State of M.P. Vs. Kamla Bai and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/503274
SubjectCriminal
CourtMadhya Pradesh High Court
Decided OnSep-15-1992
Case NumberCrl. A. No. 156 of 1986
JudgeV.D. Gyani and ; A.R. Tiwari, JJ.
Reported inI(1993)DMC160
ActsIndian Penal Code (IPC), 1860 - Sections 306; Evidence Act, 1872 - Sections 113A
AppellantState of M.P.
RespondentKamla Bai and anr.
Appellant AdvocateA.S. Kutumbale, Govt. Adv.
Respondent AdvocateNone
DispositionAppeal dismissed
Cases Referred(Wazir Chand and Anr. v. State of Haryana
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - it could not also be certainly said that there was deliberate delay on part of the husband and the father-in-law in taking her to hospital or in making better treatment available to her. intentional aiding and therefore active complicity is the gilt of the offence of abetment under the third paragraph of section 107.'11. having gone through the record, we are satisfied that the conclusions are well supported by the evidence and are on firm foundation and the findings can not be characterised as perverse.a.r. tiwari, j.1. this is an appeal filed by the state against the judgment of acquittal of the respondents under section 306 of the indian penal code rendered by the xth additional sessions judge, indore in sessions trial no. 132/85 on 28th october, 1985.2. the facts of the prosecution case in brief are that the respondent jagdish was married to the deceased manoramabai on 10-5-1978. the respondent no. 1 kamlabai is the mother of respondent no. 2 jagdish. the respondents used to demand money from the deceased manoramabai, and she was being treated cruelly on her refusal to meet the said demands. the respondents were dissatisfied with the dowry given in the marriage. twice the respondent jagdish sprinkled kerosene oil on the body of the deceased and asked her to set fire herself. once organic phosphorus poison was also administered to her. three days prior to her death, jagannath verma gave some papers pertaining to new gas connection to the respondent jagdish. the respondents did not have the requisite amount of rs. 1,500/- to enable them to purchase the gas-connection. the respondent jagdish, therefore, asked the deceased manoramabai to bring this amount from her father. she was found burnt in her room. she thus, committed suicide as a result of abetment by the respondents. after five days from the alleged incident, jagannath verma, the father of the deceased, sent a typed report (ex. p/5) to the collector, indore alleging that the respondents have committed the offence of murder of his daughter. after completion of investigation, the challan was filed. the respondents were charged under section 306 of the indian penal code to which they pleaded not guilty. on trial, the court found that the charge was not proved against the respondents and thus, recorded acquittal. the state has assailed the judgment of acquittal.3. we have heard shri a.s. kutumbale, learned government advocate for the appellant-state. none appeared for the respondents. shri kutumbale has submitted that the conclusions reached by the trial court are not supportable from the evidence adduced in this case and the findings are perverse. he, therefore, urged that this is a fit case where interference is called for.4. the prosecution has examined as many as 15 witnesses in support of the charge framed against the respondents. the respondents have not adduced any evidence in defence, but have taken the plea that they have been falsely implicated.5. before examining the merits of the matter, it is apt to refer to a decision rendered by the apex court in tota singh's case (air 1987 sc 1083 tota singh and anr. v. state of punjab) wherein it has been held as under :'the mere fact that the appellate court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. the jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. where two views are possible, on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by (he court below on its consideration of the evidence is erroneous.'xx xx xx6. the trial court on appreciation of evidence reached the under-noted conclusions :(a) the typed report (ex. p/5) was sent by jagannath (pw 2), the father of the deceased on 8-3-85, after five days from the date of the incident, to the collector in which there is no allegation about commission of suicide and abetment.(b) the witnesses have concocted the story in an urge to implicate the respondents.(c) there is no satisfactory evidence about cruelty so as to constitute the abetment as alleged.(d) the possibility of accidental fire is not ruled out by the prosecution.7. it is pertinent to refer to air 1989 sc 378 (wazir chand and anr. v. state of haryana) which held as under :'reading sections 306 and 107 together it is clear that if any person instigates any other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished under section 306 of the penal code for abetting the commission of suicide. a plain reading of this provision shows that before a person can be convicted of abetting the suicide of any other person, it must be established that such other person committed suicide.in the instant case the husband and the father-in-law of the deceased wife were charged of abetting her in committing suicide. there was no suicide note left by the deceased. it was not clear from the evidence whether she set herself on fire or her clothes accidentally caught fire. it could not also be certainly said that there was deliberate delay on part of the husband and the father-in-law in taking her to hospital or in making better treatment available to her. thus, there was no satisfactory evidence on the basis of which a conclusion could be reached wish any reasonable certainty that the deceased committed suicide. the accused could not, therefore, be convicted under section 306.'8. we have also read the statements of principal witnesses jagannath, father (pw 2), kamlabai, relative (pw 4), rameshchandra, (pw 5) brother of pw 4, yogendra, brother (pw 10), gitabai-pw 11 (neighbour), deepakkumar-pw 12 (friend), madanlal-pw 13 (habitant of locality) and have noticed that the trial court has correctly estimated the worth of their versions. there is no nexus with the alleged incident. there is no explanation even about the delay in lodging the report. allegation about previous activities as particularised even if true do not prove the charge as framed. we thus do not find that approach made by the trial court is in any way vitiated or that the conclusion recorded by it is such which could not have been arrived by any court acting reasonably and judiciously. we find that the trial court has taken the view which is plausible one. the testimony in the court is not consistent when compared with statements recorded under section 161 cr. p.c. the contradictions are material ones delivering dent on the substratum of the story. the proof that the deceased committed suicide is condition precedent and inch proof is not available in this case. there was no suicide note either. the witnesses did not testify to this, on the other hand pw 7 dr. riyaz hussain had deposed that such death could have occurred due to accidental fire.9. the marriage was solemnized on 10-5-78 (exh. p/19) and (be death took place on 3-3-85 within seven years of marriage. the trial court was, however, alive to the attractability of section 113a of indian evidence act introduced by the criminal law (second amendment) act, 1983 providing as under :'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 of such relative of 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.'here, too, the question of presumption about cruelty could have cropped up only on proof of the commission of suicide imprimis. there is, as noticed above, no allegation, much less cogent proof, about commission of suicide as such.10. the prosecution was thus undeniably under obligation to prove (a) commission of suicide and (b) abetment of such commission by respondents. in the decision reported in air 1975 sc 175, shri ram's case, the following observations have been made on abetment :'in order to constitute abetment, the abettor must be shown to have 'intentionally' aided to commission of the crime. mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of section 107. a person may, for example invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. but unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. it is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. intentional aiding and therefore active complicity is the gilt of the offence of abetment under the third paragraph of section 107.'11. having gone through the record, we are satisfied that the conclusions are well supported by the evidence and are on firm foundation and the findings can not be characterised as perverse.12. in the ultimate analysis, we find that the impugned judgment is not amenable to interference in this appeal against acquittal. the acquittal thus deserves to be maintained.13. consequently, the appeal is dismissed. the bail bonds stand cancelled.
Judgment:

