Allowed

Nemichand v. State of Chhattisgarh

Chhattisgarh HC12 Sept 2022CRA/2104/1998

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and dismissed the revision, holding the prosecution failed to prove abetment of suicide under Section 306 IPC. Evidence showed harassment but lacked proof of active instigation or intention to push the deceased to suicide.

What did the court decide?

Impugned judgment of conviction and sentence set aside. Appellants acquitted of charge under Section 306 IPC. Bail bonds discharged.

Nemichand Vs State of Chhattisgarh — Matrimonial and Divorce | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CR.A. No. 2104 of 1998

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Nemichand, S/o. Parmanand Makhija, R/o. Eidgah Bhata, Raipur, aged 23 years, P.S. Azad Chowk, Raipur.

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Anil Kumar, S/o. Parmanand Makhija, aged 30 years, resident of Eidgah Bhata, P.S. Azad Chowk, District Raipur (M.P.) (Now C.G.)

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---- Appellants

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Versus

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State of Madhya Pradesh (Now Chhattisgarh)

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-----Respondent

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AND

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CR.R. No. 442 of 1999

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Phatan Das Golani (now dead) through : Legal Heir : Ashok Kumar Golani, S/o. Late Phatandas Golani, aged about 55 years, R/o. Villa No.3, Phase-3, Pebhlebay, Katara, Bhopal, Madhya Pradesh.

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---- Petitioner

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Versus

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Nemichand, S/o. Parmanand Makhija, R/o. Eidgah Bhata, P.S. Azad Chowk, Raipur.

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Anil Kumar, S/o. Parmanand Makhija, aged 30 years, resident of Idgah Bhata, P.S. Azad Chowk, District Raipur

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Rukmani Devi, wife of Parmanand Makhija, R/o. Idgah Bhata, Police Station Azad Chowk, Raipur.

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State of Madhya Pradesh (Now Chhattisgarh)

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-----Respondent

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In Cr.A. No.2104 of 1998

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For Appellants : Mr. Shashi Bhushan Tiwari & Mr. Anand Gupta, Advocates For Respondent/State : Mr. R.M. Solapurkar, Govt. Advocate

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In Cr.R. No. 442 of 1999

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For Petitioner : Mr. Abhishek Sinha, Sr. Advocate with Mr. Samarth Singh Marhas, Advocate For Respondents No.1 to 3 : Mr. Shashi Bhushan Tiwari & Mr. Anand Gupta, Advocates For Respondent No.4-State : Mr. R.M. Solapurkar, Govt. Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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12.09.2022

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Since criminal appeal and criminal revision both are arising out of same judgment, therefore, they are heard together and decided by this common order.

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Criminal appeal No. 2104 of 1998 is preferred by appellants challenging the judgment of conviction and sentence dated 31.08.1998, passed in Sessions Trial No. 29 of 1997, whereby learned 2^nd Additional Sessions Judge, Raipur, District – Raipur convicted appellants for commission of offence under Section 306 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for 3 years and fine of Rs.1,000/-, in default of payment of fine, to undergo further 6 months rigorous imprisonment. Whereas, criminal revision No. 442 of 1999 is preferred by complainant/father of deceased for enhancement of sentence awarded to appellants by impugned judgment.

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Facts relevant for disposal of the cases are that deceased was married to appellant No.2 – Anil Kumar on 13.12.1987. After marriage, deceased started residing with appellant No.2 in her matrimonial home. On 09.05.1991, deceased set herself ablaze and succumbed to burn injuries on same day. Morgue was registered on 09.05.1991, based upon which, FIR was lodged on 10.05.1991 against the appellants and three others co-accused persons for offence punishable under Section 304 (B)/34 of I.P.C. After completion of investigation charge sheet was submitted

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against appellants and other co-accused persons for alleged offence punishable under Section 304 (B)/34 of I.P.C. and Section 3 and 4 of Dowry Prohibition Act, 1961.

