Niranjan and Others vs State of Chhattisgarh and Others

R.S. Sharma, J.—This appeal is directed against judgment dated 26-03-2004 passed by Additional Sessions Judge, Dhamtari in Sessions Trial No. 37/2003. By the impugned judgment, accused persons/ appellants Niranjan, Kuleshwar, Punitram and Khorbaharin Bai have been convicted and sentenced under Sections 306 and 498A of the Indian Penal Code in the following manner with direction to run the sentences concurrently:-

Case of the prosecution, in brief, is as under-Deceased Smt. Rukhmani Bai was married to appellant Niranjan as per Hindu rights and customs and she was residing with the appellants in their house at Village Chandana for near about 6 months. The appellants were asking her to bring a sum of Rs. 15,000/- from her maternal house and for that they were abusing her and committing Marpeet with her. She was being treated with cruelty. On account of this, on 13-10-2002, at about 5.50 pm, she consumed poison. She was taken to Community Health Centre, Rajim, where she died during treatment. Intimation was sent to Police Station Magarlod, where Merg Intimation No. 32/ 2002 (Ex. P-18 & 17) was recorded and First Information Report (Ex. P-19) was registered in Police Station Magarlod. Investigating Officer reached Community Health Centre, Rajim, gave notice (Ex. P-1) to Panchas and prepared inquest (Ex. P-2) on the dead body of the deceased. The dead body of the deceased was sent to Community Health Centre, Rajim for post mortem examination vide Ex. P-15. Dr. Gopal Kela (PW-10) and Dr. Smt. Snehlata Homne conducted post mortem examination on the dead body of the deceased and gave report (Ex. P-11), in which they found that the cause of death was cardio respiratory failure caused by insecticide poisoning and nature of the death was suicidal.

In further investigation, spot map was prepared by Investigating Officer Sushil Kumar Dubey (PW-20) vide Ex. P-9. Viscera was seized vide Ex. P-11 A. Patwari Santuram (PW-22) also prepared spot map vide Ex. P-22.

After completion of the investigation, charge sheet was filed against the accused persons/appellants in the Court of Judicial Magistrate, First Class, Dhamtari, who, in turn, committed the case to the Court of Session at Raipur, from where it was received on transfer by Additional Sessions Judge, Dhamtari, who conducted the trial and convicted and sentenced the accused persons/ appellants as mentioned above.

Shri Vishnu Koshta, learned counsel for the appellants argued that Nirmala (PW-1), Kheluram (PW-3), Smt. Kamla Bai (PW-12), Ganesh (PW-13) and Smt. Dewantin Bai (PW-15) are highly interested witnesses. The independent witnesses did not support the case of the prosecution. The prosecution failed to prove that the deceased was subjected to cruelty or harassment by the appellants in connection with any demand of dowry. The provision of Section 113-A of the Evidence Act is not applicable in this case. The prosecution has not established that prior to the death of the deceased, she had been either subjected to cruelty or harassment for demand of dowry. Evidence in this respect is wholly insufficient to convict the appellants, therefore, the appellants deserve to be acquitted of the charges framed against them. Learned counsel for the appellants placed reliance on Amar Singh Vs. State of Rajasthan, , Bhairon Singh Vs. State of Madhya Pradesh, , State of Tamil Nadu Vs. Manmatharaj, , Shindhu and Others Vs. State of Karnataka, 8 and Laxman Anaji Dhundale and Another Vs. State of Maharashtra,

On the other hand, Shri R. R. Sinha, learned Panel Lawyer for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellants do not warrant any interference by this Court.

Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 37/2003.

The conviction and sentence of the appellants under Sections 306 and 498A IPC are based on the evidence of Nirmala (PW-1), Kheluram (PW- 3), Smt. Kamla Bai (PW-12), Ganesh (PW-13) and Smt. Dewantin Bai (PW-15). It is not disputed that the marriage of the deceased was performed with appellant Niranjan in the year 1999 and the deceased died on 13-10-2002, i.e., within 7 years of her marriage. It is also not disputed that the death of the deceased was otherwise than under normal circumstances.

In Amar Singh v. State of Rajasthan (supra), the Hon''ble Supreme Court observed thus:

23 A prosecution witness who merely uses the word "harassed" or "tortured" and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Sections, 498A and 304B IPC. For this reason, the High Court has taken a view that the charges against Jagdish and Gordhani have not been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and Gordhani appear to have been implicated because they were members of Amar Singh''s family.

In State of Tamil Nadu v. Manmatharaj (supra), the Hon''ble Supreme Court observed thus:

Appreciation of evidence-Accused allegedly assaulted deceased with stone -- Extra judicial confession given to Village Administrative Officer does not fine corroboration on general particulars-withholding of information as to time at which material records had come to be prepared also created doubt-Failure to follow procedure on extra judicial confession being given to Village Administrative Officer made prosecution version unacceptable-Acquittal of accused is proper.

