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2024 DIGILAW 687 (RAJ)

Gopal v. State of Rajasthan

2024-04-25

SUDESH BANSAL

body2024
ORDER : Mr. Sudesh Bansal, J. - This appeal under Section 374 CrPC has been filed challenging the judgment dated 25.2.1991 in Sessions Case No.115/1990 passed by the Special Judge, SC/ST (Prevention of Atrocities Cases), Jaipur whereby accused-appellants have been convicted for offence under Section 306 IPC and sentenced to undergo seven years rigorous imprisonment, with fine of Rs. 100/-, in default to further undergo one month rigorous imprisonment. 2. Heard counsel for appellant, learned Public Prosecutor and perused the record. 3. At the outset, it is note worthy that appellant accused No.1 Gopal has passed away during course of this appeal on 18.05.2016 and none of his surviving relatives have come forward to challenge his conviction, therefore, appeal on behalf of accused appellant No.1 Gopal stands abated as per Section 394 CrPC on account of his death. However, appeal for accused appellant No.2 Manphool Decvi survives, hence, legality and validity of conviction of accused appellant No.2 for offence u/s. 306 IPC is being considered on merits. 4. The factual matrix of the case is not in dispute that one lady namely Kamla locked herself in a room on 10.03.1988, poured kerosene oil on herself and set on fire, however, on hearing hue and cry, door was opened; flames were doused and she was taken to the hospital. On receiving the information, SHO of Police Station Kotwali, Jaipur reached hospital to record her statements. Duty Doctor certified at about 04:30 PM that Kamla is fit for giving statements, SHO recorded her statements on 10.03.1988 itself at about 04:30 PM. Looking to the condition of Kamla, her statements were recorded in question and answer form. Kamla divulged that since about last one month her husband and mother-in-law tortured her on account of having a doubt about her chastity, suspecting her illicit relations with her Jija and by saying that they will bring another woman in her place. On the basis of such statements, one FIR No.75/1988 was registered by the SHO for offence u/s. 498A IPC and investigation was commenced. During investigation, on the same day on 10.03.1988 in between 04:30 PM to 04:45 PM, Judicial Magistrate also visited to hospital to record statements of Kamla, who after getting certification from the concerned Doctor about fitness of Kamla for giving statements, recorded her statements in question answer form. During investigation, on the same day on 10.03.1988 in between 04:30 PM to 04:45 PM, Judicial Magistrate also visited to hospital to record statements of Kamla, who after getting certification from the concerned Doctor about fitness of Kamla for giving statements, recorded her statements in question answer form. Kamla answered the questions put forth by the Judicial Magistrate and divulged that she set fire on herself because of day-night sufferings. She replied the pin pointed questions of Judicial Magistrate and divulged that she was not harassed for demand of any dowry or other items, but in fact she told the basic reason, due to which she took step to end her life was that her husband and mother-in-law had a suspicion on her to have illicit relations with her Jija and she was being defamed by them levelling such allegation. Kamla disclosed that when her sister delivered a child, she went to Gujarat and stayed for about six months at the house of her Jija, therefore, on that count her husband and mother-in-law started to have doubt on her chastity and a day before the incident, they said to her that they will bring another wife, therefore, for that reason only, she locked herself in a room, poured kerosene on her head and set fire with matchstick. Thereafter, on the next date i.e. on 11.03.1988 Kamla died. Thereafter, police completed the investigation and charge-sheet for offence u/s. 498A and 306 IPC was filed against both accused appellants, who happens to be husband and mother-in-law of deceased Kamla. Since the offence u/s.306 is triable by the Court of Sessions, therefore, case was committed for trial to the Court of Sessions. 5. Prosecution make out a case against appellants to harass deceased Kamla for demand of dowry and subjecting her to cruelty in multiple ways and due to such sufferings, she committed suicide, hence, appellants were also booked for abetment to commit suicide. In support of case of prosecution, as many as 15 witnesses were produced. PW.1 is Lalit Kumar, who is brother of deceased, PW.2 and PW.6 Hema Ram and Babulal are uncle of deceased, PW.3 Laduram is Mama and PW.4 Chotu is neighbour. In support of case of prosecution, as many as 15 witnesses were produced. PW.1 is Lalit Kumar, who is brother of deceased, PW.2 and PW.6 Hema Ram and Babulal are uncle of deceased, PW.3 Laduram is Mama and PW.4 Chotu is neighbour. PW.5 and PW.13 are witnesses of Panchnama (Ex.P13), of dead body of Kamla, PW.7 Nemichand is another relative and Mama of deceased, PW.8 is witness of Fard Japti of clothes of deceased, PW.9 is nearby resident of the area where accused and deceased live, PW.10 is Doctor Vivekanand, who conducted post-mortem of dead body, PW.11 is photographer, PW.12 is Doctor Sushma Jain, who attended deceased at first instance on arrival to hospital after burn injuries and certified on 10.03.1988 at 04:30 PM that she is in fit state of mind for giving statements. PW.14 Inderpal Singh, SHO, who recorded statements of injured Kamla (Ex.P16) and PW.16 is Judicial Magistrate namely Hanumanram Kudi, who recorded statements of injured Kamla (Ex.P19). 