Garg, J.@mdashThis appeal has been filed by the accused appellant from jail against the judgment and order dated 18.11.1999 passed by the learned Additional Sessions Judge, Bhinmal in Sessions Case No. 90/99 by which the learned Additional Sessions Judge, Bhinmal convicted the accused appellants for offences under Sections 498A and 306 IPC and sentenced as follows:
|
Offence |
Sentence awarded |
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U/Sec.498A 1PC |
2 years'' R.I. and a fine of Rs. 1000/- in default to further undergo 3 months'' R.I. |
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U/Sec.306 IPC |
5 years'' R.I. and a fine of Rs. 2000/- in default to further undergo 6 months'' R.I. |
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Both the sentences were ordered to run concurrently. | |
2. That since this appeal was preferred from Jail and nobody was representing the accused appellant, therefore, Legal Aid Committee vide order dated 30.9.2000 appointed Shri B.K. Bhatnagar as Amicus Curiae to assist the Court on behalf of accused appellant.
2A. It arises in the following circumstances:
(i) That on 16.1.99 at 5.45 p.m. Smt. Chothi w/o Rewa Ram, by caste Mochi, resident of Jag Jeevan Ram Colony, Bhinmal (hereinafter referred to as "the deceased") gave statement Ex.P/10 while she was admitted in the hospital Bhinmal before P.W.9 Gopal, SHO, Bhinmal stating as under:
"18. years have passed since my marriage. I have burnt myself. My husband Rewa (Accused appellant) is in habit of drinking liquor and for that he demands money. My husband was sleeping after drinking liquor. My husband beats me and nobody comes to save me. My neighbourers Joga Bhat and Mohan Mochi P.W.5 also sell liquor and they also abuse me and they also some time come to beat me. I am living separately from my in-laws and my brother Mata Ram P.W.1 lives in Bhinmal with her father-in-law. My parental house is in Jalore. My mother and father are not alive. I have poured kerosene oil on my body and thereafter lit fire by matchbox. I am very much disturbed because of my husband and neighbourers and have burnt myself as I was being tortured by my husband, Joga Bhat and Mohan Mochi, P.W.3 I have 3 sons and 3 daughters. Ail daughters have died and since I was mentally disturbed because of my neighbourers and my husband, I have burnt myself by sprinkling kerosene oil."
3. It may be stated here that this statement bears endorsement of P.W.7 Dr. K.K. Goswami at the place A to B and on this statement, police registered a case for offence under Sections 309 and 498A IPC and chalked out FIR Ex.P/11.
4. On 16.1.99 P.W.9 Gopal made a request through his letter Ex.P/2 before P.W.6 Buddhi Prakash Chhangani that since deceased was admitted in the hospital in burnt condition, therefore, her statement be recorded. On this P.W.6 Buddhi Prakash passed an order on the back of letter Ex.P/2 on 16.1.99 and he proceeded to Hospital. He reached the hospital at about 6.20 p.m. where dying declaration (Ex.P/3) of the deceased was recorded by him at 6.25 p.m. on the same day, where the deceased stated to him in the following manner:
"My husband beats me every day and asks me to bring money for liquor otherwise he will push her out. I am ill for last one month and my husband told me to go out of the house otherwise he will kill me. I have burnt myself by pouring kerosene oil and lit fire. My husband was sleeping. Apart from my husband, no body beats me. My marriage took place about 18 to 20 years back. My neighbourers do not come to save me. My husband does not give me treatment for my illness. Only once, he took me to doctor. My neighbourers do not beat me."
5. Further the case of prosecution is that on the same day, the deceased was not got medically examined on 16.1.99 at 5.25 p.m. and her injury report is Ex.P/7 which shows that she received 80% burns on her body and on the same day she died in the hospital at 9.20 p.m. and post mortem of her body was got conducted by P.W.7 Dr.K.K. Goswami on 17.1.99 and her post mortem report is Ex.P/8 as per which cause of death was extensive burns (this post mortem report Ex.P/8 has been admitted by the learned counsel for the appellant in the trial court.). Ex.P/1 shows that deceased expired at 9.20 p.m. on 16.1.99.
