Kuldip Kumar and Others vs U.T. Chandigarh

R.L. Anand, J.—This is a criminal appeal and has been directed against the judgment dated 14th July, 1995 and the order dated 15th July, 1995, passed by the Court of Additional Sessions Judge, Chandigarh, who convicted the appellants u/s 306 of the Indian Penal Code and sentenced Kuldip Kumar appellant to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/-. In default of payment of fine he was directed to undergo further rigorous imprisonment for a period of six months. Appellant Shanti Devi was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 3,000/-. In default of payment of fine she was ordered to undergo further rigorous imprisonment for a period of four months.

The brief facts of the case can be described as follows :

Smt. Parwati Devi was married to Kuldip Kumar. She had no issue. She was maltreated by her mother-in-law Smt. Shanti appellant. Due to the consistent maltreatment and continued harassment, on 28th November, 1990 at about 4 p.m. when she was living with the appellants, Smt. Parwati put herself on fire by sprinkling kerosene oil on her body. She suffered severe burns. She was taken to General Hospital, Chandigarh, from where she was shifted to P.G.I., Chandigarh, where she died on account of burn injuries. Before her death she made a statement before a Magistrate mentioning about her maltreatment by the accused. She also stated therein the cause of her committing suicide. She stated that she did not want to live as her husband and mother-in-law doubted her character. A case was registered against the accused. Investigations were conducted. The spot was inspected and the post-mortem examination of the body of the accused was got done. After completion of the investigation, challan u/s 306 of the Indian Penal Code was filed against the accused in the Court of the Illaqa Magistrate, who supplied copies of the documents to the accused and vide order dated 28th September, 1991 committed that accused to the Court of Session. Vide order dated 4th November, 1991 the learned Additional Sessions Judge, Chandigarh, framed charges against the accused u/s 306 of the Indian Penal Code. The charges were read over and explained to them, to which they pleaded not guilty and claimed trial.

As many as 17 witnesses were examined by the prosecution at the trial stage. PW1 Dr. Ajay Verma conducted the post-mortem examination on the dead body of Smt. Parwati - a female lady of 27 years. According to this doctor there were deep and superficial burns all over the body (100%). Singering of hair was present. The tongue of the deceased was protruding out. In the opinion of this doctor, the death was due to shock on account of extensive burns, which were sufficient to cause death in the ordinary course of nature. The time which lapsed between injury and death was within 24 hours and between the death and post-mortem was within 24 hours. Ex. PA is the correct carbon copy of the post-mortem report. It has been stated by this doctor in the cross-examination that the condition of a patient with 100% burns is most precarious and most agonising. PW 2 Dr. D.V. Krishna Rao deposed that Parwati came to P.G.I. Hospital on 28th November, 1990 at about 6.45 p.m. with 95% bums. Intimation about her admission was sent to the Police Post P.G.I, and this very doctor on the same day sent a requisition informing the Police to arrange the services of a Magistrate so that the dying declaration of the deceased could be recorded. The Executive Magistrate came with the police and this doctor gave his opinion (Ex. PC) on the request of the police to know whether Smt. Parwati was fit to make a statement or not. The doctor certified that she was fit to make a statement. Resultantly, Shri Jarnail Singh, Executive Magistrate recorded her statement (Ex. PD). It was read over and explained to her and she thumb-marked the same in token of its-correctness. This doctor also issued the certificate (Ex. PD/1) to the effect that so long Smt. Parwati gave her statement before the Executive Magistrate, she was conscious and fit to make the statement. PW 3 Dr. P.V. Sudhakar gave the case summary of patient Smt. Parwati to the police. PW 4 Dr. Vishwas T. Mohabeer gave intimation to the police about the death of Smt. Parwati, which took place on 29th November, 1990. The prosecution also examined PW 4 Shri P.K. Sharma, Executive Magistrate, Chandigarh, who took the specimen signatures and handwriting of Kuldip Kumar accused, PW 6 Shri Jaswant Singh, Draftsman, who prepared scale site plan (Ex. PH), PW 6 Shri Om Parkash, Moharrir Head Constable, gave his statement by way of affidavit (Ex. PH/1). PW 8 Constable Chaman Lal gave his statement by way of affidavit (Ex. PH/2). Similarly Constable Jagbir Singh, who appeared as PW 9, gave his statement by way of affidavit (Ex. PH/3). The prosecution also examined S.I. Harish Sharma (PW 10), Constable Karam Pal (PW 11), and M.H.C. Suresh Kumar (PW 12). Shri Pawan Kumar is the brother of the deceased and he appeared as PW 13. Sh. Kimti Lal, who appeared as PW 14, is yet another relation of Smt. Parwati. Shri Amarjit Singh, Assistant, Medical Record Library, P.G.L, Chandigarh, appeared as PW 15. Shri Jarnail Singh, Executive Magistrate, who recorded the dying declaration of deceased Smt. Parwati, appeared as PW16. Shri Dharam Pal, who appeared as PW17, is yet another brother of Smt. Parwati. Head Constable Inderpal Singh, Police Photographer, appeared as PW 18, Shri Ram Sajiwan Misra appeared as PW 19 and Inspector Siri Ram, who investigated this case, appeared as PW 20.

