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Madhya Pradesh High Court · body

2008 DIGILAW 1229 (MP)

AYUB BEG v. STATE OF M. P.

2008-10-17

K.S.CHAUHAN

body2008
Judgment ( 1. ) THIS criminal appeal under Section 374 (2) of the Code of Criminal procedure has been filed being aggrieved by the judgment, finding and sentence dated 23/08/1994 passed by 2nd Additional Sessions judge, East Nimar, Khandwa in Sessions Trial No. 36/94, whereby the appellant has been convicted under Section 306 I. P. C. and sentenced to R. I. of 5 years and a fine of Rs. 500/-, in default of payment of fine further to undergo R. I. for 6 months. ( 2. ) PROSECUTION case in short is that on 19. 10. 1993, Noorjahan the mother of Zareena informed at Police Station Moghat Road, khandwa that her daughter Zareena was married with appellant ayub prior to 1? years of the incident. Appellant suspected her character and used to harass and also caused marpeet. On account of ill-treatment her daughter committed suicide by hanging. Marg intimation No. 55/93 was registered and the inquiry was made. It was found that on account of ill-treatment and misbehaviour of the appellant Zareena committed suicide. Crime no. 377/93 was registered under Section 306 I. P. C. The postmortem of the dead body of Zareena was conducted, accordingly it was found that the mode of death was asphyxia due to hanging within 24 hours of examination. The map was prepared. Nylon rope was seized from the appellant. Statements of the witnesses were recorded. After completing the usual investigation, charge sheet was filed in the Court of C. J. M. , Khandwa, who committed the case to the Session Courts for trial. ( 3. ) APPELLANT stood charged under Section 306 I. P. C. He denied the guilt and claimed to be tried mainly contending that he has been falsely implicated. Prosecution examined as many as 11 witnesses whereas the appellant did not examine any witness in his defence. After appreciating the evidence trial Court found him guilty under section 306 I. P. C and sentenced thereunder as stated hereinabove in para no. 1 of this judgment. Being aggrieved by the judgment, finding and sentence, the instant appeal has been preferred on the grounds mentioned in the memo of appeal. ( 4. ) SHRI Siddiqui, Advocate was engaged by the appellant as his counsel but he did not appear on the date of hearing on 11/08/2008 to argue the case. The appeal was pending since 1994. Being aggrieved by the judgment, finding and sentence, the instant appeal has been preferred on the grounds mentioned in the memo of appeal. ( 4. ) SHRI Siddiqui, Advocate was engaged by the appellant as his counsel but he did not appear on the date of hearing on 11/08/2008 to argue the case. The appeal was pending since 1994. Therefore, Shri Sanjay Patel has been appointed from the panel of the High Court Legal Aid Services Committee to argue the case on behalf of the appellant so that the appeal may be disposed of expeditiously. ( 5. ) LEARNED counsel for the appellant submitted that the trial Court has not appreciated the evidence in proper perspective. There were love affairs in between the accused and deceased and, therefore, there was no question of demand of dowry. Prosecution witnesses tried to establish the story of demand of dowry which has already been rejected by the trial Court. It has also not been proved that the deceased was subjected to cruelty by the appellant. Learned counsel further submitted that if the assault was made before one day of the incident, then why the injuries were not found on the person of deceased. It go to show that no any beating was done by the appellant to the deceased prior to one day of the incident. On doubting her character no question of abetment of commission of suicide arises. No evidence has been collected by the investigating officer regarding the abetment of commission of suicide. All the ingredients require to prove the offence under Section 306 I. P. C. has not been established, therefore, the finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. ( 6. ) ON the contrary, Shri G. P. Singh, learned Dy. Govt. Advocate appearing on behalf of respondent/state submitted that after 6 months of marriage appellant started harassing his wife Zareena and as a consequence of his ill-treatment and misbehaviour she committed suicide. The prosecution has proved the case beyond reasonable doubt against the appellant and the trial Court has rightly convicted and sentenced him, therefore, it does not call for any interference. ( 7. ) THE main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under Section 306 I. P. C? ( 8. ( 7. ) THE main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under Section 306 I. P. C? ( 8. ) THERE is evidence that Zareena was married with this appellant before 1? years of the incident. She died by hanging on 19. 10. 1993. Dr. Rajesh Verma (PW-9) after conducting the postmortem examination opined that her death was due to asphyxia as a result of hanging. Thus, it is not proved that zareena met with an unnatural death within 7 months of her marriage. ( 9. ) NOW the question is that whether the appellant abetted the commission of suicide. ( 10. ) NOORJAHAN (PW-2) is mother and Rahmat Khan (PW-3) is father of the deceased Zareena. Both have given evidence that Zareena was subjected to cruelty on account of demand of dowry but this was not the case of prosecution itself and they have developed the story regarding demand of dowry by the appellant. The trial Court has rightly disbelieved this theory. It is also reflected from the letters ex. D-2 to Ex. D-4 filed on behalf of the appellant that there was love affairs in between the deceased and appellant and, therefore, there was no question of demand of dowry. Thus the evidence of parents of Zareena in this regard is not acceptable. ( 11. ) THE prosecution case was that the appellant was doubting the character of Zareena, therefore, she was being harassed but no such evidence has been adduced in this regard and the witnesses have been contradicted from their police statements recorded during the course of investigation. Thus now the theory has already been changed from making the harassment on doubting the character of deceased to demand of dowry by him. Such evidence cannot be accepted. ( 12. ) THESE witnesses have stated that prior to this incident the appellant poured the kerosene on the deceased but she escaped and came to her