Thanu Ram Vs. State of
M.P. [2010] INSC 825 (5 October 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL.) NO. 5885
OF 2009
ALTAMAS KABIR, J.
1.
The
Petitioner herein, Thanu Ram, was married to Hirabai (deceased) in 1984. On
24th March, 1988, Hirabai committed suicide in her matrimonial home by
sprinkling kerosene upon herself and setting 2 herself on fire. She died in
the hospital on 25th March, 1988, having suffered 90-95% burn injuries. Prior
to her death, she made a dying declaration to the Naib Tahsildar, J.R. Lahre,
who was examined by the prosecution as P.W.9. Dr. K. Vinay Kumar, in whose
presence the declaration was made, was examined by the prosecution as P.W.11 to
testify that Hirabai was in a fit mental condition to make the dying
declaration before P.W.9.
2.
The
Petitioner, his father, Dhanaram, and mother, Lachhavantin, were tried and
convicted for the offence punishable under Section 498-A and 306 of the Indian
Penal Code (IPC) and sentenced to undergo Rigorous Imprisonment for 3 years and
5 years, respectively. In appeal before the High Court, accused Dhanaram was
acquitted, while the conviction and sentence of the Petitioner and his mother
were confirmed. 3 This Special Leave Petition has been preferred by the
husband of the deceased, Thanu Ram, against the said judgment and order of the
High Court. For the sake of record, it may be mentioned that the Petitioner's
mother, Lachhavantin, died in prison while serving her sentence.
3.
Dr.
Rajesh Pandey, learned Advocate for the Petitioner, raised two basic issues in
the course of his submissions, namely, (i) whether the offences complained of
under Sections 306 and 498-A IPC were at all sustainable, and (ii) whether the
dying declaration, said to have been made by Hirabai on which the decision of
the Courts below was based, could have been relied upon without proper
corroboration.
4.
The
prosecution examined 13 witnesses to prove its case which was denied by the
accused in their statement under Section 313 of the Code of Criminal 4
Procedure (Cr.P.C.). According to the prosecution, since Hirabai committed
suicide within 7 years of her marriage with the Petitioner, the presumption under
Section 113-A of the Indian Evidence Act, 1872, was available against the
accused and having regard to the evidence adduced by the prosecution, a case
had clearly been made out for conviction of all the accused persons under
Sections 306 and 498- A IPC.
5.
Dr.
Pandey urged that the Trial Court as well as the High Court had failed to
notice the main ingredient of an offence under Section 306 IPC, namely, the
question of abetment in the commission of such suicide which has been spelt out
in Section 107 IPC. Learned counsel pointed out that in order to abet the doing
of a thing, the abettor must be found to have instigated any person to do such
thing or engage with one or more person or persons in any conspiracy for the
doing of that thing. 5
6.
In
addition to the above, Dr. Pandey contended that the meaning of the expression
"cruelty" used in Section 498-A IPC cannot be linked up with an
offence under Section 306 IPC, unless the "intention" as mentioned in
Section 107 IPC or the presumption available under Section 113-A of the Indian
Evidence Act, were duly satisfied. Dr. Pandey submitted that in the instant
case, there is no evidence on record to indicate that the Petitioner had, in
any way, instigated Hirabai with the intention of making her commit suicide.
Accordingly, the charge under Section 306 IPC cannot be sustained.
7.
In
the course of his aforesaid submissions, Dr. Pandey referred to the evidence of
P.W.9, J.R. Lahre, Naib Tahsildar and Executive Magistrate, who had recorded
the dying declaration of Hirabai at the hospital on 24th March, 2008. From the
evidence 6 of P.W.9, Dr. Pandey pointed out that while Hirabai had spoken in
Chattisgarhi, the said statements were recorded by P.W.9 in Hindi. Dr. Pandey
then referred to the evidence of P.W.11, Dr. K. Vinay Kumar, who had in his
evidence stated that the deceased had spoken in Hindi, and not in Chattisgarhi,
as stated by P.W.9, and the same had been recorded in Hindi by P.W.9. Dr.
Pandey urged that the said contradictions were sufficient to throw doubt on the
veracity of the dying declaration, which should have been discarded, both by
the Trial Court, as well as by the High Court.
8.
In
support of his submissions, learned counsel firstly referred to a Three-Judge
Bench decision of Chhattisgarh [(2001) 9 SCC 618], where the same question fell
for consideration and it was, inter alia, held that merely because an accused
is found guilty under Section 498-A IPC, he should not 7 necessarily be held
to be guilty under Section 306 IPC on the basis of the same evidence. It was
held that in order to make out a case under Section 306 IPC, the requirements
of Section 113-A of the Evidence Act would have to be satisfied, having
particular regard to the element of instigation and that there must be a
reasonable certainty to incite the conspiracy.
9.
