Shyam Lal Cherwa and Another Vs State of Chhattisgarh

2- Gangaram Cherwa, S/o Shyamlal Cherwal, Aged about 24 years, By occupation Agriculturist Both R/o Father’s house vill. Khaliba, P.S. Ambikapur District- Sarguja (C.G.).

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... Appellants

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versus

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1 - State of Chhattisgarh Through S.H.O. P.S. Ambikapur- Dehat DistrictSarguja (C.G.).

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... Respondent

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For Appellants	: Mr. Rishikant Mahobia, Advocate
For State/Respondent	: Ms. M. Asha, P.L.

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Hon'ble Smt. Justice Rajani Dubey

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CAV Judgment

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1 . This appeal under Section 374(2) of the Code of Criminal Procedure has been filed by the appellants against the judgment of conviction and order of sentence dated 27.08.2005 passed by II Additional Sessions Judge, Ambikapur, District- Sarguja (C.G.) in Sessions Trial No. 264/2002 whereby, the trial Court convicted the appellants for the offence punishable under Section 306 of the IPC and sentenced to undergo RI for seven years and to pay fine of Rs. 50,000/- each and in default thereof to further undergo RI for two years.

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2 . Case of the prosecution is that on 21-02-2002, the priests of Indargarh deities went to Kundargarh Devi temple for worship. In front of the said temple, a woman hanged herself to death. The superintendent of the Devi temple informed the District Panchayat Odgi. The information was sent to the District Panchayat Bhaiyathan through wireless from the District Panchayat Odgi. Thereafter, the panchnama of the body was prepared. Seizures were made. Subsequently, the postmortem of the body of the deceased was conducted. The case was transferred to Police Station- Ambikapur by Police Station-Jhilmili. Statements were recorded. After due investigation, the charge-sheet was filed before the Chief Judicial Magistrate against the accused persons for the offence punishable under Sections 376, 306 of IPC and from where the matter was committed to the learned Sessions Judge and thereafter the matter was received to this Court on transfer for trial. The learned trial Court framed the charges under Sections 376 and 306 of IPC against the appellant No.1- Shyamlal and Section 306 of IPC against the appellant No.2- Gangaram and other accused person, to which, appellants abjured their guilt and claimed to be tried.

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3 . So as to hold the accused/appellants guilty, the prosecution examined as many as 17 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied the incriminating circumstances appearing against them and pleaded innocence and false implication in the case. In their defence, accused/appellants examined two witnesses.

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4 . Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 27.08.2005 finding evidence adduced by the prosecution trustworthy, acquitted the appellant No. 1 for the offence under Section 376 of IPC and other coaccused Vishnu Ram Rajware for the offence under Section 306 of IPC and convicted the appellants for the offence under Section 306 of IPC and sentenced them as mentioned in para 1 of this judgment. Hence, this appeal.

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5 . Learned counsel for the appellants submits that the impugned judgment is contrary to the facts, law and circumstances of the case. The learned trial Court has committed grave error of law by convicting the appellants particularly when the prosecution has failed to prove the case beyond all reasonable doubts. The learned trial Court has failed to consider that the conviction is based upon the evidence of Taradevi. Cherwa (P.W.-8) and Mahavir Cherwa (P.W.-9) being mother and father of the deceased, who are the interested witnesses and are not reliable. The learned trial Court failed to consider that no other independent witnesses have supported the case of the prosecution. The learned trial Court ought to have considered that the ingredients of Sections

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107 and 306 of I.P.C. are not proved in this case. Therefore, the impugned judgment is liable to be set aside.

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Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Kumar @ Shiva Kumar Vs. State of Karnataka; 2024 SCC OnLine SC 216 and this Court’s order dated 20.07.2021 passed in CRA No. 231 of 2002 in the matter of Khol Bahara and another Vs. State of Chhattisgarh.

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On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and convicted the appellants accordingly. Hence, the impugned judgment is well merited and does not call for any interference by this Court.

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

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8 . It is not disputed in this case that the appellant No.1 Shyam Lal Cherwa is father-in-law of the deceased- Sunita Devi and appellant Gangaram Cherwa is husband of the deceased. It is clear from the record that the prosecution filed charge-sheet against the three accused persons for the offence under Sections 376 and 306 of IPC and after appreciation of oral and documentary evidence, learned trial Court acquitted the accused- Vishnu Ram Rajware of the offence punishable under Section 306 of IPC and accused- Shyam Lal Cherwa of the offence under Section 376 of IPC and convicted both the appellants under Section 306 of IPC. It is also not disputed in this case that the deceased Sunita Devi committed suicide by hanging herself.

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9 . Manohar Teli (P.W.-3) stated that his shop is situated below the hill on which Kundargargh Devi is situated and about 3 years ago, one woman hanged herself to death in a mound near Kundargarh Devi temple. Seizure was made by the police vide Ex.P/3.

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10. Ahivaran Yadav (P.W.-2) also stated that one lady committed suicide near temple and police prepared inquest memo vide Ex.P/2 wherein he admitted his signature from A to A part.

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11. Raghvendra Kumar Gupta (P.W.-4) also admitted his signature on seizure memo (Ex.P/3) from B to B part.

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12. Dasmatiya Yadav (P.W.-5) and Vishnu Prasad Yadav (P.W.-6) stated that they did not know as to how Sunita Bai died. They did not support the prosecution case. Prosecution declared them hostile and crossexamined them but they denied all suggestions of the prosecution.

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13. Tara Devi Cherwa (P.W.-8), mother of the deceased stated that her daughter Sunita (deceased) used to tell her that her father-in-law Shyamlal and Vishnu Rajwade stared at her sternly and pulled her saree.

