High Court
Case Details
Criminal Appeal (D.B.) No. 777 of 2016 With Criminal Appeal (D.B.) No. 767 of 2016 [Arising out of judgment of conviction dated 16.07.2016 and order of sentence dated 18.07.2016 passed by learned Additional Sessions Judge-XII, Hazaribag in Sessions Trial No. 118 of 2013] Criminal Appeal (D.B.) No. 777 of 2016 1. Kamruddin @ Kallu Mian son of Late Piyar Mian 2. Md. Naushad Alam son of Kamruddin @ Kallu Mian Both resident of Village Sardar Chowk, P.O. and P.S. Sadar, District Hazaribag --Versus-- The State of Jharkhand …. …. …. Respondent .... …. Appellants .... With Criminal Appeal (D.B.) No. 767 of 2016 Md. Isthekhar Alam @ Sonu son of Kamruddin @ Kallu Mian resident of Village Sardar Road, P.O. and P.S. Sadar, District Hazaribag .... …. Appellant .... --Versus-- The State of Jharkhand …. …. …. Respondent For the Appellants For the State For the Informant
Legal Reasoning
: Mr. Hemant Kumar Shikarwar, Advocate : Mr. Vineet Kumar Vashistha, Special P.P. : Mr. Prabhat Kumar Sinha, Advocate Mr. Diwakar Jha, Advocate ----- PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ----- JUDGMENT Reserved on: 11.09.2024 Pronounced On: 18.09.2024 Per Gautam Kumar Choudhary, J. Cr. Appeal (D.B.) No.767 of 2016 is directed against judgment of conviction and sentence passed in S.T. No.440 of 2013 and Cr. Appeal (D.B.) No.777 of 2016 against S.T. Case No.118 of 2013, whereby and whereunder the appellants have been convicted and sentenced under Section 302/ 34 IPC. Both these cases arise out of Hazaribagh Sadar P.S. Case No.699
Decision
of 2012 and were heard together and disposed of on the same day by separate judgments. Since both the appeals arise out of almost identical facts, therefore, they are heard together and will be disposed of by a common judgment. 2. Informant is the father of the deceased who was married to Naushad Ali (appellant), son of Md. Kamruddin @ Kallu Mian (appellant) about nine- ten 1 years before the incident. It is alleged that appellants and the other in-laws subjected the daughter of the informant namely, Rajia Khatoon to cruelty in reference to unlawful demand. They used to extend life threat to her and in this regard, three months before the incidence, a Panchayati was also held. On 17.08.2012, that appellants and some other co-accused persons, strangulated her to death by hanging, taking advantage of time when others had gone for the Friday prayer. 3. On the basis of the written report of brother of the deceased Saukat Ali, Hazaribagh Sadar P.S. Case No.699 of 2012 was registered against the appellants and other co-accused persons under Sections 498A/304B /34 of the IPC and Sections 3 /4 of the D. P. Act. Police on investigation submitted charge- sheet against both these appellants. Appellants, Kamruddin @ Kallu Mian and Md. Naushad Alam were put on trial in S.T. No.118 of 2013, whereas Md. Ishtekar Alam @ Sonu was put on trial S.T. Case No.440 of 2013, under Section 304B IPC with alternative charge under Section 302 IPC. 4. In S.T. No.118 of 2013, altogether seven witnesses were examined on behalf of the prosecution and the relevant documents including fardbeyan, post- mortem examination report have been adduced into evidence and marked as Exhibits 1 to 5. In Sessions Trial No.440 of 2013, seven witnesses were examined and relevant documents have been adduced into evidence and marked as Exhibits 1 to 7. 5. Judgment of conviction and sentence has been assailed mainly on the ground that as per the post-mortem examination report, death was suicidal in nature and, therefore, the learned Trial Court erred in convicting the appellants under Section 302 IPC. It is submitted by learned counsel on behalf of the appellants in order to sustain charge under Section 302 IPC, prosecution has to establish the fundamental ingredients that is, death was homicidal in nature. Once the allegation of homicidal death is demolished, charge under Section 302 IPC fails. 6. It is further argued that learned Trial Court has recorded a finding that there was no dowry demand and, therefore, the appellants have been acquitted of the charges under Section 304B IPC. Furthermore, the incident took place as per the FIR after 9 – 10 years of marriage, therefore, the question of application of Section 304B IPC does not arise. 2 7. Learned A.P.P. for the State has defended the impugned judgment of conviction and sentence. It is argued that medical opinion was not conclusive as to cause of death and the homicidal death cannot be ruled out. It is also argued that there was consistent evidence of prosecution that the deceased was subjected to cruelty in reference to dowry demand and even if it is assumed to be case of suicidal death, and the charge under Section 304B IPC was not proved because death took place after seven years of marriage, in view of the direct evidence of harassment in reference to unlawful demand resulting in the suicidal death of the deceased, appellants are guilty for the offence under Section 306 IPC. Although charge has not been framed under Section 306 IPC, but since charge has been framed under Section 304B IPC, the appellants cannot be said to be prejudiced. There is no legal impediment in a judgment of conviction under Section 306 IPC in the light of the following authorities of Hon’ble the Supreme Court: - i. Dalbir Singh Vs. State of Uttar Pradesh, (2004) 5 SCC 334, Paras 14, 16 & 18 ii. Paranagouda & Anr. Vs. State of Karnataka & Anr., (2023) SCC Online SC 1369 iii. Raja Naykar Vs. State of Chattisgarh, (2024) 3 SCC 481 8. The Autopsy Surgeon who has proved the post-mortem examination report found the following external injuries on the person of the deceased: - (i) Abrasion 1” x ¼” on the right upper part of throat below lower jaw, dark red in colour; (ii) Bruise 1” x ½” front of neck dark red in colour (iii) Both the above injuries were irregular ligature mark and ante- mortem in nature; (iv) Knot mark not visible. (v) Salivary discharge not visible at the angle of mouth. Internal examination of neck :- (i) On dissection the subcutaneous tissue under ligature mark is white and glistening; (ii) Haematoma present on external part of Hyoid bone. Hyoid bone not fractured. Internal layer of Hyoid bone congested. In the cross-examination, Doctor has deposed that the shape of injury was linear Doctor opined that death was due to asphyxia caused by hanging. 