HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 31 Case :- CRIMINAL APPEAL No. - 620 of 1997 Appellant :- Ram Sharan Respondent :- State of U.P. Counsel for Appellant :- Arun Sinha,Rajiva Dubey Counsel for Respondent :- Govt. Advocate Hon'ble Rajeev Singh,J.
Heard learned counsel for the appellant and the learned A.G.A.
The present appeal has been filed against the judgment and order dated 30th September, 1997 passed by III Additional Sessions Judge, Lakhimpur Kheri in Session Trial No. 110 of 1990 arising out of Case Crime No. 80 of 1989, P.S. Fardhan, District Kheri, convicting and sentencing the appellant under Section 498-A I.P.C. to 2 years R.I. with fine of Rs.1000/-, in default whereof, he was ordered to undergo R.I. for further 6 months. Appellant was also sentenced to undergo 7 years R.I. under Section 306 I.P.C. with fine of Rs.2000/-, in default of payment of which, further one year’s R.I. was ordered. The sentences, so awarded, were to run concurrently.
As per the prosecution case, daughter of the informant committed suicide on 16th June, 1989 due to cruel behaviour of the accused persons, namely, Ram Sharan (appellant) and Rambeti. Allegations made in the F.I.R. are that the marriage of the deceased was solemnized with Ram Sharan. On last Thursday, after the ‘bidai’ ceremony, daughter of the informant went to her in-laws house. On receiving the information that her daughter was set ablaze due to victimization of her husband and parent-in-law and was brought to the hospital, informant went to the hospital, where her daughter informed her that due to ill-treatment by her in-laws, she did not want to live, as such, committed suicide, due to which, she died later on.
After lodging of the F.I.R., inquest of body of the deceased was conducted and thereafter body was sent for post-mortem. Investigating Officer after preparing site plan and recording the statement of the witnesses, prepared a charge sheet under Sections 498-A, 306 I.P.C., on which, the court below took cognizance and the case was committed to the court of Session and was registered as S.T. No. 110 of 1990 (State vs. Ram Sharan & Ors.). Appellant denied the guilt and requested for trial.
Prosecution, in support of the case, placed 10 witnesses, namely, Phool Mati (informant)-P.W. 1, Brijendra-P.W. 2, Gyanendra Kumar-P.W. 3, Ashok Kumar-P.W. 4, Head Constable, Kiran Shanker Mishra-P.W. 5, Dr. B.K. Mishra-P.W. 6, Dr. P.K. Dixit-P.W. 7, Ram Naresh Yadav-P.W. 8, Akhlakh Ahmad-P.W. 9 and Sub Inspector K.N. Bhatt-P.W. 10. After completion of the prosecution witnesses, statement under Section 313 Cr.P.C. was also recorded. Thereafter, impugned order of conviction was passed in relation to the present appellant, however, the parent-in-law were acquitted. Hence, the present appeal.
Learned counsel for the appellant submitted that no case under Section 306 is made out. He further submitted that appellant is 45% disabled. He further submitted that the court below failed to appreciate the oral evidence of witnesses of the facts as P.W. 1, P.W. 2 and P.W. 3. He also submitted that in the statement of P.W. 1-Phool Mati, she stated that her daughter, who was aged about 18 years, was brought back to her in-laws house by her in-laws. She further stated that at the time of ‘bidai’, her daughter was associated with her brother, Brijendra and nephew Gyanendra Kumar, who after staying there for one week, came back.
Learned counsel for the appellant further submitted that the informant, at one place, stated that her daughter was being victimized, but on other place, she stated that her daughter was victimized a little bit. Similarly, on one hand, she stated that her daughter was not beaten by her in-laws, but in the same statement, she stated that her daughter was being beaten by them. Learned counsel for the appellant also submitted that since her statements are contradictory, a specific question was asked by the court that whether her daughter was forced to commit suicide, she answered ‘No’. In her statement, P.W. 1 also stated that she was not present in her last ritual and the last ritual of the deceased was performed by her in-laws.
Drawing the attention of the Court towards the statement of P.W. 2, learned counsel for the appellant submitted that P.W. 2 stated that due to preparation of the soft drink, her brother-in-law was annoyed and misbehaved with his sister. Thereafter, he went to school. In his statement, Gyanendra Kumar-P.W. 3, nephew of the deceased informed that dispute was taken place for preparation of the soft drink. Thereafter, he received information that her aunt committed suicide and she was admitted in District hospital, Lakhimpur. P.W. 3 also deposed that the deceased had brought some medicine with her from the District hospital as she was suffering from chronic stomach pain.
