Rajasthan High Court - Jodhpur

Gopal Krishan vs State on 31 August, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 379/2003

Gopal Krishan

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. M.S. Rajpurohit For Respondent(s) : Mr. S.S. Rajpurohit, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 26/08/2022 Pronounced on 31/08/2022

1. These criminal appeal under Section 374 Cr.p.c. have been

preferred claiming the following reliefs: -

"It is, therefore, most respectfully prayed that the appeal of the appellant may kindly be allowed and he be acquitted".

2. Brief facts of the case as placed before this Court by the

learned counsel for the appellant are that on 21.05.2001, the

complainant-Purshottamlal (father of the deceased victim) lodged

a report, while at Bumkan Hospital, Badi Sadri, alleging therein

that on the said day, his daughter (Smt. Girjia Sharma), was

married to accused-appellant around 15-16 years ago prior to the

date of the incident. After marriage she normally used to visit her

maternal as well as her in-laws house. And that, in last 2-3 years

of marriage, the accused-appellant has developed an illicit

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relationship with one nurse, and because of such illicit

relationship, the complainant's daughter's - (Smt. Girjia)

relationship with the accused did not remain cordial. And that

because the complainant's daughter could not bear a child out of

the wedlock, the accused-appellant harassed and committed

mental cruelty against the daughter of complainant. On count of

such harassment and mental cruelty, the daughter of complainant

daughter committed suicide.

2.1 On the basis of the aforementioned complaint, an FIR,

bearing no. 178/2001, at Police Station Badi Sadri, District

Chittorgarh was registered under Sections 306, and 498A of I.P.C.

and the investigation commenced; whereupon, a charge-sheet

was filed against accused-appellant (Gopal Krishna) and co-

accused Smt. Usha under Sections 306 and 498A of I.P.C.

Thereafter, the learned Trial Court framed charges against both

accused and trial has been commenced and during such trial,

prosecution produced 20 witnesses and exhibited 25 documents

and also statements under Section 313 Cr.P.C. were recorded. In

the defence of the accused, one witness was examined and total

20 documents were exhibited.

2.2 Thereafter, learned Trial Court acquitted the co-accused,

Smt. Usha, by giving her the benefit of doubt, but, convicted the

accused-appellant for the offenes under Sections 306 and 498A

I.P.C. and sentenced him to undergo rigorous imprisonment for a

period of 7 years, alongwith a fine of Rs.10,000/- in default of

payment fine, he was to undergo further S.I of 6 months.

3. Learned counsel for the appellant submits that the deceased-

victim, who passed away by suicide, left behind a suicide note,

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wherein there were no allegations of cruelty or harassment by the

husband. And that, in fact it was explicitly stated that neither her

husband, the accused-appellant nor his family members were

responsible for her act.

4. Learned counsel for the appellant further submits that a

perusal of the testimonies of the witnesses, there are no

averments of cruelty or abuse, by the husband, towards the

deceased victim. Furthermore, the testimony of the advocate,

D.W. 1 Radhey Shyam who was the neighbour of the victim, and

present in the hospital while the deceased wife was being treated,

and that it was his statement, that the police in fact, forced the

complainant, Pushottam, to lodge an F.I.R.

5. Learned counsel for the appellant also submits that for the

offence under Sections 306 I.P.C. to be made out, there has to be

instigation on the part of the accused, which is clearly absent in

the present case. Moreover, for the offence under Section 498A

I.P.C. to be made out against the accused, cruelty and

harassment, either physical or mental, has to be proven, which is

also absent in the facts of the present case. And that, the accused

therefore cannot be held culpable for the offences herein, in light

of the unambiguous and clear suicide note left behind by the

deceased.

6. Learned counsel for the appellant further submits that the

deceased victim, who were married for about 15/16 years, were

unable to have children together, and that the same negatively

impacted her mental health and well being.

7. Heard learned counsel for both parties, and perused the

record of the case.

