(Common Prayer: Criminal Appeal is filed, under Section 378 of Cr.P.C., to set aside the conviction and sentence passed by the Principal Sessions Court, Virudhunagar District at Srivilliputtur in S.C.No.120 of 2005, dated 13.09.2006.)
1. The sole accused in the Sessions Case in S.C.No.120 of 2005, on the file of the learned Principal Sessions Court, Virudhunagar District at Srivilliputtur, is the appellant.
2. He was tried for a charge for under Section 302 IPC. After trial, the Court recorded conviction, under Section 306 IPC., and sentenced him to three years R.I and also fined him Rs.500/-, in default, to undergo three months simple imprisonment. He has paid the fine amount.
3. The case of the prosecution briefly runs as under:-
(1) Around 2002, the appellant had married the deceased. She is the daughter of P.W.4. P.W.4's other daughter and son are P.W.1 and P.W.5. The appellant and the deceased were living in Palayampatti Village in Virudhunagar District. They were blessed with a child. However, not with a happy married life. There used to be frequent quarrel between them.
(2) In this background of the matter, on 26.12.2004, at about 12 noon, in her house, the deceased was found with burn injuries. She was taken to the Government Hospital, Aruppukottai. On hospital intimation, P.W.11 Mariappan, then Inspector, Aruppukottai Town Police Station, visited the said Hospital. He recorded Ex.P13, statement from the patient. Based on that, he registered this case (Ex.P.14 FIR) under Section 307 IPC.
(3) P.W.11 took up his investigation. He visited the scene place. Prepared Ex.P.16 observation mahazar in the presence of P.W.10 and another person. He drew Ex.P15 rough sketch of the scene house. He recovered M.O.3, a 5 litter can under Ex.P17 seizure mahazar in the presence of said witnesses. He had also seized burnt cloths M.Os.1 and 2 ( Ex.P17 seizure mahazar).
(4). On hospital intimation, P.W.9 then Special Tahsildar, Aruppukottai, on 26.12.2004, at about 7 p.m., visited the hospital. He recorded Ex.P10 dying declaration from the patient. The deceased told him that her husband had poured kerosene upon her and set fire on her.
(5). On 27.12.2004, at about 9 a.m., P.W.11 arrested the accused. Sent him to Court for judicial custody. On 06.01.2005, at the hospital, the deceased passed away. (Ex.P19 death intimation). In the circumstances, PW.11, altered the Section of law to Section 302 IPC. He submitted Ex.P20 alteration report to the Court. As the deceased had died within seven years of her marriage, P.W.8, R.D.O., Aruppukottai, conducted inquest over her dead body. After him P.W.7, R.D.O., continued the inquest (inquest report Ex.P7). P.W.11 recorded the statement of the material witnesses under Section 161 Cr.P.C.
(6). On the request of P.W.11, P.W.6 the Doctor, conducted postmortem on the dead body of the deceased. P.W.6 opined that she died of burn injuries (Exs.P3 and P4 Postmortem certificate and final opinion).
(7). Concluding his investigation, P.W.11 filed the final report in the committal Court, under Section 302 IPC., as against the appellant.
4. As the offence alleged is exclusively trial by a Court of Sessions, after completing the statutory formality, under Section 207 Cr.P.C., the learned Magistrate committed the case to the Court of Principal Sessions Judge, Virudhunagar District at Srivilliputhur, under Section 209 Cr.P.C.
5. The learned Sessions Judge upon hearing both sides and on consideration of the case records, framed a charge under Section 302 IPC and questioned the accused. The accused pleaded not guilty to the charge.
6. To substantiate the charge, prosecution examined P.Ws.1 to 11 marked Exs.P1 to 20 and exhibited M.Os.1 to 3.
7. The trial Court examined the accused on the indiscriminating aspects appearing in the prosecution evidence. He denied his complicity in this case. He did not let in any defence evidence.
8. Upon considering the evidence, the trial Court recorded a conviction under Section 306 IPC., sentenced him as already stated.
