Chattisgarh High Court
Ku.Aabha Jain And Others vs State Of Chhattisgarh on 6 August, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
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2025:CGHC:39105
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 593 of 2007
Dulichand Jain S/o Paras Ram Jain Aged About 62 Years R/o Near
Pushpa Hospital, Chikhlakasha, Police Station Dalli Rajhara, District
Durg Chhattisgarh.
2 - Tara Bai (Died And Deleted) As Per Honble Court Order Dated 17-
02-2025.
--- Appellant
versus
State Of Chhattisgarh Through District Magistrate, Durg Chhattisgarh.
--- Respondent
CRA No. 606 of 2007
1. Ku. Aabha Jain D/o Dulichand Jain, aged about 25 years, R/o
Near Pushpa Hospital, Chikhlakala, Rajhara, Police Station Rajhara,
District Durg Chhattisgarh.
2. Smt. Bharti W/o Prakash Bafna, aged about 34 years, R/o Sadar
Gandhi Chok Nagpur (Maharashtra) at present Chikhlakala, Rajhara,
P.S. Rajhara, Distt. Durg (CG)
— Appellants
Versus
State Of Chhattisgarh through District Magistrate, Durg (CG)
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— Respondent
For Appellants : Mr. Suresh Verma and Mrs. Renu Kochar,
Advocates.
For Respondent : Mr. Afroz Khan, Panel Lawyer
Hon'ble Smt. Justice Rajani Dubey, J
Judgment On Board
06-08-2025
Since both these appeals arise out of the judgment of conviction
and order of sentence dated 25.6.2007 passed by Additional Sessions
Judge, Balod, Distt. Durg in ST No.249/2006, they are being disposed
of by this common judgment. By the impugned judgment, each of the
accused/appellants has been convicted and sentenced as under:
Conviction Sentence
Under Section 498A of IPC. RI for one year and fine of
Rs.500/-, in default thereof to
suffer additional RI for six months.
Under Section 306 of IPC. RI for four years and fine of
Rs.1000/-, in default thereof to
suffer additional RI for one year.
Both the sentences were directed to run concurrently.
02. Case of the prosecution, in brief, is that marriage of deceased
Pooja @ Rashmi was solemnized with one Kalyan, who is son of
accused No. 1 & 2 and brother of accused No.3 & 4, at Gayatri Mandir,
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Rajnandgaon on 27.11.2005. As father of the deceased was ill, her
brother went to Dallirajhara at her matrimonial house to bring her back
and while returning stayed at Khamtarai. On 6th March her husband
Kalyan came to Dongargarh and took her back to the matrimonial
house. On 7th March it was informed that deceased Pooja has got burnt
by kerosene. While PW-2 Girish Jain and PW-1 Gendmal, brother and
father of the deceased, along with others were going to her matrimonial
house by jeep, they received information that the deceased was being
taken to Bhilai and therefore, all of them went to Sector-9 Hospital,
Bhilai where Pooja was admitted in casualty in burnt condition. On
being asked, Pooja disclosed that the accused persons taunt her too
much, harass and ill-treat her and even object to her keeping the
photograph of her deceased mother, therefore, she burnt herself.
During treatment, her dying declaration was recorded. Subsequently
she died during the course of treatment on 16.3.2006. Postmortem on
the body of deceased was conducted, spot map was prepared and
statements of the witnesses were recorded. After completing usual
investigation, charge sheet under Sections 498A, 306, 34 of IPC was
filed against the accused persons.
03. Learned trial Court framed charges under Sections 498A, 304B
and 306 of IPC against the accused persons which were abjured by
them and they prayed for trial. In order to substantiate its case the
prosecution examined 20 witnesses. Statements of the accused were
recorded under Section 313 of CrPC wherein they denied all the
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incriminating circumstances appearing against them in the prosecution
case, pleaded innocence and false implication. In their defence, they
examined four witnesses.
04. After hearing counsel for the respective parties and appreciation
of oral and documentary evidence on record, the learned trial Court
while acquitting the accused of the charge under Section 304B of IPC,
convicted and sentenced them as mentioned in the opening paragraph
of this judgment. Hence these appeals.
05. During pendency of CRA No.593/2007, appellant No.2 Tara Bai
died on 23.11.2011, therefore, vide order dated 17.2.2025 the said
appeal in respect of appellant No.2 Tara Bai stood abated.
