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2009 DIGILAW 597 (AP)

D. Vijay Kumar v. State of A. P. , rep. by P. P.

2009-08-28

B.CHANDRA KUMAR

body2009
Judgment :- Since both these Revisions in Crl.R.C.No.1307 of 2005 and Crl.R.C. No.1351 of 2005 are directed against the orders both dated 19.07.2005 in Crl.M.P.Nos.116 and 115 of 2005 respectively and arise out of the same S.C.No.690 of 2004 on the file of the V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, they are being disposed of by this common order. 2. The petitioner in Crl.R.C.No.1307 of 2005 is A-1 and the petitioner in Crl.R.C.No.1351 of 2005 is A-3. The petitioners will be referred as A1 and A3 hereinafter. A1 and A3 filed petitions in Crl.M.P. Nos.116 and 115 of 2005, under Section 227 Cr.P.C praying to discharge them for the offences punishable under Sections 306 and 506 IPC respectively. The learned V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, by separate orders dated 19.07.2005 in S.C. No.690 of 2004 dismissed those petitions. Aggrieved by the same, they have preferred these revisions. 3. The brief facts of the case are as follows: The deceased Smt. Sangeetha Sharma, aged about 33 years, was a practising Advocate in A.P. High Court, Hyderabad. She was married to one Pramod Kumar Sharma of Akola (Maharashtra) in the year 1982 and was blessed with a son Nitesh Sharma, who was aged about 14 years by the date of the unfortunate incident. It appears that differences arose between the deceased and her husband and she had obtained divorce from her husband through the Family Court, Secunderabad in the year 1988 and she was staying with her parents along with her son. The father of the deceased by name Bhiharilal Sharma is working as General Manager in Alluminium India, Secunderabad. His son Sunil is doing business at Bangalore. Master Nitesh Sharma was studying 10th class during relevant period. The deceased, after completion of LLM Course, started practise as junior Advocate initially in the office of Sri Challa Kodandaram. Subsequently she joined the office of A-1. A-2 and A-3 were also working as juniors under A-1. The deceased worked as junior Advocate in the office of A-1 from 23-06-1999 to 22-12-1999. The deceased was also owning a flat bearing No.304, Gandham Plaza Apartments, Chinna Thokatta, New Bowenapally, Secunderabad. 4. It is alleged that though A-1 treated the deceased well initially, later on he started making sexual advances towards her and proposed to her to be his mistress and to develop sexual relationship with him. The deceased was also owning a flat bearing No.304, Gandham Plaza Apartments, Chinna Thokatta, New Bowenapally, Secunderabad. 4. It is alleged that though A-1 treated the deceased well initially, later on he started making sexual advances towards her and proposed to her to be his mistress and to develop sexual relationship with him. It is also alleged that he had promised her to secure the post of Assistant Government Pleader by virtue of his prospective elevation to the post of Judge of High Court of Andhra Pradesh. He had also asked the deceased to provide her flat to him for organizing weekend parties and other immoral activities. He had also demanded her to give money on one occasion. It is further alleged that A-3 also pressurised her to accept the proposal of A1. It is further alleged that A-1 threatened the deceased not to disclose his attempts to anybody, otherwise he would kidnap her and her son. It is also alleged that on 24-12-1999, A-3 threatened the deceased over telephone to accept the proposal of A-1 failing which they would kidnap her and her son or cause harm to her parents. He had also wanted her not to take any action against them. The further case of the prosecution is that the deceased informed about the harassment of the accused to her parents and her brother and her family friends P. Vijaya Kumar (LW-25), P. A. Kamaleswari, Advocate (LW-8), T. Suresh Babu (LW-12), Hon'ble Sri Justice S. Parvatha Rao (LW-14), A. Venkata Sai Prasad (LW-15) and Gomaram Bitchapathi Reddy, Lecturer, Law College, (LW-16). When Smt. P.A. Kamaleswari took the deceased to Smt. Kalpana Kannabiran (LW-9), Sri K.G. Kannabiran (LW-10) and Smt. Vasantha Kannabiran (LW-11), Smt. Kalpana Kannabiran and Smt. Vasante Kannabiran, who were the President and Advisor of ASMITHA (Resource Centre for Women), advised the deceased to give a written complaint. Then a written representation was sent to Sri E. Yalla Reddy, Chairman, Bar Council of A.P., Hyderabad. Hon'ble Sri Justice S. Parvatha Rao also advised the deceased to give a complaint to the Bar Council and to the police. The deceased had also orally informed Sri C.V. Mohan Reddy, Advocate about the harassment by some male advocates who in turn sent his junior Sri T. Praveen, Advocate, to accompany the deceased and identify them, but the said Advocates, who harassed the deceased, were not found. The deceased had also orally informed Sri C.V. Mohan Reddy, Advocate about the harassment by some male advocates who in turn sent his junior Sri T. Praveen, Advocate, to accompany the deceased and identify them, but the said Advocates, who harassed the deceased, were not found. On 27-12-1999, the deceased had written letters to the Chairman, Bar Council of India and Sri E. Yalla Reddy, Chairman, Bar Council of Andhra Pradesh. The deceased also executed an affidavit, but those letters and affidavit were not posted. On 14-06-2000 at