Kishangiri Mangalgiri Goswami vs State Of Gujarat

Kishangiri Mangalgiri Goswami .....Appellant

Versus

State of Gujarat .....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Gujarat High Court upholding the conviction of the appellant for offences

punishable under Sections 306 and 498-A of the Indian Penal Code, 1860

(in short the `IPC') and Section 3 of the Dowry Prohibition Act, 1961 (in

short `DP Act'). Learned Additional Sessions Judge, Court No.9, Ahmedabad City imposed sentences of 3 years, 10 years and 5 years

respectively for the aforesaid offences and fine of Rs.5,000/-, Rs.20,000/-

and Rs.20,000/- with default stipulations.

3. Prosecution version in a nutshell is as follows:

The accused married Kantaben (hereinafter referred to as the

`deceased') in 1989. Soon after two years of his marriage, the accused

started inflicting mental and physical torture on her and she was taunted by

the accused for not bringing sufficient dowry in the marriage. He also

demanded from the victim an amount of Rs.40,000/- for the purpose of

purchasing a house. He even wrote letters to the in-laws and demanded

Rs.40,000/- for purchasing the house. The demand was persistent. Even

threats were administered to the deceased and her family members. Thus,

the accused inflicted mental and physical torture on the victim which

prompted her to commit suicide by burning herself on 23-03-1999 after

pouring kerosene on her body. Thus, as per the prosecution case, the

appellant has committed the offence punishable under Section 498A and

306 IPC read with Sections 3 and 7 of DP Act.

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The complaint was given by Dhulagiri Gumangiri Goswami on

17.5.1999. On the strength of the complaint given by the complainant

investigation was carried out. The place where the suicide was committed

by the victim was visited and the panchnama of the place of incident was

prepared in the presence of the panch-witnesses. Statements of the witnesses

from the neighbourhood were recorded. The injured was immediately

rushed to the hospital for providing necessary treatment. Muddamal seized

was sent to Forensic Science Laboratory for the purpose of detailed

analysis. On the death of the victim, the inquest panchnama was prepared

and the dead body was sent for autopsy. The appellant was arrested during

the course of investigation. On receipt of the report from FSL, the post-

mortem report along with other material, the appellant was charge-sheeted

for the offences punishable under Sections 498A and 306 of IPC as well as

Sections 3 and 7 of the DP Act. He was produced before the Metropolitan

Magistrate, Ahmedabad, who in turn committed the case to the Sessions

Court under Section 209 of the Code of Criminal Procedure, 1973 (in short

the `Code') as the case was exclusively triable by the Sessions Court.

As the accused persons pleaded innocence trial was held. Seventeen

witnesses were examined to further the prosecution version. The trial court

3 found that the letters written by the accused clearly established the demand

of dowry and further the suicide was clearly abetted by the acts and conduct

of the appellant. Accordingly, the conviction was recorded and sentences

were imposed as afore-stated.

In appeal, the High court concurred with the views of the trial Court.

4. In support of the appeal, it was submitted that the letters whereby the

alleged demand of dowry was made has not been signed by the appellant

and even has not been addressed to anyone. There was no material to show

that the appellant had subjected the deceased to such cruelty and harassment

as to instigate her to commit suicide. The evidence on record shows that the

appellant had purchased valuable silver ornaments for the deceased and in

his insurance policy, the deceased was shown to be his nominee. Their

relation was otherwise cordial. Since the substratum of the allegations of

dowry and harassment were letters, their authenticity having not been

established the trial Court and the High Court should not have relied upon

the same.

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5. It is pointed out that the accused himself had taken the deceased to

the hospital and from his conduct it clearly shows that the accused was not

guilty. In essence, it is submitted that the commission of alleged offences

has not been established by the prosecution.

6. In response, learned counsel for the respondent-State supported the

judgment.

7. We shall first deal with the plea relating to applicability of Section

306 IPC.

8. Section 306 IPC deals with abetment of suicide. The said provision

reads as follows:

"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."

9. Abetment involves a mental process of instigating a person or

intentionally aiding that person in doing of a thing. In cases of conspiracy

5 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 it required before a person can be said to be

abetting the commission of offence under Section 306 of IPC.

10. In State of West Bengal v. Orilal Jaiswal (AIR 1994 SC 1418) this

Court has observed that the courts 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 her life by committing suicide. If it transpires

to the Court that a victim committing suicide was hypersensitive to ordinary

petulance, discord and differences in domestic life quite common to the

society to which the victim belonged and such petulance discord and

differences 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.

11. Section 107 IPC defines abetment of a thing. The offence of abetment

is a separate and distinct offence provided in the Act as an offence. A

6 person, abets the doing of a thing when (1) he instigates any person to do

that thing; or (2) engages with one or more other persons in any conspiracy

for the doing of that thing; or (3) intentionally aids, by act or illegal

omission, the doing of that thing. These things are essential to complete

abetment as a crime. The word "instigate" literally means to provoke, incite,

urge on or bring about by persuasion to do any thing. The abetment may be

by instigation, conspiracy or intentional aid, as provided in the three clauses

of Section 107. Section 109 provides that if the act abetted is committed in

consequence of abetment and there is no provision for the punishment of

such abetment, then the offender is to be punished with the punishment

provided for the original offence. 'Abetted' in Section 109 means the

specific offence abetted. Therefore, the offence for the abetment of which a

person is charged with the abetment is normally linked with the proved

offence

12. In cases of alleged abetment of suicide there must be proof of direct

or indirect acts of incitement to the commission of suicide. The mere fact

that the husband treated the deceased-wife with cruelty is not enough. [See

Mahinder Singh v. State of M.P. (1995 AIR SCW 4570)]. 7

13. The aforesaid aspects were highlighted in Kishori Lal v. State of M.P.

(2007 (10) SCC 797), Randhir Singh and Anr. v. State of Punjab (2004 (13)

SCC 129) and Criminal Appeal No. 1464 of 2007 (Sohan Raj Sharma v.

State of Haryana disposed of on April 7, 2008).

14. The conviction so far as it relates to Section 306 IPC, therefore,

cannot be sustained in view of the background facts and is set aside. But the

materials on record particularly the letters on which specific emphasis has

been led by the trial Court and the High Court amply demonstrate the

commission of offences punishable under Section 498-A IPC and Section 3

of DP Act. The convictions are sustained. But the sentence in respect of

Section 3 of DP Act is reduced to three years.

15. The appeal is allowed to the aforesaid extent.

...........................................J. (Dr. ARIJIT PASAYAT)

...........................................J. (ASOK KUMAR GANGULY) New Delhi, January 28, 2009

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