Gauhati High Court
Sri Amalesh Talukdar vs The State Of Assam & Anr on 4 November, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
(CRIMINAL APPELLATE JURISDICTION)
Criminal Appeal No.197 of 2015
Amalesh Talukdar ... ... ... Appellant
-Versus-
The State of Assam ... ... ... Respondent.
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH HON'BLE MR. JUSTICE N. CHAUDHURY For the appellant : Mr. Anisul Alam, Advocate.
For the respondent : Mr. K. Konwar,
Addl. Public Prosecutor, Assam.
Date of hearing : 04.11.2016.
Date of Judgment : 04.11.2016.
JUDGMENT & ORDER
(N. Chaudhury, J.)
Appellant Amalesh Talukdar has preferred this appeal
challenging his conviction in Sessions Case No.137/2010 by learned Sessions Judge, Barpeta under Section 302 of the Indian Penal Code. Police registered the case under Section 302 of the Indian Penal Code but after completion of investigation while filing charge-sheet offence under Section 306 of the Indian Penal Code was alleged. After the case Crl. A. 197/2015 Page 1 of 28 was committed to Sessions the learned Sessions Judge framed charge under Section 302 of the Indian Penal Code and ultimately convicted him under the same section of law and sentenced him to suffer rigorous imprisonment for life and to pay a fine of Rs.5000/-, in default to suffer simple imprisonment for four months more by his judgment and order dated 09.06.2015.
2. The prosecution story is that one Himangshu Medhi lodged an ejahar with Barpeta Police Station on 17.08.2010 informing that around 10.00 p.m. on 16.08.2010 accused Amalesh Talukdar set his wife ablaze by pouring kerosene oil on her after assaulting her brutally over a domestic dispute. The victim was the elder sister of the informant. When she raised commotion to save her life, the neighbours recovered her in half burnt state and admitted to Pathsala Civil Hospital by calling one 108 Ambulance service. However, she died in the hospital because of 90% burn injuries. Bhawanipur Outpost of Barpeta Police Station received the ejahar on 17.08.2010 at 8.20 a.m. and registered G.D.Eentry No.312 in regard thereto. The same was thereafter forwarded to Barpeta Police Station for registering the case. This is how Barpeta Police Station Case No.1068/10 was registered under Section 302 of the Indian Penal Code.
3. Police arranged inquest and post mortem examination of the dead body, recorded statements of witnesses and then filed charge sheet on 30.10.2010 vide Charge Sheet No.631/2010 against accused Crl. A. 197/2015 Page 2 of 28 Amalesh Talukdar (the appellant herein) under Section 306 of the Indian Penal Code. The learned Sub-Divisional Judicial Magistrate (M), Bajali committed the case to Sessions on 18.11.2010 and thereupon Sessions Case No.137/2010 was registered. Learned Sessions Judge, Barpeta framed charge against the accused person on 24.03.2014 under Section 302 of the Indian Penal Code. The accused pleaded not guilty on reading over the charge to him and claimed to be tried.
4. In course of trial prosecution examined 11 witnesses and exhibited nine documents. In addition one Court Witness, Mahesh Hazarika, was also examined.
5. PW 1, Dr. Prabhat Chandra Sarma, was Senior Medical & Health Officer at Pathsala Sub-Divisional Civil Hospital and had occasion to examine the victim Swapna Medhi once she was brought in the emergency ward of the hospital by 108 ambulance service. He found that there was extensive burn of more than 80% covering face, limbs, body and genital area of the victim. He asserted in course of his examination-in-chief as follows :-
"The victim Swapna Medhi gave history in front of me that she burnt herself by lightening with kerosene oil."
He proved Exhibit-1 injury report of the victim under his signature. It also contains remarks that the woman expired at the hospital at 1.30 a.m. on 17.08.2010 whereafter the dead body was handed over to police. It also indicates the date and time of examination as 16.08.2010 Crl. A. 197/2015 Page 3 of 28 at 10.45 p.m. In course of his cross-examination he stated that the victim was in conscious state and she was also able to speak.