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Learned trial Court based on material available in the final report/ charge-sheet, framed charges for offence punishable under Section 304 (B)/34 of the Indian Penal Code and Section 3 & 4 of Dowry Prohibition Act against appellants and other co-accused persons. Appellants and other co-accused persons denied the charges. During the course of trial, prosecution examined as many as 12 witnesses namely Kewalram (P.W.-1), Phatandas (P.W.-2), Bherumal Chandwani (P.W.-3), Kishore Keshwani (P.W.-4), Ashok Golani (P.W.-5), Kanchan (P.W.-6), Bhagwati Singh (P.W.-7), Parsuram Sahu (P.W.-8), Ramnath Sahu (P.W.9), Dr. Arvindra Neralwar (P.W.-10), Dr. M.K. Verma (P.W.-11) and B.P. Mishra (P.W.12) and exhibited 36 documents. Statement of appellants and other co-accused persons were recorded under Section 313 of Cr.P.C. in which they denied all the allegations against them, pleaded innocence and false implication. Nine witnesses were examined in defence namely Kailash Makhija (D.W.-1), Rajendra Kumar (D.W.-2), Ramesh Kumar Panjwani (D.W.-3), Shriniwas Pathak (D.W.-4), Mulchand @ Mannumal Prithwani (D.W.-5), Madan Lal Makhija (D.W.-6), Nanakchand (D.W.-7), Balram Das (D.W.-8) and Jhaman Das (D.W.-9). After completion of trial, learned trial Court arrived at a conclusion that prosecution failed to prove charges levelled against appellants and other co-accused persons under Section

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304-B of I.P.C. and Section 3 and 4 of Dowry Prohibition Act, acquitted them from the aforementioned charges, however, convicted appellants for offence under Section 306 of I.P.C. and sentenced them as mentioned here-in-above.

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Mr. Shashi Bhushan Tiwari with Mr. Anand Gupta, learned counsels appearing on behalf of appellants would submit that learned trial Court though recorded finding that allegation of demand of dowry has not been proved by prosecution beyond reasonable doubt by producing admissible piece of evidence but have erroneously convicted appellants under Section 306 of I.P.C. only on the basis of presumption and surmises. They contended that there is no evidence available on record to prove, that appellants at any point of time had abetted deceased to commit suicide. He submits that from the evidence, if it is appearing that some harassment or ill treatment was given to deceased then also it is for the prosecution to prove that ill treatment or harassment is of such extent that deceased was left with no option but to commit suicide, which is absent in the case at hand. It is contended that in evidence it has come that sweets and other articles which were brought by relatives of deceased in her matrimonial home was not permitted to be opened by deceased but it was kept by her mother-in-law. Other allegation is with regard to abuse and assault but that allegation was also not proved. Kishore Keshwani (P.W.-4) relative of deceased and complainant have not supported the case of prosecution. Learned counsel relied upon the evidence of Jhaman Das (D.W.-

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9), who is father-in-law of Ashok Golani (P.W.5) (brother of deceased), to submit that prior to death of Vimla, Phatandas (P.W.-2), father of deceased has not informed (D.W.-9) regarding ill treatment or harassment given by appellants to deceased - Vimla. The allegations levelled against appellants are omnibus and after thought. In support of his contention that prosecution has failed to prove abettment, learned counsel has read over the provisions under Section 107 of I.P.C. and also placed reliance upon decision of Hon’ble Supreme Court in case of Hans Raj Vs. State of Haryana, reported in (2004) 12 SCC 257 , Sanju @ Sanjay Singh Sengar Vs. State of M.P. , reported in (2002) 5 SCC 371 , in case of Heera Lal & Anr. Vs. State of Rajasthan , reported in AIR 2017 SC 2425 and in case of Gurcharan Singh Vs. State of Punjab , reported in (2017) 1 SCC 433 .

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Mr. R.M. Solapurkar, learned counsel for State opposing the submissions of learned counsel for appellants would submit that Phatandas (P.W.-2) (father of deceased), Ashok Golani (P.W.-5) (brother of deceased), Kanchan (P.W.-6) (Bhabhi of deceased) have made specific statement regarding ill treatment and harassment given by appellants to deceased. He submits that there may not be specific allegation of harassment and comment upon deceased to die but from circumstances, which are available on record, it can be inferred of the nature of harassment and ill treatment which forced deceased to take such step of committing suicide. Judgment of conviction of learned trial Court

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is on appreciation of evidence, which does not call for any interference. He read over the evidence of Phatandas (P.W.-2) and Kanchan (P.W.-6) and would submit that prosecution has proved letter (Ex.P-7), written by Kanchan (P.W.-6) to Phatan Das (P.W.-2) mentioning about ill treatment and harassment being faced by deceased during her stay in matrimonial home.