9. According to the learned counsel for the appellant, the trial Court had disbelieved the prosecution case of murder under Section 302 IPC. It held that the charge under Section 302 IPC is not made out. In such circumstances, without a charge framed under Section 306 IPC., convicting the accused under Section 306 IPC., is not in accordance with law.
10. The learned counsel for the appellant further contended that even as per the evidence adduced, an offence under Section 306 IPC., is not made out. Because, there is not even an iota of evidence to the effect that the appellant had abetted commission of suicide by his wife. Thus his conviction under Section 306 IPC., also will not stand.
11. On the other hand, the learned Government Advocate (crl.side) submitted that as the evidence of P.W.1 and of other witnesses disclosed that the accused has harassed the deceased and unable to bear his harassment, she has committed suicide, rightly he was found guilty under Section 306 IPC. Accordingly, he was punished.
12. I have anxiously considered the rival submissions, perused the impugned judgment and the entire materials on record.
13. Now, the question is whether the prosecution has established an offence under Section 306 IPC., as against the accused beyond all reasonable doubts.
14. The appellant and the deceased are spouses. On 26.12.2004 after noon, in her matrimonial home, in Palayampatti Patti, in Virudhunagar District, the deceased was found with extensive burn injuries.
15. Prosecution alleged that the accused had poured kerosene upon her and set fire to her. Thus the accused was tried for a charge under Section 302 IPC.
16. On the same day, at about 7 p.m., at the Government Hospital, Aruppukottai, P.W.9 Tahsildar recorded her declaration (Ex.P10) that her husband has poured kerosene upon her and set fire to her. P.W.11 Inspector / Investigation Officer at the Hospital recorded Ex.P.13 statement from the her, she made similar statement to him. Ex.P.10 is her dying declaration under Section 32(1) of the Evidence Act and Ex.P13 also become her dying declaration under Sections 32(1) Evidence Act, r/w Section 162(2) Cr.P.C.
17. A dying declaration is a statement made by a person at his death bed. It is the last word of a dying person. Although it is hearsay evidence, as it has been made behind the back of the accused it becomes admissible under Section 32(1) of the Evidence Act. A sole dying declaration itself is enough to convict a person. Corroboration is not a condition precedent to act upon a dying declaration. As so much importance is attached to a dead man's statement, it must be true, genuine, it should not be born out of tutoring. It must be unimpeachable. It should not be unnatural. A dying declaration must be evaluated like any other piece of evidence. Above all, at the time when dying declaration was given, it must be proved that the declarant was conscious oriented,
18. Now, in this case, in her Ex.P13 complaint and in her Ex.P10 she had implicated her husband.
19. P.W.1 the sister of the deceased, in her chief examination, states that she had seen her uncle viz., her sister's husband / appellant pouring kerosene upon her sister and setting fire on her. However, in her cross examination, P.W.1 admits that after quarrel between the spouses, the accused went out of the house, she (P.W.1) had stopped the TV and she also came out of the house, thereafter, after hearing the shrieks of the deceased, P.W.1 went inside the room, only thereafter, the accused, who was then carrying his child rushed to the room and tried to put out the fire on his wife. P.W.3 also stated that at about that time, when they were playing 'Dayam' game on the pial of a nearby house, the accused was staring at the game carrying his son, only after hearing the sound from his house, the accused rushed to his house. P.W.1 was not declared hostile and was cross examined by the prosecution. Although P.W.3 was declared hostile his evidence cannot be thrown out because he has turned hostile as the evidence of an hostile witness also is to be evaluated like evidence of any other witness. When we see the evidence of P.W.3, it corroborates the evidence of P.W.1. Thus their evidence shows that, when the fire incident took place inside the matrimonial home of the deceased, the accused was not there. Thus Exs.P13, 10 dying declarations are not free from doubt. It is quite hazardous to rest any conviction based on such dying declarations.