06. Learned counsel for the appellants submit that the impugned
judgment is per se illegal and contrary to the material available on
record. Conviction of the appellants is based mainly on the dying
declaration (Ex.P/7) allegedly obtained by PW-5 Pulak Bhattacharya,
Executive Magistrate on 8.3.2006 at 11.30 am but the same is not a
reliable document in view of contradiction in the contents of the dying
declaration and the statement of PW-5. In this dying declaration, one
Uday Kumar has certified that the deceased is in a position to give
statement but the prosecution has not examined him as a witness. It is
also not clear whether this Uday Kumar was a doctor or attendant in
the burn unit. This apart, PW-5 Executive Magistrate has also not
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stated in his evidence as to who was the doctor and who made
endorsement about fitness of the deceased for making statement.
Further, as per evidence of PW-1 Gendmal, PW-12 Rakhi Jain and
PW-20 Nirmala Jain, after admission in Sector-9 Hospital, the
deceased was not in a position to speak anything for about four days.
Similarly, PW-4 Dr. Lal Mohammad, autopsy surgeon, and PW-16 Dr.
AK Singh who gave first aid treatment to the deceased at Pushpa
Hospital, clearly state that looking to the condition of the patient she
was not in a position to give any statement.
07. Learned counsel for the appellants would further contend that in
her dying declaration the deceased stated that on 3 rd or 4th March she
went to the house of her sister Rakhi where she told her that her in-
laws’ restrict her from coming to her village and as mother-in-law of her
sister namely Nirmala Jain (PW-20) disclosed it over telephone to her
in-laws, they ill-treated her and therefore, she poured kerosene on her
and set her ablaze. However, from the statement of PW-20 it is clear
that she never disclosed the above fact to in-laws of the deceased over
telephone or otherwise. PW-12 Rakhi Jain also stated that they never
disclosed this fact to in-laws of the deceased. Being so, the said dying
declaration loses its sanctity and cannot be relied upon at all.
08. Learned counsel further submit that looking to the conduct of the
accused persons that immediately after the incident they rushed the
deceased to a nearby hospital and after getting her first aid treatment
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shifted her to Sector-9 Hospital, Bhilai, it is clear that they are innocent
and made every effort to save her life. There is nothing on record to
suggest that the accused persons in any manner instigated or abetted
the deceased to commit suicide. So far as offence u/s 498A of IPC is
concerned, in view of the evidence of PW-1 and PW-2, father and
brother of the deceased, it is seen that they only stated that the
deceased was being repeatedly told by her in-laws that she did not
know cooking and was advised to improve it. Except this, there is no
other allegation against them. As such, it cannot be construed as
harassment or cruelty which could constitute offence under Section
498A of IPC. It has come in the evidence of PW-1 Gendmal Jain as
also in the evidence of DW-3 Dr. Rajeev Sharma that after the death of
her mother, the deceased was under depression. Therefore, the
possibility of her committing suicide for this reason cannot be ruled out.
There are many contradiction and omission in the statements of the
prosecution witnesses but the same have been ignored by learned trial
Court. The prosecution has examined only interested witnesses and no
independent witness was examined to corroborate their evidence.
Thus, it is clear that learned trial Court has not properly appreciated the
oral and documentary evidence on record. The findings recorded by
learned trial court being erroneous are liable to be set aside and the
appellants deserve to be acquitted of all the charges by giving them
benefit of doubt.
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Reliance has been placed on the judgment in the case of
Ramesh Kumar Vs. State of CG reported in (2001) 9 SCC 618;
judgment dated 28.2.2023 of the Hon’ble Supreme Court in SLP (Cri.)
No.8584/2022 in the matter of Kashibai and others Vs. State of
Karnataka; judgment dated 21.2.2024 passed in SLP (Cri.)
No.4684/2019 in the case of Mr. Vijayakumar Vs. State of Tamil
Nadu; the judgment dated 12.10.2023 in CRA No.1485/2011 in the
case of Kamalakar Vs. State of Karnataka; the judgment in Naresh
Kumar Vs. State of Haryana reported in (2024) 3 SCC 573; judgment
20.6.2023 of High Court of MP in CRA No.2006/1998 in the matter of
Chatra Chamar Vs. State of MP as also the judgment dated
12.2.2025 of this Court in CRA No.1205/2003 in Sushanto @ Babu
Mandal Vs. State of CG.
09. Per contra, learned counsel for the State opposing the
contention of the appellants submits that learned trial Court upon
minute appreciation of oral and documentary evidence available on
record has rightly convicted and sentenced the appellants by the
impugned judgment which calls for no interference by this Court.
Therefore, the present appeals being without any substance are liable
to be dismissed.
10. Heard learned counsel for the parties and perused the material
available on record.
