Madras High Court

Churchil John Wesley Raj vs Deputy Superintendent Of Police on 5 July, 2012

Author:
R. Mala

Bench:
R. Mala

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 05.07.2012

CORAM:

THE HONOURABLE MS. JUSTICE R. MALA

Criminal Appeal No.120 of 1999

Churchil John Wesley Raj .. Appellant/Accused

VS.

Deputy Superintendent of Police
CBCID, Metro Wing
Chennai. .. Respondent/Complainant

Prayer: Criminal Appeal filed under
Section 374(2)
of Cr.P.C., against the judgment of conviction and sentence dated 11.02.1999, made in S.C.No.185 of 1992 on the file of the I Assistant Sessions Court, Chennai.

For Appellant : Mr.S.Mahimairaj
For Respondent : Mr.C.Emalias
Govt. Advocate (Crl. Side)

J U D G M E N T

The criminal appeal arises out of the judgment of conviction and sentence dated 11.02.1999, made in S.C.No.185 of 1992 on the file of the I Assistant Sessions Court, Chennai, whereby the accused/appellant was convicted for the offences under
Sections 306
and
498A
IPC. He was convicted for the offence under
Section 306
IPC and sentenced to undergo nine years rigorous imprisonment and imposed a fine of Rs.5,000/- in default in payment to undergo six months simple imprisonment. He was convicted for the offence under
Section 498A
IPC and sentenced to undergo one year rigorous imprisonment and imposed a fine of Rs.5,000/- in default in payment to undergo three months simple imprisonment and the sentence shall run concurrently.

2.The respondent police has filed a charge sheet against the accused herein stating that the marriage between the deceased Elisa Hariyat Sagaya Mary and the accused/appellant herein was performed on 11.11.1987. Due to their lawful wedlock, she gave birth to a female child. The accused was pledged her jewels then and there, which was given by the deceased family at the time of marriage and he committed cruelty upon her. Since he took away her thali chain one week before the date of occurrence, she made a quarrel with him and due to the same, she herself doused kerosene and at the time, the accused abetted her for commission of suicide. Hence, a charge sheet has been framed against the accused for the offences under
Sections 306
and
498A
IPC.

3.The case of the prosecution is as follows:

(i) P.W.1/Sambandam and P.W.2/Amala is the father and mother of the deceased Elisa Hariyat Sagaya Mary. They are having two sons and one daughter, who was the deceased. The marriage between the accused and the deceased was performed on 11.11.1987. The marriage invitation was marked as Ex.P1. At the time of marriage, P.W.1 gave 32 sovereigns of gold jewels, furniture and all utensils. The accused had pledged as well as sold the jewels of the deceased then and there. In the meanwhile, the deceased gave birth to a female child on 31.07.1988. Since the deceased was subjected to cruelty and dowry demand in the hands of the accused, she left the matrimonial home and gave Ex.P24 complaint before the Superintendent of Police, R5 Police station, Choolaimedu. In pursuance of the same, the accused gave Ex.P25 letter before the aforesaid police station, stating that he is looking after his wife well. Thereafter, as per Ex.P26, the deceased withdrawn her complaint and both are living together.

(ii) P.W.4 is Father Michael Hirudayam, who performed the marriage between the accused & the deceased and the marriage certificate was marked as Ex.P2. P.W.6 Father Anthony is having the marriage Registration certificate, which was marked as Ex.P4.

(iii) P.W.3/Govindammal, P.W.8/Nagesh and P.W.9/Gopi, who were neighbours of the deceased, deposed that on 24.11.1989, at 11.00 a.m., when they were in their house in R.B.I. Colony, they heard noise and rushed to the deceased house. At the time, the deceased was in the midst of flames, which was trying to put out by her husband with bed. Immediately, the accused along with others took the deceased to the Kilpauk Medical hospital. P.W.1 and P.W.2 received the information that their daughter had committed suicide and immediately, they gone to the Kilpauk Medical Hospital. P.W.26 Dr.Shah examined the deceased and gave Ex.P33 Accident Register copy, in which, it was stated that the deceased alleged to have sustained burns when her saree accidentally caught fire at 11.00 a.m.

