Judgment:
Pritinker Diwaker, J.
1. This appeal is directed against the judgment dated 6-8-1996 passed ; by he Additional Sessions Judge, Dhamtari in Sessions Trial No. 299/1994 convicting the appellant for the offence punishable under Section 306 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for four years and pay fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for six months.
2. Case of the prosecution in brief is that marriage of deceased-Nita with the present appellant was performed in the year 1990 and out of their wedlock two children were born. Further case of the prosecution is that from the very beginning of marriage the deceased was subjected to cruelty by the appellant and his mother namely Phulbasan Bai for demand of dowry as a result of which she committed suicide on 20-3-1994 by consuming poison. Merg intimation Ex. P-9 was given by an employee of the hospital and thereafter FIR Ex. P-13 was registered on 9-4-2004. Dead body of Nita was sent for post-mortem examination to Government Hospital, Dhamtari where Dr. Ramesh Kumar Tripathi (PW-9) conducted the post-mortem and vide his report (Ex. P-6) opined that cause of death was cardio-respiratory failure as a result of poisonous substance. After completion of investigation charge-sheet was filed against the accused/appellant and his mother Phulbasan Bai.
3. So as to hold the accused/appellant guilty, prosecution has examined as many as 19 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.
4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offence as mentioned above. However, accused-Phulbasan Bai was acquitted of the charge levelled against her.
5. Heard counsel for the parties and perused the material available on record including the judgment impugned.
6. Counsel for the appellant submits that the deceased was having some mental disorder even before her marriage and was being treated for the same. He submits that even after her marriage, the deceased continued to suffer from mental impairment and as a result of which she committed suicide. He submits that conviction of the appellant is based on the statement of Malti Bai (PW-19) who happened to be closely related to the deceased. According to him, though this witness has made an allegation against the appellant saying that the deceased used to inform her about being subjected to cruelty by the accused, she has categorically admitted that she has never seen the appellant assaulting or beating the deceased. He submits that the marriage of the deceased with the appellant was performed through Sukhi Ram (PW-6) - father of Malti (PW-19) which itself shows that Malti has not stated the facts correctly before the Court. He submits that the statement of the brother of the deceased namely Ramnath Sahu (PW-3) is wholly unreliable for the reason that not only he has exaggerated his version in the Court but has implicated the appellant simply because his sister has died. According to him, even if the entire case of the prosecution is taken as it is the offence under Section 306, I.P.C. is not made out as the ingredients of abetment laid down in Section 107, I.P.C. are totally missing in this case.
7. On the other hand supporting the impugned judgment counsel for the respondent/State submits that the accused/appellant used to harass the deceased for demand of dowry to such an extent that she was compelled to take the extreme step of suicide and, therefore, the impugned judgment being wholly justified does not require any interference in appeal.
8. Heard counsel for the parties and perused the material available on record including the judgment impugned.
9. Shiv Prasad (PW-l)-father of the deceased has stated in his evidence that the marriage of his daughter (the deceased) had taken place with the appellant in the year 1990. He has stated that when on the occasion of Hareli festival his daughter had come to his house, she had told him to have been harassed and subjected to cruelty by the appellant and his mother saying that the ring, wrist watch, fan and cycle which had been given as dowry were of sub-standard quality. This witness has further stated that the appellant had written a letter to him vide Ex. P-1 demanding dowry. According to this witness, as the deceased was not feeling well, he had asked the appellant to provide proper treatment to her. In the cross-examination this witness has admitted that even before marriage the deceased was having some mental problem and for that she was taken to a place known as Meeradatar for treatment. He has further stated that when mental condition of the deceased had improved, her marriage was solemnized. This witness has admitted that he had informed the appellant before marriage in respect of mental disorder of the deceased. Similar is the statement of Ganga Bai (PW-2), the mother of the deceased where she has stated that her daughter was subjected to cruelty by the appellant and his mother. However, in paragraph 7 of her cross-examination she has admitted that her daughter was having some mental problem even before marriage. Statement of Ramanath Sahu (PW-3) goes to show that he has tried to make improvements in his Court statement and the same is full of contradiction and omissions in comparison to the statement recorded under Section 161 of the Code of Criminal Procedure. The prosecution has filed a letter written to the father of the deceased vide Ex. P-1 in which it is mentioned that the deceased was not obeying his instructions and used to behave in an abnormal manner. The said letter further mentions a request made by the appellant to the father of the deceased to come to him and explore some solution. A bare perusal of the letter (Ex. P-1) makes it clear that there was no demand of dowry ever made by the appellant and the same appears to have been written when the appellant was in frustrated state. Sukhi Ram (PW-6), father of Malti (PW-19) has stated in his statement that his daughter Malti had told him that the deceased was subjected to harassment and cruelty by the appellant and his mother but he was not aware as to how much dowry was given to the appellant by the father of the deceased. Angesh (PW-7) - the brother of the deceased has also made an allegation against the appellant regarding cruelty, but from his statement it is apparent that he too has improved his version by way of exaggeration. Dr. Bhojraj Sahu (PW-8) has stated in his statement that he practices medicine and once when the deceased had consumed poison she was brought to him for treatment. Dr. Ramesh Kumar Tripathi (PW-9) who had conducted the post-mortem examination on the dead body of the deceased has stated that no external injury was noticed by him on the body of the deceased and that she had died due to consumption of poison. Malti (PW-19) has stated that she was the neighbour of the deceased who was her so-called sister also. She has stated that the deceased used to inform her about the cruelty meted out to her by the appellant and his mother. This witness has, however, admitted that she had never seen the accused demanding dowry or subjecting the deceased to cruelty. Though this witness had seen the deceased on the date of incident with some injury on her hand which was bleeding also, this aspect of her statement does not get support from the statement of Dr. Ramesh Kumar Tripathi (PW-9) who had conducted the postmortem examination on the body of the deceased. Moreover, as the marriage of the deceased with the appellant had taken place through the father of this witness, her statement also appears to be doubtful.
10. Thus, in the light of the aforesaid discussion, the crucial question to be answered by this Court is whether the allegations made against the appellant can make out a case under Section 306, I.P.C. Answer is of course 'no' for the reason that the ingredients of abetment defined under Section 107, I.P.C. do not have even a fleeting glimpse thereto. To have a ready reference, the said provision is reproduced as under:
Section 107. 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.
Explanation 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.
11. To convict a person for an offence under Section 306, I.P.C. it has to be seen that instigation to do a particular thing must be there. 'Instigation' literally means provocation, incitement, urge or persuation to do anything. In this case none of the witnesses has made even a whisper that the deceased was abetted by the appellant to commit suicide. Most of the witnesses including the parents of the deceased have stated that the deceased was not having mental equilibrium even before marriage and was receiving treatment for the same. Thus it can. be presumed that the deceased might have taken this extreme step at the cost of her life under the influence of mental imbalance. Even according to the statement of Shiv Prasad (PW-1) once the accused/appellant had written a letter (Ex. P-l) to him requesting to visit him and solve the problem as the deceased was not obeying his instructions. The entire evidence brought on record goes to show that the deceased was not actuated by any abetment to end her life by committing suicide rather it is the mental imbalance which drove her to do so.
12. The aforesaid discussion if weighed with the evidence on record, does not give any clue to maintain the impugned judgment convicting and sentencing the appellant as shown above. Impugned judgment is not in consonance with the material collected by the prosecution and, therefore, it has to be dislodged.
13. Appeal, as a result, is allowed and the judgment impugned is set aside. Appellant is acquitted of the charge levelled against him. He be let loose if not required in any other case.