Himachal Pradesh High Court
State Of Himachal Pradesh vs Mange Ram on 15 March, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 412 of 2011 and Cr. Appeal No. 228 of 2011 .
Reserved on: 9.3.2018 Decided on: 15th March, 2018.
1. Cr. Appeal No. 412 of 2011 State of Himachal Pradesh ...Appellant.
Versus
Mange Ram ...Respondent.
For the Appellant : Mr. Vinod Thakur, Addl. Advocate General, with Mr.J.S. Guleria and Mr. Bhupinder Thakur, Dy. Advocate General. For the respondent: Mr. Peeyush Verma and Mr. Lalit K. Sehgal, Advocates.
2. Cr. Appeal No. 228 of 2011 Mange Ram ....Appellant.
Versus
State of Himachal Pradesh ...Respondent.
For the appellant: Mr. Peeyush Verma and Mr. Lalit K. Sehgal,
Advocates.
For the respondent: Mr. Vinod Thakur, Addl. Advocate
General, with Mr.J.S. Guleria and Mr. Bhupinder Thakur, Dy. Advocate General. __________________________________________________________________ Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1 Yes _________________________________________________________ Justice Tarlok Singh Chauhan, Judge Since both these appeals arise out of the common judgment, therefore, the same were taken up together for consideration and are being disposed of by a common judgment.1
Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 2
2. Cr. Appeal No. 412 of 2011 has been filed by the State and Cr. Appeal No. 228 of 2011 has been filed by the .
accused.
3. The State has come up in appeal against the judgment/order dated 8.6.2011/15.6.2011 passed by learned Sessions Judge, Kangra at Dharamshala, H.P. in Sessions Case No. 84-B/VII-2010 whereby the accused has been acquitted of the offence punishable under Section 306 IPC, whereas the accused has assailed the order of conviction and sentence whereby he was found guilty of having committed an offence punishable under Section 498-A IPC and convicted and sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs.20,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of six months.
4. The case of the prosecution is that on 23.9.2010 Smt. Sumna Devi committed suicide because of the cruelty meted out to her by the accused who intentionally and voluntarily abetted the commission of suicide. The charges were framed against the accused person under Sections 498-A and 306 IPC to which he pleaded not guilty.
5. The prosecution examined 11 witnesses. The statement of the accused was recorded under Section 313 ::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 3 Cr.P.C. to which he pleaded not guilty and claimed trial.
Thereafter, the accused examined one witness in defence.
.
6. The learned trial Court after recording the evidence, while acquitting the accused of the offence punishable under Section 306 IPC, proceeded to convict him for the offence punishable under Section 498-A IPC in the manner as stated above.
7. Now, in order to adjudicate upon the correctness of the findings recorded by the learned Courts below, it would be necessary to refer to the statements of some of the witnesses.
8. PW-1 Brahmu Ram stated that deceased Sumna was his daughter and was married to accused in the year 1992 and out of the wedlock, two children were born. He further stated that after three years of marriage, the accused started harassing his daughter with a view to coerce her to bring more dowry. The matter was even reported to the Panchayat, however, the same was compromised. He was declared hostile and in cross-examination by the learned Public Prosecutor, he stated that whenever the deceased visited his house she told him that accused used to maltreat her for no fault of her and also told him personally that accused did not provide any other basic necessities. He stated that he advised Mange Ram accused many times not ::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 4 to treat his daughter with cruelty and every time the accused felt sorry but did not improve his behavior towards .
the deceased. He stated that on 22.9.2010 at 11.30 p.m. Amit Kumar, son of his deceased daughter informed telephonically that deceased was sick. He stated that it was not possible for him to attend his daughter during night and thereafter he reached the house of the accused on 23.9.2010 at about 10.00 a.m. alongwith his wife. Pradhan Balbir Singh and few other persons found the dead body of his daughter there. He further stated that Kaka Ram father of accused told them that Sumna had died during the previous night at about 0.30 or 0.45 a.m. due to consumption of poison. He stated that she was not taken to any hospital by accused nor any medical treatment was provided to her. He stated that Pradhan Balbir Singh then informed the Police Station, Baijnath and the police came there by noon and recorded his statement Ext.PW-1/A. He stated that his daughter committed suicide due to cruelty committed by accused and the fact that accused had beaten her without any reason and did not provide necessities of life to the deceased.
