Dismissed

State Of Chhattisgarh v. Dhaniram Khairwar

Chhattisgarh HC10 Jan 2024ACQA/243/2015

Case brief

AI extract

What is this about?

State appealed against acquittal of the husband's family for abetting suicide of a woman who set herself ablaze while taken to a sorcerer's house for Jhaad-Phoonk treatment. Holding there was no positive act instigating or aiding suicide and no allegation in the dying declaration, the High Court upheld the acquittal and dismissed the appeal.

What the court decided

AI extract

State Of Chhattisgarh Vs Dhaniram Khairwar — Dowry and Cruelty | Chhattisgarh HC (2024)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

ACQA No. 243 of 2015

¶5

State Of Chhattisgarh through District Magistrate, Korea, Chhattisgarh.

¶6

--- Appellant.

¶7

Versus

¶8

Dhaniram Khairwar S/o Late Madhav Khairwar Aged About 64 Years R/o Amarpur, P.S. Baikunthpur, Distt. Korea, Chhattisgarh.

¶9

Prem Kumar @ Guddu S/o Dhaniram Khairwar Aged About 30 Years R/o Amarpur, P.S. Baikunthpur, Distt. Korea, Chhattisgarh.

¶10

Smt. Sudhri Bai @ Saguni Bai W/o Dhaniram Aged About 62 Years R/o Amarpur, P.S. Baikunthpur, Distt. Korea, Chhattisgarh.

¶11

--- Respondents.

¶12

(cause title downloaded from CIS Periphery)

¶13

For Appellant/State : Mr. Ayaz Naved, Govt. Advocate. For Respondent : Mr. Anil Gulati, Advocate.

¶14

Hon'ble Mr. Justice Deepak Kumar Tiwari, J. Judgment On Board

¶15

11.01.2024

¶16

Since the respondents/accused are represented by Shri Anil Gulati, Advocate, Application for condonation of delay in depositing the PF (IA No.1/2016) which was filed on 22.06.2016, has become infructuous.

¶17

Accordingly, IA No.1/2016 is disposed of .

¶18

The present Acquittal Appeal has been preferred by the Appellant/State against the judgment dated 17.10.2011 passed by the First Additional Session Judge, Manendragarh at Baikunthpur, District Koriya in Sessions Case No.60/2010, whereby, the respondents/accused were acquitted of the charges under Section 306/34 of the IPC and Section 5 of The Chhattisgarh Tonahi Pratadna Nivaran Act, 2005.

¶19

Case put-forth by the prosecution, in short, is that marriage of deceased

¶20

¶21

Leelawati was solemnized with respondent No.2 Premkumar @ Guddu, who is son of respondents No.1 and 3, 8 years ago prior to the date of incident i.e. 22.04.2010. After marriage, the deceased started residing with the respondents at Village Amarpur and during such period she has delivered a child. It is alleged that the respondents used to harass the deceased and taunt her as ‘Tonahi ’ and that she is destroying the house. The deceased has also informed about such harassment to her family members and her parents have also talked in this regard with respondents. It is further alleged that the respondents took the deceased to one Jagsay @ Panda (died during the course of investigation) who belonged to Village Salgawana and thereafter they left her there to become Tonahi. On the date of incident i.e. on 22.04.2010, when the deceased was present in the house of Jagsay @ Panda, he told her that the said was her last day and she would become Tonahi and also told her to kill her husband and child, due to which, the deceased got scared and set herself ablaze by pouring kerosene. After the incident, the deceased was taken to the District Hospital at Baikunthpur by Jagsay @ Panda and his family members and during treatment on 25.04.2010, she died.

¶22

Thereafter, Merg intimation vide Ex.P-13 was registered and death inquest was prepared vide Ex.P-2. The deceased was subjected to postmortem and as per postmortem report, total 80-90 % body of the deceased was found burnt and Dr. G.S. Paikra, who conducted the postmortem has opined the cause of death to be “shock resulting in cardio respiratory arrest due to burn” and nature of death is accidental or suicidal correlate with other evidence, however, no definite opinion was given by the doctor. Earlier on 22.04.2010 at 11:30 PM when the deceased was admitted in the District Hospital, Dr. S.S. Gupta (PW-7) has also examined the deceased and submitted its report vide Ex.P-8. Upon receipt of postmortem report, an

¶23

¶24

FIR was registered as “0/10” at Police Station Baikunthpur, Koriya on 30.04.2010 vide Ex.P-12. On 01.05.2010 FIR bearing No.48/10 vide Ex.P11 has been registered. Statements of the witnesses were recorded and spot map was prepared vide Ex.P-8. During investigation, crime details were prepared from the spot vide Ex.P-14 and one Chimani, matchbox and one jute-bag were seized from the spot vide Ex.P-10. Dying declaration of the deceased was also recorded by the Executive Magistrate on 22.04.2010 vide Ex.P-9.

¶25

After completion of investigation, charge-sheet was filed against the presnt respondents and Jagsay Khairwar who died during the investigation. The accused abjured their guilt and claimed to be tried. In the statement recorded under Section 313 Cr.P.C. they took the plea that they are innocent and have been falsely implicated.

