Court: Rajasthan High Court
Bench: JUSTICE Manoj Kumar Garg
Hanif Khan Vs. State Of Rajasthan On 5 April 2018
Law Point:
Indian Penal Code, 1860 — Sections 306, 498A — Abetment of Suicide — Cruelty — Appreciation of Evidence — No offence — Accused-appellant, husband of deceased all the time was away from house, sometimes went to foreign for his livelihood or place far away from where deceased resided — Upon perusal of letters produced by prosecution, no averments were written by deceased which came under abetment as also offence under Section 306, IPC — On perusal of statements of PWs, it apparently came out that cruelty towards deceased has been committed by accused-appellant — Offence under Section 498A, IPC is made out against accused-appellant — Incident is of the year 1990 and near about 27 years have been passed and accused-appellant remained in custody for a substantial period i.e. more than 1 month — To meet ends of justice substantive sentence of imprisonment imposed by Trial Court is reduced to imprisonment already undergone by accused appellant.
JUDGEMENT
The instant criminal appeal has been filed by the accused-appellants Under Section 374(2), Cr.P.C. against the judgment dated 8.4.1994 passed by Additional Sessions Judge, Churu Camp at Rajgarh in Sessions Case No. 102/1992 by which the learned Judge convicted and sentenced the accused-appellant as under:
1.
Under Section 306, IPC—To five years Rigorous Imprisonment with a fine of Rs. 250, in default of payment of fine, to further undergo two months simple additional imprisonment.
2.
Under Section 498A, IPC—To Nine months Rigorous Imprisonment with a fine of Rs. 100, in default of payment of fine, to further undergo one month simple additional imprisonment. Both the sentences were ordered to run concurrently.
The brief facts of the case are that PW/2 Umrao Khan complainant filed a written report in which he has mentioned that his daughter Chhoti @ Sarafat Bano was married with accused- appellant Hanif Khan about ten years back. At the time of the marriage, he gave sufficient dowry along with gold and silver ornaments. After this wedlock, one son was born after about two years of the marriage. At that time also he gave gold and silver ornaments. After four years of the marriage, the accused- appellant Hanif Khan went to Iraq, then his daughter visited her parental house and she narrated that her husband and mother-in- law both harassed her and demanded more dowry. Hanif Khan resided in Iraq about seven months and when he came, he sent back his daughter to her parental house. Then she again narrated that her husband and her mother-in-law both started beating and they also snatched her gold ornaments and demanded dowry. She also told that her “Nanad” Hamida told to her husband to leave her and arrange second marriage. His daughter resided about three years in her parental house because her husband Hanif Khan went for earning livelihood at Nasik and other places. About two years back, Hanif Khan promised the comlpainant that in future he will not harass Chhoti @ Sarafat Bano. Consequently, the complainant sent back his daughter with Hanif Khan where she resided for about four months and again came back because her husband again went to Nasik. Hanif Khan visited the complainant’s house about one year back and again he promised that in future he will not harass his daughter. After some time, the complainant’s daughter wrote a letter. When she again visited her parental house, at that time she was not wearing any gold ornaments and she told that all the gold ornaments were kept by her husband. About two and half months back his daughter went to her in-laws house and she demanded her gold ornaments then her husband and mother-in-laws both starting quarrelling with her. The complainant received a letter that Chhoti expired on 18.7.1990.
2. The complainant also received some letters from his daughter as well as her husband in which he came to know that Hanfi Khan was having illicit relation with another woman and they killed my daughter Chhoti.
3. On the said report, the Police registered the FIR No. 180/1990 for offence under Sections 306, 498-A, IPC and started investigation. After due investigation police filed Challan against the accused-appellant for the offence under Sections 306, 498-A, IPC before the Court of Munsif and Judicial Magistrate, Rajgarh. Later on this case was transferred to the Court of Additional Sessions Judge, Churu Camp at Rajgarh.
