1. Appellants have preferred this appeal challenging impugned judgment of conviction dated 19.07.2000, whereby appellants have been convicted for
offence defined under Section 306 of IPC and have sentenced to undergo RI for 8 years and to pay fine of Rs.1,000/- each, in default of payment of
fine, additional RI of six months.
2. Facts relevant for disposal of this appeal are that Shiv Kumari (since deceased) was married to appellant-Ramavatar and residing in her
matrimonial home at village-Ghothiya, Police Station-Kawardha. On 01.04.1999, at about 6 pm, Shiv Kumari suffered burn injuries. She was taken to
the Hospital. During the course of treatment, her statement was recorded by the Executive Magistrate. She died on 06.04.1999 at about 2 pm. Based
upon merg intimation, FIR was registered on 10.04.1999 by the Investigating Officer (PW8). After completion of investigation, Police submitted
charge-sheet before the Court of competent jurisdiction against appellants for commission of offence under Section 306 of IPC and they were put to
trial.
3. During trial, prosecution examined as many as 9 witnesses, such as PW1 Dhanesh Das, PW2 Chandrahas, PW3 Dr KK Sharma, PW4 Anjoriya
Bai PW5 Maniram, PW6 Sawaldas, PW7 Bhuneshwar, PW8 SSS Bhadoriya and PW9HC Nag; and exhibited 22 documents, ExP1 & P7Spot Map,
ExP2 Information to Police Station by Doctor, ExP3 MLC report of Shiv Kumari, ExP4 Medical Case Report, ExP5 Application for medical
examination of victim, ExP6 Application for recording dying declaration of victim, ExP8 & 18 Seizure Memo, ExP9 & 10 FIR, ExP11 Merg intimation,
ExP12 to P16 Arrest memo, Ex.P17 Request for FSL report, Ex.P19 Agreement, Ex.P20 Postmortem report, and Ex.P22 Dying declaration to prove
charges levelled against appellants. After conclusion of trial, learned trial Court, discussing evidence available on record, held that prosecution proved
charges levelled against appellants and convicted them for commission of offence and sentenced as mentioned above.
4. Ms Renu Kochar, learned counsel for the appellants would submit that learned trial Court erred in convicting appellants under Section 306 of the
IPC, without there being any proof of ingredients under Section 107 of the IPC. She submits that to bring home the guilt under Section 306 of the IPC,
prosecution is required to prove that appellants/accused instigated the deceased; the persons engaged in conspiracy for doing of that thing, intentionally
aided by any act or illegal omission, the doing of that thing. None of aforementioned three ingredients is present in the facts of case. She submits that
witnesses examined by prosecution before the trial Court have not stated in specific terms that appellants have instigated deceased to commit suicide
or they have intentionally aided by means of any act to do the said act. But from the evidence it appears that deceased was not having cordial
relationship with her in-laws as she was having suspicion upon character of her husband. She also pointed out that witness-1 and 2, Ghanesh Das and
Chandrahas, who are residents of same village where deceased was residing, have clearly stated that there was some quarrel of deceased with her
husband on account of suspicion raised by her on the character of her husband. No admissible piece of evidence is brought on record by prosecution
that appellant Ramavatar, husband of deceased, is having illicit relationship with any other woman, but bald allegations have been levelled against
appellant-Ramavatar. Referring to evidence of PW4 Anjoriya Bai, mother of deceased, she would argue that allegations levelled against appellant of
ill-treatment and harassment is false because mother of deceased in her evidence before the trial Court has stated that her daughter is residing
properly in her matrimonial home. In her evidence, this witness further stated that whenever deceased used to visit her parental home, she informed
her that she is residing properly in her matrimonial home. Allegation levelled by this witness before the trial Court that her daughter was ill-treated and
harassed by in-laws at matrimonial home is an after thought. Other witness also not stated that appellant-Ramavatar is having some illicit relationship
with any other woman. Consideration of trial Court that Ramavatar is having illicit relationship with sister-in-law of deceased, is perverse to the
evidence available on record. She further contended that dispute, if any, between deceased and her in-laws, as stated by witnesses, is on account of
some trivial household work and the suspicion raised by deceased herself on her husband. Appellants have not ill-treated or harassed deceased at any
point of time. She also submits that PW8 Investigating Officer, in his evidence stated that one other dying declaration of deceased was recorded by
the Executive Magistrate, and that was not produced before the Court. Evidence of PW8 shows that dying declaration which might be in favour of
appellants was not placed before the Court for consideration. She also contended that dying declaration Ex.P22 stated to be recorded by the Executive
Magistrate does not mention date and time of recording statement, which, in the facts of case, is important because deceased suffered 75% burn
injuries on her person. According to evidence of doctor KK Sharma, who examined the deceased initially, condition of deceased was serious. She also
pointed out that in the dying declaration, there is no averment regarding reason of quarrel of deceased with her in-laws, and there is clear mention that
at the time of incident, her husband was not present in the house. She submits that as the ingredients of Section 107 IPC are not present in the case,
learned trial Court erred in convicting appellants under Section 306 of IPC. In support of her contention, she relied upon judgments passed by
Hon’ble Supreme Court in cases of Mahendra Singh Vs State of Madhya Pradesh reported in (1995) Supp3 SCC 731; Sanju @ Sanjay Singh
Sengar, Vs State of Madhya Pradesh reported in AIR 2002 SC 1998; judgments passed by this Court in cases of Gautam Chatterji and another Vs
State of MP reported in 2012(4) CGLJ 538; and judgment dated 06.12.2018 in Ghanshyam Sahu Vs State of Chhattisgarh.