9. On being cross-examined by the defence counsel, the witness stated that the sons of deceased Sumna were aged about 17 and 16 years respectively and ::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 5 were visiting his house frequently. He admitted that the grand-father of Amit was also residing in the matrimonial .
house of Sumna. He admitted that accused used to work as a labourer and also worked as a drummer. He admitted that his daughter alongwith children used to reside for 2-3 days in his house and further that the accused as well as deceased attended the marriages of his other children at his house. He admitted that he was not in a position to tell exactly the date, time and year when the deceased was maltreated or beaten by the accused. He admitted that the accused and his daughter had given gifts to his other son and daughter according to their financial status. He admitted that the accused never demanded anything from him. He also admitted that he never reported against the accused regarding any maltreatment or beatings given by him during the life time of his daughter. He admitted that during the year 2009 his daughter had left the matrimonial house and remained absent for 10-15 days and further admitted that when the accused had disclosed this fact to him, he was shocked. He further admitted that when the relatives came to know about the missing of his daughter, even his deceased daughter also felt ashamed.
10. PW-2 is the mother of the deceased, who stated that deceased Sumna was her daughter and was married to ::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 6 accused in the year 1992 and two sons namely Sunny and Amit were born from the wedlock. She stated that after three .
years of the marriage, the accused had maltreated her daughter and demanded more dowry as well as cash from the deceased and for this reason the accused had tortured the deceased. She stated that her daughter used to visit her parental house and used to disclose the above stated facts to her and her husband. She further stated that many times they asked the accused to mend his behaviour but all in vain. She stated that she also filed a complaint with the Gram Panchayat Pradhan of Rajot, the copy of which is mark PX. She stated that on 22.9.2010 during midnight telephonic information qua sickness of her daughter was received through Amit Kumar son of her deceased daughter.
On the next morning, she alongwith her husband and Pradhan of Gram Panchayat went to the matrimonial house of Sumna and found her dead in the house. She stated that Kaka Ram told them that deceased had died during previous night due to consumption of poison. She stated that her daughter committed suicide due to maltreatment given by accused. She denied the suggestion that deceased did not disclose about the demand of dowry, cash and torture. She denied the suggestion that her daughter's relationship remained cordial with the accused till her death. She denied ::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 7 the suggestion that her daughter had committed suicide because of shame. She also denied the suggestion that being .
mother of deceased, she was deposing falsely against the accused.
11. PW-3 Pawna Devi stated that Sumna was her younger sister and was married to accused. She stated that deceased telephonically used to disclose to her that her husband used to maltreat her and did not provide necessities of life. She further stated that on 21.9.2010 at 4.00 p.m. her deceased sister telephonically disclosed that her husband had beaten her for no fault and even did not provide food. She stated that deceased further informed that even she was kicked when she had slept on the cot. She further stated that she advised the deceased to go to parental house or to the Police to inform the matter. She stated that on 23.9.2010 morning her father informed her telephonically that Sumna has committed suicide in her matrimonial house. She stated that in the afternoon, she reached the house of deceased Sumna and found her dead.
In cross-examination, she stated that she did not know that deceased remained absent from her matrimonial house for 10-15 days. She denied the suggestion that accused did not beat the deceased at any point of time. She denied the suggestion that accused used to provide the necessities of ::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 8 life to the deceased. She denied the suggestion that deceased had committed suicide due to shame in the .
society. She denied the suggestion that because she was sister of deceased, she was deposing falsely in the Court against the accused.
12. PW-4 Lok Ram stated that he was Pradhan of Gram Panchayat, Rajot and Mange Ram was known to him.
He stated that deceased Sumna was the wife of the accused.