4. The learned Trial Court after hearing the arguments and considering the material on record, framed charges against accused-appellant for offences under Sections 498A and 306, IPC. The accused-appellant pleaded not guilty and claimed trial.
5. At the trial, the prosecution examined as many as 12 witnesses in all and exhibited certain documents. Thereafter the statement of the accused-appellant was recorded under Section 313, Cr.P.C. On the defence side, statement of DW/1 Lal Mohd. Singh and DW/2 Chandrabhan were recorded.
6. At the conclusion of the trial, the learned Additional Sessions Judge, Churu Camp at Rajgarh vide judgment dated 8.4.1994 convicted and sentence the accused-appellant as mentioned earlier. Hence this criminal appeal at the instance of the accused-appellant against his conviction.
7. The learned Counsel for the accused-appellant has argued that the occurrence as mentioned in the FIR has taken place on 18th July 1990 and for the first time this FIR has been registered on 7.8.1990 and written report was filed on 5th August, 1990. This delay has not at all been explained by the complainant. Counsel further argued that in the FIR the complainant mentioned the name of the husband of the deceased as well as mother-in- laws and sister-in-laws but after thorough investigation police filed Challan only against the present appellant. This shows that the said story has already been disbelieved by the police. Counsel further argued that according to the post-mortem report of deceased (Musammat Sarafat Bano) the cause of death is due to asphyxia as a result of drowning so this is a case of simple suicide. It is further argued that some letters were on the record and the letters were written in the years 1986 to 1988 and this occurrence has taken place in the year 1990 and in those letters also there were no averments about the abetement to commit suicide. So, on the basis of these letters no offence under Sections 498-A and 306, IPC is made out against the present accused-appellant so the conviction recorded against the present accused-appellant by the Trial Court is erroneous in the eye of law and deserves to be set aside. The appeal of the accused appellant may kindly be allowed and the accused appellant may be acquitted. In support of his contentions, the learned Counsel for the appellants has relied upon the judgment of the Hon’ble Supreme Court in the case of Gangula Mohan Reddy v. State of Andhra Pradesh, I (2010) SLT 1=I (2010) CCR 143 (SC)=(2010) 1 SCR 9.
8. Per contra, learned Public Prosecutor has supported the judgment of the Trial Court and prayed that the appeal of the accused-appellant may be dismissed.
9. Heard learned Counsel for the accused-appellant as well as learned Public Prosecutor and perused the judgment impugned as also gone through the record of the case.
10. The deceased Musammat Sarafat Bano @ Chhoti wife of appellant Hanif Khan expired on 19.7.1990 and at that time proceedings under Section 174, Cr.P.C was started in which police recorded the statements of various witnesses and they clearly mentioned that deceased was taking water from the water tank and all of sudden her feet slipped. Due to this reason she fell down and expired. This story was corroborated from the post-mortem report because no injury was found in her body according to the post-mortem Ex.P/9 the cause of death of deceased is due to asphyxia as a result of drowning.
11. This is not in dispute that FIR of the occurrence has been registered after about 20 days of the occurrence. This also shows that an FIR was registered which is a very delayed one.
12. PW/1 Smt.Phool Bano, who is mother of the deceased has stated in her statement that her daughter’s husband, mother-in-laws and sisters-in-law were harassing her daughter. Her marriage took place about 10 to 12 years back. In her cross-examination, she mentioned that whenever her daughter informed about the act of harassment by in-laws, they never called any type of Panchayat and they never informed anybody about this act of harassment by the accused-appellant.
13. PW/2 Umrao Khan, he lodged the written report after considerable delay but he mentioned in his statement that first of all Ahsan filed a report to the police.
14. On the perusal of the record, no report of Ahsan was ever traced out. So this shows that PW/2 Umrao Khan himself filed the report which is dated 5.8.1990 about 20 days after the occurrence. In his cross-examination he mentioned that whatever he wrote in the report, was written by somebody and he put his signature in that report and all the incident was narrated by Jangsher.
