P.Ganpat Rao vs State Of Chhattisgarh

The present appeal arises out of the impugned judgment of conviction and order of sentence dated 31.03.2003 passed by the First Additional Sessions Judge, Durg, Chhattisgarh in Sessions Case No.272/2002 whereby, the learned Additional Sessions Judge convicted the appellant and sentenced him as under :-

Conviction

Sentence

U/s 306 of IPC

R.I. for 6 years and fine of Rs.500/- with default stipulation.

The prosecution story, in brief, is that the deceased Namita were residing with her husband-Sudarshan Nahak (PW-1) in Khursipara, Bhilai (C.G.). The appellant/accused-P.Ganpat occasionally visited the house of deceased for repairing the television. One day when the daughter of deceased was inside the kitchen & deceased Namita was in the bedroom, then at that time, appellant P.Ganpat committed rape with the deceased. This incident has been told by the deceased to her husband that the appellant caught hold her hand and tried to outrage her modesty. Thereafter, her husband-Sudarshan Nahak (P.W-1) went to the house of appellant and threatened him, but the appellant said in publicly that he had affair with the deceased Namita. As a result of this, the deceased Namita hanging herself by way of rope & committed suicide. Thereafter her husband Sudarshan Nahak (P.W-1) lodged the First Information Report at Police Station Chhavni, Dist: Durg (C.G.). On receiving the said information, T.R. Kanwar P.W-8 (ASI) reached the spot and lodged merg intimation vide Ex.-P-1 and the dead body of the deceased was sent for postmortem. A letter written by deceased to her mother was seized as Ex.P-6 and another letter written by deceased was seized by the police as Ex.P-7 and hindi translation of that letter as Ex.P-12 was done by Krishna Panda @ Ramkrishna Panda PW-6. After due investigation, the accused person was arrested for the offence committed under Section 306 of the Indian Penal Code.

So as to hold the accused/appellant guilty, the prosecution has examined as many as 10 witnesses. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

After hearing the parties, vide impugned judgment of conviction and order of sentence dated 31-3-2003, the learned First Additional Sessions Judge has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, the present appeal.

Learned counsel for the appellant submits that the appellant has not committed any offence and he has been falsely implicated in the crime in question. He further submits that the material available on record does not indicate that the appellant abetted or instigate the deceased to commit suicide because the deceased initially did not report the fact to her husband & also neither filed any complaint against the appellant nor try anything to keep the appellant behind the bars, therefore prosecution case seems to be doubtful. Hence, the impugned judgment passed by the learned trial Court is illegal and arbitrary, which deserves to be set aside.

Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant.

Heard learned counsel for the parties and perused the material on record including the impugned judgment.

Sudarshan Nahak (PW-1), the husband of the deceased, has told in his evidence that his wife Namita had died by hanging herself. On the information of Sudarshan Nahak, Sub-Inspector, TR Kanwar (P.W.8) has told to establish Marg Information as Ex.P-1. TR Kanwar (Sub-Inspector) has asked the witnesses to prepare Panchnama as Ex.P-3 of the deceased's dead body after giving information of Ex.P-2, which has been confirmed by Sudarshan Nahak (P.W.-1) and Pitwas Nayak (P.W.-2).

Dr. A.P. Sanwat (P.W.-7) has proved the post-mortem report dated 18-01-2002 as Ex.P-9, stating therein that the cause of death of deceased-Smt Namita due to suffocation and which was suicidal in nature. Thus, Smt. Namita has been told to commit suicide by hanging, which fact has not been disputed by any of the parties.

Now it has to be considered whether the conviction of the appellant for abetment of suicide by the trial court was proper and valid?

As per the contention of the appellant, the prosecution has not been able to prove its case against him. The appellant side has argued that the Hindi translation of the alleged suicide note seized as Article-B is not duly certified. Abetment by him is not proved. It is also not proved that Smt. Namita-deceased committed suicide as a result of that abetment. In this situation, his conviction is not justified.

