Cases Referred:

1. Mahinder Singh v. State of M.P., 1995 AIR SCW 4570. [Para 6]

2. State of West Bengal v. Orilal Jaiswal, AIR 1994 SC 1418. [Para 7]

3. Sanju Alias Sanjay Singh Sengar v. State Of M.P., AIR 2002 SC 1998. [Para 8]

4. Sohan Raj Sharma v. State of Haryana, 2008 AIR SCW 320. [Para 18]

Counsel for the Parties:

For the Appellant: Shri Y.S. Tomar, Advocate.

For the Respondent/State: Shri R.D. Agrawal, Panel Lawyer.

Indrani Datta, J. -

This appeal has been preferred against the judgment of con­viction and sentence dated 20.8.2001 passed by 10th Additional Sessions Judge, Gwalior in S.T. No. 239/94 by which the appellant and other co-accused Bhagirath (died dur­ing the pendency of appeal), have been con­victed under Section 306 IPC and sentenced to undergo 3 years R.I.

2. The case of the prosecution in brief is that deceased Ramkunwar is the mother of Bhagirath and appellant Radha is daugh­ter-in-law of deceased. Deceased, appellant Radha and Bhagirath (dead) used to reside in different rooms of one house. Appellant and co-accused Bhagirath used to ill-treat, harass and beat the deceased in order to kick her out from the house and get the va­cant possession of the room. On 4.6.1994 appellant and co-accused assaulted and gave beating to the deceased. Deceased was fed-up with all these harassment and committed suicide on 5.6.94 at about 12.O'clock in the noon by pouring kerosene on herself. Deceased was admitted in J.A. Hospital Gwalior by Babulal her son (PW7). Dr. V.S. Tomar (PW11) and Dr. Y K. Diwan (PW9) medically examined the deceased. Ex. P15 and P12 are their reports.

PW8 Chimansingh Jadon S.I on receiv­ing information from J.A. Hospital Gwalior reached to hospital and recorded dying dec­laration (Ex. P10) of deceased dying declaration (Ex. P/6) was also recorded at 1.40 p.m. by PW3 Dr. Mamta Gupta. Deceased died on 7.6.94 in Kamla Raja Hospital. Marg No. 21/94 (Ex.P11) was registered by PW8 Chimansingh Jadon. Spot map was pre­pared by PW12 Ram Ujagar Singh Yadav S.I. and Katta, kerosene oil and match-box were seized as per Ex. P5 from the place of incidence. Lash Panchayatnama (Ex. P 3) was prepared. Autopsy of dead body was conducted by Dr. R.C. Upadhyay (PW10). Cause of death was found to be burning. Ex.P14 is post-mortem report. S.I. Ram Ujagar Singh Yadav lodged Ex.P16 FIR af­ter marg intimation. After investigation, charge-sheet was filed in the court of Chief Judicial Magistrate, Gwalior, from where the case was committed to the Court of Ses­sions.

3. Appellant and other co-accused were charged for committing offence punishable under Section 306 IPC and after conclusion of trial the learned 10th ASJ convicted the appellant and co-accused under Section 306 IPC and sentenced them as stated above, hence this appeal.

4. The contention of the learned counsel for the appellant is that the prosecution witnesses have not supported the prosecu­tion. Dying declarations Ex.P6 and P10 in no way establish that appellant had abet­ted the suicide. These dying declarations at most disclose that relation of appellant and deceased were not cordial. They were al­ways disputing. It may be that deceased committed suicide on account of this but this cannot be taken to be an act of abetting the suicide and appellant is liable to be acquit­ted.

5. Learned counsel for the State on the other hand has supported the impugned judgment of the trial court.

6. In case of Mahinder Singh v. State of M.P., 1995 AIR SCW 4570 it is held that in case of alleged abet­ment of suicide there must be number of direct or indirect acts of incitement to the commission of suicide. The mere fact that husband treated the wife with cruelty is not enough.

7. In case of State of West Bengal v. Orilal Jaiswal, AIR 1994 SC 1418 Hon'ble Apex Court has observed that the courts 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 her 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.

Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when (1) he instigates any person to do that thing, or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do anything. The abetment may be by instigation, con­spiracy or intentional aid, as provided in the three clauses of Section 107, Section 109 provides that if the act abetted is commit­ted in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be pun­ished with the punishment provided for the original offence, 'Abetted' in Section 109 means the specific offence abetted. There­fore, the offence for the abetment of which a person is charged with the abetment nor­mally linked with the proved offence.