6. PW 2, Dr. Tilak Pathak, held post mortem over the dead body. According to him, it was a female dead body of 38 years age, average built with almost 90% burn of the skin except perenium and pubic area. Liver, spleen and kidney of the victim were already congested. In his opinion cause of death was due to shock (hypolumic) as a result of burn. He proved post mortem report Exhibit-2 under his signature. This witness was not cross-examined by the defence.
7. PW 3, Himangshu Medhi, is the informant in the case. According to him, the victim was married to the accused 14/15 years back and a male child was born to them after one and a half year of marriage. He asserted that since after her marriage, accused subjected her to mental and physical torture. He was employed with Assam Rifles. After retirement he started constructing a house at Bhawanipur but could not complete the same for dearth of money and so he demanded that his wife should bring money from her paternal house. Since the victim expressed her inability to bring money from her father, the accused started physical and mental torture on her. He got the information of occurrence on that date itself from someone over telephone and immediately thereafter he rushed to his sister's house. He found she was still burning and they tried to extinguish the fire of her body. They called 108 ambulance and took her to medical for treatment. She was not in a Crl. A. 197/2015 Page 4 of 28 position to speak properly at that stage as almost whole of her body was burnt by fire. She died subsequently due to the burn injuries. Thereafter, the F.I.R. was lodged and police conducted post mortem examination of the body. He proved the ejahar as Exhibit-3 and inquest report as Exhibit-4. In course of cross-examination he stated that he did not witness the incident himself.
8. PW 4, Subhash Talukdar, is a contractor and a resident of Bhawanipur in the district of Barpeta. PW 3 claimed that this witness had accompanied him to the place of occurrence on 16.08.2010. However, PW 4 deposed that on 16.08.2010 he heard hue and cry at around 9/9.30 p.m. in the house of the accused and went there. He saw the victim was engulfed with fire and was writhing in pain. Immediately thereafter a 108 ambulance came for taking her to hospital. He was a witness to the inquest report (Exhibit-4). In course of his cross- examination he disclosed that informant was not present when he had come to the place of occurrence. Thus, he did not support PW 3 that both of them had come to the place of occurrence together.
9. PW 5, Nitish Talukdar, is an important witness in this case. He was 14 years of age as on the date of deposition and was 12 years of age as on the date of occurrence. He is the only son of the accused and the victim and was present at the place of occurrence at the relevant time. He stated that at around 8.00 p.m. when he was studying in his room his father quarrelled with his mother in the adjoining room while Crl. A. 197/2015 Page 5 of 28 watching T.V. Initially, his mother was in the room of the deponent and was sleeping there. His father called her but she refused to go on the ground that she was suffering from headache. Thereafter, his father came and took her to another room in the rear side of the house. Out of inquisitiveness he followed them. He saw his father hit in the mouth of his mother with a stone and thereafter caught hold of her hair and threw her head against the wall. He thereafter poured kerosene over the body of his mother and set fire. Having seen so, he yelled for help but his father threatened him. Then the deponent pushed his mother towards the house of his uncle Bikul situated on the back side of their house. Hearing hue and cry his uncle Bikul came out and poured water on the victim to extinguish fire. The victim was thereafter taken to hospital. According to this witness, his father is a habituated drunkard and used to commit physical and mental torture on his mother without rhymes or reasons. In course of his cross-examination he further disclosed that he is the only son of his parents and after the death of his father his maternal uncle kept their house under lock and key and took him in his custody. His father has instituted a proceeding for custody under Guardians and Wards Act. His mother did not like the drinking habit of his father and was not happy with him. There were two bed rooms in his house - one bed room is exclusively used for him while the other one was shared by his parents. Besides, they had one dining room and a kitchen. The incident took place in the kitchen after having meal. At that time he was studying in his room and followed his mother when his father had Crl. A. 197/2015 Page 6 of 28 taken her to kitchen. He gave further details that the kerosene oil used by his father was in a gallon and was yellow in colour. Police recorded his statement after three months of the incident at Police Station and he was taken to Police Station by his maternal uncle who is the informant in the present case. From the deposition of this witness it is clear that the witness was not residing with his father since the date of occurrence. He was all along in the custody of the informant and was detached from the accused. It is thus possible that he deposed like a parrot at the instance of the informant (PW 3). The post mortem report does not show any injury on the face or head as described by this witness.