On the closure of the prosecution evidence, the accused were examined u/s 313, Criminal Procedure Code, and all the incriminating circum stances appearing in the prosecution evidence were put to them. The accused denied those circumstances and stated that they had been falsely implicated in the case. In defence the accused examined DW1 Shri K.N. Parshad, Document Expert, in order to show that some additions had been made to the dying declaration afterwards by the Executive Magistrate under the pressure of the Police.

Learned Trial Court recorded the conviction of the appellant u/s 306 of the Indian Penal Code, and sentenced them in the manner stated above and aggrieved by their conviction and sentence, present appeal has been filed by the appellants, which I have disposed of with the assistance rendered by S. Baldev Singh, Senior Advocate, appearing on behalf of the appellants, and Mr. R.S. Rai, Standing Counsel, appearing on behalf of U.T. Administration and with their assistance I have gone through the record of the case.

Learned Counsel for the appellants submitted that the Trial Court was not justified in recording the conviction and sentence of the appellants u/s 306 of the Indian Penal Code. Learned Counsel for the appellants submitted that the ingredients of Section 306, Indian Penal Code, are not attracted in the present case and a reasonable inference cannot be drawn that the alleged acts of cruelty constituted ''abetment'', which is the essential ingredient in order to constitute an offence u/s 306, Indian Penal Code. Learned Counsel submitted that even if the dying declaration of the deceased coupled with the oral statements of the PWs. is taken to be correct, even then the offence beyond Section 498-A of the Indian Penal Code is not constituted.

On the contrary the learned Counsel appearing on behalf of the U.T. Administration submitted that keeping in view the consistent conduct of the appellants that they had been physically and mentally harassing the deceased and keeping in view the fact that the deceased was married eight years back but unfortunately she could not conceive or deliver a child, inference can easily be drawn that the appellants abetted the commission of the suicide by the deceased and this essentially was an act which constituted "abetment" within the meaning of Section 107, Indian Penal Code; therefore, the Trial Court has rightly acted upon the dying declaration of the deceased and the oral evidence of the witnesses and recorded the conviction of the appellants u/s 306 of the Indian Penal Code.

Section 306 of the Indian Penal Code lays down as follows :

"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."

Thus reading of Section 306 makes it clear that there should be abetment at the first instance and the consequence of such abetment is that the person commits suicide. Section 107 of the Indian Penal Code defines abetment of a thing. According to this section, a person abets the doing of a thing, who instigates any person to do that thing; or 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 intentionally aids, by any act or illegal omission, the doing of that thing. Thus the reading of Section 107 of the Indian Penal Code makes it abundantly clear that a person can only be held to be guilty of abetment if either he directly instigates a person or engages in such circumstances that the effect of such circumstances is that the other person is compelled to do a particular act. In other words, there can be a single act of abetment or there can be series of acts on the part of a wrong-doer compelling the other person to resort to the extreme step of committing suicide. The documentary as well as the oral evidence in the present case can be perused in the light of the above.

