Rajasthan High Court - Jodhpur
State vs Mukesh on 17 February, 2012
Author: R.S. Chauhan
Bench: R.S. Chauhan
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
State of Rajasthan
Vs.
Mukesh
S.B. CRIMINAL LEAVE TO APPEAL NO.25/2010
S.B. Leave to Appeal u/s 378
(III) & (I) Cr.P.C. against the
judgment dated 18.11.2009
passed by Addl. Sessions Judge,
(Fast Track), Jalore, Camp
Bhinmal in Sessions Case No.
22/2009.
Date of Judgment: 17.2.2012
HON'BLE MR. JUSTICE R.S. CHAUHAN
Reportable Mr. Mahipal Bishnoi, PP Mr. Pradeep Shah, for the complainant. Mr. Prashant Sharma, for the respondent.
The State is aggrieved by the judgment dated 18.11.2009 passed by Additional Sessions Judge, (Fast Track) Jalore, Camp Bhinmal, whereby the learned Judge has acquitted the accused respondent, Mukesh, for offences under Sections 498-A and 306 IPC.
2Briefly, the facts of the case are that on 31.10.2008, the 'Parcha Bayan' (Ex.P/35) of Smt. Geeta, was recorded by the SHO, Rajiv Parihar (P.W.14). In the parcha bayan, Smt. Geeta had claimed that she was married to Mukesh, four years prior to her giving the statement. She further alleged that her husband had stopped speaking to her about two months prior to the incident. She claimed that fifteen days earlier, Mukesh had assaulted her with kicks and wooden handle of an axe. However, she did not inform her parents about the said incident. According to her, on 7.30 A.M., in the morning, while she was staying in her in-laws place, her husband had told her that she was in the habit of laughing too much, of speaking to others, and of eating gutkha. However, these habits she had already improved upon. However, according to her, in the morning, while her husband was sleeping, she poured kerosene on herself and burned herself. She had done so because Mukesh used to tell her that "she should kill herself". Because of the harassment meted out by the husband, she has burned herself. On the basis of this 'parcha bayan', the police registered a formal FIR, FIR No. 284/2008, for offences under Sections 498-A and 306 IPC.
In order to buttress its case, the
3
prosecution examined sixteen witnesses, and
submitted thirty-eight documents. In turn, the
accused-respondent examined himself as a witness, and submitted a few documents. After going through the oral and documentary evidence, vide judgment dated 18.11.2009, the learned Judge acquitted the accused respondent, Mukesh. Hence, this criminal leave to appeal before this court.
Mr. Pradeep Shah, the learned counsel for the complainant, has raised the following contentions before this Court; firstly, the learned judge has failed to appreciate the evidence in proper perspective. In fact, the learned Judge has not appreciated the evidence at all. According to him, Smt. Geeta had claimed that she was taunted by her husband, for her habit of laughing too much, speaking to others, and of eating gutkha; the habits that she had already changed. Moreover, just fifteen days prior to the incident, her husband had assaulted her with kicks and with the handle of an axe. Therefore, she was subjected to physical and mental cruelty. It is due to these mental and physical cruelties, that she had committed suicide. Hence, there was ample evidence to make out a case for offences under Sections 306 and 498A IPC.
4
Similarly, Mr. Mahipal Bishnoi, the learned Public Prosecutor, has contended that according to Smt. Geeta, her husband had stopped speaking to her two months prior to the incident. Husband's non- speaking to the wife also amounts to cruelty. Therefore, according to the learned Public Prosecutor also, the learned Judge has erred in acquitting the accused respondent.
On the other hand, Mr. Prashant Sharma, the learned counsel for the respondent, has contended that a distinction has to be made between "the normal wear and tear of a married life", and "cruelty" inflicted on a wife. Moreover, a live link has to exist between the commission of suicide and abetment of suicide. According to the learned counsel, Smt. Geeta has merely mentioned that fifteen days prior to the incident, she was physically assaulted. However, fifteen days' time is sufficient for differences between the husband and the wife to die down. Therefore, the assault allegedly committed on her, could not be the reason for her to commit suicide. Thirdly, that there is a contradiction between the two dying declarations given by her, namely 'parcha bayan' (Ex.P/35), and the dying declaration recorded by the Judicial Magistrate (Ex.P/33). Fourthly, that according to her, when she 5 had burned herself, her husband was sleeping. Therefore, even if, earlier he had told her "to kill herself" , the said phrase cannot be seen as abetment to suicide. Moreover, the fact that the appellant was 'sleeping', this fact has been corroborated by Pyara Ram (P.W.1), and Smt. Methera (P.W.2), both neighbours, who had rushed to the house of Smt. Geeta, and found her husband sleeping at the moment when she had burned herself. The accused respondent was not even awake, therefore, the accused respondent could not have abetted, in her committing the suicide. All these points have been noticed, and critically analysed by the learned Judge. Hence, the learned Judge was justified in acquitting the accused respondent. Therefore, the learned counsel has supported the impugned judgment.
Heard the learned counsel for the parties, and perused the impugned judgment as well as the record.
