Nepal Mahto, S/o Sri Chamru Mahto, R/o Village- Joka, P.S. Taljhari, District Dumka. … v. The State of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 796 of 2007 Nepal Mahto, S/o Sri Chamru Mahto, R/o Village- Joka, P.S. Taljhari, District Dumka. …… Appellant Versus The State of Jharkhand ……. Respondent ------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD -------- For the Appellant For the State : Mr. Kumar Nischay, Advocate Mr. Ashish Jha, Advocate : Mr. S.K. Srivastava, APP …….. FOR JUDGMENT 17/ 13/02/2024 This Criminal Appeal has been filed on behalf of the appellant, namely, Nepal Mahto challenging the judgment of conviction dated 21.05.2007 and sentence dated 22.05.2007 passed by Sri Alok Kumar Dubey, learned 5th Additional Sessions Judge, (FTC), Dumka in Sessions Case No.58 of 2006 by which the appellant, namely, Nepal Mahto has been convicted for offence under Section 306 of the Indian Penal Code and sentenced to undergo RI for 8 years and pay fine of Rs.5,000/- and in default of payment of fine, he has been further sentenced to undergo RI for six months. 2. The prosecution case, as per fardbeyan of Rajendra Yadav P.W.5 recorded on 28.05.2005 by Sub-inspector Rama Raman Prasad, then O.C. Taljhari is that some 6 years ago his younger sister Pramila Devi (since deceased) was married with Nepal Yadav (i.e. the appellant) and after one year, there was Gauna Ceremony and for one year she lived in her matrimonial house properly. After that since 4 years Nepal Yadav was asking for a Jarsi Cow and cash of Rs.10,000/-. Whenever, the situation was tense, they used to convene village panchayat in Maikey along 2 with his father. However, around eight (8) days ago Kamal Yadav, Mahendra Yadav, Arjun Yadav, Bijay Yadav, Shambhu Yadav, Ramdeo Yadav and Munshi Yadav had called a Panchayati and it was decided that they cannot give more and they had already given as per their capacity. However, Nepal Yadav, Kamdeo Lakhan and Tulo Yadav had stated them that if they do not give one Jarsi Cow and Rs.10,000/- they shall not be able to see the girl again. On 27.05.2005 at about 1:30 P.M. one Mahendra Yadav of Village- Joka informed them on phone that Pramila i.e. the deceased is serious and they were asked to come immediately. His father Shambhu Yadav i.e. P.W.-2 reached to Village- Joka at about 2.30 P.M. and found Pramila dead on a cot near the house of one Jaleshwar Mahto. On enquiry, he came to know that his sister went to wash the buffalo outside the Village which is used as cremation ground and in a nearby well, she was drown and died. Thus, at about 8.30 P.M. he reached to Village- Joka learnt that one day ago his sister was murdered and thrown there. They had intended to get her body cremated. He further claimed that his brother-in-law and his brothers have committed murder of his sister, Pramila due to non-fulfillment of dowry. On this information, Jarmudi (T) P.S. Case No.109/05 U/ 304B of the I.P.C. was registered on 28.05.2005 against the appellant, Nepal and others, namely, Kamdeo, Lakhan and Tulo.
Legal Reasoning
3. Heard, learned counsel, Mr. Kumar Nischay on behalf of learned counsel for the appellant and Mrs. Shweta Singh, learned counsel for the State. 4. Learned counsel for the appellant has submitted that impugned judgment of conviction and sentenced passed by learned court below are illegal, arbitrary and not sustainable in the eyes of law. It is submitted that learned court below has committed illegality by convicting the appellant for the charge under Section 3 306 of IPC. It is submitted that there are several contradictions in the evidence of prosecution witnesses, which had not been considered by the court below. It is submitted that although P.W.-1 has not been declared hostile by the prosecution, but P.W.-1 has admitted that the deceased had died due to drowning. It is submitted that prior to the occurrence, five persons namely, Kamal Yadav, Mahendra Yadav, Arjun Yadav, Bijay Yadav and Ramdeo Yadav had participated in a panchayati held between family members of the informant including his father on the one hand and the accused persons i.e. appellant, Nepal Mahto and his three brothers, namely, Kamdeo Yadav, Lakhan Yadav and Tulo Yadav on the other hand for demanding a Jarsi Cow and cash of Rs. 10,000/-. However, the prosecution failed to examined the said five persons, namely, Kamal Yadav, Mahendra Yadav, Arjun Yadav, Bijay Yadav and Ramdeo Yadav respectively who had attended the panchayati, during trial and thus, the allegation of demanding one Jarsi Cow and Rs.10,000/- cash is not proved and corroborated from the evidence of the Informant. It is further submitted that only the interested witnesses and family members of the informant have been examined as the prosecution witnesses and as such, their evidence cannot be relied upon. It is submitted that no independent witness has been examined on behalf of the prosecution to prove the demand of dowry or for abetting the deceased to commit the suicide due to demand of dowry. It is submitted that P.W.-5- Rajendra Yadav is Informant of this case and he has merely proved signature on the fardbeyan marked as Exhibit-1/4. However, during this cross-examination, he stated that at para 14 he had not stated before the police station for throwing the deceased after killing her in the FIR. Even P.W.-5 could not state as to from whom he learnt that someone has killed his sister and failure of the informant to disclose the name of person, who had informed him 4 that his sister was done to death is fatal to prosecution case. It is submitted that the evidence of P.W.-5 is merely on the basis of suspicion against the appellant. It is submitted that P.W.-1 is Inquest report witness and he had proved the inquest report and he stated that no dowry was demanded by the appellant and thus, P.W.