Prakashwati (Smt.) and Another vs Mangal Singh and Another

Rakesh Saksena, J.

Since the aforesaid criminal revision and the criminal appeal arise out of the common impugned judgment, this judgment shall govern disposal of both the cases.

Appellant/accused Mangal Singh has filed this appeal against the judgment dated 2.5.1994, passed by II Additional Sessions Judge, Sehore, in Sessions Trial No. 41/1989, convicting him u/s 305 of the Indian Penal Code and sentencing him to rigorous imprisonment for 10 years with fine of Rs. 2000/-. In default of payment of fine, further rigorous imprisonment for one year. Complainants viz. Smt. Prakashwati and Premnarain have filed the aforesaid revision against the impugned judgment of conviction praying for enhancement of sentence of accused.

In short, the facts of the case are that accused Mangal Singh and Jyotibala, the deceased, were in love and were exchanging letters. Jyotibala was a young girl of about 16-17 years of age and was a student of Class XI of Government Higher Secondary School, Rehti. Mangal Singh was her neighbour. On 19.8.1987, she came back from school earlier than scheduled time. At about 2.00 O''clock, when she was alone in her house, she consumed some poisonous substance (Sulphas). Attempts were made to save her life by administering some drugs, but her condition deteriorated. She was taken to PHC, Rehti, but Dr. N.P. Agrawal (PW-14) referred her to Hamidia Hospital, Bhopal for adequate treatment. She was taken to Hamidia Hospital, but she died. On a report about her death, Police Station Talaiya, Bhopal registered a Murg No. 127/1987. Her dead body was sent for postmortem examination. Dr. D.K. Satpathi, Sr. Forensic Specialist, Medical College, Bhopal conducted postmortem examination and vide his report Ex.P/1 and Ex.P/6 found that she died due to cardio respiratory failure as a result of suspected poisoning. Her viscera was preserved and sent to Forensic Science Laboratory, Sagar. Vide FSL report Ex.P/199 aluminum phosphide (Sulphas) insecticide was detected in viscera.

In the course of investigation, a number of love letters written by deceased as well as by accused were seized. A letter in the nature of suicide note (Ex.P/35) was also seized from the possession of the mother of deceased which indicated that accused made deceased to write love letters by scaring her that if she did not write letters to him, he would consume poison and also that he would defame her if she did not yield to his wishes. It was also alleged that co-accused Kaliya exhibited letters written by her in front of school and accused Mangal Singh tried to expose her letters to others. Therefore, she committed suicide.

After completion of investigation, police filed charge sheet u/s 305 of the Indian Penal Code against accused Mangal Singh and Kaliya for abetting deceased, who was a minor girl under age of 18 years, to commit suicide.

Appellant/accused abjured his guilt and pleaded false implication stating u/s 313 Cr.P.C. that he was falsely implicated on the move of the parents of deceased because she was in love with him which they did not like. He never harassed her; probably she committed suicide under misapprehension of the fact that accused Kaliya showed her letters to some boys.

In support of its case, prosecution examined 23 witnesses. Relying mainly on the evidence of letters produced by the prosecution including Ex.P/ 35, the evidence of Prakashwati (PW-1), Premnarain (PW-16), Anjan Singh (PW-6), Mehtab Singh (PW-7) and Balakram Patel (PW-17) learned trial judge held the appellant guilty, convicted and sentenced him as mentioned above. However, finding the evidence insufficient against accused Kaliya, acquitted him of the charge.

Shri Surendra Singh, learned senior counsel for appellant Mangal Singh, submitted that the learned trial judge committed serious error in holding the appellant guilty of the charge u/s 305 of the Indian Penal Code. He submitted that it was not proved by legal evidence that appellant exhibited letters written by the deceased to others with a view to defame her. Learned trial judge illegally placed reliance on the hearsay evidence. The evidence in respect to the fact that accused Kaliya showed letters of deceased to other boys was found not proved by the trial court. He submitted that there was no evidence on record to indicate that appellant in any manner abetted deceased to commit suicide since it was not established that appellant by his act intended that the deceased should commit suicide. Per contra, learned Penal Lawyer for the State and learned Senior Counsel Shri R.P. Agrawal for the complainant submitted that appellant, who was a married person, harassed, pressurized, dominated and exploited deceased due to which she committed suicide. According to learned counsel, the conduct of appellant fell within the definition of ''abetment'' as defined in Section 107 of the Indian Penal Code.

We have heard learned counsel for the parties and perused the impugned judgment and the evidence on record carefully.

It has not been disputed that Jyotibala committed suicide by consuming aluminum phosphide (Sulphas).

