criminal appeal no.197 of 2015 - gauhati high courtbarpeta police station case no.1068/10 was...
TRANSCRIPT
Crl. A. 197/2015 Page 1 of 28
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 2 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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 23 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 24 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 25 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 :-
Crl. A. 197/2015 Page 26 of 28
“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 27 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 28 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