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2024 DIGILAW 464 (RAJ)

State of Rajasthan v. Manohar Singh

2024-03-15

MANOJ KUMAR GARG

body2024
ORDER : 1. The appellant State has filed the present Criminal Appeal against the judgment dated 29.02.1992 passed by learned Special Judge, Women Attrocities Cases, Jodhpur in Sessions Case No. 55/1990 whereby the accused respondent has been acquitted from the offences under Section 306 IPC. 2. Brief facts of the case are that the complainant lodged a written complaint before the S.H.O, Police Station Khanda Falsa with the allegation that his daughter Pushpendra was married to respondent Manohar Singh and the respondent even prior to marriage, was having illicit relationship with his niece Mahendra. The deceased found the letters exchanged between the accused respondent and Mahendra, therefore, the accused started torturing his daughter and she committed suicide. On this report a FIR No. 45/1982 was registered against the respondent for offence under Section 306 IPC. After investigation, challan was presented against the respondent before the competent court. 3. The trial Court framed charge against the accused respondent for offence under Section 306 IPC. The accused respondent denied the charges and claimed to be tried. 4. The prosecution in support of its case recorded statements of seventeen witnesses and exhibited various documents. The statement of accused respondent under Section 313 Cr.P.C. was recorded but he did not produce any evidence in defence. After hearing arguments of both the sides, the trial Court acquitted the accused respondent for the charge under Section 306 IPC. 5. The learned counsel for the appellant argued that the Court below without going through the entire record and evidence wrongly acquitted the accused respondent for the offence charged against him. The court below while passing the impugned order did not consider the statements of witnesses and documents in correct perspective. It is submitted that the letters exchanged between the respondent and his niece proved that there was extra marital relations between them due to which the deceased got mentally tortured. It is further argued that the accused respondent had even taken away mangalsootra from the deceased and also used offensive words against the wife. Further as per provisions of Section 113A of the Evidence Act, since the suicide was committed within seven years of marriage, presumption has to be drawn against the husband. It is argued that there were direct evidence as well as circumstantial evidence which proved the guilt of the accused respondent however, the trial court ignored the statement of prosecution witnesses. Further as per provisions of Section 113A of the Evidence Act, since the suicide was committed within seven years of marriage, presumption has to be drawn against the husband. It is argued that there were direct evidence as well as circumstantial evidence which proved the guilt of the accused respondent however, the trial court ignored the statement of prosecution witnesses. It is argued that the cumulative behaviour of the accused respondent towards the wife compelled the deceased to commit suicide but the learned trial court ignored the medical evidence brought on record which resulted into erroneous acquittal of the accused respondent. Thus the judgment of the Court below is liable to be set aside and the accused respondent should be convicted for the offence charged against him. 6. Per contra, counsel for the respondent accused argued that the prosecution primarily relied upon the extra marital relationship between the accused and niece Mahendra Kumari whereas, the exchange of letter happened between them till marriage of accused and last time in the month of September, 1978 whereas, the deceased committed suicide in the month of June, 1982. Moreover, the deceased had knowledge about these letters in the month of November, 1978 itself and same were hidden by the deceased herself, therefore, it cannot be said that due to exchange of these letters and illicit relationship, the deceased committed suicide. Thus in order to bring home the conviction for the offence under Section 306, IPC, the evidence of abetment by the accused respondent would have to be viewed in the light of the provisions of Section 107, IPC. It is submitted that in the present case, Clause (1) of Section 107 IPC alone is applicable and the prosecution failed to prove that the respondent had instigated the deceased to commit suicide. Therefore, no interference is called for in the impugned judgment and the appeal is liable to be dismissed. 7. I have heard the counsels for the parties and gone through the entire record. 8. At the outset, it would be apt to take note of provision contained under Section 306 of IPC, which reads as under: “Section 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.” 9. Abetment is defined under Section 107 of IPC, which reads as under: “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 willful misrepresentation, or by willful 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. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2 - Whoever, either prior to or at the time of the 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 that act.” 10. Abetment is defined under Section 107 of IPC, which reads as under: “107. Abetment of a 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. 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. '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 the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission there of, is said to aid the doing of that act.” 11. Similarly, the dictionary meaning of the word 'instigate' is to bring about or initiate, incite someone to do something. The Hon'ble Apex Court in the case of Ramesh Kumar v. State of Chhattisgarh reported in (2001) 9 SCC 618 has defined the word 'instigate' as instigation is to goad, urge forward, provoke, incite or encourage to do an act.” 12. Hon'ble Apex Court in case of S.S. Cheena v. Vijay Kumar Mahajan and Anr. Reported in (2010) 12 SCC 190 has dealt with scope and ambit of Section 107 IPC and its co-relation with Section 306 IPC. Relevant paras of the aforesaid judgment read as under: “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 the Supreme 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.” 