Andhra HC (Pre-Telangana)

Illyas Ahmed Son Of Mohd. Ismail vs State Of Andhra Pradesh Represented By ... on 1 October, 2007

JUDGMENT

G.V. Seethapathy, J.

1. This Criminal Revision Case is filed under
Sections 397
and
Cr.P.C. assailing the order dated 26-2-2004 in Crl.P. No. 59 of 2004 in S.C. No. 125 of 2003 on the file of the 4th Additional M.S.J. Hyderabad wherein the said petition filed by the petitioner-accused under
Sections 227
and
Cr.P.C seeking to discharge him was dismissed.

2. The petitioner herein is the accused who is the husband of the deceased by name Amtul Mateen (hereinafter referred to as "the deceased" for the sake of convenience.)

3. The petitioner-accused is facing the prosecution for the offences under
Section 498-A
and
IPC in S.C. No. 1125 of 2003 on the file of the 4th Additional Metropolitan Sessions Judge, Hyderabad. He filed Crl.M.P. No. 59 of 2004 under
Sections 227
and
Cr.P.C. praying for discharge on the ground that the averments contained in the Dying Declaration based on which the F.I.R. was registered do not disclose any ground to proceed against him for the alleged offences and the statements recorded under
Section 161
Cr.P.C. during the course of investigation were the result of the subsequent deliberations.

4. The learned Additional Metropolitan Sessions Judge dismissed the said application by a cryptic order dated 26th February, 2004 observing that whether or not the statements under
Section 161
Cr.P.C. are true is a question of fact which cannot be decided unless full fledged trial is taken up. Aggrieved by the same, the present Revision case is filed.

5. Arguments of the learned Counsel for the petitioner-accused and the learned Public Prosecutor appearing for the respondent-State are heard. Records are perused.

6. The main contention of the learned Counsel for the petitioner-accused is that the learned Additional Sessions Judge has passed the impugned order without application of mind though the averments in the Dying Declaration, Charge Sheet and the statements under
Section 161
Cr.P.C. do not disclose any ingredients to constitute the offences alleged against the petitioner-accused.

7. The learned Additional Public Prosecutor representing the respondent-State however would submit that the statements recorded during the course of investigation prima facie reveal the case against the petitioner-accused and the rejection of plea of the petitioner-accused for discharge by the learned Sessions Judge does not call for any interference.

8. It is not disputed that the petitioner-accused is the husband of the deceased who sustained burn injuries at her residence on 20-12-2001 at 5.30 P.M., and subsequently died in Osmania General Hospital at 3 A.M. on 21-12-2001 while undergoing treatment. In the Dying Declaration recorded by the learned Magistrate at 9.30 P.M. on 20-12-2001, the deceased stated that on the evening at about 4 P.M., while she was adjusting the stove pin, suddenly, kerosene fell on her and caught fire and she raised hue and cry and her mother- in-law and her husband came to her rescue and the hands of her husband also got burnt and they brought her to the Hospital. Basing on the above Dying Declaration, the petitioner-accused contends that he has not committed any offence and it is a case of accidental death. In the Statement given to the police basing on which the F.I.R. was registered, the deceased stated that while she was in the kitchen, the kerosene fell on her and caught fire accidentally and thus, she sustained the burn injuries. The police, however, filed the charge sheet against the accused for the offences under
Sections 498-A
and
IPC.

9. According to the prosecution, during the course of investigation, it revealed that the petitioner subjected the deceased to ill-treatment and harassment by demanding more dowry and used to abuse and quarrel with her and a number of times, the owner of the house by name Mohd. Shanawas @ Mohd. Siddiq also interfered and pacified the matter and warned the petitioner also against the recurrence of such incident and that on 20-12-2001, the deceased telephoned to her parental house and informed her younger sister by name Amtul Shabana that the petitioner was harassing and beating her for more money and on noticing the petitioner entering the house, she abruptly kept the telephone at about 4.30 P.M., and in the night at about 11 P.M., the parents of the deceased received intimation about the incident. A perusal of the statements recorded by the police during the course of investigation from the father, brother and sister of the deceased and also the owner of the house in which the petitioner-accused and the deceased were residing disclose that the petitioner-accused has been subjecting the deceased to ill-treatment and harassment demanding her to bring more dowry from her parents. The statements of the witnesses recorded during the course of investigation by the police would disclose that the petitioner in no way abetted the deceased to commit suicide. It is not disputed that the marriage of the deceased with the petitioner-accused took place in the year 1992 and the alleged incident occurred in the year 2001which is more than seven years after the marriage. The presumption contained in
Section 113-A
of the Indian Evidence Act regarding abetment to suicide by a married women does not come to the aid of the prosecution in the present case, as the said presumption would be available only when it is shown that the wife committed suicide within a period of seven years from the date of the marriage.

