JUDGMENT
Accused four in number were prosecuted for the offence punishable under Sections 498A and 306 read with Section 34 of Indian Penal Code. All the accused were found guilty of the offence punishable under Section 498A and they were therefore convicted and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 5,000/- with a default clause of one year. In addition to the said finding, the first accused was also found guilty of the offence punishable under Section 306 of I.P.C and he was sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 50,000/- with a default clause of three years. The substantive sentences were directed to run consecutively and set off as per law was allowed.
2. The marriage between the first accused and deceased Lillikutty was solemnized on 11.2.1988 Lillikutty committed suicide on 23.2.1996 She died by hanging. As per the available material, it would appear that everything went on well during the initial stage of marriage and almost after five years things began to go astray. The allegation is that the inmates in the matrimonial home of the victim, including her husband, began to ill-treat and torture her leading to an explosionel point where the victim was compelled to commit suicide. During the marital life, she delivered a child which did not live long. Further allegation is that abortion was caused clandestinely by the accused persons. On 23.2.1996 a mediation talk was scheduled and the relatives of deceased Lillikutty were also to attend the mediation talks. When the meeting was so scheduled, Lillikutty committed suicide. P.W.1, a neighbour of the accused, laid Ext.P1 first information statement on 23.2.1996 It appears that subsequent complaint was laid regarding the death of Lillikutty and the initial FIR registered for unnatural death under Section 174 of the Code of Criminal Procedure was altered to one for the offences punishable under Sections 498A and 306 of I.P.C Ext.P15 is the said first information statement and P.W.12 on receipt of the statement registered crime as per Ext.P15(a) FIR. Inquest over the body of Lillikutty was conducted and her body was sent for autopsy. P.W 4 conducted autopsy and furnished Ext.P9 report. P.W 14 took over investigation. According to him, the initial investigation was conducted by a Sub Inspector who was not alive at the time for giving evidence and therefore P.W.14 who was familiar with the signature and handwriting of the said investigating officer spoke about the various steps taken by the earlier Investigating Officer. Ext. P7 note book was seized as per Ext. P17 mahazar. Ext. P14 scene mahazar was prepared by P.W 14 and he filed Exts.P18 report showing the details of the accused and also showing the relevant provisions of the Indian Penal Code. He also sent communication to the Executive Magistrate to transfer the records to JFCM, Nilambur. He recorded statements of witnesses and he also obtained specimen signature of the victim and had the disputed writing sent for expert examination. He obtained Ext.P12 report. During his investigation, he had seized several articles which were sent to court and some of them were sent for chemical examination. He completed investigation and laid charge before court.
3. The court before which the final report was laid took cognizance of the offences. On finding that the offences are exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Nilambur under Section 209 of Cr.P.C That court made over the case to Additional Sessions Court Fast Track-I (Adhoc), Manjeri for trial and disposal.
4. The latter court on appearance of the accused and on receipt of records framed charges for the offences punishable under Sections 498A and 306 of I.P.C, to which the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, examined P.Ws.1 to 15 and had Exts.P1 to P25 marked. M.Os.1 to 18 were got identified and marked. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C, they denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent. The first accused stated that it was after four years of treatment that the child was born to the couple. Since the child did not live long, the victim was under tremendous pressure. She felt that she may not conceive again. On the date of the incident, at 5 p.m she poured kerosene over her body and drunk kerosene also. He called P.W.1 for aid and also had decided to have mediation talks. The people who sent for mediation talks were Chacko, Peter and Georgekutty. They decided to talk to the family of Lillikutty. The first accused was waiting in the house of James when the second accused called him home and he along with James rushed to the place. The door of the room was found bolted from inside. They broke open the door. Lillikutty was found hanging. They untied the knot and laid her on the cot. By that time, Dr. Kurivila arrived and he pronounced Lillikutty dead.
5. The second accused stated that after the loss of the first child and miscarriage of the second child, the victim was under tremendous pressure. He denied any sort of problem in the matrimonial home.
6. The third accused stated that she had neither ill-treated nor done any act which had caused any annoyance to the victim. The victim was disappointed due to the death of the first child and the miscarriage of the second child. On the date of the incident, she had consumed kerosene and when the first accused told her about the same, she made the victim drunk coconut oil and they were coffee. Till the mediators arrived, she was with the victim. She denied having committed any act which would amount to cruelty.
