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Judgment
This criminal appeal under Section 378(1) of the Code of Criminal Procedure, 1973 has been filed by the appellant against the judgment dated 19.09.2022 passed by the learned Third Additional Sessions Judge, Khandwa (M.P.) in Sessions Trial No.108 of 2020, whereby the respondent/accused has been acquitted of an offence under Section 306 of the Indian Penal Code.
The case of the prosecution in brief is that after the marriage, the respondent/accused Prakash allegedly subjected his wife the deceased Surekha to physical and mental cruelty. It is alleged that on the intervening night of 16/17.07.2020 at about 12:00 AM, the respondent/accused assaulted and abused the deceased, thereby harassing her. Being distressed, the deceased is stated to have consumed pesticide and was taken for medical treatment, where she subsequently succumbed to death. The deceased was medically examined and her condition was found to be critical. She was admitted to the women’s ward. Gulab (PW-17), while posted as Head Constable at Police Station Moghat Road, Khandwa, on 17.07.2020, received the inquest report prepared by Dr. Sharad Harne through hospital staff. On the basis of the said report, an unnatural death case bearing No. 0134/2020 under Section 174 Cr.P.C. was registered (Ex.P-5) concerning the death of the deceased during treatment due to consumption of insecticide. The matter was thereafter forwarded to the concerned outpost for investigation. During the course of investigation, Mohansingh Singore (PW-16), the the Station House Officer, Police Station Chhaigaon Makhan recorded the statements of the deceased’s relatives it was revealed that the respondent/accused used to subject the deceased to cruelty and had allegedly instigated her to commit suicide on the night of the incident. On this basis, a case under Section 306 of the Indian Penal Code was registered. The respondent/accused Prakash was arrested on 25.07.2020. The investigation was started.
After completing the investigation, the charge sheet was filed against the respondent/accused before the Court. Statement of the witnesses got recorded. Charges were framed; read out and explained to the respondent/accused. He denied to committing the crime and sought a trial. During his examination under Section 313 of the Code of Criminal Procedure, the accused stated that he is innocent and has been falsely implicated in the case.
In order to bring home the charges the prosecution examined witnesses namely Neha (P.W.1), Tushar (P.W.2), Vijay (P.W.3), Umesh (P.W.4), Rakesh Sirsare (P.W.5), Manoj (P.W.6), Santosh Bai (P.W.7), Vinod Astare (P.W.8), Bablu (P.W.9), Ramesh (P.W.10), Sanjay (P.W.11), Dr. Sharad Harne (P.W.12), Dr. Vijay Mohre (P.W.13), Mahadev Patidar (P.W.14), Saansingh Gour (P.W.15), Mohansingh Bijore (P.W.16) and Gulab (P.W.17) and exhibited documents (Ex.P/1 to Ex.P/19) in support of the prosecution case. On the defence side, the document Ex.D/1 was exhibited.
After conclusion of trial and hearing of both parties, the learned trial Court by the impugned judgment acquitted respondent from the charge under Section 306 of the I.P.C.
Learned counsel appearing on behalf of the appellant has submitted that Neha (PW-1) and Tushar (PW-2), the daughter and son of the deceased along with independent witnesses Vijay (PW-3), Umesh (PW-4), Rakesh (PW-5) and Manoj (PW-6) have duly supported the prosecution case. It is contended that these witnesses have categorically deposed that the respondent/accused used to subject the deceased to physical assault on a regular basis and had also assaulted her on the date of the incident, on account of which the deceased consumed a poisonous substance and ultimately died. It is further submitted that the testimonies of Neha (PW-1) and Tushar (PW-2), being the daughter and son of the deceased, are of material significance and have remained unshaken in their cross-examinations. Reliance is also placed on the testimony of Dr. Vijay Mohre (PW-13), who conducted the postmortem and has established that the death of the deceased occurred due to consumption of a poisonous substance. Although he has admitted that no external injuries were found on the body of the deceased, it is argued that such absence of injuries, by itself, is not sufficient to discard the otherwise reliable testimonies of the prosecution witnesses namely PW-1 to PW-6. It is thus contended that the learned trial Court has erred in placing undue emphasis on minor contradictions, omissions, and variations in the statements of the witnesses and, on that basis, extending the benefit of doubt to the respondent/accused. The impugned judgment is, therefore, liable to be set aside. Accordingly, it has been prayed that the present appeal be allowed, the judgment of acquittal be set aside and the respondent/accused be convicted and sentenced appropriately in accordance with law.
Heard the learned counsel for the appellant and perused the record.
To bring home the charge under Section 306 of the Indian Penal Code, it is incumbent upon the prosecution to establish the essential ingredients constituting the offence of abetment, as defined under Section 107 of the IPC, which reads as under:-
“107.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 place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.
