Vishnu Prasad Kashyap Vs State of Chhattisgarh

This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 18.01.2022 passed by learned Additional Sessions Judge (FTC), Janjgir, District- Janjgir-

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Champa (C.G.) in Sessions trial No. 22/2019, wherein the said Court convicted the appellant and sentenced him as under :-

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Conviction	Sentence
U/S 306 of IPC	R.I. for 05 years with fine amount of
	Rs. 500/- and in default of payment of
	fine, to undergo S.I. for 10 days.

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Prosecution Story:-

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Brief facts of the case are that the deceased was married with the appellant. After marriage, she was residing in her matrimonial house Village- Khaira. Out of their wedlock, one girl child was born. After sometime of marriage, she was subjected to cruelty and harassment by the accused persons and also she underwent mental torture, as the accused persons were demanding her to bring the ration and money from her parents, and on account of the same, on 05.10.2018 , the deceased set herself ablaze and committed suicide and thereafter, she was admitted in the District Hospital, Janjgir in serious condition, where she died. Morgue was intimated by Dr. Mamta Jagat (PW-6) to the Police vide memo Ex. P/5 and then morgue intimation Ex. P/10 was recorded by the Police. The inquest of dead body of the deceased was prepared in presence of the witnesses. Dead body of the deceased was sent for postmortem to District Hospital, Janjgir, where Dr. Swetalal (PW-14) & Dr. N. K. Dhruv (PW-11) have conducted post-mortem of the dead body of the deceased and gave her report as Ex. P/1. After conducting the postmortem, the doctors have opined that cause of death is due to cardiac and respiratory arrest caused by burning and its

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complications, duration of death was within 36 hours since her autopsy. During the investigation, the Investigating Officer- Mansai Ram Bhagat, prepared the spot map vide Ex. P/3 before the witnesses and as per Seizure Memo vide Ex. P/13, seized a chimney made of a box, a matchbox and soil, from which, the smell of kerosene was coming from the scene of incident. The prosecution case is further that after the verification, Inspector- A.S. Khan (PW-16) lodged the FIR vide Ex. P/12. During the investigation, spot map was prepared by DSP- Nikolas Khalkho (PW-9) vide Ex. P/6, statements of the witnesses were recorded and accused persons were arrested as per Ex. P/7 and Ex.P/8. After completion of due and necessary investigation, a chargesheet was led before the Court of Judicial Magistrate First Class, Pamgarh, District- Janjgir-Champa (C.G.). However, the said case was committed to the Court of learned Additional Sessions Judge (FTC), Janjgir, District- Janjgir-Champa (C.G.) and the matter was registered as Sessions trial No. 22/2019 and the accused persons were put to trial for the offence punishable under Section 304-B of IPC in alternate Section 302 of IPC.

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So as to hold the accused/appellant guilty, the prosecution has examined as many as 17 witnesses. Statements of the accused persons were also recorded under Section 313 of Cr.P.C. in which they denied the charges leveled against them and pleaded their innocence and false implication in the case.

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The learned trial Court after hearing the counsel for the respective parties and considering the material available on record has acquitted the co-accused person/Gokul Prasad Kashyap of the said charges and

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convicted and sentenced the present accused/appellant as mentioned in opening para of this judgment.

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Submissions of the parties:-

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Learned counsel for the appellant submits that the findings recorded by the learned trial Court is that the prosecution has proved its case against the appellant for offence under Section 306 of IPC is erroneous and against the evidence on record. Learned trial Court has misconceived the law involved in the case and miss-appreciated the evidence on record and has utterly failed to appreciate the statements of prosecution witnesses. The appellant has never subjected the deceased (Bhanmati) to harassment and torture and before the incident, the deceased (Bhanmati) has never made complaint against the appellant, though, the appellant had admitted the deceased in the District Hospital, Janjgir for better treatment. The appellant has not committed any aforesaid offences as alleged by the prosecution against him. He next submits that the appellant is a young person and prosecution has no direct evidence to make allegation against the appellant, because the Police has registered morgue intimation only on the basis of mere suspicion, the deceased (Bhanmati) was peacefully residing with her husband/appellant as wife at her matrimonial home and out of their wedlock, one girl child was born and after 7 years of marriage, the deceased set herself ablaze and committed suicide, thereafter the appellant himself admitted the deceased to the hospital, but the learned trial Court did not appreciate the oral and documentary evidence and thereby wrongly convicted the appellant for the alleged offence. So, the impugned judgment is liable to be set aside and the

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appellant deserves to be acquitted of the aforesaid charge.

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Ex adverso , learned counsel for the State opposes the submissions of learned counsel for the appellant and submitted that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after minutely appreciating the oral and documentary evidence, had acquitted the co-accused person/ Gokul Prasad Kashyap and thereby rightly convicted the present appellant for the alleged offence and the impugned judgment of conviction and order of sentence needs no interference by this Court.

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I have heard learned counsel for the parties and perused the material available on record including the impugned judgment.

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Discussion and Analysis:-

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It is clear from record of learned trial Court that the learned trial Court has framed charge for offence under Section 304-B of IPC and in alternate Section 302 of IPC against the present appellant and another co-accused person/ Gokul Prasad Kashyap and learned trial Court after minutely appreciating the oral and documentary evidence, acquitted the another co-accused person/ Gokul Prasad Kashyap of the said charges, but convicted the appellant herein for offence under Section 306 of IPC instead of Section 304-B and in alternate Section 302 of IPC.