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8. At the outset, this Court observes that, the judgment of this

Court in Madan Lal and Ors. Vs. State S.B. Criminal Appeal

No. 439/1989 has dealt with the issue in the present case at

length, relevant portion of the same is reproduced hereinunder:-

"This Court deems it appropriate to revisit the settled position of law that a dying declaration must be placed on a higher pedestal than other regular evidence. The same has been held by the Hon'ble Apex Court in Gurjeet Singh Vs. State of Punjab AIR 2020 SC 795 and Ramesh Kumar Vs. State of Chattisgarh AIR 2001 SC 3837 wherein the ingredients of Section 306 I.P.C. and Section 113-A of the Indian Evidence Act, on the basis of which an accused person may be convicted have been discussed and explained, whereby the Hon'ble Court has held that the prosecution has to prove its case beyond reasonable doubt that accused instigated the deceased to commit suicide, which is not the case in the present appeal.

Relevant portion of the abovementioned cases read as follows:-

In Gurjeet Singh (supra)

"It could thus be seen, that this Court has observed that to attract the applicability of Section 113-A of the Indian Evidence Act, the following conditions are required to be satisfied: (i) The woman has committed suicide, (ii) Such suicide has been committed within a period of seven years from the date of her marriage, (iii) The husband or his relatives, who are charged had subjected her to cruelty.

This Court further observed that on the existence and availability of the aforesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. It has been held that the presumption is not mandatory; but only permissive as the words "may presume" suggests. It has further been held that the existence and availability of the aforesaid three circumstances shall not, like a formula, enable the presumption being drawn. It has been held that before a

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presumption being drawn, the court shall have regard to all other circumstances of the case. It has been held, that the consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. It thus observed that the expression "the other circumstances of the case" used in Section 113-A of the Indian Evidence Act suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption.

...However, it has been observed that a reasonable certainty to incite the consequence must be capable of being spelt out. Relying on the judgment of this Court in the case of State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73, it is observed that the court 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. It has further been held that Section 498-A and Section 306 of the Indian Penal Code are independent and constitute different offences. It has been observed, that depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence Under Section 498-A of the Indian Penal Code. It has further been observed, that if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, it may also amount to abetment to commit suicide. It is further observed, that, however, merely because Accused had been held liable to be punished Under Section 498-A of the Indian Penal Code, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned.

Another three-Judge bench of this Court in the case of K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and Ors. (2003) 1 SCC 217 had an occasion to consider the question as to whether in the circumstances of framing charge only Under Section 304-B of the Indian

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Penal Code and not framing the one Under Section 306 of the Indian Penal Code, could the conviction Under Section 306 of the Indian Penal Code read with Section 113-A of the Indian Evidence Act be tenable? In the said case, the Court found that the charge specifically mentioned as under.

That on or about the 22nd day of October, 1989, at your house at Tunikipadu of Gampalagudem Mandal, Yedla Krishna Kumari, wife of A-1 among you and daughter-in- law of A-2 and A-3 among you, committed suicide by consuming poison, and that you all subjected her to such cruelty and harassment as did drive her to commit suicide, with the object of extracting ac. 5.00 of land as dowry to A-1 and thereby committed an offence punishable Under Section 304B of the Indian Penal Code, 1860 and within the cognizance of this Court.

That, prior to the 22nd day of October, 1989, at your house at Tunikipadu, you subjected Yedla Krishna Kumari, wife of A-1 among you and daughter-in-law of A-2 and A- 3 among you, to such cruelty and harassment as did drive the said Krishna Kumari to commit suicide, and thereby committed an offence punishable Under Section 498-A of the Indian Penal Code, 1860 and within the cognizance of this Court.

The court, therefore, held that the ingredients to constitute an offence Under Section 306 of the Indian Penal Code were already found in the charge and as such no prejudice was caused to the Accused therein, though no separate charge was framed Under Section 306 of the Indian Penal Code. Apart from that, the evidence on record established that when the letters concealed by the husband were discovered by the wife and handed over to the father and she was driven out of the house, this cruel conduct of the husband led the wife to commit suicide. It could thus be seen, that in the facts of the said case, the Court found that the conviction Under Section 306 of the Indian Penal Code could be recorded. It was found that, apart from the earlier acts of harassment for parting with the land which she had received in marriage as stridhana, there was an act of driving the deceased out of

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the house which had direct nexus with the deceased committing suicide.

