NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Cr.A.No. 1044 of 2004 Lala Ram, S.o. Prem Lal Kashyap, aged about 18 Years, R/o. Village – Jarvekkhund, Police Station – Janjgir, District – Janjgir - Champa (C.G.) ---- Appellant Versus State of Chhattisgarh, Through – Station House Officer, Police Station - Janjgir, District – Janjgir-Champa (C.G.) --- Respondent ______________________________________________________________ For the Appellant : Shri Y.C. Sharma, Senior Advocate along-with Shri Ajay Chandra, Advocate. For State / Respondent : Shri Abhishek Singh, Panel Lawyer. ____________________________________________________________ Hon'ble Shri Justice Sachin Singh Rajput Judgment on Board 27/02/2025 1. This appeal has been filed under section 374 (2) of the Code of Criminal Procedure, 1973 (for short CrPC) arising out of the impugned judgment dated 25/11/2004 passed by the III Additional Sessions Judge (F.T.C.), Janjgir (C.G.) in Session trial No. 318/2004, by which the appellant has been convicted and sentenced in the following manner : Conviction Sentence Under Section 498 (A) of IPC R.I. for 03 years and fine of Rs.500/- in default of payment of fine additional R.I. for 02 months. Under Section 306 of IPC R.I. for 10 years and fine of Rs.500/- in default of payment of fine additional R.I. for 02 months. 2. The admitted facts of this case is that the appellant is husband, co-accused - Premlal ASHISH TIWARI Digitally signed by ASHISH TIWARI Date: 2025.03.22 14:50:30 +0530 -2- and Rambati Bai are the parents-in-law of the deceased Smt. Brindabai. However, Trial Court acquitted the appellant’s Father – Premlal and Mother – RambatiBai. 3. Case of prosecution, in nutshell, is that, the deceased - Brindabai committed suicide by setting herself on fire inside the room on 28/06/2004, at her husband’s residence. Brother of appellant – Rajkumar Kashyap (PW-1) informed about the incident to the Police Station – Janjgir, upon which merg intimation was registered. Panchnama of the dead body was prepared vide Ex.P/10, Ex.P/11 in presence of the witnesses vide Ex.P/12. Spot Panchanama was prepared vide Ex.P/8. Seizure of container with kerosene, match box etc. was made vide Ex.P/4. Autopsy on the dead body of the deceased was conducted by Dr. B.S. Chandel with Dr. Nandini Chandrawanshi who gave their report vide Ex.P/13 & Ex.P/14 which says that the cause of death was shock and asphyxia, extensive burn and duration of death is within 24 hours. During the course of investigation it was found that the deceased was subjected to cruelty and assault as result of which she committed suicide by setting herself on fire. After due investigation, F.I.R. was lodged under sections 306/34 of the IPC and upon completion of investigation, charge-sheet was filed before the JMFC (FTC) - Janjgir for the aforesaid offences who in turn made over the case to the trial Court. 4. The appellant along-with co-accused was charged for an offence punishable under sections 306,304-B/34 and 498-A of the IPC who denied the charges and claimed to be tried. 5. In order to establish the guilt of the appellant, prosecution has examined as many as 13 witnesses and exhibited 16 documents. The statements of the accused persons under 313 of the Cr.P.C. were recorded in which they pleaded their innocence and false implication, and examined defense witnesses DW/1, DW/2 and DW/3. 6. The learned trial court after due appreciation of evidence acquitted the appellant U/s. 304-B IPC, but convicted and sentenced him as stated above by the impugned judgment which give rise to the present appeal. 7. Shri Y.C. Sharma, learned Senior Advocate for the appellant submits that the prosecution was not able to prove the case against the appellant beyond reasonable -3- doubt. He submits that no admissible evidence is available against the appellant to hold him guilty under section 306 and 498-A of the IPC as the ingredients of abetment contained in section 107 of the IPC have not been fulfilled by the prosecution by way of clinching evidence. He further submits that there is no evidence on record to show that the deceased was subjected to cruelty which left no choice to her except to commit suicide. The allegation against the appellant is that because of a dispute between husband and wife assault was made by him to deceased. He further submits that prosecution has relied upon the statement of Khaman (PW-2) and Triveni Bai (PW-7). Reading of their Court statement clearly shows that there is material omission if seen with the statement under section 161 of the CrPC. He submits that an exaggerated statement has been made by these witnesses and therefore conviction of the appellant based upon such evidence cannot be sustained. Alternatively he submits that in the event this Court is not convinced with his submission on conviction, keeping in mind the fact that the appellant remained in jail for about 06 months and considerable time has already gone by, therefore, the sentence awarded to the appellant may be reduced to the period already undergone. To strengthen his submissions, he placed reliance upon the judgment of Hon’ble Supreme Court in case of KashiBai & Ors. Vs. The State of Karnataka, 2023 Livelaw (SC) 149 and Mariano Anto Bruno & Anr. Vs. The inspector of Police, 2022 Livelaw (SC) 834. 8. Per contra, learned Counsel for the State submits that prosecution by way of prudent and cogent evidence has clearly established the guilt of the appellant beyond reasonable doubt. He submits that the evidence of prosecution clearly goes to show that deceased was subjected to cruelty and harassment, and also assaulted by the appellant. He submits that the instigation was so severe that the deceased was left with no other option but to commit suicide, and therefore, no interference is warranted in the finding given by the learned trial court and the appeal thus may be dismissed. 