(iv)P.W.7/Krishnan, who was working as Sub-Inspector of Police (Law and order), received information from the Kilpauk Medical Hospital and rushed to the hospital at 3.00 p.m. and examined the injured Elisa Hariyat Sagaya mary in the presence of P.W.27/Dr.Ananda subramaniam and one Santhosh, who came for treatment and recorded her statement and the same was marked as Ex.P5. Since the deceased was unable to sign in the statement, her Left Thumb Impression was obtained. P.W.7 also obtained attestation from P.W.27/Dr.Ananda Subramaniam and Santhosh. Then he returned to the Choolaimedu Police station and registered a case in Crime No.1325 of 1989 under
Sections 309
&
498A
IPC and prepared printed F.I.R. Ex.P6. Since the deceased was sustained burn injuries, which were grievous in nature, he had taken steps to record her dying declaration. Therefore, he sent a requisition to the learned Magistrate.

(v) P.W.30/the learned XXth Metropolitan Magistrate, Chennai, received the requisition Ex.P36 and went to the Kilpauk Medical Hospital at 5.00 p.m. on 24.11.1989. After following the procedure, she recorded the dying declaration of the deceased and the same was marked as Ex.P37. P.W.27/Dr.Ananda subramaniam had attested the same.

(vi) On 24.11.1989, at 4.00 p.m., P.W.22/Ganesan, Inspector of Police (Law and Order) received F.I.R. Copy from P.W.7 and forwarded the same to Assistant Commissioner, Anna Nagar Division, since the case was related to dowry demand. M.O.26 & M.O.27 were seized from the place of occurrence in the presence of the witnesses Srinivasan and Sivanandam and the seizure mahazar for the articles recovered from the deceased house was marked as Ex.P22 and observation mahazar was marked as Ex.P21. On 26.11.1989, he received the death intimation from the Hospital that the deceased was died.

(vii) On 26.11.1989, P.W.23/Antonyraj, a Tahsildar went to the place of occurrence and examined the neighbours of the deceased and recorded their statements. Then he went to the Kilpauk Medical Hospital and conducted inquest on the body of the deceased in the presence of the witnesses and Panchayatars. He prepared inquest report Ex.P31 and recorded the statements of accused, P.W.1/father of the deceased, One Sethuraman and Rani, under Exs.P27 to P30 respectively.

(viii) After inquest, the body of the deceased was sent to post-mortem. P.W.28/Dr.Thangaraj conducted autopsy on 27.11.1989 and the post-mortem certificate was marked as Ex.P35. Then the body of the deceased was handed over to her relatives.

(ix) On 08.12.1989, as per Ex.P38 an order of the higher official, P.W.31 took up the matter for further investigation. On 02.1.1990, he examined the witnesses and recorded their statements. On 3.1.1990, he examined the Doctors and recorded their statements. On 8.1.1990, he arrested the accused and recorded his confession statement in the presence of the witnesses Samuel and Sairaj and obtained their signatures. In his confession statement, the accused stated that he will show the Pawn Broker's shop, where he pledged and sold the jewels and the admitted portion was marked as Ex.P39. Then, P.W.31 gone to the Pawn Broker shop along with the accused and the above said witnesses and recovered M.Os.5 to 8 under Ex.P10, M.O.9 & M.O.10 under Ex.P11, M.O.11 under Ex.P12, M.Os.12 to 20 under Ex.P13, M.O.21 has been recovered under Ex.P14, M.O.22 was seized under Ex.P18, M.O.23 was seized under Ex.P15. He also seized M.O.24 from P.W.16 Mohammed Naina, a jewellery owner, in the presence of the attestor P.W.15/Sairaj. M.O.25 was seized in the presence of P.W.17/Ramu, who was accompanied with the accused for pledging jewels. M.O.28 was seized under Ex.P23. While P.W.31 investigating the matter, at the time, the matter was referred to C.B.C.I.D.

(x) Further, P.W.32/S.Rajagopalan, who was working as Deputy Superintendent of police, C.B.C.I.D. took up the matter and examined the witnesses and recorded their statements. After completing the investigation, he filed a charge sheet against the accused for the offences under
Sections 302
and
498A
IPC.

