Arjun Kumar Dhritlahre v. The State of Chhattisgarh

Shri Malay Shrivastava, counsel for the appellant. Shri Vaibhav A. Goverdhan, Panel Lawyer for the State/respondent. Criminal Appeal under Section 374i2) ol_the Codeof^nmina! Procedure JUDGMENT (3-12-2009) Heard.

2. This appea) is direeted against the impugned judgment dated 22- 1-2009 paasedby SessjensJudge.Raipur in Sessions Trial No.168/2008 convicting^theappeltant/accused for the offence punishable under SectJQn'.SOg'.of'the Indian Penal Code and senfencing hirn t6 undergo rigorous Imprisonment for 5 years and pay fine of Rs.1,OOQ/-,^'in default of payrnent:of fine to further undergo rigorous imprisonment foF6 months. ,3. The proseeution story in nutshell is that on the basis of merg intimation (Ex.P-1) lodged by Manglu Mahidhar (P.W.-1) F.I.R. (Ex.P- 12) was registered on 28-8-2008 against the appellanVaccused alleging in it that on 2-8-2008 his wife Nisha Mahidhar committed suicide and thereby the appellanVaccused committed the offence under Section 306 IPC. —2.- 4 . So as to prove the guilt of the appellant/accused, the prosecution has examined as many as 11 witnesses. Statement of the accused was also recorded under Section 313 Cr.P.C. in which he denied the charge levelled against him and pleaded his innocence. 1 defence witness Humanlal has also been examined by the appellant/accused. After hearing learned counsel for the parties, the trial Court has convicted and sentenced the appellant/accused as mentioned above. Hence this appeal.

5. Learned counsel for the appellant/accused submits that even if the entire prosecution case is taken as it is, the offence under Section 306 IPC is not made out because the basic ingredients of Section 306 IPC in particular Section 107 IPC are not attracted in the presentcase. It has been argued by learned counsehforthe appgllanVaccused that as perthecasecrftheproseeution.thecle^easeidNtshalVtahidharwas alleged to be the second wife of the appelFanVaecused and it has further come in evidence that on oF a April, 2008 the appellant/accused married one Pinki Dfaritlahre and thereafter in June, 2008 it is alleged that he married to the deceased Nisha Mahidhar. He submits that admittedly Pinki Dhritlahre, ; the first wife of appellant/accused was living along with parents of appellant/accused in his own house whereas deceased Nisha Mahidhar was residing in a separate old house along with brothers of the appellant/accused Vidya Sagar and Manoj. He submits that the appellant/accused has been convicted on the basis of statements of Manglu Mahidhar (P.W.-1), Ritu Mahidhar (P.W.-2), Sadhanbai (P.W.- 3) and Radhelal (P.W.-4) and according to him even if the statements "3- of these witnesses are taken as it is, the offence under Section 306 IPC is not made out. In support of his contention, learned counsel for the appellant/accused placed reliance on Ramesh Kumar vs. State of Chhattisgarh, AIR 2001 SC 3837, Sanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh, AIR 2002 SC 1998, Netai Dutta vs. State West Bengal, AIR 2005 SC 1775 and Sohan Raj Sharma vs. State of Haryana, AIR 2008 SC 2108.

6. On the other hand, it has been argued by learned counsel for the State/respondent that the deceased Nisha Mahidhar was subjected to cruelty by the appellant/accused to the extent where she was left with no other option but to commit suicide. According to him, appellanVaccused was well aware that he was a married person yet he performed the second marriage with the deceased Nisha Mahidhar and instead of keeping her in his main house along with his parents, the deceased Nisha Mahidhar was kept in a mud house (kachcha house). He referred the statement of Manglu Mahidhar (P.W.-1) in particular para 13 wherein it has been stated by this witness that his daughter was subjected to cruelty and once she had telephoned him and asked him for money because she was not having any money to arrange her food as she was being kept separately. He further submits that as per the statement of Sadhanbai (P.W.-3), 2 days prior to the date of incident, when appellant/accused, Ramavtar, brother of the appellant/accused had told the first wife of the appellanVaccused that today you can beat the deceased Nisha Mahidhar by catching her hair and there even the ^^ mother of the appellanVaccused had said that the clothing of deceased Nisha Mahidhar may be thrown out. He submits that this itself shows as to in what manner the deceased Nisha Mahidhar was ill-treated. In support of his contention, learned counsel State/respondent has placed strong reliance on Kamalakar Nandram Bhavsar and others vs. State of IVIaharashtra, AIR 2004 SC 503 (in particular paragraphs 10, 12 and 15) and ftfloti Lal vs. State of M.P. (Now Chhattisgarh), AIR 2004 SC 2909.