7. The fourth accused stated that from 1986 onwards, he was not in the native place. The marriage between the first accused and the victim was held in 1988. His marriage was on the 6th of December. He denied the allegations of he having beaten the victim with a broom and contended that there was no difference of opinion between them. He denied having any role to play in the suicide of the victim.
8. Finding that the accused could not be acquitted under Section 232 Cr.P.C, they were asked to enter on their defence. They examined D.Ws.1 and 2 and had Ext.D1 marked. The court below considerably impressed by the evidence of P.Ws.3, 4 and 5, who are the younger sister and brothers of the deceased and also the contents of Ext.P7 and P3 to P6 and P8 came to the conclusion that offences have been made out. The court below also drew support from the evidence of P.Ws.2 and 6 also. Finding the accused guilty of the offences, conviction and sentence followed. The said conviction and sentence are assailed in this appeal.
9. Learned Senior Counsel appearing for the appellants namely, Shri. Gracious Kuriakose assailed the finding on several grounds. It was pointed out by him that the evidence is totally insufficient to reach a conclusion regarding the commission of offence either under Section 498A of I.P.C or under Section 306 of I.P.C There is no allegation that Lillikutty, the deceased, was subjected to cruelty or ill-treatment demanding dowry. Certain acts are attributed to the accused persons which according to the prosecution compelled her to commit suicide. Except for vague statements of ill-treatment, the learned Senior Counsel pointed out that there is no specific instance mentioned by any of the witnesses which would justify the conclusion that Lillikutty was ill-treated, tortured or treated cruelly in the matrimonial house.
10. Learned Senior Counsel pointed out that even going by the evidence of P.Ws.3 and 5 during the initial five years of marriage there was nothing wrong in the matrimonial life of first accused and Lillikutty and it was thereafter that the problems began. Referring to Exts.P3 to P6 and P8 learned Senior Counsel pointed out that those letters were written at a time when the victim had lost her first child and she was under disappointment and tremendous pressure. Learned Senior Counsel also referred to the above letters to point out that the members of the family of the victim were also equally at fault for the reason that the contents of the letters would disclose that she was not wanted in her parental house. After marriage, no one in her house used to care for her and that made her extremely unhappy and sad. Learned Senior Counsel went on to point out that it is significant to notice that even though P.W.5, the brother says that Lillikutty used to continuously write letters to him, letters after 1994 are not seen produced. That, according to the learned Senior Counsel, is deliberate because subsequent letters would have shown that her family life was far better and that there were nothing unpleasant in the matrimonial home as is now sought to be put forward.
11. Learned Senior Counsel went on to point out that the contents of Exts.P3 to P6 cannot be taken aid of to come to the conclusion that offence of cruelty has been made out. As far as accused Nos. 2 to 4 are concerned, they are not found guilty of offence under Section 306 of I.P.C, and the contents of Exts.P3 to P6 were found against them for finding them guilty under Section 498A of I.P.C
12. Relying on the decisions reported in Amalendu Pal v. State of W.B ((2010) 1 SCC 707), Pinakin Mahipatray Rawal v. State (2013 (3) K.H.C 810), Gangula Mohan Reddy v. State of Andhra Pradesh ((2010) 1 SCC 750) and Kishori LaL v. State of M.P (AIR 2007 SC 2457) it was contended that even assuming all what the prosecution says is true, still no offence under Section 306 of I.P.C is made out because there is nothing to show that the first accused either intended that the victim should commit suicide or had knowledge that she would commit suicide. When there were neither intention nor knowledge, the question of instigation does not arise. It was thus contended that the conviction and sentence for offence under Section 306 of I.P.C cannot stand.
