Kedar Nath Malviya vs State Of U.P.
2018 Latest Caselaw 3042 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 28                                                                     [AFR]
 

 
Case :- CRIMINAL APPEAL No. - 291 of 2001
 

 
Appellant :- Kedar Nath Malviya
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- P.K.Punhani,Kalpana Pathak,Rajesh Kumar Pandey,Salil Kumar Srivastava
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Dinesh Kumar Singh,J.

1. The present appeal has been filed against the judgment of conviction and order of sentence both dated 17.04.2001 passed by Special Judge (Essential Commodities) Act, Lucknow in Session Trial No.25 of 1993.

2. The prosecution story, in brief, is that Kamini Devi @ Ruby got married to accused Kedar Nath on 19.02.1988. It had been an arranged marriage. On 3.7.1988, Kamini Devi @ Rubey committed suicide by hanging herself. Before her death, Kamini Devi @ Rubey had written three letters to her family members. Letters dated 14.05.1988, 2.6.1988 and 26.8.1988 which have been marked as Exhibit Ka-1, Exhibit Ka-2 and Exhibit Ka-3 respectively would show that she was happy at her matrimonial home and she did not complain against the behaviour of her husband or other family members of her matrimonial home. There are three letters which are of date 3.7.1988 i.e. Exhibit 7 and Exhibit 8/1 and Exhibit 8/2 written by the deceased before her death. These letters are the incriminating material to prove that the deceased was in great mental and emotional shock and trauma because her husband had illicit relation with one Suman Jaiswal. Exhibit 7 is the suicide note. This letter also indicates that the accused was having illicit relation with Suman Jaiswal. Material Exhibits 8/1 and 8/2 were addressed to Suman Jaiswal in which she squarely put blame on her husband. It appears from these letters that when the deceased protested for accused carrying on the relationship with Suman Jaiswal, she was beaten up by the accused. The accused would come home heavily drunk late in the night and would ill-treat his newly wedded wife for his illicit relationship with another woman. As the deceased could not bear the trauma, torture and her emotional set back, she committed suicide.

3. Heard Shri Salil Srivastava, learned Senior Counsel assisted by Shri Rajesh Kumar Pandey, learned counsel for the accused-appellant and Shri S.P. Singh, learned Additional Government Advocate assisted by Shri Diwakar Singh, learned Additional Government Advocate appearing for the respondent-State.

4. Sri Salil Srivastava, learned counsel for the accused-appellant, submits that extra-marital affairs of husband cannot itself amount to abetment of suicide. He further submits that the accused was twenty years of age and at this delicate age, if the husband had relations with another woman, that would not itself indicate that he instigated his wife to commit suicide. He further submits that abetment is defined under Section 107 of the Indian Penal Code and the ingredients of abetment are not established on the basis of the evidences adduced by the prosecution to support its case.

5. In support of the contentions, Sri Shalil Srivastava, learned counsel for the accused-appellant has placed reliance on the judgment of the Supreme Court in the case of Ramesh Kumar v. State of Chhattisgarh reported (2001)9 Supreme Court Cases 618. In this case, it has been held that ordinary petulance, discord and differences are not expected to induce a similarly situated individual in a given society to commit suicide. It is submitted that even if it is believed that the accused had illicit relationship with another woman, it would not amount to abetting suicide by the appellant.

6. Learned counsel further submits that these three letters written on the date of suicide only demonstrate that the accused-appellant was having illicit relationship with Suman Jaiswal, but that itself would not be suffice to hold him guilty for abetment of suicide of the deceased.