about 2-00 PM, one Sri T. Suresh Babu met the deceased at her residence and she informed him that she wanted to seek change of her enrollment from the Bar Council of Andhra pradesh to the Bar Council of Bangalore and also expressed her willingness to reside with her brother at Bangalore. On 14-06-2000, the deceased went to her flat at new Bowenapally and removed the Advocate mark sticker in the presence of one Yanamala Mahalaxmi. On 14-06-2000, she did not take her supper and informed her mother that she was not well. She went to bed at about 10-00 PM. At about 2-30 hours in the intervening night of 14/15-06-2000, the deceased woke up her mother and told her that she consumed baygon spray (poison) to commit suicide as she was unable to bear with the harassment of A-1 to A-3. She also informed that she received telephone calls that if she did not consider the demand of A-1, she would be kidnapped in the intervening night of 14/15.06.2000. She had also requested her mother to take care of her son and fell unconscious. She had also left suicide note and a diary (red colour) mentioning the names of the persons who harassed her. 5. Then Jambavanthi Sharma, the mother of the deceased along with the son of the deceased Master Nitesh Sharma and P. Krishna Kumar (LW-7) shifted the deceased to the Yashoda Hospitel, Somajiguda, Hyderabad, where it was declared by the doctor that the deceased was brought dead to the hospital. 6. On the complaint given by the mother of the deceased, the Police, Market Secunderabad, registered a case in crime No.173 of 2000 for the offence punishable under Section 306 of IPC. He held inquest over the dead body of the deceased and conducted observation panchanama at the scene of offense. 6. On the complaint given by the mother of the deceased, the Police, Market Secunderabad, registered a case in crime No.173 of 2000 for the offence punishable under Section 306 of IPC. He held inquest over the dead body of the deceased and conducted observation panchanama at the scene of offense. He then secured the photographer who had taken the photoes of scene of offence. He had also seized the material objects like Baygon Spray tin, steel tumbler, steel spoon, scribbling pad containing the suicide note, blue colour pen and the read diary from the scene of offence in the presence of Lws.24 and 25. The postmortem examination was conducted over the dead body of the deceased and the viscera was sent to the FSL, Hyderabad. The Assistant Director of FSL examined the Baygon Spray and gave his opinion. The chemical analyst opined that the cause of death of the deceased is due to consuming Baygon Spray (insecticie) poison. 7. Thereafter, the then DSP, Sri J. Venkaiah, conducted further investigation. He had collected the letter, dated 27-12-1999 addressed to the Chairman, Bar Council of India and another letter addressed to the Chairman, Bar Council of A.P., and affidavit prepared by the deceased. Subsequently, the CID branch took up investigation as per the orders of the Director General and Inspector General of Police, Hyderabad vide orders in C.No.2712/C-1/2000, dated 11-07-2000. Subsequently the investigation was entrusted to A.V. Subba Reddy, the then Deputy Superintendent of Police, CID, SDT-II, Hyderabad. The handwriting expert Smt. B. Varalakshmi opined that the handwriting and the signatures contained in the questioned documents i.e., suicide note, red diary, letters, are identical to those with the admitted signatures of the deceased. 8. A-1 and A-2 were arrested and enlarged on bail as they obtained anticipatory bail. A-3 was arrested and remanded to judicial custody. The police laid the charge sheet against A-1 to A-3 alleging that they harassed the deceased and thereby driven her to commit suicide and thus abetted the commission of suicide by the deceased and therefore they are liable for punishment under Section 306 of IPC. 9. The accused filed W.P.No.11024 of 2000 to quash the FIR but the same was dismissed. However, A2 filed Criminal Petition No. 846 of 2002 to quash the proceedings and this Court by order dated 15.04.2002 allowed the said petition and quashed the proceedings against A2. 10. 9. The accused filed W.P.No.11024 of 2000 to quash the FIR but the same was dismissed. However, A2 filed Criminal Petition No. 846 of 2002 to quash the proceedings and this Court by order dated 15.04.2002 allowed the said petition and quashed the proceedings against A2. 10. A-1 filed Crl.M.P.No.116 of 2005 and A-3 filed Crl.M.P.No.115 of 2005 before the lower Court seeking to discharge them for the charges levelled against them. Since the petitions filed by A-1 and A-3 to discharge them for the offences under Sections 306 and 506 IPC respectively were dismissed vide impugned orders, the present Revision Cases have been filed. 11. The learned Sessions Judge opined that there is a prima facie case to proceed against the petitioners and the question whether the harassment caused to the deceased abetted her to commit suicide or not has to be decided at the time of trial. 