13. Learned Public Prosecutor on the other hand pointed out that the evidence of P.Ws.3 and 4 taken along with the evidence of P.Ws.2 and 6 would sufficiently show that the life of Lillikutty in the matrimonial house though might have been pleasant initially, but went on rocks later. Exts.P3 to P6 tell the tale of the agony undergone by the victim in the matrimonial house. Not a day passed without she being tortured or humiliated. She was beaten with a broom and was made to spend a whole night outside the house while it was raining. The evidence would disclose that the first child died for want of adequate attention and care of the members of the matrimonial house and evidence also discloses that as far as the second child is concerned, a clandestine abortion was done by the members of the matrimonial house. It is true, according to the learned Public Prosecutor, that she received little help from her kith and kin. But that does not justify the acts of the accused persons which ultimately led to the suicide of the victim. True, the suicide was after seven years of marriage. But that does not mean that the matter is to be viewed lightly. The conduct of the first accused, the husband, is such that he never bothered to attend to the complaints of his wife and infact had decided that he would divorce her and he would no longer have the company of his wife. This can be seen from the contents of Ext.P7 Regarding the cruel acts said to have been committed by the accused persons, there is no effective cross-examination of P.Ws 3 and 4. of course, they do say about the incidents spoken to by the victim evidenced by Ext.P7 P.W.5 had narrated about the cruel acts of the accused. But both of them say that she used to convey what transpired in the matrimonial house. Exts.P3 to P6 sufficiently disclose the deplorable state of affairs as far as the victim is concerned in the matrimonial house. She was even deprived of food and clothing. On the date of the incident, a mediation talk was scheduled to be held and the relatives of the victim were also asked to attend the same. The learned Public Prosecutor pointed out that in the light of the fact that the first accused had already decided to part ways with the victim, the victim might have been compelled to believe that after mediation talks she would be packed off from the matrimonial house to her parental home where also she had no firm footing. The conduct of the first accused spread over a period of time in not caring for her wife, not maintaining her and also not taking any objection to the overt acts of other inmates of the matrimonial house ill-treating the victim, then, the decision taken by the first accused to sever the matrimonial relationship with the victim and his adamant attitude that under no circumstance he was willing to live with the victim along with the loss of two children mainly due to the conduct of the members of the matrimonial house ultimately was left with no choice, but to commit suicide. Even though the first accused might not have contributed to the suicide of the victim by doing anything on the date of the incident, his conduct has certainly been questionable and his passive and infact the active role in aiding the other members of the family in ill-treating the victim which ultimately drove the victim to commit suicide is sufficient in law to attract offence under Section 306 of I.P.C Learned Public Prosecutor went on to contend that the court below has analysed the evidence in considerable detail and has come to the definite conclusion that offence under Section 498A of I.P.C is made out against all the accused persons and offence under Section 306 of I.P.C is made out against the first accused. The findings are based on the evidence on record and do not call for any interference.
14. It is not in dispute that the marriage between the first accused and the victim was solemnized on 11.2.1988 At the relevant time, the first accused was working as a painter in New Delhi. Initially the marital life was happy and pleasant. It appears that the first accused secured an employment in the Middle East and he left for employment. There is a claim that in order to go abroad for employment, the gold ornaments given to the victim at the time of marriage were sold. The first accused had during his tenure of employment abroad had frequently visited his house, but the prosecution allegation is that he was indifferent to the victim apart from the fact that he had indicated his decision to put an end to the marital relationship with the victim. On the date of the incident, i.e on 23.2.1996 the first accused had come on leave and was at home.
15. The prosecution allegation is that the life of the victim in the matrimonial house was deplorable and miserable and the attitude of accused Nos. 1 to 4 became so intolerable and unbearable and the harassment and torture were so severe that the victim was left with no choice but to commit suicide.
16. The main items of evidence for the allegation of cruelty and the commission of offence under Section 306 of I.P.C are given by P.Ws.3 and 5 who are the siblings of the victim. The evidence of P.W.3 would show that she was very close to her sister, the victim, who confided in her. She would say that at the time of marriage the first accused was employed as painter in New Delhi and later he went to Middle East, money for which was raised by selling the gold ornaments of his sister. After the first accused had left for Middle East, she would say that the ill-treatment of the rest of the accused became a routine affair and whenever the first accused came on leave, he also attributed his share of ill-treatment on the victim. She speaks about the incident where the fourth accused beat Lillikutty with a broom. She also mentions that due to some trifle reasons which annoyed the accused persons she had to spend a whole night outside the house while it was raining. As per the evidence of P.W.3, the ill-treatment continued even during the time of pregnancy of the victim and during and after delivery proper attention and care was not bestowed to the victim. According to her, the affairs in the hospital at the relevant time were looked after by her brothers. While the victim was pregnant, even though on several occasions the victim wanted to go to the hospital, accused Nos. 2 to 4 did not yield and they were of the opinion that no medical check up is necessary and she can deliver even without any medical consultation. She also says that though she used to visit the matrimonial house of the victim, the accused persons took care to see that they do not talk to each other alone. She also speaks about having met her sister soon after the abortion. As regards the abortion, her evidence is that when the first accused learned that the victim had conceived on the second occasion, misleading her, the first accused administered certain tablets to the victim which caused bleeding and consequential miscarriage. She would also say that the victim was denied food in the matrimonial house. Taunting, humiliation and mockery were a daily routine in the matrimonial house of the victim. She also spoke about the illegal relationship of the first accused with another lady and when the victim took objection to the conduct, she was ill-treated. Her evidence is to the effect that while the victim was ill-treated by the first accused, the other accused persons not only remained passive, but also aided him in doing so and vice versa. In fact, the evidence would show that while the victim was pregnant, the first accused kicked on her abdomen.