¶26

In order to prove the case, the prosecution examined as many as 11 witnesses, however, the respondent/accused did not adduce any defence evidence. Learned trial Court after evaluating the evidence, acquitted the respondents of the charges levelled against them by the judgment impugned. Against the said acquittal, the State has filed the present appeal.

¶27

Learned State counsel submits that learned trial Court has not appreciated the evidence in its proper perspective as the deceased was married in the family of the respondents/accused and during her lifetime, they used to harass her and call her as ‘Tonahi’ and took her to Jagsay @ Panda. He submits that Jagsay @ Panda has advised the deceased to kill her husband and children, however , the deceased could not bear such torture and harassment and took extreme step of committing suicide. Therefore, ingredients of abetment under Section 306 of the IPC attracts in the case and accused deserves to be convicted.

¶28

¶29

On the other hand, learned counsel for the respondents submits that in the dying declaration (Ex.P-9), there is no allegation against the present respondents and allegation has been made only against Jagsay @ Panda in whose house the respondents have took the deceased for early recovery of health by Jhaad Phoonk and the respondents have not instigated the deceased Leelawati in any manner to take such extreme step. He would submit that marriage of the deceased was solemnized with respondent No.2, 8 years prior to the date of incident and during the lifetime, no dispute was occurred between the deceased and family members/respondents and no complaint was made regarding harassment. He lastly submits that the trial Court has assigned cogent reasons while acquitting the respondents and necessary ingredients to establish the abetment of suicide under Section 306 of the IPC are also missing, therefore, the appeal deserves to be dismissed.

¶30

Heard learned counsel for the parties and perused the material documents attached with the memo of appeal.

¶31

10.This Court in the matter of Surendra Kumar Vs. State of CG¹ while dealing with an issue relating to Section 306 of the IPC, analyzed the precedents of law in connection with abetment described under Section 107 IPC and following was observed at paragraph 12 which reads thus:-

¶32

12. Recently, in the matter of Kasi Bai & Ors vs. State of Karnataka reported in 2023 SCC Onine SC 575, it was observed that 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 and for the purpose of 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. The relevant paras i.e. 8-10 read as under:-

¶33

“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

¶34

1 2023 SCC OnLine Chh 4193

¶35

¶36

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.

¶37

9. In M. Mohan v. State [(2011) 3 SCC 626] 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:—

¶38

“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)

¶39

“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.”

¶40

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.

¶41

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 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.

¶42

¶43

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 selfesteem 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.

¶44

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.

¶45

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.”

¶46

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.”

¶47

Reverting back to the facts of the case, while recording the dying declaration (Ex.P-9), a question was put to the deceased at Sr. No.5 as to when and why she had gone to Salgaon, to which, she has replied that she was not keeping well so she had gone for treatment by Jhaad-Phoonk. She has also stated that Panda (Jagsay) was doing Jhaad-Phoonk. Perusal of dying declaration (Ex.P-9) shows that there is no whisper or allegation against present respondents. It also appears that due to lack of proper awareness of medical issue and its treatment in the said area, people of such area were subjected to practice of Jhaad-Poonk (sorcery) as they

¶48

¶49

believe that they will be cured by Jhaad-Phoonk instead of treatment by qualified practitioners/doctors.

¶50

12.Daughter of Jagsay @ Panda, namely Lilawati (PW-1) has deposed that the accused persons are her relatives being Mama and Nana and her father Jagsay has died . She has admitted that her father used to do JhaadPhoonk and people of locality were coming to his father for Jhaad-Phoonk. She has admitted that people were cured by the said Jhaad-Phoonk and the respondents have taken the deceased to her father for treatment. At paragraph 3 of her statement, she has stated that since last 5 years, the deceased was mentally ill and on the date of incident also her activities were not normal. In her statement, she has also deposed that on the date of incident when she saw the deceased burning, in order to save her, she came outside and started shouting. At that time her husband Heerasay (PW-2) was outside the house and her father Jagsay went to find buffalo. On hearing noises, her husband and other villagers came there doused the fire. Thereafter, her brother and father took the deceased to Hospital and on the next date she got information that Leelawati has died. Heerasay (PW-2) and Tarabai (PW-3), wife of accused Jagsay have also narrated the incident in same line as stated by PW-1.

¶51

13.Another witness Ramcharan (PW-9), who is brother of deceased Leelawati, has deposed that marriage of her sister was solemnized 10 years ago and in spite of so many years of marriage she was having no child. In his cross-examination he has admitted that in their society, they believe that any illness could be cured by Jhaad-Phoonk. He further admits that after 3 years of marriage, the deceased has delivered a child. He also admits that her sister Leelawati used to go to house of Jagsay since 3-4 years during the period of Jawara for seeking blessing of deity. They believe that people are devoting to Jawara for welfare of their child and

¶52

¶53

family. Even when this witness contacted the deceased, the deceased told him that her husband had brought her to the house of Jagsay for JhaadPhoonk.

¶54

14.Taking into totality the aforesaid evidence, it is explicit that the deceased was suffering from some mental illness and for one reason or the other, better medical treatment was not provided to her. As per practices in the said locality, she was taken to the house of Jagsay for treatment by JhaadPhoonk with a bonafide belief that she would be cured.

¶55

In such circumstances and in light of the aforesaid legal principles, this Court is of the view that ingredients for abetting the deceased are not attracted and finding arrived at by the Court below is just and proper.

¶56