1 2025:CGHC:9972 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 6 of 2016 Jaydev Barman @ Raja S/o Late Jeetendra Nath Barman Aged About 25 Years R/o Murtiline, Jagdalpur, P.S. Jagdalpur, Distt. Bastar, Chhattisgarh ... Appellant versus State Of Chhattisgarh Through P.S. Bodhghat, Distt. Bastar, Chhattisgarh., Chhattisgarh ... Respondent For Appellant : Ms. Manisha Yadav, Advocate For Respondent/State : Mr. Atanu Ghosh, Dy. G.A. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 27/02/2025 1. The present criminal appeal has been filed under Section 374(2) Code of Criminal Procedure Code 1973, filed by the appellant against the impugned judgment of conviction and sentenced dated 21.12.2015 passed by learned 3rd Additional Sessions Judge, Baster, Jagdalpur (C.G.), in Sessions Case No.39 of 2015, whereby the appellant has been convicted for the offence under Section 306 of IPC and 2 sentenced for S.I. for 7 years with fine of Rs.5,000/- in default of payment of fine amount further S.I. for 3 months. 2. The brief facts of the case are that the deceased Minoti Barman was married with the appellant on 18.11.2013 and she was residing in her matrimonial house at Jagdalpur. On 22.08.2014 at about 6:00p.m, she committed suicide by hanging herself in her matrimonial house with the help of nylon rope. The merg was intimated by the appellant to the police station, Bodhghat on 22.08.2014 itself which is Ex.P/9. The inquest of the dead body of the deceased Ex.P/6 was prepared in presence of the witnesses and body was sent for its post-mortem to Maharani Hospital Jagdalpur, where a team of doctors consist of Dr. Kiran Patil PW-1 and PW-10 Manisha Goyal were conducted the post- mortem of the dead body of the deceased and gave their report Ex.P/1. No injuries have been found on the body of the deceased except the injury with respect to ligature and opined that the cause death is asphyxia due to hanging and the manner of death is pending investigation. Spot map Ex.P/2 was prepared by the patwari and Ex.P/11 was prepared by the police. FIR Ex.P/10 was registered against the appellant for the offence under Section 306 of IPC. During investigation the call detail record of the mobile number 7828459108 and 8234940021 have been obtained by the police. The viscera of the deceased was sent for its chemical examination to State FSL, Raipur, from where report Ex.P/22 has been received and no poisonous substance was found on the viscera of the deceased in the FSL report. The appellant was arrested on 12.03.2015. The statement of 3 the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was fined against the appellant for the offence under Section 306 of IPC before the learned Chief Judicial Magistrate, Baster, Jagdalpur. 3. The case was committed to the Court of learned Sessions Judge, Baster from where the same has been transferred for its trial to the learned trial Court. 4. The learned trial Court has framed the charge against the appellant for the offence under Sections 306 of IPC. The appellant denied the charge and claimed trial. 5. In order to prove the charge against the appellant the prosecution has examined as many as 11 witnesses. The statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him, plead innocence and he has submitted that he has been falsely implicated in the offence. Two defence witnesses have been examined by the appellant in his defence. 6. After appreciation of the oral as well as documentary evidence led by the parties, the learned trial court has convicted the appellant and sentenced him as mentioned in the earlier part of the judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradictions in the evidence of prosecution witnesses. Which can not made basis for the conviction of the 4 appellant in the offence in question. There is no harassment given by the appellant to the deceased, Minoti Barman and he has not treated her with cruelty at any point of time. There is no instigation or abetment to commit suicide by him. There is no proximate time gap with the alleged act of cruelty and the incident. There is no complained made by her to any police station with respect to the cruelty allegedly committed upon her by the appellant. There is no harassment to her so as to drove her to commit suicide. She would further submit that the deceased herself was having extra marital affair which was seen by the family members of the appellant for which she has committed suicide. Since there was no instigation or abetment to commit suicide to the deceased, the offence as alleged against the appellant is not made out and he is entitled for acquittal. 8. On the other hand, learned counsel for the State opposes and have submitted that from the evidence led by the prosecution, the guilt of the appellant is clearly established. The deceased died within one year of her marriage. At the time of incident, she was carrying pregnancy for about 14 to 16 weeks. She was being pressurized by the appellant to abort her pregnancy. He would further submit that the appellant was having extra marital affair with another lady which has been proved by the call detail report in which it has been established that the appellant was having continuous conversation with the lady with whom he was having extra marital affair. The deceased was in such mental pressure that she could not bear the same and has committed suicide, which does amounts to abetment to commit 5 suicide and the learned trial Court rightly appreciated the evidence available on record and has convicted and sentenced the appellant which needs no interference. 9. I have heard learned counsel for the parties and perused the evidence available on record. 10. The unnatural death of the deceased is not in dispute in the present case as she died due to hanging and the same has also been proved by the PW-1 Dr. Kiran Patil & PW-10 Manisha Goyal who conducted the post-mortem of the dead body of the deceased. In their evidence they could not found any external injuries except the injuries on her neck due to the ligature. They have opined in their post-mortem report Ex.P/1 that the death of the deceased was due to asphyxia due to hanging and the manner of death was pending investigation. The defence has also not specifically challenged the evidence of these two doctors who conducted the post-mortem of the dead body of the deceased and thus, the finding recorded by the learned trial Court that the death of the deceased is unnatural is the finding based on proper appreciation of evidence of the doctors as well as the witnesses to the merg intimation and inquest. Which is neither perverse nor contrary to the record and I hereby affirm that finding . 