10. PW 6, Bhabesh Talukdar, is a neighbour. His house is situated at the adjacent plot of the accused. Hearing hue and cry of the victim he opened his window and saw fire in the room of Swapna. Immediately he came out from his house and noticed that in the meantime victim Swapna was coming towards his house on being followed by her son Nitish (PW 5) and the accused. The victim was totally naked at that time and her entire body was ablaze. He immediately poured water on her to extinguish the fire. In the meantime many people of the neighbourhood had gathered. Swapna was in a position to speak at that time but she did not utter anything before him. Meanwhile, one 108 ambulance came. Police also came thereafter. Swapna was immediately taken to hospital where she succumbed to her injuries later on. In course of cross-examination he stated that the incident took Crl. A. 197/2015 Page 7 of 28 place in the dining room of the accused. Neither Swapna nor her son Nitish told him anything about the incident and so he did not know as to how the occurrence had taken place.
11. PW 7, Bikul Bayan, stated in the witness box that he is the next door neighbor of the victim. The occurrence took place on 16.08.2010 around 9/9.30 p.m. He had reached home by then from his shop. He heard hue and cry in the house of the accused and immediately came out of his house. He saw PW 6 Bhabesh was pouring water on the body of the victim which was completely burnt by fire. Accused was inside the house at that time. The victim was shouting at the deponent. He claimed to have called 108 ambulance but he could not say as to how the victim had caught fire. It is he who gave information to police over telephone.
12. PW 8, Praneswar Das, is a pensioner. On the night of occurrence he had just returned from market and was sitting in his courtyard. At that time he heard hue and cry from the northern side of his house. Having gone there he saw that Swapna Talukdar was completely burnt and she was in naked condition. Bhabesh Talukdar was pouring water on her body in his courtyard. Many people had gathered in the meantime. Accused was present there but having seen the crowd he went inside the house. The condition of the victim was serious. She asked him if she would survive, then PW 8 consoled her. He also could not say as to how the victim had caught fire. He noticed the minor son for a while but Crl. A. 197/2015 Page 8 of 28 subsequently he did not know as to where did he disappear. Police recorded his statement 3/4 days after the incident.
12. PW 9, Dhiraj Choudhury, is a businessman. He was in his shop when he heard that a fire incident had taken place at village Balajan. He went there with others and saw one 108 ambulance was standing in front of the house of the accused. But on enquiry he could come to know that a woman was burnt and she was to be taken by the ambulance for treatment to Pathsala medical. After the victim was taken to hospital public gathered there, kept the house under lock and key in presence of police personnel. After four days of the occurrence the house of the accused was unlocked by police and allowed the accused to enter into by handing over the key to him. Police seized one half burnt saree, some sticks of match box, one small stone in between the kitchen and latrine and bathroom. Exhibit-5 is the seizure list wherein he signed as witness. In his cross-examination he informed that the place of occurrence was at a distance of about one kilometer from his shop. He admitted that before police he did not make mention about his going to the place of occurrence after hearing the hue and cry.
13. PW 10, Gopen Das, is a businessman. He was present when police seized one half burnt saree, a red coloured plastic jarikan containing kerosene and one match box with sticks from the house of the accused in between kitchen and dining room. The part of the half burnt saree was stuck in the wall of the dining room. He also signed on Exhibit-5 Crl. A. 197/2015 Page 9 of 28 seizure list as a witness. In course of his cross-examination he informed that PW 9, Dhiraj Choudhury, was present when he had come to the place of occurrence.
14. PW 11, Atul Kumar Sarma, was the Circle Officer of Sarupeta Revenue Circle. He held inquest on the dead body of the deceased and prepared Exhibit-4 inquest report. He was not cross-examined.