4.The trial Court placed the incriminating evidence before the accused and the accused denied the same in toto. On his side, D.W.1 was examined to show that the occurrence was only an accidental fire and there was no cruelty upon her and the accused did not abet for commission of suicide. After considering the oral and documentary evidence, the trial Court convicted the appellant/accused for the offences under
Sections 306
and
498A
IPC and sentenced him as stated above.

5. Challenging the conviction and sentence passed by the trial Court, Mr.S.Mahimairaj, learned counsel for the appellant/accused submitted that there are so many dying declarations given by the deceased. P.W.3/Govindammal, P.W.8/Nagesh and P.W.9/Gopi and Rani, who are neighbors of the deceased, were deposed before the Court that when they heard noise from the house of the deceased, they gone there at the time, the deceased was in the midst of flame, which was put out by her husband and she was immediately taken to the hospital. On the way to hospital, she gave her first dying declaration that she caught fire accidentally. But whereas in the complaint and dying declaration before the Magistrate, it was stated that her husband was abetted her for committing suicide. So the trial Court committed an error in convicting the accused on the basis of the dying declaration given by the deceased. He further submitted that there is a contradiction in the material evidence and since there is no eye witness, the case is based on circumstantial evidence and the ingredients of abatement has not been made out and the trial Court has not considered the same. Hence, he prayed for acquittal of the accused. To substantiate his arguments, he relied upon the judgment of the Apex Court as well as this Court.

6.Resisting the same, Mr.C.Emalias, the learned Government Advocate (Crl. Side) submitted that it is true in Ex.P33/Accident Register Copy, it was stated that the deceased's saree caught fire when she was in the house, but in the hospital, her husband was accompanied with her, so she was unable to disclose the real fact. In the complaint, when she gave her statement before P.W.7/Sub-Inspector, she narrated how the occurrence had been taken place. Before the learned Magistrate also, she gave her dying declaration in the same manner. P.W.27/Doctor attested the dying declaration stating that the deceased was conscious when she gave statement. So the trial Court rightly held that the accused is guilty for the offence under
Sections 306
and
498A
IPC. He further submitted that before her death, during her lifetime, as per Ex.P24, she gave a complaint before R5 police station stating that her husband made cruelty upon her. In pursuance of the same, the accused gave a letter Ex.P25 before the aforesaid police station, stating that he is looking after his wife well. Thereafter, as per Ex.P26, the deceased withdrawn her complaint and both are living. Within five months, the above said occurrence had taken place. It is further submitted that at the time of questioning the accused under
Section 313
Cr.P.C., he himself admitted the dying declaration given by the deceased. Therefore, the trial Court considered all the aspects and came to the correct conclusion. Hence, he prayed for dismissal of the appeal.

7.Considered the rival submissions made on both sides and the materials available on record.

8.The marriage between the deceased and the accused was performed on 11.11.1987, which was evidenced by P.W.4/Reverent Father Michael Hirudayam and P.W.6/Reverent Father Anthony, who performed the marriage and through them, Exs.P2/Marriage Certificate and P4/Marriage Registration Certificate were marked. The deceased gave birth to a female child on 31.07.1988. The occurrence was said to have taken place on 24.11.1989, on the day of election. P.W.1 and P.W.2, who are the parents of the deceased, are not eye witness. P.W.3/Govindammal, P.W.8/Nagesh and P.W.9/Gopi and D.W.1 are residing in the same premises and they heard noise and gone to the place of the deceased and saw her in the midst of flame and the accused attempted to extinguish the fire. Thereafter, she was admitted in Kilpauk Medical hospital, where P.W.26/Dr.Shah treated her and issued Accident Register Copy Ex.P33.

9.On perusal of Ex.P33/Accident Register, in which, it was stated as follows:

Alleged to have sustained burns when her saree accidentally caught fire at 11.00 a.m. today at the above address.

Patient conscious.

Burns with peeling of skin, neck, face, chest, abdomen.

Brought by her husband Wesley Raj.