A.R. Tiwari, J.

1. This is an appeal filed by the State against the judgment of acquittal of the respondents under Section 306 of the Indian Penal Code rendered by the Xth Additional Sessions Judge, Indore in Sessions Trial No. 132/85 on 28th October, 1985.

2. The facts of the prosecution case in brief are that the respondent Jagdish was married to the deceased Manoramabai on 10-5-1978. The respondent No. 1 Kamlabai is the mother of respondent No. 2 Jagdish. The respondents used to demand money from the deceased Manoramabai, and she was being treated cruelly on her refusal to meet the said demands. The respondents were dissatisfied with the dowry given in the marriage. Twice the respondent Jagdish sprinkled kerosene oil on the body of the deceased and asked her to set fire herself. Once organic phosphorus poison was also administered to her. Three days prior to her death, Jagannath Verma gave some papers pertaining to new gas connection to the respondent Jagdish. The respondents did not have the requisite amount of Rs. 1,500/- to enable them to purchase the gas-connection. The respondent Jagdish, therefore, asked the deceased Manoramabai to bring this amount from her father. She was found burnt in her room. She thus, committed suicide as a result of abetment by the respondents. After five days from the alleged incident, Jagannath Verma, the father of the deceased, sent a typed report (Ex. P/5) to the Collector, Indore alleging that the respondents have committed the offence of murder of his daughter. After completion of investigation, the challan was filed. The respondents were charged under Section 306 of the Indian Penal Code to which they pleaded not guilty. On trial, the Court found that the charge was not proved against the respondents and thus, recorded acquittal. The State has assailed the judgment of acquittal.

3. We have heard Shri A.S. Kutumbale, learned Government Advocate for the appellant-State. None appeared for the respondents. Shri Kutumbale has submitted that the conclusions reached by the Trial Court are not supportable from the evidence adduced in this case and the findings are perverse. He, therefore, urged that this is a fit case where interference is called for.