-1 had not supported the prosecution case. It is submitted that P.W.-2 is father of the deceased- Pramila and although during his evidence he had supported the prosecution case, however, during his cross-examination he admitted about panchayati in the Village, which was performed in presence of his co-villagers, namely, Kamdeo Yadav and Bijay Yadav and his deceased daughter. It is further submitted that even P.W.-2 had admitted that he learnt the information of serious condition of his daughter from the elder brother of his son-in-law at para-8 of his cross-examination and hence, the learned court below has committed error by holding that the appellant and his family members had concealed regarding the death of the deceased daughter of P.W.-2 i.e. father of the informant. It is submitted that P.W.-3 is mother of the deceased and she has falsely made allegation against the appellant, however, during cross-examination she admitted that her husband had learnt about the information of death from telephone and they arrived on the next day of the occurrence at the Matrimonial home of her daughter. It is further submitted that P.W.-6 is Investigating Officer i.e. I.O. of this case, who had conducted perfunctory investigation by submitting chargesheet against the appellant. However, he also admitted during cross-examination that during investigation, he learnt that there was dispute between the husband and the deceased- wife and for preparing meal in the house and the deceased used to place stale food in the morning, which was prepared in the yesterday night before her husband and for which, her husband that the appellant had called scolded her. It is further 5 submitted that there is no evidence that the appellant has abetted the deceased to commit suicide and as such, the conviction of the appellant for the offence under Section 306 of IPC is illegal and hence the impugned judgment and sentence may be set aside and this Criminal Appeal may be allowed. 5. On the other hand, learned APP has submitted that impugned judgment of conviction and sentenced passed by the learned court below are fit and proper, no interference required from this Court. It is submitted that this is a case of committing suicide by the deceased-Pramila and the appellant had compelled the deceased- lady to commit suicide for consistently demanding one Jarsi Cow and Rs.10,000/- cash by the appellant. It is further submitted that P.W.-5 is the informant of this case and he had fully supported the prosecution case as has been disclosed in the FIR. It is submitted that P.W.-2 namely, Shambhu Yadav and P.W.-3 namely, Kaushaliya Devi are the father and mother of the Informant and they have also supported the prosecution case that the appellant and his family members had demanded one Jarsi Cow consistently and Rs.10,000/- cash and used to torture the deceased-lady. It is further submitted that P.W.-2 and P.W.-3 have also stood the test of the cross-examination and they have taken the name of the appellant for compelling the deceased-lady to commit suicide. It is submitted that the appellant and his family members have not informed the informant or his family members about the death of the deceased- Pramila rather the informant received the information from his co-villagers that his sister i.e. the deceased has committed suicide and her dead body is lying in the house of co-villagers, Jaleshwar Yadav. It is submitted that P.W.-4 is Doctor, who had conducted the postmortem examination on the body of the deceased and has proved the postmortem report, which has been marked as Exhibit-2 and postmortem report clearly shows 6 that body was found in decomposed stage and therefore, it is evident that the appellant and his family members had concealed the fact of death of the deceased-Pramila from the Informant and his family members. It is submitted that Exhibit-1 is Inquest report and Inquest report was prepared on 27.05.2005 and this is also admitted by the I.O. during his evidence of para 2. It is submitted that P.W.-3 is mother of the deceased-lady and she has stated that during her evidence before the learned court below that smell was coming out from the mouth of the deceased- lady. It is submitted that P.W.-1 is the Inquest report witness and has also supported the prosecution case. It is submitted that P.W.-6 is the I.O. of this case and he has also supported and corroborated the prosecution case and submitted chargesheet against the appellant and he has also supported the prosecution case by stating that deceased had committed suicide due to the acts of the appellant. It is submitted that there is presumption under Section 113A of the Indian Evidence Act against the appellant (husband) that he has abetted the deceased-lady to commit suicide due to demand of one Jarsi Cow and Rs.10,000/- cash. It is submitted that P.W.-1, Misar Mahto, P.W.-2, Shambhu Yadav and P.W.-3, namely, Kaushaliya Devi have also fully supported the prosecution case and P.W.-5 is namely, Rajendra Yadav (Informant of the case) and he has also fully supported the prosecution case. It is submitted that P.W.-4, Dr. Dewasish Rakshit is the Doctor and P.W.-6, Jagdish Prasad is the I.O. of this case, they have also corroborated and supported the prosecution case on the point of the death of the deceased and thus, Criminal Appeal may be dismissed. 6. Perused the Lower Court Records of this case and considered the submissions of both the sides. 7. It transpires that FIR was lodged on 28.05.2005 by the Informant, namely, Rajendra Yadav against the appellant, namely, 7 Nepal Mahto and his brothers namely, Kamdeo Yadav, Lakhan Yadav and Tulo Yadav for the occurrence taking place on 27.05.2005 under Section 304B of IPC. 8. It transpires that the police, after making investigation, had submitted chargesheet against the appellant under Section 306 of IPC on 05.12.2005 and had not sent up for the food against other three accused persons, namely, Tulo Yadav, Kumdeo Mahto and Lakhan Yadav and the learned CJM, Dumka had taken cognizance only against the appellant under Section 306 of IPC on 16.11.2005. 