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Judgment
Heard Mr. S. Lodh, learned counsel appearing for the appellants as well as Mr. S. Ghosh, learned Addl. P.P., appearing for the State-respondent.
The appellants herein are accused of committing offences under Section 498A of IPC and Section 306 of IPC. The learned Addl. Sessions Judge, Court No.5, West Tripura, Agartala vide his judgment of convicted and sentence dated 22.11.2016 convicted the three appellants who are the husband and parents-in-law of the deceased under Sections 498A of IPC and 306 of IPC and sentenced them to suffer rigorous imprisonment for five years for commission of offence under Section 306 of IPC and a fine of Rs. 3000/-. Further, the appellants were also sentenced to suffer rigorous imprisonment for two years with default stipulation for offences under Section 498A of IPC.
Briefly stated, the prosecution case is that, on the basis of a complaint lodged by one Rabindra Ch. Das, the father of the deceased (wife of the appellant No.1) to the officer-in-charge of Lefunga Police Station stating, inter alia, that after marriage his daughter, she was subjected to physical and mental torture on demand of dowry for bringing money. Several meetings were held, but in vain. It is further stated in the complaint that failing to tolerate the battering, his daughter had doused kerosene on herself on 07.06.2013 after being quarrelled with the appellants. It is further stated in the complaint that his daughter had poured kerosene on herself for the reason that the appellants had abused her and instigated to set fire on herself. She could not tolerate any longer and after 20 minutes she set fire on herself.
The investigating officer had commenced the process of investigation and recorded the statement of the victim as first information which later on, was treated as dying declaration (Exbt-11). He further arranged to record the dying declaration of the victim in presence of an Executive Magistrate. Accordingly, the Executive Magistrate, Smt. Emilia Reang had recorded the dying declaration (Exbt-5) of the victim. The investigating officer also recorded the statements of the available witnesses including one Panchayet Member (P.W.-11). The dead body of the victim was sent for post mortem examination. He collected the report (Exbt-3 as a whole). The investigating officer also prepared the site map and prepared the inquest of the body. After completion of investigation, charge-sheet was submitted to the Court of learned Magistrate, who committed the case to the Court of learned Sessions Judge, West Tripura, Agartala.
Having received the case records, the learned Addl. Sessions Court No.5, West Tripura, Agartala had framed the following charges:
" First, that all of you being the husband and mother-in-law, father-in-law, and near relatives of the husband of the deceased Jyostna Das(Sarkar), on different dates and time since her marriage , in furtherance of common intention of all of you, subjected said Jyostna Das(Sarkar) to cruelty, both mentally and physically, at your house at Uttar Rangutia lying within the local limits of Lefuna Police Station in West Tripura District on her failure to meet the lawful demand for cash money as dowry; and that all of your thereby committed an offence punishable under Section 498A IPC read with Section 34 of IPC and within my cognizance;
Secondly, that on 7.6.2013 at 0800 hours, at your house at Uttar Rangutia lying within the local limits of lefunga police station in West Tripura District, said Jyostna Das(Sarkar) committed suicide; and that all of you, in furtherance of common intention of all, abated its commission by way of subjecting her to cruelty, both mentally and physically , to meet the unlawful demand for money since her marriage, and that all of you thereby committed an offence punishable under Section 306 IPC read with Section 34 of the IPC and within my cognizance.
Alternate Charge
That, all of you in furtherance of your common intention on 7.6.2013 at 8 a.m. at your house at Uttar Rangutia under Lefunga P.S. within district West Tripura, committed dowry death by causing the death of Jyotsna Das(Sarkar) and thereby committed and offence punishable under Section 304B read with Section 34 of the Indian Penal Code and within the cognizance of this Court."
Fourteen witnesses were examined and twelve documents including the dying declarations were introduced to substantiate the charges as aforestated.
The learned Trial Judge after conclusion of recording of the evidence, examined the accused-persons under Section 313 of Cr.P.C., to which they pleaded their innocence and claimed to be tried. They denied all the incriminating evidence as adduced by the witnesses.
After hearing the arguments of the learned counsel appearing for the parties, the learned Addl. Sessions Judge had acquitted two accused persons, namely, Shri Bishnu Sarkar alias Sanjit and Smt. Silpi Sarkar the brother-in-law and sister- in-law of the deceased respectively from the charges leveled against them. However, after consideration of the evidence on record, the learned Judge convicted the present appellants for commission of offences punishable under Sections 498A & 306 of IPC and declared the sentence as aforestated.
Hence, this appeal before this Court.
