CRIMINAL APPEAL 448 of 2001 on 2 June 1998

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IN 'ME HIGH COURT OP JUDIGATURE OF GFIHATTISGA^H AT BILASP15R

Cr .Ap-peal No.C^C-(hLS /2001.

( Crirninal Appeal imder Qriminal grocedure Code)

Appellantl^. ^llip Kumar aged about 27 years^ ^llip Kumar aged about 27 years^ Kumar aged about 27 years^ aged about 27 years^ about 27 years^ 27 years^ years^Accused•S/0 Bodhan Dewangan Bodhan Dewangan Dewangan^R/0 Vlllage- Vlllage-Kochera^P^S^Daundi Lohara^ Lohara^Tahsil Balod, Distt* Durg (C.G.) Balod, Distt* Durg (C.G.) Distt* Durg (C.G.) Durg (C.G.) (C.G.)'^.w^,.-^>,2»..Boc3han aged about 52 years^^ \/ ^ ^CoT r€~l's//ro Mak8udan -D^^ngan,!"^^"^)/-^ /^" presently resldent of Konddl,Power House,^•'^/ /Dalli Rajhara,P.S.R5jhara,Distt.BalodDistt, Durg (C.G.)Af 7•^yVERSUSr^/s 'Respondent: Stateof Chhsttisgarh Stateof Chhsttisgarh Chhsttisgarh l^. ^llip Kumar aged about 27 years^ ^llip Kumar aged about 27 years^ Kumar aged about 27 years^ aged about 27 years^ about 27 years^ 27 years^ years^S/0 Bodhan Dewangan Bodhan Dewangan DewanganR/0 Vlllage- Vlllage-Kochera^P^S^Daundi Lohara^ Lohara^Tahsil Balod, Distt* Durg (C.G.) Balod, Distt* Durg (C.G.) Distt* Durg (C.G.) Durg (C.G.) (C.G.)S/0 Bodhan Dewangan Bodhan Dewangan DewanganR/0 Vlllage- Vlllage-Kochera^P^S^Daundi Lohara^ Lohara^Tahsil Balod, Distt* Durg (C.G.) Balod, Distt* Durg (C.G.) Distt* Durg (C.G.) Durg (C.G.) (C.G.)

: Stateof Chhsttisgarh Stateof Chhsttisgarh ChhsttisgarhThrough Pollce Station Daundj. Lohara,Dlstt. Durg (C.G.)

Grimlnal Appeal Utider Sectlon 37^4_Q-lminal Rrocedure Code 1973|

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HIGH COURT OF CHHATTISGARH AT BILASPUR(Hon. Mr. Justice Pritinker Diwaker)

Criminal Appeal No. 448 of 2001

APPELLANTSDilip Kumar and another.

VERSUS

RESPONDENTState of Chhattisgarh.

Shri V.G. Tamaskar counsel for the appellants.Shri Pankaj Shrivastava PL for the respondent/State.

CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OFCRIMINAL PROCEDURE.

JUDGMENT(04.01.2010)

This appeal is directed against the judgment dated 11.5.2001passed by the Additional Sessions Judge, Balod in Sessions TrialNo. 71/2000 convicting the appellants for the offences punishableunder Section 306 of the Indian Penal Code and sentencing each ofthem to undergo rigorous imprisonment for three years and pay fineof Rs. 2000, in default of payment of fine to further undergo rigorousimprisonment for six months.

2. Case of the prosecution in brief is that on 2.6.1998 deceasedHemkumari, the wife of appellant No.1 Dilip Kumar and daughter inlaw of appellant No.2 Bodhan has committed suicide by consumingsome poisonous substance. FIR Ex. P-3 was lodged by Jhumuklal(PW-1) - the father of the deceased on 3.6.1998 alleging that theappellants were demanding Rs. 10,000 as dowry from the deceasedas a result of which she committed suicide.

3. So as to hold the accused/appellantsguilty, prosecution hasexaminedasmanyas08witnessesinsupportofitscase.Statements of the accused/appellants were also recorded undersection 313 of the Code of Criminal Procedure in which they deniedthe charges levelled against them and pleaded their innocence andfalse implication in the case. This apart, two witnesses namely ;:t.^^t.- Baishakhu Ram (DW-1) and Krishna Kumar Sharma (DW-2) wereexamined by the defence in support of its case.

4. After hearing the parties the trial Court has convicted andsentenced the accused / appellants for the offence as mentionedabove.

