Allowed

Kuleshwar v. State of Chhattisgarh

Chhattisgarh HC9 Aug 2023CRA/1127/2003

Case brief

AI extract

What is this about?

This appeal challenged a conviction for abetment of suicide and cruelty under IPC Sections 306 and 498-A. The High Court examined evidence regarding the deceased's suicide by pesticide ingestion. The Court held that the evidence failed to prove instigation or conspiracy by the appellant. Consequently, the appeal was allowed, the conviction was set aside, and the appellant was acquitted.

What did the court decide?

The judgment of conviction and sentence was set aside. The appellant was acquitted of offences under Sections 306 and 498-A IPC and granted bail for 6 months.

Kuleshwar Vs State of Chhattisgarh — Domestic Violence | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Judgment Reserved on 25/07 /2023

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Judgment Passed on 09/08/2023

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CRA No. 1127 of 200 3

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Kuleshwar S/o Chintaram aged about 27 years, R/o Village – Rudgaon, P.S. Dongargarh, District- Rajnandgaon, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, Through : P.S. Dongargarh, District – Rajnandgaon, Chhattisgarh.

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---- Respondent

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For Appellant : Mr. Devarshi Thakur, Advocate with Ms. Saumya Sharma, Advocate. For Respondent/State : Mr. Sanjay Pathak, P.L.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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CAV Judgment

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The present appeal arises out of the impugned judgment of conviction and order of sentence dated 24.10.2003 passed by the learned Sessions Judge, Rajnandgaon (C.G.), in S.T. No. 8/2003 whereby, the learned Sessions Judge, Rajnandgaon, convicted the appellant and sentenced him as under:-

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Conviction	Sentence
U/s 306 of IPC	Rigorous Imprisonment for 5years.
U/s 498(A) of IPC	Rigorous Imprisonment for 1 year. Both the sentences shall run concurrently.

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The prosecution story, in brief, is that the complainant – Derharam

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(PW-4), who is the father-in-law of the appellant resident of village – Parsuli and was doing agricultural work. His daughter Motimbai was married to the appellant five years before the date of the incident and the relation between the daughter of the complainant and her husband and in-laws was not good.

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On 08.08.2002 at noon Bhagatram Sonkar came to the village Parsuli and told to the complainant that the daughter of the complainant had died. On the said information the complainant came to the in-laws’ house of his daughter and on the way to the village, he met with villagers who told him that they were going to lodge a report as they suspected the death of Motimbai. On which the complainant also suspected and on the same day i.e. 08.08.2002 at about 19:00 O’clock went police station, Dongargarh to inform about the unnatural death of his daughter, on which a merg report has been lodged and proceeded for panchnama. The police reached the spot and prepared the dead body panchnama before the witnesses and the dead body was sent to the Government Hospital for medical examination. After recording the statement of the witnesses and receiving the medical report of the dead body offence under Section 304 (B) read with Section 34 has been registered against the appellant and co-accused and after completion of the investigation charge sheet was filed under Section 498, 306, 34 of IPC against the appellant along with co-accused.

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So as to hold the accused/appellant guilty, the prosecution has examined as many as 11 witnesses. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. The appellant has stated in the statement under Section 313 of Cr.P.C. that at the time of the incident, he was not at home, his mother was sick, his wife (Motimbai) was suffering from vomiting and loose motion, the mother and the deceased were sleeping in different rooms and when he was trying to wake up his wife, she didn't wake up, he told the neighbourhood that her wife was dead, he didn't know what she had eaten, he is falsely implicated based on suspicion.

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After hearing the parties, vide impugned judgment of conviction and order of sentence dated 24.10.2003, learned Sessions Judge has acquitted

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co-accused-Jamuna Bai of the charges under sections 304/B in option of Section 306/34 and Section 498-A/34 of IPC and convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, the present appeal.

