Shyam Lal and Others vs State of M.P.

T.K. Kaushal, J.—This appeal has been preferred u/s 374 of the Code of Criminal Procedure, 1973 (in short the Code) against judgment dated 25/09/1995 passed by IVth Additional Sessions Judge, Chhatarpur in S.T no. 127/ 1994 convicting the appellants u/s 498A and 306 of Indian Penal Code (in short IPC) for committing cruelty, harassment and abatement of the suicide to Savitri (since deceased) wife of the appellant no. 1 and sentenced to 1 year R.I. and 3 1/2 years RI and with fine of Rs.500/- and Rs. 1000/- respectively.

Facts, in short, are that on 06/12/1990 by about 6.00 am in her matrimonial house Savitri deceased set herself on fire. Deceased was married to appellant no.1 about 3 years prior to the incident. On 05/12/1990, after meals in the night, deceased insisted appellant no. 1 to take her to her parents house. In the morning, deceased again insisted and started crying. Appellant no. 1 left the house for a while. Deceased pouring kerosene set herself on fire. After hearing shrieks of the deceased, appellant no.4 Ku. Prabha, sister of the appellant no. 1, rushed towards him and informed about the incident. Appellant no. 1 and 2 rushed to their house. Deceased succumbed to her burn injuries on the spot after some time. At about 10.15 am, appellant no.1 informed the incident at police station-Bakashwaha, District- Chhatarpur. Vide Ex. P-15 Marg proceeding u/s 174 of the Code at no.22/1990 was initiated.

On 06/12/1990, appellant no.3 Ram Rani was also sent for medical examination for burn injuries received by her in thumb of her right hand. Dr. Ashok Botke (PW-8) examined her and prepared MLC Report Ex.P-6.

On 07/12/1990, Post Mortem of deceased was conducted by Dr. Ashok Botke (PW-8) along with two other doctors at about 4.00 pm in PHC Bakashwaha, District- Chhatarpur. Cause of death was shown to be external burns. There had been 75% burn on the body of the deceased. Cause of death was shock due to excessive burning. On 08/12/1990, Vide Ex.P-12 FIR, a case at crime no. 135/1990 u/s 498A, 306 and 304B was registered against the husband, father-in-law, mother-in-law and Sister-in-law of the deceased. Spot Map Ex.P-10 was prepared. Vide Arrest Memo Ex.P-13 and Ex.P-14 appellants were arrested on 08/12/1990.

Pending investigation, among other witnesses, statements of father, brother, sister-in-law (bhabhi) of the deceased were also recorded by the police, stating instances of cruelty, harassment and acts of abatement committed by the appellants to the deceased.

After completing investigation, citing 16 witnesses, charge sheet u/s 498A, 306, 304B was submitted in the Court of concerned Magistrate. Case was committed in the court of sessions. Trial Court framed charges u/s 306, 304B and 498A of IPC against the appellants. Appellants abjured guilt. To substantiate case of prosecution, statements of Ratanlal (PW-1), Mohanlal Shrivastava (PW-2), Dr. Ram Kumar Khare (PW-3), Smt Kusum, sister-in-law (PW-4), Churaman, brother of deceased (PW-5), Gyasilal, father of deceased (PW-6), Ramdayal (PW-7), Dr. Ashok Botke (PW-8), Bhadur Singh (PW-9), Harnarayan, Constable (PW-10), Jagannath Singh (PW-11), and Mukesh Tiwari, Sub Inspector (PW-12) were recorded. Defence of the appellant in Trial Court was that of false implication by the parents of the deceased. After appreciating evidence, Trial Court acquitted the appellants u/s 304B of IPC, however, convicted and sentenced them u/s 498A, 306 of IPC and sentenced as above.

This appeal has been preferred on the ground that appreciation of the evidence is not proper. Findings of trial court are based on surmises, conjectures and wrong presumptions. Deceased was never subjected to harassment and cruelty whatsoever by none of the appellants. There are material contradiction, omissions and improvements in the statement of the prosecution witnesses. Conviction is bad in law. Sentence is too harsh. On the other hand, learned Panel Lawyer for the State supported the judgment of the trial court.

For holding a person guilty for abatement of suicide evidence as per provision of Section 107 of the IPC should be available on following grounds:-

Section 107 Abatement of a thing-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.

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.

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.

For abatement of suicide Apex Court observed in Gangula Mohan Reddy Vs. State of Andhra Pradesh, as follows in Para 18, 20 and 21:-

In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our '' day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently.

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 case decided by this court is clear that in order to convict a person u/s 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.