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It is not disputed before the trial Court that the appellant is the husband of the deceased (Bhanmati) and also it is not disputed that deceased died due to burns. Ramkanhai (PW-1), who is the uncle of the deceased (Bhanmati) has stated in his examination-in-chief that both

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the accused persons burnt his niece (deceased) to death. The accused persons told him over the phone that your niece (deceased) has got burnt and after receiving the said information, they reached to the cremation place, where the funeral ceremony was already completed. He further stated that he has doubt upon both the accused persons that they killed his niece (deceased). In his cross-examination, he admitted this fact that the first marriage of deceased was solemnized with one Arun Kumar.

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Kedarnath (PW-2), who is also the uncle of deceased (Bhanmati) has stated that the appellant/Vishnu informed him over the phone that your niece (deceased) has got burnt and then he went to the hospital where the deceased admitted. He admitted his signature in Inquest Memo (Ex. P/2) on A to A part. In his cross-examination, he also admitted this fact that the first marriage of the deceased (Bhanmati) was solemnized with one Arun Kumar.

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Satyanarayan- (PW-3), who is the brother of the deceased (Bhanmati) has stated that the deceased’s marriage was solemnized with Vishnu Prasad/appellant as per Chudi custom before the 15 months of the said incident and out of their wedlock one girl child was born. PW-3 stated that when the deceased came to her parental home, she used to complain that the accused persons often harass and quarrel with her and they used to say her to bring ration i.e., rice, pulse and money from your parental home and after three days, the appellant/Vishnu informed him over the phone that the deceased has got burnt at the time of making the tea. He admitted his signatures on Notice (Ex. P/1), Inquest Memo (Ex. P/2) & Spot Map (Ex.P/3).

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Parvati (Ex.P/4), who is the sister of deceased (Bhanmati) has stated

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that in her examination-in-chief that the deceased told her that the appellant/Vishnu used to harass and torture her by demanding ration and money. She later came to know that the accused persons burnt her sister (deceased) to death. In her cross-examination, she admitted this fact that before her, the accused persons did not demand from her sister (deceased) for any money or ration.

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Kartikram Kashyap (PW-13) & Ramkhilawan (PW-15), who are the relatives of the deceased (Bhanmati) have also stated that the deceased (Bhanmati) told them that the accused persons tortured and harassed her by demanding for ration and money. Both the witnesses have admitted this fact that the first marriage of the deceased was solemnized with one Arun Kumar, who is resident of village- Pakaria (Jhulan) and her second marriage with the appellant/Vishnu was solemnized as per Chudi custom. In cross-examination, PW-13 stated that he did not know about the incident and also did not know how the deceased (Bhanmati) has got burnt. In cross-examination, PW-15 stated that in front of him, no altercation took place between the accused persons and the deceased (Bhanmati) and also no demand be it ration or money was made by the accused persons.

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Learned trial Court has also appreciated this fact that all witnesses stated that both the accused persons killed the deceased, but learned trial Court appreciated this fact that offence under Section 304-B and in alternate Section 302 of IPC is not proved beyond reasonable doubt. In para 32 of its judgment, learned trial Court finds that accused No. 1/appellant often used to harass and quarrel with the deceased and he used to say her to bring ration i.e., rice, pulse and money from your

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parental home that is why, she committed suicide, thereby convicted under Section 306 of IPC instead of Section 304-B and in alternate Section 302 of IPC.

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At this juncture, it is appropriate to look into the provisions of Sections 306 & 107 of Indian Penal Code, which reads as under:-

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“306. Abetment of Suicide- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term of which may extend to ten years, and shall also be liable to fine.

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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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Second- Engages with one or more other person in any conspiracy for the doing of that thing, if an act or illegal mission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

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Third- Intentionally aids, by any act or illegal omission, the doing of that thing.

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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.

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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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It is vivid from statements of all witnesses that the prosecution has

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failed to prove essential ingredients of Sections 306 & 107 of IPC, but

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the learned trial Court did not appreciate all these facts. It is also quite vivid that Dr. Sweta Lal (PW-14) did not opine about nature of death. When the trial Court asked this question to her that what is the nature of death of the deceased (Bhanmati), she answered that decease’s death was suicidal in nature.

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It is vivid from statements of all witnesses that deceased (Bhanmati) was married with another person and then she performed Chudi marriage with the present appellant and out of their wedlock, one girl child was born and all witnesses admitted this fact that they have no personal knowledge about any demand from deceased or the deceased being tortured by the accused persons and the learned trial Court has also found that prosecution has failed to prove its case under Section 304-B of IPC and in alternate Section 302 of IPC, but without any sufficient evidence, learned trial Court convicted the present appellant under Section 306 of IPC., therefore, the findings recorded by learned trial Court are not according to the provisions of Sections 306 and 107 of IPC and the same are not sustainable.

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Thus, from overall discussion of prosecution witnesses and material available on record, it is difficult to infer that the appellant in any manner abetted the deceased to commit suicide. The learned trial Court while convicting the accused has not considered the prosecution witnesses in its true perspective.

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In the result, the present appeal is allowed and the impugned judgment of conviction and order of sentence dated 18.01.2022 is hereby setaside. Appellant is acquitted of the charge under Section 306 of IPC. He is still in jail, therefore, he be set free forthwith, if not required in any

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other case.

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Keeping in view the provision of Section 481 of BNSS, 2023., the appellant is directed to furnish the personal bond a sum of Rs. 25,000/before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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

Sd/-

(Rajani Dubey)

JUDGE

AMIT PATEL

Vishnu Prasad Kashyap v. State of Chhattisgarh

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Vishnu Prasad Kashyap v. State of Chhattisgarh

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