17. The other evidence is that of P.W.5, the brother, who almost speaks in terms with the evidence furnished by P.W.3 P.W.5 in fact proved Exts.P3 to P6 and also Ext.P8 letter. Among them, Exts.P3 to P6 are letters written by the victim to him, while Ext.P8 is a letter which the first accused wrote to his brother which fell into the hands of the victim which she entrusted with P.W.5
18. P.W.2 a neighbour of the accused speaks about the frequent visits of the first accused to the house of one Thanki when there was a rumour in the locality that the first accused was maintaining an illicit relationship with the daughter of Thanki. P.W.2 would say that he had advised the first accused not to visit the house of said Thanki. He would also say that Lillikutty, the deceased, had to put up with considerable difficulties and inconveniences in the matrimonial house. It is true that he betrayed the prosecution on material aspects, but there are glimpses in his evidence which would show that Lillikutty used to suffer in her matrimonial house.
19. P.W.6 is another neighbour of the accused. He says that Lillikutty had confided to him about the severe ill-treatment, both physical and mental, inflicted by the members in the matrimonial house. He also says that she had told him that the fourth accused had beaten her with a broom and the first accused used to ill-treat her.
20. The common attack on the evidence of these witnesses is that their evidence is hearsay and none of them had direct knowledge about the incidents spoken to by them.
21. Here one has to remember that the court is dealing with a matrimonial issue and the allegation is that the victim was being ill-treated by the members in the matrimonial house as well as her husband. It will be imprudent on the part of the court to insist for direct evidence in the form of independent witnesses for the acts committed inside the matrimonial house by either the husband or the members of his family. The evidence as a whole will have to be appreciated and also the circumstances under which the victim was led to commit suicide. If one is to discard the evidence in such cases as hearsay, probably there will be no conviction for the offence under Sections 498A and 306 of I.P.C It is virtually inconceivable that the victim would be ill-treated in the presence of others or in such a manner that others could see the ill-treatment.
22. Even assuming that the evidence of P.Ws 2, 3, 5 and 6 is to be treated as hearsay evidence, there is the contents of Exts.P3 to P6 and the contents of Ext.P7 note book in which the victim had made scribblings. Exts. P3 to P6 letters would reveal the considerable difficulties which the victim faced in the matrimonial house and the attitude of the members of the family.
23. Before this Court, there was no serious dispute regarding the handwriting in Exts.P3 to P6 so also in Ext.P7 Among the letters, Ext.P4 is dated 21.2.1994, Ext.P5 is dated 1.1.1994 and Ext.P6 is dated 19.2.1994 A reading of these letters would show that Lillikutty was not receiving much of an assistance, help or co-operation from her house also. It is also not disputed that Exts.P3 to P6 were addressed to P.W.3 and was written by the victim. As already stated, they are tell tales of the attitude, conduct and treatment meted out by the members of the matrimonial family which have been extensively referred to by the lower court. It is unnecessary to repeat the wordings in those letters.
24. Ext.P8 is a letter which the first accused wrote to his brother. It is contended on behalf of the appellant that that is not admissible in evidence since it has not been proved either through the person who has written the same or by the person who received the same. The further contention is that the handwriting in Ext.P8 is not proved.