The said definition of abatement elucidates that there has to be instigation by a person to do a thing, secondly the person must engage himself with one or more than one person conspiring to do something and thirdly, there should be an intentional aid by the said person or illegal omission on the part of the said person for doing of that thing. If the said ingredients are established from the evidence available on record only in that condition accused can be convicted under Section 306 of the IPC which mandates that if any person commit suicide and whosoever abets the commission of such suicide shall be punished under this section.
It is not in dispute that the marriage between the deceased and the respondent/accused had taken place about 15–20 years prior to the date of the incident. The prosecution alleges that the respondent/accused used to assault the deceased under the influence of liquor and on trivial issues. Neha (PW-1) and Tushar (PW-2), the daughter and son of the deceased have deposed that the respondent/accused, who is their father, assaulted the deceased after consuming liquor from about 6:00 PM till 11:00 PM. Thereafter, the deceased, being distressed, went out of the house, closed the door from outside and consumed a poisonous substance. The witnesses further stated that they called their neighbour by addressing him as “Dada” and upon opening the door, the deceased was found lying unconscious. She was then taken to Khandwa Hospital, where she subsequently succumbed. From the statements of these witnesses, it is alleged that on the fateful night the respondent/accused assaulted the deceased for a considerable duration by means of a chair as well as by fists and kicks. However, the doctor who conducted the postmortem namely Dr. Vijay Mohre (PW-13) has categorically stated that no external injuries were found on the body of the deceased. Had the deceased been subjected to assault for such a prolonged period, she would, in the ordinary course, have sustained visible injuries. It is also pertinent to note that the alleged weapon, i.e. the chair purportedly used in the assault was not seized during the course of investigation and no explanation has been furnished by the prosecution in this regard.
The statements of witnesses Neha (PW-1) and Tushar (PW-2) further indicate that the respondent/accused allegedly used to assault the deceased almost daily under the influence of liquor. However, no FIR or prior complaint has been brought on record by the prosecution to substantiate such allegations or to demonstrate that the deceased had ever reported such conduct earlier. If, as alleged, the respondent/accused had been subjected the deceased to continuous physical abuse on a daily basis, it would be a natural course of conduct for the deceased to have lodged some complaint or report with the appropriate authorities prior to taking the extreme step of committing suicide. The absence of any such prior complaint casts doubt on the prosecution version in this regard.
It is also evident from the statement of Neha (P.W.1) that the marriage between the deceased and the accused had subsisted for about 20 years and that they shared a cordial and affectionate relationship. The testimony of Tushar (P.W.2) further reveals that his maternal uncle (Mousa) used to frequently visit their house and that, prior to the incident, Manoj (P.W.6) had come to their residence, during which the deceased was engaged in conversation with him when the respondent/accused suddenly arrived. The defence of the accused is that the deceased had some form of association with Manoj (P.W.6), and upon having seen them together, the accused suspected such relationship, which ultimately led the deceased to commit suicide in distress.
The other witnesses, namely Vijay (PW-3), Umesh (PW-4) and Rakesh Sirsare (PW-5) are not eyewitnesses to the incident and their testimonies are based on information allegedly conveyed to them by Neha (PW-1) and Tushar (PW-2). Vijay (PW-3) has deposed that upon hearing the cries of the son of the deceased, he opened the door from outside, whereupon the son inquired about his mother. Thereafter, the deceased was found lying unconscious in a hut used as a kitchen. However, this witness has not stated that he had initially seen the deceased lying outside the house of the accused. In his cross-examination, he admitted that it was only on the following morning that he came to know that the deceased had consumed some poisonous substance. He further admitted that he had no knowledge as to who had quarreled with whom or what was the cause of such quarrel.
Umesh (PW-4), the brother of the deceased has made an improved version by stating that for about eight days prior to the incident, the accused had been assaulting the deceased. However, he admitted that this fact was communicated to him by Manoj (P.W.6), and thus his statement is hearsay in nature. It has also come on record that in the locality where the accused resides, consumption of liquor is common.
Rakesh Sirsare (PW-5) has deposed that Neha (PW-1) and Tushar (PW-2) informed him that the accused had been continuously assaulting the deceased for 2–4 days prior to the incident. However, this assertion is not corroborated by the statements of Neha (PW-1) and Tushar (PW-2). This witness has also admitted omissions and contradictions vis-à-vis his police statement (Ex.D-1), as reflected in paragraph 9 of his deposition.
Manoj (PW-6) has deposed on similar lines; however, in his cross-examination, he admitted that no prior report had ever been lodged with the police regarding any alleged assault by the deceased. He also admitted that he used to visit the house of the deceased. The witness before whom the deceased was first taken for treatment has also admitted that he was informed about the consumption of poison by the deceased, but no information was given to him regarding any assault. Furthermore, he did not notice any external injury on the body of the deceased. In view of the aforesaid, the testimonies of these witnesses being largely hearsay and containing material omissions and contradictions, do not lend reliable support to the prosecution case and, to that extent, remain unsubstantiated.