9. After supplying the police papers to the appellant, the charges were framed against the appellant on 12.06.2006 under Section 306 of IPC by Sri Rajesh Kumar Dubey, the learned Sessions Judge, Dumka and to which the appellant pleaded not guilty and claimed to be tried. 10. It transpires that during trial the prosecution has got examined six (06) witnesses, who are as follows:- (i) P.W.-1 is Misar Mahto, (ii) P.W.-2 is Shambhu Yadav, (iii) P.W.-3 is Kaushaliya Devi, (iv) P.W.-4 is Dr. Dewasish Rakshit, (v) P.W.-5 is Rajendra Yadav i.e. Informant. (vi) P.W.-6 Jagdish Prasad is Investigating Officer. 11. It transpires during trial the prosecution has got marked the following documents as the Exhibits, which are as follows:- (i)Exhibit-1 is signature of Misar Mahto on Inquest report. (ii)Exhibit-2- Postmortem report. (iii)Exhibit-1/1 is signature of Dr. Debashis Rakshit on postmortem report. (iv)Exhibit-1/2 is signature of Dr. Sitaram Sah on postmortem report. (v)Exhibit-1/3 is signature of Dr. Shiv Shankar Bhagat on postmortem report. (vi)Exhibit-1/4 is signature of Rajendra Yadav on Fardbeyan. (vii)Exhibit-3 is Inquest Report. 8 (viii)Exhibit-4 is fardbeyan. 12. After closure of the prosecution evidence, the appellant was examined under Section 313 of Cr.P.C. on 07.05.2007 by Sri A.K. Dubey, the learned 5th AddI. Sessions Judge, (F.T.C.), Dumka and the appellant denied the circumstances put forth before him. 13. It transpires that neither any defence witness was examined on behalf of the appellant nor any document was marked as Exhibit on behalf of the appellant. 14. Thereafter, the learned court below after hearing both sides have passed the impugned judgment of conviction and sentence against the appellant, hence, this Criminal Appeal has been filed. 15. Now, this Court has to consider as to whether the judgment of conviction and sentenced passed by the learned trial court below is proper or not? 16. It appears from the FIR that the deceased- Pramila Devi was married to the appellant- Nepal Mahto around six years ago. However, she remained in matrimonial home for one year properly. It has been alleged that the appellant and other persons were demanding one Jarsi Cow and Rs.10,000/- cash since last four years and for which a panchayati was held. It is also alleged that even 15 days prior to the occurrence his sister had gone to her matrimonial home from Maika along with her father and a panchayati was held between the appellant and his family members with local villagers on the one hand and family members of the informant on the other hand. 17. It has been stated that the informant was informed by the co- villager, Mahendra Yadav on 27.05.2005 that his sister is serious and then his father went to Village-Joka i.e. Matrimonial home of the daughter where he found his daughter dead and lying on the cot in the house of one Jaleshwar Mahto and on enquiry, he learnt that on the date of occurrence his sister had gone for grazing and 9 feeding the buffalo outside the village and she died by drowning into the well. Informant also alleged that when he arrived at Villager- Joka then someone informed him that his sister has been killed one day ago. 18. So far as the evidence of prosecution witnesses is concerned, P.W.-1 is one Misar Mahto, who had stated during his evidence that the deceased was daughter-in-law and the accused is nephew and after death of the deceased- Pramila Devi, the police had come and prepared paper and he had signed on said paper. He also stated that dead-body was taken out from the well before the arrival of the police, however, when the body was taken out thus at that time, her nerve was moving slowly and there was no sign of injury on the body of the deceased. P.W.-1 Misar Mahto has proved his signature on the Inquest report, which has been marked as Exhibit-1. 19. During cross-examination he stated that on the alarm raised by one Marwa Devi that the deceased had fell into the well then they had arrived there and the villagers had taken out the dead body from the well. He again emphasized that body was being taken out then her nerve was moving slowly and he also stated that there was no dispute between the deceased and her husband and no panchayati was held with regard to dowry. Thus, from scrutinizing evidence of P.W.-1, it would appear that he is the uncle of the appellant- Nepal Mahto and he is witness of the inquest report of the dead body of the deceased- Pramila Devi. However, he has not supported the prosecution case. The evidence of this witness P.W.-1 will be seen later on also. 20. P.W.-2 is Shambhu Yadav, who is the father of the deceased- Pramila Devi and stated that during his evidence that his daughter was married to the appellant six years ago at Village- Joka and his daughter was living in her matrimonial home after the marriage. 