Mr. S. Lodh, learned counsel appearing for the appellants has contended that there are two dying declarations. First one was recorded by Sub-Inspector, Shri Sekhar Deb Sarkar (P.W.-12) and second one was recorded by Executive Magistrate, Smt. Emilia Reang(P.W.-8).
The complainants, being the father and mother of the deceased were examined as P.Ws-1 & 5. They have deposed that their daughter was subjected to physical and mental torture since after marriage demanding money from them. The torture became unbearable to their deceased-daughter. On 07.06.2013 there was a quarrel between the accused-persons and their deceased-daughter. On the next day, her daughter set herself on fire and succumbed to her burn injuries on 13.06.2013.
P.W.-2, Smt. Parul Bala Das is the aunt of the deceased. She deposed the same facts and circumstances as deposed by P.Ws.-1 and 5.
P.W.-3, Dr. Pranab Chowdhury conducted post-mortem examination upon the dead body. He opined that the deceased had suffered 86 per cent of burn injuries and she died out of septicaemia.
P.W.-4, Smt. Jhuma Rani Das is the elder sister of the deceased, who deposed that the husband of the deceased, namely, Krishnadhan Sarkar was not satisfied with the articles given to him at the time of marriage. In the matrimonial home of the deceased, all the accused-persons including the appellant-husband herein had started torture upon the deceased. One day the husband of the deceased had demanded Rs.5000/- from her parents (P.Ws.-1 & 5). They approached the local panchayat and a meeting was held but nothing concrete was yielded. In her cross-examination, P.W.-4 stated that neither the deceased nor her parents had lodged any complaint at any point of time before any lawful authority.
P.W.-6, Smt. Minati Das deposed that since after marriage, the deceased was subjected to torture. In her cross-examination when her attention was drawn, no such statement was found.
P.W.-7, Sri Dipu Paul is the brother-in-law of the deceased. He only deposed that after hearing the news that the deceased had suffered burn injuries, he went to the hospital and he came to know from other relatives that there was a quarrel between the deceased and the inmates of her maternal house.
P.W.-8, Smt. Emilia Reang recorded the dying declaration of the victim at the hospital being the Deputy Collector & Magistrate on 09.06.2013. She reiterated that the declaration, which the deceased made before her was the true version (Exbt-5). She was in fit condition and was capable to make statements. Doctor also certified about her fitness.
P.W.-9, Shri Ratan Chakraborty is the witness who prepared the inquest and is a formal witness.
P.W.-10 also is a formal witness to the inquest.
P.W.-11, Shri Dilip Sarkar is one of the elected panchayet members of the village. He deposed that:-
"about two months before the death of the deceased two or three meetings were held in the house of the accused-persons on the allegation of Samir Das, brother-in-law of the victim that there was a dispute in between the victim and other family members on the issue of cooking place in between the family of the accused Krishnadhan Sarkar and other members of the said family".
They tried to mitigate the matter but failed. He could not say anything more and was declared hostile at that stage. However, this witness (P.W.-11) had volunteered that ‗the accused-Krishnadhan Sarkar used to abuse his wife Jyostna but no physical torture was done'.
P.W.-12, Sub-Inspector, Sekhar Deb Sarkar who after taking up the investigation being endorsed by the Officer-in-Charge of the Police Station, visited the place of occurrence, prepared the site map, examined the available witnesses and recorded their statement under Section 161 of Cr. P.C. During investigation, he seized one plastic drum containing some kerosene, one silk saree partially burnt, one printed bed sheet and other burn materials found inside the room. He went to GBP Hospital and after consultation with the medical officer, namely, Dr. Goutam Debbarma, he recorded the statement of the victim girl under Section 161 of Cr.P.C. (Exbt-11). Thereafter, the case docket was handed over to Shri Amitava Paul, SDPO (P.W.-13) who deposed that he went through the case diary as prepared by P.W.-12. He collected the examination report. On his transfer, the case dairy was handed over to Shri Sanjoy Biswas, Deputy S.P. who took over the charge of SDPO for completion of the remaining investigation. During his cross examination, P.W.-13 specifically stated that P.W.- 4 did never make any such statement as follows:-
"that the accused persons started torture on the plea that the articles given in the marriage were not up to the mark. She did not state to me that after two years a meeting was held in the house of the accused-persons in presence of Panchayet Member Dilip Sarkar and the accused-persons were asked not to make torture. She also did not state to me that her sister was sitting for 20 minutes after pouring kerosene on her body and that her husband asked her if she dare to die, she may set fire and that her husband gave her a match stick.