12. Sri C. Padmanabha Reddy, the learned Senior Counsel, appearing for the petitioners submitted that there is no direct evidence to say that the Accused abetted the deceased to commit suicide. It is further submitted that the deceased was making allegations not only against male advocates, but also against female advocates, which show that she was mentally imbalanced. It is also his submission that the name of A-3 was not mentioned in the suicide note and there is no material to connect A-3 with the alleged offence. It is also submitted that this Court on the earlier occasion, while dealing with the petition filed by A-1 and A-3 under Section 482 of Cr.P.C., in Crl.M.P. No.2216 and 2226 of 2002 in common order dated 13.10.2004, observed that continuation of criminal proceedings against A-3 for the offence under Section 306 of IPC amounts to abuse of process of the Court and therefore, the proceedings against him for the offence relating to Section 306 of IPC are liable to be quashed. However, it was further observed that the prosecution of A-3 for the offence under Section 506 of IPC could be continued. His main submission is that when no charge sheet is filed against A-3 for the offence under Section 506 of IPC the observation of this Court that the prosecution of A-3 for the offence under Section 506 could be continued is a mistake of fact. His main submission is that when no charge sheet is filed against A-3 for the offence under Section 506 of IPC the observation of this Court that the prosecution of A-3 for the offence under Section 506 could be continued is a mistake of fact. It is further submitted that the deceased did not mention about the alleged threatening phone calls said to have been made by A3 to her mother or in her suicide note and that the statements made by the other witnesses that the deceased informed them about the harassment by the Accused are inadmissible in law since those statements are hearsay evidence. It is further argued that only such statements which reveal the cause of death are admissible in evidence. 13. In support of his contentions, the learned senior counsel relied on S. REKHA PRASAD v. STATE OF A.P. 2002 (2) ALT (Crl.) 191(A.P.), SOHAN RAJ SHARMA v. STATE OF HARYANA(2009) 1 SCC (Cri) 387,RANDHIR SINGH v. STATE OF PUNJAB 2005 SCC (Cri) 56 and JAYENDRA SARASWATHI SWAMIGAL v. STATE OF TAMIL NADU 2005 (1) ALD (Crl.) 825 (SC). 14. It is also his submission that the allegations made in the charge sheet do not disclose any offence under Section 306 of IPC against A1 and also under Section 506 IPC against A3 and that there are no sufficient grounds to presume that A1 and A3 committed the alleged offences. It is further submitted that the complaint, suicide note and the statements of the witnesses do not disclose any prima facie case to proceed against the petitioners. It is further submitted that the proceedings against A-2 were quashed by this Court and on same analogy, A-1 and A-3 are also entitled for the benefit and entitled for discharge. 15. The learned Public Prosecutor submitted that at the stage of framing of the charges, the Courts are not expected to analyse the evidence and it is sufficient if a prima facie case is made out from the charge sheet allegations. It is further submitted that the statements of the witnesses, the earlier complaint prepared by the deceased, suicide note and the statements made by the deceased just prior to her death are relevant, admissible and disclose a prima facie case against the petitioners. It is further submitted that the statements of the witnesses, the earlier complaint prepared by the deceased, suicide note and the statements made by the deceased just prior to her death are relevant, admissible and disclose a prima facie case against the petitioners. It is further submitted that merely because the proceedings have been quashed against A-2 that does not mean that there is no material to frame charges against the other Accused. It is further submitted that when the A-3 himself filed petition to discharge him under Section 227 of Cr.P.C., the earlier observation of this Court that the proceedings against A-3 have to be quashed, for the offence under Section 306 IPC would become irrelevant. 16. In the light of the rival contentions, the point that arises for consideration is whether a prima facie case has been made out against A1 and A3 on available material to frame charges against them for the offences under Sections 306 and 506 IPC respectively or whether they are entitled for discharge? 17. The statements of the witnesses recorded under Section 161(3) Cr.P.C and the documents filed along with the charge sheet reveal as follows: Smt. Jambavathi Sharma, the mother of the deceased, stated that the deceased informed her about the harassment made by A-1, A-2 and others. She further stated that on the date of incident at about 8-30 PM, the deceased went to her flat and returned at about 9-30 PM and refused to take dinner on the pretext that she was not feeling hungry and then herself and the son of the deceased slept and that at about 2-30 AM, the deceased came to her bedroom, fell upon her and hugged her. Then the deceased requested her mother to excuse her and further told that she was not going to live any more as she had consumed poison since she was unable to bear with the harassment of the Advocates A1 and A2 and others and asked her to take care of her son. The statement of the doctor P. Ananda Kumar reveals that he was the family doctor of the deceased and that the deceased was intelligent and absolutely normal and that he never noticed any kind of mental depression in her. The deceased died on the intervening night of 14/15-06-2000. The statement of the doctor P. Ananda Kumar reveals that he was the family doctor of the deceased and that the deceased was intelligent and absolutely normal and that he never noticed any kind of mental depression in her. The deceased died on the intervening night of 14/15-06-2000. The letters, dated 27-12-1999 addressed to the Bar Council of A.P. and Bar Council of India and affidavit reveal that the deceased herself stated that A-1 wanted to have sexual relationship with her and also asked her to be his keep and to give her Flat No.304 to him for conducting week end parties. He had also promised that he would make her AGP in future. She had also stated that she was very much shocked to listen to all those things. She had also stated that A-3 also wanted her to accept the proposal of A-1 and further threatened that they had high political influence and that they would kidnap her and her son and cause harm to her parents if she revealed their acts to others. 