10 However his daughter had informed him that her husband used to assault and used to demand one Jarsi Cow and Rs.10,000/- cash and for which a panchayati was also held in the Village of matrimonial home of his daughter. He further stated that while panchayati was being held, Kamdeo Yadav, Tulo Yadav and one another person apprised him to fulfill the demand, otherwise he will not able to see his daughter and 7-8 days after his panchayati one Mahendra Yadav informed him by phone that his daughter is serious. Thereafter he along with his brother-in-law, Shankar Yadav went to Village- Joka and found his daughter is lying dead in the house of one Jaleshwar Mahto and her dead body was found on the cot. Thereafter his son, Rajendra Yadav informed the matter to the police and he had also put his thumb impression on the fardbeyan given by his son, Rajendra Yadav. During cross-examination, he stated that his daughter was married eight years ago. He further stated that 15 days prior to the occurrence when his daughter came to his Naihar then she had informed about demand of Jarsi Cow. 21. He further stated that elder brother of his son-in-law informed him by phone that the condition of his daughter is serious and house of Jaleshwar Mahto is adjacent to the matrimonial home of his daughter. He further stated that Kamal Yadav and Bijoy Yadav of his Village were also present in panchayati and his deceased- daughter was also present in the panchayati and apart from them all other persons had attended the panchayati in the Village. He denied the suggestion for not demanding Rs.10,000/- cash and one Jarsi Cow by the appellant. 22. Thus, from scrutinizing the evidence of P.W.2, it would appear that he has supported the prosecution case and stated about the demand of one jarsi cow and Rs.10,000/- cash by the appellant, but he also failed to prove the factum of panchayati by non- 11 examining the villagers. His evidence will also be considered again. 23. P.W.-3- Kaushaliya Devi is the mother of the deceased- Pramila Devi she stated that daughter, Pramila Devi was married to the appellant- Nepal Mahto, 5-6 years ago prior to the occurrence and her daughter was living in matrimonial home, but her husband and her family members started quarreling with her and kept her properly for some years, thereafter they started demanding dowry. She has further stated that her son-in-law used to demand Rs.10,000/- cash and one jarsi cow, but she was unable to pay the same and she was informed by her daughter whenever she came to her maike of this fact. She further stated that after this demand, her husband had gone to Village- Joka for panchayati and her husband along with 2-4 persons of his village had gone for panchayati and they had tried to pacify the appellant and for returned back. However, after 15 days this occurrence took place. She learnt about the occurrence through the phone which came from Village- Joka, but she is not aware as to who had informed them. She further stated that her Nandoshi, Shankar informed them that their daughter is serious and they along with her husband had proceeded to Village- Joka and 2 to 4 persons of his Village had also accompanied with them and saw that her daughter is lying on the Veranda of her Matrimonial home in dead condition. She further stated that blood had become dry and came out from the nose and blood clot was found on both the nostrils of the nose and also in the cheek and smell was coming from the body and mouth of the deceased. 24. During cross-examination, she stated that the police had recorded her statement, however, she had not disclosed before the police that the accused persons used to demand a Jarsi Cow and Rs.10,000/- cash for dowry and for which her daughter had 12 informed her but she had shown inability to pay further dowry. She further stated that she had not disclosed before the police that 15 days prior to the occurrence, a Panchayati was held by her husband along with his co-Villagers in the village of the accused persons and co-villagers had tried to pacify the appellant to keep her daughter properly. She further stated that ‘Durgaman’ took place after one year of the marriage and her daughter remained in her matrimonial home after ‘Durgaman’ and they were some trivial disputes between the husband and wife with regard to day-to-day work and arrangement of the house. She further stated that neither her daughter disclosed nor she is aware about any trivial disputes with regard to day-to-day work between her daughter and her son- in-law. She has further stated that when she arrived at matrimonial home of her daughter then villagers had not informed them about drowning of her daughter in the well. She further stated that she had not disclosed before the police that her husband- Shambhu Yadav returned in the night and informed her that Pramila Devi i.e. deceased and Nepal Mahto i.e. appellant had an altercation and for which her daughter, Pramila Devi jumped into the well and had died. She had also not disclosed and stated before the police to have received information from phone that her daughter is serious and upon this information, her husband, Shambhu Yadav had left from Village- Jonka and had returned in the night and had apprised her that there was some altercation between the deceased, Pramila Devi and appellant, Nepal Mahto and due to which Pramila Devi died by jumping into the well. She has further stated that she went to the next day after she learnt about the occurrence, she has denied the suggestion that her daughter had died due to drowning into the well. 13 25. Thus, from scrutinizing the evidence of P.W.-3, it would appear that allegedly she has tried to support the prosecution case during her evidence, however, during her cross-examination, she had admitted to have not stated before the police that on the point of altercation took place between the appellant and her deceased- daughter. Thus, evidence of P.W.-3 is contradictory and there are several improvements during her evidence and even the evidence of P.W.-3 is contradictory to the evidence of P.W.-2. 26. P.W.