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2023 DIGILAW 716 (JHR)

Gopal Rabidas v. State of Jharkhand

2023-05-17

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction and order of sentence dated 15.09.2003 and 16.09.2003, respectively, passed by learned Additional Sessions Judge-XI, Dhanbad corresponding to S.T. No. 101 of 2002, whereby the appellant has been convicted for the offence under Section 306 of the IPC and sentenced to undergo R.I. for a period of Four years with a fine of Rs.500/- and in default of payment of fine, further to undergo S.I. for two months. 3. The brief fact of the case is that the marriage of informant’s sister, Musari Devi-deceased was solemnized with the appellant in the year 1985 and two children were born out of their wed lock. On 19.02.2001, the appellant in order to kill his sister Musari Devi set fire on her and escaped. On hearing hulla, villagers came there and admitted her in the Central Hospital, Seraidhela where she died on 20.02.2001 during treatment. 4. Mr. Atanu Bernjee, learned counsel for the appellant has made following submissions: (i) Even admitting the entire story of prosecution, the same does not constitute the offence under Section 306 IPC. (ii) None of the prosecution witnesses have proved that the appellant intentionally instigated the victim to commit suicide. (iii) Even assuming, but not admitting, that the appellant was an alcoholic; then also that was his habit and that cannot be treated as instigation. Even otherwise, both the daughters have deposed that the appellant was not an alcoholic. (iv) The learned trial court has misdirected itself in convicting this appellant for the offence under 306 IPC by interpreting that it was only due to this habit of the appellant the victim committed suicide. Relying upon the aforesaid submission, he prays for acquittal of the appellant. 5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. 6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, it is necessary to refer the finding given by the learned trial court at paragraph 23 and 24 of the impugned judgment which is quoted herein-below: “23. 6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, it is necessary to refer the finding given by the learned trial court at paragraph 23 and 24 of the impugned judgment which is quoted herein-below: “23. Now the matter to be considered that whether Musari Devi committed suicide on being perplexed due to over drinking and beating of her husband or there was any other reason. PW9 father of the deceased has deposed that a few days before of the event his daughter had complained him that her husband beat her after drinking. This statement is supported by the deposition of PW1 Jagdish Ravidas who has deposed that he had told to the police that due to over drinking Musari Devi lived perplexed and created pressure on her husband to leave the habit and due to that the sprinkled kerosene oil on herself and on Gopal Ravi Das and set the fire due to which she died. In his cross-examination this witness has deposed that Gopal is a man of his village-Gopal’s marriage was performed 15-16 years ago. He has three children, two sons and a daughter. Daughter is the eldest she would be of twelve her name is Uma Devi. Hence, PW1 has fully supported the statement of victim’s father. 24. One peculiar thing of the case is that the prosecution witnesses PW1, PW2, PW4, PW5, PW6 have deposed that when they reached at P.O. they found both husband and wife burnt, they got both of them boarded in a vehicle and admitted in central Hospital. All of them have further deposed that they had made their statement before police. Due to these statements’ prosecution did not declare them hostile. However, on question what statements they had made before the police PW1 has deposed that due to over drinking of her husband Musari Devi lived unhappy and created pressure on her husband to leave the habit and due to that she poured kerosene oil on herself and on her husband and set on the fire. While PW2, PW4, PW5 to PW6 have deposed in tutored manner that they had not stated to the police that due to over drinking of her husband Musari Devi lived unhappy and due to that she sprinkled kerosene oil and set on the fire.” 7. While PW2, PW4, PW5 to PW6 have deposed in tutored manner that they had not stated to the police that due to over drinking of her husband Musari Devi lived unhappy and due to that she sprinkled kerosene oil and set on the fire.” 7. After going through the aforesaid paragraphs of the impugned judgement, it appears that the learned trial court has misdirected itself in convicting the appellant for the charge u/s 306 IPC and held that due to over drinking of her husband, Mausari Devi (victim) lived unhappy and create pressure on her husband to leave the habit and due to that she poured kerosene oil herself and, on her husband, and set on fire. Thus, the only issue which requires consideration is “whether any habit of a person can be held to be abetment within the meaning of Section 107 of the Act.” As such, to decide this issue, few provisions of law requires to be seen. For brevity Section 306 and 107 IPC are quoted herein-below: 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. 