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11. It is clear from the record of learned trial Court that the
appellants were charged under Sections 498A, 304B and 306 of IPC
and after appreciation of oral and documentary evidence, learned trial
Court acquitted them of the charge under Section 304B of IPC and
convicted and sentenced them as mentioned in para 1 of this
judgment.
12. It is not disputed in this case that deceased Pooja @ Rashmi
was daughter-in-law of appellants Dulichand and Tarabai and sister-in-
law of appellants Aabha Jain and Bharti. Her marriage was solemnized
on 27.11.2005 with son/brother of the appellants namely Kalyan; the
incident took place on 7.3.2006 and she died on 16.3.2006 due to burn
injuries.
13. Learned trial Court heavily relied upon the dying declaration of
the deceased (Ex.P/7) recorded by PW-5 Pulak Bhattacharya,
Executive Magistrate. He states that he received a letter from Police
Station – Bhilai Nagar on 8.3.2006 which was marked by Tahsildar and
he was directed to record dying declaration of the victim Pooja Jain
admitted in Sector-9 Hospital, Bhilai. After obtaining fitness certificate
from the doctor regarding condition of the victim for making statement,
he recorded her dying declaration as per Ex.P/7 in question and
answer form. He admits his signature on Ex.P/7 from A to A part and
certifies the thumb impression of the victim from B to B part and
signatures of the doctor from C to C and D to D part. In cross-
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examination nothing has been elicited by the defence from this witness
to make his evidence untrustworthy or doubtful. In Ex.P/7 the victim
stated thus:
"iz'u ;g ?kVuk vkids lkFk dSls ?kVh \
mŸkj esjh 'kknh 27 uoacj 2005 dks gqbZ gSA 'kknh ds ckn es a gh esjs dks esjh lkl
rkjkckbZ] cM+h uun Hkkjrh] NksVh uun vkHkk vkSj llqj nqyhpan NktsM+ ijs’kku djrs gSA
[kkuk ugh cukuk vkrk dgdj pkjks xkyh nsrs gSA dqN fnuksa ls ;g Hkh xkyh nsrs gS fd
ngst esa dqN yk;h ugh gS] NksVh uun vkHkk lcls T;knk xank crkZo djrh FkhA eSa 3 ;k
4 rkjh[k blh eghus viuh cgu jk[kh ds xkWao x;h Fkh ogka mldks cksyh Fkh fd esjs
llqjky okys rqEgkjs xkao vkus euk djrs gS ;g ckr esjh cgu dh lkl us dy Qksu ij
esjs llqjky okyksa dks crk nh] blh ckr ij esjh lkl vkSj nksuks uun us esjs lkFk >xM+k
fd;k] xkyh xykSp Hkh fd;k blh ckr ls eS a ijs’kku gksdj [kqn ds Åij feVVh rsy
Mkydj ekfpl ls vkx yxk yhA mlds ckn esjs ph[kus fpYykus ij lkl vkSj uunks us
eq>s cq>k;k A fQj bUgh yksxks us esjs dks vLirky yk;kA
iz’u vkids ifr ls vkids dSls laca/k gS \
mŸkj esjs ifr ls esjk dksbZ >xM+k ugh gSA oks rks yM+kbZ >xM+s ls vyx jgrs gS blfy,
lkl cgq ds >xM+s esa chp esa ugh vkrs Fks dHkh dHkkj nksuksa i{kks dks >xM+k djus ls euk
djrs FksA esjs dks Hkh cksyrs Fks fd uunksa ls ckr er fd;k djksA
iz’u dy vkius [kqn dks tyk;k] blds fy, dkSj ftEesnkj gS \
mŸkj eSa viuh lkl rkjkckbZ] uun Hkkjrh vkSj vkHkk RkFkk llqj nqyhpan NktsM+ ds
O;ogkj ls ijs’kku FkhA lc esjs dks [kkuk ugh cukuk vkrk] dksbZ dke ugh vkrk dgdj
ijs’kku djrs FksA eSa bl ?kVukvks ls bruh ijs’kku gks x;h Fkh fd vkf[kj dy dh ?kVuk
ds ckn vius vki dks tykus ds fy, etcwj gks x;hA esj s dks vkRegR;k ds fy, bUgh
pkjks] lkl] nksuks uun rFkk llqj ds dkj.k etcwj gksuk iM+kA”
14. The Hon’ble Supreme Court in the matter of Naresh Kumar
(supra) after observing its various earlier decisions held in para 25 of
the judgment as under:
“25. It is now well settled that in order to convict a person under
Section 306 of IPC there has to be a clear mens rea to commit
10the offence. Mere harassment is not sufficient to hold an accused
guilty of abetting the commission of suicide. It also requires an
active act or direct act which led the deceased to commit suicide.