The abetment of suicide under Section 306 IPC are as follows:-

“If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Under Section-107 IPC, abetment has been defined as follows:-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 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.

Explanation - 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

The appellant has relied on Amalendu Pal v. State of West Bengal,   (2010) 1 SCC 707 is cited in which the Hon'ble Supreme Court has expressed the following holdings in para-12 and para-13 of the judgment.

“12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 of IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 of IPC is not sustainable.

In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 of IPC.

Similarly, the second judgment cited by the appellant side S.S. Cheena v. In Vijay Kumar Mahajan, (2010) 12 SCC 190, the Hon'ble Supreme Court in the matter of abetment of suicide under Section-306 IPC has expressed the determination in paragraph-25 as follows:-

“25. 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 is clear that in order to convict a person under Section 306 of 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 that act must have been intended to push the deceased into such a position that he committed suicide.”

Considered in the light of the aforesaid legal provisions and the concept expressed in the judgments, the case of the prosecution against the appellant is to the effect that the appellant had once committed rape on the deceased after finding her alone in her house and later in the presence of other neighbors of the deceased, he used to tell this thing in front of all and due to feeling of shame and loss of respect, the deceased committed suicide. One of the basic grounds of prosecution against the appellant is the alleged suicide note Article-B and that suicide note has been stated to have been seized as Ex.P.7 from the T.V. kept in the bedroom of the deceased's house on the date of the incident. In order to identify the handwriting of that suicide note, C.S.P., Dr. Lal Umed Singh (P.W.-10) has told to seize a letter (Article-A) as Ex.P-6 written earlier by the deceased to her maternal home from Sudarshan Nahak (husband of the deceased). Both these letters were sent for expert report. The investigation report of the Office of The Government Examiner of Questioned Documents Central Forensic Institutes, Calcutta was received in the form of Ex.P-17. According to which, the handwriting of both the letters have been found to be of the same person, but the expert who examined the handwriting has not been examined in the Court. The prosecution has been unable to point out any situation in which the expert's report is admissible in evidence without his examination.

The key witnesses on the point of abetment of suicide are Sudarshan Nahak (PW-1), husband of the deceased, Roshni Nahak (PW-3), daughter of the deceased and Krishna Panda @ Ramakrishna Panda (PW-6), the translator of the alleged suicide note Article-B , whose statements are being seen respectively.

Roshni Nahak (PW-3), daughter of the deceased, has stated her age as 11 years at the time of statement, which has been tested without administering it on oath. She has stated in the court statement that once she returned from tuition, the appellant Ganpat was making T.V. at her house. Her mother Namita (deceased) had gone to the shop and came to her crying while she was eating food in the kitchen. She did not know why her mother was crying. The day her mother died by hanging, her mother had written a letter and placed it on the TV and said her to give the letter to her father after coming back from tuition and not to anyone else. Then, when she came back from tuition, she saw that her mother had hanged herself from the window rod of the house. Later, her father, uncle and police came at her house. In cross-examination, this witness has accepted that she did not mention in the police statement that the letter was written by her mother and told her to keep it on the T.V. and give it to her father. The facts mentioned in the police statement of this witness have not been mentioned in the court statement and the facts mentioned in the court statement have not been mentioned in the police statement. In such a situation, the alleged seized letter should be of the handwriting of the deceased, a situation of doubt arises.

Sudarshan Nahak (P.W.-1), husband of the deceased, has stated in his court statement that his wife Namita (deceased0 had told that about 18-20 days before the incident of suicide, the appellant had come to her house to repair the TV, then suddenly the lights of the house went off. When his daughter Roshni Nahak was eating food in the kitchen, her wife Namita (deceased) went to the bedroom to get some thing, then the appellant grabbed Namita by force and robbed her of her respect. Namita had told this thing to him in the night. This witness has accepted in paragraph 12 of the cross-examination that he had not stated in the police statement that the appellant had forcibly raped his wife. Thus, the point of rape being committed is getting doubtful as there was no report of such incident to the police by Sudarshan Nahak (P.W.1), which seems unnatural.