9. Heard learned counsel for the parties, carefully considered their rival submission and also perused the record with utmost circumspection. -4- 10. The suicidal death of the deceased - Smt. Brindabai is not in dispute. From the statement of Dr. B.S. Chandel (PW-11) Khaman (PW-2) and Triveni Bai (PW-7), it is apparent that deceased committed suicide by setting herself on fire. 11. This court is required to see as to whether the prosecution was able to bring home the guilt of the appellant under section 306 of the IPC beyond reasonable doubt. In order to appreciate the arguments advanced by the learned counsel for the parties, the provisions contained in section 107 and 306 of the IPC are required to be referred to, which are reproduce as under:- Section 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.” Explanation 1. A person who, by willful misrepresentation, or by willful 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. 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 facilitates the commission thereof, is said to aid the doing of that act. Section 306. Abetment of Suicide “Abetment of Suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine. 12. Section 306 of the IPC has two basic ingredients - (i) enact of suicide by one person and (ii) the abetment to the said act by another person. In order to sustain a charge under section 306 of the IPC, it must necessarily be proved that the accused person contributed to suicide by deceased by some direct or indirect act. To prove such contribution or involvement, one of three conditions outlined under section 107 of the IPC has to be satisfied. -5- 13. Sections 306 and 107 of the IPC, have been interpreted time and again by the Hon’ble Supreme Court and its principle as well established. To make out the offence of abetment to suicide, it is important to establish the direct or indirect instigation or incitement of suicide by the accused, which must be inclose proximity to the commission of suicide by the deceased. Such instigation or incitement should reveal a clear mens rea to abet the commission of suicide and put the victim in such position that he/she has no other option but to commit suicide. 14. It is therefore, evident that the positive act of instigation is a crucial element of abetment. While dealing with the similar issue, the Hon’ble Supreme Court in the case of Ramesh Kumar Vs. State of Chhattisgarh (2001) 9 SCC 618, has held as under:- 20.“ Instigation is to goad, urge, forward, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of an instigation though it is not necessary that actual word must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequences. Where the reasonable certainty to incite the consequences 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 intention the consequences to actually follow cannot be said to be investigation.” 15. It could be thus seen that the Hon’ble Supreme Court observed that a instigation is to goad, urge forward, provoke incite or encourage to do an act. It has been held that in order to satisfy the requirement of instigation though it is not necessary that actual word must be used to that effect or word constitute the instigation must necessary and specifically be suggesting of the consequence, however a reasonable certainty to incite the consequence be capable must be capable of being spelt out. Applying the law to the facts of the case the Hon’ble Supreme Court went on to hold that a word uttered in a fit of anger or emotions without intending the consequence to actually follow cannot be said to be instigation. In case of Mariano Anto Bruno & Anr. (supra) as relied upon by the Senior Counsel, the Hon’ble Supreme Court has held as -6- under: “In cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide must be proof of direct allegation of harassment without their being any positive action Merely on the allegation of harassment without their 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 IPC is not sustainable.” “Each suicide is a personal tragedy that prematurely takes the life of an individual and has a continuing ripple effect, dramatically affecting the lives of families, friends and communities. However, the court of law while adjudicating is not to be guided by emotions of sentiments but the dictum is required to be based on analysis of facts and evidence on record.” 16. Yet again in case of KashiBai & Ors. (supra), it has been held as under: “Mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC.” “In order to convict a person for the offences under Section 306 IPC, the basic constituents of the offence namely where the death was suicidal and whether there was an abetment on the part of the accused as contemplated in Section 107 IPC have to be established. In order to bring the case within the purview of ‘Abetment’ under Section 107 IPC, there has to be an evidence with regard to the instigation, conspiracy or intentional aid on the part of the accused. For the purpose proving the charge under Section 306 IPC, also there has to be an evidence with regard to the positive act on the part of the accused to instigate or aid to drive a person to commit suicide.” 17. In the case of Gangula Mohan Reddy Vs. State of Andhra Pradesh (2010) 1 SCC 750, Hon’ble Supreme Court while interpreting Section 306 IPC held that : “Abetment in law is a mental process of instigating a person or intentionally aiding a person in doing of a thing held without a positive act on the part of a proof to instigate or aid in committing the suicide, there cannot be any conviction.” -7- 18. In the case of M. Mohan Vs. State represented by Deputy Superintendent of Police (2011) 3 SCC 626, Hon’ble Supreme Court has held as under:- “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 cannot 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.” 