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Misuse of 498a – False 498A Legal Terrorism says Supreme Court in Sushil Kumar

IN THE SUPREME COURT OF INDIA

Civil appeal No. 4399 of 2005 (Arising out of SLP (C) no. 17656 of 2004

Decided On: 19.07.2005

Appellants: Sushil Kumar Sharma
Vs.
Respondent: Union of India (UOI) and Ors.

JUDGMENT:

By this petition purported to have been filed under Article 32 of the Constitution of India, 1950 (in short ‘the Constitution’) prayer is to declare Section 498A of Indian Penal Code, 1860 (in short ‘the IPC’) to be unconstitutional and ultra vires in the alternative

to FORMULATE GUIDELINES so that INNOCENT PERSONS ARE NOT VICTIMIZED by unscrupulous persons making false accusations

2. Further prayer is made that whenever, any court comes to the conclusion that the allegations made regarding commission of offence under Section 498A IPC are unfounded, stringent action should be taken against person making the allegations. This, according to the petitioner, would discourage persons from coming to courts with unclean hands and ulterior motives. Several instances have been highlighted to show as to how commission of offence punishable under Section 498A IPC has been made with oblique motives and with a view to harass the husband, in-laws and relatives.

 3. According to the petitioner there is no prosecution in these cases but persecution. Reliance was also placed on a decision rendered by a learned Single Judge of the Delhi High Court wherein concern was shown about the increase in number of false and frivolous allegations made. It was pointed out that accusers are more at fault than the accused. Persons try to take undue advantage of the sympathies exhibited by the courts in matters relating to alleged dowry torture.

 4. Section 498A appears in Chapter XXA of IPC.

 5. Substantive Section 498A IPC and presumptive Section 113B of the Indian Evidence Act, 1372 (in short ‘Evidence Act’) have been inserted in the respective statutes by Criminal Law ( Second Amendment) Act, 1983.

 6. Section 498A IPC and Section 113B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.

 7. Section 498A reads as follows: “498A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation – For the purpose of this section ‘cruelty’ means –

 (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

 Section 113B reads as follows:-

 “113B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

 Explanation – For the purposes of this section ‘dowry death’ shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).”

 8. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. It is to be noted that. Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of ‘cruelty’. In Section 304B there is no such explanation about the meaning of ‘cruelty’. But having regard to common background to these offences it has to betaken that the meaning of ‘cruelty’ or ‘harassment’ is the same as prescribed in the Explanation to Section 498A under which ‘cruelty’ by itself amounts to an offence.

 9. The object for which Section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short ‘the Cr.P.C.’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-law and relatives. The avowed object is to combat the menace of dowry death and cruelty.

 10. One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two Sections i.e. Section 306 and Section 498A is that of intention. Under the latter, cruelty committed by the husband or his relations drag the women concerned to commit suicide,

 while under the former provision suicide is abetted and intended.

 11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand” (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.)

 12. In Budhan Choudhry and Ors. v. State of Bihar a contention was raised that a provision of law may not be discriminatory but it may land itself to abuse bringing about discrimination between the persons similarly situated. This court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution.

 13. From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional. In such cases, “action” and not the “section” may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.

 14. In Mafatlal Industries Ltd. and Ors. v. Union of India and Ors., a Bench of 9 Judges observed that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding a provision procedurally or substantively unreasonable. In Collector of Customs v. Nathella Sampathu Chetty (1962 (3) SCR 786) this Court observed:

 

 “The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.” It was said in State of Rajasthan v. Union of India “it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power. The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.” (Also see: Commissioner, H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Meth (1954 SCR 1005).

 

 15. As observed in Maulavi Hussein Haji Abraham Umarji v. State of Gujarat. Unique Butle Tube Industries (P) Ltd. v. U.P. Financial Corporation and Ors. and Padma Sundara Rao (dead) and Ors. v. State of Tamil and Ors., while interpreting a provision, the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

 

 16. The judgment of the Delhi High Court on which reliance was made was rendered in the case of Savitri Devi v. Ramesh Chand and Ors. In that case while holding that the allegations regarding commission of offence punishable under Section 498A IPC were not made out. Certain observations in general terms were made about the need for legislative changes. The complainant had moved this Court against the judgment on merits in SLP(Crl)……of 2003 entitled Savitri Devi v. Ramesh Chand and Ors. By order dated 28.11.2003 this Court observed, as follows:

  “Heard learned counsel for the petitioner. Delay condoned.

  We do not see any merit in the challenge made to the order of the High Court in Criminal Revision No. 462 of 2002, on the facts of the case. The special leave petition is, therefore, dismissed.

