Madhya Pradesh High Court
Surendra Agnihotri vs State Of M.P. on 7 January, 1998
Equivalent citations: 1998CRILJ4443
Author: C.K. Prasad
Bench: C.K. Prasad
JUDGMENT C.K. Prasad, J.
1. Appellant, being aggrieved by his conviction for offence under Section 306 IPC and sentence of R.I. for three years by the Sixth Addl. Sess. Judge, Jabalpur in S.T. No. 370/84 by judgment dated 19-12-1986, has preferred this appeal.
2. It is an admitted position that the deceased Indu Jain was an Advocate and attending the chamber of the appellant, who is also a lawyer, as his junior. Appellant used to regularly visit the deceased at her residence and he had intimate relationship with her family members. It is also not disputed that on 8-7-1984 at 8.30 a.m. appellant had gone to the residence of the deceased and both of them were talking in the drawing room. Before this, appellant was sitting in a saw mill where deceased came and took him to her residence. It is further an admitted position that during those days negotiation for marriage of the deceased was going on with a person at Gwalior. Admitted fact of the case further is that in the drawing room where the deceased and the appellant were sitting, deceased set on fire herself from where she was taken to the hospital and she died two hours thereafter. Appellant had gone with the deceased to the hospital. Besides the aforesaid facts, no other Fact has been admitted.
3. According to the prosecution, appellant and the deceased were lawyers by, profession and the deceased was the appellant's junior. This relationship developed into a love affair and appellant used to write love letters to her. According to the prosecution, the deceased became pregnant and pregnancy was aborted. Deceased also used to love appellant. Appellant is a married person having wife and children. According to the prosecution, the deceased was pressurising the appellant for marriage which was being refused by the appellant and, thereafter deceased threatened to commit suicide. Thereafter she went to a lady, got a match box from her and after-pouring kerosene oil on her body, she set herself on fire. According to the prosecution, appellant stood in silence with folded hands outside the drawing room and seeing the flame and the smoke, deceased's mother Parvatibai (PW 12) raised alarm whereupon deceased's brother Anand (PW 3), her sister Lata (PW 10) and friends of Anand came to the place of occurrence and found the deceased burning inside the room. Appellant, according to the prosecution. did not do" anything and saw the entire scene from near the door. After the neighbours came, deceased was taken to the hospital and PW 3 Anand gave report to the police station. Deceased was examined by the doctor and her dying declaration was recorded (Ex. P-14). During investigation the police recovered photographs as also love letters written by the appellant to the deceased from her room. After investigation, police submitted charge-sheet against the appellant for offence under Section 306, IPC.
4. Appellant denied to have committed any offence and his defence is that the deceased was not inclined to get married at Gwalior and discussion on this point was going on. According to the appellant the deceased was insisting that the appellant should counsel her mother in this regard, but it was declined by him on the ground that it was her family affairs and he did not want to interfere in such matter. According to the appellant the deceased was all the time emphasising for this and when appellant came out of the room he saw the deceased in fire in the drawing room. His further plea is that he raised alarm and at this, witnesses came. He has specifically denied that he had any love affair with the deceased or he used to write love letters to her. He has further stated that he sustained injuries on his fingers while saving the deceased. In order to drive home the charge, prosecution has examined altogether 18 witnesses. No defence witness has been examined.
5. Shobharam (PW 1) is a police constable who has written the Roznamcha. PW 2 Ram Kumar Tiwari has stated that at about 9.15 in the morning the deceased and the appellant were sitting in the Verandah. Anand Kumar (PW 3) is the brother of the deceased. He has stated in this evidence that the deceased was a practicing lawyer and the appellant was her senior. He has further stated in his evidence that the appellant regularly used to visit the deceased at her residence any time in the day or night. He has further stated in his evidence that a day before the date of occurrence his another sister Sudha had come and was talking about the marriage of the deceased and she had taken away the photograph of the deceased. He has further stated in his evidence that on the date of incident at 8.30 a.m. appellant had come to his residence and was talking with the deceased inside the room. He has further stated that after about an hour, on hearing the alarm raised by his mother, he along with his friends Rajkumar and Vinod went to the Courtyard and found that flame is coming out from the room where the deceased and the appellant were sitting. He has further stated in his evidence that immediately they entered into the room and found that the appellant was standing near the door with folded hands and the deceased was burning. He has stated that the ceiling fan of the room was on, which he put off and by using bed he tried to put off the fire. He has further stated that Vinod and Rajkumar threw bed and quilt and only then the fire was put off. He has further stated that the appellant did not give any assistance of putting of the fire. PW 4 Mayabai has stated that at about 8.30 in the morning of the day of incident, deceased came and asked for a match box saying that she wanted to make tea and she had given match box to her. PW 5 Garibdas is a police constable who has registered the Murg. PW 6 Nandlal has stated in his evidence that in the morning in between 8 to 8.30 a.m., appellant was sitting in a saw mill where the deceased came and asked him to come along with her for two minutes. At this, appellant stated that he is coming. Thereafter deceased insisted that the appellant must accompany her and at this appellant went along with the deceased. PW 7 Siddique Ullah Khan is an advocate who is a witness to the inquest report. PW 8 Dr. N.A. Ansari has examined the deceased on 7-8-1984 and found a scar mark on the ring finger of the left hand of the appellant of the size of 1 c.m. x 1 cm. He has found another scar mark on the same finger, 1 c.m. below the first scar mark of the size of 1/2 c. m. x 1/2 c.m.