7. I have heard learned counsel for the parties at length and perused the record including the impugned judgment. From the statements of the witnesses and the record it appears that some time in the month of April, 2008 the appellant/accused married Pinki Dhritlahre and was residing with her in his parental house along with his father, mother and other family members. It also appears that some time in June, 2008 the appellant/accused again married to the deceased Nisha Mahidhar as they were having affair and the deceased Nisha Mahidhar was kept in a separate house where his brothers Vidya Sagar and Manoj were residing along with their family. On 2-8- 2008 the deceased committed. suicide by hanging herself and thereafter the investigation was done and the case was registered. Manglu Mahidhar (P.W.-1) has stated in his statement that about 15 days back her daughter was taken away by the appellanVaccused and then he came to know that she is being kept in a separate house. He has further stated that the appellant/accused might be having affair with the deceased Nisha Mahidhar and that is why he took her. It furi:her alleged by him that the appellant/accused had also written a s •t^fs^-y^ ^..nis.s^ -e~- letter (Ex.P-7) to the deceased Nisha Mahidhar which was seized from his possession and in this letter it was mentioned that "I will not leave you as 1 love you, even if 1 will die. You are my life". In this letter there is nothing incriminating against the appellanVaccused rather this letter merely shows his love towards the deceased Nisha Mahidhar. So far as the allegation made by this witness in para 13 of his statement is concerned, it only shows that the deceased Nisha Mahidhar was having some financial crisis as she was not getting food. She telephoned her father and in reply the father asked his daughter to come back to his house, however, she refused to go back and, therefore, the father felt hurt and did not go to his daughter. He has further stated that his family and the family of the appellant/accused is known to each other very well and they visit each other quite frequently. He has stated in para 14 of his cross-examination that in the mud house (kachcha house) the brothers of the appellant/accused Vidya Sagar and Manoj were residing along with their family. Even if the entire evidence of this witness is taken as it is, it appears that nothing substantial has been stated by him warranting the conviction of the appellanVaccused under Section 306 IPC. Ritu Mahidhar (P.W.-2), who is the elder sister of the deceased Nisha Mahidhar has merely stated as to in what manner the marriage of the deceased Nisha Mahidhar was performed with the appellant/accused. However, she not made allegation against appellanVaccused. Sadhanbai (P.W.-3), aunt of the deceased has merely stated as to how the deceased went along with the appellanVaccused and so far as her statement as referred by the learned counsel for the State/respondent in para 3 is concerned, it appears that Ramavtar, brother of appellant/accused had told the wife ofthe appellant/accused to go and the deceased Nisha Mahidhar and then mother of appellanfaccused also told her to throw the clothing of the deceased outside the house. Even if this allegation is taken as it is, ingredients of ill-treatment and cruelty cannot be proved. Seizure witness Radhelal (P.W.-4) has also not deposed anything specific against the appellant/accused. Rest of the prosecution witnesses namely Dr. Ullas Gunnade (P.W.-5), Panch Witness Shivkumar Banjore (P.W.-6), Assistant Sub-lnspector Sanjay Sharma (P.W.-7), Constable Virendra Bariha (P.W.-8), Investigating Officer B.S.Jagrit (P.W.-9), Seizure Witness Devchand Mahidhar (P.W.-10), Head Constable Suresh Nishad (P.W.-11) are not very relevant to refer.

8. To convict the appellanVaccused under Section 306 IPC the prosecution is required to prove the basic ingredients of Section 306 IPC. Sections 306 and 107 ofthe Indian Penal Code read as under: "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 which may extend to ten years, and shall also be liable to fine.

107. Abetment of a thing.—A person abets the doing of a thing, who— First.— Instigates any person to do that thing; Secondly.— Engages with one or more other person or persons in any conspiracy for if an act or the doing of thing, omission illegal pursuance of that conspiracy, and in •y' ^3^ order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. 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 ofthat thing. 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 ofthat act."