  At the same time, we express our disapproval of some of the generalized views expressed in paragraphs 23 to 32 of the judgment of the High Court by the learned Single Judge. The learned Judge ought to have seen that such observations, though may be appropriate for seminars or workshops, should have been avoided being incorporated as part of a court judgment. Some of the views also touch upon Legislative measures and wisdom of legislative policy in substance, which according to the learned Judge need to be taken into account. There was no scope for considering all such matters in the case which was before the learned Judge. It is, therefore, appropriate that such generalized observations or views should meticulously avoided by Courts in the judgments.”

  17. Above being the position we find no substance in the plea that Section 498A has no legal or constitutional foundation.

  18. The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what REMEDIAL MEASURES can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new

  LEGAL TERRORISM

 can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to ARRIVE AT TRUTH, PUNISH THE GUILTY AND PROTECT THE INNOCENT. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.

 19. Prayer has been made to direct investigation by the Central Bureau of Investigation (in short the ‘CBI’) in certain matters where the petitioner is arrayed as an accused. We do not find any substance in this plea. If the petitioner wants to prove his innocence, he can do so in the trial, if held.

Held : The Writ Petition is accordingly disposed of.
 
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Murder Conviction on testimony of interested witnesses

In this murder case the court was faced with a situation where a grandson murdered his grandfather when the latter tried bringing sense into him not to indluge in rowdyism and to work. The Court convicted on the basis of clinching testimony of 3 eye witnesses/Recovery/Disclousure Statement/Strained Relations and subsequent conduct of the offendor. The Court repelled objections that witnesses were interested witnesses and thus were partisan, because they withstood lengthy cross. Secondly court on account of injuries put the the offence in category of Murder cls.1 of S.300 as it was done With the intention to cause death. The Desire of the accused to cause death of an unarmed man was apparent manifest from the nature and quantum of injuries, some of which were alone and together cumulatively sufficient in the ordinary course of nature to cause death.
Rajasthan High Court
Gura Singh vs State Of Rajasthan on 20 December, 1983
Equivalent citations: 1984 CriLJ 1423
Author: S Byas
Bench: D Mehta, S Byas

JUDGMENT

S.S. Byas, J.

1. By his judgment, dt. 8.3.78, the learned Sessions Judge, Ganganagar convicted the accused Gura Singh under Section 302, I.P.C. and sentenced him to imprisonment for life. The accused has come up in appeal to challenge his conviction and sentence.

2. Briefly stated, the prosecution case is that deceased-victim Gandasingh had two sons Paharasingh and P.W. 1 Mohansingh. The appellant is the son of Paharasingh. Paharasingh passed away nearly 20 years ago. Gandasingh had forty bighas of agricultural land for cultivation. After the death of Paharasingh he gave thirteen bighas of land to the appellant, thirteen bighas of land to Mohansingh (PW 1) and retained the remaining thirteen bighas or so for himself. Gandasingh lived with Mohansingh (PW 1). As such Mohansingh was cultivating 26 bighas of land. The accused was not serious about the work and gathered a company of bad elements around him. Gandasingh used to ask the accused off and on to be serious at the work and give up the company of bad associates. In the morning of the day of occurrence 6.8.76, Gandasingh asked the accused to give up rowdyism and be careful about the work as he had to support his mother and wife. This led to a wordy wrangle between the two. Mohansingh intervened and the matter got sub-sided. Gandasingh lay down on a cot in his Bethak shown by mark “1” in site plan Ex. P. 2. The accused went away. Mohan Singh (PW 1) went to bring cattle fodder stacked in a Kotha, shown by mark “19” in Ex. P.

2. His wife Mst. Surjeet Kaur (PW 2) started cooking food in the courtyard situate just in front of the Bethak of Gandasingh. While she was cooking the food, the accused came with a ‘Tamba’ (lathi) and struck blows to Gandasingh with it. Surjeet Kaur raised cries. PW 1 Mohansingh and PW 3 Jogendra Singh, who were passing that way, rushed to help the victim. Mohansingh challenged the accused and the accused then went away. There was profuse bleeding from the wounds of the victim. Many persons from the locality gathered there. Gandasingh did not survive and succumbed to the injuries after a little while. P.W. 1 Mohansingh went on foot to Police Station Kesarsinghpur and verbally lodged report Ex. P. 1 of the occurrence at about 1.30 P.M. The Police registered a case and took up the investigation. Narainsingh (PW 9), A.S.I. arrived at the place of occurrence and while he was inspecting the site, PW 8 Prem Narain, Station House Officer, also, reached there. The site was inspected and the site plan was prepared. The inquest report of the victim’s dead body was also prepared. The accused was arrested and in consequence of the information furnished by him whilst under police custody, Tamba was recovered. The bloodstained articles were also seized and sealed. The post-mortem examination of the victim’s dead body was performed at about 10.30 A.M. on 7.8.76 by PW 6 Dr. Ram Lai Beniwal, the then Medical Officer in charge. Government Dispensary, Guiabewala. On examination, the doctor found the following injuries:

1) A contusion on chest wall anteriorly left side upper part 4″ x 1″.