10.
In a decision reported in
Hans Raj v. State of Haryana
2004 Crl.L.J. 1759 it was held by the apex Court that to constitute an offence under
Section 306
IPC, the cruelty by the accused was of such nature as likely to drive the woman to commit suicide and mere allegation of frequent quarrels between the husband and wife resulting in physical assault are not sufficient to warrant the presumption under
Section 113-A
of the Evidence Act.

11.
In a decision reported in
Wazir Chand and Anr. v. State of Haryana
with
State of Haryana v. Wazir Cfhand and Anr.
it was held thus:

We propose to discuss first the validity of conviction under
Section 306
of the Indian Penal Code because that is the more serious offence alleged against Wazir Chand and Kanwar Singh,
Section 306
of the Indian Penal Code states inter alia that whoever abets the commission of suicide shall be punished with imprisonment and fine as set out in the said section.
Section 107
of the Indian Penal Code defines abetment. Reading Sections 306 and
together t is clear that if any person instigates any other person to commit suicide and as a result of such instigation the other person commits suicide, the person causing the instigation is liable to be punished under
Section 306
of the Indian Penal Code for abetting the commission of suicide. A plain reading of this provision shows that before a person can be convicted of abetting the suicide of any other person, it must be established that such other person committed suicide. We may mention here that the commission of dowry death is now punishable under
Section 304B
of the Indian Penal Code and certain presumptions are prescribed under Sub-section (1) of that section, but it is pointed out to us that section was not enacted at the time when the incident in question took place and hence can have no application to the case before us. We must, therefore, first examine whether the evidence on record establishes with the degree of certainty required in criminal law that Veena committed suicide. In this regard it is pointed out by Mr.Lalit that, in the present case, there is no such clear piece of evidence like a suicide note or statement had been made by Veena after the incident to the effect that she had taken her own life or set herself on fire. Further there is no evidence that her clothes gave out a smell of kerosene which would indicate of suicide. It is true that the post mortem was performed after several hours and such smell might not have been detectable from Veena's clothes at that time but it is significant that Dr. Kusum Goel, who treated Veena at the Geeta Nursing Home has not been asked any question regarding any smell given out by Veena's clothes. As far as the question of improbability of sustaining burns accidentally from the stove lighted for preparing tea is concerned, evidence was led by the prosecution to show that the stove was placed on the raised slab which would make it unlikely that burns were caused to Veena by accident. The evidence in this regard, however, is by no means satisfactory. The evidence of the Investigating Officer, S.I. Bansi Dhar undoubtedly is to the effect that when he went to the residence of Wazir Chand for the first time for investigation, the stove was lying on the slab. However, the evidence of the photographer who went to the residence of Wazir Chand along with the investigating officer is to the effect that when he went there, the said stove was lying on the kitchen floor. In view of this contradiction, it is not possible to hold that the stove was placed on the slab when Veena was preparing tea for the family and hence an accident was highly unlikely.

12.
In
the above case
, it was noticed that there was no suicide. It was not clear from the evidence whether she set herself on fire and it could not also be said with certainty that there was deliberate delay on the part of the 1st respondent in taking her to the Hospital or in making better treatment available to her. It was further held that there was no satisfactory evidence on the basis of which, conclusion can be reached with a reasonable certainty that the deceased committed suicide, and so, the accused need not be convicted under
Section 306
IPC.

13. In the present case, the Dying Declaration and also the statement given by the deceased to the police on which F.I.R. was registered disclose that the deceased sustained burn injuries due to the fire accident and that her husband immediately came to her rescue and he also sustained burn injuries on the hands and he immediately brought her to the Hospital. Even if the statement of the father and other relatives of the deceased recorded during the course of investigation would only disclose that the alleged harassment and ill-treatment by the petitioner-accused for additional dowry but do not reveal that the petitioner-accused has resorted to any such acts which constitute abetment to commit suicide by the deceased.

14.
In a decision reported in
V. Shankaraiah v. State of A.P.
2002 Crl.L.J. 3201, this Court held that abetment under
Section 306
IPC has to be understood with reference to its definition given in S. No. 107
IPC
.

