Kailash vs State of M.P.

S.S. Dwivedi, J.

The appellant has preferred this appeal aggrieved by the impugned judgment of conviction and sentence dated 10.4.2000 passed by Eighth Additional Sessions Judge, Indore in Sessions Trial No. 288/99, whereby held the appellant/accused guilty for the offence punishable u/s 306 of IPC and sentenced him to five years RI with a fine of Rs. 5,000/-; in default of payment of fine, further ordered to suffer imprisonment for six months.

Brief facts of the case are, the appellant/accused is the brother-in-law (Jeth) of the deceased-Pinkibai @ Sadhana who committed suicide within seven years of her marriage with the brother of the present appellant by consuming some poisonous substances. The matter has been reported to the police station Chhatripura, district Indore, on which basis police had registered Inquest report, the Investigating Officer reached on the spot. Inquest panchanama had been prepared and dead body of the deceased-Pinkibai was sent to M.Y. Hospital, Indore for post-mortem examination. During investigation, a letter alleged to be written by the deceased before her death had been seized (Ex, P/16) which is found to be suicidal note and it is found that, before her death the deceased was being harassed by the present appellant/accused who was managing the shop belonging to the husband of the deceased and not paying any rent as agreed in between them and due to which deceased Pinkibai had committed suicide, on which basis, the case U/ Sec. 306 of IPC had been registered against the appellant/accused and after due investigation, the charge sheet had been filed.

The appellant/accused abjured the guilt and his defense is of false implication in this case. The learned trial Court after due appreciation of the entire evidence on record by impugned judgment, held the appellant guilty for the offence punishable u/s 306 of IPC and sentenced him as stated herein above; aggrieved by which the appellant has preferred this appeal.

Having heard the learned counsel for the appellant Shri Anand Soni as well as Dy. Government Advocate for the State Shri Chauhan and perused the record.

It is submitted by learned counsel for the appellant that the sole base for conviction of the appellant found by the trial Court is suicidal note alleged to be written by the deceased which is Ex. P/16, but on perusal of the aforesaid suicidal note is it not proved that immediately before her death she was being harassed by the present appellant as her brother-in-law (Jet). On perusal of the aforesaid alleged suicidal note, it is apparent that only allegation against the appellant is that he is not paying the agreed rent of the shop due to which, she was unable to maintain herself and her two minor children due to this, she committed suicide. If, the entire suicidal note as it is found to be true then also by not paying agreed rent to the deceased itself does not constitute any instigation to the commission of suicide by the deceased-Pinkibai and no ingredients for instigation as defined U/Sec. 107 of the IPC is proved at all against the appellant,

The other witnesses examined by the prosecution are the near relatives of the deceased namely Rakesh Ratore (PW-3) Brother of the deceased, Sulekabai (PW-4) Mother of the deceased, Shyambai (PW-5) Aunt of the deceased, Ram Singh (PW-6) Uncle of the deceased had also only stated that the appellant/accused is not paying rent to the deceased-Pinkibai due to which she was unable to maintain herself and her two children, therefore she committed suicide. There is no specific allegation by these witnesses against the appellant that the appellant/accused had harassed or instigated the deceased for commission of the suicide, therefore on the basis of the statement of these witnesses also, no offence punishable U/Sec. 306 of IPC is proved by the prosecution beyond reasonable doubt and the trial Court has wrongly held the appellant/accused guilty for the offence U/Sec. 306 of IPC, hence, prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court.

In reply, Dy. Government Advocate for the State supported the impugned judgment and submits that the alleged suicidal note (Ex. P/16) is found to be proved and on the basis of this suicidal note itself the instigation for commission of suicide by the deceased-Pinkibai is proved by the prosecution. The learned trial Court has rightly believed the aforesaid document Ex. P/16 and no grounds are available for any interference in the impugned judgment of conviction and sentence passed by the trial Court, hence, prayed for dismissal of the appeal.

To bring home the charge as leveled against the appellant with regard to unnatural death of deceased-Pinkibai is concerned, this fact has not controverted by the defense before this Court. The unnatural death of deceased-Pinkibai has been proved on the basis of the statements of Sulekabai (PW-4), Shyambai (PW-5) and Ram Singh (PW-6) all these witnesses have proved the fact that Pinkibai died due to consume some poisonous substances in this incident. The Inquest panchanama had been prepared by Rajeev Shrivastava-Teshildar (PW-7) which is Ex. P/6. The cause of death of deceased has been proved on the basis of the statement of Dr. Surendra Dubey (PW-12) who performed the post-mortem of the dead body of deceased and opined that due to consumption of some poisonous substance, deceased-Pinkibai died, for verification of this cause, the necessary parts of the Liver (Viscera) has been preserved and handed over to the Constable for its chemical examination for its confirmation; for which prove the report Ex. P/14 itself. Thus, on the basis of the aforesaid evidence, prosecution has proved the fact that in this incident one Pinkibai died due to consume poisonous substances.