-4- Dr. Dewasish Rakshit is the Doctor and he conducted postmortem examination upon the dead body of the deceased and had found the following ante-mortem injuries over the body of deceased as follows:- (i)On dissection of neck trachea found full of forth and muddy water, (ii)On dissection of thorax both lung found expanded and oedematour on cutting of lung frothy blood oozing out, (iii)On dissection of abdomen- stomach found filled with about 200 ml. muddy water. He further stated that time elapsed since death within 36 hours and stated that postmortem examination was conducted by the Medical Board constituted of himself and Dr. S.R. Sah and Dr. S.S. Bhagat, who were the members. He further stated that in the opinion of the members of the Board including P.W.-4, death was due to ‘Asphysia’, as a result of drowning. He also proved the postmortem report, which has been marked as Exhibit-2 and also proved the signature of the Doctors marked as Exhibit-1/1, Exhibit-1/2 and Exhibit-1/3 respectively. 27. During his cross-examination he stated that no external injury was found over the body of the deceased and he also stated that muddy water was found in the lungs, stomach and throat. 14 28. Thus, from evidence of P.W.-4 i.e. Doctor, it is evident that the deceased had died due to asphyxia, which was result of drowning. 29. P.W.-5 is Rajendra Yadav i.e. the Informant of this case and during evidence he stated that his sister was married to the appellant- Nepal Mahto and she remained in her matrimonial home. Thereafter, quarrel started with regard to demand of Jarsi Cow and Rs.10,000/- cash and the appellant- Nepal Mahto and his brothers, namely, Kamdeo Yadav, Lakhan Yadav and Tulo Mahto were demanding said cow and cash of Rs.10,000/-. Thereafter, he got conducted a panchayati in Village- Joka and apprised them that they will not give any further dowry, but the accused had threatened him that if, dowry demand is not fulfilled, then they will not able to see his daughter. He further stated that on 27.05.2005, Mahendra Yadav of Village- Joka informed by phone that his Sister, Pramila Devi is serious and then his father, Shambhu Yadav arrived at Village- Joka and found his sister lying dead. However, he had not accompanied his father at Village- Joka rather he went to village- Joka later on in the night at 8.30 P.M. and where he was informed by some person of the Village that his sister had been drowned to death and they had tried to burn her but they could not succeed. He further stated that sister was married to accused Nepal Mahto 5 to 6 years ago. Thereafter, he gave his fardbeyan before the police and put his signature on the fardbeyan written by the police and proved his signature as Exhibit-1/4 on the fardbeyan. 30. During cross-examination he stated that his statement was recorded at Taljhari Police Station in the morning and he had gone to Taljhari from Joka, but police had not arrived at Village- Joka and he remained at Village- Joka. He further stated that his statement was recorded by the police twice and during his subsequent statement he had stated before the police that there was 15 demand of one Jarsi Cow and Rs.10,000/- cash four years ago. He further stated that panchayati took place eight days ago prior to the occurrence. However, he had not attended the panchayati, but his sister along with her father had gone to her matrimonial home from Maika fifteen days ago prior to the occurrence. He further stated that he had not informed the police that about threatening for killing his sister during Panchayati. He further could not say the name of person, who had informed him that his sister was killed one day earlier. He was also not aware about the person, who had informed him and they had not tried to locate that person. He had denied the suggestion that his sister died by drowning into the well and she had gone for grazing the cow and later on she died. 31. Thus, from scrutinizing the evidence of P.W.-5 it is evident that he has supported the prosecution case as made out in the FIR and during his cross-examination, he has stated that his sister, Pramila Devi has been done to death due to non-fulfillment of demand of dowry. However, his evidence shows several contradictions. Even he has made several improvements during his evidence because he failed to disclose the name of the persons who had informed that his wife was killed one day earlier. He had also not attended the panchayati. 32. P.W.-6- Jagdish Prasad is the I.O. of this case and during his evidence he stated that he learnt about from the Chowkidar on 27.05.2005 that one woman of Village- Joka had fallen into the well and had died and on this information, he made S.D. entry at 12.15 P.M. and thus he along with ASI, Shiv Kumar Jha and police force, one Village Chowkidar, Loko Mahto had arrived to Village- Joka and found that the dead body of the deceased had been kept on the cot below the Banyan Tree, who was wearing printed red colour sari. On enquiry from the people, he learnt that the deceased had fallen into 20 ft. deep well of one Ashok Yadav and on alarm 16 raised by the villagers, she was taken out from the well for the treatment and her body was kept on the cot, but thereafter, she died. It was further disclosed to him that the deceased- Pramila Devi was the wife of the appellant from Village- Joka. He further stated that deceased was married with 5 to 6 years and she was aged about 22 years and smell was coming out from her body and hence, one inquest report was prepared of the dead body in presence of Misar Mahto i.e. P.W.-1 and one Hira Mahto and Inquest Report was marked as Exhibit-3. He further stated that dead body was sent for postmortem examination and by that time her father, Shambhu Yadav, who had informed them that his elder son and other family members were also coming to see the deceased lady and hence, the body was kept in presence of Chowkidar, Loko Mahto to awaiting arrival of family members of the Informant and he also returned to the police station. He further stated that on the next morning, the informant, Rajendra Yadav along with his father and mother and one Sankar had arrived at the police station and given his fardbeyan on 28.05.2005. He proved the fardbeyan as Exhibit-4. Thereafter, he had taken investigation of this case and had recorded the statement of mother of the deceased, Kaushaliya Devi, Phupha- Shankar Mahto and thus he went to Village- Joka and he further recorded the statement of one Misar Mahto i.e. P.W.