1 2025:CGHC:39105 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 593 of 2007 Dulichand Jain S/o Paras Ram Jain Aged About 62 Years R/o Near Pushpa Hospital, Chikhlakasha, Police Station Dalli Rajhara, District Durg Chhattisgarh. 2 - Tara Bai (Died And Deleted) As Per Honble Court Order Dated 17- 02-2025. --- Appellant versus State Of Chhattisgarh Through District Magistrate, Durg Chhattisgarh. --- Respondent CRA No. 606 of 2007 1. Ku. Aabha Jain D/o Dulichand Jain, aged about 25 years, R/o Near Pushpa Hospital, Chikhlakala, Rajhara, Police Station Rajhara, District Durg Chhattisgarh. 2. Smt. Bharti W/o Prakash Bafna, aged about 34 years, R/o Sadar Gandhi Chok Nagpur (Maharashtra) at present Chikhlakala, Rajhara, P.S. Rajhara, Distt. Durg (CG) --- Appellants Versus State Of Chhattisgarh through District Magistrate, Durg (CG) 2 --- Respondent For Appellants : Mr. Suresh Verma and Mrs. Renu Kochar, Advocates. For Respondent : Mr. Afroz Khan, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey, J Judgment On Board 06-08-2025 Since both these appeals arise out of the judgment of conviction and order of sentence dated 25.6.2007 passed by Additional Sessions Judge, Balod, Distt. Durg in ST No.249/2006, they are being disposed of by this common judgment. By the impugned judgment, each of the accused/appellants has been convicted and sentenced as under: Conviction Sentence Under Section 498A of IPC. RI for one year and fine of Rs.500/-, in default thereof to suffer additional RI for six months. Under Section 306 of IPC. RI for four years and fine of Rs.1000/-, in default thereof to suffer additional RI for one year. Both the sentences were directed to run concurrently. 02. Case of the prosecution, in brief, is that marriage of deceased Pooja @ Rashmi was solemnized with one Kalyan, who is son of accused No. 1 & 2 and brother of accused No.3 & 4, at Gayatri Mandir, 3 Rajnandgaon on 27.11.2005. As father of the deceased was ill, her brother went to Dallirajhara at her matrimonial house to bring her back and while returning stayed at Khamtarai. On 6th March her husband Kalyan came to Dongargarh and took her back to the matrimonial house. On 7th March it was informed that deceased Pooja has got burnt by kerosene. While PW-2 Girish Jain and PW-1 Gendmal, brother and father of the deceased, along with others were going to her matrimonial house by jeep, they received information that the deceased was being taken to Bhilai and therefore, all of them went to Sector-9 Hospital, Bhilai where Pooja was admitted in casualty in burnt condition. On being asked, Pooja disclosed that the accused persons taunt her too much, harass and ill-treat her and even object to her keeping the photograph of her deceased mother, therefore, she burnt herself. During treatment, her dying declaration was recorded. Subsequently she died during the course of treatment on 16.3.2006. Postmortem on the body of deceased was conducted, spot map was prepared and statements of the witnesses were recorded. After completing usual investigation, charge sheet under Sections 498A, 306, 34 of IPC was filed against the accused persons. 03. Learned trial Court framed charges under Sections 498A, 304B and 306 of IPC against the accused persons which were abjured by them and they prayed for trial. In order to substantiate its case the prosecution examined 20 witnesses. Statements of the accused were recorded under Section 313 of CrPC wherein they denied all the 4 incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In their defence, they examined four witnesses. 04. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court while acquitting the accused of the charge under Section 304B of IPC, convicted and sentenced them as mentioned in the opening paragraph of this judgment. Hence these appeals. 05. During pendency of CRA No.593/2007, appellant No.2 Tara Bai died on 23.11.2011, therefore, vide order dated 17.2.2025 the said appeal in respect of appellant No.2 Tara Bai stood abated. 