6. The accused appellant was arrested through Fard Ex.P/9 on 30.3.99. After usual investigation, a challan was submitted against the accused appellant for offence under Sections 306 and 498A IPC.
7. That the learned Additional Sessions Judge, Bhinmal framed charges on 30.8.99 against the accused appellant for offence under Sections 498A and 306 IPC who pleaded not guilty and claimed trial.
8. During trial, 9 witnesses have been produced by the prosecution and thereafter statement of accused u/s 313 Cr.P.C. was recorded wherein the accused has stated that her wife deceased was mentally ill for last 2 to 3 years and, therefore, because of her illness she committed suicide and he never gave beating to her. In defence, the accused appellant examined one witness.
9. After the conclusion of the trial, the learned Additional Sessions Judge, Bhinmal vide his judgment and order dated 18.11.99 convicted and sentenced the accused appellant as stated above inter alia holding that:
the deceased died in the abnormal circumstances i.e. by suicide and factum of suicide was not in dispute. He has placed reliance on two dying declarations Ex.P/10 recorded by P.W.9 Gopal SHO and Ex.P./3 recorded by P.W.6 Buddhi Prakash, Magistrate. He, has also sought corroboration from the oral evidence which is found in the statements of P.W.1 mata Ram, P.W.2 Himta Ram, P.W.3 Manchha Ram, P.W.4 Prakash, and P.W.5 Mohan Lal and thus he convicted the accused appellant for offence under Sections 306 and 498A IPC and sentenced him as stated above.
10. Aggrieved from the said judgment and order, this appeal has been filed by the accused appellant.
11. In this appeal, following submissions have been made on behalf of the accused appellant:
(i) That there is no evidence which goes to show that accused appellant in any manner abetted commission of suicide and if there is any past history of so called beating, then it does not amount to abetment.
(ii) That the prosecution has not been able to prove the fact that the deceased was in fit state of mind to give two dying declarations.
12. On the contrary, the learned P.P. has opposed the submissions made by the learned counsel for the appellant and submits that the judgment and order passed by the learned trial Judge do not call for any interference.
13. I have heard both.
14. To prove the charge of the offence u/s 306 IPC the prosecution has to prove the following two facts:
(i) The Commission of suicide by a person; and
(ii) The accused abetted the commission thereof.
15. To appreciate the above contentions, first medical evidence in this case has to be seen which is found in the statement of P.W.7 Dr. K.K. Goswami. So far as injury report Ex.P/7 and post mortem report Ex.P/8 are concerned, the same have been admitted by the learned counsel for the appellant appearing before the trial Court and from Ex.P/7 it appears that it was a case of 80% burns and from the post mortem report it is also clear that the deceased died because of extensive burns. It is also not in dispute that the incident took place in the noon on 16.1.99 and deceased died on the same day at about 9.20 p.m. in the hospital.
16. Thus from the post mortem report Ex.P/8 and from the statement of P.W.7 Dr. K.K. Goswami it appears that the death of deceased was unnatural one and since factum of suicide is not dispute and the same has been admitted by the accused appellant in his statement u/s 313 Cr.P.C. it is a case of suicidal death.
17. Thus, it can be concluded that the death of deceased was unnatural one in the shape of suicide.
18. The learned trial Judge in coming to the conclusion of guilt for offence u/s 306 IPC has relied on two sets of evidence, first is found in two dying declarations Ex.P/3 and Ex.P/10 and other is found in the statement of prosecution witnesses P.W.1 Mata Ram, P.W.2 Himta Ram, P.W.3 Manchha Ram, P.W.4 Prakash and P.W.5 Mohan Lal.
19. Now the most important question that arises for consideration in the present case is whether by his acts and deeds, the accused appellant has made that situation which resulted in the commission of suicide by deceased or not or in other words, whether accused appellant abetted the commission of suicide by deceased or not.