6. T. D. Gupta is an Additional Tahsildar who has recorded the dying declaration on 8-7-1984 (Ex. P-10). He has stated in his evidence that at the time when he reached the hospital, the deceased was inside the operation theatre and had recorded the dying declaration there and besides him none was present, excepting one person who was standing there to assist the deceased. PW 10 Lata Jain is a sister of the deceased. She has stated in her evidence that the deceased was junior of the appellant and appellant used to visit regularly to her house. According to this witness on the day of incident, appellant came to her residence at about 8.30 a.m. and was sitting alongwith the deceased in the drawing room. According to this witness he was sitting in the Verandah and although she could not hear the talk between the deceased and the appellant, but one thing was clear that the deceased was saying that she will force decision of her marriage at which, the appellant stated that he was not prepared for the same. Thereafter, according to this witness she went to the first floor of the house and about 10.15 a.m. she heard an alarm raised by her mother that the deceased has been set on fire by the appellant. This witness has further stated that she and mother saw the flames coming from the room and at that time the appellant was standing outside the room. PW 1 Prabhat Pandey has stated in his evidence that when he reached the residence of the deceased after hearing that the appellant has set on fire the deceased, he found the deceased lying on the floor of drawing room and appellant and other persons were also there. According to this witness he stated to the appellant to take the deceased to the hospital at which appellant stated that he has called the doctor. This witness then stated that it is not sure when the doctor will come; thereafter, the deceased was taken by a bus to the hospital.
7. PW 12, Parvatibai, is the mother of the deceased and she has stated that the deceased was an Advocate and was working as Junior of the appellant. She has further stated in her evidence that the appellant used to visit her place regularly and on the date of incident, when she returned from temple at 9 a.m. she found the deceased and the appellant sitting in the drawing room. She has further stated in her evidence that she saw from the kitchen, her daughter in flame, in the drawing room and the appellant outside the room with folded hands. At this, she raised alarm at which her son and his friends came. This witness has further stated that the ceiling fan of the drawing room was on which was put off by her son and he and his friends put off the flames by putting quilt and cushion of the chairs. According to this witness she questioned the appellant as to how this has happened, he did not answer and stood in silence.
8. PW 13 Dr. R. K. Choudhary is an Assistant Civil Surgeon who has conducted the post-mortem and found that the deceased had 100% burn injuries and the cause of death was excessive burns. PW 14 Chandrika Prasad is a Patwari who has prepared the sketch map of the house of the deceased. PW 15 Rajendra Bihari Shrivastaya is an Advocate who is a witness to the inquest report. Ex. P-16 Ramesh Singh Sharma is an Additional Government Examiner of Questioned Documents. He has examined the letters written by the appellant to the deceased and on the basis of his admitted signatures, has opined that the letters bear the signature of the appellant. PW 17 Laxminarayan Awasthy has been declared hostile by the prosecution. PW 18 B. S. Rajput is an Inspector of Police who has recorded the Murg, made investigation and submitted charge sheet against the appellant.