Learned counsel for the appellant relying on the decision of the Hon’ble Supreme Court passed in the case of State of West Bengal Vs. Indrajit Kundu & Ors., (2019) 10 SCC 188, submitted that the suicide committed by the victim cannot be said to be a result of the action on the part of the appellant, nor can it be said that commission of suicide by the victim was the only course open to her due to action of the accused-appellant. He also relied on the judgment of the Hon’ble Supreme Court passed in the case of Prahladdas Vs. State of M.P. & Ors., Manu/SC/1229/1995. Further relying on para 25 of the order of the Hon’ble Supreme Court passed in the case of Pinakin Mahipatray Rawal Vs. State of Gujarat, AIR 2014 SC 331, learned counsel for the appellant submitted that presumption under Section 113A of the Evidence Act is not attracting in the present case.
Learned A.G.A. while opposing the argument advanced by the learned counsel for the appellant submitted that there is no illegality in the impugned judgment and order dated 30.09.1997. He further submitted that minor discrepancies in the statement of witnesses cannot be interfered. He also submitted that deceased died within 7 years from her marriage due to cruelty after setting ablaze herself and, therefore, the appeal is liable to be dismissed.
I have considered the arguments advanced by the learned counsel for the parties and gone through the record.
It is undisputed that the marriage of the deceased was solemnized with the appellant when he was student. In the statement of P.W. 1, informant stated that marriage of her daughter was solemnized with the appellant one year back. Informant further stated that her daughter went to her in-laws house along with her brother and nephew. P.W. 1, in her statement, herself deposed that her daughter made complaint of little bit cruelty. She also stated that last rites of her daughter was performed by her in-laws and not by the informant and her family members. In the F.I.R. lodged by P.W. 1, she categorically stated that she was informed about the incident by the in-laws of her daughter and then she reached to the District hospital where her daughter stated that due to cruelty of the in-laws, she committed suicide.
P.W. 3, in his statement, accepted that deceased was suffering from chronic pain in the stomach, as a result, she brought medicine from the paternal house at the time of ‘bidai’ and when the in-laws asked about the medicines, the deceased avoided to discuss about the same.
It is apparent from the record that the deceased, after the ”bidai, lived in her in-laws house only for a week. In the statement under Section 313 Cr.P.C., specific averments have been made that the deceased committed suicide as she was suffering from pain, but, admittedly, this fact was not dealt by the trial court.
In the case of State of W.B. Vs. Indrajeet Kundu & Ors. (supra) that a word uttered in the fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation. Relevant paras 11 to 17 of the report are reproduced hereinbelow.
“11. From the material placed on record, it is clear that the respondents are sought to be proceeded for charge under Sections 306/34 mainly relying on the suicide letters written by the deceased girl and the statements recorded during the investigation. Even according to the case of de facto complainant, Respondents 2 and 3 who are parents of the first respondent shouted at the deceased girl calling her a call girl. This happened on 5-3-2004 and the deceased girl committed suicide on 6-3-2004. By considering the material placed on record, we are also of the view that the present case does not present any picture of abetment allegedly committed by the respondents. The suicide committed by the victim cannot be said to be the result of any action on the part of the respondents nor can it be said that commission of suicide by the victim was the only course open to her due to action of the respondents. There was no goading or solicitation or insinuation by any of the respondents to the victim to commit suicide. In Swamy Prahaladdas v. State of M.P. [Swamy Prahaladdas v. State of M.P., 1995 Supp (3) SCC 438 : 1995 SCC (Cri) 943] this Court while considering utterances like “to go and die” during the quarrel between husband and wife, uttered by the husband held that utterances of such words are not direct cause for committing suicide. In such circumstances, in the aforesaid judgment this Court held that the Sessions Judge erred in summoning the appellant to face the trial and quashed the proceedings.
12. In the judgment in Ramesh Kumar v. State of Chhattisgarh [Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 : 2002 SCC (Cri) 1088] this Court has considered the scope of Section 306 and the ingredients which are essential for abetment as set out in Section 107 IPC. While interpreting the word “instigation”, it is held in para 20 as under:
“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 anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”
13. Similarly in the judgment in Sanju v. State of M.P. [Sanju v. State of M.P., (2002) 5 SCC 371 : 2002 SCC (Cri) 1141] when any quarrel which has taken place between husband and wife in which husband has stated to have told the deceased “to go and die”, this Court has held that the suicide committed two days thereafter was not proximate to the quarrel though the appellant was named in the suicide note and that the suicide was not the direct result of quarrel when the appellant used abusive language and told the deceased to go and die.
