T.S. Doabia, J.
1. The State has preferred this appeal against a judgment of acquitial. The respondent was charged under Section 306 of the Indian Penal Code. The broad facts which are apparent from the prosecution version be noticed.
2. One Sumitra was the victim. On 6th of June, 1983, at about 6.30 p.m. she was seen rushing out of her house. She was on fire, she fell down on the public road outside her house. Large number of persons got collected there. The fire was extinguished with the aid of gunny bags. She was taken to the hospital. Her condition was critical. She died on the next day.
3. The prosecution version is that Matadeen and Sunita deceased were not married but they were staying as husband and wife. On the fateful day, there was some quarrel between the two. Matadeen hit Sumitra on her head with a silvetta. He told her to kill her-self. On this, Sumitra is said to have put kerosene on her body. She put herself on fire. The match box for putting her aflame was said to have been provided by Matadeen.
4. In the hospital, a dying declaration was recorded. This is Exhibit P/6. It was recorded by Naib Tehsildar (P.W. 6). The trial Court found discrepancies in the statements of witnesses. Without discussing the impact of the dying declaration and the statement of Naib Tehsildar (P.W. 6), a judgment of acquittal was recorded. Before examining as to whether the finding recorded by the Court below are such which calls for no interference, the evidence which has been brought on the record be examined in brief.
5. P.W. 6, Onkarlal, is the person who has recorded the dying declaration. He appeared as P.W. 6. He was a Naib Tehsildar. He stated that in the month of June, 1983 (6-6-1983), he was posted as Naib Tehsildar and also as Executive Magistrate in Gwalior. A lady by the name of Sumitra, aged 35 years, resident of Chawadi Bazar, was admitted in J. A. Hospital, Lashkar, Gwalior. She made a statement before him. This is Exhibit P/6. This was signed by this witness as also by the doctor by the name. M. S. Ahmad. This doctor was on duty. According to this witness, he recorded the statement as per the version given by the deceased Sumitra. Before noticing what Sumitra dictated, the examination to which this witness was subjected to, may also be noticed. He stated that the dying declaration was written in his hand. The fact that she had put herself to fire on account of suggesation having been given by Matadeen stands recorded. He repeated that whatever was written in exhibit P/6 was written as per the wording suggested by Matadeen. There was no addition or sub-straction. He was asked a question about the gap between recording of Ext. P-6 and Sumitra deceased putting herself on fire. Regarding this, this witness was not able to give any information Ex. P/ 6 be also noticed: when rendered in English it reads as under:-
'I state on oath that I had a quarrel with my husband. He hit me on my head with a silvetta and told me as to why I do not kill myself. I put myself on fire in anger.'
There is a certificate on Ext. P-6. This has been given by the doctor. It read as under:-
Certified that patient Sumitra Bai. Mata Prasad Kannoji, R/o Chawadi Bazar has been examined by me. I found her fully conscious and fit for giving her statement. She is not under any sedation or any toxic effect of any drug.'
6. The statements of other witnesses be now noticed.
7. P.W. 10, Suresh has made a statement to the effect that at about 5 p.m. in the evening, he heard some noise to the effect that there is a fire on the locality. He looked towards the house of Matadeen. Matadeen was seen rushing out of his house by this witness. He was followed by Sumitra. They came out of the same door. Sumitra who was on fire fell on the road. This witness and other witnesses made an effort to put off the fire by putting jute bags on her. She was taken to the hospital. According to this witness. When an effort was being made to put off the fire, Sumitra told that Matadeen had hit her with a silvetta and told her to go and die and in anger she had put kerosene on herself. She further stated that the matchstick for putting her on fire was made available by Matadeen. In examination, this witness stated that Sumitra is related to him. She is his maternal aunt, (Mousi). According to this witness, they were on visiting terms. This witness denied the suggestion that Matadeen's hand was also burned. He denied the suggestion that he brought out Sumitra from her house. When he reached the spot, the door of the house of Sumitra was open, Balwantsingh was also there. He denied the suggestion that the statement of Sumitra was taken by the tehsildar in his presence.
