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TMI Blog2017 (4) TMI 1655X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is found that the High Court has appropriately dislodged the analysis made by the trial court. The evidence has to be appreciated regard being had to various circumstances. It is to be noted that the accused has been acquitted in the earlier offence and he has become a constant nuisance for the victim. In such a situation, the poor parents had no other option but to make a complaint to the Gram Panchayat. To hold that their evidence is reproachable as the complaint was not given in writing manifestation of perverse approach. On a perusal of the evidence in entirety, we find that the testimonies of the parents are absolutely unimpeachable and deserve credence. Whether Section 306 IPC gets attracted. Submission of the learned counsel for the appellant is that even assuming the allegation is accepted to have been proved, it would not come within the ambit and scope of Section 306 IPC as there is no abetment? - HELD THAT:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and imposed the sentence. It has appositely exercised the jurisdiction and we concur with the same.
Conclusion - The High Court's conviction of the accused under Section 306 IPC upheld, agreeing that the evidence demonstrated the accused's active role in abetting the deceased's suicide.
Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of Medical Officer and after the victim expired the post-mortem was conducted and an FIR was registered. After the criminal law was set in motion, the investigating agency after completing the investigation laid the charge sheet before the competent court which, in turn, committed the case to the Court of Session. 4. The accused abjured his guilt and pleaded false implication. The prosecution in order to establish the charge examined 14 witnesses. The defence shoes not to examine any witness. The learned Sessions Judge, after hearing the arguments, posed the following question: "Whether the prosecution has successfully proved the liability of accused under Section 306 of IPC beyond the scope of all reasonable doubts?"; and answered the question in the negative and consequently acquitted the accused-appellant vide judgment and order dated 16th July, 2010. 5. Being aggrieved by the aforesaid judgment, the State preferred the appeal before the High Court. The Division Bench of the High Court, after reappreciating the evidence, reversed the judgment of acquittal rendered by the trial court and convicted the accused-appellant under Section 306 IPC and sentenced him to suffer r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal against acquittal the High Court has full power to review at large all the evidence and to reach the conclusion that upon that evidence the order of acquittal should be reversed. This power of the appellate court in an appeal against acquittal was formulated by the Judicial Committee of the Privy Council in Sheo Swarup v. King Emperor [AIR 1934 PC 227] and Nur Mohammad v. Emperor [AIR 1945 PC 151]. These two decisions have been consistently referred to in the judgments of this Court as laying down the true scope of the power of an appellate court in hearing criminal appeals (see Surajpal Singh v. State [AIR 1952 SC 52] and Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715])." 10. In Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793], the Court has ruled that there are no fetters on the plenary power of the appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal, the homage the jurisprudence owes to individual libert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttal. The said principles are enumerated below:- "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the aforesaid authorities, we shall scan the approach of the learned trial Judge and scrutinize the correctness of deliberation of the High Court and adjudge he ultimate reversal of the judgment of the trial court. 17. On a careful examination and close study of the judgment of the trial court, it is perceivable that the learned trial Judge, after enumerating the facts, has analysed the evidence and come to the conclusion that the prosecution has failed to prove the culpability of the accused under Section 306 IPC. He has disbelieved the evidence of PW-1, Sukh Dev, the father of the deceased, on the principal ground that though after acquittal of the accused in the criminal case instituted for offence under Sections 363/364/376 IPC, teased his daughter, yet he only made an oral complaint to the Gram Panchayat and did not file a written complaint before it. That apart, the learned trial Judge has noted that though PW-1 had stated in the FIR that the accused had threatened to forcibly take away his daughter, he had not so stated in his deposition. The dying declaration, that is, Ex. PW-10/A, has not been given credence to on the ground that the victim was not in a position to sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered to him. The High Court has also dealt with the evidence of PW-3, Dr. Kulbhushan Sood, who had issued MLC, Ex. PW-3/B and admitted that the victim had suffered 80% burn injuries and opined that the same is sufficient to affect the mental capability of the patient. The High Court has also analysed the evidence of PW-9, Sawarna Devi, mother of the deceased, who has deposed about the whole incident. PW-10, Dr. Sanjay, on whom the High Court has placed heavy reliance, was posted as Senior Resident in the Department of Surgery in RPGMC, Tanda. The police had orally requested him to accompany them as the statement of the victim was to be recorded and 24.07.2008 and he went to the ward where the victim was and the statement of the injured was recorded by the police, Ex. PW-10/A, in his presence. The High Court has also appreciated the fact that in the cross-examination, treating doctor had admitted that he had not issued any certificate that the victim was mentally fit to make a statement. It is pertinent to mention that the said witness has denied the suggestion that the victim was not fit to make statement and Ex. PW-10/A was not her statement. 