Criminal Appeal No.268 of 2001

20th February, 2003

Petitioner Counsel: Shri. A. C. DHARMADHIKARI, Ms. U.T. UDESHI
Respondent Counsel: Shri. D. B. PATEL

Cases Cited:
Mahendra Singh Vs. State of Madhya Pradesh, 1996 CRI.L.J. 894 [Para 10]
Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, 2002 (I) DMC 773 (SC) [Para 11]
Swamy Prahaladdas Vs. State of M.P., 1995 Suppl. (3) SCC 438 [Para 11]
Mahendra Singh Vs. State of M.P., 1995 Suppl. (3) SCC 731 [Para 11]
Ramesh Kumar Vs. State of Chhattisgarh, VII (2001) SLT 356 : IV (2001) CCR 177 (SC) : (2001) 9 SCC 618 [Para 11]

JUDGMENT

JUDGMENT :- Heard Shri. Dharmadhikari, Advocate for the appellant and Shri. Patel, Additional Public Prosecutor for the respondent.

2. This is an appeal which seeks to quash and set aside the judgment and order dated 20.9.2001 passed by the Joint District Judge and the Additional Sessions Judge, Nagpur, in Sessions Trial No.131 of 1994, by which the trial Court has convicted the appellant for the offences punishable under Sections 498-A and 306 of the Indian Penal Code. For the offence under Section 498-A of the I.P.C., the appellant has been sentenced to suffer R.I. for one year and to pay a fine of Rs.1,000/-, in default of payment of fine, to suffer further R.I. for a period of three months. For the offence under Section 306 of the I.P.C., the accused has been sentenced to suffer R.I. for a period of six years and to pay a fine of Rs.3,000/-, in default of payment of fine, to suffer further R.I. for a period of six months.

3. The brief facts of the prosecution case can be summarized as follows:

(a) That the deceased Hemlata also known as Tara was the elder daughter of P.W.1 - Vitthalrao Udhobaji Hanwate. She was married with the present appellant (hereinafter referred to as an accused) on 20.5.1990. After her marriage, the deceased Hemlata went to reside at the house of the accused at village Kobali, Tahsil-Kalmeshwar, District- Nagpur.

(b) About one to one and half months after the marriage, the deceased Hemlata came to the house of his father for the festival of Akhadi. At that time she asked her father P.W.1-Vitthalrao as to whether he had agreed to give a TV Set, a Fridge, one Luna and one gold chain in the marriage. Her father Vitthalrao told her that he had not agreed to give such articles before the marriage. The deceased Hemlata then disclosed to him that the accused had started ill-treating her on account of not giving all these articles. After the making of such disclosure, the accused had come to the house of P.W.1 Vitthalrao and when he was taking the deceased Hemlata back, P.W.1 - Vitthalrao told him that he had never agreed to give such articles at the time of marriage. The accused and Hemlata then returned back to their house at village Kobali.

(c) That in the first week of August 1990, the accused along with his parents and deceased Hemlata shifted their residence to Nagpur and started residing in a rented house owned by Bhimrao Ingole, situated at Nehru Nagar at Nagpur.

(d) That on 28.8.1990, P.W.1 - Vitthalrao was informed by his wife that the younger brother of the accused had come to their house and had called her to his house and accordingly his wife had gone there. That there she had met the house owner Bhimrao Ingole, who had told her about a severe quarrel which had taken place between the accused and Hemlata on the night of 27.8.1990 and he had also told her that such quarrels were frequently used to take place between the accused and the deceased Hemlata.

(e) That on 10.9.1990, a meeting took place in the house of co-villager by name Domaji Ingle P.W.3. In this meeting several villagers, who were acting as Panchas, were present. Amongst those villagers, who were present in the meeting were P.W.8 Chirkutrao Manekar and P.W.9 - Gopal Changole. The accused and deceased Hemlata were called there. The accused told the gathering of the villagers that he wanted to give divorce to his wife because once she had poured kerosene on her person and tried to set her on fire and thereby tried to implicate him falsely. The deceased Hemlata, however, denied the story as false and informed the gathering that the accused was always ill-treating her by making unlawful demands of certain articles. She also informed the gathering that on 27.8.1990, the accused had returned back home after consuming liquor and had asked her to sign on a paper but when she had refused to sign, the accused had poured kerosene on her person but she was saved only because she raised hue and cry. The persons present in the meeting asked the accused to assure them that he will treat the deceased Hemlata well but the accused refused and went back along with his parents, leaving Hemlata there. P.W.1 Vitthalrao then brought the deceased Hemlata back to his house and Hemlata started residing there.

(f) That since the accused did not return to take back his daughter, P.W.1 - Vitthalrao went to the Advocate Shri. P. N. Tandulkar and got a legal notice dated 29.11.1990 (article A) issued to the accused.