5. Shri Himanshu Sharma, learned State counsel, opposing submissions of learned counsel for the appellants, would submit that learned trial Court
appreciating evidence available on record, has rightly came to conclusion that prosecution proved charges under Section 306 of IPC. In support of his
contention, he read over paras 24 to 27 of the judgment and evidence of PW5, PW6 and PW7. He submits that learned trial Court on appreciation of
evidence, came to conclusion that appellant-Ramavatar (husband of deceased) is having illicit relationship with another woman. Finding of conviction
recorded by the trial Court is on appreciation of evidence which does not call for any interference. Referring to Ex.P19, agreement between deceased
and Ramavatar, he submits that learned trial Court has also taken note of contents of this agreement, wherein, appellants have agreed to keep the
deceased properly, and they will not harass her.
6. I have heard learned counsel for the parties and also perused the records of Court below.
7. Appellant-1 Ramavatar is husband of deceased; appellant-4 Kunti Bai is sister-in-law of deceased; appellant-5 Gita Bai is mother-in-law of
deceased. Appellant-1 got married with deceased- Shiv Kumari about five years prior to the date of incident. She committed suicide by setting herself
on fire on 01.04.1999. In FIR Ex.P9 allegations are that appellants ill-treated deceased; they were not giving food; and asked her to leave her
matrimonial home; which was the cause for committing suicide by her. In document Ex.D1, D2 and D3, statement of Anjoriya Bai, Maniram and
Sawaldas, recorded under Section 161 of CrPC, allegations are that appellants engaged the deceased in labourer work and when she refused to do so,
she was assaulted, not provided with food, clothes, footwear and there was illicit relationship of appellant-1 with his sister-in-law (Bhabhi). Prior to the
date of incident, they received massage from the deceased that her inlaws were forcing her to leave her matrimonial home and when Sawal Das,
father of deceased went there, they asked for money. Statement recorded under Section 161 of CrPC of Bhuneshwar (brother of deceased) is
marked as Ex.P4, wherein allegation is of ill-treatment, harassment for want of dowry. On 31.03.1999 he went to matrimonial home of deceased and
saw some dispute/ quarrel in the house was going on.