He stated that on 23.9.2010 at 6.30 a.m. Mange Ram and one Panch Ram came to his house and informed that Sumna Devi had died due to consumption of poison. He stated that he inquired from the accused as to whether the police and parents of deceased had been informed or not upon which the accused told that he had already informed the parents of Sumna. He further stated that at about
10. a.m. on 23.9.2010 he also went to the house of the accused and found the dead body of Sumna lying there. He stated that in the meanwhile the parents of the deceased alongwith Pradhan Dalbir Singh appeared and after a while the police also reached there. He stated that the statement of father of deceased was recorded and inquest of the dead body was conducted. He stated that inquest report Ex.PW-4/A was signed by him. He stated that dead body was sent for postmortem and the house of the accused was ::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 9 searched, but no poison was found therein. He further stated that before the death of Sumna, neither she nor any .
person from her parent's side had made any complaint to him about the maltreatment of deceased by the accused.
The witness was declared hostile by the prosecution.
13. In cross-examination by the Public Prosecutor, he denied the suggestion that complaint mark PX was filed in the year 1996 before him by the mother of deceased. He also denied the suggestion that compromise was executed between the deceased and the accused. He denied the suggestion that three months prior to suicide the deceased had orally complained about the maltreatment by the accused. He denied the suggestion that he had effected the compromise between the deceased and the accused. He denied the suggestion that as the accused Mange Ram was known to him, he had resiled from his previous statement to secure acquittal of the accused. He admitted that about 1 ½ years prior to the death of deceased, she had left her matrimonial house once or twice. He admitted that when this fact came to the knowledge of relations, the deceased felt ashamed for her act.
14. The statements of other witnesses examined are formal and, therefore, need not be discussed in detail and a brief reference to the same shall suffice.
::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 1015. PW-5 HHC Bhupinder Kumar was a part of the police party, who proved on record the statement of .
complainant Bharmu Ram Ex.PW-1/A made under Section 154 Cr.P.C.
16. PW-6 HC Punni Chand, proved on record FIR Ex. PW-6/A and the note appended by him Ext.PW-6/B, the extract of Malkhana register is Ex.PW-6/C and copy of R.C. is Ex. PW-6/D.
17. PW-7 HHC Amarjit Singh has proved the handing over of the sealed parcel of viscera to him by MHC Police Station, Baijnath vide RC No. 130/21.
18. PW-8 Constable Manoj Kumar has proved the original daily diary rapat No. 22 dated 23.9.2010 Ex.PW-8/A.
19. PW-9 Sanjeev Sood, Secretary, Gram Panchayat, Rajot has proved the copy of Pariwar Register qua the family of Kaka Ram Ex. PW-9/A.
20. PW-10 ASI Om Parkash is the Investigating Officer, who proved on record the details of the investigation conducted by him and also the documents that were taken into possession during the course of inquiry.
21. PW-11 Dr. Raj Kumar, has proved on record the cause of death of the deceased to be attributable due to ::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 11 organophorus poisoning, though initially it was stated to be due to cardio-respiratory arrest.
.
22. As observed earlier, the accused led evidence in this case by examining DW-1 Sunny Kumar, who is none other than the child of the deceased born from the loins of the accused. He stated that his father, grand-father and mother used to live jointly and his father had looked after his mother properly and provided all the necessities of life to them. He never maltreated or harassed his mother in any way. He further stated that his mother had left matrimonial house and remained outside for 15-16 days and on her return, their relatives had questioned her as to why she had left the matrimonial house, upon which she became upset and remained silent and thereafter she embarrassed death.
He further stated that his maternal grand-father and mother never provided any assistance to him during the life time of his mother. In cross-examination, the witness denied the suggestion that he had been deposing falsely at the instance of his grand-father to save his father from punishment.
This in entirety is the evidence available on record.
23. On the basis of the aforesaid evidence, the learned trial Court acquitted the accused for the offence punishable under Section 306 IPC by observing that none of ::: Downloaded on - 16/03/2018 23:25:28 :::HCHP 12 the witnesses had stated in a positive, cogent and reliable manner that the accused had actually abetted the deceased .
immediately prior to the commission of suicide by the deceased. Even though, this finding is vehemently challenged by the State. However, we find no reason to interfere with the same.
24. Section 306 of IPC, reads thus:
"306. 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 extend to ten years, and shall also be r liable to fine."