15. PW/3 Jangsher who has mentioned that whenever Chhoti visited her parental house then her mother-in-law, sister-in-law and husband harassed her and they killed Chhoti. In his cross- examination he mentioned that he never said about the incident to anybody.
16. PW/4 Ahsan Khan, who is brother of the deceased, has also stated omnibusly against all the family members of the accused- appellant. He identified that some letters were written by her sister.
17. PW/5 Dr. Mohan Lal Meena who conducted the post-mortem of the deceased. PW/6 Om Prakash who was an SHO and recorded the FIR.
18. PW/7 Inayat Khan, who has mentioned that all the family members of the deceased starting harassing. In his cross-examination he mentioned that he along with other family members went to their house. He mentioned that after cremation of the deceased, they filed a written report to the police and they came back to their house but no such report is available on record.
19. PW/8 Patram who was a carrier. PW/9 Bhanwar Singh who was SHO and registered the proceeding under Section 174, Cr.P.C and investigated the matter and he also mentioned that in his investigation, he found that no offence is made out against the accused-appellant.
20. PW/10 Kamal Kumar Bangadi was a Munsif and Judicial Magistrate in whose presence his specimen of handwriting was taken. PW/11 Buddhram who was a Malkhana In-charge. PW/12 Riddhi Karan who was an Additional S.P. and who conducted the investigation in this case. These are all the prosecution witnesses.
21. The defence witness DW/1 Lal Mohd. who was an independent witness and mentioned that when the deceased expired on that day there was a rain and deceased went for taking water from the water tank (well) and all of sudden her leg slipped and she fell down and expired. Likewise DW/2 Chandrabhan, who is neighbour of the accused appellant, has mentioned that she always visited to their house and she never stated anything against the accused appellant for harassment or anything else and on the day of incident there was a rain and all of sudden she fell down in that well and she expired.
22. In this case, it is not in dispute that the written report was filed by the complainant Umrao Khan (PW/2) after 20 days of the occurrence. The marriage of the deceased took place about 10 to 12 years back and the prosecution witnesses omnibusly stated against the family members of the accused-appellant and this is also not in dispute that the present accused-appellant, who is husband of the deceased and all the time, he was away from house, sometimes he went to foreign for his livelihood, sometimes he went to another place which is far away from where the deceased was resided. Some letters were produced by the prosecution and upon perusal of these letters, it reveals that no averments were written by the deceased which come under the definition of abetment so also no offence under Section 306, IPC is made out against the accused appellant.
23. Section 306, IPC reas as under:
“Section 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 Hon’ble Division Bench of this Court in the case of State of Rajasthan v. Ashok Nawal, in D.B. Criminal Appeal No. 136/1994, decided on 18.4.2016 has held as under:
In the trial prosecution had relied upon letters Ex.P/4 and Ex.P/5 out of letters as evidence so as to prove the charge of aforesaid allegation against the respondent. On the contrary, number of documents Ex. D/1 to D/30, the communication in between the respondent and his in-laws were exhibited. We have perused all the communications and find that relations of deceased and respondent were cordial. There was no demand of dowry. The documents Ex.P/4 and P/5 relied by the prosecution cannot be treated to be a evidence for demand of dowry because general talks are stated by the respondent being son-in-law in the communication and these documents are of the year 1985 before 4 years of incident. No other evidence is on record to prove the allegation of demand of dowry for which the respondent can be held guilty.
25. The Hon’ble Supreme Court in the case of Pawan Kumar v. State of H.P., IV (2017) SLT 663=III (2017) DLT (CRL.) 90 (SC)=AIR 2017 SC 2459, has held as under:
32. The word ‘abetment’ has not been explained in Section 306, IPC. In this context, the definition of abetment as provided under Section 107, IPC is pertinent. Section 306, IPC seeks to punish those who abet the commission of suicide of other. Whether the person has abetted the commission of suicide of another or not is to be gathered from facts and circumstances of each case and to be found out by continuous conduct of the accused, involving his mental element. Such a requirement can be perceived from the reading of Section 107, IPC. Section 107, IPC reads as under:
“Section 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.