-1 and had inspected the place of occurrence and he had also described the place of occurrence at para 6 of his evidence. He further stated that he tried to trace the accused person, but they were not found in the house and then he had recorded the statement of witnesses, Chamru Mahto and Kalwa Devi. Thereafter on 29.05.2005 he recorded the statement of Doman Mahto, Bhagat Yadav, Sukhdeo Mahto, Mahendra Yadav and Srikant Yadav respectively and then on 19.07.2005 he received postmortem examination report. In the meantime, he 17 learnt that the appellant- Nepal Mahto had surrendered on 12.09.2005. Thereafter, he submitted chargesheet against the appellant- Nepal Mahto under Section 306 of IPC and had found allegation untrue the other accused persons. 33. During cross-examination, he stated that father of the deceased was present in the evening on 27.05.2005 at Village- Joka, however, even on his request he had not recorded his fardbeyan before him. He further stated that he learnt at the initial investigation that the deceased-lady had fell into the well and while she was being taken out from the well, she was alive at that time. He has further stated that during investigation he learnt the deceased had fell into the well due to torture of the appellant- Nepal Mahto. He further stated that apart from the statement of family members of the deceased- lady, he had recorded the statement of one Chamru Mahto, who had stated that family members of the husband of the deceased- lady were not keeping her properly and due to scolding of her husband, the used come to her maike and she used to cook and prepared liquid rice due to non-availability of the vegetables and used to serve the same food in the morning and upon which, her husband had scolded her and due to which she was in anger and therefore, when she went to clean buffalo at Jaihayar side, but after sometime the in-law members of the deceased heard the alarm that the wife of Nepal Mahto had fell into the well. He further stated that he learnt during investigation that the deceased lady was being scolded by her husband and for not performing the household works properly. 34. Thus, from scrutinizing the evidence of P.W.-6 it would appear that he has corroborated the prosecution case on the point of death and he had submitted charge sheet under Section 306 of IPC against the appellant, but it also records that there are several 18 contradictions in the prosecution case. The contradiction is evidence of P.W.-2, P.W.-3 and P.W.-5 namely, Shambhu Yadav, Kaushaliya Devi and Rajendra Yadav, on the point of lodging FIR. He himself learnt during investigation that the deceased had fell into well on her own. 35. At this stage, it will be relevant to refer Section 306 of the Indian Penal Code, which reads as follows:- “Section 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.” From scrutinizing the evidence of P.W.-2, it would appear that he learnt from his daughter regarding assault and torture muted out to her by the appellant and for demanding Jarsi Cow and Rs.10,000/- cash only once when he had gone to house of this daughter. Thereafter he had convened a panchayati in the matrimonial home of his daughter and it was attended by Kamdeo Yadav, Fulo Yadav and one other from his side also, who tried to pacify the appellant, thereafter he learnt from one Mahadev Yadav that the condition of his daughter is serious. Thereafter his brother-in-law, Shankar Yadav came to his house and then he gone to Village- Jonka on Friday. However, the prosecution has not examined the said witness, Sankar Yadav. During cross-examination he also stated that his elder brother-in-law had informed him that condition of his daughter is serious. Thus, it is evident that the father of the informant had complaint once incident that his daughter has complaint of against her husband for demanding Jarsi Cow and Rs. 10,000/- cash fifteen days prior to the occurrence and prior to this there is no whisper of any assault, torture or any demand. Thus the evidence of P.W.-2 is not reliable. 19 36. From scrutinizing the evidence of P.W.-3, Kaushaliya Devi i.e. the mother of the deceased-lady, it would appear that she had developed this story of torture upon his daughter after one year of marriage and her son-in-law i.e. appellant and demanded one Jarsi Cow and Rs. 10,000/- cash. However, during cross-examination, she admitted at para 9 that she had not stated before the police that the accused-appellant demanded one Jarsi Cow and Rs. 10,000/- cash towards the dowry. She further claimed to have stated before the police that fifteen days prior to the occurrence, her husband along with other persons conveyed panchayati in the village of the accused-appellant. She further admitted at paras 12 and 13 of her cross-examination that she had not stated before the police that her husband, Sambhu Yadav, after returning in the night, had informed her that there was altercation between the deceased- Pramila Devi and the appellant- Nepal Yadav and for which the deceased, Pramila Devi had jumped into the well and had died and she learnt from the phone that her daughter is serious and then her husband had proceeded towards the matrimonial home of the deceased. Thus, from scrutinizing the evidence of P.W.-3, it is evident that there is contradiction in the evidence made before the police and also made before the learned Court below as she admitted during her cross-examination to have not stated before the police that the appellant demanded one Jarsi Cow and Rs. 10,000/- cash and due to non-fulfilment of the same, she was sculled by the appellant and due to which she jumped into the well. Thus, the evidence of P.W.