Thanu Ram vs State Of M.P

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

this Court in Rakesh Kumar Vs. State 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

this Court in Sushil Kumar Sharma Vs. Union 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

of Gangula Mohan Reddy Vs. State of Andhra Pradesh

[(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 &

Anr. Vs. State of Punjab [(2004) 13 SCC 129], to

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

decision of this Court in B. Shashikala Vs. State

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 hereinbelow,

14

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

19

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

20

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.

(A.K. PATNAIK)

New Delhi

Dated:05.10.2010