In Gurbachan Singh Vs. Satpal Singh and others, the Hon''ble Supreme Court observed as follows:

It is also convenient to refer in this connection to the provisions of Section 113-A of Indian Evidence Act, 1872 which provide that:

113-A. 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.

It has been contended on behalf of the accused-respondents that Section 113-A of the Indian Evidence Act was inserted in the statute book by Act 46 of 1983 whereas the offence u/s 306, IPC was committed on June 23, 1983 i.e. prior to the insertion of the said provision in the Indian Evidence Act. It has, therefore, been submitted by the learned counsel for the respondents that the provisions of this section cannot be taken recourse to while coming to a finding regarding the presumption as to abetment of suicide committed by a married woman, against the accused persons.

The provisions of the said section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case. It is profitable to refer in this connection to Halsbury''s Laws of England, Fourth Edition, Volume 44 page 570 wherein it has been stated that:

The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature.

It has also been stated in the said volume of Halsbury''s Laws of England at page 574 that:

The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.

In M. Mohan Vs. The State represented by The Deputy Superintendent of Police, 8, the Hon''ble Supreme Court observed as follows:

''Abetment of a thing'' has been defined u/s 107 of the Code. We deem it appropriate to reproduce section 107, which reads as under:

Abetment of a thing -- A person abets the doing of a thing, who

First -- Instigates any person to do that 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 places in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly -- Intentionally aides, by any act or illegal omission, the doing of that thing.

Explanation 2 which has been inserted along with section 107 reads as under:

Explanation 2 -- 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.

Learned counsel also placed reliance on yet another judgment of this court in Ramesh Kumar Vs. State of Chhattisgarh, , in which a three-Judge Bench of this court had an occasion to deal with the case of a similar nature. In a dispute between the husband and wife, the appellant- husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. This Court in paragraph 20 has examined different shades of the meaning of ''instigation''. Para 20 reads as under:

Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect, or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.

In the said case this court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted commission of suicide by Seema (appellant''s wife therein) may necessarily be drawn.

In State of West Bengal Vs. Orilal Jaiswal and another, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hyper-sensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference 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 of abetting the offence of suicide should be found guilty.

This court in Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person''s suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person u/s 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.

In Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), he Hon''ble Supreme Court observed as follows:

As observed in Ramesh Kumar Vs. State of Chhattisgarh, where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:

(i) the accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or willful omission or conduct to make the deceased move forward more quickly in a forward direction; and

(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

Nirmala (P W-1) deposed that her daughter Rukhmani Bai (the deceased) was married to appellant Niranjan in the year 1998-99. Appellant Kuleshwar is brother of appellant Niranjan, i.e., appellant Kuleshwar is Devar (brother-in-law) of deceased Rukhmani Bai. The marriage of the deceased was performed in the month of Baisakh. After the marriage, the deceased was sent to the house of in-laws in the month of Magh. They had given fan, Godrej almirah, bicycle, utensils, hawala, lota, thali etc. in the marriage of the deceased. She did not know what furniture was given in the marriage. After going to the house of in-laws after the marriage, the deceased lived there properly for about 5-6 months. Thereafter, cruel treatment and harassment started with the deceased in the name of dowry. When the deceased came to maternal house, she told her that all the family members of the house of in-laws were saying her that they were expecting Phatphati (Motorcycle) in the dowry but the same was not given and they were demanding colour television. Whenever the deceased came to the maternal house, she told her these things weeping. The deceased told her that her husband appellant Niranjan was a good person, but his parents and brother, i.e., the other appellants used to harass her. She tried to inculcate the deceased that after having an issue (child), they will understand. The deceased had delivered a child (girl). Even thereafter, they continued to harass the deceased. She had told her husband (father of the deceased) about the ill-treatment and harassment being done with the deceased at her matrimonial house in the name of dowry. Father of the deceased had called son-in-law appellant Niranjan at home and inculcated him saying that their financial position was not good and marriage of their younger daughter Chumman Bai was to be performed. Appellant Niranjan had, at that time, said that due to his parents and brother, he was committing Marpeet with the deceased in anger.

Raviram (PW-2) deposed that he had gone to the matrimonial house of the deceased situated at Village Chandana along with Kheluram (father of the deceased). As was told by the deceased, she was sleeping due to fever and ill-health. When they were returning, a quarrel took place between appellant Punitram (father-in-law of the deceased) and the deceased. The deceased said that in spite of her being ill, money was not being spent and the quarrel took place between the deceased and appellant Punitram. 2-4 persons reached there and pacified the dispute. Thereafter, they returned their homes.