8. Prosecution examined Dhanesh Das as PW1. In his evidence, he stated that deceased was residing in her matrimonial home properly; she has not
made any complaint to him at any point of time. Prior to 3-4 months of incident, he saw appellant-1 and deceased in the Court and upon asking he was
informed that due to quarrel, they wanted chod chutti (divorce). Upon advice given by him, they agreed for compromise and deed was written. In
cross-examination, this witness admitted that deceased was suspecting upon character of her husband (appellant-1), which is the cause of dispute
between them. Chandrahas was examined as PW2, who also made similar statement that deceased was suspecting upon character of her husband,
which was cause of their dispute. PW4 Anjoriya Bai, mother of deceased in her evidence stated that after marriage, deceased used to come to her
parents’ house and during her stay, she informed that she was residing properly in her matrimonial house. She did not inform her mother of any
problem in her matrimonial house. Witness further stated that when she met deceased during her treatment in Hospital at Raipur after the incident,
deceased informed that all persons set her on fire (all accused persons). In her cross-examination also, she made statement that her daughter
informed her that appellants (husband, mother-in-law, father-in-law, and sister-in-law) set her on fire. She also admitted that her daughter used to
suspect upon character of her husband (appellant-1) and for that reason only, there was quarrel between them. PW5 Maniram in his evidence made
allegation that upon asking, deceased informed him that her in-laws used to assault, and harass her stating that she has not brought proper dowry and
asked her to leave her matrimonial home. PW6 Sawaldas (father of deceased) in his evidence stated that in-laws of deceased used to say that she
brought less dowry. She was not being given proper food, and she was assaulted by them. When Sawaldas went to matrimonial home of deceased
one day prior to the incident, her in-laws made demand of Rs.20,000/- for sending his daughter with him. Bhuneshwar, brother of deceased was
examined as PW7. He also made statement making allegation that his sister was asked to bring money from her parents’ house and for that
reason, her in-laws used to quarrel with her. He further stated that one Budhaari informed him that her sister was not being provided with proper food
and thereafter, he went to meet his sister. He also stated that when he met her, he gave advice to his brother-in-law Ramavatar to keep his sister
properly, then, he stated that deceased does not listen to words of her in-laws. He was threatened by in-laws of deceased of his life. One agreement
was written between the parties about 1-2 months prior to the incident, wherein appellants were advised to reside properly with deceased and he was
informed by deceased that all accused persons set her on fire.
9. Dying declaration of deceased was recorded by Police as Ex.P22 dated 06.01.1999. In dying declaration, deceased has not made any allegation of
demand of dowry, stated that no one has set her on fire, she herself by pouring kerosene oil, committed suicide. Her husband used to follow the words
of his parents. On the date of incident, she had a quarrel with her father-in-law and mother-in-law. In dying declaration, there is no allegation of any
demand of dowry or that in-laws/accused persons set her on fire. Dying declaration was recorded by the Executive Magistrate and the Doctor in his
statement /evidence stated that before recording dying declaration, deceased to be in fit condition and gave certificate vide Ex.P4.
10. In view of aforementioned evidence available on record, particularly, dying declaration of deceased, evidence of PW4 Anjoriya Bai, mother of
deceased; and statement made by other witnesses that appellants/accused persons used to harass her for not bringing proper dowry and making
demand of dowry, and further setting deceased on fire is contradictory. Deceased being a girl, might be having closer relation with her mother, than
other relatives; PW4 Anjoriya Bai had not made any statement that when deceased used to visit her parents’ house, she intimated about any
harassment ill-treatment or assault upon her. If the mother of married girl has not made any allegation of ill-treatment, harassment or assault, then the
evidence of other relatives like brother and father or uncle making all allegations of ill-treatment, assault or harassment and demand of dowry becomes
suspicious.
11. Evidence with respect to ill-treatment, harassment for demand of dowry, therefore, in the eyes of Court, is not acceptable because not proved by
prosecution beyond reasonable doubt. The quarrel/dispute as stated by the witnesses and deceased in her dying declaration of asking her to leave her
matrimonial home, may be on account of her behaviour of raising suspicion upon her husband all the time, of having illicit relationship with his sister-in-
law (bhabhi), which is also stated by independent witnesses PW1 and PW2, residents of same village. PW4 mother of deceased also admitted in her
evidence that her daughter was having suspicion upon her husband of having illicit relationship and this was the cause of dispute between them.
Evidence of PW6 Sawaldas, PW7 Bhuneshwar, father and brother of deceased respectively, that deceased told them of setting her on fire by all
accused persons falsifies by dying declaration of deceased recorded on 01.04.1999, wherein she stated that there was quarrel with her mother-in-law
and father-in-law and her husband Ramavatar was not there in house, she herself pour kerosene and set herself on fire.
12. Evidence of PW1, PW2 and PW4 would show that quarrel between deceased and appellant-1 (husband) was on account of suspicion in the mind
of deceased of having illicit relationship of her husband, which was not proved by prosecution by placing admissible evidence on record.
13. For holding any person guilty for commission of offence under Section 306 IPC, it is required for the prosecution to prove that accused person
abeted deceased to commit suicide. Abetment is defined under Section 107 of IPC, which reads as under :
Section 107. Abetment of a thing.â€"A person abets the doing of a thing, whoâ€" Firstly â€" Instigates any person to do that thing; or
Secondly â€"Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place
in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly â€" Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.â€"A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z,
wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2.â€"Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act,
and thereby facilitate the commission thereof, is said to aid the doing of that act.