P.W.-4 also did not state to me that on getting information she went to the house of the accused-persons and took her sister to the hospital.
P.W.-5 Smt. Aruna Das did not state to me that the accused-persons started torture upon her daughter from the very date of her Boubhat ceremony on the plea that articles given in the marriage were of inferior quality. She also did not state to him that accused-Krishnadhan Sarkar gave a match stick box to her daughter and thereafter she lighted herself with the said match stick".
This witness further stated that in the inquest report, it was mentioned as per statement of Rabindra Ch. Das (P.W.-1), the father of the deceased which is as follows:-
"deceased set herself on fire at her husband house on 07.06.2013 after pouring kerosene on her body"
P.W.-14, SDPO Sanjoy Biswas completed the rest part of the investigation. He examined one witness, namely, Dilip Sarkar and recorded his statement under Section 161 of Cr.P.C., on 11.08.2013. This witness had submitted charge-sheet against the accused-persons under Section 498A and 304B of IPC. In his cross examination, P.W.-14 stated that:
"I did not find any medical evidence regarding injury of the victim which was allegedly took place between the marriage of the victim on 06.06.2013".
After perusal of the evidence as adduced by the witnesses as I find the presence of two dying declarations, which were marked as Exbt-5 and Exbt-11 though, Exbt-11 was recorded as the statement made under Section 161 of Cr. P.C., which was treated as one of the dying declarations recorded by P.W.-12, the first investigating officer. I have meticulously screened the statement of the victim (Exbt-11) which is sought to be projected as dying declaration recorded by the first investigating officer and compared the same with the statements made by the witnesses before the trial Court.
One of the striking feature, I find is that in the inquest report, P.W.-1, the father of the deceased stated that her daughter herself set fire on her body by pouring kerosene on 07.06.2013. This is the first statement which he made to a police officer just immediately after the death of her daughter. Now, if the dying declaration (Exbt-5) is read simultaneously with Exbt-11, then, it manifest that deceased had only stated that there was an altercation with her husband and parents-in-law on the previous day and out of mental agony she set herself on fire by pouring kerosene. She had further stated that the torture inflicted by her mother-in-law was only responsible for this. The said dying declaration is reproduced here-in-below, in verbatim:
"I had an altercation with my husband day before yesterday and that too with my father-in-law and mother-in-law. I set fire on my body by pouring kerosene out of mental agony. My mother-in-law's torture is only responsible for this."
For convenience, I should reproduce the statement made by the victim before P.W.-12 under Section 161 of Cr. P.C:
"On being asked I am stating that my name is Smti. Jyotsna Das (Sarkar) @ Ruma W/o- Sri Krishnadhan Sarkar resident of Ranggutia and I got socially married around 6 years ago in the year 2007 AD in the Bengali month Agrahayana. After few days of my marriage, my husband Krishnadhan Sarkar, my mother-in-law Saraswati Sarkar, younger brother-in-law Bishnu Sarkar, father in-law Narayan Sarkar and one elder sister in-law namely Shilpi Sarkar started torturing me mentally and physically to being more money from my father's house. I have a daughter too. Being annoyed by the torture of my husband and all others I informed about the matter to my parental home. Yesterday dated 07.06.2013 AD also in the morning at around 6.30 my husband, mother-in-law, father in-law and younger brother in-law battered me for going to my father's house. Getting frustrated by their torture I poured kerosene oil from a drum on my body in front of every one. Then everybody made fun by saying " she won't die, she won't die. She is feigning.". The moment I lit fire with match stick, (my) husband caught hold of her hand. Thereafter I can't say anything. Being compelled by the torture inflicted (upon me) by my husband, mother in-law , father in-law and younger brother in-law I put fire on myself to end my life."
From the statement made in Exbt-5 & Exbt-11, I find that there are so many improvements and exaggeration in Exbt-11. In this situation, in my opinion, it will not be proper and safe to treat the same as dying declaration as relied upon by the learned Trial Judge. Even the investigating officer did not think it necessary to take either the signature of the victim nor her thumb impression. There is no indication that there was any eye-witness present at the time of recording such statement under Section 161 of Cr.P.C. So, according to me, in this circumstance such statement (Exbt-11) should only be treated as a statement made under Section 161 of Cr.P.C., simply and can be used for purpose of only contradiction and corroboration. Further, it would be highly risk to treat this nature of statement as dying declaration and in the context of the case, should not be used to declare conviction.