9. Dr. R. K. Choudhary (PW 13), who has conducted the postmortem, has found the smell of kerosene oil from the body of the deceased as also the deceased sustaining 100% burn injuries. This doctor has further stated that the deceased died of excessive burn. Although PW 10 Lata Jain, sister of the deceased has stated in paragraph 6 of her evidence that her mother Parvatibai (PW 12) has stated that it was the appellant who has set on fire the deceased, but this part of her statement does not find support from the evidence of her mother. As such this part of evidence of PW 10 Lata Jain has to be ignored. PW 4 Mayabai has stated that it was the deceased, who immediately before the occurrence came to her and asked for the match box which was given to her. The deceased having severe burn injury which she sustained in her drawing room and none of the prosecution witnesses saying that she was set on fire by the appellant, who was sitting alone along with her there, I have no hesitation in holding that the deceased has committed suicide. In fact Shri Dutt has not challenged the factum of suicide.
10. From the evidence of the prosecution witnesses it is established that the deceased was an advocate, was attending the chamber of the appellant as his junior, the appellant used to visit the place of the deceased regularly and the appellant was talking to the deceased in the drawing room on the date of incident. In fact, the appellant in his examination under Section 313 of the Code of Criminal Procedure has admitted these facts.
11. It is relevant here to state that the prosecution intends to bring home the guilt against the appellant for abetment of suicide on the ground of omission on his part to make any attempt to save the deceased from committing suicide. PW 3 Anand Kumar the brother of the deceased has stated that on hearing the alarm he saw the flame coming from the room, in which the appellant and the deceased were sitting and the appellant was standing with folded hands. He has further stated that in the process of putting off the fire by quilt and bed, appellant did not assist and stood in silence. His evidence finds support from the deposition of PW- 2 Parvatibai, the mother of the deceased and she has stated in her evidence that while the deceased was burning, the appellant was standing with folded hands. She has further stated that when her son and his friends were putting off the fire, the appellant stood in silence. Deceased in her dying declaration (Ex. P-10) stated that she has set on fire herself. In dying declaration she has further stated that she has poured kerosene oil at 10 O'clock and at that time family members were inside the house. According to the dying declaration after pouring the kerosene oil she went near the appellant, who was sitting in the drawing room and she was scolded by him and he snatched match box from her. The deceased has further stated in her dying declaration that thereafter she went to the hostel, got a match box and set herself on fire. At that time the appellant had gone to bring other persons.
12. PW 8 Dr. N. A. Ansari has examined the appellant on 7-8-1984 and has found two scar marks on ring finger of the appellant's left hand of the size of 1 cm x 1 cm and 1/2 cm x 1/2 cm. According to this witness the injuries were completely healed and no opinion about its age was given. Occurrence has taken place on 8-7-1984 whereas the appellant was examined on 7-8-1984 i.e. after a month. Nature of injury and the absence of its age clearly show that the appellant did not sustain these injuries while saving the deceased. All the witnesses have consistently stated that the appellant was standing with folded hands and did not help in putting off the fire. From the evidence of the aforesaid witnesses as also from the dying declaration it is proved beyond all reasonable doubts that the appellant was in the drawing room when the deceased set herself on fire, but he did not make any attempt to prevent her from setting herself on fire or tried to put off the fire.
13. Shri Dutt, appearing on behalf of the appellant submits that this itself will not bring home the guilt of abetment against the appellant. He submits that for the purpose of abetment overt act is necessary and inaction on the part of the appellant in not attempting to put off the fire, will not make the appellant liable for punishment for abetment of suicide. Section 107 of the Indian Penal Code defines abetment. It reads as follows :-
107. 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.
Plain reading of Section 107 of the Indian Penal Code makes it clear that doing of a thing by illegal omission amount to abetment. Shri Dutt submits that there is no illegal omission on part of the appellant for the act of commission of suicide by the deceased, whereas according to the learned counsel for the State, it was the duty of the appellant to prevent the deceased from setting her on fire and after she has set herself on fire to put it off to save her. This leads to consideration what is meant by illegal omission.
14. The word 'illegal' means against or not authorised by law and omission is something that has not been done either deliberately or accidentally. Nothing has been pointed out on behalf of the respondent to show that the appellant's act of not making any endeavour to save life of the deceased is against law or the appellant was under an obligation by law to prevent such incident. Individuals act differently in same situation. It may be possible that the appellant seeing the flames got so shocked that he did not re-act or he might not have attempted to put off the fire apprehending danger of his life. I am of the opinion that the act of the appellant does not come within the expression 'illegal omission' and accordingly he cannot be held guilty for abetment of the offence. As such the conviction and sentence of the appellant cannot be sustained.
15. In the result, the appeal is allowed Impugned Judgment is set aside. Appellant is on bail. He shall be discharged of his bail bond.