The bench of two Judges of this Court had an occasion to consider a similar issue in the case of Hans Raj v. State of Haryana (2004) 12 SCC 257. It will be relevant to refer to following paragraphs:

The question then arises as to whether in the facts and circumstances of the case the Appellant can be convicted of the offence Under Section 306 Indian Penal Code with the aid of the presumption Under Section 113-A of the Indian Evidence Act. Any person who abets the commission of suicide is liable to be punished Under Section 306 Indian Penal Code. Section 107 Indian Penal Code lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. In the instant case there is no direct evidence to establish that the Appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon Section 113-A of the Indian Evidence Act under which the court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the Accused. The explanation to Section 113-A further clarifies that cruelty shall have the same meaning as in Section 498-A of the Indian Penal Code......

Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act, the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the court is not bound to presume that the suicide had been abetted by her husband. Section 113-A

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gives a discretion to the court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A Indian Penal Code. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman......

The court found that in the case there was no direct evidence to establish that the Appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. It has been held that when the allegation is of cruelty, it must consider the nature of cruelty to which the woman was subjected having regard to the meaning of the word "cruelty" in Section 498-A of Indian Penal Code. It has been held that one of the circumstances which has to be taken into consideration by the court is whether the alleged cruelty was of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman.

This Court in the case of Hans Raj (supra) has also referred to the judgment of this Court in the case of State of West Bengal v. Orilal Jaiswal (supra), wherein it is observed that the requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A of the Indian Penal Code and Section 113-A of the Indian Evidence Act.

It will be relevant to refer to the following observations of this Court in the case of Pinakin Mahipatray Rawal v. State of Gujarat (2013) 10 SCC 48:

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Section 113-A only deals with a presumption which the court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the Rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the Section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A Indian Penal Code, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the Accused Under Section 498-A Indian Penal Code is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extramarital affair was of such a degree which was likely to drive the wife to commit suicide.

Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished 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 extramarital 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.

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It has thus been observed that though presumption could be drawn, the burden of proof of showing that such an offence has been committed by the Accused is on the prosecution. The prosecution has to establish beyond reasonable doubt that the Accused had instigated, conspired or intentionally aided so as to drive the wife to commit suicide.

After observing the aforesaid, this Court, relying on the judgment of this Court in the case of Hans Raj (supra), observed that even if it is established that the woman concerned had committed suicide within a period of seven years from the date of marriage and that her husband has subjected her to cruelty, the court is not bound to presume that suicide has been abetted by her husband. It is required to take into consideration all other circumstances of the case.

It could thus be seen, that the view taken by the three-Judge Bench of this Court in the case of Ramesh Kumar (supra) that when a case does not fall under Clause secondly or thirdly, it has to be decided with reference to the first clause, i.e., whether the Accused has abetted the commission of suicide by intentionally instigating her to do so; has been consistently followed. As such, we are of the view that merely because an Accused is found guilty of an offence punishable Under Section 498-A of the Indian Penal Code and the death has occurred within a period of seven years of the marriage, the Accused cannot be automatically held guilty for the offence punishable Under Section 306 of the Indian Penal Code by employing the presumption Under Section 113A of the Evidence Act. Unless the prosecution establishes that some act or illegal omission by the Accused has driven the deceased to commit the suicide, the conviction Under Section 306 would not be tenable.

... It would thus be seen, that the charge does not state that the deceased was driven to commit suicide on account of the harassment meted out to the deceased. It also does not mention that the Accused had abetted in commission of suicide by the deceased. In that view of the matter, we are of the considered view that the cases wherein conversion is held to be permissible are clearly distinguishable.

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 In Ramesh Kumar (supra)

"Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect. or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. the present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.

In State of West Bangal vs. Orilal Jaiswal and Anr.- 1994 CriLJ 2104, this Court has cautioned that the Court 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 difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstances 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.