21. After analyzing the evidence, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial court has acquitted the accused by disregarding the version of parents of the deceased and other witnesses and treating the dying declaration as invalid and the High Court, on the contrary, has placed reliance on the testimony of the parents of the deceased, and the evidence of the village Pradhan and also given credence to the dying declaration. 23. As is seen, the non-reliance on the dying declaration by the learned trial Judge is founded on the reason that the deceased was not in a position to speak and there was no medical certificate appended as regards her fitness. That apart, the learned trial Judge has regarded the dying declaration as unacceptable and unreliable on the base that the deceased had sustained 80% burn injuries. The High Court has found the said approach to be absolutely erroneous. 24. The hub of the matter is whether the dying declaration Ex. Pw-10/A is to be treated as realiable or not. To appreciate the validity of the dying declaration, we have requisitioned the original record and had perused the same. On a careful scrutiny of the same, we find that the Head Constable had written what the deceased had spoken and thereafter the deceased had written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid the following guidelines with regard to admissibility of the dying declaration:- "22. The analysis of the above decisions clearly shows that: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that:- "22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect. 23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat [(1992) 4 SCC 69] wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shing or forcing such person. Therefore, a person instigating another has to "goad" or "urge forward" the latter with the intention to provoke, incite or encourage the doing of an act with a latter. In order to prove abetment, it must be shown that the accused kept on urging or annoying the deceased by words, taunts until the deceased reacted. A casual remark or something said in routine or usual conversation should not be construed or misunderstood as "abetment". 36. Analysing further, in Randhir Singh and another v. State of Punjab [(2004) 13 SCC 129], the Court has observed thus:- "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." [emphasis supplied] 37. In Praveen Pradhan v. State of Uttaranchal & another [(2012) 9 SCC 734], it has been ruled:- "18. In fact, from the above discussion it is appar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of suicide by deceased Pranab Kumar Nag. 7. Apart from the suicide note, there is no allegation made by the complainant that the appellant herein in any way was harassing his brother, Pranab Kumar Nag. The case registered against the appellant is without any factual foundation. The contents of the alleged suicide note do not in any way make out the offence against the appellant. The prosecution initiated against the appellant would only result in sheer harassment to the appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the first information report against the appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the appellant herein. We find that this is a fit case where the extraordinary power under Section 482 of the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings initiated against the appellant and accordingly allow the appeal." 40. At this juncture, we think it appropriate to reproduce two paragraphs from Chitresh Kumar Chopra (supra). They are:- "16. Speaking for the three-Judge Bench in Ramesh Kumar case (supra), R.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an attempt for self-protection or an escapism from intolerable self." 41. Keeping in view the aforesaid legal position, we are required to address whether there has been abetment in committing suicide. Be it clearly stated that mere allegation of harassment without any positive action in proximity to the time of occurrence on the part of the accused that led a person to commit suicide, a conviction in terms of Section 307 IPC is not sustainable. A casual remark that is likely to cause harassment in ordinary course of things will not come within the purview of instigation. A mere reprimand or a word in a fit of anger will not earn the status of abetment. There has to be positive action that creates a situation for the victim to put an end to life. 42. In the instant case, the accused had by his acts and by his continuous course of conduct created such a situation as a consequence of which the deceased was left with no other option except to commit suicide. The active acts of the accused have led the deceased to put an end to her life. That apart, we do not find any material on record which compels the Court to conclude that the victim committing suicide was hypersensitive to ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... women in educational institutions, public places, parks, railways stations and other public places which only go to show that requisite sense of respect for women has not been socially cultivated. A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitution as a man does. The right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve-teasing. It affects the fundamental concept of gender sensitivity and justice and the rights of a woman under Article 14 of the Constitution. That apart it creates an incurable dent in the right of a woman which she has under Article 15 of the Constitution. One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject. 46. In a civilized society male ..... X X X X Extracts X X X X X X X X Extracts X X X X
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