13. In the case of M. Arjunan v. State, Represented by its Inspector of Police reported in (2019) 3 SCC 315 , the Hon'ble Apex Court has held as under: “The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. In the case of M. Arjunan v. State, Represented by its Inspector of Police reported in (2019) 3 SCC 315 , the Hon'ble Apex Court has held as under: “The essential ingredients of the offence under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/abetment to commit suicide are satisfied, accused cannot be convicted under Section 306 I.P.C.” 14. The Hon'ble Apex Court in Ude Singh & Ors. v. State of Haryana reported in (2019) 17 SCC 301 , has held that in cases of alleged abetment of suicide, there must be a proof of direct or indirect act/s of incitement to the commission of suicide. It could hardly be disputed that the question of cause of a suicide, particularly in the context of an offence of abetment of suicide, remains a vexed one, involving multifaceted and complex attributes of human behaviour and responses/reactions. In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act/s of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide and such an offending action ought to be proximate to the time of occurrence. Whether a person has abetted in the commission of suicide by another or not, could only be gathered from the facts and circumstances of each case. 15. Aforesaid proposition of law taken into consideration clearly reveals that mere allegation of harassment of deceased by the accused named in the FIR may not be sufficient to conclude guilt, if any, under Section 306 IPC, rather to bring the accused in the ambit of 306 IPC, it is required to be established on record that deceased committed suicide after being instigated and abetted by the accused, which in the case at hand is totally missing. 16. 16. Recently, Hon'ble Apex Court in case tilted Mariano Anto Bruno and another v. The inspector of Police, reported in 2022 Live Law(SC)834, held that not only there has to be evidence of continuous harassment, but there should be cogent evidence to establish a positive action by the accused which should more or less be proximate to the time of occurrence, which action can be said to have led or compelled the person to commit suicide. It would be profitable to reproduce para No. 34 of aforesaid judgment herein: “34. A bare perusal of the impugned judgment indicates that the High Court erred in recording the finding that there is sufficient evidence for convicting the appellants under Section 306 IPC losing sight of the fact that there exists no evidence on record indicating that the deceased was meted out with harassment by the appellants just before her death. It is well-settled that not only there has to be evidence of continuous harassment, but there should be cogent evidence to establish a positive.” 17. It has thus been observed that though presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused is on the prosecution. The prosecution has to establish beyond reasonable doubt that the accused had instigated, conspired or intentionally aided so as to drive the wife to commit suicide. In the instant case, the trial court while acquitting the accused respondent has observed that cruelty and harassment alleged by the accused respondent due to illicit relationship with his niece cannot be said to be continuous harassment and instigation just before death inasmuch as, the last exchange of letter happened between them in the month of September, 1978 whereas, the deceased committed suicide in the month of June, 1982. Moreover, the deceased had come to know about these letters in the month of November, 1978 itself and same were hidden by the deceased herself i.e. for three years. So far as the allegation of cruelty and harassment meted out by the respondent is concerned, the complainant PW/7 in his statement has only stated that the deceased told him that she cannot survive in her matrimonial home and accused respondent is unhappy with her. So far as the allegation of cruelty and harassment meted out by the respondent is concerned, the complainant PW/7 in his statement has only stated that the deceased told him that she cannot survive in her matrimonial home and accused respondent is unhappy with her. Thus, there is no evidence that deceased was meted with harassment by the accused just prior to her death and she was instigated/abetted to commit suicide and as such, no case under Section 306 IPC is made out. In the opinion of this Court, the findings given by the trial Court are perfectly justified and there is no illegality in the judgment of acquittal by the trial Court. 18. In the case of 'Mrinal Das & others v. The State of Tripura, : 2011(9) SCC 479 ,' decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under: “An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”, for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed.” 19. Similarly, in the case of State of Rajasthan v. Shera Ram alias Vishnu Dutta, reported (2012) 1 SCC 602 ,' the Hon'ble Supreme Court has observed as under: “A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.” 20. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion is that there is no substantial difference between an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the trial Court is a reasonable one and the conclusion reached by it had grounds well set out on the materials on record, the acquittal may not be interfered with. Learned counsel for the appellant has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge. 21. In the facts and circumstances of the case, the present appeal has no substance and the same is hereby dismissed. 22. The record of the trial court be sent back forthwith.