20. Now, we shall see whether an offence under Section 306 IPC., is made out. 'Murder' and 'abetment of suicide' although relates to death of a person both are different. The mensrea for murder is prescribed in Section 299 IPC., viz., intention to commit murder, knowledge, sufficient to cause death or knowledge that in the ordinary course of event the overt act is likely to cause death. However, for an offence under Section 306 IPC., in the light of Section 107 IPC., there must be intention on part of the accused to abet, namely provoke, instigate, pressurize the deceased to commit suicide. Thus, the ingredients for both the offences are different. Throughout the trial the accused had concentrated on defending himself on the charge framed against him under Section 302 IPC. He would not have thought of defending himself for an offence under Section 306 IPC. This is one aspect of the matter.
21. For convicting the appellant under Section 306 IPC., the trial Court had referred to the evidence of P.Ws.1, 4 and 5, who are sister, father and brother respectively of the deceased. They are to the effect that the accused has not properly taken care of the family, he was not providing necessary money to the deceased to run the family, there used to be frequent quarrel between them, very often she used to come to her parents house, they used to console her and leave her in her husband's house. Similarly, one day before the occurrence, as usual P.W.5, left his sister in the scene house. P.W.1 also said that at the occurrence time, her deceased sister demanded sufficient money from her husband / accused to run the family and on account of that quarrel arose between both. Thus, there used to be quarrel between the spouses because the accused has not provided necessary money to run the family.
22. Now, on the above basis, can a person be punished under Section 306 IPC., is the question now arises before us.
23. In the Indian Penal Code, 1860, in Chapter XIV, in Section 306 I.P.C. 'abetment of suicide' has been made an offence.
17. Section 306 I.P.C. runs as 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.
24. The twin requirements for an offence under section 306 I.P.C. are (1) Suicide and (2) Abetment to commit suicide.
25. In Section 306 I.P.C., the word 'abetment' has not been defined or explained. In Concise Oxford English Dictionary (XI Edition 2004), 'Abetment' (Abet, Abets, Abetting, Abetted, Abettor) has been explained as 'encourage or assist (someone) to do something wrong in particular to do crime'.
26. In Indian Penal Code, in Chapter V (Abetment), in Section 107 'abetment of a thing' has been explained. Though the word 'abetment' has not been defined in section 306 I.P.C., to understand its meaning, we can refer to section 107 I.P.C.
27. Section 107 I.P.C. runs as under:
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 thing.'
Explanation: 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 thing.
28. It is seen that in statutorily explaining the word 'abetment' (See section 107 I.P.C.) what the word abetment connotes in general English has been kept in view.
29. In Rattanlal and Dhirajlal's 'commentaries on the Indian Penal Code' (32nd Edition) (2010), at page 1735 - 1736, 'abetment', has been commented as under:
2. Abetting Suicide
The gravamen of the offence punishable u/s 306 I.P.C. is abetting suicide. Section 107, I.P.C. defines abetment as comprising:
(a) instigation to commit the offence;
(b) engaging in conspiracy to commit the offence, and
(c) aiding the commission of an offence.
Abetment thus necessarily means some active suggestion or support to the commission of the offence. The word 'instigate' literally means to goad, urge forward, provoke, incite or encourage to do an act and a person is said to instigate another when he actively suggests or stimulates him to the act by any means, or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. It is also not necessary that the instigation should be only in words and may not be conduct.
30. In Randhir Singh and Another v. State of Punjab AIR 2004 SC 5097 : (2004) 13 SCC 129 the Hon'ble Supreme Court observed as under:
Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In case 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.
31. In Ramesh Kumar v. State of Chhattisgarh AIR 2001 SC 3837 : (2001) 9 SCC 618 : LNIND 2001 SC 2368 'instigation' has been explained by the Hon'ble Apex court as under:
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.