18. In the suicide note, dated 14-06-2000, the deceased had stated that: “I, B. Sangeeta committing suicide because of D. Vijay Kumar, Advocate (A1), Rekha Prasad (A2) and other Advocates. They harassed me in such a way that I had left no option except to commit suicide. This requires CBI inquiry. All the names are written in red diary and all my property is legally entitled to my son.” 19. Of course in the read diary there are several names including the names of some women advocates. Merely because there are some names of women Advocates in the diary, it does not mean that the deceased was mentally imbalanced or that entire prosecution case is false. The above referred prosecution evidence can be divided as follows. 1. Statements said to have been made by the deceased to the several witnesses with regard to the harassment caused by the accused; 2. The written representations and affidavit said to have been prepared by the deceased with regard to the harassment of the Accused; 3. The suicide note said to have been written by the deceased in a notebook; 4. The statement of the deceased, after consuming poison, said to have been made to her mother. 20. The written representations and affidavit said to have been prepared by the deceased with regard to the harassment of the Accused; 3. The suicide note said to have been written by the deceased in a notebook; 4. The statement of the deceased, after consuming poison, said to have been made to her mother. 20. The police basing on the above referred material alleging that A-1 to A-3 committed the offences punishable under Section 306 of IPC filed charge sheet against the accused. Now let us examine what are the ingredients of Section 306 IPC. Section 306 of IPC reads as follows: Sec. 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 extent to ten years, and shall also be liable to fine.” 21. In a case under Section 306 of IPC, the person, who committed suicide, cannot appear before the Court and explain the circumstances under which he or she committed suicide. Whether there was abetment to commit suicide or not has to be gathered from the relevant circumstances such as statements, letters or complaints or representations or suicide note of the deceased which reveal the cause of death or the circumstances of the transactions which resulted in his/her death. Criminal Intimidation is punishable under Section 506 IPC. Criminal intimidation is defined under Section 503 IPC which is as follows. “Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.” 22. Now it has to be seen whether there is any material to frame charges under Sections 306 and 506 IPC against A1 and A3 respectively or whether they are entitled for discharge. 23. Chapter-XVIII of Cr.P.C deals with the trial before a Court of session. Now it has to be seen whether there is any material to frame charges under Sections 306 and 506 IPC against A1 and A3 respectively or whether they are entitled for discharge. 23. Chapter-XVIII of Cr.P.C deals with the trial before a Court of session. Section 226 of Cr.P.C. Envisages that when the Accused appears or is brought before the Court, the prosecutor shall open his case by describing the charge brought against the accused and state by what evidence he proposes to prove the guilt of the accused. Section 227 of Cr.P.C. deals with the discharge, which reads as follows: S. 227. Discharge.-- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 24. Therefore, Section 227 Cr.P.C. Envisages that the Judge has to consider the record of the case and the documents submitted therewith and the submissions of the accused and the prosecution, and upon consideration of that material, if the Judge comes to the conclusion that there is no sufficient ground for proceeding against the Accused, then he may discharge the Accused. The meaning of the words “There are no sufficient grounds” is that the Judge should come to a conclusion that there is no legal and acceptable evidence or that the allegations do not make out any offence at all. It means that the Judge should come to a conclusion that even when the entire case of the prosecution is accepted as correct or the statements made by the witnesses are considered as true, the Accused cannot be convicted on such material and no case is made against the Accused. 