7. Learned counsel has further placed reliance on the judgment rendered by Hon'ble Supreme Court in the case of K.V. Prakash Babu v. State of Karnataka reported in (2017)11 SCC 176 to submit that extra marital affair does not amount to abetting suicide by the wife. The prosecution is required to establish beyond reasonable doubt that the deceased committed suicide and the accused-appellant abetted the commission of suicide. He further submits that the alleged extra-marital relation would only demonstrate that the accused was of immoral character but that itself would not establish the offence of abetment of suicide by the accused. To support his submission, learned counsel has placed reliance on paragraphs 13 and 17 of the aforesaid judgment which are extracted here-in-below:

"13. In this regard, Mr. Singh has drawn our attention to the authority in Pinakin Mahipatray Rawal v. State of Gujarat. In the said case, the Court was dealing with as to whether relationship between the appellant and the second accused therein was extra-marital leading to cruelty within the meaning of Section 498-A IPC and whether that would amount to abetment leading to the act of suicide within the meaning of Section 306 IPC. Dealing with the extra-marital relationship, the Court has opined that marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on, but extra-martial relationship as such is not defined in the Penal Code. The Court analysing further in the context of Section 498-A observed that the mere fact that the husband has developed some intimacy with another woman, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to "cruelty", but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A IPC. The Court further elucidated that harassment need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-A IPC. Mental cruelty of course, varies from person to person, depending upon the intensity and the degree of ensurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a week person may think of ending one's life. The Court ruled that in the facts of the said case the alleged extra-marital relationship was not of such nature as to drive the wife to commit suicide. The Two-Judge Bench further opined that :

"27. Section 306 refers to abetment of suicide [which] says that if any person commits suicide, whoever abets the commission of such suicide, shall be punishment with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra-marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide."

[emphasis supplied]

17. In the instant case, as the evidence would limpidly show, the wife developed a sense of suspicion that her husband was going to the house of Ashwathamma in Village Chelur where he got involved with Deepa, daughter of Ashwathamma. It has come on record through various witnesses that the people talked in the locality with regard to the involvement of the appellant with Deepa. It needs to be noted that Anjanamma, being not able to digest the humiliation, committed suicide. The mother and the brother of Anjanamma paved the same path. In such a situation, it is extremely difficult to hold that the prosecution has established the charge under Section 498-A IPC and the fact that the said cruelty induced the wife to commit suicide. It is manifest that the wife was guided by the rumour that aggravated her suspicion which has no boundary. The seed of suspicion planted in mind brought the eventual tragedy. But such an event will not constitute the offence or establish the guilt of the appellant-accused under Section 306 IPC."

8. Learned counsel also submits that to construe an offence of abetment of suicide, intention or involvement of the accused, is to be proved by the prosecution. He further submits that in the present case, except these three letters dated 3.7.1988, no other incriminating evidence has been brought by the prosecution to establish that the accused did something to abet the suicide by the deceased and he had intention and involvement in abetting the suicide by the deceased. To buttress the aforesaid submission, learned counsel has placed reliance on the judgment rendered by the Supreme Court in the case of Gurucharan Singh v. State of Punjab reported in (2017)1SCC 433. Paragraphs 27 to 28 of the aforesaid judgment are extracted hereinbelow:

"27. The pith and purport of Section 306 IPC has since been enunciated by this Court in Randhir Singh v. State of Punjab, and the relevant excerpts therefrom are set out hereunder:

"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.

13. In State of W.B. v. Orilal jaiswal, 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 the 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" (emphasis supplied)

28. Significantly, this Court underlined by referring to its earlier pronouncement in Orilal Jaiswal that courts have to be extremely careful in assessing the facts and circumstances of each case to ascertain as to whether cruelty had been meted out to the victim and that the same had induced the person to end his/ her life by committing suicide, with the caveat that if the victim committing suicide appears to be hypersensitive to ordinary petulance, discord and differences in domestic life, quite common to the society to which he or she belonged and such facts were not expected to induce a similarly circumstanced individual to resort to such step, the accused charged with abetment could not be held guilty. The above view was reiterated in Amalendu Pal v. State of W.B."