2) A contusion with fracture of the left forearm in its lower part 2″ x 1″.

3) Lacerated wound on right hand dorsally at the base of thumb 2″ 1/4″ x 1/8″.

4) A lacerated wound on right maxilla lateral part 3/4″ x ” x 1/8″.

5) A lacerated wound on the left maxilla below eye lid 2″ x ” x ” with fracture of underlying bone.

6) A contusion on the base of nose ” x ” with fracture of nasal bone.

7) Four lacerated wounds on the forehead (with fracture of frontal bone) 1 x bone deep.

8) Fracture of lower jaw on the right side of mid line and on left side at the angle of mandible with a contusion at the angle of mandible 2″ x 1″.

9) Laceration of membranes of brain at the sites of frontal bone fractures.

10) Laceration of frontal lobes of brain.

In the opinion of Dr. Beniwal, the cause of death of Gandasingh was multiple injuries on the body with fracture of bones and injury to vital organ brain leading severe haemorrhage and shock.

After when the investigation was over, the police submitted a challan against the accused in the Court of Munsif & Judicial Magistrate, Karanpur, who in his turn committed the case for trial to the Court of Sessions Judge, Ganganagar. The learned Sessions Judge framed a charge under Section 302, I.P.C. against the accused, to which he pleaded not guilty and faced the trial. Denouncing the prosecution case as fabricated piece of concoction he claimed absolute innocence. According to him, Gandasingh had executed a will in favour of the wife and sons of his uncle Mohan Singh (PW 1). He has been falsely implicated because Mohansingh wants to take the entire land of Gandasingh. During trial, the prosecution examined nine witnesses and filed some documents. In defence, no evidence was adduced by the accused. On the conclusion of trial, the learned Sessions Judge held the charge duly brought home to the accused. The accused was consequently convicted and sentenced as mentioned above. Aggrieved against his conviction and sentence, the accused has taken this appeal.

3. There is no room for doubt that the death of victim Gandasingh was not natural but homicidal. According to Dr. beniwal (PW 6), as stated above, as many as ten antemortem injuries were found on the victim’s dead body. He further deposed that the injuries were sufficient in the ordinary course of nature to cause death.

4. In assailing the conviction, the first contention raised by the learned Counsel for the accused is that the evidence of the three witnesses viz., PW 1 Mohan Singh, PW 2 Mst. Surjeet Kaur and PW 3 Jogindersingh was not rightly weighed and scanned. It was argued that there was no occasion for PW 3 Jogindersingh to reach the place of occurrence. His services were borrowed by PW 1 Mohansingh to falsely implicate the accused. Jogindersingh was only a chance witness and no reliance could be placed on what he testified. It was further argued that PW 1 Mohansingh was in a Kotha situate nearly at a distance of 250 feet away from the place of occurrence and it was not possible for him to hear the cries of Surjeet Kaur. He, therefore, could not reach the site when the occurrence was taking place. So also, the testimony of PW 2 Mst. Surjeet Kaur could not be believed. She was the wife of PW 1 Mohan Singh and naturally she was at his disposal to state what he wanted her to depose. In reply, the learned Public Prosecutor supported the judgment of the Court below and submitted that the testimony of the three witnesses should not be discarded on the ground mentioned above. We have taken the respective contentions into consideration.