25. The Judge has to consider the broad probabilities of the case and decide whether or not a prima facie case has been made out against the accused or not. The Judge is not required to consider the evidence meticulously at this stage. Thus the charge has to be framed where the available material discloses the commission of the offence, which means the charge should not be framed in the cases wherein the material on record does not disclose the ingredients of the offence charged. The Judge is not required to consider the evidence meticulously at this stage. Thus the charge has to be framed where the available material discloses the commission of the offence, which means the charge should not be framed in the cases wherein the material on record does not disclose the ingredients of the offence charged. The standard of test, which is required to be applied at the time of appreciation of evidence while making a judgment should not be applied at the stage of deciding the matter under Section 227 of Cr.P.C. The concept of giving benefit of doubt does not arise at this stage. Similarly whether the prosecution witnesses are interested or reliable does not arise at this stage. What is to be seen is whether a prima facie case from the material on record has been made out or not. 26. In the light of the above well settled principles, the contentions of the accused and the prosecution in this case have to be examined. The main contention of the learned counsel for the Accused is that the statements made by the deceased are inadmissible therefore we have to see whether the statements said to have been made by the deceased either oral or written are admissible under Section 32(1) of the Indian Evidence Act or not. Section 32(1) of the Indian Evidence Act is as follows. “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) When it relates to cause of death- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” 27. The learned Senior Counsel argued that the statements said to be made by the deceased do not relate to the cause of her death hence inadmissible. He has relied on the judgment in the case INDERPAL v. STATE OF M.P. 2002 CRI.L.J. 926 (1), in support of his contention. 28. In the above referred case, the deceased had written letters that her husband had subjected her to beating. A dying declaration was recorded by the Executive Magistrate in which the deceased had stated that she sustained burns accidentally from a stove. In the above circumstances the Supreme Court observed as follows: “If that be so, death could not be the result of either any harassment or any cruelty which she was subjected to.” It was further observed that: “Unless the statement of the dead person would fall within the purview of Section 32 (1) of the Indian Evidence Act, there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal), the statement must be as to the cause of her death or as to any circumstance of the transactions which resulted in her death.” Moreover in the said case the Hon'ble Supreme Court was dealing with a case of conviction and not with a petition seeking discharge as in this case. Hence, the said decision is not applicable to this case. 29. The learned Senior Counsel has also relied on G.M. RAVI ALIAS G. PURUSHOTHAM v. STATE OF A.P., 2004 CRI.L.J. 1861, wherein this Court dealt with a case in which the accused was convicted for the offences punishable under Sections 302 and 498-A of IPC basing on the statement said to have been made by the deceased to her sister. In that case, the doctor, who examined the deceased at private hospital, did not even state whether the deceased was conscious or unconscious and no medical record was produced. In the circumstances, the dying declaration said to have been made to the deceased was disbelieved. 30. In that case, the doctor, who examined the deceased at private hospital, did not even state whether the deceased was conscious or unconscious and no medical record was produced. In the circumstances, the dying declaration said to have been made to the deceased was disbelieved. 30. The learned Senior Counsel for the Accused has also relied on GANANATH PATTNAIK v. STATE OF ORISSA, wherein the Supreme Court held as follows: “A statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304-B and such statement was admissible under clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498-A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the hearsay rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused.” 31. The Hon'ble Supreme Court in BHAIRON SINGH v. STATE OF MADHYA PRADESH 2009 (8) SCALE 634 referred the Judgment in SHARAD BIRDHICHAND SARDA v. STATE OF MAHARASHTRA (1984) 4 SCC 116 , wherein the Supreme Court held as follows: "(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.” The Supreme Court also observed that A. Vardadarajan, J, on the other hand, referred to the legal position stated by Woodroffe and Amir Ali in their Law of Evidence (fourteenth edition) and Ratanlal Dhirajlal in their Law of Evidence, and dealt with the admissibility of evidence under Section 32 (1), which is as follows: “Circumstances of the transaction resulting in his death: This clause refers to two kinds of statements: (i) when the statement is made by a person as to the cause of his death, or (ii) when the statement is made by a person as to any of the circumstances of the transaction which resulted in his death. The words `resulted in his death' do not mean `caused his death'. The expression `any of the circumstances of the transaction which resulted in his death' is wider in scope than the expression `the cause of his death'. The declarant need not actually have been apprehending death. ( AIR 1964 MP 30 .) Page 947: The expression `circumstances of the transaction' occurring in Section 32, clause (1) has been a source of