15. Mahesh Thakuria was examined as CW 1 in this case. He is the Prosecuting Sub-Inspector in Barpeta Court. He was attached to Barpeta Police Station on the date of occurrence and Sub-Inspector Siddheswar Haldar was working as in-charge of Bhawanipur Outpost where ejahar of this case was lodged. Siddheswar Haldar expired in the meantime but he is acquainted with his handwriting. He produced the case diary and exhibited the Exhibit-5 seizure-list, Exhibit-6 G.D. Entry No.303, Exhibit-7 sketch map, Exhibit-8 charge-sheet and Exhibit-9 is the specimen signature of S. Haldar, Investigating Officer, which he knows. He deposed in this case from the case diary.
16. The learned Sessions Judge, thereafter, examined the accused under Section 313 of the Code of Criminal Procedure on the materials available in the prosecution evidence when the accused claimed to be innocent and asserted that she died as a result of self-imposed burn injury. According to him, she committed suicide. He did not set fire on the body of his wife. Except asserting that he is not guilty, he did not opt for adducing any evidence from his side.
Crl. A. 197/2015 Page 10 of 28
17. We have heard Mr. Anisul Alam, learned counsel appearing for the appellant and Mr. K. Konwar, learned Additional Public Prosecutor, Assam for the respondent. We have also perused the evidence and materials available on record.
18. The learned trial Court found that the evidence adduced by PW 3, PW 4, PW 6, PW 7, PW 8, PW 9 and PW 10 could not furnish the fact as to how the victim had caught fire on her body. One plastic jarikan with kerosene and match box with sticks and a whisky bottle was recovered in a place in between kitchen and the dining room vide Exhibit-5 in presence of PW 9 and PW 10. On consideration of the prosecution evidence the learned trial Court was convinced that accused person was present in the house at the time of occurrence and PW 5 Nitish, the minor son of the accused and the deceased was also present. So there were total three members in the house at that time. This child witness gave the description of their house and the events preceding the occurrence. Even PW 6 after coming to the place of occurrence noticed that PW 5 was there along with the victim when she was coming out towards the house of PW 6. The victim was in a position to speak at that time. But according to the learned trial Court, PW 5 has disclosed the facts as to how the occurrence had taken place. He gave a vivid description of the whole scene. This child witness stated that his father had quarrelled with his mother Swapna Talukdar. Then his father was watching T.V. in his bed room and the victim was sleeping in Crl. A. 197/2015 Page 11 of 28 the room of PW 5 and he was studying. Although his father called his mother she did not go on the ground that she was suffering from headache. Then his father came, hit her on the mouth with a stone, caught hold of her hair, threw her head against the wall and then poured kerosene over her body. He yelled for help. Then it is he who pushed his mother towards the house of PW 6 on the back side. PW 6 came out and poured water on the body of his mother. The learned trial Court had believed in this version of the child witness but in doing so it does not appear that the learned court considered further facts like custody of the minor boy at the relevant time. It came out from the evidence of the witnesses that after public had gathered to the house of the accused, not only the accused but also PW 5 disappeared. May be they were ashamed or afraid, but from the statement of PW 5 himself it is further clear that informant PW 3 had immediately thereafter locked the house of the accused and took PW 5 with him. The incident had occurred on 16.08.2010 and at least till PW 5 was examined in Court on 07.05.2012 he was continuously under the custody of the PW 3, his maternal uncle. PW 3 is the informant in the case and asserted that the accused had perpetrated mental and physical torture on his sister, the victim. He first asserted that the victim had disclosed to him that accused had set fire on her body. This assertion came from the mouth of PW 3 but PW 6 who was present at the place of occurrence as the first outsider other than the three inmates of the house specifically stated that although she was in a position to speak but she did not utter Crl. A. 197/2015 Page 12 of 28 anything before him. She was then taken to hospital by 108 ambulance service. PW 3 has not clarified as to where had the victim made the disclosure to him. Rather, prosecution has exhibited a dying declaration of the victim vide Exhibit-9 and the same is quoted below for ready reference :-
"Statement of injured Swapna Talukdar (Medhi) 38 yrs, W/o Amalesh Talukdar of Vill.- Balarjan Haripur, P.S. & Dist.- Barpeta, Assam. Recorded u/s 161 Cr.P.C. in conn. With Bhawanipur O.P. GDE No.303, dt. 16/08/10.