8. The statement of another witness Balwant Singh (P.W. 7) be also noticed. He knew Sumitra As a matter of fact, acording to him, she was his sister-in-law Earlier; Sumitra Was staying at Delhi, She came to Gwalior. This witness stated that this Sumitra was a mistress of Matadeen. He stated that about a year and half earlier to the recording of the statement, he heard the noise that there is a fire in the locality. The people living in the nearby locality, had collected at the door where Sumitra was used to stay. The people who had gathered there were knocking at the door. The door was opened by Matadeen and he ran away. When the door was opened they found that smell of some thing burning was coming. As soon as the door opened, Sumitra also came rushing out. She was on fire. She fell on the road. She was covered with jute bags and was taken to the hospital. As per this witness - Sumitra died on the next day. On enquiring as to how the whole thing had happened, Sumitra had informed this witness that Matadeen had shut the door and gave beating to her with a silvetta. He told her to go and die. She put kerosene with a view to burn herself. This witness also stated that there was altercation between Sumitra and Matadeen. He was unable to say as to whether. Sumitra had put herself on fire on account of being tired of this way of living. In cross-examination, this witness stated that he had no knowledge that they had been quarrelling. He was not sure, if they were quarrelling while inside the house. He denied the suggestion that he was on enimical terms with Matadeen. He admitted that he never intervened in the matter and never made any suggestion to Matadeen to not to maltreat Sumitra. According to him, he came to know that fire has taken place at Sakkobai's house wherein Sumitra was a tenant. He reached there along with his wife. When this witness reached the spot, large number of people had already collected there. His statement was recorded by the police on the date of occurrence. He stated that he did not inform the police that he was in his house when Sumitra was on fire. He stated! that he did inform the police that first Matadeen came out of the room, after opening the door and thereafter, Sumitra came As to why this was not so recorded by the police, this Witness was unable to explain He also stated that he never gave any statement to the police that when he reached the spot. Sumitra was lying burnt. He, however stated that as to how this incident took place was narrated by Sumitra in the hospital to the tehsildar during his present. Two other persons were present there but as to who they were was not in the knowledge of this witness. He had also given a statement that Sumitra had informed that Matadeen had shut the door and hit her with a silvetta and then, she had put herself on fire.
9. From the evidence which has been summarised above it becomes apparent.
(i) Matadeen and Sumitra were staying together.
(ii) They used to have quarrels.
(iii) On 6-6-1983 Matadeen hit Sumitra with a Silveta.
(iv) Matadeen told Sumitra that she can go and kill herself.
(v) Sumitra poured kerosene on her body.
(vi) No step was taken by Matadeen to dissuade her from setting herself on fire.
(vii) instead of persuading her to desist, Matadeen supplied her match stick (see statement of Suresh) P.W.10.
(viii) Dying declaration is Ext. P-6.
10. The learned counsel for the respondent has argued that the evidence brought on the record by the prosecution cannot be believed. He has further argued that even if the evidence which has been brought on the record is believed even then, the case of abetment would not be made out.
11. He has placed reliance on Mahaveer Singh v. State of M.P., (1987) Jab LJ 645. The law which has been laid down in this case is that there must be evidence to suggest that there was some incitement or some instigation suggesting the deceased to commit suicide. In the aforementioned judgment reliance was placed on some decision of the Punjab and Haryana High Court. These are noticed in para 11. This para be noticed.
The technical question is whether the offence Under Section 306 of the Indian Penal Code was made out against, the appellants. This offence is described in the Penal Code as follows:-
'306. Abetment of suicide.- If any person commits suicide, whoever acts 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.'
In Chambers 20th Century Dictionary, the word 'abet' has been defined to mean 'to incite by encouragement or aid (used chiefly in a bad sense), to back up'. A Division Bench of the Punjab and Haryana High Court in Rajkumar v. The State of Punjab, (1983) 1 CLR 660 : (1983 Cri LJ 706), has very elaborately interpreted the definition of 'abetment' of an offence. Their Lordships were pleased to hold that expression instigate in the Concise Oxford Dictionary is defined as to 'urge or incite, bring about the persuasion, and in Webster, it has been defined as urge forword, provoke with synonyms of stimulate, urge, spur, provide, tempt, incite, impel, encourage, animate. The word 'instigate' in common parlance would mean to go to urge forward or provoke, incite, or encourage to do an act.' This case has been followed by the said High Court in the case of Rajkumar v. State of Punjab, (1985) 1 Crimes 398 and Malkiat Singh v. State of Punjab, (1985) 1 Crimes 249. I have no reason to differ from the interpretation given by the Punjab and Haryana High Court to the word 'abetment' in the present context. While in course of the arguments, the learned counsel for the appellants also referred to the case of Chanchal Kumari v. Union Territory, Chandigarh, 1986 Cri LJ 816 : (AIR 1986 SC 752), wherein their Lordships of the Supreme Court have mainly dealt with the factual aspect relating to the non-dependability of the evidence adduced in that particular case in order to prove the offence punishable Under Section 306, I.P.C. In the present case also, so far as it relates to the factual aspect, the evidence as adduced by the prosecution could not, as a whole, be termed so 'dependable' as to warrant conviction thereon.
12. The other decisions on which reliance has been placed be also noticed :-
In Panchram and Samailal v. State of M.P., 1971 Jab LJ (SN) 80, the prosecution story was that the accused had developed a love affair with another lady and he started neglecting his wife. With this neglect being shown by the husband, the wife drenched herself with kerosene oil and burnt herself. This Court came to the conclusion that offence Under Section 306 could not be said to be made out. The requirement to show that positive steps were taken with a view to induce the person concerned to commit suicide was held to be imperative.
In Tej Singh v. State of M.P., 1985 Cri LJ 202, it was observed that merely because evidence is brought on the record that there was some quarrel between the accused and the person who committed suicide, this would not amount to abetment.
To the same strain is the view expressed in Mahaveer Singh v. State of M.P., 1987 MPLJ 403.
Basant Kumar v. State of M.P., 1991 Jab LJ 175, is again an authority for the proposition that mere misbehaviour on the part of the accused cannot be equated with abetment.