After going through the dying declaration of the deceased and the statements of the oral witnesses, this Court is of the considered opinion that the element of abetment in this case is missing. First of all I would like to requote the statement of Smt. Parwati, when she gave her dying declaration before the Executive Magistrate. So far as the competence of Smt. Parwati to make the dying declaration is concerned, it stands proved not only from the statement of the Executive Magistrate but also from the statement of Dr. D.V. Krishna Rao, who certified vide Ex. PD/1 that the deceased was conscious from 8.05 p.m. to 8.20 p.m. on 28.11.1990 when the statement was recorded. So far as the position of dying declaration is concerned, the law is well-settled that it is substantive piece of evidence and can be acted upon without corroboration provided the Court finds such dying declaration as spontaneous and voluntary and that the deceased was not induced from extraneous circumstances. The statement of Smt. Parwati reads as follows :

"I was married about 8 years back and have no issue. I was maltreated by my mother-in-law Smt. Shanti Devi and my husband Sh. Kuldip Kumar. Due to maltreatment, today at about 4 p.m. I put kerosene on my body and put myself on fire with matches. My Daurani Smt. Pushpa was at house. The neighbours extinguished the fire and my brother Sh. Dharampal and my husband brought me to P.G.I, for treatment. I put myself on fire in room of my house as I do not want to live in this world because my husband and mother-in-law doubted my character."

L.T.I. of Smt. Parwati

Before I proceed further, I may be able to show that the following words appear to have been introduced in the dying declaration :

"because my husband and mother-in-law doubted my character."

I am saying so because the space between the last two lines is comparatively less to the space between the lines of the earlier part of the dying declaration.

Be that as it may and taking that these disputed lines had also been stated voluntarily by Smt. Parwati before the Executive Magistrate, still this Court has to find out whether from her statements the ingredients of Section 306, Indian Penal Code are constituted or not. What impression I have been able to formulate from the statement of Smt. Parwati is that the deceased was subjected to cruelty, perhaps for the reason that she was not conceiving a child inspite of the fact that the marriage had taken place eight years back. It is the wish of every Hindu woman of the Indian society that her family should prosper. It should further go on from generation to generation. Keeping that aspect in view Smt. Shanti Devi and Shri Kuldip Kumar appellants might have taunted the deceased that she was not in a position to give birth to a child and the evidence has also come that the husband of the deceased used to beat his wife off and on and this part of the story of the prosecution is fully corroborated from the testimony of PW13 Shri Pawan Kumar, PW14 Shri Kimti Lal, and PW 17 Shri Dharam Pal. Still this Court is of the considered opinion that all this oral and documentary evidence falls short of the term ''abetment''. Rather the offence fully attracts the ingredients of Section 498-A of the Indian Penal Code. Section 498-A of the Indian Penal Code lays down that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For our purpose first explanation added to Section 498-A is very relevant. According to this explanation, "cruelty means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman". The conduct of the present appellants was such that drove the deceased to adopt the extreme step of cruelty. There is no satisfactory evidence on the record that at any point of time the appellants goaded or urged or instigated the deceased to commit suicide or facilitated in that direction.

Resultantly, I am of the considered opinion that the Trial Court was not justified in recording the conviction u/s 306 of the Indian Penal Code. But definitely the offence u/s 498-A of the Indian Penal Code stands proved by the prosecution by leading cogent, reliable and satisfactory evidence.

Now the point which survives for determination is whether this Court would be justified in converting the offence from Section 306 to Section 498-A of the Indian Penal Code. The answer of this Court is in the affirmative.

Resultantly, I set aside the conviction of the appellants u/s 306 of the Indian Penal Code and record the conviction u/s 498-A of the Indian Penal Code, and both the appellants are sentenced to undergo rigorous imprisonment for three years and they shall also pay a fine of Rs. 5,000/- each. In default of payment of fine, each one of them shall further undergo rigorous imprisonment for a period of six months.

With the above modification in the conviction and sentence, the appeal fails and is dismissed.