25. Section 107 of IPC reads thus:
"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.
Explanation 1.--A person who, by willful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. 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."
::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 1326. A plain reading of the aforesaid provisions reveals that to justify the framing of charges under Section .
306 IPC, the following ingredients must be established:
(i) death due to suicide ;
(ii) accused abets the commission of suicide.
27. Word 'suicide' is not defined in Indian Penal Code. However, meaning and import thereof was considered by the Hon'ble Supreme Court in Gangula Mohan Reddy vs. State of Andhra Pradesh (2010) 1 SCC 750 wherein the Hon'ble Supreme Court observed that word 'suicide' is not defined in the Indian Penal Code. However, its meaning and import is well known. The word 'sui' means 'self' and 'cide' means 'killing'. In other words, the act must have been so intended to push the deceased in a situation that the deceased is driven to commit suicide. The Hon'ble Supreme Court in para 17 held as under:
"17. 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 this act must have been intended to push the deceased into such a position that he committed suicide."::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 14
28. What is abetment, was considered by the Hon'ble Supreme Court in S.S. Chheena vs. Vijay Kumar .
Mahajan and another (2010) 12 SCC 190 and elaborated the meaning of 'abetment' in para 25 of the judgment as under:
"25. 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 r 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.
26. 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".
29. What is instigation, was considered by the Hon'ble Supreme Court in Ramesh Kumar vs. State of Chattisgarh, (2001) 9 SCC 618, and defined the meaning of instigation in para 20 of its report, which reads thus:
"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 ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 15 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."
30. In Sanju alias Sanjay Singh Sengar vs. State of M.P. (2002) 5 SCC 371, the Hon'ble Supreme Court gave interpretation to the word 'abetment' and 'instigation' in the following manner:
r "6. Section 197 I.P.C defines abetment to mean that a person abets the doing of a thing if he firstly, 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.
9. In Mahendra Singh v. State of M.P., 1995 Supp.(3) SCC 731, the appellant was charged for an offence under Section 306 I.P.C basically based upon the dying declaration of the deceased, which reads as under: (SCC p.731, para1) "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."
10. This Court, considering the definition of 'abetment' under Section 107 I.P.C., found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 16 abetment are attracted on the statement of the deceased.
11. In Ramesh Kumar V. State of Chhattisgarh (2001) .
9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section 306 I.P.C. 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: (SCC p.620) "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 r petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences 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 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 ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 17 some drastic or unadvisable action or to stimulate or incite. Presence of mens 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 had 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 pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is r 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."
31. In Bhaskar Lal Sharma and another vs. Monica (2009) 10 SCC 604, the Hon'ble Supreme Court held that in order to prove offence under Section 498-A of IPC, the complainant must make allegation of harassment to the extent so as to coerce her to meet any unlawful demand of dowry, or any willful conduct on the part of accused of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. It is apt to reproduce the relevant observations as contained in paras 27 to 30 of the judgment and the same read thus:
::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 18"27. The Parliament by Act No. 46 of 1983 with a view to combat the menace of dowry deaths and harassment to woman at the hands of her husband or his relatives introduced Section .
498A and Section 304B in the IPC. Section 498A reads as under:
"498-A. Husband or relative of husband or a woman subjecting her to cruelty.--
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine."
28. The `Explanation' appended thereto defines cruelty to mean:
r (i) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or
(ii) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
29. Thus, the essential ingredients of Section 498-A are:
1. A woman must be married.
2. She must be subjected to cruelty.
3. Cruelty must be of the nature of:
(i) any willful conduct as was likely to drive such woman:
a. to commit suicide.::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 19
b. cause grave injury or danger to her life, limb, either mental or physical ;
.
(ii) harassment of such woman, (1) with a view to coerce her to meet unlawful demand for property or valuable security, (2) or on account of failure of such woman or by any of her relation to meet the unlawful demand,
(iii) woman was subjected to such cruelty by:
(1) husband of that woman, or (2) any relative of the husband.
For constitution an offence under Section 498A of the IPC, therefore, the ingredients thereof must be held to be existing.