5. PW 2 Mst. Surjeet Kaur is the daughter-in-law of the deceased-victim. She stated that at about 9.00 or 9.30 A.M. on the day of occurrence, Gandasingh rebuked the accused for his rowdyism and advised him to be particular about his work. She was then, cooking the food. Accused Gurasingh went to his Kotha. Her husband Mohansingh (PW 1) went in another Kotha to bring cattle fodder from there. Accused Gurasingh came back with a Tamba and started beating Gandasingh in his Bethak. She was cooking food nearly at a distance of 25 feet from there. She raised cries and Jogindersingh (PW 3), who was passing nearby came there. Hearing the out-cries, her Husband Mohansingh (PW 1) also came there. Her husband challenged the accused and the accused ran away taking his Tamba with him. Gandasingh sustained a number of injuries on his person including the head. There was profuse bleeding from his wounds. Meharsingh, Modansingh and many other persons thereafter came. Gandasingh did not survive and succumbed after 15 or 20 minutes. She was cross-examined at length but she remained consistent throughout and stuck on her version that accused Gurasingh inflicted a number of blows to Gandasingh with his Tamba. She refuted the suggestion that she and her husband were not present at the place of occurrence and were away to their field. She also dismissed the suggestion that she and her husband got Gandasingh killed by somebody else and they were falsely implicating the accused for killing him. It is true that she is the wife of PW 1 Mohansingh but her testimony cannot be discarded merely on that count. Her presence on the spot is most natural. It was the time of cooking the morning meals and as such she could not be expected to go to her field, as suggested by the learned Counsel for the accused. Her name has been mentioned in the First Information Report-lodged without any delay.

6. PW 1 Mohansingh is the son of the deceased-victim. He deposed that the accused was not serious about his job and his father used to rebuke him off and on and used to ask him to be more particuar about his job as he had to support his wife and mother. At about 9.00 or 9.30 A.M. on the day of occurrence, his father Gandasingh again asked the accused to be particular about his job. It resulted in verbal wrangling between the two. He intervened and the matter got subsided. Thereafter Gurasingh went to his Kotha and Gandasingh lay on a cot in his Bethak. He (witness) went to a Kotha to bring cattle fodder from there. There he heard the cries of his wife. He rushed to the spot and saw the accused striking blows to Gandasingh with his Tamba. Jogindersingh (PW 3) was also present there. He challenged the accused and the accused ran away taking his Tamba with him. There were multiple wounds on the person of Gandasingh, including on his head. There was profuse bleeding from the wounds. Mohansingh, and Meharsingh and many other persons of the locality came there thereafter. Gandasingh did not survive and passed away after a few minutes. He went on foot to Police Station, Kesarsinghpur and lodged report Ex. P. 1 there at about 1.30 P.M. In cross-examination he denied the suggestion that he and his wife Surjeet Kaur were not present in their house when the occurrence took place and were at their field. He also refuted the suggestion that he has falsely implicated the accused. There is nothing in his cross-examination which may induce us to disbelieve his testimony.

7. It is true that the accused was living separately from PW 1 Mohansingh. The relations between them were not very happy. Mohansingh had lodged a proceeding under Section 107, Cr.P.C. against the accused before this occurrence. But this fact is not sufficient to discard the testimony of PW 1 Mohansingh or his wife PW 2 Mst. Surjeet Kaur. The fact that they are the son and daughter-in-law of the deceased-victim does not detract from the value to be attached to their testimony.

8. PW 3 Jogindersingh deposed that at about 9.00 or 9.30 A.M. on the day of occurrence he was going to the house of Gulabsingh (PW 4) to recover his labour charges from him. The house of Gulabsingh is situate just opposite to that of Mohansingh. When he remained 4 or 5 paces away, he saw that accused Gurasingh took up a Tamba, went to the Bethak of Ganda Singh and started striking blows to him with it. Mst. Surjeet Kaur was there in the house. He and she raised cries. Mohansingh also came there 1 and challenged the accused. The accused thereafter ran away taking the Tamba with him. Many persons came there. The name of this witness has been mentioned in First Information Report. In cross-examination he admitted that a criminal case relating to illicit liquor was pending against him. He denied the suggestion that it was he who had killed Gandasingh at the behest of Mohansingh (PW 1). We find no force in the contention of the learned Counsel that the testimony of this witness should be disbelieved as he has bad antecedents. Simply because some criminal case is pending against him, his testimony does not become incredible. It is true that he was examined by police two days after the occurrence, but that is immaterial specially when his name has been mentioned in the First Information Report which was promptly lodged without any delay. Gulabsingh (PW 4) of course denied that he owed any labour-charges to this witness. But the hostile attitude of PW 4 Gulabsingh does not persuade us to dismiss the testimony of this witness Jogindersingh. We also find no merit in the contention of the learned Counsel that Jogindersingh is only a change witness. He had given reasons as to how he happened to pass in the Courtyard of the victim. A look into site plan Ex. P. 2 will reveal that the house of Gulabsingh (PW 4) is situate just opposite to that of the victim and anybody can pass freely from west to east.