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Mr. Abhishek Sinha, Sr. Advocate assisted by Mr. Samarth Singh Marhas, learned counsel appearing for applicant (in Cr.R. No. 442 of 1999 would submit that complainant has filed this revision for enhancement of sentence awarded to appellants. He fairly submits that as per copy of order sheet available in the records it is appearing that State preferred acquittal appeal arising out of impugned judgment against acquittal of appellants from charges under Section 304 -B of I.P.C. and Section 3 and 4 of Dowry Prohibition Act was dismissed. He contended that in view of aforementioned facts, this revision is filed with limited prayer for enhancement of sentence.

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I have heard learned counsel for the parties and also perused the record of trial Court.

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So far as the submission of learned counsel for appellants that prosecution failed to prove the ingredients of abetment as envisaged under Section 107 of I.P.C., perusal of evidence of Phatandas (P.W.-2), father of deceased would show that in the year 1991 appellant No.2 along with deceased went to Bhopal to attend marriage of Naresh (brother of deceased) on 20.02.1991.

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When he went to attend marriage of brother-in-law of Ashok Golani (P.W.-5) at Raipur and visited matrimonial home of deceased with cloths and sweets and given the same to deceased - Vimla. Mother-in-law of deceased restrained her from opening the sweet packets. Deceased Vimla started crying and told him that accused persons used to harass her, further that Shobha, sister-in-law of deceased was having her separate kitchen in first floor and she takes all food grains from ground floor and no material was left for Vimla. Mother-in-law and Shobha questioned deceased that where the food grains have gone and used to abuse and assault her. He also stated that when Kanchan (P.W.6) wife of brother of deceased returned back Bhopal from Raipur she informed him about ill treatment given to deceased by her in-laws. He also stated that whenever, he sent sweets and other articles through Kishore Keshwani (P.W.-4), he was being looked by them suspiciously.

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Bherumal Chandwani (P.W.-3) maternal uncle of deceased also deposed in his evidence that deceased told him about ill treatment and harassment by her in-laws. Ashok Golani (P.W.-5), brother of deceased also made similar statement. He stated that when he visited the house of his sister at Raipur, he used to take sweets and cloths, but mother-in-law of deceased did not permit her to open sweet box, because of which she was annoyed. He also stated that deceased informed him in front of her in-laws that appellant No.2 has also assaulted her.

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Kanchan (P.W.-6) wife of Ashok Golani (P.W.-5) and Bhabhi of

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deceased in her examination-in-chief in para-3 stated that mother-in-law of deceased not permitted deceased to open sweet boxes and kept it aside. She further stated that mother-in-law of deceased stated that her parents gives you articles and gifts but don’t give them and passed comments on her, thereafter deceased went to her room. When she asked deceased about reason of her weeping, she informed that in-laws harassed her in like manner. Dr. Arvindra Narelwar (P.W.-10) in his evidence stated that he found burn injuries on body of deceased and opined that her death was due to burn injuries. He further stated that he can not opine about nature of death.

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Appellants in defence have examined Kailash Makhija (D.W.-1), who stated that he is neighbour of appellants No.2 and having good relationship with deceased but she had not complained anything to him. He also stated that after dinner his wife and deceased used to go for walk but deceased has not made any complaint to his wife.

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Rajendra Kumar (D.W.-2) in his evidence stated that complainant called meeting of Panchayat on account of death of his daughter. Jhaman Das (D.W.-9), who is father-in-law of Ashok (brother of deceased) asked Phatan Das, father of deceased in community meeting why he had not complained anything prior to the incident.

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As the learned trial Court has acquitted appellants from charges under Section 304-B of I.P.C. and Section 3 and 4 of Dowry

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Prohibition Act, this Court is only considering the submission made by counsel for appellants that prosecution has failed to prove the act of abetment against deceased.

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From the aforementioned evidence of Phatandas (P.W.-2), Ashok Golani (P.W.-5) and Kanchan (P.W.-6), who are father, brother and Bhabhi of deceased, allegations are that appellants have ill treated and harassed the deceased. Question before this Court is in the aforementioned facts and circumstances of the case and evidence, whether offence under Section 107 of I.P.C. is made out or not, which is sine-qua non for convicting any persons for offence punishable under Section 306 of I.P.C.. The provisions under Section 107 of I.P.C. is extracted below for ready reference:-

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“107. Abetment of a thing .—A person abets the doing of a thing, who—

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First. — Instigates any person to do that thing; or

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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

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Thirdly.— Intentionally aids, by any act or illegal omission, the doing of that thing.