My name and address are as mentioned above. I am 38 years. I got married about 14 years back. After marriage my husband used to torture and assault me. Failing to tolerate the said torture and assault I myself pour kerosene on my body and set fire."
19. PW 1, Dr. Prabhat Chandra Sarma, who examined the victim for the first time after she was brought to Patshala Sub-Divisional Civil Hospital had also made similar assertion in his examination-in-chief. He must have asked the victim as to how she had caught fire and then she gave the history of suicidal attempt by burning with kerosene oil. This part of the statement of PW 1 has been quoted at the anterior part of this judgment. Even on the face of the cross-examination, PW 1 doctor asserted that when he had examined the victim she was in conscious state and was able to speak. It is to be noted from cross-examination of this witness that no suggestion was made to him as to the correctness of his version and thus it went unrebutted in the evidence along with Crl. A. 197/2015 Page 13 of 28 Exhibit-9 brought on record by the Prosecuting Sub-Inspector. Considering the fact that PW 3 informant had already accused the present appellant of committing murder of his sister (the wife of the accused) by pouring kerosene and the sole eye-witness PW 5 who is also a child remained in the custody of this PW 3 since the date and time of occurrence till deposition in Court continuously for two years next, the possibility of undue influence on the child witness cannot be ruled out. It is to be kept in mind that a child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the Court must be satisfied that the attending circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion.
20. Evidence of a child witness can be relied upon, if the Court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is neither tutored nor incapable of giving rational answer but his evidence has a ring of truth. The Hon'ble Supreme Court considered the law relating to child witness elaborately in the case of K. Venkateswarlu vs. State of Andhra Pradesh reported in 2012 Cri LJ 4388 (4391) SC. In the case of State of Madhya Pradesh vs. Ramesh, reported in (2011)4 CC 786 the Hon'ble Supreme Court held that the evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. If there is evidence on record to show that a child has been tutored, Crl. A. 197/2015 Page 14 of 28 Court can reject his statement partly or fully. An inference as to whether a child has been tutored or not can be drawn from the contents of his deposition. Law does not require that testimony of a child witness has to be corroborated always if it is found that his deposition inspires confidence and there is no embellishment or improvement. But the evidence of a child witness is required to be evaluated carefully because he is an easy prey to tutoring. This is why always the Court looks for adequate corroboration from other evidence to his testimony [Bhagwan Singh vs. State of M.P. AIR 2003 SC 1088].
21. Mr. A. Alam, learned counsel for the appellant, submits that the fact becomes clear once the statement made by the victim before PW 1 and the Investigating Officer are taken at face value. The PW 1 doctor asked for the history of the incident from the victim herself and accordingly made statement in his deposition. Similarly, Exhibit-9 is the statement recorded by police under Section 161 of the Code of Criminal Procedure when the victim was alive. According to learned counsel for the appellant, since the possibility of getting the maker of the statement in flesh and blood has been closed once and for all, the endeavour should be how to include the statement of a dead person within the sweep of dying declaration under Section 32 of the Evidence Act. He placed reliance on the case of Patel HIralal Joitaram vs. State of Gujarat [AIR 2001 SC 2944] in this regard.
Crl. A. 197/2015 Page 15 of 28
22. Mr. Alam, learned counsel for the appellant, has further placed reliance on the judgment of a Division Bench of this Court in the case of Harej Ali vs. State of Assam reported in 1981 Cri.L.J. 1745. Even in that case the victim made a statement before the Investigating Officer (CW
1) under Section 161 of the Code of Criminal Procedure that after marriage her husband used to torture and assault her. Failing to tolerate such torture and assault she herself poured kerosene on her body and set fire. A Division Bench of this Court accepted the statement of the victim made under Section 161 of the Code of Criminal Procedure before her death as dying declaration and placed reliance on it. In the case of Ashok Kumar vs. State of Rajasthan [ 1990 CRI.L.J. 2276 (1)] Hon'ble Supreme Court accepted entries in the injury report as dying declaration of the victim. In the case of Mesu Dhondiba Vidhate vs. State of Maharashtra reported in (2001) 10 SCC 63 the Hon'ble Supreme Court did not find any reason to disbelieve the evidence of a totally independent witness Dr. Savale, who had recorded the case history of the victim. It was considered to be the dying declaration and placed reliance on it.