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Learned counsel for the appellant submits that the impugned judgment is contrary to the law, facts and circumstances of the case. He next submits that the Court below should have seen the fact that Dr. Pradeep Gunjwani (PW-3) has not given any opinion regarding the nature of the death of the deceased. In view of this fact, the possibility cannot be ruled out that the deceased has died on account of the normal death and he was not subjected to any cruelty by the appellant. The statement of Derharam (PW-4) is wholly unreliable and cannot be accepted. He also submits that even if the entire prosecution story is accepted as it is, the appellant cannot be convicted for the offence punishable under Section 306 of the IPC or even for the offence under Section 498(A) of the IPC. He also submits that on the basis of the same set of evidence, the trial Court has acquitted the co-accused – Jamuna Bai and no second standard can be applied for the offence against the appellant. The judgment of conviction and sentence is perverse to the evidence recorded and deserves to be set aside, therefore, the appeal may be allowed. He placed reliance on the decision of Karnataka High Court in the matter of Thimmaraju Vs. State of Karnataka & Another , passed in Criminal Petition No. 566 of 2020 on 13.06.2023, on the decision of High Court of Jammu & Kashmir and Lakakh in the matter of State of J&K vs. Tariq Hussain , passed in Crl A (AS) No. 19/2019 on 15.06.203 and on the decision of High Court of Punjab and Haryana in the matter of State of Haryana Vs. Darshan Lal & Another , passed in CRA-S-1536-SB-2007 (O&M) on 22.03.2023.

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Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the

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appellant.

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Heard learned counsel for the parties and perused the material on record including the impugned judgment.

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In this case, on the information of father Derharam (PW-4) of deceased - Motimbai, Head Constable Domarsingh (PW-10) has stated to lodge Merg-Intimation vide Ex.-P-4 and after investigation, First Information Report was lodged vide Ex.-P-7. Tehsildar – H.C. Nag (PW-1) prepared dead body panchnama vide Ex.-P-1, the panchnama proceedings are confirmed by the statements of Daferam (PW-2), Derharam (PW-4) and Devnath (PW8).

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On 09.08.2002, Dr. Praveen Goswami (PW-3) gave a report (Ex.-P-3A) after examining the dead body of Motimbai. According to which blueness was found in some parts of the dead body. The cause of death was sudden respiratory arrest which could be due to poisoning. Thus, the doctor has not given a definite opinion regarding death but has definitely expressed the possibility of poisoning. After the postmortem, he was told to preserve the viscera of the deceased and give it for examination. According to the Investigator head constable-Domar Singh (PW-10), the viscera were sent to the laboratory for chemical test vide Ex.-P-9. According to the laboratory test report Ex.-P-12, no chemical poison was found on the saree, petticoat and blouse of the deceased, but malathion (organo-phosphorus) insecticide was found in her viscera. Thus, the chemical test report established the fact that Motimbai had died due to pesticide consumption.

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According to the father of the deceased, Derharam (PW-4), the deceased’s father-in-law - Chintaram had told him at the police station that Motimbai was vomiting last night, so he had given pills to Motimbai. Brother of the deceased, Bhuvanlal (PW-6), is a resident of Rudgaon and has also stated that he had heard that Motimbai had consumed poison or someone

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had given him poison. Devnath (PW-8) has stated that at the time of postmortem, he had observed that the body of Motimbai was looking black. There is no evidence in this regard that the in-laws had deliberately or intentionally given poison/insecticide to Motimbai. Devnath (PW-8) stated in his cross-examination that Motimbai was vomiting and hence they had given her an antidote. Devnath has also stated that in case of vomiting, the antidote is given. It is not the case of the prosecution that Motimbai died after being given the said antidote. Such a drink has not even been seized by the police from the appellant. In the above circumstances, it is clear from the evidence that Motimbai had consumed insecticide and thus committed suicide.

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It is to be seen whether the conclusion of the trial court is appropriate that Motimbai committed suicide as a result of the abetment of the appellant itself.

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There is no conclusive evidence as to the year in which Motimbai was married to the appellant. Prosecution witnesses have stated in their statement that Motimbai was married about 5-6 years prior to the incident. Motimbai's father Derharam (PW-4) has been unable to tell the year of marriage. Thus, it is not clear whether Motimbai died within 7 years of marriage.