06. Learned counsel for the appellants submit that the impugned judgment is per se illegal and contrary to the material available on record. Conviction of the appellants is based mainly on the dying declaration (Ex.P/7) allegedly obtained by PW-5 Pulak Bhattacharya, Executive Magistrate on 8.3.2006 at 11.30 am but the same is not a reliable document in view of contradiction in the contents of the dying declaration and the statement of PW-5. In this dying declaration, one Uday Kumar has certified that the deceased is in a position to give statement but the prosecution has not examined him as a witness. It is also not clear whether this Uday Kumar was a doctor or attendant in the burn unit. This apart, PW-5 Executive Magistrate has also not 5 stated in his evidence as to who was the doctor and who made endorsement about fitness of the deceased for making statement. Further, as per evidence of PW-1 Gendmal, PW-12 Rakhi Jain and PW-20 Nirmala Jain, after admission in Sector-9 Hospital, the deceased was not in a position to speak anything for about four days. Similarly, PW-4 Dr. Lal Mohammad, autopsy surgeon, and PW-16 Dr. AK Singh who gave first aid treatment to the deceased at Pushpa Hospital, clearly state that looking to the condition of the patient she was not in a position to give any statement. 07. Learned counsel for the appellants would further contend that in her dying declaration the deceased stated that on 3rd or 4th March she went to the house of her sister Rakhi where she told her that her in- laws’ restrict her from coming to her village and as mother-in-law of her sister namely Nirmala Jain (PW-20) disclosed it over telephone to her in-laws, they ill-treated her and therefore, she poured kerosene on her and set her ablaze. However, from the statement of PW-20 it is clear that she never disclosed the above fact to in-laws of the deceased over telephone or otherwise. PW-12 Rakhi Jain also stated that they never disclosed this fact to in-laws of the deceased. Being so, the said dying declaration loses its sanctity and cannot be relied upon at all. 08. Learned counsel further submit that looking to the conduct of the accused persons that immediately after the incident they rushed the deceased to a nearby hospital and after getting her first aid treatment 6 shifted her to Sector-9 Hospital, Bhilai, it is clear that they are innocent and made every effort to save her life. There is nothing on record to suggest that the accused persons in any manner instigated or abetted the deceased to commit suicide. So far as offence u/s 498A of IPC is concerned, in view of the evidence of PW-1 and PW-2, father and brother of the deceased, it is seen that they only stated that the deceased was being repeatedly told by her in-laws that she did not know cooking and was advised to improve it. Except this, there is no other allegation against them. As such, it cannot be construed as harassment or cruelty which could constitute offence under Section 498A of IPC. It has come in the evidence of PW-1 Gendmal Jain as also in the evidence of DW-3 Dr. Rajeev Sharma that after the death of her mother, the deceased was under depression. Therefore, the possibility of her committing suicide for this reason cannot be ruled out. There are many contradiction and omission in the statements of the prosecution witnesses but the same have been ignored by learned trial Court. The prosecution has examined only interested witnesses and no independent witness was examined to corroborate their evidence. Thus, it is clear that learned trial Court has not properly appreciated the oral and documentary evidence on record. The findings recorded by learned trial court being erroneous are liable to be set aside and the appellants deserve to be acquitted of all the charges by giving them benefit of doubt. 7 Reliance has been placed on the judgment in the case of Ramesh Kumar Vs. State of CG reported in (2001) 9 SCC 618; judgment dated 28.2.2023 of the Hon’ble Supreme Court in SLP (Cri.) No.8584/2022 in the matter of Kashibai and others Vs. State of Karnataka; judgment dated 21.2.2024 passed in SLP (Cri.) No.4684/2019 in the case of Mr. Vijayakumar Vs. State of Tamil Nadu; the judgment dated 12.10.2023 in CRA No.1485/2011 in the case of Kamalakar Vs. State of Karnataka; the judgment in Naresh Kumar Vs. State of Haryana reported in (2024) 3 SCC 573; judgment 20.6.2023 of High Court of MP in CRA No.2006/1998 in the matter of Chatra Chamar Vs. State of MP as also the judgment dated 12.2.2025 of this Court in CRA No.1205/2003 in Sushanto @ Babu Mandal Vs. State of CG. 09. Per contra, learned counsel for the State opposing the contention of the appellants submits that learned trial Court upon minute appreciation of oral and documentary evidence available on record has rightly convicted and sentenced the appellants by the impugned judgment which calls for no interference by this Court. Therefore, the present appeals being without any substance are liable to be dismissed. 