8. In case of Sanju Alias Sanjay Singh Sengar v. State Of M.P., AIR 2002 SC 1998 the Hon'ble Apex Court considered various decisions and held that a charge of an offence under Section 306 is not sustainable merely on the allega­tion of harassment to the deceased particu­larly when ingredients of abetment are not attracted on the statement of deceased or witnesses. Apex Court considered as under:

In Swamy Prahaladdas v. State of M.P. & Anr., 1995 Supp (3) SCC 438, the appel­lant was charged for an offence under Sec­tion 306 I.P.C. on the ground that the ap­pellant during the quarrel is said to have remarked the deceased 'to go and die'. This Court was of the view that mere words ut­tered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.

In Mahendra Singh v. State of M.P., 1995 Supp. (3) SCC 731, the appellant was charged for an offence under Section 306 I.PC. basically based upon the dying decla­ration of the deceased, which reads as un­der:

"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these rea­sons and being harassed I want to die by burning."

This Court, consider the definition of 'abetment' under Section 107 I.P.C., found that the charge and conviction of the appel­lant for an offence under Section 306 is not sustainable merely on the allegation of ha­rassment to the deceased. This Court fur­ther held that neither of the ingredients of abetment are attracted on the state of the deceased.

In Rarnesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the Hon'ble Apex Court while consider the charge framed and the conviction for an offence under Section 306 I.P.C. 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 & 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 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 for abetting the offence of suicide should be found guilty."

It was ultimately found that even if ac­cused did tell the deceased 'to go and die', that itself did not constitute the ingredient of instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of means rea, therefore, is the nec­essary concomitant of instigation it is com­mon knowledge that words uttered in a quarrel in a spur of the moment cannot be taken to be uttered with metis rea. It is just a fit of anger and emotional distress, with­out intending any consequence.

9. On the above principle of law laid down whether offence charged under Section 306 IPC is made out against the appellant is to be considered by scrutiny of evidence pro­duced by the prosecution.

10. Prosecution has examined 12 wit­nesses in all. Main Evidence that has been produced and used for leveling accusation against the appellant is dying declarations Ex.P6 and P10 recorded by S.I. Chimansingh Jadon and Dr. Mamta Gupta Other witnesses are PW1 Meera, PW2 Bhimsingh, PW7, Babulal son of deceased, PW4 Hemlata & PW6 Anguri, daughters-in-law of deceased, PW5 Shakuntala. Hemlata's mother. All were declared hos­tile by the prosecution and have not fully-supported the prosecution case.

11. PW2 Bhimsingh and PW 7 Babulal sons of deceased though declared hostile have, however, stated that appellant and co-accused were having sour relations with deceased and used to beat and harass her. PW2 Bhimsingh has further deposed that Ramkunwar poured kerosene oil on her due to this harassment. PW4 Hemlata daugh­ter-in-law of deceased has narrated m her examination-in-chief that in hospital Ramkunwar told her that she was fed-up so she burnt herself. As per her statement appellant used to quarrel with deceased. PW6 Anguri daughter-in-law of deceased has also stated that PW5 Shakuntala and Parvati (not examined) were present at the time of incident as they were gone to the house of deceased in order to perform com-promise between the deceased and appel­lant.

12. In this way, it is proved from the state­ment of above prosecution witnesses that appellant and co-accused used to ill-treat and harass the deceased. Even then for an offence punishable under Section 306 IPC it is required to be proved beyond doubt that appellant has actively suggested or stimu­lated to the deceased to the act by means of language direct or indirect where it takes the form of solicitation or hints, insinuation or encouragement. The word 'instigate' means to goad or urge, forward or to pro­voke, incite, urge or encourage to do an act. With respect to this other evidence produced is to be seen.

13. Other incriminating evidence as per the prosecution are two dying declarations Ex. P6 and P10 recorded on 5.6.94 at 1.40 p.m. Dying Declaration (Ex.P6) is recorded by Dr. Mamta Gupta PW 3 in question and answer form which reads as under:

Question : What is your name?

Answer : Ramkunwar.

Question : Where do you reside?

Answer : Loko

Question : What is the name of your husband?

Answer : Raghunath

Question : Whether anybody set fire on you?

Answer : No, my elder daughter-in-law (lame) and elder son in drunken condition had beaten me by means of stick that I have burnt myself in noon at about 12 O' clock.