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According to the prosecution case, the ground of abetment by the appellant has been stated that the appellant did not have a conjugal relationship with his wife Motimbai. The appellant and his relatives used to ask Motimbai to leave the house and used to drive her away. Motimbai committed suicide due to these things.

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Various judgments have been referred by the defence, in which the judgment of the Hon'ble Supreme Court has been referred significantly, in which Section 306 of the IPC and Section 107 of the IPC have been properly

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defined which will be important to reproduce here.

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In the case of Kashibai Vs. State of Karnataka¹ wherein the Apex Court considers the interplay between Sections 107 and 306 of IPC to hold that unless the ingredients of Section 107 of IPC are found, no offence under Section 306 of IPC can be laid. The Apex Court in the case of Kashibai (Supra) has held as follows:

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“8. From the bare reading of the said provisions, it clearly transpires that 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.

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9. In M. Mohan Vs. State Represented by the Deputy Superintendent of Police1, this Court has elaborately dealt with the provisions contained in Section 306 read with Section 107 IPC, and after discussing various earlier decisions has observed as under: -

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“41. This Court in SCC para 20 of Ramesh Kumar [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088] has examined different shades of the meaning of “instigation”. Para 20 reads as under : (SCC p. 629)

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“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.”

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In the said case this Court came to the conclusion that there is no evidence and material available on record wherefrom an inference of the appellant-accused having abetted commission of suicide by Seema (the appellant's wife therein) may necessarily be drawn.

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42. In State of W.B. v. Orilal Jaiswal, [(1994) 1 SCC 73 : 1994 SCC (Cri) 107] this Court has cautioned that (SCC p. 90, para 17) the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it appears to the Court that a

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1 (2023) SCC Online SC 575.

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victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

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43. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), [(2009) 16 SCC 605 : (2010) 3 SCC (Cri) 367] had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the word “instigation” and “goading”. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self-esteem and self- respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

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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.

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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.”

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10. In view of the above, it is quite clear that 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.”

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Looking to the evidence adduced in the instant case in the light of the

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above judgment, the most important witness is the father of the deceased, Derharam (PW-4), who is a resident of Village-Parsuli. The appellant is a resident of village-Rudgaon. Motimbai had committed suicide in her in-laws' village- Rudgaon. The distance from Rudgaon to Parsuli village is about 2324 kms stated by Derharam (PW-4) in para-8 of his evidence.

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Derharam (PW-4) has stated in his court statement that there was no

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husband-wife relationship between the appellant and the deceased after marriage. Motimbai used to come to her maternal home during festivals, she had no children. When Motimbai used to come to her maternal home, she used to say that her mother-in-law i.e. co-accused Jamuna Bai (acquitted) used to assault her and they had no husband-wife relationship and both of them used to ask her to leave the house and three meetings of Sonkar Samaj were held in this regard. In two meetings, the appellant had said that now they would not bother and would keep her properly, but in the last meeting he refused to keep Motimbai with him.

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Apart from Derharam (PW-4), the other important witness examined on the point of torture and abetment is Ramkali (PW-5), who is a neighbour of the appellant. She has stated that the appellant and Motimbai had no children. She has also stated that the appellant has also belonged to her caste. This witness declared hostile as she denied her police statement on the leading questions of the prosecution. That is, she has not given any information in this regard that Motimbai has committed suicide as a result of instigation or abetment of the appellant, but she has definitely said that there were 3-4 meetings in her village regarding the dispute between the appellant and the deceased.

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Bhuvanlal (PW-6), a resident of Village - Rudgaon, has stated that Motimbai is a daughter of his maternal uncle. Bhuvanlal has stated in his statement that Motimbai used to complain to him that she does not have a relation with the appellant. Further, he has also stated that co-accused Jamuna Bai had assaulted Motimbai and meetings were held 3-4 times in their village on the complaint. He himself was never present in the meeting, so he cannot tell what happened there. Bhuvanlal has also stated that Motimbai did not tell him anything personally. Thus, Bhuvanlal has also been unable to give any specific information that Motimbai committed suicide as a result of the abetment of the appellant.