9. In Ramesh Kumar vs. State of Chhattisgarh (supra), Supreme Court observed as under: "22. Sections 498-A and 396 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary Article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the Court can convict an accused on the inspires full confidence, basis of such declaration where it there is no reason why the same principle should not be 's- ^^- applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on page 11 of diary (Article A) clearly states that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares - none to be held responsible or harassed for her committing suicide. The writing on page 12 of diary (Article A) clearly suggests that some time earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Exbt. P/10 corroborates the inference flowing form the two writings contained in the diary and as stated hereinabove. accused trying to put off the fire and taking his wife to hospital also improbablises the theory of his having abetted The conduct of suicide."

10. In Sanju alias Sanjay Singh Sengar vs. State of hfladhya Pradesh (supra), the Supreme Court observed as under: "13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant has used abusive language and go and die'. For this, had reportedly told the deceased the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house result of 'to •9- of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tellthe deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. is in a fit of anger and It emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25 July, 1998 ensued by quarrel. The deceased was found hanging on 27 July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said the abusive language, whichhad been used by the appellant on 25 July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27 July, 1998 is not proximate to the abusive language uttered by the appellant on 25 July, 1998. The fact that the deceased committed suicide on 27 July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on is alleged that the appellant had 25 July, 1998 when it used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.

15. A plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without (O- any work or avocation and at the same time indulged in drinking as revealed from the statement of the wife-Smt. Neelam Sengar. He was a frustrated man. Reading of the suicide note will clearly suggest that such a note is not a handy work of a man with sound mind and sense. Smt. Neelam Sengar, wife of the deceased, made a statement under Section 161, Cr.P.C. before the Investigation Officer. She stated that the deceased always indulged in drinking wine and was not doing any work. She also stated that on 26 July, 1998 her husband came to them in an inebriated condition and was abusing her and other members of the if believed, shows that the family. The prosecution story, quarrel between the deceased and the appellant had taken place on 25 July, 1998 and if the deceased came back to itcannot be said that the house again on 26 July, 1998, the suicide by the deceased was the direct result of the quarrel that had taken place on 25 from the aforesaid circumstances independently, we are the ingredients of 'abetment' are in the instant case for an offence under clearly of the view that July, 1998. Viewed totally absent Section 306 IPC. It is in the statement of the wife that the deceased always remained in a drunkened condition. It is a common knowledge that excessive drinking leads one to debauchery. It dearly appeared, therefore, deceased was a victim of his own conduct unconnected with the quarrel that had ensued on 25th July, 1998 where is stated to have used abusive language. the appellant Taking the totality of materials on record and facts and lead to circumstances of the case into consideration, it will irresistible conclusion that it is the deceased and he alone, and none else, is responsible for his death."

11. In Netai Dutta vs. State West Bengal (supra), the Supreme Courtobserved as under: -II- "5. There is absolutely no averment in the alleged suicide note that the present appellant had caused any harm to him or was in any way responsible for delay in paying salary to deceased- Pranab Kumar Nag. It seems that the deceased was very much dissatisfied with the working conditions at the work place. But, deceased after his transfer in 1999 had never joined the office at 160, B.L. Saha Road, Kolkata and had absented it may also be noticed that himself for a period of two years and that the suicide took place on 16.2.2001. the present appellant had in any way instigated the deceased to commit It cannot be said that suicide or he was responsible for the suicide of Pranab Kumar Nag. An offence under Section 306, IPC would stand only if there is an abetment for the commission of the crime. The parameters of the 'abetment' have been stated in Section 107 ofthe Indian Penal Code. Section 107 says that a person abets the doing of a thing, who instigates any person to do that thing; or 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, or the person should have intentionally aided any act or illegal omission, The explanation to Section 107 says that any willful misrepresentation or willful concealment of a material disclose, may also come within the contours of 'abetment'. fact which he is bound to In the suicide note, except referring to the name of 6. the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any willful act or omission or intentionally aided committing the act of suicide. There is no case that appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased - Pranab Kumar Nag." deceased-Pranab Kumar Nag instigated