9. Learned counsel for the accused-appellant further submits that there had been proximate link between alleged extra-martial relationship of the appellant and the commission of suicide by the deceased. The deceased was happy in her in-laws' home and even with her husband which is clear from the letters written before 3.7.1988 to her family members and, therefore, there is no proximate relationship with the action by the accused-appellant and the act of commission of suicide by the deceased. In support of the aforesaid submission, learned counsel has placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of M. Mohan v. State represented by the Deputy Superintendent of Police reported in (2011)3 SCC Page 626. Paragraphs 44, 45 and 48 of the aforesaid judgment are extracted hereinbelow:

"44. 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.

45. The intention of the legislature and the ratio of the cases decided by this Court are 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/she committed suicide.

48. In the instant case, what to talk of instances of instigation, there are even no allegations against the appellants. There is also no proximate link between the incident of 14.1.2005 when the deceased was denied permission to use the Qualis car with the factum of suicide which had taken place on 18-1-2005. Undoubtedly, the deceased had died because of hanging. The deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. In a joint family, instances of this kind are not very uncommon. Human sensitivity of each individual differs from person to person. Each individual has his own idea of self-esteem and self-respect. Different people behave differently in the same situation. It is unfortunate that such an episode of suicide had taken place in the family. But the question that remains to be answered is whether the appellants can be connected with that unfortunate incident in any manner?"

10. On the other hand, Sri S.P. Singh, learned Additional Government Advocate appearing for the State, submits that three letters written by the deceased immediately before her committing suicide would establish beyond any doubt that accused created circumstances in which the deceased thought that it would be better for her to end her life. She found living so difficult and torturous that she decided to put an end to his life. Her all dreams of married happy life came crushing down when she found her husband was having illicit relationship with another woman and despite her protest he did not stop but tortured her.

11. The incriminating evidence available on record are three letters which are required to be examined closely to find out whether the accused-appellant had abetted suicide by the deceased, or not. The trial court has re-produced the letters (Exhibits 8/1 and 8/2). From reading of these two letters and another letter of the said date i.e. Exhibit 7, it is apparently clear that the deceased was in huge mental distress and suffered mental trauma because of illicit relationship of her husband with another woman. Not only the accused-appellant was carrying on with the illicit relationship with another woman, but he also used to torture his newly wedded wife inasmuch as he would go out in the night despite protest by her wife to spend night with another woman. He had beaten his newly wedded wife when she protested for him having illicit relationship with another woman. The conduct of the accused-appellant, his treatment to her newly wedded wife and his extra-marital relationship with another woman would constitute abetment of suicide.

12. The Supreme Court in a recent judgment passed in Criminal Appeal No.1606 of 2009 titled 'Siddaling v. The State throgh Kalagi Police Station' has said that illicit relation of husband with another woman creats psychological imbalance and if the wife commits suicide, the husband would be guilty of offence under Section 306 of the Indian Penal Code. Paragraph 9 of the aforesaid judgment is reproduced hereinbelow:

"9. In the case in hand, the witnesses P.W.-1, P.W.-6, P.W.-10 and P.W.-22 have clearly in their statement stated that the appellant continued his relation with another woman. The appellant's illicit relation with another woman would have definitely created the psychological imbalance to the deceased which led her to take the extreme step of committing suicide. It cannot be said that the appellant's act of having illicit relationship with another woman would not have affected to negate the ingredients of Section 306 IPC."

13. Considering the evidence and the submissions of the learned counsel for the accused-appellant as well as Sri S.P. Singh, learned Additional Government Advocate, I, therefore, uphold the impugned judgment and order of conviction passed by the trial court and dismiss the appeal.

14. The incident was of 1988, since the date of incident, 30 years already gone-bye. In view of the long time between the date of incident and date of judgment of this court, it would be appropriate to reduce the punishment.

15. Thus, the present appeal is dismissed against conviction. However, the sentence awarded by the learned trial court is modified from seven years to three years. Sentence already undergone will be adjusted. The bail bonds are cancelled. The accused is to be taken in custody to serve out the reminder of the sentence as awarded by this Court.

16. Let lower court record be sent back to the court concerned.

Order Date :- 5.10.2018

GK Sinha