parents house. The police was also informed but no any document in this regard has been produced. In absence of it the evidence of these witnesses cannot be accepted because there may be the possibility that they are giving such evidence after the death of their daughter. ( 13. The police was also informed but no any document in this regard has been produced. In absence of it the evidence of these witnesses cannot be accepted because there may be the possibility that they are giving such evidence after the death of their daughter. ( 13. ) THE evidence has been given that before one day of this incident appellant brought Zareena from her parents house and gave beating but no any external injury other than the ligature mark was found on the person of Zareena, therefore, the ocular evidence adduced in this behalf does not find corroboration from the medical evidence. It appears that the appellant was doubting the character of his wife and he wanted that she should not go to the parents house. His intention was for her improvement rather than to instigate her to commit suicide. ( 14. ) IN the case of Sanju @ Sanjay Singh v. State of Madhya pradesh, AIR 2002 SC 1998 the Apex Court has held thus: ? (7) Section 107, I. P. C. defines abetment to mean that a person abets the doing of a thing if he firstly, 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. (9) In Swamy Prahaladdas v State of M. P. and Anr. , 1995 supp. (3) SCC 438, the appellant was charged for an offence under Section 306, I. P. C. on the ground that the appellant during the quarrel is said to have remarked the deceased ?to go and die?. This Court was of the view that mere words uttered by the accused to the deceased ?to go and die? were not even prima face enough to instigate the deceased to commit suicide. (10) In Mahendra Singh v. Sate of M. P. 1995 Supp. (3)SCC 731, the appellant was charged for an offence under Section 306 I. P. C. basically based upon the dying declaration of the deceased which reads as under: ?my mother-in-law and husband and sisterin-law (husbands elder brothers wife)harassed me. They beat me and abused me. (10) In Mahendra Singh v. Sate of M. P. 1995 Supp. (3)SCC 731, the appellant was charged for an offence under Section 306 I. P. C. basically based upon the dying declaration of the deceased which reads as under: ?my mother-in-law and husband and sisterin-law (husbands elder brothers wife)harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister in-law. Because of these reasons and being harassed I want to die by burning. ? (11) This Court, considering the definition of ?abetment? under Section 107, I. P. C. found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased. (12) In Ramesh Kumar v. State of Chhattisgarh (2001)9 SCC 618 , this Court while considering the charge framed and the conviction for an offence under Section 306, I. P. C. 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 had set fire. Acquitting the accused this Court said: ?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. ? (13) Reverting ??????????????. 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? ? (13) Reverting ??????????????. 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 unadvisable 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 in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensured by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below. ? ( 15. ) IN the case of Devi Singh Rattan Singh v. State of Madhya pradesh, 1995 M. P. L. J. 757, it has been held that the liability for offence under section 306 is dependent on the act of abetment which must be for committing suicide. ( 16. ) TO constitute offence, accused must have provoked, incited or induced deceased to commit suicide. There must be mens rea also. Act of accused must be such that deceased was left with no alternative but to commit suicide. (2001) 9 SCC 618 , 2002 SCC (Cri.) 1141, 2000 (3) M. P. H. T. 164 = 2000 (1) JLJ 142 , (1990) 4 SCC 76 , (1977) 4 SCC 39 and (1979) 3 SCC 4 followed. ( 17. Act of accused must be such that deceased was left with no alternative but to commit suicide. (2001) 9 SCC 618 , 2002 SCC (Cri.) 1141, 2000 (3) M. P. H. T. 164 = 2000 (1) JLJ 142 , (1990) 4 SCC 76 , (1977) 4 SCC 39 and (1979) 3 SCC 4 followed. ( 17. ) IN the case of Anant Kumar Denial v. State of Chhattisgarh, 2003 (5) M. P. H. T. 6 (CG), it has been held that in order to prove the offence under Section 306, IPC the element of harassment and cruelty must be to the extent that the deceased was not left with other alternate but to commit suicide. ( 18. ) IN the case of Malkhan v. State of M. P. , 2000 (2) M. P. H. T. 118 (NOC), it has been held that simple beating given to deceased ipso facto was not enough to prove that the accused persons had abetted him to commit suicide. ( 19. ) CRUELTY has been defined under Section 498-A, IPC as follows: ?498a. Husband or relative of husband of a woman subjecting her to cruelty. ? 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 extend to three years and shall also be liable to fine. Explanation-For the purpose of this section, "cruelty" means (a)any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b)harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. ? ( 20. ? ( 20. ) SO far as the present case is concerned, it has already been held that since it was a love marriage, therefore, there was no question of demand of dowry and no such demand was made by appellant but the parents of the deceased developed the story in this regard after the death of their daughter, therefore, no reliance can be placed on such evidence and the conduct of appellant was not of such a nature as was likely to drive Zareena to commit suicide or to cause grave injury or endanger her life, therefore, all the essential ingredients require to prove the cruelty has not been established in this case. ( 21. ) FROM the foregoing discussion, it can be said that the prosecution has failed to prove the case beyond reasonable doubt against the appellant, therefore, the trial Court has committed an illegality in convicting and sentencing the appellant hence the appeal deserves to be allowed. ( 22. ) CONSEQUENTLY, the appeal succeeds and is allowed. The conviction and sentence passed by the trial Court are hereby set aside. The appellant is acquitted from the charge under Section 306, I. P. C. He is on bail. His bail bonds are discharged. He be directed to set at liberty.