10. Heard learned counsel for the parties and perused the material available on record. 8 11. It is clear from the record of learned trial Court that the appellants were charged under Sections 498A, 304B and 306 of IPC and after appreciation of oral and documentary evidence, learned trial Court acquitted them of the charge under Section 304B of IPC and convicted and sentenced them as mentioned in para 1 of this judgment. 12. It is not disputed in this case that deceased Pooja @ Rashmi was daughter-in-law of appellants Dulichand and Tarabai and sister-in- law of appellants Aabha Jain and Bharti. Her marriage was solemnized on 27.11.2005 with son/brother of the appellants namely Kalyan; the incident took place on 7.3.2006 and she died on 16.3.2006 due to burn injuries. 13. Learned trial Court heavily relied upon the dying declaration of the deceased (Ex.P/7) recorded by PW-5 Pulak Bhattacharya, Executive Magistrate. He states that he received a letter from Police Station – Bhilai Nagar on 8.3.2006 which was marked by Tahsildar and he was directed to record dying declaration of the victim Pooja Jain admitted in Sector-9 Hospital, Bhilai. After obtaining fitness certificate from the doctor regarding condition of the victim for making statement, he recorded her dying declaration as per Ex.P/7 in question and answer form. He admits his signature on Ex.P/7 from A to A part and certifies the thumb impression of the victim from B to B part and signatures of the doctor from C to C and D to D part. In cross- 9 examination nothing has been elicited by the defence from this witness to make his evidence untrustworthy or doubtful. In Ex.P/7 the victim stated thus: “iz'u ;g ?kVuk vkids lkFk dSls ?kVh \ mŸkj esjh 'kknh 27 uoacj 2005 dks gqbZ gSA 'kknh ds ckn esa gh esjs dks esjh lkl rkjkckbZ] cM+h uun Hkkjrh] NksVh uun vkHkk vkSj llqj nqyhpan NktsM+ ijs'kku djrs gSA [kkuk ugh cukuk vkrk dgdj pkjks xkyh nsrs gSA dqN fnuksa ls ;g Hkh xkyh nsrs gS fd ngst esa dqN yk;h ugh gS] NksVh uun vkHkk lcls T;knk xank crkZo djrh FkhA eSa 3 ;k 4 rkjh[k blh eghus viuh cgu jk[kh ds xkWao x;h Fkh ogka mldks cksyh Fkh fd esjs llqjky okys rqEgkjs xkao vkus euk djrs gS ;g ckr esjh cgu dh lkl us dy Qksu ij esjs llqjky okyksa dks crk nh] blh ckr ij esjh lkl vkSj nksuks uun us esjs lkFk >xM+k fd;k] xkyh xykSp Hkh fd;k blh ckr ls eSa ijs'kku gksdj [kqn ds Åij feVVh rsy Mkydj ekfpl ls vkx yxk yhA mlds ckn esjs ph[kus fpYykus ij lkl vkSj uunks us eq>s cq>k;k A fQj bUgh yksxks us esjs dks vLirky yk;kA iz'u vkids ifr ls vkids dSls laca/k gS \ mŸkj esjs ifr ls esjk dksbZ >xM+k ugh gSA oks rks yM+kbZ >xM+s ls vyx jgrs gS blfy, lkl cgq ds >xM+s esa chp esa ugh vkrs Fks dHkh dHkkj nksuksa i{kks dks >xM+k djus ls euk djrs FksA esjs dks Hkh cksyrs Fks fd uunksa ls ckr er fd;k djksA iz'u dy vkius [kqn dks tyk;k] blds fy, dkSj ftEesnkj gS \ mŸkj eSa viuh lkl rkjkckbZ] uun Hkkjrh vkSj vkHkk RkFkk llqj nqyhpan NktsM+ ds O;ogkj ls ijs'kku FkhA lc esjs dks [kkuk ugh cukuk vkrk] dksbZ dke ugh vkrk dgdj ijs'kku djrs FksA eSa bl ?kVukvks ls bruh ijs'kku gks x;h Fkh fd vkf[kj dy dh ?kVuk ds ckn vius vki dks tykus ds fy, etcwj gks x;hA esjs dks vkRegR;k ds fy, bUgh pkjks] lkl] nksuks uun rFkk llqj ds dkj.k etcwj gksuk iM+kA” 14. The Hon’ble Supreme Court in the matter of Naresh Kumar (supra) after observing its various earlier decisions held in para 25 of the judgment as under: “25. It is now well settled that in order to convict a person under Section 306 of IPC there has to be a clear mens rea to commit 10 the offence. Mere harassment is not sufficient to hold an accused guilty of abetting the commission of suicide. It also requires an active act or direct act which led the deceased to commit suicide. The ingredients of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. 