As such, I repel the submission of Mr. S. Ghosh, learned Addl P.P., that Exbt-11 should be treated as one of the dying declarations. For the same reason, I am not able to reach to an agreement with the learned Trial Judge that Exbt-11 is a piece of dying declaration.
Now, if I consider Exbt-5, then, I find that Doctor had certified that:
"Patient Jyotsna Das (Sarkar) 25 years is fully conscious and oriented at the time of examination and can give a valid declaration."
From a bare reading of the said dying declaration (Exbt-5) it becomes apparent that there was an altercation with her husband and parents in-law on the previous day. She was suffering from mental agony and out of that she poured kerosene on her body. It is clear from her statement that she was not subjected to physical torture before setting herself on fire. She has also not stated that she was subjected to physical torture at any point of time since after her marriage with Krishnadhan Sarkar, the appellant No.1 herein or with her parents-in-law.
After careful assessment of the evidence led on by the prosecution witnesses, particularly, parents of the deceased who adduced their evidence as P.Ws.1 & 5, they could not specify a specific date when their deceased daughter had complained of physical and mental torture to them. From the evidence it has come to light that neither the deceased nor her parents or any other relatives of the deceased had lodged any complain of torture to any lawful authorities at any point of time during their marriage life.
P.W.-11, being one of the members of the village panchayet appeared to be an independent and responsible witness. He has categorically stated that it was true that there was a meeting held to resolve the dispute between the deceased and the accused-persons including the appellants. That dispute was related to only identifying of the cooking place and not related to any physical torture or any serious mental torture inflicted upon the deceased by the appellants at any point of time during their marriage life.
P.W.-1 in his deposition had stated that ―In the marriage I gave Rs.25,000/- in cash, ornaments, furniture and other things. After the marriage she started living in her husband's house. She was happy at her husband house for about one year‖. From this statement, it is clear that the husband-Krishnadhan Sarkar or any of his relatives had not demanded Rs.25,000/- from P.W.-1 as dowry at the time of marriage. More so, this witness has categorically stated that her daughter was leading a happy life with her husband for about one year. Later on, P.W.-1 stated that thereafter her husband-Krishnadhan Sarkar had started demanding money from him and further had stated that the in-laws including the husband of the deceased used to beat the deceased.
In his cross examination, P.W.-1 has stated that:
"when the inquest report was prepared by police, I was asked by police officer as to cause of the death of my daughter‖. The inquest (surathal) report has been brought on record as proof (Exbt-2).
In the said inquest report (Exbt-2) it is clearly written that:-
"On prima facie investigation it could be learnt on interrogating witness No.1 Rabindra Chandra Das, father of the deceased that on 07-06-2013 AD deceased herself doused kerosene and set fire on her body in her husband's house situated in Ranggotia village under Lefunga P.S. immediately Jyotsna Das(Sarkar) was taken to Agartala G.B.P. Hospital and got her admitted there.".
The said statement of P.W.-1 has neither been confronted by P.W.-1 nor by the prosecution side. Rather, P.W.-14 had confirmed the statement of P.W.-1, which is also fortified by the statement of P.W.-1 when he stated in his cross examination that he was asked by the police as to the cause of death of his daughter.
Next, I find there are lots of improvements in the statements of P.W.-4. She has developed her statement which she had made in Exbt-4, the elder sister of the deceased. Neither P.W.-1 nor P.W.-5 or other related witnesses have never said that at any point of time, the accused-appellants had demanded Rs.5000/-. I find absence of such statement when her attention to her statement under Section 161 of Cr.P.C. was drawn by the defence. The absence of such statement has also been confirmed by P.W.-14, the last investigating officer. Under this circumstances, the integrity of this witness appears to be doubtful.
This Court is unable to form a definite opinion that the statements made by deceased in Exbt-5 is sufficient to attract the ingredients required to bring home the charges under Section 498A of IPC and Section 306 of IPC. The learned Trial Judge himself has discarded the prosecution case to the effect that prosecution has failed to prove the charge leveled against the accused-persons under Section 304-B of IPC.
The learned Trial Judge while discarding the prosecution case under Sections 498-A and 304-B had observed that:-
"In view of the above I find that the deceased in her dying declaration to PW-8 did not bring any allegation of dowry demand. This deficiency in evidence proves fatal for the prosecution case. As such, prosecution has failed to prove that the deceased was subjected to cruelty or harassment by the accused husband or his family members "in connection with demand of dowry" which is one of the essential ingredients of Section 304B IPC. Presumption under Section 113B of the Evidence Act can be drawn only when prosecution first establishes the essential ingredients of Section 304B IPC. Since the evidence falls short of proving the essential ingredients to Section 304B IPC, question of drawing presumption against the accused under Section 113B does not arise.
