aforesaid facts and circumstances of the case,

judicial precedents laid down by Hon’ble Supreme Court in Satvir

Singh (supra) and Mangatram (supra), this Court finds that

commission of suicide is one of the essential ingredients of the offence

of abetment to commit suicide which is punishable under Section 306,

IPC, which prosecution failed to prove beyond reasonable doubt in the

case in hand.

15. P.W. 11 Hajarilal Sahu who is the father of the deceased says in

para 2, 3 and 6 of his statement given on oath that one month after

the marriage deceased had come and told him that appellant used to
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harass her on account of bringing insufficient dowry, there is a loan due

account of marriage, she would come along with Rs. 10,000/-. He gave

Rs. 10,000/- to his daughter and sent her to her in-laws’ house. Two

months thereafter, when he himself went to her in-law’s house, she told

him that appellant harassed her on doubt that she has illicit relation with

some Ramdas and demanding Rs. 10,000/-. One month thereafter she

again came to his house and told that appellant is making allegation

upon her that she has illicit relation with Ramdas. Five-six days prior to

the death of the deceased he had again gone to her in-laws’ house

where she had again told that appellant is harassing her on account of

demand of dowry and states that she has illicit relation with Ramdas.

16. In letter Ex. P-10 it has been mentioned that appellant has

stopped talking with prosecutrix. He is making quarrel with her. He is

making so many allegations upon her.

17. In the greeting Ex. P-11 it has been mentioned that ” larjke rqeus eqs

dHkh Hkh leus dh dksf’k’k ugha dh ges’kk rqeus eqs vius ls vyx djuk pkgk dHkh

viuk ugha lekA eSa rqEgsa ges’kk ;kn vkmaxh exj rqe eqs Nw Hkh u ikvksxs “.

18. In the letter Ex. P-8 it has been mentioned that those people

have made her life a living hail. Just above to it, it has been mentioned

that her younger Jeth, younger Jethani, eldest Jethani, have quarreled

a lot with her. Thus, it is manifest from first part of the aforesaid

assertion that, later part is concerned with younger Jeth, younger

Jethani, eldest jethani. Hence prosecution does not get any help to

fasten the appellant with aforesaid charge from Ex. P-8.

19. In the letters Ex. P-6, P-8, P-10, Ex. P-11, letter Ex. P-17, it has

not been mentioned that appellant used to harass the deceased making

the allegation that she has illicit relation with Ramdas, and also on
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account of bringing insufficient dowry, demand of cash Rs. 10,000/- as

dowry.

20. Deceased, her parents, have not lodged any report in any police

station as soon as alleged incidents. They have also not called any

meeting of their community regarding alleged said facts. For not doing

so, prosecution failed to give any plausible explanation.

21. P.W. 11 Hajarilal Sahu says in para 16 and 17 during his cross-

examination that it is true that on the same day when deceased died,

eldest brother of the appellant had sent a jeep to bring her family

members, his family members reached in her in-laws’ house. He had

not told to his any relative that appellant used to harass her, on 10 th day

ceremony, he and his relatives had gone to her in-laws’ house, he had

not made any complaint against the appellant before the people present

there. P.W. 6 Ramprasad who is the paternal grand father of the

deceased says in para 2 and 3 during his cross-examination that he, his

two brothers, were present in her in-laws’ house before cremation and

they had not made any complaint against the appellant to the police.

22. There are omissions in police statement of P.W. 11 Hajarilal Sahu

i.e. Ex. D-1 that, when one month after the marriage deceased had

come, she told him that appellant used to harass her on account of

bringing insufficient dowry, there is loan due on account of marriage,

she would come along with Rs. 10,000/-. He gave Rs. 10,000/- to his

daughter and sent her to her in-law’s house, two months thereafter,

when he himself went to her in-laws house, she had told him that

appellant harassing her making doubt that she has illicit relation with

some Ramdas and demanding Rs. 10,000/-. One month thereafter she

again came to his house and told that appellant is making allegation
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upon her that she has illicit relation with Ramdas. Five-six days prior to

the death of the deceased he had again gone to her in-laws’ house she

had again told that appellant is harassing her on account of demand of

dowry and states that she has illicit relation with Ramdas. These

omissions are material, important and adversely affect the credibility of

aforesaid statements of para 2, 3 and 6 of P.W. 11 Hajarilal Sahu.

23. P.W. 1 Jethuram, P.W. 2 Anjor Singh say in para 3 and 4 during

their cross-examination that deceased and appellant had good relation,

they had not seen any quarrel happening between them. P.W. 3

Jeevrakhan says in para 2 during his cross-examination that they had

good relation.

24. Looking to the above-mentioned facts and circumstances, this

Court finds that aforesaid statements of para 2, 3 and 6 of P.W. 11

Hajarilal Sahu do not appear simple, natural and normal. Thus, this

Court disbelieves on aforesaid statements of para 2, 3 and 6 of P.W. 11

Hajarilal Sahu.

25. Counsel for the appellant further placed reliance on judgment of

Hon’ble Sikkim High Court in Thutob Namgyal Bhutia -v- State of

Sikkim (2017 CRI.L.J. 3604) wherein following judicial precedent has

been laid down :-

“Evidence of prosecution only indicating frequent quarrel between
spouses verbal duel between spouses cannot be equated with
cruelty meted out by husband only, as wife also share equal
responsibility,…..”

26. Hon’ble Supreme Court in Mangat Ram (supra) has laid down

the following judicial precedent :-

“deceased – wife died of burn injury after few months of marriage
at her matrimonial home. Letters written by the deceased not
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mentioning about any harassment or dowry demand by accused
but stating that she was unhappy and upset over behavior of the
accused having left her in company of his parents. Said letters
only expose that the deceased was extremely home sick and
wanted company of her maternal grand father.”

27. Looking to the judicial precedent laid down by Hon’ble Sikkim

High Court in Thutob Namgyal Bhutia (supra), by Hon’ble Supreme

Court in Mangatram (supra), this Court finds that aforesaid assertions

made in Ex. P-10 and Ex. P-11 cannot be equated with cruelty. In other

words on the basis of aforesaid assertions of Ex. P-10 and Ex. P-11, it

cannot be said that appellant had subjected deceased with cruelty.

28. After the appreciation of the evidence this Court finds that

prosecution failed to prove beyond reasonable doubt that allegedly

appellant had treated deceased with cruelty.

29. Looking to the above mentioned facts and circumstances of the

case, this Court finds that prosecution does not get any help from the

aforesaid provision of Section 113-A of the Indian Evidence Act and no

presumption can be drawn in the case in hand under the provision of

Section 113-A of the Indian Evidence Act.

30. After the appreciation of the evidence discussed herebefore and

looking to the judicial precedent laid down by Hon’ble Supreme Court in

Mangatram (supra), this Court finds that prosecution miserably failed to

prove beyond reasonable doubt the charge punishable under Section

306 of the IPC. Thus, the trial Court has committed illegality in

convicting and sentencing the appellant as aforesaid.

31. Thus, the appeal is allowed. The impugned judgment of

conviction and order of sentence are set aside. The appellant is

acquitted of the charge punishable under section 306 of the IPC.
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32. The appellant is reported to be on bail. His bail and bonds are

cancelled subject to the provisions of Section 437-A of the Cr.P.C.

33. The fine amount if deposited by the appellant be returned to him

after expiry of the prescribed period for further legal action available to

parties.

Sd/-

(Sharad Kumar Gupta)
Judge

Pathak/-

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