15. In the matter of Kashibai and others (supra), the Hon’ble Supreme Court while dealing with offence under Sections 498A and 306/34 of IPC in para 9 of the judgment held as under: “9. In M. Mohan Vs. State Represented by the Deputy Superintendent of Police (2011) 3 SCC 626, this Court has elaborately dealt with the provisions contained in Section 306 read with Section 107 IPC, and after discussing various earlier decisions has observed as under: - "41. This Court in SCC para 20 of Ramesh Kumar [(2001) 9 SCC 618: 2002 SCC (Cri) 1088] has examined different shades of the meaning of "instigation". Para 20 reads as under: (SCC p. 629) "20. 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 11 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 appellant-accused having abetted commission of suicide by Seema (the appellant's wife therein) may necessarily be drawn. 42. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73: 1994 SCC (Cri) 107] this Court has cautioned that (SCC p. 90, para 17) 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 her life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive 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. 43. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) [(2009) 16 SCC 605: (2010) 3 SCC (Cri) 367] 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. 12 Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 44. 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 carinot be sustained. 45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 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 the said matter, after appreciation of the overall evidence on record in light of its earlier decisions on the issue, the Hon’ble Supreme Court acquitted the appellants of the charge u/s 306 of IPC by giving them benefit of doubt and maintained their conviction u/s 498A of IPC. 16. In light of the above decision, in the present case also it is clear that the deceased in her dying declaration clearly alleged that all the accused/appellants tortured her and for this reason she committed suicide. However, looking to the nature of allegations against the accused/appellants, it cannot be said that the prosecution has proved the essential ingredients of Section 107 of IPC which constitutes the 13 offence u/s 306 of IPC. Accordingly, this Court is of the opinion that in the given facts and circumstances of the case and the evidence adduced by the prosecution, no offence under Section 306 of IPC is made out against the accused/appellants. However, so far as offence u/s 498A of IPC is concerned, looking to the statements of mother and father of the deceased, their conviction under this section cannot be faulted with. 17. As regards the sentence u/s 498A of IPC, considering the facts and circumstances of the case, the fact that the incident took place in 2006 and these appeals are pending since 2007; the age of the appellants, the nature of allegations, the fact that they were on bail during pendency of these appeals and did not misuse the liberty, appellant Dulichand remained in jail for about one year and appellants Ku. Abha Jain and Smt. Bharti remained in jail for 67 days, this Court is of the opinion that ends of justice would be served if they are sentenced to the period already undergone by them while keeping the fine imposed on them with default sentence by trial Court intact. 18. In the result, the appeals are allowed in part. While acquitting the accused/appellants of the charge u/s 306 of IPC, their conviction under Section 498A of IPC is hereby maintained and the jail sentence awarded thereunder by learned trial Court is reduced to the period already undergone by them. However, the fine imposed on them with default stipulation by trial Court shall remain intact. The impugned judgment stands modified to the above extent. 14 The appellants are reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023, each of the accused/appellants is also directed to furnish a personal bond for a sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/ (Rajani Dubey) Judge Khan MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.08.12 16:16:17 +0530