6. In documentary evidence apart from exhibiting the photographs, FIR (Ex.P17) and other articles, documents, statements of Kamla, separately recorded by the SHO and the Judicial Magistrate on 10.03.1988 before her death were exhibited as Ex.P16 and Ex.P19 respectively. 7. In the statements of accused, recorded u/s. 313 Cr PC, both denied allegations to harass Kamla for dowry so also the allegation of abetment and produced four witnesses in defence evidence DW.1 to DW.4 to show that Kamla was living at her in-laws house happily and never subjected to cruelty. 8. After appreciation of evidence on record, learned trial court found that allegations to harass deceased Kamla for dowry and subjecting her to cruelty in any manner are false. It was observed by the trial Court that the evidence of witnesses of prosecution is self contradictory and hearsay as much as do not match with statements of Kamla herself recorded by the SHO and Judicial Magistrate. The trial Court also disbelieved the evidence of PW.2 and PW.6, uncle of deceased Kamla that her father-in-law, in inebriated state of mind, attempted to outrage her modesty because, such evidence of PW.2 and PW.6 is contrary to statements of Kamla, who clearly stated that her father-in-law never harassed her and did not utter a word against him. Accordingly, case of prosecution for offence u/s.498-A was not found established and both accused were acquitted from charge u/s. 498A IPC. Accordingly, case of prosecution for offence u/s.498-A was not found established and both accused were acquitted from charge u/s. 498A IPC. In respect of holding the appellant guilty for offence u/s. 306 IPC, the trial Court has placed reliance to the statements of Kamla, divulged by her to answer the questions put forth by the SHO and the Judicial Magistrate, recorded on the date of incident itself i.e. on 10.03.1988. The trial Court admitted and accepted both statements of deceased as her dying declaration and finally on the basis of statements of deceased Kamla (Ex.P16 and Ex.P19), appellants have been convicted and punished for offence u/s. 306 IPC. 9. It is note worthy that offence u/s. 498A has not been found proved against appellants and acquittal of appellants from charge u/s.498A has attained finality, hence, presumption for abetment of suicide as envisaged u/s.113(A) of the Indian Evidence Act, 1872 does not arise in the present case. 10. Before delving into examining the correctness, legality or perversity of the impugned judgment, it would be apropos to look into requirement of essential elements of law to prove guilt of an accused for commission of offence u/s. 306 IPC. As per Section 306 IPC and on the basis of principle of judicial precedence, it is well established that prosecution has to prove an element of clear mens rea on the part of accused, to instigate the deceased to propel him/her to commit suicide. Prosecution has to prove that there was an active act or direct act of the accused, which led the deceased to commit suicide, leaving no option and further the act of accused must be proved to be of that intensity and have been done having an intention to push the deceased into such a position that he/she was left with no other alternative except to end the life by committing suicide. There are two essential ingredients to hold guilty an accused for offence u/s. 306 IPC, which are (i) the abetment; (ii) the intention of accused to aid or instigate or abet the deceased to commit suicide. Essential ingredients required to prove "abetment" are prescribed in Section 107 IPC. The term "Abettor" is defined in Section 108 IPC. For ready reference, relevant provisions of law, Section 306, 107 and 108 IPC are being reproduced hereunder:- "306. Essential ingredients required to prove "abetment" are prescribed in Section 107 IPC. The term "Abettor" is defined in Section 108 IPC. For ready reference, relevant provisions of law, Section 306, 107 and 108 IPC are being reproduced hereunder:- "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; 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 108. Abettor.-A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor." 11. By a bare perusal of basic provisions of law, it is vividly clear that in order to convict any person u/s. 306 IPC, prosecution has to establish the "abetment" within four corners of Section 107 and there must be evidence on record to show either instigation or some conspiracy or intentionally aiding or illegal omission on the part of accused. It is not enough to adduce evidence that deceased committed suicide due to atrocities or oppression by the accused but there must be a positive action or illegal omission with an intention to instigate the deceased to push him/her in such a situation that he/she had no option except to end the life by adopting any of suicidal means. 12. The Apex Court, in case of Randhir Singh v. State of Punjab [ (2004) 13 SCC 129 ], while enunciating the purport of Section 306 IPC, observed and held in para No.12 as under:- "12. 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. 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." 