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2007 DIGILAW 559 (AP)

Shaik Hussain v. State of A. P.

2007-06-15

A.GOPAL REDDY

body2007
Judgment :- The appellant/sole accused filed this criminal appeal challenging the judgment passed by the V Additional Metropolitan Sessions Judge, Hyderabad, in S.C.No. 513 of 1999, dated 20.08.2002, whereby the accused was convicted for the offences punishable under Sections 498-A, 324 and 306 IPC and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for one year for the offence under Section 306 IPC. In view of the sentence imposed for the offence under Section 306 IPC no separate sentence was imposed for the offences under Sections 498-A and 324 IPC. The accusation, which led to the conviction of the appellant is that on 10.06.1999 at about 5 pm., the accused being the husband of Smt. Farzana Begum @ Husna Begum (hereinafter referred to as ‘the deceased’), subjected her to cruelty and harassment by beating her indiscriminately with belt, sticks, wooden plank etc., in a drunken state, and thereby subjected her to physical as well as mental cruelty, which driven her to commit suicide and thereby committed an offence punishable under Section 498-A IPC. Secondly, on the same date, same place and same time, he voluntarily caused hurt to the deceased with belt and pestle, which is a deadly weapon, and thereby he committed an offence punishable under Section 324 IPC. Thirdly, on such beatings, unable to bear the torture, the deceased poured kerosene on herself and burnt herself and thereby the accused abetted her to commit suicide and thereby he committed an offence punishable under Section 306 IPC. When the charges were read over to the accused, he pleaded not guilty and claimed for trial. In order to substantiate the charge, the prosecution examined PWs.1 to 12 and marked Exs.P.1 to P.6 apart from Mos.1 to 10. Except marking Ex.D.1-161 Cr.P.C. statement of PW.2, no other evidence was adduced on behalf of the defence. Learned Sessions Judge by the impugned judgment, found the accused guilty for the charges framed against him and accordingly convicted and sentenced him as referred to above. Hence the present appeal by the accused. The prosecution story as narrated during the course of trial, can be stated briefly as follows. Learned Sessions Judge by the impugned judgment, found the accused guilty for the charges framed against him and accordingly convicted and sentenced him as referred to above. Hence the present appeal by the accused. The prosecution story as narrated during the course of trial, can be stated briefly as follows. PW.1, who is the brother of the deceased, lodged a complaint on 10.06.1999 under Ex.P.1 before the Inspector of Police, Golconda Police Station, alleging that his deceased sister was given in marriage with the accused in 1993 and they blessed with three children. The accused was in the habit of consuming alcohol and beating her daily. After some time he came to know that the accused married another lady. When the younger brother of PW.1 died, the accused and the deceased have attended the last rites and left to their house. Thereafter, again there was a quarrel took place between them due to which his sister received head and eyes injuries. Then his sister came to his house with injuries and he got treated her. Then once again the accused came to PW.1’s house and took the deceased to his house. On 10.06.1999 evening, the accused came to his house in a fully drunken condition and bet the deceased in front of his another sister Ghousia and sister-in-law Sameena and went out. After some time the deceased poured kerosene on her and set fire to herself. On deceased making hue and cry, his sister and sister-in-law put out the fire with the help of neighbours and shifted her to Government hospital. While undergoing treatment, the deceased succumbed to the burn injuries. PW.12-the Sub-Inspector of Police received the report from PW.1 registered the same as a case in Crime No.76 of 1999 for the offence punishable under Section 306 IPC and issued Ex.P.6 F.I.R. During the course of investigation, he examined PW.1, recorded his statement, and visited scene of offence. Since it was late night, he posted two constables to guard the scene and on the next day in the presence of PWs.6 and 7 he observed the scene of offence under Ex.P.2, photographed the scene, seized Mos.1 to 10 under a cover of panchanama under Ex.P.3, drew the rough sketch of the scene, and thereafter he gave requisition to M.R.O. to conduct inquest over the dead body of the deceased. He also examined PWs.2 to 5 on 12.06.1999. He also examined PWs.2 to 5 on 12.06.1999. On 14.06.1999 he arrested the accused and remanded him to judicial custody. Thereafter, he altered the F.I.R. by adding Section 498-A IPC. After receipt of relevant reports he laid charge sheet. To support the contents of Ex.P.1 PW.1 was examined. He testified that about one year after the marriage of the deceased and the accused, a male child was born to them. Until then they were amicable. Thereafter the accused started beating the deceased even on petty matters. Since the accused went to Gulf country by virtue of his employment, PW.1 brought his sister to his house and gave a room to her to reside. After 18 months of his stay at Gulf, the accused returned to home. They were amicable for some time and got three more sons. Thereafter they started quarrelling on petty matters in view of the accused was not providing any money for the maintenance of the family. When his younger brother Azam Khan died they all went to their village Pedda Mangalaram where they stayed for 10 days. After the obsequies, the accused brought the deceased to Golconda. 20 days later, the accused bet the deceased and caused injuries on her face then PW.1 got her treated medically. 