30. For proving the offence under Section 498A of the IPC, the complainant must make allegation of harassment to the extent so as to coerce her to meet any unlawful demand of dowry, or any willful conduct on the part of the accused of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. We do not find any such allegation has been made or otherwise can be found out so as to enable us to arrive at an opinion that the appellants prima facie have committed such an offence. The complaint petition must also be read with several other documents which form part of the complaint petition. The children from the first wife of Vikas were with Monica. Vikas affirmed an affidavit so as to enable Monica to apply for their passports. Vikas, therefore, wanted to have children with them."
32. In Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) (2009) 16 SCC 605, the Hon'ble Supreme Court observed that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 20 person has his own idea of self-esteem and self-respect.
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. It is apt to reproduce paras 16 and 17 which read thus:
"Speaking for the three-Judge Bench, in Ramesh Kumar case,, R.C. Lahoti, J. (as His Lordship then was) said that 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 r consequence must be (2001) 9 SCC 618 capable of being spelt out. 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 to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.
17. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action:
provoke to action or reaction" (See: Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts" (See: Oxford Advanced Learner's Dictionary - 7th Edition)."
33. In S.S. Cheena vs. Vijay Kumar Mahajan (2010) 12 SCC 190, the Hon'ble Supreme Court reiterated the principles of abetment of suicide as under:
"25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 21 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.
26. 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.
34. In M. Mohan vs. State represented by the Deputy Superintendent of Police, (2011) 3 SCC 626, the Hon'ble Supreme Court held that abetment involves mental process of instigating or intentionally aiding a person in doing of a thing and there should be clear mens rea to commit offence under Section 306 of IPC. It was observed in paras 44 to 49 of the judgment as under:
"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 cannot 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 ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 22 been intended to push the deceased into such a position that he/she committed suicide.
46. In V.P. Shrivastava v. Indian Explosives Limited .
and Others (2010) 10 SCC 361, this court has held that when prima facie no case is made out against the accused, then the High Court ought to have exercised the jurisdiction under section 482 of the Cr.P.C. and quashed the complaint.
47. In a recent judgment of this Court in the case of Madan Mohan Singh v. State of Gujarat and Anr. (2010 ) 8 SCC 628, this Court quashed the conviction under Section 306 IPC on the ground that the allegations were irrelevant and baseless and observed that the High Court was in error in not quashing the proceedings.
48. In the instant case, what to talk of instances of instigation, there are even no allegations against the appellants. There is also no proximate link between the incident of 14.1.2005 when the deceased was denied permission to use the Qualis car with the factum of suicide which had taken place on 18.1.2005. Undoubtedly, the deceased had died because of hanging. The deceased was undoubtedly hyper- sensitive to ordinary petulance, discord and differences which happen in our day-to-day life. In a joint family, instances of this kind are not very uncommon. Human sensitivity of each individual differs from person to person. Each individual has his own idea of self-esteem and self-respect. Different people behave differently in the same situation. It is unfortunate that such an episode of suicide had taken place in the family. But the question remains to be answered is whether the appellants can be connected with that unfortunate incident in any manner?
49. On a careful perusal of the entire material on record and the law, which has been declared by this Court, we can safely arrive at the conclusion that the appellants are not even remotely connected with the offence under Section 306 of the I.P.C.. It may be relevant to mention that criminal proceedings against husband of the deceased Anandraj (A-1) and Easwari (A-3) are pending adjudication."::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 23
35. In Praveen Pradhan vs. State of Uttaranchal and another (2012) 9 SCC 734, it is held by the Hon'ble .
Supreme Court that offence of abetment by instigation depends upon intention of person who abets and not upon act which is done by person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. A reasonable certainty to incite the consequences must be capable of being spelt out.
A continued course of conduct which creates such circumstances that deceased was left with no other option but to commit suicide would satisfy the ingredients of instigation to commit suicide or abetment of suicide. It is apt to reproduce paras 16 to 18 of the judgment as under:
"16. This Court in Ramesh Kumar v. State of Chhattisgarh, while dealing with a similar situation observed that what constitutes 'instigation' must necessarily and specifically be suggestive of the consequences. A reasonable certainty to incite the consequences must be capable of being spelt out.