23. In the present case it is to be noted that PW 3 in whose custody the child remained since the date of occurrence till his deposition, did not say a word about disclosure of facts before him. Had PW 5 disclosed these facts to PW 3 at any point of time after the occurrence with whom he remained continuously for next two years, in that event PW 3 Crl. A. 197/2015 Page 16 of 28 would have made such statement before police under Section 161 of the Code of Criminal Procedure. Consequently, he would have made a similar statement while in the witness box before the Court. Examined conversely, it is possible that PW 3 did not make such assertion in his deposition because otherwise he would have been confronted with his statement made under Section 161 of the Code of Criminal Procedure. It also cannot be ignored that PW 5 had already lost his mother who is the closest person of a child. His father was also away as he remained in the custody of his maternal uncle and may be grandparents. Under such circumstances a child is bound to be docile and pliable to the person in whose custody and care he has been growing up. Considering the attendant circumstances, we are of the view that it is unsafe to rely on the testimony of the child witness in the present case. Rather, the evidence of PW 1 read with Exhibit-9 has more persuasive force. The additional reason for such inference is that as per medical evidence the victim suffered about 90% burn injuries. Such amount of burn is possible only if it is self inflicted. If someone wants to pour kerosene and then wants to put fire to the person of a woman in presence of his 12 years old son she would have resisted to such act and in that event there could not have been 90% burn of her body. Even PW 5 and PW 6 stated that immediately after the occurrence she came out and proceeded towards the house of PW 6 who poured water on her. Such subsequent events raises a reasonable doubt about the story of homicide and rather points towards a case of suicide only. Crl. A. 197/2015 Page 17 of 28 The ocular and medical evidence available in this case along with Exhibit-9 conclusively proves that it cannot be a case of homicide but a case of suicide. The conviction of the appellant under Section 3092 of the Indian Penal Code, therefore, is liable to be set aside and it is accordingly set aside.
24. After it is found that the victim committed suicide by pouring kerosene on her, the next question comes as to why did she do so? It is the prosecution case, as per Exhibit-9, that she was fed up with the physical and mental torture perpetrated on her by the accused and so she resorted to the course of suicide. Mr. Alam, learned counsel for the appellant, strenuously urged that prosecution has failed to make out a case under Section 306 of the Indian Penal Code in this case as there is no element of abetment at all. According to him, even if there is strained relationship between the accused and the victim, they had already passed 14 years of married life and were blessed with a minor son of 12 years as on the date of the incident. So, it cannot be said that torture both physical and mental perpetrated by the accused on the victim amounts to abetment to suicide. Torture perpetrated by the accused may be a reason for her frustration but definitely it did not amount to encouragement to commit suicide, he strenuously urged.
25. Police submitted charge sheet under Section 306 of the Indian Penal Code basing on the dying declaration made by the victim before police under Section 161 of the Code of Criminal Procedure and may Crl. A. 197/2015 Page 18 of 28 be on the basis of the statement of the attending doctor as well. These materials have been brought in course of trial through PW 1 and PW 11. We have carefully perused the statements of these two witnesses along with the contents of Exhibit-9. The point for determination at this stage, therefore, would be whether these materials establish an offence under Section 306 of the Indian Penal Code or merely an offence under Section 498A of the Indian Penal Code?
26. Section 306 of the Indian Penal Code is quoted below for ready reference :-
"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 liable to fine."
It would appear from a bare perusal of Section 306 of the Indian Penal Code that following are the ingredients of this Section :-
(i) Commission of suicide by a victim; and
(ii) Abetment of such suicide by the accused.
