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1994 Supreme(MP) 719
1995 JLJ 233
D.P.S. Chouhan, J.
Devi Singh v. State of M.P.
Cr. A. No. 428 of 1991; against the judgment of Shri S.C. Dubey, Additional
Sessions Judge, Harda, in Sessions Trial No. 153 of 1990;
Decided on 2.9.1994.
Surendra Singh for appellant; D. V. Pendharkar, Panel Lawyer for State.
Headnote:(1) Penal Code, 1860 -- S. 107 -- abetment by conspiracy -- such act cannot be done by one person alone -- there must be two or more persons for conspiracy u one cannot conspire with one self. AIR 1990 SC 1210 and AIR 1955 SC 33 followed. [Para 12
(2) Penal Code, 1860 -- Ss. 107 and 306 – abetment of suicide by act or omission -- presence of accused not established when his wife committed suicide -- there cannot be any act or omission of accused aiding commission of suicide by the wife. [Para 13
(3) Penal Code, 1860 -- Ss. 107 and 306 -- abetment by instigation -- can be done by a person only by some act of commission or omission -- presence of accused at relevant time doubtful -- alleged quarrel with deceased not founded on evidence -- the ground does not help prosecution. [Para 14
(4) Penal Code, 1860 -- Ss. 306 and 107 -- abetment to commit suicide -abetment not established -- offence not made out.
The language of section 306, I.P.C. is clear so far as the abetment is concerned. The liability of offence therein is dependent upon the act of abetment and abetment must be for commission of the suicide. In the present case, the abetment has not been established and as a result thereof the liability of guilt u/s. 306, I.P.C cannot be fastened on the appellant. [Para 14
¼1½ naM lafgrk] 1860 && /kkjk 107 && ""kM~;a= }kjk nq"isz"k.k && ,slk dk;Z ,d vdsys O;fDr }kjk ugh fd;k tk ldrk & ""kM~;a= ds fy, nks vFkok vf/kd O;fDr gksuk gh pkfg, && dksbZ Lo;a ds lkFk ""kM~;a= ugha dj ldrkA , vkb vkj 1990 ,l lh 1210 rFkk , vkb vkj 1955 ,l lh 33 vuqlfjrA ¿ iSjk 12À
¼2½ naM lafgrk] 1860 && /kkjk 107 rFkk 306 && dk;Z vFkok yksi }kjk vkRegR;k dk nq"izsj.k && vfHk;qDr dh mifLFkfr LFkkfir ugha tc mldh iRuh us vkRegR;k dh && vfHk;qDr dk viuh iRuh dks vkRegR;k esa lgk;rk dk dksbZ vFkok yksi ugha gks ldrkA ¿ iSjk 12À
¼3½ naM lafgrk] 1860 && /kkjk 107 && 306 && mdlkgV }kjk nq"iszj.k && fdlh O;fDr }kjk dsoy fdlh dk;Z vFkok yksi ds dk;Z }kjk fd;k tk ldrk gS && vfHk;qDr dh && mifLFkfr lqlaxr le; ij lansgkLin && e`rd ds lkFk vfHkdfFkr >xM+k lk{; ij vk/kkfjr ugha && vk/kkj vfHk;kstu dks lgk;d ughaA ¿ iSjk 14À
¼4½ naM lafgrk] 1860 && /kkjk 306 rFkk 107 && vkRegR;k dkfjr djus dk nq"iszj.k && nq"izsj.k LFkkfir ugha && vijk/k fl) ughaA
naM izfØ;k lafgrk dh /kkjk 306 dh Hkk"kk] tgk¡ rd nq"iszj.k dk laca/k gS] Li"V gSA mlesa vijk/k dk nkf;Ro nq"izsj.k ij vkfJr gS vkSj nq"iszj.k vkRegR;k dkfjr djus ds fy, gksuk pkfg,A izLrqr ekeys esa] nq"izsj.k LFkkfir ugha gqvk gS vkSj mlds ifj.kke Lo:i na-iz-la dh /kkjk 306 ds v/khu nks"k vihykFkhZ ij ugha Fkksik tk ldrkA ¿ iSjk 14À
1. Devi Singh, the appellant on having been convicted for offence under• section 306, I.P.C by Shri Satish Chandra Dubey, Additional Sessions Judge, Harda in S.T. No. 153/90, approached this Court by means of the present appeal.