9. The learned Sessions Judge accepted the evidence of these witnesses as true arid on a careful consideration we are unable to take a different view. The evidence of the witnesses should be properly assessed, sifted, scanned, scrutinized and appreciated keeping in view the surrounding circumstances and the background in which the offence is alleged to have been committed. Mere suggestions in cross-examination, however, ingenious are of no evidentiary value unless accepted by the witness or proved by other evidence. There must be something inherent in the statement of a witness to disentitle him to be believed. There is no presumption of perjury against the oral testimony of a witness. But before acting upon such testimony its credibility should be tested both. intriguingly intrinsically and extrinsically. There is nothing inherent in the statement of these three witnesses to disentitle them to be believed. It does not appear from the circumstances that PW 3 Jogindersingh was a chance witness or that his services were procured and purchased by PW 1 Mohansingh to falsely depose against the accused. Gandasingh was living with Mohansingh. He was an old man and it was Mohansingh and the members of his family who were looking after him. It is beyond our comprehension, that Gandasingh would be done to death by Mohansingh or at his behest by Jogindersingh or somebody else. We cannot assume the facts merely on conjectures and surmises as was suggested by the learned Counsel for the accused. In our opinion, the evidence of these three witnesses is beyond reproach. Their testimony is free from suspicion and above board. No risk is involved in convicting the accused on the strength of what they testified on oath.

10. It is true that deceased Gandasingh had made a will of all his agricultural lands including that in possession of the accused in favour of the wife and sons of PW 1 Mohansingh. The wife of Mohansingh has filed a suit on the basis of will against the accused and others after this incident. But it is not sufficient to persuade us that Mohansingh wanted to finish Gandasingh as soon as possible. It was he and his family who were to be benefited by that will. We are, therefore, unable to accept the contention that Gandasingh could be put to death by Mohansingh or by somebody else at his investigation.

11. It was next contended by the learned Counsel that the offence made out is not covered by Section 302, I.P.C. It was argued that when the background in which the offence was committed is kept in mind, it appears that there was an exchange of hot words and abuses between the accused and the deceased-victim. In the First Information Report it was mentioned that an exchange of abuses had taken place between them. It was argued that these circumstances point out that Gandasingh was killed by the accused without premeditation in a sudden fight and upon a sudden quarrel. Learned Counsel tried all his efforts to bring the case within Exception (4) of Section 300, I.P.C. We are again unable to accept his contention. In order to bring a case within Exception (4), it must be proved that the act was done (1) without premeditation, (2) in a sudden fight, (3) in the heat of passion, (4) upon a sudden quarrel and (5) without offender’s taking undue advantage or without acting in a cruel and unusual manner. All these five elements must exist in order to bring the case within Exception (4). If any of them is missing, this Exception cannot be brought into play. Here in the instant case, all these five elements of Exception (4) are completely missing. After a verbal wrangling the accused went and came back with a Tamba. He then struck blows to the victim. There was no fight between him and the victim. The fight implies an exchange of blows or mutual attack by both the parties. Where it is as one-sided affair, there is no fight at all to bring the case within Exception (4). The very word ‘fight’ implies that it is a bilateral act and excludes the case where violence is used by one of the parties.

12. Mr. Garg appearing for the accused strenuously contended that exchange of blows is not necessary to constitute a fight and words may be as provocative as blows. Reliance was placed on certain observations made in Hans Raj Singh v. Emperor AIR 1946 Lah 41 : 47 Cri LJ 234. We are unable to accept the contention. Mere exchange of abuses and hot words (which is even not present here in the instant case) does not constitute fight within the meaning of Exception (4). Where it is all an one-sided affair and only the accused caused injuries to the victim who does not retaliate, there is no fight at all to attract the exception. We are fortified in our view by the observations of their Lordships of the Supreme Court in Bhagwan Munjaji v. State of Maharashtra1978 SCC (Cri) 428 : 1979 Cri LJ 49 and, Mohammad Mytheen Shanhud Hammed v. State of Kerala 1979 SCC (Cri) 1010 : 1980 Cri LJ

192. In face of the pronouncement of their Lordships of the Supreme Court, the view taken by the Lahore High Court cannot be regarded as a good law. It may be mentioned that the view taken by the Lahore High Court is solitary view on the point and has not been followed by any other High Court. Since there was no fight, exception (4) cannot be brought into play for the rescue of the accused. Reliance was also placed on certain observation made in Chamuru Budhwa v. State of Madhya Pradesh and Babulal v. State of Rajasthan 1976 Raj LW 345 : 1977 Cri LJ 59 by Mr. Garg to bring the case within exception (4). It may be stated at once that these two authorities do not cover a case of ‘fight’ as contemplated by Exception (4). These were the cases where only one blow was caused to the victim, and it was taken that it was due to exchange of abuses and hot words. There is nothing so like that in the instant case.