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Explanation 1. – 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

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that thing.

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“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 facilitate the commission thereof, is said to aid the doing of that act.”

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The definition quoted above, makes it clear that whenever a person instigates or intentionally aids by any act or illegal omission, the doing of a thing, a person can be said to have abetted in doing that thing. Prosecution is required to prove that there is instigation on the part of appellants or they intentionally aided by any of their act or illegal omission to the deceased for committing suicide. In order to prove mens- rea, there has to be something on record to establish or show that appellants herein had guilty mind and in furtherance of that state of mind, abetted the deceased to commit suicide.

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Hon’ble Supreme Court in case of Amalendu Pal @ Jhantu Vs. State of West Bengal, reported in (2010) 1 SCC 707 while dealing with conviction under Section 306 of I.P.C. has held as held at para- 12 & 13, which are as under :-

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“12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be

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borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. 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.

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In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.”

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Hon’ble Supreme Court in case of S.S. Chheena Vs. Vijay Kumar Mahajan, reported in (2010) 12 SCC 190 has held at para-25, which is as under:-

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“25. 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 can not be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 I.P.C. 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 that act must have been intended to push the deceased into such a position

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that he committed suicide.”

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In case of Mangat Ram Vs. State of Haryana , reported in (2014) 12 SCC 595 , the Hon’ble Supreme Court while considering the appeal confirming the judgment of conviction under Section 306 by High Court has held at para-24, which is as under :-

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“24. We find it difficult to comprehend the reasoning of the High Court that “no prudent man is to commit suicide unless abetted to do so.” A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning.”

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If the facts of the case and evidence of prosecution witnesses and defence witnesses are taken into consideration, in the light of aforementioned decision of Hon’ble Supreme Court, I am of the view that the learned trial Court erred in concluding that the deceased was abetted to commit suicide by circumstance or atmosphere in the matrimonial home.

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The Hon’ble Supreme Court in case of Gurucharan Singh (supra) relied upon the judgment in case of Pinakin Mahipatray Rawal Vs. State of Gujrat, reported (2013) 10 SCC 48 has held that prosecution has to establish beyond reasonable doubt that deceased had committed suicide on being abetted by the person charged under Section 306 of I.P.C.

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Hon’ble Supreme Court in case of Heeralal & Anr. (supra) reiterating the verdict of Hon’ble Supreme Court in Ramesh Kumar Vs. State of Chhattisgarh, reported in (2001) 9 SCC 618 has held thus at para -8 as under :-

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“8 We find that having absolved the appellants of the charge of cruelty, which is the most basic ingredient for the offence made out under Section 498A, the third ingredient for application of Section 113A is missing, namely, that the relatives i.e., the mother-in-law and father-in-law who are charged under Section 306 had subjected the victim to cruelty. No doubt, in the facts of this case, it has been concurrently found that the in-laws did harass her, but harassment is something of a lesser degree than cruelty. Also, we find on the facts, taken as a whole, that assuming the presumption under Section 113A would apply, it has been fully rebutted for the reason that there is no link or intention on the part of the inlaws to assist the victim to commit suicide.”

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In case at hand also, the finding recorded by learned trial Court based on evidence that in-laws have harassed her but looking to nature of allegation, it will not amount to cruelty of a nature, leaving no other option to deceased but to commit suicide. Even if assuming that presumption under Section 113A of Evidence Act, it has been fully rebutted for the reason that there is no mens rea or intention on the part of in-laws to instigate the victim to commit suicide.

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For the forgoing discussions and the law enumerated by Hon’ble Supreme Court I am of the view that prosecution has failed to

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prove that appellants have abetted the deceased to commit suicide.

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In the result, Cr.A. No. 2104 of 1998 filed by appellants against conviction is hereby allowed. The impugned judgment of conviction and sentence dated 31.08.1998, passed in Sessions Trial No. 29 of 1997 is set-aside. Appellants are acquitted of the charge under Section 306 of I.P.C. Appellants are on bail their bail bonds are discharged.

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As this Court has held that prosecution failed to prove the allegation and charge under Section 306 of I.P.C. against appellants, the Criminal Revision No. 442 of 1999 filed by complainant for enhancement of sentence awarded for offence under Section 306 of I.P.C. is dismissed.

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Sd/- (Parth Prateem Sahu) Judge

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Balram

Nemichand v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Nemichand v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

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