32. In S.S. Chheena v. Vijay Kumar Mahajan and Another (2010) 12 SCC 190 : LNIND 2010 SC 746 the Hon'ble Apex Court observed that:
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 cases decided by the Supreme Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to 6 commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
33. In Amalendu Pal @ Jhantu v. State of West Bengal (2010) 1 SCC 707 : LNIND 2009 SC 1978 the Hon'ble Apex Court has opined as under:
12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which let or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
34. The offence of abetment requires 'mens rea' (guilty mind). There must be intentional doing/aiding or goading the commission of suicide by another. Otherwise, even a mere casual remark, something said in routine and usual conversation will be wrongly construed or misunderstood as 'abetment'.
35. In Gangula Mohan Reddy v. State of A.P. AIR 2010 SC 327 : (2010) 1 SCC 750 : (2010) 1 SCC (Cri.) 917 : LNIND 2010 SC 3 : (2010) 2 MLJ (Crl) 410, it was held that to attract section 306 I.P.C., there must be clear 'mens rea' to commit offence.
36. In M. Mohan v. State by D.S.P., Karaikudi (supra) the Hon'ble Supreme Court observed as under:
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 cases decided by this court are clear that in order to convict a person under section 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/she committed suicide.
37. Sometimes, the decision to commit suicide might be taken by the victim himself/herself, unaccompanied by any act or instigation etc. on the part of the accused. A person may die like a coward. On his failure in the examination, a student may commit suicide. They are weak minded. They are persons of frail mentality. For their foolish mentality/decision, another person cannot be blamed.
38. Thus, for an offence under Section 306 IPC., there must be two ingredients. One is there must be suicide. In this case, when Exs.P13 and P10 dying declarations are not relied on, its fallout would be that the deceased has committed suicide by self immolation. So, the first part of the ingredient to Section 306 IPC., is established.
39. The next part is, whether by not providing the required money to the deceased to run the family, the accused has abetted her commission of suicide. Suicide is stated in Section 306 IPC. But what 'abetment' means is not stated in Section 306 IPC. Then necessarily one has to refer to the word, 'abetment' used elsewhere in the Indian Penal Code. So, we have to look at Section 107 IPC., where the word, 'abetment' has been employed and explained. As per the dictionary meaning, it means provoke, aid, instigate a person to do an act or omit to do an act, which he is legally entitled to do. If one read Section 107 IPC., there would be similar meaning for the very same word, 'abetment' used in 306 IPC., we have to arrive at the same meaning.
40. There must be 'mensrea' for an overt act. Even for the allegation that a person has instigated, provoked another person to commit suicide, there must be intention on the part of the accused to do so. It is not the wish of the victim to commit suicide. The requirement of mensrea will be attributed only to the accused. There cannot be mensrea for a victim in criminal law. There must be intention or desire on the part of the accused that the victim should commit suicide, die.
41. Now in this case, it is established that the deceased was not happy that her husband was not given her necessary money to run the family. So, she committed suicide. It is pertinent to note that the accused never thought, not even dream of that his wife should commit suicide. There is no intention on his part that his wife should bid good-bye to this world. The decision to put an end to her life has been taken by the deceased herself unaccompanied by any required overt act, as prescribed in Section 306 r/w 107 IPC., came for the accused. She had taken a foolish decision. For her foolish act, the accused cannot be punished.
42. It is nobody's case that the accused has abetted commission of suicide by his wife. It is the invention of the learned Sessions Judge. It is his own creation, dehorse the law viz., Section 306 IPC. However, it is not that when a charge fails, even if the evidence adduced establishes another offence, the trial Court has no power to punish a person. But, even under such circumstances, punishment must be for the proved offence as prescribed under penal law.
43. In the facts and circumstances, an offence under Section 306 IPC., is not attracted. In such circumstances, recording of conviction under Section 306 IPC., as against the accused is against law.
44. In view of the forgoings, this criminal appeal is allowed. The conviction under Section 306 IPC., and the sentence awarded are set aside. The accused is acquitted under Section 306 IPC. Fine amount paid already shall be refunded to him. Appeal bail bond executed by him as well as by the the sureties shall stand cancelled.