13. We have also examined the contention of Mr. Garg whether the case is covered by exception 1 of Section 300, I.P.C. The facts of the case do not permit us to apply this exception, either. The provocation is an external stimulus which should be objectively gained. Merely uttering abusive words would not amount to grave and sudden provocation. It is true that at times words and gestures may under certain circumstances cause grave and sudden provocation but in the instant case the facts do not disclose any cause of grave and sudden provocation for the accused. None of the three eye-witnesses stated that the victim addressed any abusive words to the accused nor any of them was cross-examined in this light. Of course, there is a reference in the FIR that there was “Gali Galauch” between the victim and the accused but there is no evidence to show that there was really an exchange of abuses between the victim and the accused. Even if we assume that there was “Gali Galauch”, in our opinion, it was not sufficient to cause grave and sudden provocation. Moreover, as has been stated by PW 1 Mohansingh and PW 2 Surjeet Kaur, the victim asked the accused to give up rowdyism and to be particular about his work as he had to support his mother and wife. It was a grand-parent’s advice to a grandson and if the, grandson makes a murderous assault on the grandfather because of his parental advice, we are unable to make out a case of grave and sudden provocation for the accused.

14. It was then argued that the offence made out is not covered by any of the first two clauses of Section 299 or Clauses 1 to 4 of Section 300, I.P.C. The victim was the real grandfather of the accused. He, therefore, could not be attributed the intention to kill him. What can be attributed to him is simply the knowledge. As such the case is covered by Clause III of Section 299 and the offence made out would fall under Clause II of Section 304, I.P.C. We are unable to accept this contention too. The victim was landed as many as ten blows. The frontal bone was found completely fractured. The lower jaw was also found fractured. The injuries were caused to vital organs. In cross-examination, Dr. Beniwal (PW 6) stated that external injury No. 7, which resulted in injuries Nos. 9 and 10, was in itself sufficient in the ordinary course of nature to cause death. The intention of the accused to kill is manifest when he inflicted mortal blows on the head of the victim resulting in the fracture of skull bones. The victim was an old man fully unarmed and defence less. The head injury was found to be sufficient in the ordinary course of nature to cause the death. The case is, therefore, squarely covered by Clause III of Section 300 and the offence made out is punishable under Section 302, I.P.C.

15. We are quite conscious that fouler the crime is, the clearer and plainer ought the proof of it to be. All the probabilities that appear from the evidence and surrounding circumstances should be taken into consideration while judging the question of the guilt and innocence of the accused. The evidence of the three eye witnesses cannot be put at discount when it is judged in the circumstances and background in which the offence was committed. The accused had a grudge against his grandfather who used to rebuke him off and on.

16. No other contention was raised. From what has been discussed above, we find no force in this appeal. The accused was rightly convicted and sentenced.

17. The appeal of accused Gurasingh is consequently dismissed.

Uncategorized

Kidnapping and Abduction are distinct offences.

Comment : In this case the accused was charged u/ss 363 & 366 – later on trial it became apparent on evidence that the girl was major hence the charge for 363 had to fail, the prosecution notwithstanding the same sought to sustain the conviction u/s 366 as the same can also be committed by abduction – the court negatived the plea – held the charge was specifically as regards kidnapping to seduce a girl to get into illicit relations and NOT ABDUCT – these are two distinct offences. Hence conviction could not be sustained. Considering a lot of time had elapsed the court also refrained from ordering a re-trial on amended charge (362). 

Orissa High Court
Abhaya Jena And Anr. vs State on 18 November, 1996
Equivalent citations: 1997 (2) ALT Cri 7, 1997 I OLR 26
Author: C Pal
Bench: C Pal

JUDGMENT

C.R. Pal, J.

1. The appellants assail the order of conviction and sentence dated 2-4-1993 passed by the Additional Sessions Judge, Parlakhemundi in Sessions Trial Case No. 11 of of 1992 i, e. Sessions Trial No. 5/92 GDC where in each of the appellants has been convicted under Sections 366 and 506, IPC and has been sentenced under Section 366 to undergo R. I. for tan years. No separate sentence has been passed under Section 506, IPC.