25. There may be some force in the above contention. But the evidence of P.Ws.3 and 5 would clearly show that the attitude of the first accused was one of total indifference and the prosecution allegation that the first accused had decided to put an end to the marital relationship with the victim and this to a considerable extent is fortified by the contents in Exts.P3 to P6. The contents of Ext.P7 note book, which is in the form of an autobiography, tells the sad tale of a lady who had to put up with continuous harassment and ill-treatment, both mental and physical, at the hands of her husband and members of his family. The writings in Ext.P7 show that she was never taken along with her husband to any place even though she pleaded for the same. He always used to taunt her and instances were not rare when she used to burst out crying. The contents of Ext.P7 also show that the first accused kicked on her abdomen while she was pregnant and she received no help from the members of her matrimonial family during her pregnancy. The prompting by accused Nos. 2 to 4 was enough for the first accused to ill-treat her. The contents of Ext.P7 also shows that when the victim pleaded to everyone in the house to take her to a doctor as she was feeling uncomfortable and she often felt pain, the reply going by the contents of Ext.P7 were kicks and fisting. Ext.P7 makes mention of the fact that she was made to consume tablets under the pretext that it was her vomiting which ultimately resulted in severe pain and miscarriage and it was then the victim realized that the tablets were for abortion. Ext.P7 reflects the desire on the part of the victim to live. But she also felt that her husband would do away with her. The contents of Ext.P7 shows that she was physically harassed almost every day. She also expressed that had she been married to a casual labourer, atleast she would have had peace. It is evident from Ext.P7 that the trouble started after the first accused had gone abroad for employment. The various instances of physical assault made mention of in Ext.P7 which according to the victim were done at the instigation of the other members in the matrimonial family.
26. As already noticed, it would appear that Lillikutty, the victim, received no help from the members of her family. This aspect is highlighted by the learned Senior Counsel for the appellant to contend for the position that even assuming that there was some difficulty with the victim in the matrimonial house, that was aggravated by the conduct of the members of her own family, who paid little attention to her and it could not be said that the the victim committed suicide solely due to the acts committed by the members of her matrimonial family.
27. The above contention is only to be rejected. Now the present concern is the matrimonial life of the victim in the matrimonial house and not the attitude of her brothers and sisters towards her. There may be some substance in the contention taken by the learned counsel for the appellant that some of the statements made by P.Ws.3 and 5 in court do not find a place in their statement under Section 161 Cr.P.C to the investigating officer. But these deficiencies and the infirmities attached to the evidence of P.Ws 2, 3, 5 and 6 loss their significance and importance in the light of the contents of Exts.P3 to P7.
28. It was pointed out by the learned counsel for the appellants that during the mediation talks, it was decided that the first accused and the victim may stay separately and that was accepted by all who were present. This aspect is highlighted by the learned Senior Counsel to say that had the life with the first accused been so miserable, the victim would not have agreed to such a course. That shows that the allegations made against the first accused are without basis.
29. Even assuming the above to be true, it does not efface the acts committed by the first accused and the members of his family. From the evidence, it is quite clear that she had no where to go and had to bear the ill-treatment and humiliation. In one of the letters she pleads that whenever anyone from her house happens to come to her matrimonial house, she may be given a sum of Rs. 50/- or 10/- which could maintain her for a few days. That shows the pitiable state of affairs in which the victim was placed and speaks volumes of the life of the victim in the matrimonial house.
30. There cannot be much dispute that the hand writing contained in Exts.P3 to P6 is that of the victim. In fact there is no serious challenge to the veracity of the document.
31. Ext.P7 is a note book in which certain scribblings were made by the victim and as already noticed, Exts.P3 to P6 are received by P.W.5, who is none other than the brother of the victim. Ext.P7 also reflects the miserable life which the victim had to lead in the matrimonial house and it discloses that all that she received from her husband was harsh and severe treatment and she never received love from him. It also mentions that on the slightest pretext she used to be manhandled and the beatings were severe in nature. It also shows that she had no choice but to continue and she finds conciliation by shedding tears. It also mentions about the second pregnancy of the victim and the incidents that transpired thereafter.
32. Considering the nature, tenure and torn of the statements in Exts.P3 to P6, the conclusion is irresistible that the victim was subjected to consistent ill-treatment.
33. A contention was raised by the learned counsel for the appellant that Exts.P4, P5 and P6 were soon after the death of the first child. Probably, according to the learned Senior Counsel, the victim was seriously disturbed. It also indicates that the members of her family never wrote to her directly.
34. This fervent plea by the victim goes a long way in showing the nature of the treatment and the conduct of the accused towards the victim in the matrimonial house.