More so, a continued course of conduct is to create such circumstances that the deceased was left with no other option but to commit suicide.
17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh, AIR 1991 SC 1532; Surender v. State of Hayana, (2006) 12 SCC 375; Kishori Lal v. State of M.P., AIR 2007 SC 2457; and Sonti Rama Krishna v. Sonti Shanti Sree, (2009) 1 SCC
554.) ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 24
18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straight-jacket formula can be laid down to find out as to whether in a particular case there has been .
instigation which force the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 Cr.P.C.".
36. In Indrajit Sureshprasad Bind and others vs. State of Gujarat (2013) 14 SCC 678, the Hon'ble Supreme Court held that in order to establish the offence under Section 498-A of IPC, the prosecution has to prove beyond reasonable doubt that husband or his relative has subjected the victim to cruelty as defined either in clause (a) or clause
(b) of Section 498 of IPC and it was held as under:
"9. To establish the offence of dowry death under Section 304B, IPC the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the deceased to cruelty or harassment in connection with demand of dowry soon before her death. Similarly, to establish the offence under Section 498A, IPC the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the victim to cruelty as defined in Clauses (a) and (b) of the Explanation to Section 498A, IPC. In the present case, the prosecution has not been able to prove beyond reasonable doubt that the appellants have subjected the deceased to any cruelty or harassment. Further, we have noticed from Ext. 31 written by PW 3 to the deceased on 25-04-2004 that after talking to the deceased on telephone, he was satisfied that she was living happily and was not being misbehaved with. No other material having come in evidence to establish that the appellants instigated the deceased ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 25 to commit suicide, it is difficult for the Court to hold that the appellants had in any way abetted the suicide by the deceased on 18-05-2004."
.
37. Reiterating all the aforesaid principles, the Hon'ble Supreme Court in Gurcharan Singh vs. State of Punjab (2017) 1 SCC 433 observed as under:
"21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the r accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide."
38. In view of the aforesaid exposition of law, this Court has considered whether the prosecution has proved that the accused had any mens rea to commit the offence.
Whether the act of the accused left her with no option, but to commit suicide.
39. From the evidence of the prosecution witnesses, as noticed above, the prosecution has miserably failed to even remotely prove that there is even any mens rea on the ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 26 part of the accused to commit the offence that apart, save and except an un-exhibited complaint mark PB. There is .
nothing on record to show that either the deceased or her parents or any other relative had ever lodged any complaint qua the harassment, cruelty etc. What is more intriguing is that even this complaint is alleged to be dated 30.4.1996, whereas the deceased died more than 14 years later on 22/23.9.2010.
40. The instant is not a case where it can be said that the accused by his act and conduct or by a continued course of conduct created such circumstance that the deceased was left with no other option except to commit suicide in which case instigation may have been inferred.
41. As held by the Hon'ble Supreme Court in M. Mohan vs. State Represented by the Deputy Superintendent of Police (2011) 3 SCC 626 there must be allegations to the effect that the accused had either instigated the deceased in somewhere to commit suicide or aid, engage with someone in any conspiracy to do so or that the accused somewhere aid any act or illegal omission to cause the said suicide. If the transfer of the deceased was made by the superior officer i.e. the petitioner herein, when it came to his notice that the deceased had been teasing a girl, it will be preposterous to term the same as abetment of ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 27 suicide as it would become almost impossible for superior officer to discharge the duties as senior employees. There is .
no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the petitioner. There is no proximity either.
42. It needs no reiteration that the Courts have to be extremely careful as the main person is not available for cross-examination by the petitioner/ accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to convict the accused. In view of the aforesaid discussion, the accused cannot be held responsible for abetment of suicide by the deceased because ingredients of Section 107 IPC are missing.
43 Consequently, we find no reason to interfere with the findings of the learned Court below insofar as it relates to the acquittal of the accused under Section 306 IPC.
44. Now, adverting to the offence punishable under Section 498-A IPC, we really do not find any material on record which may even remotely connected the accused with the commission of the crime. It would be noticed that the learned Sessions Judge has virtually recorded no clear, ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 28 cogent or convincing reasons for convicting the accused and has convicted him solely only on the ground that the .
deceased had personally narrated the incident of overt act committed upon her to PW-1 to PW-3 and that the said Act has been proved beyond reasonable doubt. How the same has been proved on record, is anybody's guess.