She was first seen by the Doctor at 11.30 a.m. But Ex.P5 statement of the deceased was recorded by P.W.7 at 3.30 p.m. and P.W.27/Doctor attested the same and gave a certificate that she was in conscious at the time of recording statement between 3.30 p.m. and 3.45 p.m. on 24.11.1989. Ex.P5 was also attested by one Santhosh, who was taking treatment in the hospital, but he was not examined before the Court. On the basis of Ex.P5 statement only, the case has been registered.

10.In Ex.P5/Statement, the deceased stated that there was frequent quarrel between the husband and wife and he used to pledge as well as sold her jewels including thali and that she was subjected to mental cruelty. On 24.11.1989, at 10.30 a.m., her husband handed over their daughter to his mother's home and that has been questioned by the wife at the time, there was quarrel arose between them, so she herself doused kerosene on her and the husband gave her the match box and told her to lit fire and gone away from the place. Thereafter, she lit the match stick and made a cry. P.W.7 also gave a requisition to the learned Magistrate for recording dying declaration of the deceased. In pursuance of that, P.W.30/the learned XXth Metropolitan Magistrate, Chennai, received the requisition Ex.P36 and recorded dying declaration of the deceased and the same was marked as Ex.P37.

11.In Ex.P37/Dying declaration, it was stated that one week before the accident, her husband had pledged her thali. He also sold her jewels then and there, when she questioned the same, there was frequent quarrel between both of them and the accused used to beat her. Due to the fear that her husband is going to beat her, she herself doused kerosene on her, at the time, the accused lit a match stick and threw on her and proclaimed that if it is go out, she can lit a match stick again and set fire. Thereafter, the deceased made a cry and her husband attempted to put out the fire by using bed. P.W.27/Dr.Ananthasubramaniam attested the above dying declaration and gave a certificate that the deceased was conscious and oriented while recording her statement by Magistrate and that it was recorded in his presence between 5.20 p.m. and 5.25 p.m. on 24.11.1989. It shows that the first dying declaration allegedly given by the deceased on the way to hospital before her neighbours P.W.3, P.W.8, P.W.9 and D.W.1, is not reliable.

12.Now this Court has to consider Exs.P5/statement given before P.W.7/Police and P37/dying declaration recorded by the learned Magistrate. In both the statements, the deceased admitted that she herself doused kerosene on her. In Ex.P5, she stated that her husband threw the match box and asked her to lit a match stick and set fire. But whereas in Ex.P37 dying declaration, initially her husband lit a match stick and thrown on her and proclaimed that if it is go out, she can lit it again and set fire. After hearing her cry, he went to the place and attempted to put out the fire. Considering her statements in both Exs.P5 and P37, it is true, she did not sustain burns in fire accident.

13.Now this Court has to decide as to whether the fire accident is homicidal or suicidal. It is appropriate to extract post- mortem certificate Ex.P35.

"Infected burn injuries seen over the chest, upper 1/3rd of the abdomen, front of both thighs, both the upper limbs and superficial burn injuries seen over the face, neck and back of the chest and upper half of the loin amounting to 54% of the surface area of the body. The Doctor opined that the deceased would appear to have died of "Delayed complication of burn injuries".

The viscera sent for chemical analysis shows that it did not contain any poison. The external burn injuries sustained by the deceased shows that the fire is not accidental, because the deceased sustained injury on back of her chest and upper half of the loin. Furthermore, it is not the case of stove burn. As per the evidence of P.W.3, P.W.8 and P.W.9 along with Ex.P33/Accident Register, the deceased stated that her saree caught fire in the accident. But when the Doctor was in witness box, no question has been posed to him that whether injuries mentioned in the post-mortem were caused due to the saree caught fire accidentally. In such circumstances, the defence of the appellant/accused that it is a fire accident, when the deceased was about to cook, does not merit acceptance.

14.Now this Court has to decide that whether the appellant/accused had committed abatement of suicide? At this juncture, it is appropriate to consider the following decisions relied upon by the learned counsel for the appellant/accused.