Section 107 of IPC is as under:
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 he doing of that thing, if 6 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 wilful 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 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.
The word "instigate" literally means to provoke, to incite, to urge, to bring about by persuasion to do anything.
In the case of Randhir Singh and Anr.
V/s. State of Punjab [(2004) 13 SCC 29], the Apex Court opined that "Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In case of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 7 306 IPC."
The word 'urge' means to advice or try hard to persuade somebody to do something to make a person to move more quickly or in a particular direction, specially by pushing or forcing such person. Therefore, a person instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter. In order to prove abetment, it must be shown that the accused kept on urging, or annoying the deceased by words, taunts or wilful omission, or conduct which may even be wilful silence, until the deceased reacted, or pushing the deceased by his words, or wilful omission, or conduct to make the deceased move forward more quickly in a forward direction. Secondly, the accused had the intention to provoke or urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly the presence of mens rea is the necessary concomitant of instigation.
In the case of S.S. Chheena V/s. Vijay Kumar Mahajan & Anr. [(2010) 12 SCC 190], the Apex Court observed that "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 8 committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the Supreme 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."
In the case of Amalendu Pal @ Jhantu V/s. State of West Bengal [(2010) 1 SCC 707], the Apex Court has opined as under :-
12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, convition in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Sectiion 306 IPC there must 9 be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC. [Emphasis added] In the case of State of West Bengal V/s.
Orilal Jaiswal & Anr. [(1994) 1 SCC 73], the Hon'ble Supreme court observed that "The Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim 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 10 should be found guilty."
While assessing the evidence in the present case, these well-established principles have to be kept in mind.
According to Smt. Geeta, the accused respondent had objected to few of her habits i.e., for laughing too much, for speaking to others, and for eating gutkha. According to her, she had improved upon these habits. It is quite common for few husbands to raise objections about behaviour of their wives which they may consider to be "objectionable". However, such objections, although misplaced, are part of normal wear and tear of a married life. Therefore, such objections cannot be said to instigate the suicide committed by Smt. Geeta.
Smt. Geeta has further alleged that fifteen days prior to the incident, she was assaulted by the husband with kicks and with an handle of an axe. However, the said incident is an individual incident and not a part of series of physical cruelties meted out to her. Moreover, she has claimed that she did not bother to inform her parents about the said incident. Thus, obviously she had taken the incident in her own stride. Therefore, the said assault could not have compelled her to commit suicide. She has also claimed that for 11 the last two months, her husband has not spoken to her. Yet simultaneously she claims that he had told her that "she should kill herself". Merely because the husband has not spoken to the wife, cannot be said to be an act which would "instigate" or "urge" or "goad" the wife to commit suicide.
In catena of cases, both the Hon'ble Supreme court and this Court have held that something said in a fit of anger cannot be held to be abetment of suicide. Therefore, even if the accused-respondent had told Smt. Geeta "to kill herself", the said words would not bring his acts within the definition of abetment as defined under Section 107 of the Act.
The statements of Smt. Geeta were recored on two different occasions; firstly, Parcha Bayan (Ex.P/35) and secondly the statement recorded by the Magistrate (Ex.P/33). There is a contradiction between the two dying declarations. According to Parcha Bayan (Ex.P/35) when her husband was "fast asleep" she poured kerosene upon herself, yet according to the dying declaration (Ex.P/33) she claimed that when her husband placed the kerosene and told her to pour upon herself, "I started burning". Hence, there is a contradiction whether the kerosene was brought by the husband and she was told to burn herself, or whether 12 at the relevant time her husband was fast asleep and she burnt herself of her own. Since there is a contradiction between the two dying declarations, that too on a material point, they cannot be relied upon.
Lastly, according to the statement of Smt. Geeta her husband was fast asleep. Her statement has been corroborated further by Pyare Ram (P.W.1) and by Smt. Methera (P.W.2). Both of these witnesses are the neighbours who ran when they saw smoke coming out of Smt. Geeta's house. According to them, when they reached the place, they found that the accused- respondent was fast asleep. Since neither of these witnesses have been declared hostile, the prosecution is bound by their testimonies. Thus, it is safe to hold that the accused-respondent had not done anything to instigate, to provoke or to intentionally aid the commission of suicide by her. After all at the critical moment, he was fast asleep. All these points have been noted by the learned Judge.
In catena of cases, the Hon'ble Supreme Court has also held that the judgment of acquittal should not be disturbed lightly by the appellate court. The judgment of acquittal can be upset only if the judgment is perverse, or it is not based on any cogent evidence. However, if two views are possible, and a 13 particular view has been taken by the learned trial court, then it is not for the appellate court to substitute its view for that of the trial court. In the present case, the learned judge has meticulously examined, and critically analysed the evidence. The view taken by the learned judge is certainly tenable. Therefore, this Court does not find any illegality or perversity in the impugned judgment dated 18.11.2009. The criminal leave to appeal is devoid of any merit; it is, hereby, dismissed.
[R.S.CHAUHAN] J arti sr.no.26