12. In Kamalakar Nandram Bhavsar and others vs. State of Maharashtra (supra), the Supreme Court observed as under: "10. The perusal of the evidence led by the prosecution in the ill-treatment and this case shows that because of harassment meted out to the victim, she had to leave her matrimonial home and in one case had even to take shelter in the house of Sarode Palathi wherefrom she was taken to her parent house by her brother. The fact that she was living with her parents when she was taken back to her house for attending a Satyanarayana Puja has also gone that she did file a petition for unchallenged. The fact is also admitted. maintenance under S. 125 of the Cr.P.C. In such circumstances the fact that the victim was treated badly, consequent to which she had to commit suicide can very well be accepted. But the question that arises for our consideration is who is actually responsible for causing this harassment which led to the death of Mina. If we examine the evidence of P.W.2 as accepted by the High Court, shows that this witness stated that the deceased had told her that her mother-in-law, sister-in-law and husband were ill-treating her on the ground that she was black in complexion and that she was short of hearing. P.W.3 also states that the deceased had complained about her husband, mother-in-law and sister-in-law of beating her. This witness also stated that the deceased had told her that because of her harassment, she may even commit suicide. P.W.1 the brother similarly states that the deceased had complained about the ill-treatment meted out to her by her husband, mother-in-law and sister-in-law. It is clear from the evidence of these witnesses that so far as the harassment meted out to the deceased the said prosecution witnesses have consistently spoken about husband, mother-in-law and sister-in-law. Therefore, in our the High Court was justified in holding these opinion, accused persons responsible for offences punishable under the involvement of 7S Ss. 306 and 498-A read with S. 34 of I.P.C. because by this harassment meted out to the deceased, these accused persons have abetted her suicide. But so far as the father- in-law of the deceased, who is appellant No.2 before us, concerned, we find no evidence at all to hold him guilty of the said offence. Therefore, in our opinion, to this extent, the High Court has erred.

12. We are of the opinion that this law laid down by a three-Judge Bench of this Court applies squarely to the facts of this case. Therefore, having come to the conclusion that the conviction by the High Court of appellants 1,3,4 and 5 is justified, we affirm the same under Ss. 306 and 498-A the Code of Criminal Procedure but postpone the awarding of sentence to give an opportunity to the learned counsel for the appellants to represent before us in regard to the quantum of sentence. We, however, allow the appeal appellant-Nandram Anand Bhavsar and set aside the of 2 conviction and sentence imposed on him by the Courts below and acquit him of the charges framed against him. We find Kamalakar Nandram Bhavsar (A-1), Tara Bai Nandram Bhavsar (A-3), Hirabai Satish Bhavsar (A-4) and guilty of offences Mirabai Nandram Bhavsar punishable under S. 306 read with S. 34 and S. 498-A read with S. 34, I.P.C. and confirm the conviction of (A-5) appellants on that score.

15. In regard to appellants-Hirabai Satish Bhavsar and Mirabai Nandram Bhavsar taking into consideration the overall circumstances of the case against these appellants, we reduce the sentence under S. 498-A read with S. 34, I.P.C. to 1 year Rl and to pay a fine of Rs.1,000/-; in default for 6 months. For the offence punishable to undergo Rl I.P.C. also, we reduce the under S. 306 read with S. 34, sentence to 1 year Rl with a fine of Rs.1,000/-; in default to 1 year. Substantive sentences to run undergo Rl concurrently." ?"<"\'tt f%?g9>!s. 1 t,fr-,-^ K-

13. Keeping in view the ingredients of Sections 306 and 107 IPC and the above observations of the Supreme Court, 1 am of the considered view that the ingredients of 'abetment' are totally absent in the instant case for an offence under Section 306 IPC. An offence under Section 306 IPC would stand only if there is an 'abetment' for the commission of the crime. Accordingly, in the present case'offence under Section 306 IPC is not made out againstthe appellant/accused.

14. In the result, the criminal appeal succeeds and is allowed. The impugned judgment of the Court below convicting and sentencing the appellanVaccused under Section 306 of the Indian Penal Code is set aside. The appellant/accused is acquitted of the charge under Section 306 of the Indian Penal Code. He be set free forthwith, if not required in any other case. Fine, if paid, be refunded. Sd/- Pritinker Diwaker Judge Gapal