Sections 498A and 396 IPC are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under Section 498A and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to

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commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned. Evidential value of the two writings contained in diary Article A is that of dying declaration. On the principle underlying admissibility of dying declaration in evidence that truth sits on the tips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. The writing on page 11 of diary (Article A) clearly states that the cause for committing suicide was her own feeling ashamed of her own faults. She categorically declares-none to be held responsible or harassed for her committing suicide. The writing on page 12 of diary (Article A) clearly suggests that some time earlier also she had expressed her wish to commit suicide to her husband and the husband had taken a promise former that she would not do so. On the date of the incident, the husband probably told the deceased that she was free to go wherever she wished an wanted to go and this revived the earlier impulse of the deceased for committing suicide. The dying declaration Exbt. P/10 corroborates the inference flowing from the two writings contained in the diary and as stated hereinabove. The conduct of the accused trying to put off the fire and taking his wife to hospital also improvableness the theory of his having abetted suicide.

In our opinion there is no evidence and material available on record wherefrom an inference of the accused-appellant having abetted the commission of suicide by Seema may necessarily be drawn. The totality of the circumstances discussed hereinabove,

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especially the dying-declaration and the suicide notes left by the deceased herself, which fall for consideration within the expression "all the other circumstances of the case" employed in Section 113A of Evidence Act, do not permit the presumption thereunder being raised against the accused. The accused-appellant therefore, deserves to be acquitted of the charge under Section 306 IPC."

The Hon'ble Apex Court in Ramesh Kumar (supra) analysed and laid down, what would constitute 'instigation' as under Section 306 I.P.C. and, on the admissibility and authenticity of a dying declaration, held that unless there is any material available on the record from which an opinion could be formed, that the deceased victim while making such a dying declaration was attempting to hide or conceal the truth, from either having been persuaded to do so or because of sentiments for her husband, then there was absolutely no reason to disbelieve the dying declaration so made by the deceased victim.

This Court is also conscious of the recent judgment rendered by the Hon'ble Apex Court in the case of Kamal Khudal Vs. State of Assam Criminal Appeal No. 470 of 2015 (Supreme Court) decided on 14.07.2022, wherein the Hon'ble Apex Court reiterated the weight that a dying declaration carried as evidence, and made the following observations regarding the same:-

"We may refer to one of the decisions of this Court in the case of Heikrujam Chaoba Singh v. State of Manipur (1999) 8 SCC 458, wherein in para 3 this Court observed as under: An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a Rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness

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who deposes about such oral declaration to him must pass the scrutiny of reliability....

"Truth sits upon the lips of a dying man." -Matthew Arnold The whole idea of accepting a statement in the name of dying declaration comes from a maxim "Nemo moriturus praesumitur mentire" which means that a man will not meet his maker with a lie in his mouth. It is believed that when a man is at the point of death and when every expectation of this world is gone, it hushes away every motive of lie."

20. Now, adverting to the facts and circumstances of the present case, this Court finds that there is no material available on the record to suggest that the dying declaration so made by the deceased Jamna was made due to any kind of coercion or persuasion.

22. This Court therefore, looking into the overall facts and circumstances of this case, and after a thorough perusal of the record and keeping in mind the ratio decidendi as laid down by the Hon'ble Apex Court in the cases of Gurjeet Singh (supra) Ramesh Kumar (supra), and Kamal Khudal (supra) finds that it is a fit case for acquittal, as the prosecution has not been able to prove its case against the accused herein, beyond all reasonable doubt."

9. Now adverting to the facts of the present case, this Court

finds that the deceased victim, the wife of the accused-

appellant, Smt. Girija, before her passing away, was taken to

the hospital for treatment where her statements were recorded

before the S.H.O. P.W.-15 Bhagwat Singh and the Doctor, P.W.-

13 Dr. Vimal Kumar Nagori, which was marked as Exhibit D/6,

wherein she stated that she consumed the tablets oh her own

free will, and that her husband nor his family were to blame for

her mental state.

10. This Court further observes that there is nothing on the

record to suggest that the suicide note, at Ex. D/8, which was

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