perplexity to courts faced with the question as to what matters are admissible within the meaning of the expression. The decision of their Lordships of the Privy Council in Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) sets the limits of the matters that could legitimately be brought within the purview of that expression. Lord Atkin, who delivered the judgment of the Board, has, however, made it abundantly clear that, except in special circumstances no circumstance could be a circumstance of the transaction if it is not confined to either the time actually occupied by the transaction resulting in death or the scene in which the actual transaction resulting in death took place. The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. . . . The special circumstance permitted to transgress the time factor is, for example, a case of prolonged poisoning, while the special circumstance permitted to transgress the distance factor is, for example, a case of decoying with intent to murder. . . . But the circumstances must be circumstances of the transaction and they must have some proximate relation to the actual occurrence. 32.In S. REKHA PRASAD'S case (1 supra), this Court while dealing with the case of A-2 in this case, held that: “The entry in the diary of the deceased shows that the petitioner asked her (deceased) whether she requires money. Even assuming that what is mentioned in the diary is true, petitioner enquiring from the deceased as to whether she requires money, cannot be construed to mean that the petitioner abetted the suicide of the deceased, because the deceased did not anywhere state that the petitioner promised to supply the money for purchase of Baygon Spray consumed by her for committing suicide. The averments in the complaint, or the material on record in this case, does not disclose any inducement by the petitioner to the deceased to commit suicide, nor does it show that the petitioner aided the suicide of the deceased by purchasing the Baygon Spray consumed by her or otherwise. Therefore, it cannot be said that there is prima facie material against the petitioner to show that she 'abetted' the suicide of the deceased, and so the prosecution against the petitioner for offence under Section 306 I.P.C. Is liable to be quashed.” 33. In JAYENDRA SARASWATHI SWAMIGAL's case (4 supra), the Supreme Court, while dealing with bail petition filed under Section 439 of Cr.P.C., observed that: “This witness has merely stated that he knew deceased shankararaman and used to talk to him and further that at 1.30 p.m. On 3.9.2004 shankararaman contacted him over phone and told him that his petition presented to HR and CE Department was numbered and if any danger came to him, Jayendra alone will be responsible for the same. Since the telephonic conversation which the Shankararaman had with this witness, did not relate to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, the same does not come within the purview of Section 32 (1) of the Evidence Act and is not admissible in evidence. Since the telephonic conversation which the Shankararaman had with this witness, did not relate to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, the same does not come within the purview of Section 32 (1) of the Evidence Act and is not admissible in evidence. 34.The general rule is that hearsay evidence is inadmissible. Dying declaration is an exception to the general rule. However, from the above referred decisions, it is clear that the statements of the deceased when it relate to the cause of his death or as to any of the circumstances in the transaction, which resulted in his death, are only admissible in evidence. It means the statement must fall within the purview of Section 32 (1) of the Act otherwise inadmissible. But, such statement in respect of some other offence i.e., may be in respect of 498-A or 506 or any other offence is inadmissible. It must be related to the cause of death or the circumstances which resulted in the death of the deceased. Now we have to see whether acts of the accused abetted the deceased to commit suicide. 35. Section 107 IPC is as follows. “Sec.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. Explanation1.-A person who, by willful 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 be done is said to instigate the doing of that thing.” We have already referred to Section 306 IPC in above referred paras. 36. In RANDHIR SINGH's case (3 supra), the Hon'ble Supreme Court, while dealing with a case under Section 306 read with 34 of IPC, observed as follows: “Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. 36. In RANDHIR SINGH's case (3 supra), the Hon'ble Supreme Court, while dealing with a case under Section 306 read with 34 of IPC, observed as follows: “Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases 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 306 IPC.” In the above referred case, the deceased informed her parents that her husband and mother in law had sent her to bring more dowry. She also told that they had warned her that in case she did not bring dowry, they would not allow her to live. The father of the deceased assured her that he along with his wife will visit very shortly the house of her in-laws after making arrangement of the money. However, the deceased had died after putting herself on fire. The Accused were convicted under Section 306 read with 34 of IPC. Under those circumstances, the Supreme Court observed as follows: “In the present case the evidence of relatives, more particularly of the father and the mother, clearly proves demand of dowry. Mere fact that whatever he had obtained by way of pension or compensation for land acquisition had been spent, the capacity to pay may be affected. But it does not prove that the accused persons did not make a demand. The trial court and the High Court have considered this aspect and given positive finding about the demand of dowry having been established. The death occurred during 7 years of marriage. In view of the elaborate analysis of the evidence by the Courts below there is no infirmity in the conclusion arrived at regarding guilt of the accused persons. The conviction therefore is confirmed.” 