(g) In the month of January 1991, the deceased - Hemlata received a notice from the Court asking her to remain present and file a reply in a petition filed by the accused for the restitution of conjugal rights. The matter was contested by the deceased Hemlata. However, after about 2-3 years, a compromise was made between the parties and the documents pertaining to this compromise were those which were produced as Articles B, C and D in the trial.

(h) After such compromise was entered into on 3.10.1992, the accused took Hemlata back to his quarter at Vayusena Nagar and treated her well for about 5-6 months. However, he again started harassing Hemlata and 3-4 days prior to the day on which Hemlata committed suicide, her father P.W.1- Vitthalrao received a letter from Hemlata in which she had stated that her husband was acting against her in violation of the conditions contained in the compromise deed and was attempting to get her signatures on a blank paper. The letter further stated that her presence at Raksha Bandhan should not be expected because her husband was telling her that he would not allow her to go to her parental place. Though this letter does not bear a date, the postal endorsement on this letter indicates that it was posted on 2.8.1993 and was received on 6.8.1993.

(i) On 10.8.1993, the deceased Hemlata committed suicide by setting herself on fire.

(j) P.W.1 - Vitthalrao came to know about his daughter's death by burn injuries on 10.8.1993 and then he directly went to Mayo Hospital and saw the dead body of Hemlata. It appears that in the meanwhile at about 2.55 PM, the Officer of the Airforce by name B. N. Yadav from Vayusena Nagar had telephonically informed the police station about the death of Hemlata and in pursuance of such information, police visited the spot of offence, made an enquiry and registered an accidental death case bearing No.60 of 1993 under Section 174 of the Criminal Procedure Code. In the course of the investigation, in the accidental death case, the mother and brother of the deceased were interrogated and based upon their statement and on other information gathered during the investigation, on 13.8.1993 the F.I.R. was lodged by Police Inspector Ghorade and a crime for the alleged offences under Sections 498-A, 306 and 304-B of the Indian Penal Code came to be registered. The investigation proceeded and ended with the filing of the charge sheet. The matter was then committed to the Court of Sessions for trial.

4. At the trial, the prosecution examined as many as 15 witnesses and upon the appreciation of the occular and documentary evidence produced, the Court was pleased to convict and sentence the accused as aforesaid. It is against this that the present appeal has been filed.

5. The contentions which were raised on behalf of the appellant - accused can be summarized as follows:

(a) That the conviction under Section 306 of I.P.C. was bad in law because there was no evidence to show that the accused had abetted the commission of suicide within the meaning of Section 107 of the I.P.C.

(b) That the evidence on record also did not indicate that there was any cruelty within the meaning of Section 498-A of the I.P.C. In this connection, it was sought to be argued that the advocate's notice (article A) and the documents pertaining to compromise (article B, C and D) were not proved and, therefore, could not have been taken into account.

(c) It is contended that the evidence relating to alleged subjecting of the deceased to cruelty by the accused was vague and no details or particulars were given by the prosecution about the alleged harassment.

6. The learned Additional Public Prosecutor supported the impugned judgment of the trial Court by stating that the evidence clearly showed that there was demand for articles and that the making of such demand and the constant quarrels which the husband used to foist upon his wife was the cause of ending her life by committing suicide. According to him, this was sufficient for constituting an offence under Section 306 of the I.P.C. He stated that the evidence pertaining to cruelty as required for conviction under Section 304-B is manifest in the record and the evidence relating to the same was sufficient.

7. I have noted that though there is an allegation pertaining to the demand of dowry, the trial Court acquitted the accused of all the charges under Section 304-B of I.P.C. The State has chosen not to file an appeal against such acquittal and, therefore, I do not wish to deal with the question whether the acquittal under Section 304-B was proper in this appeal.

8. Insofar as the conviction under Section 306 of the I.P.C. is concerned, the evidence of P.W.1 Vitthalrao, the father of the deceased indicates that the demand for certain articles like a TV Set, a fridge, one Luna and gold chain were made in the year 1990 and that this had led to strife between the husband and wife which resulted to Hemlata coming to stay with her father. However, this incident is very old. Much water had flowed under the bridge thereafter. Admittedly, the husband filed a petition for the restitution of conjugal rights. The said petition was filed sometime in the year 1991 and remained pending for a period of 1 - 1 1/2 years when it ultimately came to be compromised on 3.10.1992. It is also not in dispute that after this compromise was effected, Hemlata decided to go back to her husband and evidence of her father P.W.1 Vitthalrao indicates that thereafter she infact resided with her husband for 10 - 11 months and during this period did not come back to her parental house. As to what happened during these 10 - 11 months can only be gathered by a letter dated 2.8.1993. This letter seems to have been written just a few days prior to the death of the deceased - Hemlata. She has clearly stated in the letter that the accused was acting in violation of the compromise. A glance at the compromise indicates that the accused had agreed not to humiliate the deceased Hemlata or her relatives, not to ill-treat her, not to raise charges of loose moral character against her, not to force or compel her to sign on blank papers, to return her gold ornaments etc. The very fact that just prior to her death, Hemlata spoke about the violation of compromise indicates that the accused was continuing to harass her.