35. Learned Senior Counsel appearing for the appellant contended that the members of the family of the victim also contributed to the agony of the victim. Reference was made to the fact that the younger sister of the victim, namely, P.W.3, referred to the father-in-law of the victim by his name which was highly objectionable since the father-in-law was a very elderly person and it is unusual as per the custom to call such a person by his name. It is also pointed out by the learned Senior Counsel that the attitude of the victim towards her mother-in-law too might not have been very commendable. She refers to the mother-in-law as “”. It is very easy to pick out things in order to mitigate the severity of the acts committed by the members in the matrimonial house. The above two aspects are too fragile to condone the severity of the ill-treatment meted out to the victim. The letters and the notes in Ext.P7 note book leave one in no doubt that she was virtually a prisoner in the matrimonial house.
36. The evidence also discloses that the first accused had long ago decided to sever the matrimonial relationship with the victim. The pain, agony and the trauma undergone by the victim in the matrimonial house is easily discernible from the above documents.
37. The contention that the victim was willing to stay separately with the first accused and that shows that she could not have any complaint against the first accused is without basis. It must be noticed that the victim was placed between the devil and the deep sea. Probably the victim was under the bonafide hope that if they live separately, at least she could avoid the ill-treatment by the other members of the family and the ill-treatment at their behest would be less. The poor victim was unaware of the fact that the first accused had already decided to part ways with her and he had no intention to live with her either along with the members of his family or independently.
38. One cannot omit to note that there is no suggestion to P.Ws.3 and 5 that the behaviour of the deceased in the matrimonial house was of an irritating nature and that caused difficulties and annoyance to the members in that family. It does not have much of an effort to come to the conclusion that the first accused neglected the victim and gave ample support to the acts committed by accused Nos. 2 to 4 and vice versa. Whatever may be the reasons, it is very evident that accused Nos. 1 to 4 wanted to get rid of the victim and that idea surfaced after the first accused had gone abroad and began to earn. It would appear from the evidence that accused Nos. 1 to 4 have other ideas and they found the victim as a stumbling block and they want to get rid of her.
39. It is here that one has to really appreciate the conduct and the courage put up by the victim. She finding help from nowhere had put up with the miserable treatment which she received from the members of the matrimonial house and she survived as much as she could. Not a day in her life was pleasant or uneventful. Food was scarce and taunting, torture and humiliation in plenty.
40. If one is to take each incident in isolation, it may not look very serious or so severe so as to amount to cruelty. One has to take the cumulative effect of the ill-treatment of the members of the family and its impact on the victim. She suffered both physical and mental torture. Apart from the beating and taunting, she received nothing else from the members of the matrimonial family and she was deprived of even food.
41. One has now to consider what are the offences committed by the accused persons. One should say that accused Nos. 2 to 4 are fortunate to have been found guilty of the offence under Section 498 A of I.P.C only.
42. Learned Senior Counsel appearing for the appellant contended that by no stretch of imagination the offence under Section 306 of I.P.C can be attracted as far as the first accused is concerned. Even assuming that all what the prosecution says as against the first accused is true, those acts by themselves are insufficient to come to the conclusion that the first accused had abetted the suicide of the victim.
43. Now one may turn to the decisions relied on by the learned Senior Counsel for the appellant. In the decision reported in Shri Ram v. State Of U.P. (AIR 1975 SC 175) it was held as follows:
“6. The question which then arises for consideration, a question to which the Sessions Court and the High Court have not paid enough attention is whether the only inference which arises from the fact that Violet gave the particular shout is that by so doing, she intended to facilitate the murder of Kunwar Singh, Section 107 of the Penal Code which defines abatement provides to the extent material that a person abets the doing of a thing whom “Intentionally aids, by any act or illegal omission, the doing of that thing”. Explanation 2 to the section says that.
“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 thereof, is said to aid the doing of that act”. Thus, in order to constitute abatement, the abettor must be shown to have “intentionally, aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107.A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee. But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding and therefore active complicity is the gist of the offence of abatement under the third paragraph of Section 107.”
44. In the decision reported in Kishori Lal v. State of M.P (AIR 2007 SC 2457), it was held as follows:
“6. 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 any thing. 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 is normally linked with the proved offence.
7. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. [See Mahinder Singh v. State of M.P (1995 AIR SCW 4570)].Merely on the allegation of harassment conviction in terms of Section 306 IPC is not sustainable. There is ample evidence on record that the deceased was disturbed because she had not given birth to any child. PWs. 8, 10, and 11 have categorically stated that the deceased was disappointed due to the said fact and her failure to beget a child and she was upset due to this.
8. If the background facts are analysed it is crystal clear that the prosecution has failed to establish its case. That being so, the appeal deserves to be allowed, which we direct.”