Reliance
was also placed on the decision of this Court in Amalendu Pal vs. State of West
Bengal [(2010) 1 SCC 707], where this Court was considering whether a case of
abetment of suicide had been made out as provided under Section 107 IPC, and it
was held that in the absence of any direct evidence to show that the appellant
had by his acts instigated or provoked the deceased to commit suicide, the
offence could not be brought within the ambit of Section 306 IPC, although, the
conviction under Section 498-A IPC was upheld. 8
10.
Dr.
Pandey also referred to the decision of India & Ors. [(2005) 6 SCC 281],
where the vires of Section 498-A IPC had been challenged. In the course of his
submissions, the question also surfaced as to whether the consequences of
"cruelty" within the meaning of Section 498-A IPC, which are likely
to drive a woman to commit suicide, were required to be established in order to
apply the provisions of Section 498-A IPC. The said case examined the provisions
of Section 304-B IPC in relation to Section 498-A IPC and the effect of Section
304-B of the Evidence Act, and in course of such discussion, it was sought to
be observed that the basic difference between Sections 306 IPC and 498-A IPC is
that of intention. It was held that under Section 498-A IPC, cruelty committed
by the husband or his relations result in the woman committing suicide, whereas
Section 306 involves 9 the abetting of an offence under Section 306 IPC with
the intention of making the victim take recourse to taking her own life.
11.
Yet
another decision of this Court in the case [(2010) 1 SCC 750], was referred by
Dr. Pandey. In the said decision, the Court reiterated the observations made by
this Court in Randhir Singh & the effect that abetment involves a mental
process of instigating a person or intentionally aiding a person in the doing
of a thing. Without a positive act on the part of the accused to instigate or
aid in committing suicide, conviction under Section 306 IPC cannot be
sustained.
12.
In
conclusion, learned counsel referred to the of A.P. [(2004) 13 SCC 249], where
a question had 10 arisen regarding recording of the dying declaration of the
victim in Hindi by the learned Magistrate who asked the questions in English with
the victim replying in Hindi and the Doctor acting as a translator between
them. It was held that since both the Magistrate and the Doctor had working
knowledge of Hindi and since both had certified about the translation, there
was no possibility of the victim making any tutored statement. The declaration
was, therefore, held to be rightly admitted and relied upon by the Courts
below.
13.
Dr.
Pandey submitted that in the absence of any proven intention on the part of the
Petitioner to instigate Hirabai into committing suicide by his actions, his
conviction under Section 306 IPC could not be sustained and was liable to be
set aside, even if the evidence adduced made out a case under Section 498-A
IPC. 11
14.
The
submissions made on behalf of the Petitioner were strongly resisted on behalf
of the State of Chhattisgarh by Mr. Atul Jha, learned Advocate, who urged that
the Trial Court had held that nothing had been elucidated by the defence from
the evidence of P.W.9 and P.W.11 which could cause the evidence of the said
witnesses to be disbelieved. On the other hand, the Trial Court had observed
that from the statements of P.W.9 and P.W.11 it had been proved beyond doubt
that the dying declaration of the deceased Hirabai had been correctly recorded
prior to her death. Mr. Jha submitted that the acts of cruelty committed by the
accused against Hirabai had been clearly demonstrated from the evidence of
P.W.2, Jodhiram, father of the deceased, P.W.3, Devsir Bai, mother of the
deceased, and P.Ws. 7 and 13, who are brothers of the deceased. Mr. Jha
submitted that the said acts of mental, physical abuse and 12 cruelty, were
sufficient to drive a young woman to commit suicide within 7 years of her
marriage, notwithstanding the fact that she was six months' pregnant and such
fact was known to the Petitioner. It was submitted that the intention of the
Petitioner to instigate and/or provoke the victim into committing suicide, was
writ large on the available evidence and the judgment of conviction and
sentence of the Trial Court, which was affirmed by the High Court, did not
warrant any interference.
15.
In
regard to the several decisions cited by Dr. Pandey, Mr. Jha submitted that the
principles laid down therein were never in question, but the same had only
limited application as far as the facts of the present case are concerned.
16.
As
will be evident from the submissions made on behalf of the respective parties,
and, 13 particularly, those advanced by Dr. Pandey, the differences between
the provisions of Section 498-A IPC and 306 IPC, in the light of Section 107
IPC and Section 113-A of the Evidence Act, assumes importance. That there is
sufficient evidence to bring home a charge under Section 498-A IPC, is not
seriously disputed. What is urged in all earnestness on behalf of the
Petitioner is that in the absence of any intention to instigate Hirabai into
committing suicide by his actions, which may at best amount to cruelty within
the meaning of Section 498-A IPC, the provisions of Section 107 IPC and Section
113-A of the Indian Evidence Act were not attracted to the facts of the case.
17.
In
order to appreciate the legal conundrum which has been presented by the facts
of this case, the provisions of Section 306 and 107 IPC, as also Section 498-A
thereof, are extracted herein below, along with the provisions of Section 113-A
of the Evidence Act :
"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."
"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 conceal- ment 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 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."
15 "498-A. Husband or relative of husband of a woman subjecting her to
cruelty.- Whoever, being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to fine.