10 days later, the accused took her to his house promising that he would not beat the deceased and would look after her well. For two or three days they were amicable. On 10.06.1999, the accused beat the deceased severely from 4.30 pm., to 5.30 pm., and thereafter, the deceased got burnt and she was shifted to Osmania General Hospital. When he went to the hospital, he was informed that the deceased was brought dead to the hospital. Thereafter, he went to Golconda P.S. and lodged Ex.P.1 report. In his cross-examination he admitted that he has not mentioned in Ex.P.1 that at the time of marriage they presented four tolas of gold and Chetak scooter to the accused. He also admitted that he was not present when the accused bet the deceased on her face. PW.2, who is the sister-in-law of the deceased, in her testimony stated that for each and every matter the accused and the deceased used to quarrel and the accused used to come home in drunken condition and abuse the deceased. He also admitted that he was not present when the accused bet the deceased on her face. PW.2, who is the sister-in-law of the deceased, in her testimony stated that for each and every matter the accused and the deceased used to quarrel and the accused used to come home in drunken condition and abuse the deceased. On the date of incident, the accused came there in heavily drunken state at 4.30 pm., questioning the deceased why she allowed the children to play outside, and started beating her. After the children came home, the accused bet them also severely. Meanwhile, another sister-in-law of PW.2 came there and questioned the accused why he was beating his wife and children. Then the accused threatened her not to meddle with his affairs and started attacking the deceased. The deceased asked Gousia to go away. Even after Gousia left the place, the accused bet the deceased indiscriminately with whatever object he could pick up. The disputes between the accused and the deceased were in respect of their children, their finances and on the ground that the deceased was not preparing food properly. In her cross-examination she admitted that she did not state before the police that the accused bet the deceased indiscriminately. PW.3, who is the mother of the deceased, corroborated the evidence of PW.2. She stated that she came to know through her daughter-in-law about the incident. PW.4, who is another brother of the deceased, corroborated the evidence of PWs.1 and 2. He stated that he came to know through neighbours that the accused bet the deceased severely in connection with his children and thereafter the deceased got burnt and that with the help of his wife and other sister, he shifted the deceased to the hospital. PW.5 did not support the case of prosecution, and hence he was declared hostile. PWs.6 to 8 are the panch witnesses to the scene of observation, seizure of material objects and for conducting inquest over the dead body of the deceased. PW.9 is the Civil Assistant Surgeon, Golconda Hospital at the relevant point of time. According to him on 10.06.1999 the deceased was brought dead to the hospital at about 6 pm. Since her body got fully burnt, he advised to take the dead body to O.G.H. Mortuary. PW.9 is the Civil Assistant Surgeon, Golconda Hospital at the relevant point of time. According to him on 10.06.1999 the deceased was brought dead to the hospital at about 6 pm. Since her body got fully burnt, he advised to take the dead body to O.G.H. Mortuary. PW.10-the Mandal Revenue Officer, deposed that on requisition from the police at the Mortuary of O.G.H., he conducted inquest over the dead body of the deceased on 11.06.1999 at about 11.30 am., in the presence of PW.8 and another and issued Ex.P.4-Inquest report. According to him the deceased died due to burns. PW.11 is the Doctor, who conducted autopsy over the dead body of the deceased and found antimortum dermo epidermal mixed burns over the dead body of the deceased. He also noticed three antimortum injuries, which reads as follows. 1. Abrassion of 6 x 6 cms. Noted over the left frontal region. 2. Contusion of scalp of 5 x 5 cms. Noted over left parital eminance. 3. Abrassion of 1 x 1 cm., noted over the left temple. According to his opinion the cause of death of the deceased is due to burns and approximate death is about 12 to 24 hours prior to his post mortem examination. He issued Ex.P.5-P.M. certificate. According to him the injuries noted above are not possible due to contact with either pestle or belt, if MO.1 is folded and then a person stuck with it, injury No.1 is possible. The injuries are not possible by coming into contact with MO.5, but they are possible when a person struggles after sustaining burns. PW.12 is the investigating officer, who investigated into the matter and laid charge sheet. From the above evidence, it is clear that the prosecution is able to establish that the deceased poured kerosene on her unable to bear the torture meted out to her and died due to burn injuries. Now the crucial question, which falls for consideration is whether the accused can be convicted for the offences for which he stood charged. Before dealing with the above question, an insight into Section 498-A IPC is appropriate, which reads as under. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extent to three years, and shall also be liable to fine. Before dealing with the above question, an insight into Section 498-A IPC is appropriate, which reads as under. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extent to three years, and shall also be liable to fine. The evidence on record clearly establishes that the deceased was subjected to harassment and cruelty by his willful conduct, which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. Therefore the accused is liable to be punished for the offence under Section 498-A IPC and the lower Court rightly convicted the accused for the said offence as the prosecution is able to bring home the guilt of the accused beyond reasonable doubt for the said offence and the conviction recorded thereon do not call for any interference. The postmortem report and the evidence of the Doctor would clearly go to show that the burn injuries caused on the dead body are the root cause of the death of the deceased and the evidence of PW.2 clearly goes to show that before the deceased commit suicide the deceased was subjected to cruelty by the accused by beating indiscriminately, which drove her to commit suicide and there by he committed the offence punishable under Section 324 IPC and the same needs no interference. Coming to the conviction recorded under Section 306 IPC, I see sufficient force in the submission made by Sri C. Padmanabha Reddy, the learned Senior Counsel for the appellant that merely on the allegation that the deceased committed suicide unable to bear the harassment, cannot be a ground to convict the accused for the offence punishable under Section 306 IPC since he neither abetted her nor instigated her to attract Section 306 IPC. Section 306 IPC reads as under. 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. Section 306 IPC reads as under. 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. Section 107 IPC defines abetment, which reads as under: A person who 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 the thing. In Mahendra Singh v. State of M.P. (1995 Supp. (3) SCC 731) wherein the accused was charged for an offence under Section 306 IPC basically basing upon the dying declaration of the deceased, while considering the definition of abetment under Section 107 IPC the Supreme Court held that the charge and conviction of the accused for an offence under Section 306 IPC is not sustainable merely on the allegation of harassment to the deceased. It was further held that neither of the ingredients of abetment are attracted on the statement of the deceased. In Ramesh Kumar v. State of Chhattisgarh ( (2001) 9 SCC 618 ) the Supreme Court while considering the charge framed under Section 306 IPC on the basis of dying declaration recorded by an Executive Magistrate in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and set fire, held as under: A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord and difference 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 for abetting the offence of suicide should be found guilty. In JAMMU SINGH v. STATE OF BIHAR ( AIR 1967 SC 553 ) a three Judge Bench of the Supreme Court held that the question of the abettor’s guilt depends on the nature of the act abetted and the manner in which the abetment was made. Under Section 107 IPC a person abets the doing of an act in either of three ways which can be: instigating any person to do an act; or engaging with one or more person in any conspiracy for the doing of that act; or intentionally aiding the doing of that act. If a person instigates another or engages with another in a conspiracy for the doing of an act which is an offence, he abets such an offence and would be guilty of abetment under Section 115 or Section 116 IPC, even if the offence abetted is not committed in consequence of the abetment. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed. This is clear from Explanation 2 and illustration (a) thereto, to Section 108 IPC. In SHRI RAM v. STATE OF U.P. (AIR 1975 175) the Apex Court held as under: “……Thus, in order to constitute abetment, the abettor must be shown to have “intentionally” aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107… It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107… It is not enough that an act on the part of the alleged abettor 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 para of Section 107.” In SURENDER v. STATE OF HARYANA ((2007) 2 SCC (Crl.) 210) the Supreme Court while agreeing the finding of the High Court of Punjab and Haryana confirmed the conviction of the appellant under Section 306/34 and 498A/34 IPC and held that the deceased—Pushpa was pregnant at the time of the suicide; that a young pregnant woman having a child in the womb would not ordinarily commit suicide unless she was compelled to do so and further she would not have felt depressed if she had not been harassed on account of demand for dowry. In the light of law as aforementioned i.e. Mahendra Singh v. State of M.P. and Ramesh Kumar v. State of Chhattisgarh (1 and 2 supra), even accepting the evidence adduced by the prosecution that the accused beat the deceased and left the house and thereafter then deceased poured kerosene on herself and set fire herself, in the absence of any instigation and the accused intentionally aiding the deceased in committing suicide, he cannot be convicted for the offence under Section 306 IPC. In view of the same, the conviction and sentence of imprisonment of five years imposed on the appellant/accused for the offence under Section 306 IPC is set aside. Since no separate sentence was awarded by the lower Court for the offences under Sections 498A and 324 IPC, now he is convicted and sentenced to undergo rigorous imprisonment for three years for the offence under Section 498A IPC and to pay fine of Rs.2,500/-, in default to suffer simple imprisonment for a period of six months; and he is further convicted and sentenced to undergo rigorous imprisonment for three years for the offence under Section 324 IPC and to pay fine of Rs.2,500/-, in default to suffer simple imprisonment for a period of six months. Both the sentences shall run concurrently. Both the sentences shall run concurrently. The fine amount, if any, paid by the accused for the offence under Section 306 IPC shall be adjusted towards the fine amount now imposed. The period of detention undergone, if any, shall be set off under Section 428 Cr.P.C. The appellant/accused shall be taken into custody forthwith to serve out the sentence of imprisonment now awarded. Criminal Appeal is partly allowed, to the extent indicated above.