According to prosecution, the age of deceased, at the time of incident, was about 16 years i.e. under 18 years as postulated in Section 305 of the Indian Penal Code. Prakashwati (PW-1), the mother of deceased, stated that at the time of death the age of Jyotibala was 16 years. S.G. Ali (PW-9), Principal of Government Higher Secondary School, Rehti stated that the date of birth of Jyotibala, according to school record, was 16.9.1971. He made this statement in his letter (Ex.P/26) written to Station Officer of Police Station, Rehti. He, however, could not say as to in which year Jyotibala was admitted in the school and who recorded her date of birth in the school record. In these circumstances, the evidence of S.G. Ali could not be held sufficient to prove the age of Jyotibala. However, by the evidence of Prakashwati it stood established that at the time of occurrence the age of Jyotibala was under 18 years.

Madhu Sudan Sharma (PW-2) and Braj Bhushan Sharma (PW-19) who were the students of same school in which Jyotibala studied stated that accused Kallu @ Kaliya had a paper in his hand having something written with red ink. He showed that paper to them and asked as to what was written in the paper. He did not give that paper in their hands, therefore, they could not see what was written therein. The evidence of these witnesses did not create any incriminating circumstance against the appellant as well as against accused Kaliya. Learned trial judge did not find anything incriminating in the said evidence, therefore, acquitted accused Kaliya.

Anjan Singh (PW-6), a neighbour of deceased as well as of accused, stated that at about 3.00 pm when he was going back to his house, he saw people assembled in front of the house of Jyotibala. On his asking, people told that Jytiobala was not well. She was taken to hospital. She never talked to him about any letters. This witness was declared hostile. He denied all the suggestions put to him by the prosecution suggesting that Jyotibala disclosed to him that Mangal Singh pressurized her to yield to his wishes. He however disclosed that at the time of occurrence Mangal Singh was married.

Mehtab Singh (PW-7) stated that he did not know the accused persons. He, however, had once purchased manure from the shop of Mangal Singh in the year 1991. He denied that Mangal Singh gave any letter to him. He denied that he knew daughter of Premnarain. Evidence of this witness did not help the prosecution.

Balakram Patel (PW-17) stated that he knew appellant, but he did not know Jyotibala. At about 3.00 pm when he was going to the house of appellant to fetch his calender, on way, near the house of Jyotibala, he saw appellant and Arjun Standing and reading some paper. He, however, did not know as to what was written in that paper. At that time Jyotibala, who was sitting in front of her house, sent a boy to Mangal Singh and Arjun for telling not to show her letters to anybody, else she would eat something. He, Mehtab, Arjun and Mangal Singh thereafter sat on a cot in a shade. After some time, that boy again approached to them and informed that Jyotibala was dissolving something like ''Sharbat''. Hearing this Mangal Singh went inside her house. When he did not come back for sometime, he and Arjun also went there and saw Jyotibala lying on a table having froth coming out of her mouth. Mangal Singh informed him that she had consumed something. Thereafter they went and informed to her mother and also to a doctor. They carried her to hospital at Rehti. They also brought medicine for her and gave it to her. This witness, however, did not say anything to indicate that appellant exhibited letter written by Jyotibala. Learned counsel for the appellant submitted that the evidence of this witness (PW-17) was inadmissible being hearsay in nature since the boy, who allegedly informed accused that he should not show letter of deceased to anybody, was not examined in the court. He placed reliance on the ratio of Bhugdomal Gangaram and Others Vs. State of Gujarat, wherein it has been observed that the evidence of a person who got information of a fact from somebody else would not be admissible if the informant of that fact was not examined as a witness. We find substance in the submission of learned senior counsel. Since the boy, who informed appellant and Balakram as to what deceased told, was not examined in the Court, the evidence of Balakram about that fact would not be admissible. Apart from it, mere fact that accused and Arjun were reading some paper on public way in front of the house of deceased, it cannot be held that appellant was showing the letter of deceased to Arjun. Learned trial court proceeded on the assumption that even if it was not proved that the paper shown by appellant was the letter of deceased, yet his conduct created an impression that he was showing her letter to others for defaming her and her parents. We are unable to accept this hypothesis in the absence of at least some positive evidence to the effect that appellant told or in any other manner expressed that the paper which he showed to others was letter of deceased. In the absence of such evidence, no incriminating inference could be drawn against the appellant.

Learned senior counsel for the appellant next submitted that from the evidence adduced by the prosecution including the letter (Ex.P/35), a suicide note, it was not established that appellant abetted deceased to commit suicide. He placed reliance on M. Mohan Vs. The State represented by The Deputy Superintendent of Police, On the other hand, learned senior counsel for complainant and the counsel for State submitted that from the photograph (Ex.P/21) and the letter (Ex.P/35) it was established that appellant harassed and intimidated deceased to defame her with a view to compel her to obey his illicit demand, and because of that deceased, who was a minor girl, was left with no option but to commit suicide. A number of letters written by the accused were seized on production by Prakashwati (PW-1), the mother of deceased. Similarly many letters were seized from the house of the accused written by deceased. These letters were duly proved. From the contents of these letters it was established that appellant and deceased were in deep love and used to exchange letters. From the evidence of Anjan Singh (PW-6) it was revealed that at the time of occurrence appellant was a married person, but as we have already discussed, it has not been established that appellant in any manner defamed deceased by showing her letters to anybody.