45. In the decision reported in Gangula Mohan Reddy v. State of Andhra Pradesh ((2010) 1 SCC 750) it was held as follows:
“17. 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 committed suicide.”
46. In the decision reported in 2013 (3) K.H.C 810 it was held as follows:
“26. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extent to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. Prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra marital relationship, which if proved, could be illegal an immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.”
47. In the decision reported in Amalendu Pal v. State of West Bengal ((2010) 1 SCC 707), it was held as follows:
“12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence 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 the 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.
13. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC.
14. The expression ‘abetment’ has been defined under Section 107, IPC which we have already extracted above. A person is said to abet the commission of suicide when a person instigates any person to do that thing as stated in clause firstly or to do anything as stated in clauses secondly or thirdly of Section 107, IPC. Section 109 IPC provides that if the act abetted is committed pursuant to and in consequence of abetment then the offender is to be punished with the punishment provided for the original offence. Learned counsel for the respondent-State, however, clearly stated before us that it would be a case where clause ‘thirdly’ of Section 107, IPC only would be attracted. According to him, a case of abetment of suicide is made out as provided for under Section 107 IPC.
15. In view of the aforesaid situation and position, we have examined the provision of clause thirdly which provides that a person would be held to have abetted the doing of a thing when he intentionally does or omits to do anything in order to aid the commission of that thing. The Act further gives an idea as to who would be intentionally aiding by any act of doing of that thing when in Explanation 2 it is provided as follows:
“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.”
48. Relying on the principles laid down in the above decisions, it was contended that most crucial aspect that has to be determined is the intention of the first accused. The question is whether the first accused intended that as a result of the acts committed by him, the victim should commit suicide. Mere harassment, ill-treatment or taunting etc may not by themselves be sufficient to warrant a conclusion that the first accused is guilty of abetment of suicide. If one applies the principle laid down in the above decisions, according to the learned Senior Counsel, it is evident that in the case on hand the first accused could not have been found guilty of the offence under Section 306 of I.P.C
49. Well in the matter of appreciation of evidence, it is well settled that there are no precedents. Each case depends on the facts of that case and the evidence available in the case. There is no universal principle regarding the appreciation of evidence nor is there any straight jacket formula for the same. Going by the principle laid down in the above decisions, it does not follow that in order to attract Section 306 of I.P.C there has to be positive acts from the side of the abettor. Even passive acts would amount to a positive conduct instigating the victim to commit suicide. In the case on hand, the conduct on the part of the first accused making himself clear that he does not wish to continue the relationship with the victim clearly indicates that the victim was both undesirable and unwanted in the matrimonial house which led to frustration on her part apart from feeling helpless and isolated.
50. In a marital life, both parties have duties and obligations. Passiveness though always may not amount to a positive act, may sometimes amount to an indication of the state of affairs propelling the other person to do a particular act. Total neglect of the spouse, passive attitude when the other members of the family ill-treats and taunts and humiliate the victim, and the declaration of intention on the part of the husband that he no longer wishes to continue the marital relationship and the total indifference and callous attitude towards the wife cannot be easily ignored.
51. From the evidence on record, it would appear that the victim in this case used to slog for the matrimonial family and in return she got brickbats, i.e, ill-treatment and humiliation. It was not a case of ill-treatment for a day or two, but it was a continuous process soon after the marriage till the date she committed suicide. The evidence is also to the effect that her first child died due to want of proper care and her second pregnancy was cleverly aborted.
52. The first accused, who is none other than the husband of the victim, ought to have come to her rescue and should not have left her to the mercy of the other inmates of the house. A husband has a marital duty to ensure the welfare of his spouse to the extent possible. If he keeps mum when the members of his family take out their ire on her and keeps torturing and ill-treating her making her life in the matrimonial home miserable, it could not be said that the husband can be treated as innocent for the reason that there was no positive act from his side. Refusal on the part of the husband to recognize the marital obligation would be injustice. The passive attitude of a husband to his wife whose life is made miserable by the conduct of the members of his family and by his own conduct has to be viewed seriously. In the case on hand, the first accused who is the husband of the victim did not lag behind in contributing the misery of his wife. He obviously had a marital duty to provide sufficient security and care to his wife.
53. In the case on hand, not only he did not come to the aid of his wife and protect her, on the other hand he also joined the band in making the life miserable for the victim and he also expressly declare that he did not wish to continue the marital relationship.