20. What is abetment, it has been defined in Section 107 IPC which reads as under:
"107. Abetment of a thing - A person abets the doing of a thing, who First - Instigates any person to do that things 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 of the doing of that thing; or
Thirdly - Intentionally aid, by any act or illegal omission, the doing of that thing.
21. The intention to aid the commission of the crime, is the gist of the offence of abetment by aid. In case of demand of dowry or illtreatment and beating, the case would be covered in first category i.e. instigating any person to do what thing.
22. In order to constitute abetment, the abettor must be shown to have "intentionally aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interpretation of the alleged abettor, is not enough compliance with the requirements of Section 107 IPC.
23. Before proceeding further and appreciating the evidence and findings of the learned trial Judge, something should be said about suicide.
On Suicide
24. Normally one would not commit suicide unless there are strong and compelling reasons for it. Thus, ordinarily there has to be a very pressing motive behind every case of suicide. That is why emphasis should be made as to why a person commits suicide and in this case, it has also to be probed why deceased has committed the suicide.
25. The constant fact of wailing and weeping is one of the important symptoms of an intention to commit suicide as mentioned by George W. Brown and Tirril Harris in their book "Social Origins of Depression" thus:
"Symptom Data
Depressed
1. Crying
2. Feeling miserable/looking miserable, unable to smile or laugh
3. Feeling of hopelessness about the future.
4. Suicidal thoughts
5. Suicidal attempts Fear/anxiety/worry
6. Psychosomatic accompaniments
7. Tenseness/anxiety
8. Specific worry
9. Panic attacks
10. Probias Thinking
11. Feelings of self-depreciation/nihilistic delusions
12. Delusions or ideas of reverence
13. Delusions or persecution/jealously
14. Delusions or grandeur
15. Delusions or control/influence
16. Other delusions, e.g. hypochondriacal worry
17. Auditory hallucinations
18. Visual hallucinations."
26. In Encyclopaedia of Crime and Justice (Vol.4) by Sanford H. Radish, the author mentions, thus:-
Other psychologically oriented theories have viewed suicide as a means of handling aggressive impulses engendered by frustration."
27. Suicide is intentionally taking of one''s life. In other words, suicide is the initiation of an act leading to one''s own death. Conventional wisdom decrees that suicide is the escape route for the abnormal. Person who commits suicide; can adopt different methods in committing suicide; for example, use of fire arms, poisoning specially by drugs, over drugs, hanging, inhalation of gas etc. etc.
28. The word "suicide" has two facets in Indian Penal Code. One is an attempt to commit suicide which is punishable u/s 309 IPC and the second is abetment of suicide which is punishable u/s 306 IPC.
29. As to what would constitute instigation for the commission of an offence would depend upon the facts of each case. Therefore, in order of decide whether a person has abetted by instigation the commission of an offence or not, the act of abetment has to be judged in the conspectus of of the entire evidence in the case.
30. The learned trial Judge has placed reliance on two dying declaration Ex.P/10 recorded by P.W.9 Gopal and Ex.P/3 recorded by P.W.6 Buddhi Prakash on 16.1.99.
On Dying Declaration
31. The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant u/s 32 of the Indian Evidence Act in a case in which the cause of that person''s death comes into question. The clause (1) of Section 32 of the Evidence Act makes relevant. What is English law are called dying declarations. The Indian law on the question of the nature and scope of dying declaration has made a different departure from the English Law where only the statement Which directly relate to the cause of death are admissible.