The ingredients of mens rea cannot be assumed to be ostensibly
present but has to be visible and conspicuous.
15. In the matter of Kashibai and others (supra), the Hon’ble
Supreme Court while dealing with offence under Sections 498A and
“9. In M. Mohan Vs. State Represented by the Deputy
Superintendent of Police (2011) 3 SCC 626, this Court has
elaborately dealt with the provisions contained in Section 306
read with Section 107 IPC, and after discussing various earlier
decisions has observed as under: –
“41. This Court in SCC para 20 of Ramesh Kumar [(2001) 9 SCC
618: 2002 SCC (Cri) 1088] has examined different shades of the
meaning of “instigation”. Para 20 reads as under: (SCC p. 629)“20. 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
11anger or emotion without intending the consequences to actually
follow cannot be said to be instigation.”
In the said case this Court came to the conclusion that there is
no evidence and material available on record wherefrom an
inference of the appellant-accused having abetted commission of
suicide by Seema (the appellant’s wife therein) may necessarily
be drawn.
42. In State of W.B. v. Orilal Jaiswal [(1994) 1 SCC 73: 1994
SCC (Cri) 107] this Court has cautioned that (SCC p. 90, para
17) 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 her 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.
43. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT
of Delhi) [(2009) 16 SCC 605: (2010) 3 SCC (Cri) 367] 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.
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Therefore, it is impossible to lay down any straitjacket formula in
dealing with such cases. Each case has to be decided on the
basis of its own facts and circumstances.
44. 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 carinot be sustained.
45. 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 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
this act must have been intended to push the deceased into such
a position that he/she committed suicide.”
In the said matter, after appreciation of the overall evidence on
record in light of its earlier decisions on the issue, the Hon’ble Supreme
Court acquitted the appellants of the charge u/s 306 of IPC by giving
them benefit of doubt and maintained their conviction u/s 498A of IPC.
16. In light of the above decision, in the present case also it is clear
that the deceased in her dying declaration clearly alleged that all the
accused/appellants tortured her and for this reason she committed
suicide. However, looking to the nature of allegations against the
accused/appellants, it cannot be said that the prosecution has proved
the essential ingredients of Section 107 of IPC which constitutes the
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offence u/s 306 of IPC. Accordingly, this Court is of the opinion that in
the given facts and circumstances of the case and the evidence
adduced by the prosecution, no offence under Section 306 of IPC is
made out against the accused/appellants. However, so far as offence
u/s 498A of IPC is concerned, looking to the statements of mother and
father of the deceased, their conviction under this section cannot be
faulted with.
17. As regards the sentence u/s 498A of IPC, considering the facts
and circumstances of the case, the fact that the incident took place in
2006 and these appeals are pending since 2007; the age of the
appellants, the nature of allegations, the fact that they were on bail
during pendency of these appeals and did not misuse the liberty,
appellant Dulichand remained in jail for about one year and appellants
Ku. Abha Jain and Smt. Bharti remained in jail for 67 days, this Court is
of the opinion that ends of justice would be served if they are
sentenced to the period already undergone by them while keeping the
fine imposed on them with default sentence by trial Court intact.
18. In the result, the appeals are allowed in part. While acquitting the
accused/appellants of the charge u/s 306 of IPC, their conviction under
Section 498A of IPC is hereby maintained and the jail sentence
awarded thereunder by learned trial Court is reduced to the period
already undergone by them. However, the fine imposed on them with
default stipulation by trial Court shall remain intact. The impugned
judgment stands modified to the above extent.
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The appellants are reported to be on bail. However, keeping in
view the provisions of Section 481 of BNSS, 2023, each of the
accused/appellants is also directed to furnish a personal bond for a
sum of Rs.25,000/- with one surety in the like amount before the Court
concerned which shall be effective for a period of six months alongwith
an undertaking that in the event of filing of special leave petition
against the instant judgment or for grant of leave, the aforesaid
appellants on receipt of notice thereon shall appear before the Hon’ble
Supreme Court.
The record of the trial Court along with copy of this judgment
be sent back immediately to the trial Court concerned for compliance
and necessary action.
Sd/
MOHD by
Digitally signed
MOHD
AKHTAR KHAN
(Rajani Dubey)
AKHTAR Date:
2025.08.12
KHAN 16:16:17
+0530 Judge
Khan