Lalman vs State Of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 19.12.2000 passed by Sessions Judge, Shahdol in S.T. No.186/2000. Trial Court held

appellant guilty for commission of offence punishable under Section 302 of IPC and awarded the sentence of life imprisonment.

Appellant was prosecuted for commission of offence punishable under Section 302 of IPC. The deceased was real brother of the appellant-

accused.

As per prosecution story on the date of the incident at around 5.00 O’clock in the evening Sotiya was digging pit out side of his house.Â

Appellant who is real brother of the deceased asked from the deceased what he was doing, the deceased asked the appellant to give his share, on this

the appellant asked the deceased to convene a Panchayat and take his share. He also tried to take away spade of the deceased. There was a

dispute between them in regard to partition of property and thereafter the deceased had jumped in the Well. The wife of the deceased leveled

allegation against the appellant that he had inflicted a blow of fist to the deceased. He had beaten him and thereafter pushed him in the Well, due to

which he was died. Report of the incident was lodged at the police station. The police conducted investigation and filed charge sheet.Â

Appellant abjured his guilt and pleaded innocence. Trial Court held appellant guilty for commission of offence punishable under Section 302 of IPC.

Shri Sharad Singh Baghel, learned counsel for the appellant has submitted that there is no evidence that appellant had killed the deceased. The

deceased himself jumped in the Well, due to which he was died. Hence, the trial Court has committed error in holding appellant guilty for

commission of offence of murder. In alternate he has submitted that offence committed by the appellant would fall under Section 306 of IPC.

Shri Vijay Soni, learned G. A for the respondent-State has submitted that the deceased was pushed by the appellant. Hence, the trial Court has

rightly held appellant guilty for commission of offence punishable under Section 302 of IPC and awarded proper sentence.

It is a fact that the deceased was real brother of the appellant.

Another brother of the appellant Samharu @ Daddi P.W.1 deposed that on 15.4.2000 the date of incident at around 5.00 O’clock in the evening

my brother Sotiya was digging a pit at the out side of the house. I went near the accused, who is my brother. The appellant-accused asked from

the deceased that what you were doing. He told him please give me my share. Appellant replied that call Panchayat of four persons and take his

share. Accused-appellant tried to snatch spade of the deceased. Thereafter, there were hot talks between them. Appellant snatched spade of

the deceased, then the deceased replied you will see magic and jumped in the Well. I lodged the merg intimation Ex.P.1 and signed the same.Â

Police came there and arrested the appellant, arrest memo is Ex.P.2, I signed the same.

Shambhu P. W.2 deposed that I had taken out the dead body of the deceased from the Well. Naksha-panchayatnama is Ex.P.3. I signed the

same.

Ramlal Kewat P. W.3 deposed that I came to know that the deceased was drowned in the Well. Thereafter, I reached at the spot and came

to know from Daddi P.W.1 that appellant had snatched spade of the deceased. Hence, the deceased jumped in the Well.

Kusumkali P.W.4 is the wife of the deceased. She deposedthat at around 5.00 O’clock in the evening the deceased came back from his

duty and he was digging a pit out side of the house, appellant came there. He catch hold the deceased and inflicted a blow of fist on his chest.Â

The deceased fell down and appellant pushed him into the Well. I cried, appellant had taken out dead body of the deceased from Well. She

denied the fact that her statement was recorded by the police after 22-23 days.

Dr. Mahesh Singh P. W.8 performed postmortem of the deceased.   He deposed that I noticed following injuries on the body of the person

of the deceased:

Superficial abrasion on right parietal side of the head.

Superficial abrasion on posterior of left elbow joint.

Superficial abrasion on posterior of right fore arm and arm.

Abrasion near the toe of right leg.

Lacerated wound transversely placed on occipital of scalp 3â€​ x ½â€​ bone deep.

Fracture of occipital bone and blood comes out.

He further deposed that deceased died due to downing.

Anil Kumar Shukla P. W.9 Investigation officer deposed that I registered Merg Ex. P.5 on the information given by Daddi Singh. I signed the

same. Thereafter, I arrested the accused by arrest memo Ex.P.2. I prepared spot map Ex.P.9 and signed the same.

There are two important witnesses. P. W.1 who is real brother of the deceased, who lodged the report and P. W.4, who is wife of the

deceased. Statement of P. W.4 under Section 161 of Cr. P. C. was recorded on 8.5.2000. This fact has been proved from the evidence of

Investigation Officer. Investigation Officer did not mention the fact that what was the reason in recording statement of P. W. 4 belatedly.

Apex Court in the case of Harbeer Singh vs. Sheeshpal and others [2016] 16 SCC 418 has held as under in regard to delay in recording statement

of the witnesses under Section 161 of Cr.P.C.

““16. As regards the incident of murder of the deceased, the prosecution has produced six eyewitnesses to the same. The argument raised

against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of

Cr.P.C. In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were reed after two days of incident, i.e.,

on 23.12.1993. The evidence of PW6 was reed on 26.12.1993 while the evidence of PW11 was reed after 10 days of incident, i.e., on 31.12.1993.

Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely

on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal Vs. State of Mahrashtra,

(1992) 3 SCC 106; Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and Sidhartha

Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1].

However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in reing of statements

of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating

Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of

Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68].

Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution

case.â€​

Apex Court in the case of Jodhan vs. State of Madhya Pradesh, (2015) 11 SCC 52 has held as under in regard to appreciation of evidence of

interested and inimical witness.