32. There are so many authorities of the Hon''ble Supreme Court on the aspect of dying declaration and the net result of these authorities can be summarised in the following manner:
(i) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
(ii) That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
(iii) That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence;
(iv) That a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
(v) That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say in the form of questions and answers and as far as practicable in the words of the maker of the declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and
(vi) That in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making dying declaration apart from the official recorded of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
33. Now it is to be seen whether reliance on the so called two dying declarations Ex.P/10 and P/3 can be placed or not.
34. On 16.1.99, the deceased was admitted in the Hospital, Bhinmal in burnt condition and she was medically examined on the same day at about 5.25 p.m. and P.W.7 Dr.K.K. Goswami found that her body was burnt 80%. On the same day P.W.9 Gopal, SHO, recorded the statement of the deceased at about 5.45 p.m. which was reduced in writing by P.W.9 Gopal and same is Ex.P/10. The contents of''this statement Ex.P/10 have been reproduced above.
35. P.W.9 Gopal has been produced by the prosecution and he has stated that he has recorded the statement as stated by the deceased and further before recording statement, he asked P.W.7 Dr.K.K. Goswami whether the deceased was in a fit condition to give statement or not and the doctor P.W.7 K.K. Goswami replied to him that she was in a fit condition to give statement and thereafter he recorded the statement Ex.P/10 and on Ex.P/10 there is endorsement of P.W.7 Dr. K.K. Goswami to the effect that the statement was taken in his presence. Thus, from the statement was taken in his presence. Thus, from the statement of P.W.9 Gopal, the prosecution has amply proved that Ex.P/10 was recorded by P.W.9 Gopal in the hospital on 16.1.99 at 5.45 p.m. P.W.9 Gopal has further stated that he made a request Ex.P/2 to P.W.6 Buddhi Prakash (Magistrate) to record the statement of the deceased and P.W.6 Buddhi Prakash accepted that request and recorded statement of the deceased on 16.1.99 at about 6.30 p.m. and the same is Ex.P/3 and contents of it have been reproduced above.
36. P.W.6 Buddhi Prakash has been produced by the prosecution and he has stated that as per request of P.W.9 Gopal, who came to him through letter Ex.P/2, he proceeded to the Hospital and he reached the Hospital at 6.20 p.m. and after taking endorsement from P.W.7 Dr.K.K. Goswami at the place A to B ''Chauthi Devi is fit to give statement", he recorded the statement in his hand-writing and same is Ex.P/3. Thus, he has also proved the statement Ex.P/3.
37. In the present case from the above evidence it is clearly proved that in the two dying declarations Ex.P/3 and Ex.P/10 there is endorsement of P.W.7 Dr.K.K. Goswami. In Ex.P/10 there is endorsement of the doctor that the statement was recorded in his presence and while in Ex.P/3 there is endorsement that deceased was in a fit condition to give statement. There can be not doubt that when a dying declaration is recorded person who records the statement, must be satisfied that the person who makes the statement, is consciously making the statement understanding the implications of the words he uses.
38. Since in the present case there is clear endorsement of P.W.7 Dr.K.K. Goswami and P.W.9 Gopal and P.W.6 Buddhi Prakash have clear stated that at the time when they recorded the statements, the deceased was in a fit state of mind to give statement. Therefore, in these circumstances, it is held hat when these two dying declarations were recorded by P.W.9 and P.W.6 respectively, the deceased was in a fit state of mind to give statement and thus, these two dying declarations from this point of view suffers from no infirmity and appears to be reliable one and both the dying declarations are found to be true as this Court comes to the conclusion that both the dying declarations Ex.P/3 and Ex.P/10 were truthful version of the deceased.
39. From the two dying declarations, following facts have come in light:
(i) The accused appellant who was husband of the deceased was in the habit of drinking liquor regularly.
(ii) He used to beat the deceased regularly.
(iii) For drinking liquor he also used to demand money for the deceased.
(iv) Because of ill-treatment and because of distress from behaviour of her husband, the deceased committed suicide by pouring kerosene oil on her body.
(v) He did not give proper medical care to the deceased.
40. Thus, it appears that there was constant ill-treatment and callous attitude by her husband towards the deceased which drove the deceased to take revenge by killing herself.
41. In these circumstances, both these dying declaration appear to be truthful and thus are admissible in evidence and the findings of learned Sessions Judge that both dying declarations Ex.P/3 and Ex.P/10 are admissible in evidence are liable to be confirmed one.