According to Sudarshan Nahak (P.W.-1), the reason for his wife Smt. Namita suicide was that his wife did not have amount when the people of her neighborhood had come to ask for donation. After that, they went away from the house. When his wife came out to see, the appellant while passing near his house said to his fellow boy that "Hey brother, I am trapped" but whether he had said this about Smt. Namita or about whom, it is unclear and she could not understand. 2-3 days before the incident of suicide, 2-3 boys were sitting near the Peepal tree who were saying to each other that "You are not coming to my house, I will also not go to your house". According to Sudarshan Nahak, after hearing these things, his wife Smt. Namita thought that the matter of sexual intercourse done by the appellant with her was known to all and the appellant was telling about the same to the people. Due to this reason, Smt Namita committed suicide by hanging herself.

Sudarshan Nahak (PW-1) has accepted in the cross-examination that the matter of the boys coming to ask for donations & taking money and the appellant saying that he was trapped was not mentioned in the police statement. Thus, Sudarshan Nahak (PW-1) has also accepted that in the police statement, he did not even tell that 2-3 boys were sitting under the Peepal tree and talking to each other that “if you do not come to my house, I will also not come to your house”. Thus, there is a situation of omission and contradiction on the vital question in the court statement of Sudarshan Nahak (P.W.1), the husband of the deceased and the police statement. Due to which, the statement of Sudarshan Nahak (PW-1) unnecessarily becomes suspicious.

As far as the suicide note is concerned? Along with the investigator T.R. Kanwar (PW-8), the deceased's husband Sudarshan Nahak (PW-1), Roshni Nahak (daughter of deceased) and seizure witness Pitwas Nayak (PW-2) have also spoken about its seizure. But the letter Article-A with which it has been matched, that the letter Article-A is of the deceased's own handwriting, the deceased's daughter Roshni Nahak has not said such a clear statement. The seizure of letter Article-A has also been reported after about 2 months on 23/03/2002 as Ex.P-6. Article-’A’ and Article-'B' both letters are written in Oriya language. The witnesses have accepted that the name of the deceased Namita is not mentioned anywhere in the letter Article-'A' seized as specimen handwriting. The evidence of conclusive nature does not show that the suicide note in question, in order to match the handwriting of the letter Article-'B', the sample handwriting of the letter of Article-'A', which was seized and sent for examination, was hand written by the deceased of Article-’A’. Therefore, also the report of the handwriting expert submitted without expert examination cannot be considered admissible and cannot be made the basis of conviction.

Now consider this point, what is written in the letter of the alleged suicide note Article-'B'? So it is worth mentioning that according to C.S.P., Dr. Lal Umed Singh (PW-10) and Sub-Inspector, T.R. Kanwar (P.W.-8), the letter written in Oriya was translated into Hindi as Ex.P-12. According to the police, this translation was done by Krishna Panda @ Ramakrishna Panda (PW-6). In the said situation, the statement of Krishna Panda @ Ramakrishna Panda (PW-6) becomes important, on the basis of which it will be seen what was written in the letter of Article-'B'?

Krishna Panda @ Ramakrishna Panda (PW-6) has stated in his court statement that he has studied in Oriya till class-II. He reads and write Oriya a little bit. When he was sitting in the shop, the assistant of the police station came and asked whether you read the letter or not? So he said that he reads a little bit. On this, the assistant of the police said that read as much as you know and tell. Then a letter was read to him. When this witness was confronted with the letter of alleged suicide note article-'B', he says that he does not remember whether he had read this letter or not? On this, the witness has been declared hostile by the prosecution and leading questions have been asked.

Krishna Panda @ Ramakrishna Panda (PW-6) has stated on the leading questions of the prosecution that he lives in Khurshipar Zone-2 but does not know Sudarshan. He further stated that he does not remember that in the letter which he was reading, it was written that she told her husband by saying "I was scared, could not tell anything to anyone and Ganpati hold my hand". Thus, Krishna Panda @ Ramakrishna Panda (PW-6) has not made a clear statement regarding the said letter.

