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2003 DIGILAW 794 (AP)

S. E. JOHN CHAKRAVARTHI v. State Of A. P.

2003-06-24

GOPALA KRISHNA TAMADA

body2003
GOPALA KRISHNA TAMADA, J. ( 1 ) THE appellant herein is A1 in S. C. No. 504/97 on the file of the additional Sessions Judge, Hindupur. The appellant and two others were tried by the learned Additional Sessions Judge for the offence punishable under Sections 498-A and 304-B IPC. The learned Trial Judge after considering the entire evidence, both oral and documentary, held that the prosecution miserably failed to establish the guilt of A1 to A3 for the alleged offences punishable under Sections 498-A and 304-B, but, however, he convicted the appellant herein, i. e. Al for the offence punishable under Section 306 IPC. ( 2 ) THE gravaman of the charge against the appellant is that he along with two others harassed the deceased, i. e. , the wife of the appellant, for bringing more dowry on account of which the deceased committed suicide. The case of the prosecution, according to the evidence let in during the course of trial, is that the appellant who was a constable fell in love with the deceased by name Jayasree, daughter of pws 1 and 2. As their marriage was not to the liking of the parents on either side, they got themselves married in the year 1995 in anjaneyaswamy temple at Saidapuram of anantapur District. It is further alleged that though they lived for some time happily, three months after the marriage, the appellant started harassing and ill-treating her and similarly the parents of the appellant, i. e. , A2 and A3 also demanded an amount of Rs. 1,00,000/- towards dowry and also a motor cycle. That apart, the appellant started suspecting the fidelity of the deceased. While so, on 17. 12. 1996 at about 4. 30 p. m. , the deceased poured kerosene on her and set fire to herself. On hearing the cries of the deceased, the appellant brought out the deceased and in that process he also sustained burnt injuries. After bringing her out of the house and on seeing her condition, the appellant himself took her to the Government hospital at Penukonda for treatment where Dr. G. V. Prasad (PW15), the Civil Assistant Surgeon, admitted her in the hospital and sent intimation to the police, as it is medico-legal case. The Inspector of police, Penukonda P. S. , (PW16) immediately rushed to the hospital and recorded the statement (Ex. G. V. Prasad (PW15), the Civil Assistant Surgeon, admitted her in the hospital and sent intimation to the police, as it is medico-legal case. The Inspector of police, Penukonda P. S. , (PW16) immediately rushed to the hospital and recorded the statement (Ex. P23) of the deceased and registered a case in Cr. No. 102/96 for the offence punishable under Section 498-A IPC and issued express FIR (Ex. P21 ). On requisition, the Magistrate, Penukonda (PW17), visited the hospital and recorded the dying declaration (Ex. P24) of the deceased. Subsequently the deceased succumbed to severe burn injuries and on intimation, the FIR was altered and section 304-B IPC is also included. The sub-Divisional Police Officer (PW14) took up the investigation and the Mandal revenue Officer, Penukonda, conducted inquest over the dead body of the deceased and the inquest report was marked as Ex. P9. The Women Assistant Civil Surgeon, penukonda (PW9) conducted autopsy over the dead body of the deceased and issued post-mortem Certificate Ex. (P10 ). According to Ex. P10, the deceased died of shock due to ante-mortem burns. After completing the investigation, the Sub-Divisional Police officer, Penukonda, filed charge-sheet. ( 3 ) THE plea of the appellant is one of total denial. In all, the prosecution examined pws. 1 to 17 and got marked Exs. Pl to P24 and MOs. 1 to 4. All the witnesses excepting the official witnesses turned hostile. In the light of the said hostility, the Court below acquitted the appellant and A2 and A3 of the offence punishable under sections 498-A and 304-B IPC. However, basing on the dying declaration (Ex. P24), the Court below has come to the conclusion that the appellant is guilty of the offence punishable under Section 306 IPC and, accordingly, sentenced him to under to rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 2000/- and in default to suffer simple imprisonment for a period of one month. ( 4 ) THE learned Counsel appearing for the appellant Sri Hanumant Reddy, contended before me stating that having held that the offence punishable under sections 498-A and 304-B are not proved, the learned Sessions Judge ought not to have convicted the appellant for the offence punishable under Section 306 IPC as there is no charge to that effect. ( 4 ) THE learned Counsel appearing for the appellant Sri Hanumant Reddy, contended before me stating that having held that the offence punishable under sections 498-A and 304-B are not proved, the learned Sessions Judge ought not to have convicted the appellant for the offence punishable under Section 306 IPC as there is no charge to that effect. The learned Counsel further submitted to attract the provisions of Section 306 IPC, the ingredients of Section 107 IPC are to be satisfied and in the absence of satisfaction of the ingredients of the said section, the court below ought not to have convicted the appellant for the offence punishable under Section 306 IPC and thus concluded his arguments stating that the appellant is entitled for an acquittal. ( 5 ) ON the other hand, the learned Public Prosecutor contended before this court that the offence as alleged against the appellant