14. Judgments referred above support the case of the respondents, except stating that on 5-3-2004 when the deceased went to the premises of the first respondent, his parents who are Respondents 2 and 3 addressed her as a call girl. At the same time by applying the judgments referred above we are of the view that such material is not sufficient to proceed with the trial by framing charge of offence under Sections 306/34 IPC. It is also clear from the material that there was no goading or solicitation or insinuation by any of the respondents to the victim to commit suicide.
15. The learned counsel appearing for the appellant State has placed reliance on the judgment in Soma Chakravarty [Soma Chakravarty v. State, (2007) 5 SCC 403 : (2007) 2 SCC (Cri) 514] , wherein this Court has held that when there is material to show that the accused might have committed offence it can frame charge and the probative value of the material on record cannot be gone into at the stage, before the trial court.
16. Reliance is placed on the judgment in Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] , where this Court has held that the Judge while considering the question of framing the charges has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
17. The judgment relied on by the learned counsel for the State in Chitresh Kumar Chopra v. State (NCT of Delhi) [Chitresh Kumar Chopra v. State (NCT of Delhi), (2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] , this Court has held that 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. To draw the inference of instigation it all depends on facts and circumstances of the case: whether the acts committed by the accused will constitute direct or indirect act of incitement to the commission of suicide is a matter which is required to be considered in the facts and circumstances of each case. As such we are of the view that the judgments relied on by the learned counsel for the State would not assist in supporting his arguments.”
In the case of Prahladdas (supra), Hon’ble Apex Court laid down that in the heat of moment between quarrelling people, the words used are casual in nature. These words would be carried out in all events, but do not reflect the requisite mens rea or abetment.
Legislative mandate of Section 113A is that when a women commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected to her to cruelty as per the terms defined in Section 498A I.P.C., the Court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. However, in the case of Pinakin Mahipatray Rawal (supra), while dealing with the provision of Section 113A of Indian Evidence Act, Hon’ble Apex Court held that though a presumption could be drawn, but the burden of proof of showing that such an offence has been committed by the accused under Section 498A I.P.C., is on the prosecution. In the present case, no such evidence of cruelty is made out and only on the basis of contradictory evidences, the conviction has been awarded.
In the case of Rajbabu & Anr. Vs. State of Madhya Pradesh, (2008) 17 SCC 526, Hon’ble Supreme Court held that the mere fact that a woman commits suicide within seven years of her marriage and she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The court is required to look into all the other circumstances of the case. One of the circumstance, which has to be considered by the court, is whether the cruelty was of such nature as was likely to drive the woman to commit suicide.
Paras 19 and 20 (relevant) are reproduced as under:
“19. Under Section 113-A of the Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband or any relative of her husband had subjected her to cruelty. Section 113-A gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word “cruelty” in Section 498-A IPC.
20. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] wherein this Court observed: (SCC pp. 626-27, para 12) “12. This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression ”may presume’ suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to ”all the other circumstances of the case’. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression–”the other circumstances of the case’ used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase ”may presume’ used in Section 113-A is defined in Section 4 of the Evidence Act, which says–”Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.’ “
(emphasis in original) It appears that the prosecution relied on the oral evidence of 10 witnesses produced before the court. P.W. 3, in his statement, stated that deceased was suffering from stomach pain, on account of which, when she was coming to her in-laws house, she brought medicine with her, but she avoided to discuss about it with her in-laws. It is further evident from the statement under Section 313 Cr.P.C., that the specific plea was taken by the accused-appellant that deceased committed suicide due to abdomen pain, which fact is fortified with the statement of P.W. 3. Further, no such evidence of cruelty, as defined in Explanation clause of Section 498A I.P.C. is found and, therefore, provision of Section 113A of Indian Evidence Act will not be applied in the present case, as neither any wilful conduct of cruelty nor any demand of dowry is made out. It is also evident that last rites of the body of deceased was performed by her in-laws, and except the ligature mark, no any injury over the body of deceased was found.
In such circumstances, charges framed against the appellant under Sections 498A and 306 I.P.C. are not made out. Accordingly, I find that the judgment of conviction and order of sentence passed against the appellant suffers from grave illegality and irregularity, thus, the same cannot be sustained.
For the foregoing facts and discussions, the appeal is allowed. Impugned judgment of conviction and order of sentence dated 30.09.1997 is set aside. Appellant is on bail, thus, he is discharged from the liability of bail bonds furnished by him.
Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record alongwith copy of the judgment to ensure compliance.
February 28, 2020 VKS