13. In case of State of West Bengal v. Orilal Jaiswal [ (1994) 1 SCC 73 ], the Apex Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced before 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 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 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. 14. In another case of Ramesh Kumar v. State of Chhattisgarh [ (2001) 9 SCC 618 ], the Apex Court considered the scope of Section 306 IPC and ingredients which are essential for abetment as set out in Section 107 IPC. The Apex Court interpreted the word "instigation" and it was observed in para No.20 as under:- "20. 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. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case 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 been inferred. The present one is not a case 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 been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation." 15. In case of Gangula Mohan Reddy v. State of Andhra Pradesh [ (2010) 1 SCC 750 ], the conviction of appellant accused under Section 306 IPC was set aside by the Supreme Court and it was observed and held in para No.17 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 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 this act must have been intended to push the deceased into such a position that he committee suicide." 16. Coming to facts of the case in hand, PW.1, brother of deceased, deposed evidence that her sister (deceased) was being harassed for demand of dowry and due to which she committed suicide. PW.2 and PW.6, uncle of deceased deposed that deceased Kamla was harassed for dowry and further her father-in-law at one point of time attempted to outrage her modesty in inebriated state of mind, but the source of their information is as both get form their respective wives. PW.3, Mama of deceased has turned hostile. PW.4 is only witness of incident, who doused the flames from the body of deceased and helped mother-in-law (appellant No.2) in taking the deceased to the hospital for treatment, hence, he is not witness to prove element of abetment. PW.3, Mama of deceased has turned hostile. PW.4 is only witness of incident, who doused the flames from the body of deceased and helped mother-in-law (appellant No.2) in taking the deceased to the hospital for treatment, hence, he is not witness to prove element of abetment. PW.7 is one of relative, who states that Kamla told her that she is very upset, however, he does not depose any direct evidence to prove allegation of abetment against appellant, but only states that a day before, deceased Kamla was taken to hospital by her husband and mother-in-law and he was also with them; In the way, when Kamla started vomiting her husband kicked her on back and asked to his mother to slap her. PW.9 has also turned hostile. None of prosecution witness adduced any evidence to show instigation or illegal act or omission on the part of appellant having an intention to push the deceased to commit suicide. Learned trial Court has convicted the appellant for offence u/s. 306 IPC, mainly on the basis of statements of Kamla, recorded by SHO and Judicial Magistrate on 10.03.1988 (Ex.P16 and Ex.P19), accepting her statements as dying declaration, since thereafter, Kamla died on next day i.e. 11.03.1988 because of her burn injuries. Statements of Kamla deceased (Ex.P16) have been proved by the SHO, Inderpal Singh, who is Investigating Officer, who appeared as PW.14. Statements of Kamla deceased (Ex.P19) also have been proved by the Judicial Magistrate, appeared as PW.16, who recorded such statements. 17. From perusal of statements of Kamla deceased Ex.P16 and Ex.P19, it transpires that Kamla was mentally upset for two reasons firstly, her husband and mother-in-law had a suspicion about her chastity and doubt to have illicit relations with her Jija and defamed her on this count; and (ii) her husband and mother-in-law asked and warned her to bring another wife. According to her statements, she admitted of staying at her Jija's home for six months at Gujarat, at the time of delivery of her sister. She admits that since last one month, her husband and mother-in-law were harassing her on this count and just a day before the incident, they said her to bring another wife. Kamla clearly refused the suggestion that she was harassed for demand of dowry. She did not uttered a single word against her father-in-law. She admits that since last one month, her husband and mother-in-law were harassing her on this count and just a day before the incident, they said her to bring another wife. Kamla clearly refused the suggestion that she was harassed for demand of dowry. She did not uttered a single word against her father-in-law. Statements of Kamla as recorded by the SHO (Ex.P16) and as recorded by the Judicial Magistrate (Ex.P19) were recorded contemporary at about 04:30 PM and after receiving certificate from her Doctor Sushma Jain (PW.14) that Kamla is in fit state of mind to give statements. 