Krishan Chand vs State of Himachal Pradesh

Kamlesh Sharma, J.—This appeal at the instance of Appellant-convict Krishan Chand is against the judgment dated 23.6.1990 passed by Sessions Judge Solan whereby he has been convicted of offence under Sections 306 and 201 I.P.C. and sentenced to rigorous imprisonment for five years and to p.ay a fine of Rs. 2,000/- u/s 306 I.P.C. and in default of payment of fine he shall further undergo rigorous imprisonment for two years. For offence u/s 201 I.P.C. rigorous imprisonment for one year and a fine of Rs. 500/- has been awarded and in default of payment of fine the Appellant-convict has to undergo rigorous imprisonment for three months.

The prosecution case in brief is that deceased Dayawanti was married to the Appellant-convict about 7-8 years before the occurrence and she was residing in her matrimonial home in village Kokla, Tehsil Arki, District Solan. On 30.8.1986 she was found dead in her bed and the Appellant-convict cremated her without reporting the matter to the police and without getting post-mortem conducted on her dead body. Shiv Ram, the father of deceased Dayawanti, reported the matter to the police on 2.9.1986 on the basis of letter dated 29.8.1986 Ex.PW-2/A written by deceased Dayawanti to her brother Om Parkash PW-2, wherein she had stated that the Appellant-convict had been suspecting her fidelity and subjecting her to cruelty and harassment since her marriage with him, which drove her to put an end to her life. During the investigation, a qui 11(Khind) Ex. P-1 was recovered from the bed of deceased Dayawanti, which was sent to Chemical Examiner, Patiala as per whose report Ex.PW-8/A it had the stains of vomitting which contained Organophosphorus Compound (an insecticide) which showed that deceased Daywanti committed suicide by taking poison. Letters Ex.PW-2/B to Ex. PW-2/E were taken into possession vide recovery memo Ex. PW-2/H and letters Ex. PW-2/F and PW-2/G were taken into possession vide recovery memo Ex. PW-2/J. These letters were sent to Examiner of Questioned Documents,Shimla, who gave his opinion Ex.PW-9/A that disputed handwritings Exts. PW-2/A, PW-2/F, PW-2/G and PW-1/F were written by the same person who had written the admitted handwritings Exts. PW-2/B to PW-2/E and Exts. P2 and P3.

To prove its case the prosecution has produced Shiv Ram PW-1 and Om Parkash PW-2, father and brother of deceased Dayawanti and both of them have stated that deceased Dayawanti during her life time had never told them that she was subjected to cruelty and harassment by the Appellant-convict. According to them, from her letter Ex. PW-2/A they had come to know that the Appellant-convict was suspecting her fidelity and for that reason he was subjecting her to torture since the very beginning of their married life. Om Parkash PW-2 has further stated that he had attended funeral of deceased Dayawanti and at that time no one from the village Kokla made a mention that she had been maltreated by the Appellant-convict. Jagdish Chand PW-6, who was the Branch Post Master, has proved that letter Ex. PW-2/A contained a post office stamp dated 29.8.1986. He has also proved envelope Ex.PW-1/F which was posted from Danoghat on 29.8.1986. Khind Ex.P-1 was taken into possession vide recovery memo Ex. PW-3/A by Rajinder Pal PW-8, who had partly investigated the case. Sant Ram, ASI PW-10 has stated that letter Ex.PW-2/A was presented to him by Shiv Ram PW-1 on the basis of which he has recorded FIR Ex.PA. Letters Ex.PW-2/F and Ex.PW-2/G were presented to him by Om Parkash PW-2, which were taken into possession vide recovery memo Ex. PW-2/J. Shri M.L. Sharma PW-9, Assistant Examiner of Questioned Documents has proved his report Ex.PW-9/A. The statement of the Appellant-convict was recorded u/s 313 Code of Criminal Procedure , wherein he has denied the allegations of the prosecution. According to him, he had cordial and affectionate relations with deceased Dayawanti and he had never given her chance to complain against him. However, he has not led any evidence in defence.

This Court has heard learned Counsel for the parties and gone through the record. Shri T.R. Chandel, learned Counsel appearing for the Appellant-convict, has submitted that the only evidence against the Appellant-convict is the letters Ex.PW-2/A and Ex.PW-2/G on the basis of which the Sessions Judge has fastened criminal liability u/s 306 I.P.C. on the Appellant-convict. He has taken this Court through these letters to urge that their contents do not constitute abetment of suicide. Shri Chandel has referred to Section 107 I.P.C. which defines abetment of a thing and also case law to show that the Appellant-convict had not instigated deceased Dayawanti in any manner to drive her to commit suicide. Referring to Section 498A I.P.C, Shri Chandel has further argued that there is not an iota of evidence on record that the Appellant-convict was guilty of any wilful conduct, which is of such a nature as was likely to drive.deceased Dayawanti to commit suicide, amounting to cruelty on the basis of which it could be presumed that he had abetted in the commission of suicide by deceased Dayawanti, as provided u/s 113 of the Indian Evidence Act, assuming she had committed suicide within a period of seven years from the date of her marriage, though her father and brother PW-1 and PW-2 have stated that she was got married eight years before she committed suicide. On toother hand, Shri M .L_. Chauhar , 1 earned issue. Advocate General, has supported the judgment of Sessions Judge and has urged that letters Ex.PW-2/A and Ex.PW-2/G, authorship of which is not in dispute, prove beyond reasonable doubt that deceased Dayawanti had been maltreated and tortured mentally as well as physically since her marriage with the Appellant-convict to such an extent that she was driven to commit suicide.