Now the question remains for consideration as to whether the appellant/accused has done any act or instigated the deceased for commission of suicide. The prosecution is solely rest upon the written document Ex. P/16 which is alleged to be written by the deceased herself, wherein the only allegation against the appellant/ accused that as agreed, the appellant is not paying the rent of the shop belonging to the deceased herself and her husband. Because of the non-payment of rent she was unable to maintain herself and her minor children. If the entire document Ex. P/16 is found to be true, then non-payment of rent by accused itself does not constitute any cruelty to the deceased for commission of the suicide, on the basis of the presumption U/ Sec. 113A of the 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 or her husband.

It is apparent that for the presumption U/Sec. 113-A of the Evidence Act against the accused, the prosecution ought to prove the fact of cruelty to the deceased by the appellant/accused and cruelty should be as such; as defined U/Sec. 498-A of IPC which reads here as under;

498 A. "Husband or relative of husband of a woman subjecting her to cruelty:- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine".

On perusal of the aforesaid provisions of Sub-Section 113-A of the Evidence Act as well as Section 498-A of IPC, first the prosecution ought to prove the cruelty to the deceased, then only the presumption U/Sec. 113-A of the Evidence Act will arise against the appellant/accused if the married lady died within seven years of her marriage in the suspicious circumstances.

On perusal of the aforesaid alleged suicidal note Ex. P/16 it is not apparent that nothing has been demanded by accused from the deceased; due to which harassment she had committed suicide, therefore, no ingredient of Sub-Section 113-A of the Evidence Act as well as with regard to cruelty as defined U/Sec. 498-A of IPC is proved on the basis of this alleged suicidal, note Ex. P/16.

Similarly, on perusal of the aforesaid suicidal note Ex. P/16 it appears that some abusive words were used by the appellant/accused to the deceased, but such type of abusive words does not itself constitute any abetment of suicide as defined U/Sec. 107 of IPC and for this, reliance can be placed on the decision of the Hon''ble Apex Court reported in Ramesh Kumar Vs. State of Chhattisgarh, held here as under:

A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. 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 for abetting the offence of suicide should be found guilty.

Similarly in other decision of this Court reported in Laxmi Prasad Vishwakarma Vs. State of M.P. [2003 (1) MPWN 34] it is held that the demand of loan by the creditor from the borrower does not itself constitute any abatement or instigation for commission of suicide.

In view of the aforesaid decision of the Apex Court as well as of this Court, on perusal of the alleged suicidal note Ex. P/16 nothing has been proved by the prosecution on which basis this can be inferred that the appellant/ accused has repeatedly harassed the deceased-Pinkibai for commission of the suicide due to which she committed suicide.

The other witnesses examined by the prosecution are Rakesh Ratore (PW-3), Sulekabai (PW-4), Shyambai (PW-5) and Ram Singh (PW-6) who are the near relatives of the deceased only stated before the trial Court that as the appellant/accused-Kailash was not paying the rent of the shop concerned due to which deceased-Pinkibai was not in a position to maintain herself without aforesaid rent, but non-payment of rent by the appellant/accused as discussed herein above itself does not constitute the instigation or abatement of the commission of the suicide, therefore, on the basis of the statement of the aforesaid witnesses also, nothing has been proved against the appellant/ accused.

The remaining witnesses Mahesh (PW-8) who is the witness for seizure of Exs. P/9 and P/10 had also not stated anything against the appellant/ accused, hence, he had been declared hostile by the prosecution, Vishnu (PW-9) panch witness of the Inquest panchanama of Ex. P/6, Ashok Ratore (PW-10) panch witness of seizure memo Exs. P/9 & P/10, Gnanendra Pandey (PW-11) is the Head Constable who registered the Inquest Report Ex. P/13, K.P. Devid (PW-13) Investigating Officer prepared the seizure memos Exs. P/ 9 and P/10 and P/11, Anil Shrivastava (PW-14) who examined the disputed document letter Ex. P/16 which is written by the same person who had written standard writing. R.S.. Chouhan (PW-15) is also the Investigating Officer who recorded the statements of the witnesses.

Thus, on overall re-appreciation of the entire prosecution evidence on record, in my considered opinion, the prosecution has failed to prove the fact that immediately before the unnatural death of Pinkibai, the appellant/ accused has harassed her and due to which abated her for the commission of the suicide. In view of that, the learned trial Court has wrongly held the appellant/accused guilty for the offence U/Sec. 306 of IPC, therefore, the impugned judgment of conviction and sentence is liable to be set aside.

Resultantly, the appeal preferred by the appellant succeeds and is hereby allowed. The impugned judgment of conviction and sentence passed by the trial Court is set aside. The appellant/accused is acquitted from the charge U/Sec. 306 of IPC. The appellant is on bail, his bail bond stand discharged forthwith. Fine amount, if any deposited by the appellant, be refunded to him.