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In cross-examination, she admitted in her police statement that Vishnu Rajwade looked at her with bad intentions. If the same was not written in her police statement, then she did not know the reason.

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In para 18 of her cross-examination, she further stated that she did not know as to whether her daughter was with my sister i.e. her aunt for 6 months before her death or not.

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14. Mahavir Cherwa (P.W.-9) who is father of the deceased also stated against the accused persons.

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In his cross-examination, he admitted that he told everything in his police statement. If all these things are not written in his police statement (Ex. D/2), then he did not know the reason.

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15. Lakshan Dhari (P.W.-10) and Bahadur Cherwa (P.W.-11) stated that they saw a girl hanging in the Kundargan Devi temple and information about it was given in the village by them.

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16. Radha Bai Cherwa (P.W.-12) and Ram Kumar Bansour (P.W.-13) admitted their signatures on notice (Ex.P/7), inquest memo (Ex.P/2) and also on seizure memo (Ex.P/3).

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17. Nanka Singh (P.W.-15) stated that the victim came to his house about 2 years ago and told him that her mother-in-law and father-in-law did not give her food on time.

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In para 11 of his cross-examination, he admitted that before the death of the deceased, he came to know that the deceased had gone away from her in-laws house.

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18. Dr. Shashi Tirki (P.W.-19) conducted the postmortem of the body of the deceased and she opined that the cause of death is hanging and there are symptoms of recent sexual intercourse on the body of the deceased. The nature of death is suicidal. She gave her report vide Ex. P/13 in this regard.

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19. Defence witness- Ganesh Ram Yadav (D.W.-2) stated that after marriage, the deceased was with the Gangaram and then she went to her maternal home and later it came to know that she hanged herself to death in Kundargarh.

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20. In the matter of Khol Bahara and another vs. State of Chhattisgarh ,

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vide order dated 20.07.2021 passed in CRA No. 231 of 2002, this Court held in paras 10 and 11 as under:-

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Section 306 IPC provides that if any person commits suicide whoever abets the commission of such suicide, shall be liable to The ingredients of abetment are set out in Section 107 of IPC which reads as under:

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"107. Abetment of thing. A person abets the doing of a thing.

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Who-

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First.- Instigate any person to do that thing; or 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 thin; or

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

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11.In the present case, it has to be decided as to whether the accused/appellants abetted or instigated the deceased to commit suicide. It is not disputed that the deceased committed suicide but what had happened on the date of incident is very important material for the purpose of recording a finding on a question of abetment. In the case of Ramesh Kumar Vs. State of Chhattisgarh reported in 2001 9SCC

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618 Hon'ble the Apex Court held in para 23 and 24 which reads thus:-

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"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

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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 State of West Bangal vs. Orilal Jaiswal and Anr. MANU/SC/0321/1994 1994CriLJ2104, this Court has cautioned that 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 the life by committing suicide. If it transpires 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 circumstances 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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In the case of M. Arjunan Vs. The State reported in 2019 3SCC 315 Hon'ble the Apex Court held in para 8 which reads thus :-

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"The essential ingredients of the offence Under Section 306 Indian Penal Code are: (i) the abetment; (ii) the intention of the Accused to aid or instigate or abet the deceased to commit suicide.

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The act of the Accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the Accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, Accused cannot be convicted under Section 306 Indian Penal Code."

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21. In the matter of Kumar @ Shiva Kumar Vs. State of Karnataka; 2024 SCC OnLine SC 216 held in paras 68 and 69 as under:-

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Thus, this Court has held that in order to prove that the accused had abetted the commission of suicide by a person, the following has to be established:

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(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and

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(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

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In Amalendu Pal alias Jhantu v. State of West Bengal; (2010) 1 SCC 707, this Court after referring to some of the previous decisions held that it has been the consistent view that before

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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 to put an end to her life. It must be borne in mind that in a case of alleged abetment of suicide, there must be proof of direct or Indirect act(s) of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the deceased to commit suicide, conviction in terms of Section 306 IPC would not be sustainable. Thereafter, this Court held as under:

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In order to bring a case within the purview of Section 306 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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22. In light of above, in the present case, it is clear that the parents of the deceased and other witnesses stated about ill treatment given by the father-in-law to the deceased but they did not level such allegations in their police statements and it is also clear that before the date of the incident, deceased left the matrimonial home and went to her aunt’s

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home. Appellants might have uttered some abusive words but that words are not sufficient to constitute the offence under Section 306 of IPC. Therefore, the offence under Section 306 IPC is not made out because the basic ingredients of such Section in particular Section 107 IPC is completely missing in this case, but the learned trial Court did not appreciate the statements of all the witnesses properly and convicted the appellants. Therefore, the findings recorded by the learned trial Court are not sustainable in the eye of law.

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23. For the foregoing reasons, the conviction and sentence of the appellants under Sections 306 of IPC cannot be legally sustained. The appeal is accordingly allowed . The impugned judgment dated 27.08.2005 is set aside. Consequently, the appellants are acquitted of the charges levelled against them.

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24. The accused/appellant No. 1 is reported to be on bail, therefore, his bail bond shall remain in operation for a period of six months from today in view of provisions of Section 437-A of CrPC. However, as per report dated 25.06.2023 of the concerned jail superintendent, appellant No.2 is undergoing sentence in Sessions Trial No. 123/2021.

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

Sd/-

(Rajani Dubey)

Ruchi

RUCHI YADAV Digitally signed by RUCHI YADAV

Shyam Lal Cherwa and Another v. State of Chhattisgarh

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Shyam Lal Cherwa and Another v. State of Chhattisgarh

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