However, the learned Trial Judge, as stated above, has convicted the appellants under Section 306 IPC and Section 498-A of IPC.
I find no evidence that the accused-appellants had ever demanded any amount of money during the marriage life of the deceased with the appellant No.1, Krishnadhan Sarkar from the parents of the deceased as dowry. Thus, I discard the analogy drawn by the learned Trial Court for convicting the appellants under Section 498A of IPC.
Next, this Court is to examine whether the prosecution has been able to prove the charges under Section 306 of IPC against the appellants.
The essential ingredients of the offence under Section 306 of IPC are:-
"1. The abetment
The intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting of the deceased by using abusive language will not, by itself constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. Unless the ingredients of instigation/ abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC."
Section 306 of IPC prescribes the punishment of suicide which is reproduced herein-under:-
"306-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."
While interpreting the scope and ambit of Section 306 of IPC, the Apex Court in Gurcharan Singh vs. State of Punjab reported in (2017) 1 SCC 433 had observed thus [(SCC) P-440, Para-40]:
"21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of this constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide.
Section 107 IPC defines abetment and is extracted hereunder:
"107. Abetment 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 doing.
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."
Not only the acts and omissions defining the offence of abetment singularly or in combination are enumerated therein, the explanations adequately encompass all conceivable facets of the culpable conduct of the offender relatable thereto.
Section 113A of the Indian Evidence Act, 1872 permits a presumption as to the abetment of suicide by a married woman by her husband or any relative of his, if it is proved that she had committed the act within a period of seven years from the date of her marriage and that her husband or such relative of his had subjected her to cruelty. The explanation to this Section exposits ―cruelty‖ to have the same meaning as attributed to this expression in Section 498A IPC. For ready reference, Section 113A of the Indian Evidence Act, 1882 is quoted hereunder as well.
"113A. Presumption as to abetment of suicide by a married woman-When the question is whether the commission of suicide by a woman 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 had subjected her to cruelty, the Court may presume, having regard to all 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 498A of the Indian Penal Code (45 of 1860)."
In the legislative backdrop outlined hereinabove, Section 498A of the Code also demand extraction.
"498A. Husband or relative of husband of a woman subjecting her to cruelty- 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.
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.‖
This provision, as the quote hereinabove reveals, renders the husband of a woman or the relative of his, punishable thereby with imprisonment for a term which may extend to three years and also fine, if they or any one of them subject her to cruelty. The explanation thereto defining ―cruelty‖ enfolds:
(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 it 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.
Though for the purposes of the case in hand, the first limb of the explanation is otherwise germane, proof of the willful conduct actuating the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental of physical, is the sine qua non for entering a finding of cruelty against the person charged.
The pith and purport of Section 306 IPC has since been enunciated by this Court in Randhir Singh vs. State of Punjab (2004)13 SCC 129, and the relevant excerpts therefrom are set out hereunder.
'12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
In State of W.B. Vs. Orilal Jaiswal (1994) 1 SCC 73, this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
Significantly, this Court underlined by referring to its earlier pronouncement in Orilal Jaiswal (supra) that courts have to be extremely careful in assessing the facts and circumstances of each case to ascertain as to whether cruelty had been meted out to the victim and that the same had induced the person to end his/her life by committing suicide, with the caveat that if the victim committing suicide appears to be hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which he or she belonged and such factors were not expected to induce a similarly circumstanced individual to resort to such step, the accused charged with abetment could not be held guilty. The above view was reiterated in Amalendu Pal @ Jhantu vs. State of West Bengal (2010) 1 SCC 707.
That the intention of the legislature is that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option, had been propounded by this Court in S.S. Chheena vs. Vijay Kumar Mahajan (2010) 12 SCC 190.
In Pinakin Mahipatray Rawal vs. State of Gujarat (2013) 10 SCC 48, this Court, with reference to Section 113A of the Indian Evidence Act, 1872, while observing that the criminal law amendment bringing forth this provision was necessitated to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives demanding dowry, it was underlined that the burden of proving the preconditions permitting the presumption as ingrained therein, squarely and singularly lay on the prosecution. That the prosecution as well has to establish beyond reasonable doubt that the deceased had committed suicide on being abetted by the person charged under Section 306 IPC, was emphasised.