(i) (2009) 1 MLJ (Crl) 478 (SC) (
Amol singh v. State of M.P
.) in para-8, it is held as follows:

"8. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See:
Kundula Bala Subrahmanyam v. State of A.P.
[ (1993) 2 SCC 684]. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scruitinizing the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."

(ii) AIR 2007 SC 1368 (
Sanjay v. State of Maharashtra
), para-12 to 16 are extracted hereunder:

"12.In our opinion this appeal deserves to be allowed by giving the benefit of doubt to the appellant. The only evidence against the appellant are the three alleged dying declarations of the appellant's wife Seema. In the first dying declaration Seema stated that while she was pumping the stove it suddenly burst and her saree caught fire. She shouted loudly and then her husband rushed towards her and extinguished the fire by pouring water on her. This is the first dying declaration and nothing has been alleged against the appellant in it. Rather it shows that the appellant tried to save his wife Seema. In the subsequent dying declaration Seema is said to have stated that she poured kerosene on her in person and set herself ablaze because she was angry with her husband.

13.The prosecution version is that the subsequent dying declarations made by Seema alleging that she committed suicide because there used to be quarrels between her and her husband (the appellant) are corroborated by two letters alleged to have been written by Seema to her parents. The first letter (Ex.28) appears to be dated 24.1.1994. It shows that her husband (the appellant) does not behave properly with her, he daily returns home late at night in a drunken state and because of it there used to be quarrels between her and the appellant. She also expressed in the said letter that the appellant was also willing to give her divorce. Seema expressed that she felt repentful as she married the appellant of her own will. She further expressed that she felt no charm in leading such life.

14.Another letter (Ex.29) is dated 26.7.1994 i.e. about five months before the incident of suicide. The said letter reiterates the same state of affairs mentioned in the earlier letter (Ex.28). The evidence of PW-1 Vimal (the mother of Seema) and PW-2 Wamanrao (the father of Seema) corroborates the unhappiness faced by Seema. Hence it is alleged that the so called first written dying declaration (Ex.51) would not render the voluminous evidence untrustworthy.

15.The trial court, as well as High Court, were of the view that the evidence on record shows there was cruelty on the part of the appellant which drove his wife to suicide.

16.In our opinion in view of the different dying declarations it would not be safe to uphold the conviction of the appellant and we have to give him the benefit of doubt. It cannot be said in this case that the prosecution has proved the appellant's guilt under
Section 306
I.P.C. of abetting the suicide beyond reasonable doubt."

Considering the above decisions along with Exs.P5 and P37 dying declarations, I am of the view, Exs.P5 and P37 are reliable, because there is no vital inconsistency and the inconsistency is not a material.

15.Now this Court has to consider whether the ingredients of
Section 107
IPC has been made out. At this juncture, it is appropriate to consider the following decisions:

(i) (2008) 1 MLJ (Crl) 1049 (SC) (
Bhagwan Das v. Kartar Singh and others
), para-12 to 15 are extracted hereunder:

"12. Similarly, in
Mahendra Singh & Anr. vs. State of M.P.
1995 Supp.(3) SCC 731, it was observed by this Court that it is common knowledge that the words uttered in a quarrel or in the spur of the moment or in anger cannot be treated as constituting mens rea. In that case the appellant said to the deceased "to go and die". As a result of such utterance, the deceased went and committed suicide. However, the Supreme Court observed that no offence under
Section 306
IPC read with
Section 107
IPC was made out because there was no element of mens rea.

13.
In
Randhir Singh & Anr. vs. State of Punjab
2004(13) SCC 129, it was observed that "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."

14.
In the same decision it was observed following the decision in
State of West Bengal vs. Orilal Jaiswal
1994(1) SCC 73 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."

15. In our opinion the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion would not by itself and without something more attract
Section 306
IPC read with
Section 107
IPC.

(ii) (2010) 1 SCC 750 (
Gangula Mohan Reddy v. State of Andhra Pradesh
) para-16 and 17 are extracted hereunder:

"16.This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "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 other. 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.

17. 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. The intention of the Legislature and the ratio of the cases decided by this Court is 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 committed suicide."

Considering the above decisions along with the gist of the dying declaration in Ex.P37, it would clearly prove that the accused had abetted for commission of suicide.