45. We have already reproduced in detail not only the statements of PW-1 to PW-3, but that of the neighbour PW-4 and are unable to find any material on the basis of which, it can be held that offence under Section 498-A has been proved against the accused. On the other hand, in case the statements are closely scrutinized, then it would be evidently clear that no offence punishable under Section 498-A has been committed by the accused.
46. At this stage, it would be relevant to make note of the testimony of PW-1, who is none than the father of the deceased when he actually admits in his cross-examination that the deceased had been visiting his house frequently alongwith her children and he was not in a position to tell about the exact date, time and year of the harassment/beatings given by the accused. However, what is more important is his admission made by him to the effect that the accused neither demanded anything from him and his further admission that he had not reported against the ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 29 accused about the maltreatment during the life time of his daughter, rather he has candidly admitted that the .
deceased, his daughter, in the year 2009 had left the matrimonial home and the same had caused embarrassed to him and his family and even the deceased felt shame.
47. Now, in case the cross-examination of PW-2 is adverted to, then it would be noticed that she has candidly admitted that the family of the deceased alongwith accused had been regularly visiting their home and however further admitted that the deceased spent her maximum time in the matrimonial home. She further candidly admits that she herself had not provided any dowry articles or cash to the accused personally.
48. Likewise, in case the testimony of the sister of deceased PW-3 is adverted to, it would be noticed that she too has candidly admitted that after the marriage of her sister with the accused, they attended the marriage and social functions being organized in her parental house. She too admitted that when the deceased had gone missing from matrimonial home for 10-15 days, not only the family but even the deceased felt ashamed of her conduct.
49. Even the testimony of DW-1, who is none other than the son of the deceased, has not been properly appreciated by the learned Court below and has been ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 30 discarded on the ground that DW-1 was minor aged about 17 years, whereas PW-1 to PW-3 and other link evidence of .
PW-4 were depositions of the persons who were major. The marginal minority of DW-1 in itself could not have been a ground to discard his testimony, rather the sum and substance of the testimony had to be considered, more particularly, when he happened to be the son of the deceased.
50. It shall be apposite to refer to para 24 of the impugned judgment, the relevant portion whereof reads thus:
"24. The another submission of learned Advocate appeared on behalf of the accused person that there was no over act on the part of accused and on this ground the accused is liable to be acquitted under Section 498-A IPC is also rejected being devoid of any force for the reasons hereinafter mentioned. In the present case the deceased had personally narrated the incident of over act committed upon her to PWs 1 to 3 and Court is of the view that over act on the part of accused is proved beyond reasonable doubt and it is proved on record that accused also used to beat the deceased in matrimonial house and also used to demand dowry and has committed mental cruelty upon the deceased which was non-tolerable for the deceased and she committed suicide by way of consumption of poison."
51. We have already referred to in detail the testimony of DW-1 and therefore, need not reiterate the same save and except to reiterate that this witness has ::: Downloaded on - 16/03/2018 23:25:29 :::HCHP 31 categorically stated that his father (accused herein) had been properly looking after his mother and had provided all .
necessities of life to her as well as to the children. He had never maltreated or harassed his mother.
52. Thus, on the basis of the aforesaid observations, we have no hesitation to conclude that the findings recorded by the learned Court below while convicting the accused for offence punishable under Section 498-A IPC are totally perverse and, therefore, cannot withstand judicial scrutiny and accordingly set-aside.
53. The result of the aforesaid discussion is that Criminal Appeal No.412 of 2011 preferred by the State is dismissed and while Criminal Appeal No. 228 of 2011 preferred by the accused is allowed and the accused is honourably acquitted of the aforesaid offence i.e. under Section 498-A IPC.
(Tarlok Singh Chauhan),
Judge
15th March, 2018, (Chander Bhusan Barowalia)
(GR) Judge
::: Downloaded on - 16/03/2018 23:25:29 :::HCHP