Criminal Appeal No.200-DBA of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.200-DBA of 1996. Date of Decision : 14.10.2010. The State of Punjab (1) ......Appellant Versus Jaibinder Devi & others ......Respondents Criminal Revision No.860 of 1995. Date of Decision : 14.10.2010. Kidar Nath ......Petitioner (2) Versus Jaibinder Devi & others ......Respondents CORAM : HON'BLR MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. N.S. Pawar, Addl. AG, Punjab, for the appellant-State. Mr. Sachin Sharma-Amicus Curiae. Mr. Ajay Pal Singh, Advocate, for the complainant-revisionist. NAWAB SINGH J. This judgment disposes of above named appeal filed by State of Punjab and revision filed by the complainant against the judgment dated April 24th, 1995 passed by Additional Sessions Judge, Sangrur, whereby, respondents were acquitted in case bearing First Information Report No. 46 dated February 20th, 1991 Criminal Appeal No.200-DBA of 1996 2 under Sections 294, 306, 506 read with Section 34 of Indian Penal Code, Police Station Sangrur. 2. Kamlesh Rani (deceased) was neighbour of Gurwinder Singh alias Shinda-respondent No. 3. She was student of B.A. IInd year studying in Sangrur-10 Kms away from her village Badrukhan. Unfortunately, she set herself ablaze in her house on February 20th, 1991 at 8.15 AM. She was taken to Civil Hospital, Sangrur by her uncle Ram Kumar. Information (Exhibit PA/1) was sent to the Station House Officer, Police Station Sangrur by Doctor Avinash Chander Gupta (PW-1). Upon this, Durga Dass Bhatia (PW-7) reached the hospital. The Medical Officer vide opinion (Exhibit PA/5) declared Kamlesh Rani fit to make statement. Durga Dass recorded her statement (Exhibit PB). She stated that Gurwinder Singh alias Chhindi had written her 2-3 letters mentioning therein that he loves her. Not only that, whenever he used to meet her, he would ask her to marry him. Otherwise, he would take her forcibly. Out of fear, she did not inform any one. On February 19th, 1991 at about 6 PM Jaibinder Devi and her son Satish Kumar-respondents No.1 and 2 came in front of her house and called her. She met them in the street. Satish Kumar handed over a letter to her written by Gurwinder Singh. It was written by Gurwinder Singh that she should meet him on February 22nd, 1991. On the ill-starred day—February 20th, 1991 at about 8.15 AM, all the respondents came outside her house, Jaibinder Devi called her. She came in the street. All of them asked her to marry Gurwinder Singh. All of them again told her that if she did not marry, they would take her along with them. Due to fear, she set herself ablaze. On the statement of Kamlesh Rani (Exhibit PB) attested by the Medical Officers Avinash Chander Gupta (PW-1) and K.G. Singla (PW-3), First Information Report (Exhibit PB/3) was recorded. Kamlesh Rani succumbed to her injuries on February 21st, 1991. Dr. Avinash Chander Gupta (PW-1) and Dr. K.C. Goyal (PW-2) found that Kamlesh Rani had received 100% burns and she died on account of burn injuries. 3. The spot was inspected by Durga Dass Bhatia- Criminal Appeal No.200-DBA of 1996 3 Investigator (PW-7). One can and match box were taken into possession vide recovery memorandum (Exhibit PC). From the house of the deceased, a letter (Exhibit P3) purported to have been written by Gurwinder Singh to the deceased was also taken into possession vide recovery memorandum (Exhibit PB). 4. Learned trial Judge acquitted the respondents, inter-alia, on the ground that the statement (Exhibit PB) could not have been made by the deceased to the Investigator because of her state of condition and the deceased and Gurwinder Singh were friends and question of threatening the deceased by him and the remaining respondents to abet her to commit suicide did not arise. 5. By reading and re-reading of the statement (Exhibit PB) of the deceased which later on became dying declaration, letter (Exhibit P3) written by Gurwinder Singh to the deceased, the statement of Kidar Nath (PW4) uncle of the deceased who stated that he witnessed Gurwinder Singh handing over a letter to his niece in the street and the photographs of the deceased (Exhibits D1 to D5) placed on record by Gurwinder Singh shows that both of them were having a love affair. The letter (Exhibit P3) is in Punjabi language which when translated reads as under:- “My Dearest Dearest Kamlesh Sweet Sweet Love After full of affection and sweet embrace of love, your lover is all right. Perhaps there is no love in your heart. Had you loved me then you would have asked about me through somebody that how did I spend the night of Muklawa. Nor did I receive any reply from you. If you do not want to reply then it is your choice. I cannot force you. I want to assure you. If I am to be an absconder after six months because of your love, I can become so before that even because neither I will be in front of you nor will you remember that there was any Shinda. If you have love for me then I will tell you the rest of things on meeting. I can Criminal Appeal No.200-DBA of 1996 4 not meet you on 20th. I will meet you Friday on 22nd on the earlier place (Longowal Medicine Store) at 10 AM. You will not come either before or after 10 AM, there may be delay of 2-5 minutes. Rest of the things are fine. Forget me if I had committed any mistake. Thirsty of your love and in wait of your reply. Only yours Shinda.” 