2. Nirmalabai was the wife of the appellant. They married 20 years hence the alleged occurrence. It appears that she committed suicide sometime in the night intervening 7th & 8th January, 1990 by consuming poison. She while on way to hospital died on 8.1.1990 and the F.I.R,/Marg (Ex. P/1) was lodged by Ward Boy Garibdas (P.W. 1) at 8.35 A.M. at P.S. Timami.
3. The prosecution case in brief was that deceased Nirmalabai, the wife of the appellant, was married 20 years hence the alleged occurrence. During her life time about 15-16 years hence the date of alleged occurrence he married a second woman namely Kotubai. The appellant used to beat and accuse Nirmalabai. On a night between 7th and 8th of January, 1990 Nirmalabai was given a beating, as a result of which she consumed poison which resulted in her death. The accused took Nirmalabai to Timarni Hospital where Dr. Sharad Kumar Gadre on 9.1.1990 sent a written information Ex. P/2 to the Police Station Timarni and a case of sudden death was registered and the Panchnama was prepared but no cause for death could be ascertained by the police officers or the Panch witnesses, therefore, the body was--sent for post mortem. In the post mortem it was detected that the death was on account of consuming some poison. It was also detected that in the night at about 11.00A.M. Nirmalabai was shouting in her house for seeking help by saying "cpkvks cpkvks" On this basis the case was registered against the accused-appellant for an offence punishable under section 306, I.P.C. and after investigation the charge-sheet was filed for offence punishable under sections 306 and 498-A of the I.P.C.
4. The prosecution examined as many as eight witnesses. Garibdas, the Ward Boy of the Govt. Hospital, Timarni was examined as P. W. 1 who sent the information of the death of Nirmalabai to the Police. Sushilabai, who is alleged to have heard the voice of Nirmalabai, was examined as P.W. 2 BhagwatSingh, who accompanied the deceased to the Hospital in the bullock-cart was examined as P.W. 3. Jagdish, who heard the voice of Nirmalabai, was examined as P.W.8.
4. Karan Singh, who was alleged to have heard the voice of Nirmalabai seeking help, was examined as P.W. 5. Dr. Sharad Kumar Gadre, who conducted the Post Mortem of the deceased, was examined as P.W.6. Nawab Raza, the Investigating Officer, was examined as P.W.7 and Ramsajivan Mishra, A.S.I. of Police, who conducted the inquest proceedings and the seizure proceedings, was examined as P.W. 8.
5. There was no dying declaration of the deceased. The cause of death as per the opinion of Dr. S.K. Gadre (P.W. 6) was consumption of the poison.
6. In defence, the prosecution allegation was denied and the accused stated that he did not commit any cruelty, did not assault her wife Nirmalabai in the alleged night and it was he who took her to the hospital.
7. Heard the learned counsel for the appellant and learned Panel Lawyer for the State.
8. Learned counsel for the appellant made three-fold submissions
i. That the prosecution has failed to establish beyond reasonable doubt the presence of the appellant in the house at the relevant point of time and as a result whereof no guilt can be fastened on the appellant for the offence u/s. 306, I.P.C.
ii. Apart attribution of beating to the deceased it cannot be said and held to be an act of beating of suicide by the appellant and at the most if any liability in regard to the beating could be found that could be an offence only u/s. 323, I.P.C.
iii. In the present case the provisions of section 113-A of the Evidence Act cannot be taken in aid by the prosecution as no presumption can be drawn on account of the fact that the marriage was performed more than 7 years before the date of incident.
9. Before the