2. The case against the appellants is that on 15-3-1991 while Manjula Pani, the victim girl (PW 3) along with Nandana Bebarta (PW 4) were returning from jungle carrying fire-wood those appellants appeared before them and caught hold of PW 3, she requested them to leave her stating that her marriage has already been settled at Berhampur. The appellants did not listen to her request and dragged her. In the process of dragging appellant No. 1 tore her blouse. When her companions tried to rescue her the appellants threatened them to kill showing a knife. They also threatened PW 3 to kill her if she would shout. At that time Israel Singh, (PW 1) who was plucking tamarind from a nearby tree and Rebika Jena, (PW 5) came there and asked the appellants to leave the PW 3. But they did not listen to their request and forcibly made PW 3 to sit on a motor cycle and took her to Bhaliatota gagging her mouth. Sometime there-after the father and brother of PW 3 along with some villagers reached at Bhaliatota and seeing them the appellants left that place. From Bhaliatota the victim was sent to Gandahati. On 16-3-1991 coming to know that the 0. I. C, Ramgiri Police Station was camping at Parlakhemundi she came to Parlakhemundi and orally reported about the occurrence to him. The OIC reduced the oral report into writing and took up investigation and ultimately filed charge-sheet against both the appellants under Sections 342, 354,366, 506/34, IPC and after commitment the case came to the Court of Additional Sessions Judge on transfer for trial where the accused persons were charged for the offences under Sections 353, 366 and 506, IPC to which they pleaded not guilty and claimed to be tried.

3. The case of the appellant No. 1 was that PW 3 was in love with him and when her marriage was settled at another place she wrote a letter to the appellant No. 1 intimating him that her marriage was going to be solemnised with another person and requesting him to somehow prevent the same, and accordingly she volunteered to go with the appellant No. 1, who took her to Jaharbandh. Subsequent to that the relations of PW 3 and some of her villagers came there and there was an ocurrence in which members of both the groups sustained injuries and they took away the PW 3 with them. Subsequently, after deliberation this case has been started with false allegations. The case of the appellant No. 2 is a complete denial of the allegations levelled against him.

4. The prosecution examined seven witnesses out of whom PW 3 is the victim girl, PWs 1,4 and 5 are witnesses to the occurrence of taking away the girl forcibly by the appellants and PW 2 is a witness to the seizure of the torn blouse of the victim girl and PW 6 is the brother of victim girl who rescued the girl from Bhalia-tota and accompanied her to Parlakhemundi where PW 3 lodged the information, Ext. 1 and PW 7 is the Investigating Officer. The appellant No. 1 examined Solanti Jena as DW 1. He also produced the letter said to have been written by PW 3 marked ‘X’ for identification and other documents (Exts. A B and C). The trial Court after hearing both the sides found that PW 3 by the date of occurrence was more than 18 years of age and accordingly acquitted the appellants from the charge under Section 363, IPC, but convicted them for the offences under Section 366, and undar Section 506, IPC and sentenced each of them thereunder as mentioned earlier.

5. The learned counsel appearing for the appelants assails the order of conviction and sentence on the ground that the charge under Section 333 having not been established the charge under Section 366 for kidnapping the said minor girl with intent that she may be compelled and will be forced to have illicit intercourse with the appellants is not sustainable. It is also contended that the charge under Section 506, IPC is not sustainable as the evidence to that effect are highly discrepant in nature.

6. It is contended by the learned counsel of the appellants that the appellants having been acquitted of the charge under Section 363, IPC, on the grounds that the victim was not a minor at the time of the alleged occurrence the charge under Section 66 for kidnapping the said minor girl with intent that she may be compelled and forced to have illicit intercourse with the appellants must also fail. The learned Additional Government Advocate, on the other hand, argued in support of the order of conviction and sentence contending that for an offence under Section 366 the age of the victim is immaterial. In the above context, before coming to the correctness of the order of conviction and sentence it will be beneficial to look at the relevant portion of the charge framed by the trial Court which runs as follows :

(1) That you on 15-3-1991 at about 8 p. m, at Mahisa Khata Pahada of village Narayanpur kidnapped Manjula Peni a female minor under 18 years from lawful guardianship of Samai Pani, her father and thereby committed an offence punishable under Section 363, IPC and within my congnizance.

(2) That you on or about the same date, time and place kidnapped a woman Susila Pani with Intent that she may be compelled and will be forced to have illicit intercourse with you and thereby committed an offence punishable under Section 366 of the Indian Penal Code and within my cognizance.

(3) That you on or about the same date, time and place committed criminal intimidation by threatening Susila Pani with injury to his person and reputation with intent to cause alarm to the said Susila Pani and thereby committed an offence punishable under Section 506, IPC and within my cognizance.