This Court has given its best consideration to the respective contentions of the parties. In order to answer the point in controversy.whether on the basis of letters Ex.PW-2/A and Ex.PW-2/G a conclusion can be drawn to hold the Appellant-convict guilty of abetment to suicide committed by deceased Dayawanti or not, it is necessary to refer to Section 107 I.P.C. which defines the abetment. Section 107 I.P.C. is:

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.

Clauses firstly and thirdly of Section 107 I.P.C. may be attracted in the facts and circumstances of the present case. Clause firstly provides that a person who instigates another person to do a thing, abets him to do that thing. In other words, instigation tantamount? to abetment which is explained in Explanation 1 of Section 107 I.P.C. It is:

Explanation 1.- A person who,by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Expressininstigate'' in The Concise Oxford Dictionary is defined as ''incite'', ''urge on'', ''provoke'' and ''bying about by incitement c persuasion'', and in Webester''s Third new International Dictionary as ''urge'', ''super'' ''provide tempt'' , ''incite'', ''impel'', ''encourage'' etc. etc,

In clause thirdly, the words ''intentionally aids'' have been used which are also explained in Explanation 2. of Section 107 I.P.C. It is:

Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." These words are wide enough to conclude that treating a married woman with cruelty would certainly fall within its ambit. By inserting Section 113A of the Indian Evidence Act, the Legislature in its wisdom has further clarified the import of definition of abetment of suicide by a married woman in view of social challenges of the present time. Therefore, it can be said that Section 113A of the Indian Evidence Act supplements the provisions of general law contained in Section 107 I.P.C. But looking to Section 498A I.P.C. which defines cruelty for the purpose of this Section, and the same definition has been used for the purpose of Section 113A of the Indian Evidence Act, the words ''instigation'', ''intentionally aids'' and ''wilful conduct'' definitely suggest that only such an act, conduct and behaviour would amount to abetment of suicide which is done intentionally, deliberately and which has mensrea, which is an essential ingredient of such an offence. In view of this, the standard of proof required to constitute cruelty as an offence is also higher in degree than that of proving cruelty in the matrimonial causes. In the case of matrimonial causes the intention of mensrea on the part of one spouse to injure the other is not a necessary element of cruelty and the decision is based on prepondrance of probabilities, whereas, in the criMNA1 jurisprudence the intention or mensrea is necessary and the proof is required is beyond reasonable doubt. Above all in the matrimonial causes a reasonable apprehension of a danger of life, limb or health is enough, whereas, cruelty as defined u/s 498A I.P.C. contemplates such a conduct besides being wilful to result in the likelihood of driving the woman to commit suicide or to cause grave injury to life, limb or health.

In P. Rathinam/Nagbhusan Patnaik Vs. Union of India and another, learned Judges of the Supreme Court have, inter alia, held that suicide is ''not irreligious and not immoral, whereas, abetment of offence of suicide is as grave as abetment of offence of murder. The Legislature in its wisdom has made the offence of abetment of suicide punishable u/s 306 I.P.C. with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Now the question arises whether from the contents of letters Ex.PW-2/A and Ex.PW-2/G the ingredients of offence of abetment to suicide are made out to hold the Appellant-convict guilty. In these letters deceased Dayawanti has expressed that there was no love lost between her and the Appellant-convict. During eight years of her married life she had been trying to adjust and for the sake of the honour and prestige of the families of her parents as well as her in-laws she did not disclose her woes to anyone. According to her, she loved the Appellant-convict and was cincere to him but he had been doubting her fidelity and used to call her vagabond, Charactorless and prostitute at the instance of persons from brotherhood. Though as per her statement in these letters deceased Dayawanti had been leading a life full of tensions and tortures since her marriage, yet she had not disclosed those tensions and tortures. These allegations are general allegations which did not find support from any other evidence on record, therefore, these cannot be made basis for holding the Appellant-convict guilty of offence of abetment to suicide committed by deceased Dayawanti by taking poison, admittedly, when the Appellant-convict was away to his place of posting.

Except that the Appellant-convict was doubting the fidelity of deceased Dayawanti and had been calling her names, as stated hereinabove, no other act or conduct has been brought on record which may tantamount to ''instigation'' or ''intentionally aiding'' the commission of suicide by deceased Dayawanti. Even if it is believed that the Appellant-convict had been doubting the fidelity of deceased Dayawanti and calling her names throughout the period of seven to eight years, it cannot be held as instigation, provocation or incitement to commit suicide for holding the Appellant-convict guilty u/s 306 I.P.C. Therefore, this Court finds itself unable to agree with the findings of the trial court that it was the cruel and harsh behaviour of the Appellant-convict which drove deceased Dayawanti to commit suicide. It seems that she was too sensitive to forget and forgive the Appellant-convict for his harsh and uncalled for utterance made during the course of normal matrimonial skirmishes. Instead of taking the help and the guidance of her parents, relations and friends on whom she had confidence for removing misunderstanding, if any, between her and the Appellant-convict, deceased . Dayawanti preferred to end her life, which shows that she was introvert and not mentally strong, for which the Appellant-convict cannot be held criminally liable u/s 306 I.P.C. Since the Appellant-convict deserves acquittal of the charge u/s 306 I.P.C, he cannot be held guilty u/s 201 I.P.C.

The result of above discussion is that there is merit in this appeal and it is accepted. The conviction and sentence of the Appellant-convict awarded by judgment dated 23.6.1990 passed by Sessions Judge,Solan are set aside. The bail bonds furnished by the appelTant are discharged.