11. So far as the involvement of the appellant in the offence is in question is concerned, I again examined the evidence of the witnesses available in the record. 12. PW-5 the father of the deceased has stated in her evidence that his daughter has got married on 18.11.2013 with the appellant. At the time 6 of her marriage he has given her sufficient dowry articles and thereafter, she was residing at her matrimonial house. After about 10 days of her marriage, she came to her house to perform rituals and thereafter, they returned back. After about four months his daughter has again came to his house and then she disclosed that her husband (the present appellant) is having extra marital affair with another girl, and he harassing and beating her for that reason. Her mother-in-law was also involved in harassing her along with her husband. After 3-4 months when she came along with her grand mother they came to know that she was conceived pregnancy. He also stated that when her pregnancy was came into knowledge of her husband, he pressurized her to get it aborted and when she denied for the same he beaten her and abused her. Thereafter, on 22.08.2014, he received the telephonic call about the incident and then they proceeded to Jagdalpur. In the next morning they saw her dead body hanging inside the house. In cross-examination, he admitted that he has not disclosed in his police statement that his daughter was being harassed for demand of dowry and he also admitted that he was in touch with his daughter through mobile phone. After the marriage his son-in-law has taken his daughter only once to his house and he also admitted that his daughter was having mobile phone with her and with that mobile phone he regularly talked with her. He denied the suggestion given by the defence that his daughter was having relation with one Sandeep and heavily engaged in talking with him to mobile 7 phone. He further admitted that his daughter has informed him that her husband has having extra marital affair with another girl. 13. PW-6 Smt. Malti Ghosh, is the mother of the deceased has stated in her evidence that her daughter has got married with the appellant on 18.11.2013, thereafter, she was residing in her matrimonial house. After about 4 months of her marriage, her son-in-law took her to her house, she disclosed that her husband has having illicit relation with another girl and for that reason, she was being being subjected to cruelty by her husband. Four months thereafter, when her daughter again came to her house, she further informed that due to his affair with another girl her husband pressurized her to get aborted her pregnancy and threatened her that if she will not abort the pregnancy, he will beat her. Her daughter was not permitted to meet any other person of the family and confined in a room. On 22.08.2014, they received information about the incident and they proceeded towards Jagdalpur. She admitted in her cross-examination that after about four months of her marriage when her daughter came to her house, she informed about the extra marital affair of her husband to another girl. She too have denied that her daughter was having affair with another boy, she also denied that her daughter was committed suicide for the reasons that she herself was having relation with another boy, which was came into knowledge of her husband. She also admitted that when her daughter has informed about extra marital affair of her husband, she has not lodged any report to the police. She admitted 8 the suggestion given by the defence that the deceased was being pressurized to get the pregnancy aborted. 14. PW-7, Usha Rani Ghosh, who is the grand mother of the deceased has also given the same evidence as PW-6 has given, she too have stated that after about four months of marriage when the deceased came to house she informed that her husband has extra marital affair with another girl and he pressurized her to get her pregnancy aborted and used to beat her for that reason. 15. PW-8, Sujeet Kumar Dey, who is brother-in-law of the appellant has stated in his evidence that his brother-in-law has informed him that the deceased is having illicit relation with another boy and when her relation was informed to her parents, she committed suicide. Though this witness is the relative of the appellant and stated in favour of the appellant but has not declared hostile witness. He further stated that when her affair was being informed to her parents, she was very much disturbed and had anger state of her mind. 16. PW-9, the investigating officer, B.S. Khutiya has stated in his evidence that during the investigation, he obtained the call detail report of the mobile phone No. 7828459108 and 8234940021 and from the perusal of this call detail report, it reflect that there was frequent conversation between these two mobile numbers, one belongs to the appellant and another belongs to that lady with whom he was having relation. 17. From the evidence, it is quite vivid that the deceased was married with the appellant on 18.11.2013, after about 4 months of her marriage when she was had gone to her parents house, she was well within the 9 knowledge that her husband is having extra marital affair with another lady. Four months thereafter, when she again visited to her parents house, she was carrying pregnancy of 14 to 16 weeks and at that time, she disclosed that her husband has pressurized her for get the pregnancy aborted. From the call detail report Ex.P/12-A, it reflects that there was frequent conversation between these two phone number one belongs to the appellant and another belongs to that lady. 18. In the matter of Gurucharan Vs. State of Punjab reported in (2017) 1 SCC 433, the Hon’ble Supreme Court has considered the scope of punishment for abetment under Section 306 of IPC and para 22 to 30 the Hob’able Supreme Court has observed that:- Section 107 IPC defines abetment and is extracted hereunder: “107. 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 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. Explanation1 – 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 doing. Explanation 2 – Whoever, either prior to or at the time of 10 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.” 22.Not only the acts and omissions defining the offence of abetment singularly or in combination are enumerated therein, the explanations adequately encompass all conceivable facets of t he culpable conduct of the offender relatable thereto. 