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From the statement of the prosecution witnesses, it is an undisputed fact that the Sonkar community of the appellant is predominant in villageRudgaon. In the statement of Derharam (PW-4), Ramkali (PW-5) and Bhuvanlal (PW-6), the fact has emerged that there were about 3 meetings in the society regarding Motimbai. The fact of any abetment of the appellant in that meeting could not be established from the statement of Ramkali (PW-5) and Bhuvanlal (PW-6). Therefore, mainly the discussion of the evidence of Derharam (PW-4) remains here.

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Derharam (PW-4), father of deceased - Motimbai, has stated in his cross-examination that the complaints are in writing and kept safe in the office of Sonkar Samaj. Out of the four meetings held regarding their subject, no writing was done in three meetings. The last meeting which is called "Raj meeting" was written, but it has not been produced in evidence on behalf of the prosecution. Bhuvanlal has stated that a meeting was also held regarding the assault by co-accused mother-in-law-Jamuna Bai. In such a case, it is not clear from the evidence adduced whether this meeting was actually held due to any abetment or harassment of the appellant. Therefore, on the basis of the meeting, there is no sufficient evidence to suggest that the appellant Kuleshwar used to harass or instigate his wife Motimbai as a result of which Motimbai committed suicide.

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In the cross-examination, S.D.O.P. - S.L. Baghel (PW-11) accepted in the cross-examination that there was a social meeting in the village, at that time records were also prepared in the society. But in his investigation, he did not make any inquiry regarding that application or meeting and did not consider it necessary to take statements of the office bearers of the society. He also did not inquire from the neighbours of the appellant. In this way, the investigator has not collected evidence regarding the said meeting.

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It remains in the statement of Derharam (PW-4), father of deceased -

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Motimbai, that the appellant did not have a husband-wife relationship with his wife Motimbai and used to ask her to leave the house. If we look at the facts in the cross-examination of Derharam in this regard, he has accepted in paragraph 8 that Motimbai used to spend most of her time at her in-laws' house, she used to come to her maternal house only during festivals. He has also admitted that she used to feel sad as the deceased did not have any children even after a lapse of 7-8 years of marriage. Derharam (PW-4) in his cross-examination has also accepted that the co-accused mother-in-law - Jamuna Bai and elder sister-in-law also live in the house of the appellant. He has also admitted that before the incident he never made any report to the police against the appellant. Derharam (PW-4) has admitted in his crossexamination that Motimbai used to come to her maternal home during festivals, and then appellant -Kuleshwar used to drop and pick up her.

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Thus, it does not appear from the statement of Derharam father of the deceased that the appellant disliked his wife-Motimbai. It is clear from the admission of the father of the deceased that after marriage, Motimbai used to visit her maternal home only during festivals and the rest of the time she used to stay at her in-laws’ house. In such a situation, if they did not have children, then it cannot be considered as the reason that there was no husband-wife relationship between them. There can be other reasons for not having children. It does not appear from the evidence of Derharam (PW-4) that the appellant had been asking his wife Motimbai to leave the house. That is why Derharam, who never reported the said matter to the police before the death of Motimbai and clear evidence has not been adduced in this regard that the Samaj-Panchayat meeting was held because of the neglect of Motimbai by the appellant. Then in the light of the legal provisions and the law laid down in the subject matter, it is not proved that Motimbai committed suicide as a result of the negligence and provocation of the appellant. Thus, the offence of abetment to suicide has not been proved

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against the appellant. At this stage, the judgment of the trial court in question, of conviction and sentence, is not found maintainable.

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Accordingly, the appeal is allowed. The judgment of conviction and sentence in question is set aside. Giving benefit of doubt, the appellant is acquitted of the offences under Section 306 IPC and Section 498-A IPC. The appellant is stated to be on bail. Under Section-437/A of the Code of Criminal Procedure, his bail bond will be effective for another 6 months. If there is no need to appear in the Higher Court, his bail bond will be discharged.

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As above, the appeal is disposed of.

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The record of the trial court along with the copy of this judgment be sent immediately to the trial Court for necessary action and compliance.

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Sd/- (Sanjay Kumar Jaiswal) JUDGE

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H.L. Sahu

Kuleshwar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kuleshwar v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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