9. The question, therefore, arises as to whether the mere harassment by husband can be said to be an act which is tantamount to abetment of suicide? In this connection, reproduction of Section 107 of I.P.C. would be convenient. The said Section 107 of Indian Penal Code is as under :

107. 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 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.

10. The apex Court has had several occasions to lay down the law relating to the ingredients of the offence of abetment of suicide. In the case of Mahendra Singh Vs. State of Madhya Pradesh, reported in 1996 Cri.L.J. 894, the apex Court, after stating the relevant facts laid down the law as under :

The charge under Section 306 IPC is basically based on the dying declaration of the deceased which when translated reads as follows:

"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."

Learned counsel for the appellant rightly submitted that but for the statement of the deceased there is no other pointed evidence from which it could be inferred that there was any abetment so as to bring the acts of the appellants within Section 306 IPC under which the appellants have been punished. The dying declaration, per se, could not involve the appellants in offence punishable under Section 306 IPC, because it provides for abetment of suicide. Whoever abets the commission of suicide, and if any person commits suicide due to that reason, he shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Abetment has been defined in Section 107 IPC to mean that a person abets the doing of a thing who firstly instigates any person to do a 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. Neither of the ingredients of abetment are attracted on the statement of the deceased. The conviction of the appellants under Section 306 IPC merely on the allegation of harassment to the deceased is not sustainable. The appellants deserve to be acquitted of the charge."

11. Again the apex Court in a more recent judgment, in the case of Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh. reported in I (2002)DMC 773 (SC) observed as follows :

"7. Before we advert further, at this stage we may notice a few decisions of this Court, relevant for the purpose of disposal of this case.

8. In Swamy Prahaladdas Vs. State of M.P. and Anr., 1995 Suppl. (3) SCC 438, the appellant was charged for an offence under Section 306 IPC on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die'. This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.

9. In Mahendra Singh Vs. State of M.P., 1995 Supply. (3) SCC 731, the appellant was charged for an offence under Section 306 IPC basically based upon the dying declaration of the deceased, which reads as under :

"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning."

10. In Ramesh Kumar Vs. State of Chhattisgarh. VII (2001) SLT 356=IV (2001) CCR 177 (SC)= (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section 306 IPC on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said:

"A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonging and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty."

12. Reverting to the facts of the case, both the Courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die". For this, the Courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as Annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die', Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word instigate denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of means rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the deceased has taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998, drived the deceased to commit suicide. Suicide by the deceased on 27th July 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998, would itself clearly point out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the Courts below."

12. From the observations made by the apex Court, it is abundantly clear that mere vague allegations of harassment by themselves would not amount to abetment of the offence of commission of suicide. Something more is required under Section 107 of I.P.C. The harassment should be of a nature which amounts to instigation to any person to commit suicide or a conspiracy accompanied by an act or illegal omission which leads to the commission of suicide or intentional aiding by act or illegal omission to commission of suicide.

13. In my opinion, these requisite ingredients are missing in this case and, therefore, the offence under Section 306 of I.P.C. cannot be said to be made out and the conviction and sentence in this regard are required to be set aside. That brings us to the conviction under Section 498-A of I.P.C.

14. I have already stated that there is sufficient material on record to show that the husband was continuously harassing the deceased and in the past harassed the deceased by making the illegal demands. There are chain of circumstances to indicate that the accused was harassing the deceased - Hemlata. The evidence of P.W.1 - Vitthalrao, the father of the deceased and all other relatives indicate the continuous harassment. The story given by these witnesses corroborates the notice issued by the Advocate in the year 1990 as well as the letter of the deceased sent on 2.8.1993 in which there is a clear mention of the breach of compromise. I am in agreement of the observations made by the trial Court as far as the conviction and sentence under Section 498-A of the I.P.C. The conviction and sentence under Section 498-A of Indian Penal Code will, therefore, have to be retained and confirmed.

15. In the result, the Criminal Appeal succeeds partly. The conviction and sentence under Section 306 of Indian Penal Code is quashed and set aside and the appellant is acquitted of the said charge. Fine, if any, paid as a part of sentence under Section 306 of Indian Penal Code, to be refunded. The conviction and sentence under Section 498-A of Indian Penal Code is confirmed. The appellant will be entitled to set off of any term undergone in accordance with law.

Appeal partly allowed.