23.Section 113A of the Indian Evidence Act, 1872 permits a presumption as to the abetment of suicide by a married woman by her husband or any relative of his, if it is proved that she had committed the act within a period of seven years from the date of her marriage and that her husband or such relative of his had subjected her to cruelty. The explanation to this Section exposits “cruelty” to have the same meaning as attributed to this expression in Section 498A IPC. For ready reference, Section 113A of the Indian Evidence Act, 1882 is quoted hereunder as well. “ 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 11 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. Explanation—For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).” 24. In the legislative backdrop outlined hereinabove, Section 498A of the Code also demand extraction. “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 wilful 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.” 25. This provision, as the quote hereinabove reveals, renders the husband of a woman or the relative of his, punishable hereby with imprisonment for a term which may extend to three years and also fine, if they or any one of them subject her to cruelty. The explanation thereto defining “cruelty” 12 enfolds: (a) Any wilful 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 it 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. 26. Though for the purposes of the case in hand, the first limb of the explanation is otherwise germane, proof of the willful conduct actuating the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental of physical, is the sine qua non for entering a finding of cruelty against the person charged. 27. The pith and purport of Section 306 IPC has since been enunciated by this Court in Randhir Singh vs. State of Punjab (2004)13 SCC 129, and the relevant excerpts therefrom are set out hereunder. “12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. 13. In State of W.B. Vs. Orilal Jaiswal (1994) 1 SCC 73, this Court has observed that the courts 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 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 of abetting the offence of suicide should be found guilty.” 13 28. Significantly, this Court underlined by referring to its earlier pronouncement in Orilal Jaiswal (supra) that courts have to be extremely careful in assessing the facts and circumstances of each case to ascertain as to whether cruelty had been meted out to the victim and that the same had induced the person to end his/her life by committing suicide, with the caveat that if the victim committing suicide appears to be hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which he or she belonged and such factors were not expected to induce a similarly circumstanced individual to resort to such step, the accused charged with abetment could not be held guilty. The above view was reiterated in Amalendu Pal @ Jhantu vs. State of West Bengal (2010) 1 SCC 707. 29. That the intention of the legislature is that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option, had been propounded by this Court in S.S. Chheena vs. Vijay Kumar Mahajan (2010) 12 SCC 190. 30. In Pinakin Mahipatray Rawal vs. State of Gujarat ( 2013) 10 SCC 48, this Court, with reference to Section 113A of the Indian Evidence Act, 1872, while observing that the criminal law amendment bringing forth this provision was necessitated to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives demanding dowry, it was underlined that the burden of proving the preconditions permitting the presumption as I ngrained therein, squarely and singularly lay on the prosecution. That the prosecution as well has to establish beyond reasonable doubt that the deceased had committed suicide on being abetted by the person charged under Section 306 IPC, was emphasised. 19. From the close scrutiny of the evidence, it is quite vivid that the deceased was in such mental pressure that within one year of her marriage, she came to know her husband is having extra marital affair, 14 when she conceived pregnancy, she was pressurized by her husband to get it aborted, she was harassed for the same and despite her protest she could not came out from the said agony, she committed suicide, which can not be said that there is no abetment or instigation by the appellant to commit suicide. The conduct of the appellant clearly drove the deceased to commit suicide. The learned trial Court after appreciate of evidence available on record has rightly convicted the appellant for the offence under Section 306 of IPC, and this Court has affirm the conviction of the appellant for that offence. 20. So far as the sentence part is concerned, the offence of 306 of IPC does not provide any minimum sentence. The offence is alleged to have been committed in the year 2014. The appellant remained in jail from 13.03.2015 till 31.03.2016 when the bail was granted to him by this Court and his sentence was suspended, thereby he undergone one year and 18 days of his sentence. There are allegation and counter allegation against the extra marital affair against each other and in view of the peculiar facts and circumstance of the present case, this Court deem fit to reduce the sentence awarded to the appellant. 21. In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in (1977) 3 SCC 287 Hon’ble Supreme Court has observed that If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows: “9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817 : “The laws of England are written in blood”. Alfieri 15 has suggested : 'society prepares the crime, the criminal commits it'. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed. that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : “If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences.” 22. Considering the peculiar facts and circumstances of the present case, the nature of evidence led by the prosecution and allegation against the present appellant and also in view of the aforesaid law laid down by the Hon’ble Supreme Court in Mohammad Giasuddin (Supra), while maintaining the conviction of the appellant for the offence under Section 306 of IPC, his sentence is reduced for the period already undergone by him with fine of Rs.5,000/-. It is stated that the fine amount of Rs.5,000/- has already been deposited by the appellant before the learned trial Court. 16 23. Accordingly, the appeal is partly allowed. 24. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Vaibhav/alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.04.04 12:18:32 +0530