19. Prosecution by virtue of evidence of Safarbai (PW-6) and Trivenibai (PW-7) tried to establish on record that deceased was subjected to harassment which led to the instigation by the appellant and ultimately left the deceased with no choice except to commit suicide. PW-6 is the mother of the deceased and on perusal of her statement it appears that when the deceased and the appellant came to her house and stayed there for four days, the mother asked to deceased of her well being on which she informed that she was in pain as she was assaulted by her in-laws and was abused filthily calling (Jojli) and also taunted on account of her not being able to cook. She further stated that at the time of return, the appellant ask her mother to sell 02 acres of land otherwise Brindabai would be killed by burning. She further goes on to depose that along with the deceased and appellant her daughter had also gone with her and stayed there for one week. She deposed that when she enquired from Trivenibai (PW-7) nothing was told to her. Later on, she informed that her sister was in pain. After two days of informing this by Trivenibai (PW-7), the news of the death of the deceased came. She further stated that when she asked Trivenibai (PW-7) as that how Brindabai was in pain it was informed that appellant used to assault the deceased, press her neck and demand 02 acres of land. She was subjected to lengthy cross-examination. The factum of asking for selling of 02 acres of land or else the deceased - Brindabai would be killed by burning is missing -8- from the statement of this witnesses recorded under section 161 of the CrPC Ex. D/2. Perusal of cross examination of this witness also indicates that material omission is there in the statement recorded under section 161 of the CrPC. The fact that Triveni Bai informed him with regard to the trouble and assault sustained by deceased – Brindabai is not mentioned under section 161 of the CrPC. Cumulative assessment of statement of this witness clearly goes to show that she was informed by her daughter that she was called Jojli and taunted on account of her not being able to cook, but the omission with regard to material particulars is there with regard to selling of the agricultural land and informing about the sadness (pain) of the deceased by her daughter Trivenibai (PW-7). Of Course, the statement of the Trivenibai (PW-7) is in the same context. She also stated she lived with the appellant and deceased for seven days and she was seeing that the deceased was assaulted in the night by the appellant and one day she pressed her neck also. She further stated that the deceased has asked her not to inform this fact to the mother and therefore the same has not told to her mother. The factum of selling of the land was inform by her brother and mother but that is missing from her statement under section 161 CrPC (Ex.D/3). She also stated that assaulted made by the appellant one month prior to death of her sister was told by her mother whereas initially that PW-6 stated that it was not informed by her but later informed. It is true that every omission and contradiction in the statement under section 161 of the CrPC cannot be fatal for the case of the prosecution. In the case in hand material particulars like sale of the agricultural land and in absence of it killing of the deceased - Brindabai by burning and also informing the said thing by PW-6 and PW-7 missing from the respective statement recorded by the Police. The only things which comes out that there was some domestic dispute at assault being made by the appellant to the deceased. Whether on the basis of such evidence on record, ingredients of Section 107 of the IPC are satisfied appears to be doubtful from the cogent and prudent evident it is not established that the harassment of the deceased by the appellant is continuous or left the deceased with no choice except to commit suicide. Therefore this Court is unable to holdup the conviction of the appellant under section 306 of -9- the IPC and it is hereby set-aside. 20. Now the next question to be decided is whether the prosecution was able to bring home the guilt under section 498A of the IPC or not ? To sustain the conviction under this provision, in light of PW-6 is a witness who has been told about the harassment or assault made by the appellant is a hearsay witness. However, the doctrine of hearsay witness would not stricto senso apply in this case. The things which are required to be determined by this Court are as to whether such evidence is to be admitted holding conviction under section 498A. PW-6 initially stated that a daughter told that she is in pain and her in-laws was abused filthily calling (Jojli) and taunted on account of not been able to cook. PW-6 also made material omission by improving the case in fact that she would be killed by burning and initially she stated that Trivenibai (PW-7) has not informed on being enquired but subsequently she was told by PW-6 whereas PW-7 stated that she told her mother PW-6 whether which contradicts the statement of each other. 21. Therefore in light of the above discussion, this court is of the view that prosecution was not able to bring home the guilt of the appellant. Appeal deserves to be allowed and the appellant acquitted from all the charges. 22. Since the appellant is reported to be on bail, his bail bond shall remain in force for a period of six months from today in view of the provision of Section 481 of BNSS, 2023. 23. The record be sent back to the trial Court along with a copy of this order for necessary compliance and information. Sd/- Sd/- (Sachin Singh Rajput) Judge Ashish