Now the question before us is whether by other evidence adduced by the prosecution could it be inferred that appellant abetted deceased to commit suicide? Learned trial judge referring to letter of appellant (Ex.P/14) held that he was pressurizing or exerting influence on the deceased that if she did not do as he wished, he would go away from her. Learned court below wrongly mixed up this issue with the issue that deceased demanded her photograph from appellant which was in his possession. According to trial court, this was indicated from the fact that appellant in his letter mentioned that if she was weeping, he would give her photograph back. This part of the letter did not indicate that appellant threatened deceased to blackmail her. In another part of this letter he mentioned that if it was not possible for him to get her, it would be a difficult situation for him and he would go away from her for 2-3 years. It does not appear to us that these words would have been uttered by appellant with a view to unduly influence or pressurize deceased to meet his any nefarious demands.

Learned trial court drew inference that appellant wanted to persist sexual relation with deceased. Since some words indicating sexual relations between them were mentioned in the letter (Ex.P/8), therefore, it had to be concluded that appellant psychologically pressurized deceased to obey his demands. Dr. D.K. Satpathi (PW-13), who conducted autopsy, deposed that hymen of the deceased was not torn. Learned trial judge however remained obsessed with the feeling that appellant because of his unending sexual desires mounted pressure on deceased. After perusal of various letters it seems to us that it was not indicated that appellant and deceased indulged in sexual relationship.

Learned trial court after observing the photographs (Ex.P/20 and P/21) held that photograph Ex.P/21, which was a joint photo of appellant and deceased, was fabricated one. It is true that photographer Ganesh (PW-5) stated that he had snapped the photograph (Ex.P/20) of Jyotibala and the photograph (Ex. P/21) in which appellant was shown with the deceased was manufactured with the negative of Ex.P/20. But in this regard no expert was examined in the court. It was not Ganesh (PW-5) who created Ex.P/21, therefore, in our opinion, it was not possible to hold that the photograph (Ex.P/21) was fabricated. Apart from it, from the letters of deceased it appears that she knew that her photographs were in possession of appellant. It is an admitted and also proved position that appellant and the deceased were in deep love and were writing letters to each other. There appeared absolutely no evidence on record to indicate that appellant used the said photographs or the letters of deceased for blackmailing her. Even if it is assumed that on the strength of photographs or the letters written by the deceased appellant wished her to continue the love relationship with him, in our opinion, it cannot be held that appellant intended that deceased should commit suicide. In case of M.Mohan (supra), the Apex Court, explaining abetment in relation to Section 306 and Section 107 IPC, observed:

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 accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of legislature and the ratio of cases decided by this court are clear that in order to convict a person u/s 306 IPC, there has to be a clear mensrea 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 in such a position that he/she committed suicide.

Learned senior counsel for the complainant referring to letter Ex.P/35 submitted that appellant knew that deceased, who was a girl under the age of 18 years, if exploited, would commit suicide. Therefore, it had to be presumed that appellant intended to leave no option for the deceased except to commit suicide. No doubt in Ex.P/35 deceased mentioned that appellant obtained letters from her by putting her under fear, but it appears that he scared her that if she did not write letters to him, he would consume poison because he loved her too much. In these circumstances, in our opinion, it could not be inferred that appellant wished to defame her or intended that she should commit suicide.

Placing reliance on Gurbachan Singh Vs. Satpal Singh and others, learned counsel for the State submitted that abetment does not involve the actual commission of the crime abetted; it is a crime apart. There is no dispute about the aforesaid proposition of law, but here no such question is involved. The only question is whether from the proved facts could it be inferred that appellant intended that deceased should commit suicide? From the intention of the legislature and the various cases decided by the Apex Court it is clear that in order to convict a person u/s 306 IPC there has to be a clear mensrea to commit the offence.

After taking into consideration all the evidence including the letters written by accused as well as by deceased, we are of the opinion that the requisite ingredients of the offence u/s 107 which form essential part of the offence u/s 305 of the Indian Penal Code are not established. It has not been established by the prosecution that appellant instigated, intentionally aided, provoked, incited or deliberately created such circumstances that no option was left with deceased except to commit suicide. Learned court below, in our opinion, did not appreciate the evidence on record in correct perspective and illegally recorded the finding of conviction of appellant u/s 305 of the Indian Penal Code.

Accordingly, Criminal Appeal No. 503/1994 is allowed. The conviction of appellant Mangal Singh u/s 305 of the Indian Penal Code and the sentence awarded to him thereunder is set aside. He is acquitted of the charge. His bail bond and surety bond are discharged. Criminal Revision No. 422/1994 filed by applicants Smt. Prakashwati and Premnarain for enhancement of sentence of respondent Mangal Singh is dismissed. A copy of this judgment be kept in Criminal Appeal No. 503/1994.