“24. First, we shall deal with the credibility of related witnesses. In Dalip Singh v. State of Punjab AIR 1953 SC 364 , it has been observed thus:-

We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the

foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we

know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common

to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan, AIR 1952 SC54.

In the said case, it has also been further observed:-

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless

the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close [relative] would be the last to screen the

real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency

to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere

fact of relationship far from being a foundation is often a sure guarantee of truth.

25 In Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 , the Court has ruled that evidence of interested witnesses per se cannot be said to be

unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduced a passage

from the said authority:-

An invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by

independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with

caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the

circumstances of the particular case, to base a conviction thereon.

26 The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found

to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be

rejected. That apart, when a witness has a motive or makes false implication, the Court before relying upon his testimony should seek corroboration in

regard to material particulars.

There is a delay in recording statement of P. W. 4 under Section 161 of Cr. P. C. The fact mentioned by P. W. 4 is not corroborated with the

evidence of Dr. P. W. 8 because P. W. 4 deposed that appellant had inflicted blow of fist on the chest. Dr. did not notice any injury on the chest of

the body of the person of the deceased. The fact mentioned by P. W. 4 in her evidence does not corroborated with FIR, which was lodged by P.

W. 1. Hence, in our opinion evidence of P. W.4 is not reliable while the evidence of P. W. 1 is corroborated with FIR (Ex.P.5) and evidence of

other witness P. W. 3. This fact has been proved that the appellant was digging a pit at the out side of his house, the deceased asked for his share

in the property. There was a dispute in regard to partition of the property. Appellant snatched spade of the deceased and thereafter deceased

told him that he would show a magic and jumped in the Well.  Â

Hon’ble Apex Court has held in regard to commission ofoffence punishable under Section 306 of IPC in the matter of K. Prema S. Rao Vs.

Yadla Srinivasa Rao reported in AIR 2003 SC 11 :

Both the Courts below have found the husband guilty of cruel treatment of his wife and as a result the wife committed suicide within seven years of

their marriage. On such evidence the presumption which arises under Section 113A of the Evidence Act is that the husband abetted suicide. The word

cruelty"" as mentioned in the Explanation below Section 113 A of the Evidence Act has been given the same meaning as contained in the Explanation

below Section 498A IPC. On the facts found, 'the wilful' conduct of the husband in forcing the deceased to part with her land which she had received

in marriage as ""stridhana"" and for that purpose concealing her postal mail was so cruel that she was driven to commit suicide. A case of conviction

and sentence of accused No. 1 under Section 306, IPC has thus clearly been made out even though his acquittal for commission of the offence of

'dowry death' punishable under Section 304B, IPC is not found liable to be disturbed.

Hon’ble Apex Court further held in the matter of M. Mohan Vs. State represented by Deputy S. P. reported in AIR 2011 SC 1238 in regard

to offence punishable under Section 306 of IPC:

We would like to deal with the concept of 'abetment'.Section 306 of the Code deals with 'abetment of suicide' which reads as under:

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 extent to ten years, and shall also be liable to fine.

The word 'suicide' in itself is nowhere defined inthe Indian Penal Code, however, its meaning and import is well known and requires no

explanation. `Sui' means `self' and `cide' means `killing', thus implying an act of self-killing. In short a person committing suicide must commit it by

himself, irrespective of the means employed by him in achieving his object of killing himself.

In our country, while suicide itself is not an offenceconsidering that the successful offender is beyond the reach of law, attempt to suicide is an

offence under section 309 of I.P.C.

Abetment of a thing' has been defined undersection 107 of the Code. We deem it appropriate to reproduce section 107, which reads as under:

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 illegal omission takes places in pursuance of that conspiracy,

and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing.

Explanation 2 which has been inserted along with section 107 reads as under:

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 of that act.

Learned counsel also placed reliance on yetanother judgment of this court in Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, in which

a three-Judge Bench of this court had an occasion to deal with the 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. This Court in paragraph 20 has examined different shades of the meaning of ""instigation'. Para 20 reads as under:

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 the said case this court came to the conclusionthat there is no evidence and material available on record wherefrom an inference of the

accusedappellant having abetted commission of suicide by Seema (appellant's wife therein) may necessarily be drawn.

In State of West Bengal v. Orilal Jaiswal & Another (1994) 1 SCC 73, this Court has cautioned that the Court should be extremely careful in

assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to

the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to

ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and

difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should

not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

This court in Chitresh Kumar Chopra v. State(Govt. of NCT of Delhi) 2009 (16) SCC 605, had an occasion to deal with this aspect of abetment.

The court dealt with the dictionary meaning of the word ""instigation"" and ""goading"". The court opined that there should be intention to provoke, incite

or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self-

esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on

the basis of its own facts and circumstances.

Abetment involves a mental process of instigatinga person or intentionally aiding a person in doing of a thing. Without a positive act on the part of

the accused to instigate or aid in committing suicide, conviction cannot be sustained.

From the law laid down by Hon’ble Supreme Court in the aforesaid judgments, in our opinion, the appellant is liable to be convicted for

commission of offence punishable under Section 306 of IPC. Consequently, appeal filed by the appellant is partly allowed and his conviction under

Section 302 of IPC and sentence awarded by the trial Court is hereby set aside. He is convicted for commission of offence punishable under

Section 306 of IPC and he is awarded RI five years. Appellant has already suffered jail sentence of near about six years. He is on bail, hence his

bail bonds are discharged.