4. The prosecution has examined as many as 15 witnesses in support of the charge framed against the respondents. The respondents have not adduced any evidence in defence, but have taken the plea that they have been falsely implicated.

5. Before examining the merits of the matter, it is apt to refer to a decision rendered by the Apex Court in Tota Singh's case (AIR 1987 SC 1083 Tota Singh and Anr. v. State of Punjab) wherein it has been held as under :

'The mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible, on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by (he Court below on its consideration of the evidence is erroneous.'XX XX XX

6. The Trial Court on appreciation of evidence reached the under-noted conclusions :

(a) The typed report (Ex. P/5) was sent by Jagannath (PW 2), the father of the deceased on 8-3-85, after five days from the date of the incident, to the Collector in which there is no allegation about commission of suicide and abetment.

(b) The witnesses have concocted the story in an urge to implicate the respondents.

(c) There is no satisfactory evidence about cruelty so as to constitute the abetment as alleged.

(d) The possibility of accidental fire is not ruled out by the prosecution.

7. It is pertinent to refer to AIR 1989 SC 378 (Wazir Chand and Anr. v. State of Haryana) which held as under :

'Reading Sections 306 and 107 together it is clear that if any person instigates any other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished under Section 306 of the Penal Code for abetting the commission of suicide. A plain reading of this provision shows that before a person can be convicted of abetting the suicide of any other person, it must be established that such other person committed suicide.

In the instant case the husband and the father-in-law of the deceased wife were charged of abetting her in committing suicide. There was no suicide note left by the deceased. It was not clear from the evidence whether she set herself on fire or her clothes accidentally caught fire. It could not also be certainly said that there was deliberate delay on part of the husband and the father-in-law in taking her to hospital or in making better treatment available to her. Thus, there was no satisfactory evidence on the basis of which a conclusion could be reached wish any reasonable certainty that the deceased committed suicide. The accused could not, therefore, be convicted under Section 306.'

8. We have also read the statements of principal witnesses Jagannath, father (PW 2), Kamlabai, relative (PW 4), Rameshchandra, (PW 5) brother of PW 4, Yogendra, brother (PW 10), Gitabai-PW 11 (neighbour), Deepakkumar-PW 12 (friend), Madanlal-PW 13 (habitant of locality) and have noticed that the trial Court has correctly estimated the worth of their versions. There is no nexus with the alleged incident. There is no explanation even about the delay in lodging the report. Allegation about previous activities as particularised even if true do not prove the charge as framed. We thus do not find that approach made by the Trial Court is in any way vitiated or that the conclusion recorded by it is such which could not have been arrived by any Court acting reasonably and judiciously. We find that the Trial Court has taken the view which is plausible one. The testimony in the Court is not consistent when compared with statements recorded under Section 161 Cr. P.C. The contradictions are material ones delivering dent on the substratum of the story. The proof that the deceased committed suicide is condition precedent and inch proof is not available in this case. There was no suicide note either. The witnesses did not testify to this, on the other hand PW 7 Dr. Riyaz Hussain had deposed that such death could have occurred due to accidental fire.

9. The marriage was solemnized on 10-5-78 (Exh. P/19) and (be death took place on 3-3-85 within seven years of marriage. The Trial Court was, however, alive to the attractability of Section 113A of Indian Evidence Act introduced by the Criminal Law (Second Amendment) Act, 1983 providing as under :

'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 of such relative of 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.'

Here, too, the question of presumption about cruelty could have cropped up only on proof of the commission of suicide imprimis. There is, as noticed above, no allegation, much less cogent proof, about commission of suicide as such.

10. The prosecution was thus undeniably under obligation to prove (a) commission of suicide and (b) abetment of such commission by respondents. In the decision reported in AIR 1975 SC 175, Shri Ram's case, the following observations have been made on abetment :

'In order to constitute abetment, the abettor must be shown to have 'intentionally' aided to commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107. A person may, for example invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gilt of the offence of abetment under the third paragraph of Section 107.'

11. Having gone through the record, we are satisfied that the conclusions are well supported by the evidence and are on firm foundation and the findings can not be characterised as perverse.

12. In the ultimate analysis, we find that the impugned Judgment is not amenable to interference in this appeal against acquittal. The acquittal thus deserves to be maintained.

13. Consequently, the appeal is dismissed. The bail bonds stand cancelled.