107. Abetment of a thing- A person abets the doing of a thing, who: First - Instigates any person to do that thing. 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. Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1 - A person who, by wilful 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. Explanation 2 - Whoever, either prior to or at the time of commission of an act does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of the act. 8. Explanation 2 - Whoever, either prior to or at the time of commission of an act does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of the act. 8. After going through the provisions of law, it appears that section 306 IPC stipulates about punishment of a person who abet the commission of suicide. Abetment of a thing is defined under 107 IPC. By judiciously examining the definition of abetment it appears that there has to be presence of intention or mens-rea in the act of the accused person in attracting the charge of abatement. Meaning thereby to say that the accused person who has been charged for the offence under abetment, the prosecution has to prove that the act has been intentionally done or any conspiracy for the same has been done. Explanation 2 of Section 107 clearly states that whoever either prior to or at the time of commission of an act does anything in order to facilitate the commission of that act. Thus, it is seen that the legislature has consciously used the term ‘conspiracy’ ‘intentionally’ and ‘facilitation of commission of crime’ etc. In the instant case, though the two daughters have discarded the allegation of drinking of their father but even admitting that the appellant was alcoholic; then also, in no case he can be charged for the offence under Section 306 IPC, because the prosecution has failed to prove that the appellant had intentionally committed the offence knowing fully well that if he will not leave the habit of drinking, his wife will commit suicide. In other words, it is held that habit of a person cannot be treated as abetment to do any act. 9. In the case of S.S. Chheena Vs. Vijay Kumar Mahajan & Anr. 2010 (4) Criminal Court Cases 305 (SC) : 2010 (12) SCC 190 the Hon’ble Apex Court in paragraph 25 has held as under: “25. 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. 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. The intention of the legislature and the ratio of the cases decided by this Court is 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 that act must have been intended to push the deceased into such a position that he committed suicide.” Further in the case of Madan Mohan Singh Vs. State of Gujarat & Anr. 2010 (8) SCC 628 the Hon’ble Apex Court has laid down the law in paragraph 12 which is quoted herein-below: “12. In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note.” 10. At this stage it is also relevant to refer the judgment passed in the case of State of W.B Vs. Orilal Jaiswal, 1994 (1) SCC 73 wherein the Hon’ble Supreme Court has cautioned that the Court should be extremely careful in assessing the fact 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 her life by committing suicide. 11. In view of the aforesaid judicial pronouncements it is clear that the case of suicide has to be seen in the facts of each case. 11. In view of the aforesaid judicial pronouncements it is clear that the case of suicide has to be seen in the facts of each case. So far as the instant case is concerned; the I.O. has not been examined in this case and even the prosecution witnesses did not support the case of the prosecution so far as charge u/s 306 IPC is concerned and no independent witness has supported the case of the prosecution that the appellant was instigating his wife to commit suicide. It also emerges from the record that it is the deceased who sprinkled kerosene oil on her husband and herself. Thus, it appears that the victim might be over sensitive due to the habit of this appellant and committed suicide but it is reiterated that a bad habit of a person cannot be termed as abetment for committing a crime like 306 IPC. 12. Having regard to the discussions made hereinabove, the impugned judgment requires interference. Consequently, the judgment of conviction and order of sentence dated 15.09.2003 & 16.09.2003 respectively passed by learned Additional Sessions Judge-XI, Dhanbad corresponding to S.T. No. 101 of 2002, is hereby, quashed and set aside. 13. The appellant is discharged from the liability of his bail bonds. 14. Accordingly, the instant criminal appeal, is hereby, allowed. Pending I.A. if any, is also closed. 15. Let a copy of this order be communicated to the court below and the lower court record be sent to the court concerned forthwith.