squarely attracts the provisions of Section 498 Explanation (a) IPC as the willful conduct on the part of the appellant in suspecting the fidelity of the deceased, abusing her and beating her every day has provoked her to commit suicide. The learned public Prosecutor further submitted that that though no charge under Section 306 IPC is framed, in view of the dying declaration, the court below though came to the conclusion that the offence punishable under Sectior 304-B is not made out, is yet justified it coming to the conclusion that the offenc; punishable under Section 306 IPC is very much proved and, therefore, the judgment of the Court below cannot be interfered with. ( 6 ) ADMITTEDLY, PWs. 1 to 7, who are blood relatives of the deceased, and the neighbours of the deceased did not support of the case of the prosecution. In the absence of any positive offence about the alleged harassment or cruelty for dowry, it is not safe to convict the appellant for the offence punishable under Section 498-A and accordingly, the learned Sessions Judge acquitted the appellant for the said offence. In the light of the hostility of the witnesses, the entire case rests only on the dying declaration (Ex. P24) recorded by the learned judicial First Class Magistrate (PW17 ). As stated by me just now that the entire case rests on the dying declaration, it is necessary to extract the said dying declaration (Ex. In the light of the hostility of the witnesses, the entire case rests only on the dying declaration (Ex. P24) recorded by the learned judicial First Class Magistrate (PW17 ). As stated by me just now that the entire case rests on the dying declaration, it is necessary to extract the said dying declaration (Ex. P24) which is as follows:"to die I poured kerosene and ignited the fire. My husband is daily scolding me. He is daily beating me after consuming alcohol suspecting that I am having an affair with his friend Madhu. So I poured kerosene. My parents-in-law are not willing for the marriage. I am now pregnant of 6 months. " ( 7 ) FROM a perusal of the dying declaration, it is clear that that the deceased poured kerosene on her body and ignited fire on account of which she received burnt injuries. Now the point for consideration is as to whether the said pouring of kerosene and igniting fire is on account of the abetment by the appellant as alleged. Abetment is defined under Section 107 IPC which reads as follows:"section 107 Abetment of 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. " ( 8 ) AS it is not the case of the prosecution that the appellant has instigated the deceased to do this particular act of committing suicide by pouring kerosene and igniting fire etc. , it cannot be said that the first limb of Section 107 IPC is attracted. Similarly, the second limb is also not attracted. As far the third limb of Section 107 IPC is concerned, it deals with intentionally aiding by any act or illegal omission. In the instant case, according to the deceased she poured kerosene on herself and ignited fire on account of the ill-treatment she meted out on account of the suspicious conduct by her husband. I do not think the said ill-treatment would amount to intentionally aiding or instigating as defined under Sec. 107 IPC. In the instant case, according to the deceased she poured kerosene on herself and ignited fire on account of the ill-treatment she meted out on account of the suspicious conduct by her husband. I do not think the said ill-treatment would amount to intentionally aiding or instigating as defined under Sec. 107 IPC. The law as held by the Apex Court on this aspect is entirely different. In fact the Apex court in Shriram v. State of Uttar Pradesh, air 1975 SC 175 , held that "in order to constitute abetment, the abetter must be shown to have "intentionally" aided to commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abetter is not enough compliance with the requirements of Section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged a better happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abetment under the third paragraph of section 107". ( 9 ) THAT apart the conduct of the appellant is to be taken into consideration. The deceased in her statement (Ex. P23) recorded by the Inspector of Police, clearly stated that her body was burnt to some extent and her husband, i. e. , the appellant herein, carried her out of the house and during the course of which his cheek was also burnt. It is further stated in Ex. P23 that the appellant brought her to the Government hospital, Penukonda for treatment and admitted her there. In the light of the said conduct on the part of the appellant also it is highly improbable to believe that he abetted the commission of suicide on account of which the deceased committed suicide. It is further stated in Ex. P23 that the appellant brought her to the Government hospital, Penukonda for treatment and admitted her there. In the light of the said conduct on the part of the appellant also it is highly improbable to believe that he abetted the commission of suicide on account of which the deceased committed suicide. In the light of the discussion made above, i have no hesitation to hold that the Court below erred in convicting the appellant for the offence punishable under Section 306 ipc and, accordingly, the conviction and sentence imposed by the Court below against the appellant for the offence punishable under section 306 IPC is hereby set aside. ( 10 ) THE appeal is accordingly allowed and the bail bonds, if any, shall be cancelled forthwith.