42. Apart from this, these two dying declarations Ex.P/3 and Ex.P/10 fully get corroboration from the oral evidence in the present case.
43. P.W.1 is Mata Ram who is brother of the deceased and he has supported the main allegation that the accused appellant was in habit of drinking liquor and thereafter he used to beat his wife (deceased). P.W.2 Himta Ram is another brother of the deceased and he also stated the same thing. P.W.3 Manchha Ram is neighbour of the accused appellant. He has also stated the same thing as stated by P.W.1 Mata Ram and P.W.2 Himta Ram on the point that the accused appellant was in the habit of taking liquor and he used to demand money from his wife and on not getting money, he used to beat his wife. Similar is the statement of P.W.4 Prakash. Another neighbour is P.W.5 Mohan who has been declared hostile and even though he admitted in his cross-examination that it is correct to say that the accused appellant used to take liquor and after that he used to demand money and if money was not given by his wife, he used to beat her.
44. Thus, there is ample oral evidence in this case to support the averments made in both the dying declarations Ex.P/3 and Ex.P/10 given by the deceased.
45. Thus, there is ample evidence in the present case to prove the fact that the accused appellant was in the habit of taking liquor and thereafter he used beat his wife continuously and her treatment was not proper. The behaviour of the accused appellant was not well and he used to treat her with cruelty and he used to torture her mentally and physically.
46. The next question is whether the facts found proved just above would make out a case that the accused appellant abetted the commission of suicide by the deceased or not.
47. In my opinion the facts which have been established by cogent and reliable evidence are grave one arid may lead to serious provocation enough for an ordinary woman in the Indian setup, to do what the deceased is alleged to have done in the present case.
48. There is evidence in the present case that relations between husband (accused appellant) and wife (deceased) were strained over drinking habit of the accused appellant and thereafter beating, torturing and humiliating the deceased by the accused appellant and all these factors are sufficient to make a case of abetment of suicide committed by the deceased.
49. Thus, it can easily be said that the accused appellant was responsible in creating the circumstance which provoked or forced her into taking extreme step of committing suicide.
50. Since the accused appellant (husband of the deceased) by his conduct created the situation which he knew would drive the deceased (wife) to commit suicide and she actually did so, therefore, the case would squarely fall within the ambit of Section 306IPC. Hence, the conduct of the accused appellant would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of not return which would compel her to put an end to her miseries by committing suicide.
51. Thus, it is held that the prosecution has proved that the prosecution has proved that the accused appellant had abetted the commission of suicide by his wife (deceased) on the fateful day i.e. on 16.1.99.
52. Hence, the findings of learned trial Court convicting the accused appellant u/s 306 I.P.C. are liable to be confirmed.
53. Thus, prosecution has amply proved the existence of nexus of and effect between the alleged cruelty committed by the accused appellant and suicide committed by the deceased. Hence, the accused was rightly convicted for offence under Sections 498A and 306 IPC.
54. So far as Ram Babu Sharma v. State of Rajasthan (1) is concerned, the facts of present case and of that case are different one and thus this ruling would not help the accused appellant. Similarly Dhanna Ram v. State of Rajasthan (2) would not help the accused appellant as the facts of the present case stands on different footing from the facts of that case as in that case there was no evidence to the effect whether the deceased''s death was suicidal or not.
On the Point of Sentence
55. So far as question of sentence is concerned, the argument is that some lenient view may be taken. Looking to the facts and circumstances of the present case and looking to the fact that learned Additional Sessions Judge has already awarded sentence of 5 years and a lenient view has already been taken by the learned Additional Sessions Judge, therefore, no further leniency is required.
For the aforesaid reasons, the present Jail .appeal filed by the accused appellant Reva Lal is dismissed after confirming the judgment and order dated 18.11.99 passed by the learned Additional Sessions Judge, Bhinmal in Sessions Case No. 90/99.