54. The neglect, dislike and the desire to get rid of his wife on the part of the first accused were all contributing factors which left the victim helpless and without much hope in life. Even though the evidence would suggest that the victim was willing to put up with the ill-treatment and the inconveniences and was willing to take up residence with the first accused and stay independently, the first accused had other ides and intentions. Thus, under those circumstances, when the victim came to know that the first accused was no longer interested in her and was planning to sever the relationship with her, she must have become desperate.
55. It is here one has to notice that the act of self immolation was on the day fixed for mediation talk between the two families. It is seen from the evidence that on that day, according to the defence, she had consumed kerosene. Probably when the victim came to know that her family members were also being asked to attend the mediation talks, it must have struck that in the light of the fact that the first accused was keen to get rid of her and his disinclination to continue the relationship, she might have believed that she would be packed off to her house where also she was not a desirable member.
56. One cannot omit to note that the attitude of the members of her family was equally deplorable. But that cannot justify the acts committed by the first accused. If under those circumstances, if the victim was left with no choice but to commit suicide, it could not be said that the first accused had no role to play.
57. Woman needs protection at home also. One cannot in a civilized society accede to the contention that continuous ill-treatment and harassment creating frustration, concern and anxiety in the mind of woman leaving her with no choice but to end her life does not amount to instigation.
58. Law has to develop, keep growing and to meet the needs of a developing and changing society. The concept of an Indian wife destined to fate at her matrimonial home no longer holds good. While usual family quarrels and discord notes and unpleasant incidents may not by themselves be sufficient ground to mulct liability either on the husband or the members of his family and resorting to objectionable conduct like continuous ill-treatment, physical assault making the life of the victim miserable in the matrimonial house cannot be viewed lightly.
59. It is true that in order to attract Section 306 of I.P.C, the question is one of intention. But there is no magic wand with a court to determine the intention of the person at a particular point of time. The intention of the person has to be gathered from his conduct. When one views the conduct of the first accused as disclosed from the evidence, especially after he had gone abroad on employment, his intention became very clear. The letters referred to and the scribblings in the note book Ext.P7 indicate that the first accused used to disclose the deplorable state of affairs the victim had faced in the matrimonial house. The Ill-treatment, taunting etc which she faced in the matrimonial house have already been referred to.
60. Further, apart from the active role played by the first accused in ill-treating his wife, the passive attitude displayed by him while others played with the life of the victim and his unequivocal declaration that he does not wish to continue the marital relationship, if gives the impression to the victim that she was no longer wanted by the first accused and left with no choice and if she took the extreme step, it will be imprudent on the part of the court to conclude that merely because there is no positive act on the part of the first accused, he could not be said to have instigated the victim to commit suicide.
61. The dictionary meaning of instigate means goad or urging forward. The act on the part of the abettor facilitates the commission of the act by the victim. One is presumed to have no consequence of his natural act. In the light of the factors already made mention of, it is difficult to accept the contention of the learned counsel for the appellant that there was no instigation on the part of the first accused resulting in the commission of suicide by the victim. The contention that he had no intention that the victim should commit suicide is also not acceptable.
62. The conduct of the first accused has to be viewed in the light of the fact that the victim received little support from her family. Under such circumstances, she needed more protection from her husband. But instead, her life in the matrimonial house was far from pleasant and infact miserable. There is some evidence to show that she was not even provided with adequate food and cloths. This is a case where both by the acts and omissions on the part of the first accused indicated his clear intention that he intended that the victim should commit suicide and the victim was left with no choice under the circumstances but to commit suicide.
63. When we look at the various decisions relied on by the learned counsel for the appellant, it is true that mere ill-treatment by themselves are not sufficient to attract Section 306 of I.P.C But as already stated, each case turn on its facts. It could not be said that there has to be positive evidence of manifest intention on the part of the accused person concerned to bring him under Section 306 of I.P.C The intention may be inferred from his conduct.
64. Viewed from this angle, the court below was perfectly justified in coming to the conclusion that the first accused is guilty of the offence under Section 306 I.P.C also. From the above discussion, it follows that the finding that the other accused are guilty of the offence punishable under Section 498A of I.P.C is fully justified.
65. Coming to the sentence, considering the conduct of the accused persons, the ill-treatment undergone by the victim etc., the sentence awarded is found to be reasonable and no interference is called for with the sentence also.
The result is that this appeal is without merits and it is liable to be dismissed. I do so.
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