Illustration— A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.
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.”
“Abetment”, thus, means certain amount of active suggestion or support to do the act.
33. Analysing the concept of “abetment” as found in Section 107, IPC, a two-Judge Bench in Chitresh Kumar Chopra v. State (Government of NCT of Delhi)[18] has held:
“13. As per the section, a person can be said to have abetted in doing a thing, if he, firstly, 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 to Section 107 states that any wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may also come within the contours of “abetment”. It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306, IPC.
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15. As per Clause Firstly in the said section, a person can be said to have abetted in doing of a thing, who “instigates” any person to do that thing. The word “instigate” is not defined in IPC. The meaning of the said word was considered by this Court in Ramesh Kumar v. State of Chhattisgarh[19].”
In the said authority, the learned Judges have referred to the pronouncement in Ramesh Kumar v. State of Chhattisgarh.
34. The word “instigate” literally means to goad, urge forward, provoke, incite or encourage to do an act. A person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in (express) words or may be by (implied) conduct.
38. In Amalendu Pal @ Jhantu v. State of West Bengal [22], the Court, after referring to the authorities in Randhir Singh (supra), Kishori Lal v. State of M.P. [23] and Kishangiri Mangalgiri Goswami v. State of Gujarat [24], has held:
“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 led or compelled the person to commit suicide, conviction in terms of Section 306, IPC is not sustainable.”
26. The Hon’ble Supreme Court in the case of State of West Bengal v. Orilal Jaiswal & Anr., I (1994) DMC 138 (SC)=1993 (SLT SOFT) 353=(1994) 1 SCC 73, has held that 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 appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference 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. The Hon’ble Supreme Court further in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24 had an occasion to deal with this aspect of abetment.
27. The Hon’ble Supreme Court dealt with the dictionary meaning of the word “instigation” and “goading” and opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person’s suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any strait-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
28. Following the aforesaid judgments, the Hon’ble Supreme Court in the case of Gangula Mohan Reddy (supra) has held as under:
20 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.
21. The intention of the Legislature and the ratio of the cases decided by this Court is 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 committed suicide.
29. In the light of the provisions of law and the settled legal positions crystalized by a series of judgments of the Hon’ble Supreme Court, the conviction of the accused-appellant recorded under Section 306 cannot be sustainable.
30. So far as the offence under Section 498A, IPC is concerned, according to the perusal of the statements of the prosecution witnesses, it is apparently came out that the cruelty towards deceased has been committed by the present accused-appellant. So offence under Section 498A, IPC is made out against the present accused-appellant.
31. However, taking into account the fact that the incident is of the year 1990 and near about 27 years have been passed and the accused-appellant had remained in custody for a substantial period i.e. more than one month, this Court is of the opinion that the ends of justice would be met if the substantive sentence of imprisonment imposed by the Trial Court is reduced to the period of imprisonment already undergone by the accused-appellant.
32. In the result, the appeal filed by the accused-appellant is partly allowed. The conviction of the accused appellant recorded by the learned Additional Sessions Judge, Churu Camp at Rajgarh vide judgment dated 8.4.1994 for offence under Section 306, IPC is set aside and while maintaining the conviction of the accused-appellant for offence under Section 498A, IPC, the sentence awarded for the said offence is hereby reduced to the period already undergone by him. However, the fine of Rs. 100 imposed by the learned Trial Court for offence under Section 498A, IPC shall stand increased to Rs. 1,000. The amount of fine shall be deposited in the Trial Court within a period of 90 days from the date of this judgment. Upon depositing the amount of fine, the same shall be disbursed to the complainant. Record of the case be send back forthwith. The accused-appellant is on bail. His bail bonds stand discharged.
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