16.Further, the learned counsel for the appellant relied upon the decision reported in 2012 Cri.L.J. 1837 (Jiwan lal v. State of Himachal Pradesh) in which, it was held that immediate neighbour of deceased stated that relationship between accused and deceased were cordial and accused never gave beating to deceased. In such circumstances, no offence under
Section 306
IPC is made out. But the above decision is not applicable to the facts of the present case. Exs.P25/complaint given by wife, P26/letter given by husband and P27/deceased withdrawn the police complaint, would reveal that five months prior to the said occurrence, the deceased herself gave complaint before R5 Choolaimedu Police station stating that her husband made cruelty upon her and in pursuance of the same, husband gave a letter dated 21.06.1989 to the police stating that he is looking after her well and hence, the deceased withdrawn her complaint and went to matrimonial home. In such circumstances, the above decision is not applicable to the facts of the present case.

17. At this juncture, it is appropriate to consider
Sections 306
and
IPC.

(i)
Section 306
IPC, which deals with abetment of suicide, is read 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."

(ii)
Section 107
IPC, which deals with abetment of a thing, is read as follows:

107. Abetment of a thing.--The offence of abetment is a separate and distinct offence provided [in the Act as an offence]. A 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.

18.Now this Court has to decide whether the evidence before the Court is sufficient to conclude that the appellant/accused induced and incited the deceased wife to commit suicide. In this connection, it is appropriate to consider the ingredients of
Sections 306
and
IPC, which reads as follows:

Section 306
:

(i) Certain person committed suicide.

(ii) It was committed in consequence of abetment by the accused.

Section 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 concealment 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 facilitates the commission thereof, is said to aid the doing of that act."

19. The mens-rea is an essential component of abetment and there must be an overt act on the part of the accused in course of the alleged instigation. It must be shown that the instigation was prior to and at the point of time. It was directly or indirectly to give a suggestion to the person to do a certain act. An abettor must be shown to have intentionally aided the commissioning of the crime and mere proof that the crime charged could not have been committed without the interposition of the alleged abettor, is not enough compliance with the requirement of
Section 107
IPC. The word "instigation" involves two things; one is physical act or omission, while the other is mental act. The physical act or omission involved in the "instigation" is "goading or urging forward" another. Such physical act of goading can be committed either by words or deed, as the meaning of the word suggests. "Goading" can be committed also by any other wilful conduct, may be by even an adamant silence. The physical act of "urging forward" or "instigation" involves doing of an act by strongly advising, persuading to make a person to do something or by pushing or forcing a person in order to make him move more quickly in a forward direction. Thus, both the physical acts in "goading or urging forward" can be committed by doing some act either verbal or physical or even by wilful omission or conduct.

20.Considering the facts and circumstances of the case, the prosecution has proved the death of the deceased is suicidal and it has established that the accused committed cruelty upon the deceased and the accused abetted the commission of suicide. It is true, statement recorded by the accused during inquest has been marked as Ex.P27, in which, he stated that when his wife was about to cook food, she sustained burns due to fire accident. But as per dying declaration in Ex.P37, it is not true. The prosecution has also proved the fact that the accused had pledged her jewels and that has been proved by oral and documentary evidence. In such circumstances, I am of the view, the trial Court rightly held that the accused abetted for commission of suicide and rightly convicted the appellant/accused for the offence under
Sections 306
and
498A
IPC. Therefore, the judgment of conviction and sentence passed by the trial Court does not warrant any interference.

21.In fine,
(i) Criminal Appeal is dismissed.
(ii) Consequently, connected Miscellaneous Petitions are closed.
(ii) The judgment of conviction and sentence passed by the trial
Court is hereby confirmed.
(iii) Bail bond if executed by the accused, shall stand cancelled.
(iv) The trial Court is directed to secure the custody of the
accused to undergo the remaining period of sentence.

kj

To

1. Deputy Superintendent of Police
CBCID, Metro Wing
Chennai.

2.I Assistant Sessions Court, Chennai.

3.The Public Prosecutor
High Court, Madras.

2.The Record Keeper
Criminal Section, High Court,
Madras