37. In SOHAR RAJ SHARMA's case (2 supra), the Supreme Court extracted the observations made in KISHORI LAL v. STATE OF M.P. (2007) 10 SCC 797 , which reads as follows: 6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in [the Act as an offence]. In SOHAR RAJ SHARMA's case (2 supra), the Supreme Court extracted the observations made in KISHORI LAL v. STATE OF M.P. (2007) 10 SCC 797 , which reads as follows: 6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in [the Act as an offence]. A person, bets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing. These things are essential to complete abetment as a crime. The word 'instigate' literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. 7. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough.” 38. Abetment to commit suicide may depend upon several factors. The mental condition of the deceased prior to his committing suicide will be an important factor. When a person is in complete depression knowing fully well about the condition of the victim if a person intentionally makes a suggestion, threat or statement further demoralising the victim or takes any action which make the victim to move a step towards suicide may amount to abetment of suicide. Even a telephone call, a message on internet or SMS on Cellphone which is deliberately made knowing the mental condition of the deceased suggesting or threatening him to commit suicide may amount to abetment of suicide. 39. In this case, the deceased had stated to her mother just before her death that she was not going to live any more as she was unable to bear the harassment of A1, A2 and others. 39. In this case, the deceased had stated to her mother just before her death that she was not going to live any more as she was unable to bear the harassment of A1, A2 and others. In her suicide note dated 14.06.2000 she had categorically mentioned that because of A1, A2 and other advocates, she was committing suicide and that they harassed her in such a way, that she had left no option except to commit suicide. As far as A2 is concerned in the red diary it is noted against her name that she asked the deceased as to whether she (the deceased) was in need of money. This Court in Rekha Prasad’s case (3 supra) held that enquiring with the deceased whether she was in need of money cannot be construed to mean that the petitioner abetted the deceased to commit suicide. Holding so the proceedings against A2 were quashed. Therefore, we are not concerned with A2 in these petitions. Any how, the statement made by the deceased prior to her death to her mother and the suicide note appears to be admissible in evidence under Section 32(1) of the Indian Evidence Act because the same appears to be the statement of the deceased as to the cause of her death and the circumstances of the transactions which resulted in her death. In her letters written to the Chairman Bar Council of India and Bar Council of Andhra Pradesh and in her affidavit prepared on 27.12.1999 the deceased had categorically stated that A1 wanted to have sexual relationship with her and wanted her to hand over her Flat No.304 for conducting parties on Saturdays and Sundays and that she should become his keep and that she was shocked to listen all those things. The above referred letters in fact reveal telltale story and may fall within the four corners of Section 32(1) of the Indian Evidence Act, as far as the offence under Section 306 IPC against A1 is concerned. Distance of time alone would not make such statements inadmissible. As observed by the Supreme Court in BHAIRON SINGH's case (8 supra), the distance of time alone in such case would not make the statement irrelevant. Distance of time alone would not make such statements inadmissible. As observed by the Supreme Court in BHAIRON SINGH's case (8 supra), the distance of time alone in such case would not make the statement irrelevant. The Supreme Court also observed that where the death takes place within the short time of the marriage or the distance of time is not spread over three or four months, the statement made admissible under Section 32 of the Act. When a woman is continuously harassed, threatened or put to mental agony and consequently she committed suicide, all the statements made by such woman related to the cause of her death or the circumstances of the transaction which resulted in her death are admissible under Section 32 (1) of the Indian Evidence Act. 40. Now it has to be seen whether A-3 is entitled for discharge for the offence punishable under Section 506 IPC. 41. In this case, the deceased herself had written letters to the Chairman, Bar Council of A.P and also Bar Council of India and prepared an affidavit. All these documents were prepared on 27-12-1999, wherein the deceased had categorically observed the acts done by A-1 and A-3. The deceased seems to have mentioned in those letters that A-3 threatened her to accept the proposals of A-1 and that A3 further stated they had high political influence and that she should not proceed against them, otherwise they would kidnap her son or cause harm to her parents. 