For ascertaining the fact whether cruelty or harassment has been committed by the appellants on the deceased. According to the provisions of Section 498A of IPC, evidence is required as follows:-

Explanation

For the purpose of this section, "cruelty" means-

(a) 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; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Since in present case, deceased expired within the period of 7 years of the marriage by setting fire herself in her matrimonial house, Evidence Act, 1972 provides presumption in favour of the deceased as per Section 113(A) of Evidence Act as follows:-

113 A. Presumption as to abetment of suicide by a married woman.-When the question is whether the commission of suicide by a women had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the court may presume, having regard to ail the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation

For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).

In respect of applicability of the presumption, it is observed by the Apex Court in Rajbabu and Another Vs. State of M.P., as follows :-

... Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression- "the other circumstances of the case" used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. Inspite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption...

It is no longer disputed that within period of 3 years of marriage deceased committed suicide in her matrimonial house by pouring kerosene and set herself on fire. Trial Court has appreciated the evidence and extended the benefit of doubt to the appellants holding that it is not proved beyond doubt that deceased was subjected to cruelty and harassment in respect of demand of dowry by the appellants soon before her death and acquitted them of the charge u/s 304B of IPC.

Smt Kusum, sister-in-law of the deceased (Bhabhi) (PW-4) stated that deceased used to tell her according to in-laws she did not know to cook "chapaties" and was ugly also. Churaman, brother of deceased (PW-5) stated that though marriage of her sister with the appellant was settled in "Parichay Sammelan ", but appellant demanded some money. His sister used to tell her that she was not getting good treatment from her in-laws. This complaint was made after a year of the marriage. PW-4 and PW-5 are living separately from their parents for last about 12 years in separate village. Most of the instances of alleged harassment have been stated by the witnesses first time in the court only.

Gyasilal, father of deceased (PW-6) stated that deceased told to her sister-in-law (PW-4) and she told to him the facts about cruelty and harassment. Father-in-law of the deceased had taken her with him to her matrimonial house. After about 8-10 days, he informed that deceased was not keeping well and suffering from some ailment. After about 5-6 days, thereof, suicides was committed.

It had come on record that deceased was subjected to cruelty and harassment by uttering words by the appellants, in casual manner, but nothing has been suggested by the witnesses that prior to the incident of suicide something specific has been done by the appellants with the deceased worth driving her to commit suicide. None of the witnesses stated that after the last visit of the deceased to her matrimonial house, i.e. within 15-20 days of her suicide any of the appellant committed any act that may hold them responsible to drive the deceased to commit suicide. Normal instances of ill-treatment by way of neglecting the deceased or by quarreling with the deceased are not sufficient to constitute the abatement on the part of the appellants.

The evidence is sufficient for holding the appellants guilty u/s 498A of IPC. However, for convicting the appellants u/s 306 of IPC there must be some more evidence showing specific acts during the last spell of the stay of the deceased in her matrimonial house suggestive of mens rea to instigate the deceased to commit suicide. Since, the deceased had committed suicide, her parent''s family members recollected all instances of ill-treatment narrated by her during last three years and were stated by them in the Court. This is not a sufficient evidence for holding appellants guilty for abatement of suicide as described u/s 107 of the IPC.

Trial Court has rightly held that presumption u/s 113(b) of the Evidence Act is not attracted. Similarly Trial Court should have held that presumption u/s 113(a) of the Evidence Act was also not attracted. There is no sufficient evidence available on record which can hold appellants liable for abatement of the suicide committed by the deceased. Allegation of cruelty and harassment, however, are proved on the basis of the prosecution evidence.

As discussed above, conviction and sentence of the appellants u/s 306 of IPC deserves to be set aside and is hereby set aside. Conviction u/s 498A of IPC is maintained.

It is submitted by learned Counsel for the appellants that more than 2 months jail sentence have been suffered by appellant no.3 Ram Rani, mother-in-law and appellant no.4 Prabha, sister-in-law and more than 3 months custody has been suffered by appellant no. 1 Shayamlal, husband of the deceased, pending investigation, trial and appeal. After about a period of 21 years of the incident, no useful purpose would be served in sending them back in jail.

In my considered opinion, in addition to undergone jail sentence of the appellants, fine of Rs.5,000/- each would be sufficient and will meet the ends of justice. Appellants stand convicted u/s 498A of IPC and sentenced to undergone jail sentence and fine of Rs.5000/- each, in default of payment of fine accused persons shall undergo 3 months simple imprisonment.

Appellants are directed to appear before the Trial Court to deposit the balance fine amount or to undergo default sentence on or before 17th October, 2011, as the case may be.

Appeal is allowed in part. Conviction and sentence of appellants u/s 306 of IPC is set aside. Conviction u/s 498A is maintained and sentenced as indicated above.