-3 cannot be relied on. 37. P.W.-5 is informant of this case, who although has stated that after one year of marriage, dispute arose between the husband and wife with regard to demand of dowry of one Jarsi Cow and Rs. 10,000/- cash and for which a panchayati was convened by them, but on 27.05.2005, he learnt from Mahendra Yadav that elder 20 brother of the appellant i.e. sister-Pramila Devi is serious. However, during cross-examination, he stated that marriage took place six years ago prior to the occurrence and four years ago, there was demand of one Jarsi Cow and Rs. 10,000/- cash. Therefore, it is evident the demand of dowry of one Jarsi Cow and Rs. 10,000/- cash made four years ago prior to the occurrence. 38. From conjoint reading of the evidence of P.W.-1, P.W.-2 and P.W.-5 namely, Shambhu Yadav, Kaushaliya Devi and Rajendra Yadav, it would appear that the demand of one Jarsi Cow and Rs. 10,000/- cash was made four years ago prior to the occurrence. There is no specific date of demand of such dowry rather there is contradiction in the evidence of P.W.-2, P.W.-3 and P.W.-5 on this aspect. On the one hand, P.W.-2- Sambhu Yadav i.e. father of the informant had stated demand of one Jarsi Cow and Rs. 10,000/- cash was made fifteen days prior to the occurrence, but P.W.-3 and P.W.-5 had stated that the demand of one Jarsi Cow and Rs. 10,000/- cash was made four years prior to the occurrence. 39. Although there is contradiction on the point of demand of dowry of one Jarsi Cow and Rs. 10,000/- cash, but it is also fact that the deceased, in any circumstances had fell into the well while she was living at matrimonial home. 40. There is no eye witness of the occurrence and no one had seen the deceased jumped into the well. From perusal of the cross- examination of Investigating Officer at para-4, it would appear that the deceased- Pramila Devi had jumped into the well and died due to torture given by the appellant- Nepal Mahto and one Chamru Mahato had stated that before her the deceased- girl was not able to perform the house work. The deceased used to get prepared some meal, rice and mar to his husband due to non-availability of the vegetables in night and used to serve the same food in the morning and for which, she was scolded by her husband and due to which, 21 she was very angry and had gone to graze the buffalo, but later on she heard the alarm that wife of Nepal Mahto [i.e. appellant] had jumped into the well. He also stated that the deceased was not able to perform the house work properly. However the said Chamru Mahato was not named as the prosecution witness and hence even this allegation is not proved. 41. It has been held in the case of S. S. Chheena vs. Vijay Kumar Mahaajan and Anr. reported in (2010) 12 SCC 190 at paras 22 and 27 as follows:- this Court Para 22: The learned counsel also placed reliance on another in Ramesh Kumar v. State of judgment of Chhattisgarh (2001) 9 SCC 618. In this case, a three-Judge Bench of this Court had an occasion to deal with a case of a similar nature. In a dispute between the husband and wife, the appellant husband uttered "you are free to do whatever you wish and go wherever you like". Thereafter, the wife of the appellant Ramesh Kumar committed suicide. The Court in para 20 has examined different shades of the meaning of "instigation". Para 20 reads as under: (SCC p. 629) "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." In this case, the 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 may necessarily be drawn. Para 27: When we carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under section 306 IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside. 22 42. It has been held in the case of M. Arjunan vs. State, reported in (2019) 3 SCC 315 at paras 6 and 7 as follows:- Para 6: As pointed out by the High Court, of course PW-1 to PW-5 have spoken about the borrowing of money by the deceased and also the execution of the promissory note. The sheet anchor of the prosecution’s case to prove the guilt of the accused is the suicide note (M.O.1)-written by the deceased. On perusal of suicide note (M.O.1), it is seen that in M.O.1 the deceased has written about the financial difficulties faced by him and his inability to meet the financial crunch and also his inability to repay the same. The tenor of M.O.1 only shows that the deceased was subjected to pressure for payment and was facing the financial difficulty. In M.O.1 (letter) there is nothing to indicate that there was instigation by the appellant-accused which had driven the deceased to take the extreme step of committing suicide. Para 7: The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. 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 I.P.C. 43. It has been held in the case of Gurcharan Singh vs The State of Punjab, reported in 2020 (10) SCC 200 at paras 17 to 20 as follows:- Para 17: While dealing with a case of abetment of suicide in Amalendu Pal alias Jhantu vs. State of West Bengal2, Dr. Justice M.K. Sharma writing for the Division Bench explained the parameters of Section 306 IPC in the following terms: “12. Thus, this Court has consistently taken the view that before 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 but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the 2 (2010) 1 SCC 707 time of occurrence on the part of the accused which led or compelled the person to commit 23 suicide, conviction in terms of Section 306 IPC is not sustainable. 13. 