5. Heardcounsel for thepartiesandperusedthematerialavailable on record including the judgment impugned.

6. Counsel for the appellants submits that appellant No.1 DilipKumar was residing at village Kochera whereas appellant No.2Bodhan who was an employee of Bhilai Steel Plant was residingseparately at Dallirajhara. He submits that on the date of incident,the deceased was residing separately at village Kochera and afterreceiving the information the appellant No.2 Bodhan and Jhumuklal(PW-1) had rushed to the hospital where they came to know aboutthe deceased having consumed some poisonous substance. Hesubmits that in his statement, Jhumuklal (PW-1) has not made anyallegation regarding demand of dowry or cruelty against appellantNo.1 Dilip Kumar. According to him, even if the entire statement ofJhumuklal (PW-1) is taken as it is, neither of the appellants can beheld liable for the offence under Section 306 IPC. He submits thatthere are omissions and contradictions in the statements of thewitnesses examined by the prosecution. He submits that when thedeceased was admitted in the hospital, Dr. S.S. Deodas (PW-4) hadput a specjfic question to her as to what had happened to her andthe deceased had told him that she had consumed the rat poison.Accordingtohim,theCourtbelowhasconvictedtheaccused/appellants merely on the basis of presumption and therebylanded itself in a legal error in doing so.

7. On the other hand counsel for the respondenVState[supports]the judgment impugned and submits that Jhumuklal (PW-1) hascategorically stated as to the manner in which the deceased wassubjected to cruelty by the accused/appellants. He submits that hadthere been no demand of dowry or cruelty at the instance of theappellants, there was no occasion for the deceased to commit —^3 —

suicide. He submits that in the FIR there is a categorical ailegationagainst both the accused/appellants and therefore the convictionand sentence awarded to them is strictly in accordance with law anddoes not call for any interference in appeal.

8. In the present case, the prosecution has examined only oneimportant witness i.e. Jhumuklal[-the]father ofthe deceased (PW-1)who has stated in his court statement that he was informed by hisdaughter i.e. the deceased that her father in law i.e. appellant No.2Bodhan used to harass her saying that the articles given in dowrywere of substandard quality. He has further stated that on oneoccasion the appellant No.2 Bodhan had demanded Rs. 24,000 andasked him to keep his daughter as also the appellant No.1 with him.ThiswitnesshashoweveradmittedthatthedeceasedhadconsumedpoisonatvillageKocheraandafterreceivingtheinformation he along with appellant No.2 Bodhan had gone to thehospital where they found the deceased to be dead. This witnesshas admitted in hisinquest statement that he has not made anyallegation against the accused persons but subsequently he haslodged the report in the police station. In the Court statement of thiswitness there is absolutely no allegation against the appellant No.1and the allegations are only against appellant No.2 who at therelevant time was staying at Dallirajhara. Rest of the witnessesnamely Radheshyam (PW-2), Amardas (PW-3),Ramlal (PW-5),Sawanlia Singh (PW-6) and R.N. Giri (PW-7) are not in relation tothe allegations against the accused/appellants but they are thewitnesses to the Panchnama and seizure. Krishna Kumar (PW-8) isthe head constable who had made entries in the Rojnamcha Sanha.Dr. S.S. Deodas (PW-4) has categorically stated in his evidence thatwhen he examined the deceased she was in a conscious state andwhen he asked her as to what had happened to her, she hadinformed him that she had consumed rat poison.

9. The allegations made against the appellants if seen in the lightof the evidence led by the prosecution in this case, this Court isafraid to observe that they are incapable of attracting the provisionsof the evidence led by the prosecution in this case, this Court isafraid to observe that they are incapable of attracting the provisions .^y^.,.^'"%,y'^^.^'^ "^"%^'°": ^,-%!^ 1'".,,'r-;^

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of abetment as is enshrined under Section 107 of the Indian PenalCode. For the sake of convenience Section 107 IPC is reproducedas under:

Section 107. A person abets the doingofa thing, who -First. - Instigates anyperson todo that thing; orSecondly - Engages with one or more other person orpersons in any conspiracy for the doing of that thing, ifan act or illegal omission takes places in pursuance ofthat conspiracy, andin order to thedoing ofthat thing; orThirdly.-Intentionallyaids,byanyactorillegalomission, the doing ofthat thing.Explanation1.-Apersonwho,bywillfulmisrepresentation, or by willful concealment ofa materialfact which he is bound to disclose, voluntarily causes orprocures, or attempts to cause or procure, a thing to bedone, is said to instigate the doing of that thing.Explanation 2.- Whoever, eitherpriorto orat the time ofthe commission of an act, does anything in order tofacilitatethecommissionofthatact,andtherebyfacilitates the commission thereof,is said to aid thedoing of that act."

Having undertaken a minute scrutiny of the entire evidence led bythe prosecution does not give a pointer to even a single allegation tothe effect that the deceased was abetted by the appeltants in anymanner whatsoever to end her life by consuming poison. Even thefatherof the deceased namely Jhumuklal (PW-1) has notstatedanythingspecificallyregardingabetmentevermadebytheappellants prompting the deceased to choose an end of her life.Thus the trial Court has fallen in legal error by ignoring the fact thatthe allegations made in this case do not attract the provisions ofsection107IPC and that beingso the appellants cannot beconvicted under Section 306 of the Indian Penal Code.

10. Consequently, the appealis allowed.Impugned judgmentdated 11.5.2001 convicting the accused/appellants under section306 IPC and sentencing them to undergo rigorous imprisonment forthree years and pay fine of Rs. 2000 plus default stipulations is setaside. The accused/appellants are directed to be set free if notrequired in any other case.