6. A reading of the aforesaid letter shows that the deceased and Gurwinder Singh had fixed a meeting on February 20th, 1999 but the said date did not suit Gurwinder Singh and he requested the deceased to come on February 22nd, 1999 at 10 AM at the chemist shop where they had been meeting earlier also. 7. Under the given circumstances, the question arises as to whether the accused-respondents abetted the offence which could bring their act under the mischief of Section 306 IPC for which they were charged. 8. The evidence led by the prosecution per se cannot establish offence punishable under Section 306 IPC because it does not establish abetment of suicide. Abetment has been defined under section 107 IPC, that is, a person abets the doing of a thing who, firstly, instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if the act of 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. None of the ingredients of abetment is there in the present case even if the evidence adduced by the prosecution is taken at its face value. 9. To support the view, reference can profitably be made to the following authorities of the Hon'ble Supreme Court:- (i) In Mahendra Singh vs. State of M.P. 1995 Supp.(3) SCC 731, the appellant was charged for an offence under Section 306 I.P.C. basically based upon the dying declaration of the deceased, which read as under : Criminal Appeal No.200-DBA of 1996 5 "My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in- law. Because of these reasons and being harassed I want to die by burning." After taking into consideration the definition of 'abetment' under Section 107 IPC, Hon'ble Supreme Court observed that neither of the ingredients of abetment were attracted to the statement of the deceased. The conviction of the accused-appellants under Section 306 IPC merely on the allegations of harassment to the deceased was held to be unsustainable. Same view was taken by the Hon'ble Supreme Court in Kishori Lal vs. State of M.P. 2007(3) RCR (Criminal) 385 relying on Mahendra Singh's case (supra) that merely on the ground of harassment, conviction in terms of Section 306 IPC is not sustainable. (ii) In Ramesh Kumar vs. State of Chhattisgarh 2001(4) RCR (Criminal) 537, there was a dispute between Ramesh Kumar- husband and wife. The husband uttered “You are free to do whatever you wish and go wherever you like.” Thereafter, the wife of the accused committed suicide. A three-Judge bench of Hon'ble Supreme Court commented on the meaning of 'instigation' in paragraph No.20 of the judgment which reads as sunder”- "20. 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 Criminal Appeal No.200-DBA of 1996 6 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." (iii) In Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi), 2009 (4) RCR(Criminal) 196, Hon'ble Supreme Court dealt with dictionary meaning of the word “instigation” and “goading”. The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. (iv) In a recent judgment Madan Mohan Singh vs. State of Gujarat and another 2010 (5) RAJ 151, deceased was working as a driver of the accused-appellant. He left a suicide note running into 15 pages stating that the accused who was his boss used to insult him a number of times before staff and he felt depressed and due to this committed suicide. Hon'ble Supreme Court held that the accused was not guilty of abetment of suicide and quashed the First Information Report. 10. The intention of the Legislature and the ratio of the aforesaid authorities makes it 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 and 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. 11. Viewed from the circumstances, there is not an iota of evidence that Gurwinder Singh and other respondents had at any Criminal Appeal No.200-DBA of 1996 7 point of time instigated the deceased to commit suicide and as such, ingredients of abetment are totally absent in the instant case for an offence under Section 306 IPC. The question formulated above is answered accordingly. Thus, the appeal and revision are dismissed. (ASHUTOSH MOHUNTA) (NAWAB SINGH) JUDGE JUDGE 14.10.2010. SN