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. Para 18: In the case Mangat Ram Vs. State of Haryana3, which again was a case of wife’s unnatural death, speaking for the Division Bench, Justice K.S.P. Radhakrishnanan rightly observed as under:- “24. We find it difficult to comprehend the reasoning of the High Court that “no prudent man is to commit suicide unless abetted to do so”. A woman may attempt to commit suicide due to various reasons, such as, depression, financial difficulties, disappointment in love, tired of domestic worries, acute or chronic ailments and so on and need not be due to abetment. The reasoning of the High Court that no prudent man will commit suicide unless abetted to do so by someone else, is a perverse reasoning.” 3 (2014) 12 SCC 595 Para 19: Proceeding with the above understanding of the law and applying the ratios to the facts in the present case, what is apparent is that no overt act or illegal omission is seen from the appellant’s side, in taking due care of his deceased wife. The evidence also does not indicate that the deceased faced persistent harassment from her husband. Nothing to this effect is testified by the parents or any of the other prosecution witnesses. The Trial Court and the High Court speculated on the unnatural death and without any evidence concluded only through conjectures, that the appellant is guilty of abetting the suicide of his wife. Para 20: In such circumstances, we have no hesitation in declaring that the Trial Court and the High Court erred in concluding that the deceased was driven to commit suicide, by the circumstances or atmosphere in the matrimonial home. This is nothing more than an inference, without any material support. Therefore, the same cannot be the basis for sustaining conviction of the appellant, under section 306 of the IPC. 44. It has been held in the case of Rajesh vs The State Of Haryana reported in 2020 (15) SCC 359 at paras 8, 9, 12 and 13 are as follows:- 24 “Para 8: It is necessary to refer to Section 306 IPC and Section 107 IPC which reads 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; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or that conspiracy, and in order to the doing of that thing; or in pursuance of illegal omission takes place Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.—A person who, by wilful misrepresentation, or by wilful 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.” Para 9: Conviction under Section 306 IPC is not sustainable 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 person to commit suicide. 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. (See Amalendu Pal v. State of W.B. [Amalendu Pal v. State of W.B., (2010) 1 SCC 707 : (2010) 1 SCC (Cri) 896] ) Para 12: We are of the opinion that the evidence on record does not warrant conviction of the appellant under Section 306 IPC. There is no proximity between the Panchayat held in September 2001 and the suicide committed by Arvind on 23-2- 2002. The incident of slapping by the appellant in September 2001 cannot be the sole ground to hold him responsible for instigating the deceased to commit suicide. As the allegations against all the three accused are similar, the High Court ought not to have convicted the appellant after acquitting the other two accused. Para 13: We are not in agreement with the findings of the trial court that the deceased (Arvind) committed suicide in view of the continuous threats by the accused regarding his being implicated in a false case of demand of dowry. The evidence does not disclose that the appellant instigated the deceased to 25 commit suicide. There was neither a provocation nor encouragement by the appellant to the deceased to commit an act of suicide. Therefore, the appellant cannot be held guilty of abetting the suicide by the deceased.” 45. It further transpires that the prosecution has not examined several persons namely, Doman Mahto, Bhagat Yadav, Sukhdeo Mahto, Mahendra Yadav and Srikant Yadav. 46. It further transpires that there is contradiction in the evidence of P.W. 2 and P.W.5 on the point of demand of dowry of one Jarsi Cow and Rs. 10,000/- cash. 47. It further transpires that there is no independent witness to suggest that the accused persons including the appellant had demanded any amount towards dowry or any Jarsi Cow except the informant and his family members and that too they have contradicted each other on the point of said alleged demand. Even the I.O. has stated during evidence that the appellant used to call her for not preparing the food in time and for giving stale food. Merely the appellant scolding the deceased in the name of providing stale food and for not preparing the food on time would not amount to constitute an offence of abetment to commit suicide under Section 306 of IPC as alleged and it can be the demand of the husband to get the proper food in time. 48. There is no evidence on record that on the instigation or on the abetment of the appellant- husband, the deceased had committed suicide by jumping into the well. 49. In view of the law laid down by the Hon’ble Supreme Court, as discussed above, and the facts and circumstances of the case that prosecution has failed to prove the ingredients of Section 306 of IPC against this accused- appellant, as such, this Court is of the view that the impugned judgment of conviction and sentence passed by the learned Trial Court below is not sustainable in the eyes of law. 26 50. The judgment of conviction dated 21.05.2007 and sentence dated 22.05.2007 passed by Sri Alok Kumar Dubey, learned 5th Additional Sessions Judge (Fast Track Court), Dumka in Sessions Case No.58 of 2006 are set aside and the appellant namely, Nepal Mahto is acquitted of the charges under Section 306 of IPC and he is discharged from the liabilities from his bail bonds. 51. Thus, the instant Criminal Appeal (S.J.) No.796 of 2007 is allowed. R.S./- NAFR (Sanjay Prasad, J.)