The Apex Court in Ramesh Kumar Vs. State of Chattisgarh reported in (2001) 9 SCC 618 while deciding the issues related to the requirements of Section 306 of IPC had observed thus:-
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.
In State of West Bangal v. Orilal Jaiswal and Anr., [ 1994] 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.
Sections 498-A and 306 IPC are independent and constitute different offences. Though depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498-A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary Article A is that of dying declarations. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on page 11 of diary (Article A) clearly states that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares - none to be held responsible or harassed for her committing suicide. The writing on page 12 of diary (Article A) clearly suggests that some time earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise from her that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished and wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Exbt. P/10 corroborates the inference flowing from the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his wife to hospital also improbabilises the theory of his having abetted suicide.
In the case of Gurjit Singh Vs. State of Punjab reported in 2019 STPL 13885 SC quoting Mangat Ram Vs. State of Haryana, (2014) 12 SCC 595 the Hon'ble Apex Court had observed that:-
"25. In Mangat Ram vs. State of Haryana this Court observed thus:
"28. We have already indicated that the trial court has found that no offence under Section 304B IPC has [(2014) 12 SCC 595] been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been framed on that section against the accused. The scope and ambit of Section 306 IPC has not been properly appreciated by the courts below. ...........
Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide."
Relying upon the principles enunciated by the Apex Court in the above authoritative judgements, I am of the opinion that the Courts have to be extremely careful in evaluating the facts and circumstances of each case or the chain of circumstances to ascertain whether the extent or gravity of torture was only aimed to force the victim to commit suicide. The Court must be cautious that if the victim committing suicide appears to be hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which he or she belongs and such factors were not expected to induce a similarly circumstanced individual to resort to such a step, the accused charged with abatement could not be held guilty.
On overall assessment of the evidence on record, as outlined here-in-above, in my considered view, there is no such evidence emanated from the deposition of the prosecution witnesses that the appellants had tortured or caused any harm or injuries to the deceased at any point of time during their marriage life so as to instigate, provoke or force her to commit suicide.
On cumulative reading of narration of facts in the FIR and the evidence as culled out from prosecution witnesses, it manifests that the case in hand suffers from serious shortfalls of incriminating circumstances that the appellants had been instigating the victim or intentionally aiding by their acts and conduct to drive her to commit suicide. Further, there is no element of conspiracy as surfaced from the prosecution story and that out of such conspiracy the appellants had played an active role to cause any grievous hurt or injury in her limbs or any body part thereof only with the intendment to force/compel her to commit suicide.
In the instant case, the whole genesis of the case emerged out of demand of dowry, and that brought the theory of torture as projected by the prosecution. The findings returned by the Trial Court discarded the fact of demanding dowry. Once, the fact of dowry is washed off or thrown away, the prosecution is put to strict proof to meet the essential requirements of "abetment" as defined in Section 306 of IPC having due regard to the meaning of "cruelty" under Section 498-A of IPC as encrypted in the preceding paragraphs. I reiterate that the proof of wilful acts and conduct driving the woman to commit suicide is a sine qua non for entering into a finding of "cruelty" against a person or persons charged. In furtherance thereof, the conduct will be such a degree that it only points towards the commission of suicide or to cause any grievous hurt or injury or danger to life, limb or health, whether mental or physical.
The evidence, as emanated in the instant case, if carefully screened, then, it appears to the Court that the deceased was hypersensitive in nature and in that case, it would not be appropriate for the Court to punish or convict the accused-appellants for committing offence under Section 306 of IPC. I have already held that the prosecution has miserably failed to establish the charge under Section 498A levelled against the appellants for the reasons that the prosecution witnesses had failed to place on record and to adduce any reliable and cogent evidence to substantiate the ingredients of "cruelty" and ―abetment‖, least to say, its extent and gravity of the nature of torture inflicted upon the deceased by the appellants at any point of time during her marriage life of six and half years. Furthermore, the prosecution has miserably failed to project a case that the deceased was subjected to such a degree of torture which compelled her to commit suicide. From the discussion of above evidence, it is surfaced that the nature of altercation as evinced appears to this Court as normal wear and tear of a family life which do not fall within the purview of Section 306 of IPC read with Section 498A of IPC.
Having held so, the instant appeal deserves to be allowed. Accordingly, it is allowed. The impugned judgment and order of conviction and sentence passed by the learned Sessions Judge as aforestated are hereby set aside and quashed. The appellants are consequently acquitted. It has been informed before the Court that the appellants are on bail and as such, their bail bond is discharged. Consequently, their surety also has been discharged.