Explanation.- For the
purpose of this section, "cruelty" means- (a) any wilful conduct
which is of such a nature as is likely to drive the woman to commit suicide or
to cause grave injury or danger to life, limb or health (whether mental or physical)
of the woman; or (b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her or any
person related to her to meet such demand." "113A. Presumption as to
abetment of suicide by a married women.- When the question is whether the
commission of suicide by a woman had been abetted by her husband or any
relative of her husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her husband or
such relative of her husband had subjected her to cruelty, the Court may
presume, having regard to all the other circumstances of the case, that such
suicide had been abetted by her 16 husband or by such relative of her husband.
Explanation - For the
purposes of this section, "cruelty" shall have the same meaning as in
section 498-A of the Indian Panel Code (45 of 1860)."
18.
Section
107 IPC clearly defines abetment to mean that a person abets the doing of a
thing who instigates a person to do that thing. The question with which we are
confronted is whether there is sufficient evidence on record to indicate that
by any of the acts of cruelty attributed to the Petitioner, there was an
intention to instigate Hirabai into committing suicide. There is no getting
away from the fact that Hirabai committed suicide in the 4th year of her
marriage when she was six months' pregnant. Ordinarily, a woman in an advanced
stage of pregnancy would not commit suicide even when treated with cruelty. It
is only in extreme circumstances that a woman may decide to take her life and
that of her unborn child when she 17 reaches a point of no return and is in a
mental state to take her own life. In the instant case, we have the dying
declaration of the victim Hirabai, which we are inclined to rely upon,
notwithstanding the objections raised by Dr. Pandey regarding its veracity. We
see no reason to disbelieve either P.W.9, J.R. Lahre, Naib Tahsildar and
Executive Magistrate, or P.W.11, Dr. K. Vinay Kumar, who attended to Hirabai in
the hospital. As is well-established, a dying declaration has to be treated
with caution, since the accused does not get a chance to cross-examine the
victim. In this case, however, there is no ambiguity or irregularity as far as
the dying declaration is concerned and it has been stated in clear and simple
language that the victim had been treated with both mental and physical cruelty
and the victim has stated quite candidly how she poured kerosene on her body
and set herself on fire. The 18 evidence of P.W.13, Uttam Kumar, the younger
brother of the deceased, corroborates the story of the prosecution as to the
manner in which Hirabai was treated by the Petitioner, which triggered her
immediate intention to commit suicide which was the culminating point of
ill-treatment meted out to her by the Petitioner and his mother.
19.
In
our view, the element of instigation as understood within the meaning of
Section 107 IPC is duly satisfied in this case in view of the provisions of
Section 113-A of the Indian Evidence Act, 1872, which provides for a
presumption to be arrived at regarding abetment of suicide by a married woman
and certain criteria are also laid down therein. The first criterion is that
such suicide must have been committed within 7 years from the date of the
victim's marriage. Since Hirabai committed suicide in the 4th year of her
marriage, such condition is duly satisfied. The second condition is that the
husband or such relative of the husband had subjected the victim to cruelty
which led to the commission of suicide by the victim. Section 113-A indicates
that in such circumstances, the Court may presume, having regard to all the
circumstances of the case, that such suicide had been abetted by her husband or
by such relative of her husband. In the Explanation to Section 113-A it has
also been indicated that for the purpose of the said Section, the expression
"cruelty" would have the same meaning as in Section 498-A IPC.
Accordingly, if the degree of cruelty is such as to warrant a conviction under
Section 498-A IPC, the same may be sufficient for a presumption to be drawn
under Section 113-A of the Evidence Act in harmony with the provisions of
Section 107 IPC.
20.
All
the decisions on the point cited by Dr. Pandey, deal with the differences in
relation to the provisions of Section 498-A and Section 306 IPC, except in
Sushil Kumar Sharma's case (supra), where the provisions of Section 498-A IPC
had been considered in the context of Section 304-B IPC. In that context, it
was sought to be explained that the big difference between Section 306 IPC and
498- A IPC is that of intention. The provisions of Section 113-A of the Indian
Evidence Act or its impact on an offence under Section 498-A IPC or Section 306
IPC vis-`-vis Section 107 IPC was not considered in any of these decisions.
21.
In
our view, it is the said provision which makes all the difference as far as the
present case is concerned. Section 113-A of the Evidence Act establishes a link
between an offence under Section 498-A IPC, 107 IPC and 306 IPC, thereby
permitting the Court to presume the commission of an offence under section 107
IPC on the basis of evidence adduced to prove an offence under Section 498-A
21 IPC. As mentioned hereinbefore, the evidence of P.Ws.2, 3, 7, 9, 11 and 13
is sufficient to establish the prosecution case against the Petitioner under
Section 498-A IPC and Section 306 IPC.
22.
We,
therefore, see no reason to interfere with the impugned judgment of the High
Court or the Trial Court. The Special Leave Petition is, accordingly,
dismissed.
................................................J.
(ALTAMAS KABIR)
................................................J.
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