The Hon'ble Apex Court in the case of Kunju Muhammed @ Khumani and others vs. State of Karela, (2003) 1 SCC 761, is relevant to refer here:-
"16.We are at pains to appreciate this reasoning of the High Court. This witness has not been treated hostile by the prosecution, and even then his evidence helps the defence. We think the benefit of such evidence should go to the accused and not to the prosecution.
In the case of S.S. Cheena vs. Vijay Kumar Mahajan and others, (2010) 12 SCC 707, the Hon'ble Apex Court has held as under:-
"28.Abetment involves a mental process of instigating a 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. The intention of the Legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
29.In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day to day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation."
In the case of M. Mohan vs. State, AIR 2011 SC 1238 , the Hon’ble Apex Court has held that :-
“45.Abetment involves a mental process of instigating a 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.
46.The intention of the Legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under section 306 IPC, there has to be clear mens rea to commit the offence. It also requires an active act or direct act, which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.”
Again, the ingredients under Sections 107 and 306 of the IPC was interpreted by the Hon'ble Supreme Court in the case of Prakash and Ors. vs. State of Maharashtra and Anr., 2024 SCC OnLine SC 3835 and the Hon'ble Apex Court has held as under:-
"14.Section 306 read with Section 107 of IPC, has been interpreted, time and again, and its principles are well established. To attract the offence of abetment to suicide, it is important to establish proof of direct or indirect acts of instigation or incitement of suicide by the accused, which must be in close proximity to the commission of suicide by the deceased. Such instigation or incitement should reveal a clear mens rea to abet the commission of suicide and should put the victim in such a position that he/she would have no other option but to commit suicide.
15.The law on abetment has been crystallised by a plethora of decisions of this Court. Abetment involves a mental process of instigating or intentionally aiding another person to do a particular thing. To bring a charge under Section 306 of the IPC, the act of abetment would require the positive act of instigating or intentionally aiding another person to commit suicide. Without such mens rea on the part of the accused person being apparent from the face of the record, a charge under the aforesaid Section cannot be sustained. Abetment also requires an active act, direct or indirect, on the part of the accused person which left the deceased with no other option but to commit suicide."
This Court in the case of Mohsin son of Jafruddin Vs State of M.P., 2017 (11) Manisa 139 (M.P), while following the ratio laid down by the Hon’ble Apex Court has held as under:-
“12.In the case of Abdul Hanif Vs State of M.P. 2002 (11) MPWN 12,it has been reiterated that mere threatening or beating by the accused persons to the deceased does not constitute any instigation “for commission of suicide.”
Keeping in view the law laid down in the aforesaid decisions and upon due consideration of the evidence discussed hereinabove, this Court is of the considered opinion that the learned trial Court has committed no illegality or perversity in acquitting respondent/accused. The prosecution has failed to establish, by cogent, reliable and trustworthy evidence the essential ingredients of the offence of abetment as defined under Section 107 of the Indian Penal Code read with Section 306 of the IPC. Accordingly, the findings recorded by the learned trial Court warrant no interference.
In the case of State of Gujarat v. Jayrajbhai Punjabhai Varu, (2016) 14 SCC 151 the Hon'ble Apex Court has held that prosecution has to prove the guilt of the accused beyond all reasonable doubt. It is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted. In case of Nikhil Chandra Mondal v. State of W.B., (2023) 6 SCC 605 Hon'ble Apex Court has observed that it is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. Unless finding of the trial Court is found to be perverse or illegal/impossible, it is not permissible for the appellate Court to interfere with the same.
Recently in case of Mallappa & others v. State of Karnataka, (2024) 3 SCC 544 the Hon'ble Apex Court has again summarized the principles while deciding the appeal against acquittal which are as follows :-
"42.Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarised as:-
(i)Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive — inclusive of all evidence, oral or documentary;
(ii)Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii)If the court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv)If the view of the trial court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v)If the appellate court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the trial court for acquittal and must cover all the facts;
(vi)In a case of reversal from acquittal to conviction, the appellate court must demonstrate an illegality, perversity or error of law or fact in the decision of the trial court."...
Ex consequenti, in the light of the aforesaid discussion and the ratio of law laid down by Hon'ble Apex Court in aforesaid cases, on careful analysis of the evidence, the observations made by the learned Trial Court in the impugned judgment are not found to be faulty. The learned Trial Court on proper appreciation of evidence available on record has rightly acquitted the accused/respondents. There is no ground for interference with the findings of the trial Court.
Accordingly, while affirming the findings of acquittal of respondent/accused by the learned trial Court, the appeal being bereft of merit is hereby dismissed.