Kheluram (PW-3) deposed that he had married her elder daughter Rukhmani Bai (the deceased) with appellant Niranjan in the month of Baisakh in the year 1999. Her Gauna was performed in the month of Magh. After the Gautia, the deceased started living at her matrimonial house at Village Chandana along with the appellants. He had given bicycle, fan, Godrej almirah etc. in the marriage of the deceased. He had gone to see the deceased at her matrimonial house. In the month of Ashadh, he, along with 2-4 persons, had gone to the matrimonial house of the deceased to bring her at her maternal house. After bringing her at her maternal house, she had lived there for about 1 month. He further deposed that after passing 4-5 months of living of the deceased at her matrimonial house, she was started being harassed there. The deceased had told him that family members of her matrimonial house used to say her that Phatphati (Motorcycle) was told to be given to them but the same was not given. The deceased had also told him that the appellants were harassing the deceased for bringing a sum of Rs. 15,000/- and a colour television. The appellants were harassing the deceased for food. Saying that the deceased used to sleep at the house, the appellants were harassing her and were asking the deceased to go to her maternal house and live there.

Bishal (PW-5) deposed that appellant Punitram works as a carpenter in their village. One day, he had gone to him to take Girmit. The deceased, who was wife of appellant Niranjan and daughter-in-law of appellant Punitram and at that time who had gone to other village, returned therefrom and slept in her room. The deceased told in the house that she was not feeling well. When he heard this, he asked appellant Punitram to take her to hospital. Appellant Punitram began to search for a vehicle hurriedly to take her to hospital. Many people gathered there and they had left the village in a vehicle saying that they were taking the deceased to Nawapara, but where had they taken her, was not known to him.

Budhram (PW-6), Bisahat (PW-4) and Lakhan (PW-7) deposed that the deceased had fallen ill prior to 6-7 months of her death. At that time, appellant Punitram had called father of the deceased from Village Jaundi. On being called by appellant Punitram, they had gone to his house. Kheluram (PW-3), father of the deceased had asked appellant Punitram why was he called? Appellant Punitram said that the deceased was saying that she will not take medicine and she was also not taking meals. They further deposed that Kheluram (PW-3) enquired about the above facts from the deceased. The deceased told him that she was not liking food and she was unable to take proper sleep. Whenever she tried to sleep, she felt that someone was pressing her chest. Kheluram (PW-3) told the deceased that when she was arguing with him in this way, how was she behaving with her in-laws. They further deposed that Kheluram (PW-3) said the deceased that she was getting treated by her in-laws properly and she should take medicines regularly.

Now, I shall examine whether the evidence of prosecution witnesses is sufficient to connect the appellants with the crime under Sections 306 and 498A IPC?

Nirmala (P W-1) deposed in cross-examination that it is true that after Gauna ceremony when her daughter (the deceased) had come to her maternal house, appellant Niranjan had also come with her. She further deposed that the deceased had come to her maternal house in the month of Ashadh and had stayed for about 4 months. During this period of 4 months, the deceased did not tell her anything about ill-treatment or harassment by the appellants. She further deposed that the deceased told her about the ill-treatment and harassment by the appellants for the first time when she came to her maternal house on the occasion of Tija festival. She further deposed that when she had gone to the matrimonial house of the deceased, the deceased did not tell her anything about ill-treatment or harassment by the appellants.

Kheluram (PW-3) deposed that on the occasion of Tija festival, he had gone to the matrimonial house of the deceased at Village Chandana and brought her to her maternal house (his house). He had taken the deceased back from his house to her matrimonial house on the day of Pitar Baithaki. He did not come to know anything thereafter. When he had taken the deceased to her matrimonial house, appellant Punitram had asked him whether he had inculcated her or not? On this, he and his wife (mother of the deceased) told that the deceased had been inculcated properly. He further deposed that appellant Punitram was saying that the deceased used to sleep as also used to argue and they had inculcated the deceased therefor. At the time of taking the deceased to her matrimonial house at Village Chandana, the appellants had behaved properly, but what was done by the appellants with the deceased thereafter was not known to him. He further deposed that he had not asked appellants Punitram and Niranjan why were they demanding sum of Rs. 15,000/- and colour television from the deceased? Bisahat (PW-4) deposed that the deceased had never told him that the appellants were ill-treating or harassing her. He further deposed that appellant Punitram told him, Kheluram (PW-3) and Lakhan (PW-7) that the deceased always remained displeased. They all had inculcated her. Bishat (PW-5) deposed that the deceased used to behave like a lunatic.

Section 498A of the Indian Penal Code runs thus:

498A. 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.

Explanation.--For the purpose of this section, "cruelty" means--

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Looking to the facts and circumstances of the case and the evidence available on record, I am of the view that the prosecution has not been able to prove with conclusive evidence that the appellants subjected the deceased to cruelty or harassment and they abetted or instigated the deceased to commit suicide, as a result thereof, the deceased committed suicide.

In the light of above discussion, the conviction of the appellants under Sections 306 and 498A IPC cannot be sustained. In the result, the appeal is allowed. The conviction and sentence awarded to the appellants under Sections 306 and 498A IPC are set aside. The appellants are acquitted of the charges framed against them. Presently, they are on bail. Their bail bonds are cancelled and sureties stand discharged.