The aforesaid conditions are the two steps which are required to be established by the prosecution for making out a case under Section 306 of the Indian Penal Code. As pointed out above, we are convinced that commission of suicide by the victim has been established on the basis of Exhibit-9 and on the basis of the deposition of PW 1 and PW 11. Then next step, therefore, would be to determine as to whether Crl. A. 197/2015 Page 19 of 28 prosecution has established the second ingredient, namely, abetment to such suicide by the accused.
27. The word 'abetment' has not been clarified in Section 306 of the Indian Penal Code because abetment itself is an offence under Section 107 of the Indian Penal Code. What is abetment has been defined in the section itself. Section 107 of the Indian Penal Code is quoted below for ready reference :-
"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."
From a bare perusal of the section it would be clear that this section has got three ingredients and the same are as follows :-
(i) Instigation to commit an offence;
(ii) Engagement in conspiracy to commit it; and
(iii) Intentionally aiding a person to commit the offence.
28. In the case in hand prosecution story is that the accused perpetrated physical and mental torture on the victim and thereby instigated her to commit the offence of suicide. In the case in hand the second and third ingredients mentioned above would not come. The Crl. A. 197/2015 Page 20 of 28 next thrust would be to see as to whether the acts of torture made by the accused constitutes abetment. The meaning of the word 'abet' in Black's Law Dictionary (Eighth Edition, page 4) is as follows :-
"1. To aid, encourage, or assist(someone), esp. in the commission of a crime.
2. To support (a crime) by active assistance."
Similarly, meaning of the word 'instigate' in Black's Law Dictionary (Eighth Edition, page 813) is as follows :-
"To goad, or incite (someone) to take some action or course".
From the aforesaid meanings quoted herein above it is clear that to constitute abetment there has to be some acts to instigate, to aid, encourage, assist, support, goad or incite someone to take some action or course. Dictionary meaning of the word 'abet' or 'encourage', therefore, require that there has to be some overt or specific act of the accused establishing his participation in the offence and also establishing that he had intended such offence to happen. Action upto what extent would amount to abetment or instigation came up for judicial scrutiny on a number of occasions.
29. In the case of Mahendra Singh and another vs. State of Madhya Pradesh, reported in 1995 Supp. (3) SCC 731, the Hon'ble Supreme Court decided a case where mother-in-law, husband and sister-in-law of the deceased were found to have harassed her. They used to beat her and abuse her. Her husband wanted to marry for the second time Crl. A. 197/2015 Page 21 of 28 and he had illicit connection with his sister-in-law. Because of these reasons and being harassed the victim wanted to die by burning. It was the case of the appellant in that case before the Supreme Court that apart from these allegations there was 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 the sweep of Section 306 of the Indian Penal Code under which the appellants were punished. In that case the Hon'ble Supreme Court was satisfied that neither of the ingredients of Section 306 of the Indian Penal Code was attracted on the basis of the statement given by the deceased about inflicting physical and mental torture on her by the three accused persons and accordingly the appeal was allowed and the accused persons were acquitted.
30. In the case of Sanju vs. State of M.P., reported in (2002) 5 SCC 371 the Hon'ble Supreme Court had the occasion to decide yet another case under Section 306 of the Indian Penal Code where the question 'to instigate' came up for consideration. In that case the learned Sessions Judge as well as the Hon'ble High Court of Madhya Pradesh had accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25.07.1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased "to go and die". The learned Courts below relied on statement of Sashi Bhushan, the brother of the deceased in that case, made under Section 161 of the Code of Crl. A. 197/2015 Page 22 of 28 Criminal Procedure when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated her and abused with filthy words. Considering that statement under Section 161 of the Code of Criminal Procedure the Hon'ble Supreme Court did not find the words "to go and die" therein. However, the Hon'ble Supreme Court held that even if the accused told the deceased "to go and die" that itself should not constitute the ingredient of 'instigation'. In paragraph 12 of that judgment the Hon'ble Supreme Court made the following observation :-
"12. .......... 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 inadvisable 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 on the spur of the moment cannot be taken to be uttered with mens rea. It is in a hit of anger and emotion. ....."