Krishna Panda @ Ramakrishna Panda (PW-6) on the information question of the prosecution has stated that he does not remember whether it was written in the letter which he had read or not that "Ganpati was brought to the road shouting in the night and told in front of everyone that he outrage the modesty". This witness has further said that when he read out the letter in Oriya language, only two policemen were present, he was translating it into Hindi but it was not written in Hindi in front of him. Thus, the translation of letter written in Odia language of Article-'B' in Hindi as Ex.P.-12 has not been confirmed by Krishna Panda @ Ramakrishna Panda (PW-6) as Ex.P.-12. The prosecution has not suggested to Krishna Panda @ Ramakrishna Panda (PW-6) that the Hindi translation of Ex.P.12 was written by Krishna Panda @ Ramakrishna Panda (PW-6) or on the basis of his being told by someone else. It is not clear from the case of the prosecution who wrote the Hindi translation of Ex.P.12 that whether it is written in the handwriting of Krishna Panda @ Ramakrishna Panda (PW-6), Krishna Panda @ Ramakrishna Panda (PW-6) has not been asked, it has also not been asked whether it should be signed by Krishna Panda @ Ramakrishna Panda (PW-6). In such a case, it is not proved conclusively that the Hindi translation of Ex.P.12 is of the letter of Article-'B' and it was done by Krishna Panda @ Ramakrishna Panda (PW-6).

On leading questions by the prosecution, Krishna Panda @ Ramakrishna Panda (PW-6) has been asked many such things which are mentioned in Ex.P-12 of the Hindi translation. About whom Krishna Panda @ Ramakrishna Panda (PW-6) has said that these things are mentioned in Ex.P-12. But the suicide note is basically in the form of Article-'B' in Oriya language. Until it is proved that the Hindi version of Oriya language, Ex.P.-12 is valid, till then what is written in the Hindi translation of Ex.P.-12 is not important.

Krishna Panda @ Ramakrishna Panda (PW-6) has not made it clear whether the Hindi translation of Ex.P.12 is in his handwriting or was written as told by him. At this stage, the fact is not duly established that the Hindi translation of the suicide note of Article-'B' is Ex.P-12. Therefore, the decision cannot be based on the translation of Ex.P-12.

Considering the point of abetment of suicide in the light of the law and the cited precedents, it is clear that the original witness of the incident Smt Namita is dead. Her daughter-Roshni Nahak has not made any clear statement against the appellant on the point of abetment of rape or suicide. The deceased's husband-Sudarshan Nahak (PW-1) has said that whatever information has been told by the deceased, the things Sudarshan Nahak has said in the court statement are different from his police statement. What he has said in the police statement is different from the court statement. The facts stated by him are not reflected in such a way as to give a clear ground for abetment. Krishna Panda @ Ramakrishna Panda (PW-6) has not spoken of doing proper Hindi translation. What is written in the letter of Article-'B' has also not been read out clearly before the court. The expert witness has not been examined. The seized letter Article-'A' regarding the sample of handwriting is of the deceased's own handwriting, it has not been established beyond doubt. On all these grounds, this Court finds that the prosecution has failed to establish beyond reasonable doubt that Smt. Namita committed suicide due to the abetment of the appellant. At this stage, the judgment of the trial court in question, of conviction and sentence, is not found to be maintainable.

Hence the appeal is allowed. The judgment of conviction and sentence in question is set-aside. Giving benefit of doubt, the appellant is acquitted of the offense of Section 306 of the Indian Penal Code. The appellant is stated to be on bail. Under Section-437/A of the Code of Criminal Procedure, his bail-bond will be effective for another 6 months. If there is no need to appear in the superior court, his bail-bond will be considered free.

In view of above, the present appeal is disposed of.

The record of the trial court along with the copy of the judgment be sent back immediately for necessary action.