18. It is true that after recording statements of Kamla on 10.03.1988, she died on 11.03.1988. Thus, even if both her statements are accepted in evidence as dying declaration as trial Court has taken the evidential value of her statements and weighing them as her dying declaration, the only evidence against appellant for abetment is that she accompanied, husband of deceased Kamla, to torture her by suspecting to have developed illicit relations with Jija and also asked Kamla to bring another woman. Such an act of appellant is not her individual and sole act, but it was a joint act of husband of Kamla (now deceased) and appellant, who is mother-in-law of Kamla. There is nothing in such statements that both wanted and wished that Kamla would commit suicide because of their such act/saying/suspicion. There is not other prosecution witness to show any iota of abetment on the part of appellant, fortifying statements of Kamla. Thus, the question arise as to whether even if statements of Kamla (Ex.P16 and Ex.P19) are accepted and admitted as it is, whether such an act of appellant is sufficient to prove instigation by her and whether same was done with an intention to push Kamla to commit suicide. In the opinion of this Court, the answer is negative because there is not a bit of evidence on record to draw such an inference, against appellant. Therefore, essential element of Section 107 IPC to prove abetment are wholly absent and no presumption in air can be drawn against the appellant just to affirm her conviction, rather she deserves benefit of doubt for not establishing her guilt u/s. 306 IPC. 19. Therefore, essential element of Section 107 IPC to prove abetment are wholly absent and no presumption in air can be drawn against the appellant just to affirm her conviction, rather she deserves benefit of doubt for not establishing her guilt u/s. 306 IPC. 19. The trial Court in the judgment impugned has not recorded any finding about mens rea on the part of appellant to instigate the deceased for committing suicide. Learned trial Court has not pondered over to essential ingredients required to establish offence u/s. 306 read with Section107 IPC and without extending any heed and without any discussion as to whether the essential ingredients of law are proved or not, appellant has been held guilty for offence u/s. 306 IPC. Whereas, this Court on re-appreciation of statements of deceased Kamla, on which the trial Court has placed reliance and based her conviction u/s.306, finds that there is nothing incriminating evidence against appellant to prove the essential ingredients of offence u/s. 306 IPC. This Court has no hesitation to hold that on the basis of sole statements of deceased Kamla, offence under Section 306 IPC does not make out against appellant as there is no connecting evidence that acts done by appellants were made having a mens rea and with an intention to push the deceased Kamla, to commit suicide. It is one thing to observe that deceased Kamla committed suicide because of reason that appellant had a doubt on her chastity and threatened her to bring another woman and it is another thing that such an act of appellant was done by her with an intention to instigate or push Kamla to commit suicide, hence, the act of appellant ipso facto cannot be taken to fall within legal term of "abetment" to held her guilty for offence of abetment for suicide. Thus, appellant may not be held guilty for offence u/s. 306 IPC beyond reasonable doubt and the trial Court has committed manifest illegality and perversity in convicting appellant accused No.2 for such an offence. 20. The Hon'ble Apex Court in the case of Mariano Anto Bruno & Anr. v. The Inspector of Police, [2022 SCC Online SC 1387] held in para No. 36 and 38 thus: "36. To convict a person under Section 306 IPC, there has to be clear mens rea to commit offence. 20. The Hon'ble Apex Court in the case of Mariano Anto Bruno & Anr. v. The Inspector of Police, [2022 SCC Online SC 1387] held in para No. 36 and 38 thus: "36. To convict a person under Section 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide. The prosecution has to establish beyond reasonsbale doubt that the deceaesd committed suicide and Appellant No.1 abetted the commission of suicide of the deceased. In the present case, both the elements are absent. 38. This Court has time and again reiterated that before convicting an accused under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. In case of Mohit Singhal v. State of Uttrakhand, [2023 SCC Online SC 1598], the Apex Court observed thus: "to attract the abatement of a thing in view of Section 107 read with 306 of IPC, there must be instigation in some form on the part of accused to cause the deceased to commit suicide. The accused must have mens rea to instigate the deceased to commit suicide. It has been observed that "the act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide." Such instigation must be in close proximity to the act of committing suicide." 21. It has been observed that "the act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide." Such instigation must be in close proximity to the act of committing suicide." 21. The upshot of discussion is that the essential ingredients to prove offence u/s. 306IPC read with Section107 IPC have not been proved by the prosecution against appellant accused No.2 Manphool Devi beyond reasonable doubt, therefore, her conviction and punishment for offence u/s. 306 IPC is not sustainable. 22. Consequently, conviction of accused appellant No.2 is set aside. As far as accused appellant No.1 is concerned, he has already passed away, therefore, his appeal has been declared abated. Accordingly, the present appeal stands disposed of finally. 23. The accused appellant No.2 is already on bail, she need not to surrender. Her bail bonds are discharged. 24. Record of the trial Court be sent back forthwith.