31. In the case of Ramesh Kumar vs. State of Chhattisgarh, reported in (2001) 9 SCC 618, where the husband and wife had quarrelled between themselves. The husband uttered to the wife - "you are free to wish and go whatever you like". The wife of the appellant Ramesh Kumar thereafter committed suicide. In paragraph 20 of that judgment the Hon'ble Supreme Court considered the ingredients of Section 107 of the Crl. A. 197/2015 Page 23 of 28 Indian Penal Code. Paragraph 20 of the judgment in Ramesh Kumar (supra) is quoted below for ready reference :-
"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 anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
32. Mr. Alam, learned counsel for the appellant, has heavily placed reliance on the decision of the Hon'ble Apex Court in the case of State of W.B. vs. Orilal Jaiswal reported in (1994) 1 SCC 73, wherein the Hon'ble Supreme Court cautioned that 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 the life by committing suicide. If it appears 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 Crl. A. 197/2015 Page 24 of 28 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 of abetting the offence of suicide should be found guilty. According to Mr. Alam, the parties have been living together for over 14 years in spite of allegedly cruel behaviour of the accused and they might have been adjusted to such life in the meantime. Though we do not approve such submission made by the learned counsel for the appellant, yet, we do not fail to notice that the statement made by the victim under Section 161 of the Code of Criminal Procedure go to show only a frustrating conjugal life of the victim and the appellant. But nothing has been brought in evidence to arrive at a positive finding that the accused wanted the victim to die. In similar circumstances in the case of Gangula Mohan Reddy vs. State of Andhra Pradesh, reported in AIR 2010 SC 327, the prosecution story of abetment was not accepted by the Hon'ble Supreme Court. In that case Hon'ble Supreme Court held that abetment involves a mental process of instigating a person or intentionally aiding a person in doing a thing. There has to be some positive act on the part of the accused to instigate or aid in committing suicide. Paragraphs 18, 19, 20, 21 and 22 of the aforesaid judgment is instructive for the purpose of the present case and accordingly the same are quoted below for ready reference :-
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"18. In the instant case, the deceased was undoubtedly hyper sensitive 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.
19. This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24 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. Therefore, it is impossible to lay down any straight- jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
20. 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.
21. 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 Crl. A. 197/2015 Page 26 of 28 intended to push the deceased into such a position that he committed suicide.
22. In the light of the provisions of law and the settled legal positions crystallized by a series of judgments of this Court, the conviction of the appellant cannot be sustained. Consequently, the appeal filed by the appellant is allowed and disposed of."
33. On consideration of the entire evidence on record, we are of the opinion that the accused perpetrated mental and physical torture on the victim and in the process a situation was created for which the victim committed suicide by pouring kerosene on her and putting fire. She was frustrated and unable to tolerate the situation any more. That was her mental state. But correspondingly no material whatsoever has been brought on record to establish that the accused had intended the victim to die. Prosecution has not made out any case as to why an ex-serviceman after his retirement would desire that his wife should die. No attempt has been made from the side of the prosecution to show that the accused had any intention to re-marry. There is no story of extramarital affair of the accused. In the absence of any such story and more particularly when they are blessed with a son of 12 years of age, the prosecution has failed to establish that either the accused intended the deceased to die or he had done any overt act which may go to instigate, incite or goad the victim to commit suicide. Crl. A. 197/2015 Page 27 of 28
34. We are, therefore, unable to accept that the prosecution has succeeded to establish case under Section 306 of the Indian Penal Code in the present case either. At best, what can be said is that on the basis of the materials on record offence under Section 498A of the Indian Penal Code has been made out against the accused person and so he can be convicted under that section of law. His conviction under Section 302 of the Indian Penal Code is hereby set aside. Consequently, his sentence of life imprisonment and fine are hereby set aside. His conviction is converted to a one under Section 498A of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for the maximum period of three years and to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for one month more. The appellant shall be set at liberty immediately on completion of his aforesaid term of sentence.
Send down the records.
JUDGE CHIEF JUSTICE
T U Choudhury
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