14. From the evidence brought on record by prosecution there is no material to prove that appellants herein instigated the deceased in any manner or
have conspired for doing of that thing or intentionally aided by any act or illegal omission. Just before the incident as stated by deceased in her dying
declaration, that she was having quarrel with her father-in-law and mother-in-law, but no specific reason has been stated by her. There is no allegation
of demand of dowry, except allegation that she was asked to leave her matrimonial home, which may be on account of her behaviour of raising
suspicion upon character of her husband and quarreling on that issue, as admitted by PW4 mother of deceased.
15. Hon’ble Supreme Court in case of Mahendra Singh and another Gayatribai Vs State of MP reported in 1995 supp (3) SCC 731, wherein there
was allegation against husband of having illicit relationship with sister-in-law of deceased, who committed suicide and held thus:
“2. Learned Counsel for the appellant rightly submitted that but for the statement of the deceased there is no other pointed evidence from which it
could be inferred that there was any abetment so as to bring the acts of the appellants within Section 306 I.P.C. under which the appellants have been
punished. The dying declaration, per se, could not involve the appellants in offence punishable under Section 306 I.P.C., because it provides for
abetment of suicide. Whoever abets the commission of suicide, and if any person commits suicide due to that reason, he shall be punished with
imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Abetment has been defined in Section 107
I.P.C. to mean that a person abets the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other
person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to
the doing of that thing, or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Neither of the ingredients of abetment are
attracted on the statement of the deceased. The conviction of the appellants under Section 306 I.P.C. merely on the allegation of harassment to the
deceased is not sustainable. The appellants deserve to be acquitted of the charge.â€
16. In case of Amlendu Pal @ Jhantu Vs State of West Bengal reported in (2010) 1 SCC 707, Hon’ble Supreme Court has held thus:
“17. We have already considered a number of decisions of this Court on the aforesaid aspect and having done so we revert back to the factual
position of the present case. The prosecution has specifically alleged that on 26.09.1991, the day prior to the date of commission of suicide by the
deceased, the deceased was tortured by the appellant, Anita and the other accused persons present in the house of the appellant, as a result of which
the deceased committed suicide on the next day. On a perusal of the record of the present case, we find that both the trial Court as well as the High
Court have disbelieved the said incident as, according to them, the statement of the witnesses to establish the said fact are not reliable and
trustworthy. Those findings recorded by the trial Court and the High Court have not been challenged before us.â€
17. In KV Prakash Babu Vs State of Karnataka reported in (2016) 4 Crimes 184 (SC) Hon’ble Supreme Court held that extra marital relationship,
per se or as such, would not come within the ambit of Section 498A of IPC. It would be an illegal or immoral act, but other ingredients are to be
brought home, so that it would constitute a criminal offence. To explicate, solely because husband is involved in an extra marital relationship and there
is suspicion in the mind of wife, that cannot be regarded as mental cruelty, which would attract mental cruelty for satisfying ingredients of 306 of IPC.
18. In case of Kishori Lal Vs State of MP reported in (2007) 10 SCC 797, Hon’ble Supreme Court while considering the act of abetment to
commit suicide and for convicting any person under Section 306 of IPC, prosecution is required to prove that there is abetment of doing anything or
committing suicide.
19. In case of Randhir Singh and another Vs State of Punjab reported in (2004) 13 SCC 129, Hon’ble Supreme Court has held that abetment
involves process of instigating a person or intentionally aiding that person in doing of a thing. In case of conspiracy also, it would involve that mental
process of entering into conspiracy for doing of that thing.
20. In the case at hand, prosecution failed to prove the ingredients of Section 107 of IPC by producing clinching and admissible piece of evidence on
record. Prosecution failed to prove the charges against appellants beyond reasonable doubt. The finding recorded by learned Court below that
appellants committed cruelty on account of appellant-1 having illicit relationship and asking her to leave her matrimonial house and ill treated her to be
abetment is not sustainable.
21. In view of above discussion, judgment of conviction passed by trial Court convicting the appellants under Section 306 of IPC is set aside.
Appellants are acquitted from charges levelled against them under Section 306 of IPC. Appellants are on bail. Their bail bonds are discharged.
22. In the result, appeal is allowed.