9. As per the inquest report, the dead body was found over a cot on southern 3 verandah of the house. In view of unequivocal finding of the Doctor, the death can be said to be suicidal and not homicidal. 10. In view of the objective findings of the Autopsy Sergion regarding suicidal death, judgment of conviction and sentence passed under Section 302 of the IPC, is not sustainable and is, accordingly set aside. 11. Considering the ratio of the authorities relied upon by the learned Counsel on behalf of the State, there cannot be two view that on evidence if the facts of a case justify, a judgment of conviction under Section 306 of the IPC can be passed against an accused charged for offence under Section 304 B of the IPC, even if no charge Section 306 of the IPC has been framed. 12. Matter for consideration is whether an offence of abetment of suicide is made out in the present case. 13. Life is difficult. This is a great truth. It is true to a lesser or greater degree to all classes of people. What impels a person to take the fatal step towards self- destruction is a hazardous guess. Is it an outcome of despair brought about by physical circumstance or on account of loss of hope, and meaning in life, are questions that can be best left to psychiatrist? 14. Legally speaking, in order to constitute the offence under Section 306 of the IPC, there must be some act on the part of the accused which can come within the meaning of ‘instigate’ or ‘engages with other person’ or ‘intentionally aids’ as used under Section 107 of the Evidence Act, which drives the person to commit suicide. It is a mental process of instigating a person to take step towards self-destruction. There should be proximate cause between suicide and the words and acts of the accused which are said to be reason behind it. 15. In S.T. No.118 of 2013, P.W. 1 is the brother of the deceased, has deposed that deceased was subjected to cruelty in reference to demand of Rs.10,000/- for construction of a garage from his sister which he had personally given to the appellant- Naushad. It is alleged that the deceased used to be assaulted by appellant- Naushad. In the cross-examination, he has stated about the Panchayti being held, could not name the members who took part in it. P.W. 2- Nizamuddin deposed that on 1st February, 2013, he was called to mediate in a marital dispute in the house of Sahabuddin. Kamruddin assured that in future there will not be any dispute. P.W. 3 has also deposed regarding marital dispute and discord. In para 4 14, he deposed that it had been agreed in Panchayat that in-laws will not assault the deceased. P.W. 4 is the mother of the deceased and she has also deposed that Rs.10,000/- was given to Naushad. It is also deposed that the appellants and in- laws used to subject her to cruelty. P.W. 5 is the father of the deceased. He has deposed that Rs.10,000/- had been demanded by the appellant- Naushad to establish a garage which was given to him by his younger son. A Panchayat was convened for physical assault to the deceased three month before the incidence. P.W. 7 is the Investigating Officer. He has deposed in para 7 the dead body was found in the verandah of the house of the appellants. 16. In S.T. Case No.440 of 2013, evidence on similar line has been given by the common witnesses Md. Shahzad (P.W. 1), Rabia Khatoon (P.W. 2)- mother of the deceased. P.W. 3- Nizamuddin is a witness to the Panchayat. He has deposed that there used to be quarrel between deceased and her mother-in-law and sister-in- law of the deceased. They assured that such incidence would not recur. P.W. 4- Md. Mahadulla has supported the prosecution case regarding unlawful demand and harassment of the deceased in reference to it. He has however admitted that he was not in the Panchayat. P.W. 5 is the father of the decease. His deposition is on the same line as in the earlier case. 17. Combined reading of the evidence establishes a history of family discord, in which panchayat was also convened on multiple occasions to resolve the dispute. From the evidence of P.W.-3 Nizamuddin, the epicenter of the family feud was squabble of the deceased with the sister-in-law and mother-in-law. It has come in evidence that on one occasion appellant Md. Naushad Alam, had demanded Rs.10,000/ for setting up a garage, which was given to him by the younger brother of the deceased. This cannot be said to come within the meaning of dowry, and can only be said to be a family assistance to enable the appellant to start his own garage. General and omnibus allegation has been levelled against all the in-laws of assault. No date and time of the earlier incidence has been referred to. This cannot by itself be a circumstance to drive one to the conclusion that the appellants had abetted the suicide. Thus on these 5 evidence offences under Section 306 of the IPC is also not made out. Under the circumstance, appellants are entitled to benefit of doubt. Judgment of conviction and sentence passed by the learned Court below is set aside. Both the Criminal Appeals are allowed. Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment. (Gautam Kumar Choudhary, J.) Per Ananda Sen, J. I agree. (Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated, 18th September, 2024 AFR/Anit 6