In Deepak v. State of M.P., 1994 Cri LJ 767, in a dying declaration it was stated that accused had entered her room and caught hold of her and asked her to allow them to have sex and when she refused they threatened to defame and to rape her. The accused did not commit sexual intercourse with her. One hour after this incident, she poured kerosene on her body and set herself afire. It was held that, that a case Under Section 306 cannot be said to have been made out.
In Dinesh Chandra v. State of M.P., 1988 (2) MPWN 84, the person who committed suicide made a statement to the effect that 'he wants to put an end to his life as he is being harassed by his father, brother and sister-in-law'. He had further stated that he is going to a place where there would be none to harass (pareshan) him. This was held to be outside the purview of Section 306.
A recent decision of the Supreme Court reported as Mahendra Singh v. State of M.P., 1995 AIR SCW 4570, may also be noticed. In this case, the charge Under Section 306 of the Indian Penal Code was based on a dying declaration of the deceased. This stands reproduced in the judgment of the Supreme Court and the same be noticed :
'My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.'
It was held that in the absence of positive instigation no case could be said to have been made out Under Section 306.
13. Thus from the judicial precedent cited above, it becomes apparent that in order to constitute abetment, the prosecution has to prove that there was some positive step taken by the accused. A suggestion or an overt act is a must. If this is established only then the accused can be held guilty Under Section 306, IPC. In the present case, the statement of P.W.10 has been noticed above. What he said be recapitulated again. In paras 2 and 3 of his statement, he has made a categoric statement that he was in his house. He heard noise outside his house. He came out of his house. On looking towards the house he saw Matadeen was seen rushing out. He was followed by Sumitra. She was on fire. She fell on the road. This witness and others with the aid of gunny bags put off the fire. Sumitra was taken to hospital. Sumitra is said to have made a statement to the effect that Matadeen hit her with a silvetta on her head. He told her that she should go and kill herself. On this, she poured kerosene on herself. Had this been the only part attributed to Matadeen, then, something could have been said in his favour. The decisions quoted above might have had come to his rescue. The further statement of this witness is that it was Matadeen who provided Sumitra, with a match stick. If this be the situation then this is a case which clearly falls within the mischief of abetment. There was a positive suggestion to Sumitra to kill herself. He provided the match stick. This would come within the purview of Section 306,
14. The learned counsel for the respondent has pointed out that there is variance in the statement of the prosecution witnesses. This aspect of the matter be also noticed.
15. P.W.7 has merely stated that there were some bad relations between Matadeen and Sumitra. Nothing has been said further. The question of variance as such does not arise. So far as witness P.W.7, Balwant Singh is concerned, he has supported the story regarding Matadeen hitting Sumitra with a silvetta and that Sumitra had poured kerosene on her. He further stated that Sumitra had put herself on fire. He is silent about the story regarding supply of match-stick. May be he had not heard this part of the statement at the relevant time. Therefore it cannot be said that there is any contradiction between the statement of P.W.3, P.W.7 and P.W.10.
16. Shri Govind Singh, Addl. Advocate General has argued that not only there is evidence of positive steps having been taken by the respondent Matadeen but according to him even negative attitude is not persuading Sumitra to go ahead with his suggestion and watching as silent spectator would establish the guilt of the respondent. He submits that on the basis evidence which has come on the record of the case, a case of abetment is made out. To repeat, Matadeen is said to have given a suggestion to Sumitra that she should kill herself. When she acted on this suggestion of Matadeen then it was incumbent upon him to see that she did not fulfil this desire of her. Matadeen was in the company of Sumitra. He having not taken any step with a view to pursuade Sumitra to not to act on his earlier suggestion would suggest that he encouraged Sumitra and would be guilty Under Section 306, I.P.C. There is merit in the contention of the learned Additional Advocate General. Had after the altercation, Matadeen left the premises and Sumitra had put herself to fire after some gap of time, then, the situation might have been different. This is not the position in this case. She acted on the suggestion that (sic) Matadeen, she droused herself with kerosene. No attempt was made by Matadeen to pursuade her to not to take any further step. On the other hand he provided her with a match-stick. The earlier positive suggestion and the later negative attitude adopted by him in not dissuading her to go ahead with his earlier suggestion to put herself to fire would bring his case within the mischief of Section 306 of the Indian Penal Code. There is no escape from the conclusion that Matadeen had committed an offence Under Section 306 of the Code and he is liable to be convicted accordingly.
17. The learned counsel for the respondent has further argued that there is nothing on the record that the deceased was in a fit condition to make statement regarding which reference has been made by the various P.W.5. It be seen that regarding this aspect the witnesses were not subjected to cross-examination.
18. On the question of sentence, the learned counsel for the respondent had argued that the case is old, and therefore, the respondent should not be sent to jail. I am of the view that this is a case where respondent was instrumental in bringing a situation where Sumitra committed suicide. Had he made any effort to persuade not to go ahead with her plan and he had not provided the match-stick, she would not have died. There is no justification in not awarding jail sentence. The respondent to undergo jail sentence of four years rigorous imprisonment. He is sentenced accordingly. State appeal is allowed.