Question : Whether you want to say anything more?

Answer : No

In Ex. P6 there is note "B" to "E: written by Dr. Mamta Gupta (PW3) that when statement was recorded deceased was fully con­scious and was not under any effect of drug or alcohol.

14. From the perusal of Ex. P6 and prompt statement of Dr. Mamta Gupta (PW3) it appears that this dying declara­tion is properly recorded and hence fully re­liable and there is no reason to disbelieve Dr. Mamta Gupta.

15. Second dying declaration (Ex. P10) is recorded at 1.40 p. m. by PW8 Jadon in ques­tion and answer form which reads as un­der:

Question : What is your name?

Answer : Ramkunwar.

Question : What is the name of your husband?

Answer : Raghunath Kohli

Question : Where do you reside?

Answer : At Loko in a lane situated near Jhanda Dhari Hanuman.

Question : Who resides in your home?

Answer : I have four sons and four daughters-in-law.

Question : How you got burnt?

Answer : My elder son Bhagirath and his wife used to beat, me and object my resid­ing in house, being fed-up I poured kerosene on me and set fire.

Question : whether anybody else set fire on you?

Answer : No.

Question : Whether you want to say anything more?

Answer : My elder son got the job in place of my husband and Bhagirath and his wife harass me.

So far as the second dying declaration (Ex.PI0) is concerned this dying declaration is not properly recorded and hence not reli­able. PW8 Chimansingh Jadon has stated that he recorded the dying declaration of deceased at 1.40 p.m. on 5.6.94. In cross-examination he has stated that he recorded her dying declaration seven minutes before 1.40 p.m. and recording was completed at about 1.40 p.m. Dr. Mamta Gupta (PW3) has stated in her cross-examination that she recorded dying declaration of deceased 10 minutes before 1.40 p.m. and completed re­cording at 1.40 p.m. So when PW3 Dr. Mamta Gupta was recording the dying dec­laration of deceased 10 minutes before 1.40 p.m. how is it possible that PW8 Chimansingh Jadon was recording the dy­ing declaration of deceased 7 minutes be­fore 1.40 p.m. Second point which makes dying declaration Ex.PI0 unreliable and doubtful is that it is not recorded in pence of any witness or even a ward boy or any member of staff of hospital who must be available at that me. There is no note in Ex. P10 that deceased was in a fit and proper condition and was fully conscious to give statement. So Ex.PI0 is doubtful and unreliable.

16. So far as the Ex. P6 dying declara­tion is concerned, even assuming that Ex. P6 is reliable and properly recorded even then actual instigation on the part of appel­lant inducing deceased to commit suicide cannot be inferred. It cannot be presumed that appellant by her conduct created such circumstances that deceased was left with no option except to commit suicide as pres­ence of mens rea is necessary concomitant of instigation. There is nothing on record to show that appellant wanted or intended that deceased should commit suicide.

17. From the above discussion and oral evidence of prosecution, witnesses as well as from dying declaration Ex.P6 it appears that there was some domestic dispute be­tween the deceased, co-accused and appel­lant in the previous night of incidence. De­ceased has committed suicide not on the same night but on the next day at 12 O'clock in the noon. Even assuming co-accused and appellant used to harass and ill-treat the deceased even then essential ingredients for making out offence under Section 306 IPC is not made out.

18. In case of Sohan Raj Sharma v. State ofHaryana4 it is observed by Hon'ble Apex Court that abetment of suicide under Sec­tion 306 involves a mental process of insti­gating a person or intentionally aiding that person in doing of a thing. More active role which can be described as instigating or aid­ing doing of a thing is thus required before a person can be said to be abetting suicide. In that case wife committed suicide after giving poison to her children. Suicide note described accused husband as sexual per­vert. It was stated that accused was impo­tent and was tying to defame her. She had clearly mentioned that she wanted to take his life. His cruel or insulting behaviour cannot be taken an act of, abetting suicide. Ingredients of under Section 306 IPC was not established and conviction of accused found to be improper.

19. Relying on above principle of law af­ter analyzing the prosecution evidence it is not proved that appellant has abetted the deceased to commit suicide. Appellant, therefore, deserves to be acquitted of charge under Section 306 IPC.

20. Resultantly, the appeal is allowed. Conviction of appellant under Section 306 IPC and sentenced passed thereon is set aside. Appellant is on bail. Her bail bonds and surety bonds stand discharged.

Appeal allowed.