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2019 DIGILAW 26 (BOM)

Sayed Rasul v. State Of Maharashtra

2019-01-05

ROHIT B.DEO

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JUDGMENT Rohit B. Deo, J. - The appellant is challenging the judgment and order dated 16122004 rendered by the learned Additional Sessions Judge, Darwha in Special Case 17/2004, by and under which the appellant is convicted for offence punishable under Section 306 of the Indian Penal Code ("Code" for short) and is sentenced to suffer simple imprisonment for two years and to payment of fine of Rs.500/-. 2. The appellant, who shall be hereinafter referred to as the "accused" is acquitted of offence punishable under Section 498-A read with Section 34 of the Code. 3. By the judgment impugned, the learned Sessions Judge has disposed of Special Case 8/2004 and Special Case 17/2004. In Special Case 8/2004, one Ukandabai was charge sheeted and the supplementary charge sheet filed against accused Sayed Rasul came to be registered as Special Case 17/2004. Both the cases arise out of the same incident and common evidence is recorded in Special Case 8/2004. 4. The gist of the prosecution case is that the accused, a resident of Ladkhed, married deceased Sangita on 28-8-2000. The marriage ended in divorce on 08-1-2001. Ukandabai is the concubine of Rasul. Sangita was ill-treated by the accused and Ukandabai with the intention of forcing her to bring money from her parents. Notwithstanding the divorce, Ukandabai insisted that deceased Sangita should cohabit with the accused. Sangita, notwithstanding the divorce, started residing with the accused, the harassment continued and ultimately on 06-3-2001 Sangita poured kerosene on her person and set herself ablaze. Sangita was initially admitted by the accused in a private hospital and then shifted to the Government Hospital at Yavatmal on 07-3-2001. Sangita was thereafter shifted to the Sevagram Hospital where she succumbed to her injuries on 10-3-2001. Ladkhed Police Station registered enquiry under Section 174 of the Criminal Procedure Code. The Investigating Officer visited the spot, prepared the spot panchanama, recorded the statements and seized the burnt clothes from the spot. The father of the deceased Sangita, Mahadeo P. W.3 lodged report on 19-3-2001 at the Ladkhed Police Station alleging that his daughter Sangita was subjected to harassment by the accused and Ukandabai with the intention of pressurizing her to bring money. The father of the deceased Sangita, Mahadeo P. W.3 lodged report on 19-3-2001 at the Ladkhed Police Station alleging that his daughter Sangita was subjected to harassment by the accused and Ukandabai with the intention of pressurizing her to bring money. On the basis of the said report, the police registered offence punishable under Sections 498A and 306 read with Section 34 of the Code and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. The acquittal of the accused for offence punishable under Section 498-A of the Code is on the basis that since it was the case of the prosecution that the marriage between the accused and deceased Sangita stood dissolved, Section 498-A of the Code would not be attracted. The learned Sessions Judge has, however, relied on the testimony of Janabai P. W.1 and MahadeoP. W.3, the mother and father of Sangita respectively, to hold that the prosecution has proved that Sangita was subjected to harassment and ill-treatment. The defence extracted in the cross-examination of Mahadeo that Sangita had quarreled with her mother Janabai in the past and had attempted suicide. This is held against the accused and the observation of the learned Sessions Judge is that since the accused was well aware that Sangita was sensitive and had suicidal tendencies, the accused ought to have been more careful and cautious in regulating his conduct. The learned Sessions Judge concludes that since the accused, subjected the deceased Sangita to harassment despite knowing that in the past she had attempted to commit suicide, the requisite intention that the accused intended to drive Sangita to commit suicide can be inferred. 5. Shri Abdul Subhan, learned Counsel for the accused would submit that the evidence on record is grossly inadequate to support the finding of the learned Sessions Judge that the deceased Sangita was subjected to harassment or ill-treatment, of such nature as to attract the provisions of Section 306 of the Code. Shri Abdul Subhan would further submit that the investigation is unfair and no attempt is made by the Investigating Officer to collect and produce on record the statement of Sangita to which a reference is made in the post-mortem report Exhibit 12. Per contra, the learned Additional Public Prosecutor Smt. S.V. Kolhe would submit that the judgment impugned does not suffer from any infirmity. 6. Per contra, the learned Additional Public Prosecutor Smt. S.V. Kolhe would submit that the judgment impugned does not suffer from any infirmity. 6. It would be apposite to refer to Sections 306 and 107 of Code, which read thus: "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 extend to ten years, and shall also be liable to fine." "Sec.107. Abetment of a thing - A person abets the doing of a thing, who- First - Instigate 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". It is well settled that mens rea is sine qua non to bring home charge under section 306 of Code and it is necessary for the prosecution to establish that the accused had the intention to aid or instigate or abet the deceased to commit suicide. Abetment is held to involve a mental process of instigating a person or intentionally aiding a person in doing of a thing. The conviction cannot be sustained unless a positive act on the part of the accused to instigate or aid in commission of suicide, is established. 7. In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) the Hon''ble Supreme Court observes thus: "14. As per clause firstly in the said Section, a person can be said to have abetted in doing of a thing, who "instigates" any person to do that thing. The word "instigate" is not defined in the IPC. The meaning of the said word was considered by this Court in Ramesh Kumar v. State of Chhatisgarh. Speaking for the three-Judges Bench, R.C. Lahoti, J. (as His Lordship was then) said that instigation is to goad, urge forward, provoke, incite or encourage to do '' an act. To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation." 15. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action: provoke to action or reaction" (see : Concise Oxford English Dictionary), to keep irritating or annoying somebody until he reacts (See : Oxford Advanced Learner''s Dictionary - 7th Edition). Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular, direction especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter. As observed in Ramesh Kumar''s case (supra), where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that: (1) the accused kept on irrigating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation". 8. In M. Mohan v. State, the Hon''ble Supreme Court articulates the legal position thus: "43. In State of West Bengal v. Orilal Jaiswal & Another, (1994) 1 SCC 73 , this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears 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 of abetting the offence of suicide should be found guilty. 44. This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605 , had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person''s suicidability pattern is different from the others. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 45. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. 46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. 46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide". 9. The evidence on record may now be analysed on the touchstone of the legal principles referred to supra. The prosecution is relying on the evidence of the informant father Mahadeo and Janabaithe mother of the deceased to prove that Sangita was harassed and ill-treated and ill-treatment was of such extent and nature as would leave Sangita no option but to take the extreme step. P.W.3 Mahadeo lodged the report on 19-3-2001 and there does not appear to be any explanation for the delay in lodging the report after 13 days of the incident and nine days after the death. P.W.3 Mahadeo has deposed that the accused Ukandabai ill-treated Sangita and used to ask her to compel P.W.3 Mahadeo to sell his land since he and Ukandabai wished to set up business. P.W.3 states that Sangita used to come to his house and used to narrate the demand and ill-treatment. The version of P.W.3 that the accused used to ill-treat Sangita and the intent was to compel P.W.3 to sell his land is not worthy of confidence. It has come in evidence that while Sangita resided with Janabai, P.W.3 Mahadeo was estranged from Janabai since fifteen years and used to reside separately. P.W.3 further admits that the agricultural land is not recorded in his name. P.W.3 further admits that the report which he lodged on 19-3-2001 is written as per the say of one Vishnu Naitam who took P.W.3 to the police station. P.W.1 Janabai states that the accused used to beat Sangita and used to ask her to bring money. She admits that P.W.3 Mahadeo is residing with his elder brother at Nagpur. While Janabai denies the suggestion that due to some dispute between her and Sangita, an attempt to commit suicide was made by Sangita earlier, P.W.3 Mahadeo admits that Sangita did have some issues with Janabai and did make an attempt to commit suicide. She admits that P.W.3 Mahadeo is residing with his elder brother at Nagpur. While Janabai denies the suggestion that due to some dispute between her and Sangita, an attempt to commit suicide was made by Sangita earlier, P.W.3 Mahadeo admits that Sangita did have some issues with Janabai and did make an attempt to commit suicide. P.W.1 Janabai has deposed that her statement was not recorded by the police. She is, therefore, narrating her version of the harassment or ill-treatment and the circumstances which allegedly led to Sangita committing suicide for the first time in the Court, which must ordinarily put the Court on guard and test her evidence with extra caution. If the evidence of P.W.1 Janabai and P.W.3 Mahadeo is holistically considered, it is difficult to conclude that the prosecution has proved that Sangita was subjected to such cruelty as would leave her with no option but to commit suicide. The evidence is too fragile for this Court to hold that the prosecution is successful in proving the necessary intent or mens rea as would bring home the offence punishable under Section 306 of the Code. 10. The Investigating Officer P.W.7 admits that he did not collect the statement of Sangita from Police Station Sevagram although there is reference in the post-mortem Exhibit 12 that the police had recorded her statement. The learned Sessions Judge has refrained from attaching importance to this admission. The learned Sessions Judge observes that since the Investigating Officer was not aware of the incident till the death of Sangita, the defence cannot make a capital out of the contents in the post-mortem report. The learned Sessions Judge does record that Sangita was alive for three days and irrefutably no attempt was made to record her dying declaration. Exhibit 18 is the injury report of the Kasturba Hospital, Sevagram which is issued on 07-3-2001 which refers to Head Constable M. Yadav and purports to bear his signature. The history is burnt due to stove. The assumption of the learned Sessions Judge that the police came into picture only after the death of Sangita on 10-3-2001, does not appear to be correct. The history is burnt due to stove. The assumption of the learned Sessions Judge that the police came into picture only after the death of Sangita on 10-3-2001, does not appear to be correct. Be that as it may, concededly, there is no attempt made by the Investigating Officer to verify whether Sangita''s statement was as a fact recorded by the police when she was admitted, first in a private hospital and then in the Government Hospital on 07-3-2001 as would prima facie appear from the contents of the post-mortem report Exhibit 12. In the light of the defence that the injury suffered was accidental, this lacuna in investigation must be viewed seriously. 11. Even if it is assumed that the prosecution has proved that the death was suicidal, the evidence on record does not clinchingly show that there was any intention to goad or investigate or push the deceased Sangita to her death. 12. The judgment and order impugned is unsustainable and is set aside. 13. The accused is acquitted of the offence punishable under Section 306 of the Code. 14. Bail bond of the accused shall stand discharged. 15. The fine, if any, paid by the accused shall be refunded to him. 16. The appeal is allowed.