15.
In a decision reported in
Sia Ram v. State of U.P.
the apex Court held that in order to constitute abetment, the abettor must be shown to have intentionally aided the commission of the crime. It was further held that mere proof that the crime could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirement of
Section 107
IPC.

16. In a decision reported in Mahendra Singh v. State of M.P. 1996 Crl.L.J. 894, the apex Court held that merely because the deceased woman stated in her dying declaration that she was harassed by the accused, the accused cannot be held guilty of an offence under Section 306 I.P.C.

17. In the present case, the deceased in her Dying Declaration did not make any allegation against her husbandthe petitioner and on the other hand, she stated that she sustained burnt injuries due to accident and her husband came to rescue her and he too, sustained burn injuries on hands in the process.
In
the above case
of
V. Shankaran v. State of Andhra Pradesh
(3rd cited), this Court held that in the case of married woman committing suicide, within 7 years of her marriage due to harassment by her husband or his relatives, by virtue of
Section 113-A
of Evidence Act only
Section 306
IPC would come into operation, but not otherwise.

18. Since there is no averment in the Charge sheet and the material on record not showing that the petitioner-accused either induced the deceased or abetted her to commit suicide the petitioner is not liable to be charged for the offence under
Section 306
IPC. Accordingly, the prosecution of the petitioner-accused for the said offence under
Section 306
IPC is not warranted.

19.
In a decision reported in
G. Laxmaiah v. State of A.P.
2002 (1) ALD (Crl.) 119 which is similar to the facts of the present case, this Court held at para 4 thus:

In the Charge-Sheet, absolutely there is no averment against the petitioner to charge him for the offence under
Section 306
IPC. Only during the course of investigation, it is stated that some evidence has been collected to the effect that the deceased was subjected to harassment and cruelty by the petitioner herein; and he did not provide proper food and clothes to the deceased and her children because he used to spend all his earnings for consumption of toddy and liquor. Thus, there is some evidence with regard to the offence under
Section 498-A
IPC. But, as far as the offence under
Section 306
IPC is concerned, even accepting the allegations on its entirety as stated in the charge-sheet, the offence under
Section 306
IPC cannot be attracted, as according to the dying declaration and the evidence available on record, there is nothing to show that the husband has abetted the deceased for committing suicide. This is not a case of suicide as per the dying declaration of the deceased itself, but the fire was accidentally caught to her saree; and in fact, the husband made an attempt to put off the fire and himself admitted the deceased in the Osmania General Hospital. About the abetment by the husband for catching fire, neither the deceased stated in her dying declaration nor any other witnesses stated during the course of investigation. It is not the case of the deceased or any other witnesses that it is a case of suicide; but it is stated that it is only an accidental death. Merely because it is an accidental death, the harassment and cruelty on the deceased by the petitioner cannot be ruled out, which attracts the offence under
Section 498-A
IPC.

20.
In a decision reported in
Harjit Singh v. State of Punjab
(2006) 1 SCC (Cri) 417 the apex Court held that before invoking the provisions of
Section 306
IPC, it is necessary to establish that:

(i) the deceased committed suicide, and (ii) she had been subjected to cruelty within the meaning of
Section 498-A
IPC and on facts it was held that the prosecution has not made out either of the two offences. It was held that in any event, no evidence has been brought on record to show that there has been any act of omission or commission on the part of the accused, before the death of the deceased to demonstrate that the appellant was responsible for the same.

21. What all the father has stated
in
the above case
was that his daughter died due to the non-payment of dowry to the accused by him. In the present Case, the statement of the father of the deceased by name Hameedullah does not disclose that he attributed any acts of omission or commission on the part of the petitioner-accused which are in the nature of abetting the deceased to commit suicide. On the other hand, he stated that he personally felt that the case is not fire accident and it is burnt case by his son-in-law on account of dowry and his son-in-law poured kerosene on his daughter and set fire to her. He did not state that the petitioner-accused abetted the deceased to commit suicide.

22.
In view of the principles
laid down in
the above decisions and on the factual matrix of the present case, it must be held that there is no material on record which would satisfy the ingredients to constitute the offence under
Section 306
IPC as against the petitioner-accused. There is, however, prima facie material to proceed against the petitioner-accused for the offence under
Section 498-A
IPC.

23. In the result, the Criminal Revision Case is allowed in part as stated above.