42. In this case, the other evidence available on record against A3 is the statement of the father of the deceased. He has categorically stated that A-3 threatened her daughter on 24-12-1999 and also in January, 2000 and that her daughter informed him the above facts. 43. However, the main distinction between the case of A1 and A3 is that the acts committed by A1 appear to be relating to the cause of her death and the circumstances in the transactions leading to her death. Therefore, they are admissible under Section 32 of the Indian Evidence Act. But, as far as A-3 is concerned, the charge against him is that he committed an offence under Section 506 IPC. Section 506 IPC appears to be a distinct offence. Therefore, they are admissible under Section 32 of the Indian Evidence Act. But, as far as A-3 is concerned, the charge against him is that he committed an offence under Section 506 IPC. Section 506 IPC appears to be a distinct offence. Therefore the oral or written statements of the deceased appear to be not admissible in evidence and have to be treated as hearsay evidence as far as the offence punishable under Section 506 IPC is concerned. The other circumstance in favour of A3 is that the deceased did not mention the name of A3 in her suicide note prepared just prior to her death. She did not reveal the name of A3 to her mother just prior to her death though she revealed the names of A1 and A2 to her mother. Therefore, the statements said to have been made against A3 six months prior to her death with regard to the offence under Section 506 IPC cannot be treated as admissible under Section 32(1) of the Indian Evidence Act. In Crl.P.Nos.2216 and 2226 of 2002, dated 13-10-2004 filed by A-3 and A-1 respectively before this Court to quash the proceedings against them, this Court observed as follows: “The material gathered during the investigation reveals that A1 cast an eye not only on her person but also on her properties. The investigation further discloses, prima facie, that A1 has been haunting the deceased either through phone calls or otherwise. These persistent phone calls can, prima facie, be characterized as instigation within the meaning of Sec.107 IPC. So far as A-3 is concerned, his name does not appear in the suicidal note of the deceased. Therefore, it cannot be said that his intermittent threatening calls much earlier to her suicide cannot be constituted as instigation within the meaning of Sec.107 IPC and at the most they may constitute a criminal intimidation punishable under Section 506 IPC. 10. In view of the above discussion, I find that continuance of criminal proceedings against A3 for the offence under Sec.306 IPC amounts to abuse of the process of Court and therefore the proceedings against him for the offence relatable to Sec.306 IPC are liable to be quashed. However, prosecution of A3 for the offence under Section 506 IPC can be continued. However, prosecution of A3 for the offence under Section 506 IPC can be continued. With regard to A1, I find that there are no justifiable grounds to quash the criminal proceedings against him, at this stage. Accordingly, Criminal Petition No.2216 of 2002 is partly allowed quashing the prosecution of the petitioner-A3 for the offence under Section 306 IPC in P.R.C.No.2 of 2002 on the file of the IX Metropolitan Magistrate, Hyderabad. However, the prosecution of the petitioner-A3 for the offence relatable to Sec.506 IPC can be continued.” 44. When this Court had already held in Crl.M.P. No.2216 and 2226 of 2002 that continuation of proceedings against A3 for the offence under Section 306 IPC would amount to abuse of process, it would be difficult to say that the statements of the deceased made about six months ago i.e., on 24.12.1999 or in January 2000 could be treated as admissible under Section 32(1) of the Evidence Act with regard to the offence under Section 506 IPC. 45. In view of the above discussion, I hold that there are no grounds to interfere with the orders passed by the lower Court in Crl.M.P. No.116 of 2005 insofar as A-1 is concerned and therefore, Crl.R.C. No.1307 of 2005 has to be dismissed and accordingly stands dismissed. 46. Further, I hold that there is no acceptable legal material to proceed against A-3 as far as the offence under Section 506 IPC is concerned. Therefore, he is entitled for discharge. Accordingly, Crl.R.C. No.1351 of 2005 and consequently Crl.M.P. No.115 of 2005 shall stand allowed. As a result of which A-3 stands discharged of the charge under Section 506 IPC. 47. Accordingly, Crl.R.C. No.1351 of 2005 stands allowed and Crl.R.C. No.1307 of 2005 stands dismissed. The trial court should keep it in mind that the above observations have been made while considering the discharge applications of A-1 and A-3 and therefore, they are only prima facie observations. The trial Court is also directed to proceed with the trial and complete the same as expeditiously as possible, preferably within six (6) months from the date of receipt of copy of this order, uninfluenced by the observations made supra.