Ishwari Gupta @ Kallu vs State Of Chhattisgarh

Ram Prasanna Sharma, J

This appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 against judgment dated 02.07.2011 passed by Third

Additional Sessions Judge, Raipur (C.G.) in Session Trial No. 230/2010, wherein the said court convicted the appellant for commission of offence

under Section 306 of IPC and sentenced to R.I. for 7 years and fine of Rs. 1000/- with further default stipulations.

In the present case, name of deceased is Sarita Gupta, who died on account of burn injuries on 24.06.2009 in house of the appellant at village-

Kharora, District-Raipur (C.G.). To substantiate the charge, the prosecution examined as many as 10 witnesses. Sharad Kumar Sahu (PW-1) is

neighbour of the deceased and as per version of this witness, the deceased told her just after the incident that she sustained burn injuries on account of

accident and it is sustained by burn of stove. This witness has not deposed anything against the appellant regarding his instigation or intentionally aiding

to her to commit suicide by the appellant. If version of this witness is taken as it is, the case is not of suicide, but it is a case of accident. No other

person was examined as to what was really happened before the incident.

Raju Gupta (PW-2) is father of the deceased who is resident of Bhilai not resident of place of incident. As per version of this witness, it is the

appellant who caused burn injuries to the deceased by pouring kerosene, but that is not version of the prosecution and this witness has stated out of

imagination because he was not present at the place of incident and he was not known as to what was really happened in the house of the appellant.

From his cross-examination, it is clear that there was no dispute between the appellant and the deceased and there was no demand of dowry with

relation to marriage.

Kiran Gupta (PW-3) is mother of the deceased who is also resident of Durg and per version of this witness, deceased called her on telephonic and

informed that appellant is harassing her, but no call details have been produced before the trial court to establish that both have made telephonic

conversation on the date of incident. Version of this witness is also based on information given by the deceased and in that way, this witness is

completely hearsay witness. In the matter of 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"",

(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.

Pawan Gupta (PW-4) is also hearsay witness, whom incident was informed by his mother. Rest of the witnesses have assisted during investigation

after registration of FIR. In order to hold the 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.

As has been held by Hon'ble the Supreme Court in the matter of Gangula Mohan Reddy Vs. State of Andhra Pradesh reported in 2010 (1) SCC

750, the abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. Without a positive act on the part

of accused to instigate or aid in committing suicide, conviction can not be sustained. The Hon'ble Supreme Court has further held that in order to

convict a person U/s.306, there has to be a clear mens-rea to commit offence. It also requires an active act or direct act which leads deceased to

commit suicide seeing no option and this act must have been intended to push deceased into such a position that he commits suicide.

In the present case, evidence adduced by the prosecution is either hearsay or it is based on imagination and therefore, it is not clear that any

instigation or intentionally aiding is done by the appellant. Mens rea on the part of the appellant is lacking which requires direct act and active act

which led the deceased to commit suicide. Some bitter experience during routine married life is natural and that is not sufficient to hold that since long

back of the incident, there was quarrel between the parties. It is a case of instigation as there is no live link between the act of the appellant and the

act of the deceased. Finding of the trial Court is not sustainable looking to the entire evidence on record.

Accordingly, the appeal is allowed. Conviction and sentence passed by the trial court is set aside. The appellant is acquitted of the charge under

Section 306 of IPC. The appellant is reported to be in jail. He be set at liberty forthwith if not required in any other case. The fine amount, if paid, shall

be refunded to the appellant.