Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 135 (RAJ)

State of Rajasthan v. Kailash @ Raja

2013-01-16

NIRMALJIT KAUR

body2013
Hon'ble KAUR, J.—This is Criminal Leave to Appeal under Section 378 (iii) & (i) of the Cr.P.C. against the order and judgment dated 10.7.2009 passed by the Additional Sessions Judge, Nathdwara, District Rajsamand. 2. The facts, in short, are that on 14.12.2006, complainant Suresh Joshi submitted the report that his sister Daya who was married to Kailash Paliwal 11 years ago, has committed suicide. It was stated by him that she has committed suicide on account of cruelty and torture by the respondent-husband, father-in-law, mother-in-law and other family members who were pressurizing her to give divorce. It was further stated that they had forcibly left her in the house of her parents. As a result of the said cruelty, his sister had committed suicide. 3. A case was registered and on the basis of the investigation, challan was filed against the respondent-husband for the offences under Sections 498A and 306 of the IPC. However, the trial Court, after examining the said evidence, acquitted the respondent of the charges levelled against him vide judgment and order dated 10.7.2009. Being dis-satisfied, the present leave to appeal has been filed. 4. While praying for grant of leave to appeal, only argument raised by the learned counsel for the appellant is that the cruelty stands proved and in spite of the same, the respondent-husband has been acquitted. Learned counsel for the respondent, however, pointed out that there is absolutely no evidence to convict the respondent and accordingly, there is no ground to interfere in the well-reasoned order passed by the trial Court. 5. Heard. 6. Admittedly, the deceased was married to the respondent-complainant way back in the year 1996. She died after 11 years of the marriage, i.e., on 14th December, 2006. It is also admitted that the death took place in the house of her parents. The allegations levelled are way back. Even from the perusal of the statements of the prosecution witness, no specific date has been mentioned either with respect to the cruelty or beating etc. as alleged. Even the date when the deceased was left in the house of her parents has not been mentioned. However, PW.5, the brother of the deceased has mentioned in his statement that she was left in the house of her parents about 10-12 days prior to the incident. 7. as alleged. Even the date when the deceased was left in the house of her parents has not been mentioned. However, PW.5, the brother of the deceased has mentioned in his statement that she was left in the house of her parents about 10-12 days prior to the incident. 7. The necessary ingredients contained in Section 107 IPC have to be proved and if the provisions of Section 107 IPC are not satisfied, no case be said to have been made under Section 306 IPC. Before proceedings further, it would be just and relevant to reproduce the aforesaid two Sections as under:- "306. Abatement of Suicide.-If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Section 107. Abatement of thing.-A person abets the doing of a thing who; Firstly, instigates any person to do that thing or Secondly, engages with one or more or 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. Explanation: 1. A person who by willful misrepresentation or by willful concealment of a material fact which he is bound to discloses voluntarily causes or procures, or attempts to cause or procure a thing to be done is said to instigate the doing of that thing." 8. None of the provisions of the aforesaid Section have been attracted in the instant case. There is no instigation, no intentional aid or illegal omission on the part of the petitioners in the case in hand. The meaning of word `instigation' has been defined. In the case of Cyriac and another vs. The SI of Police, 2005(4) RCR (Criminal) 525, Hon'ble High Court, in para 7 of the judgment held as under:- "7. As per clause 'firstly' in Section 107 IPC, a person can be said to have abetted in doing of a thing if he 'instigates' any person to do that thing. But, when can a person be said to have 'instigated' another to do an act? What is meant by the expression, 'instigate'? As per clause 'firstly' in Section 107 IPC, a person can be said to have abetted in doing of a thing if he 'instigates' any person to do that thing. But, when can a person be said to have 'instigated' another to do an act? What is meant by the expression, 'instigate'? The word 'instigate' is not specifically defined in IPC. As per Oxford Dictionary 'instigate' means 'to goad or urge forward, to provoke, incite, urge, encourage to do an act." The meaning of the word `instigate' was considered by Supreme Court also. In Ramesh Kumar vs. State of Chhatisgarh 2001(4) RCR (Crl.) 537 (SC) JT 2001(8) SC 569, a decision cited by learned counsel appearing for petitioners, Supreme Court held "instigation is to goad, urge forward, provoke, incite or encourage to do `an act'. As per another decision cited by counsel for petitioners in Ved Paraksh vs. State of M.P. (1995 Crl. LJ 893), the word `instigate' means to goad or urge forward to provoke, incite, urge, encourage to do an act.' 9. Keeping in view the above noted interpretation of the abatement, instant is a case, none of the provisions of Section 107 IPC which could further make out a case under Sec. 306 IPC have been attracted in the case in hand. 10. Hon'ble the Supreme Court in Sanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh 2002 (2) RCR (Criminal) 687, while relying on the various judgments of the Apex Court held that the deceased committed suicide on the third day of the quarrel after the accused told him to commit suicide cannot be held that the suicide was direct result of quarrel. There was enough time to the deceased to think over and reflect. There was enough time to the deceased to think over and reflect. While coming to the said conclusion, reliance was placed on the judgment rendered by the Apex Court in the case of Ramesh Kumar vs. State of Chhattisgarh, (2001) 9 SCC 618 as under:- "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." 12. In Ramesh Kumar vs. State of Chhattisgarh (2001) 9 SCC 618 , this Court while considering the charge framed and the conviction for an offence 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 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 differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstance 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." 11. Thus, it is well settled proposition of law that the basic constituent of an offence under Section 306 is suicidal death and abetment thereof. To attract the ingredients of abetment, the intention of the accused to aid the deceased to commit the suicide is necessary. Thus, it is well settled proposition of law that the basic constituent of an offence under Section 306 is suicidal death and abetment thereof. To attract the ingredients of abetment, the intention of the accused to aid the deceased to commit the suicide is necessary. In the present case, nothing has been pointed out which may enable this Court to come to a conclusion that there was intention of the accused to aid or instigate the deceased to commit suicide. 12. Admittedly, the respondent was residing in her parents house since last 10-12 days before her death. Thus, no action or cruelty immediately prior to the incident has been pointed out to show that the said action forced or instigated the deceased to commit suicide. 13. No other argument is raised. Leave to appeal is declined.