From the charge framed under Section 366 it is clear that the appellants kidnapped one Susila Pani with intent that she may be compelled and will be forced to have illicit intercourse with the appellants. The charge under Section 366, IPC is silent as to whether the victim was minor or not though it reveals that a woman named Susila was kidnapped with the aforesaid intent. But the prosecution case as it appears from the evidence on record was that the appellants kidnapped Manjula Pani, the PW 3, who according to the prosecution was a minor at the time of the alleged occurrence. None of the witnesses in their evidence before the Court has deposed that any Susila Pani was kidnapped on the date of occurrence. It is argued by the learned Additional Government Advocate that the name of Susil Pani has crept into the” charge inadvertently and as such the same should be read as Manjula Pani. The learned counsel of the appellants also did not dispute the same, ft also appears that the appellants so far have also proceeded with the case that the charge relates to the alleged occurrence relating to Manjula. In fact out of the charges in three heads the first head of charge is for offence under Section 363, IPC. That charge clearly reads that the alleged offence was committed relating to the minor girl Manjula. Thus the circumstances show that the appellants have neither been misled nor any failure of justice occasioned due to the alleged error. Accepting the contention of the learned Additional Government Advocate that the name of Susiia Pani has crept in due to inadvertence the correctness of the conviction under Section 366, IPC is now to be examined. From a reading of the charge it is clear that the charge was for kidnapping the victim lady and not for abduction The learned Assistant Sessions Judge analysing the evidence on record has come to a conclusion that PW 3, the victim lady was not a minor on the date of occurrence. In absence of any acceptable evidence adduced by the prosecution to establish the age of the victim girl the trial Court has rightly arrived at the above conclusion on the basis of the electoral role, Ext. A. So it is difficult to understand how the learned Assistant Sessions Judge convicted the appellants for kidnapping the sad victim lady for the purpose contemplated under Section 366. IPC. It is well-known that kidnapping and abduction are two distinct offences. The ingredients of the two offences are entirely different. Kidnapping except kidnapping from India is an offence against guardianship. As defined in Section 361, IPC it consists of enticing or removing a minor from the keeping of the lawful guardian without his consent. Abduction is an offence as defined in Section 362, IPC when a person is by force compelled or by any deceitful means induced to go from any place. In abduction the person abducted may be a minor or a major. Kidnapping is punishable per se under Section 363, IPC. Abduction is not punishable per se and is punishable only when accompanied by a particular purpose as contemplated under Sections 304 to 356, IPC. As kidnapping may also be for the purpose mentioned in Sections 364 to 366, IPC those sections deal with both kidnapping and abduction for the purpose stated therein and prescribe the punishment. But when a person is specifically charged for the offence of kidnapping a minor girl for being compelled to have illicit intercourse with a person he cannot be convicted for abducting a woman for the said purpose when it is found on evidence that the victim is not a minor as defined in the Code. It is noticed that the trial Court has failed too draw the distinction between kidnapping and abduction which are two distinct offenses and has fell into error by convicting the appellants under Section 366, IPC for kidnapping the victim while acquitting the appellants from the charge under Section 363. in this context, it may be mentioned here that in the Charge under Section 366, IPC there is no mention whether the victim was a minor or a major. Section 366, IPC prescribes punishment for kidnapping as well as abduction committed with the purpose mentioned in that section, therefore, it may be said that the conviction is for abduction and not for kidnapping. But the charge clearly indicates that the appellants were charged for an offence of kidnapping with the intent to compel the victim to have sexual intercourse with them. Therefore, now it cannot be said that the charge was for abducting the said victim for the aforesaid purpose. Therefore, the conviction and sentence passed under Section 366, IPC cannot be sustained.

7. The learned counsel of the appellants further contended that the evidence about the alleged threats given to the victim as welt as some of the witnesses is highly discrepant and as such the trial Court should not have placed any reliance thereon to hold the appellants guilty under Section 506, IPC. The learned Additional Standing Counsel on the other hand, submitted in support of the finding. The charge is for criminal intimidation alleged to have committed against Susila Pani. The prosecution case is that the appellants kidnapped Manjula (PW 3) and when Manjula and her companions PWs 1 and 5 protested the appellants threatened them all. But as it appears, there was none named Susila among the persons threatened. The learned Addl. Government Advocate submitted that the mistake in the charge cannot be of any consequence and the same cannot effect the trial adversely as the appellants were well aware from the beginning that the case was for committing the offence against the victim girl Manjula The appellants also do not challenge the order of conviction for the above defects in the charge. On the other hand, it is contended on behalf of the appellants that there is no reliable evidence to support the order of conviction under Section 506, IPC. In the above context, it is noticed that all the eye-witnesses including the victim girl have stated that the persons threatened them showing a knife. All of them have also deposed that appellant Abhaya Jena was holding the knife. The witnesses have also identified the knife which has been marked on M. O. I. But on a close scrutiny of the evidence of the witnesses, it appears that ML O. I can not be the knife said to have been used by the appellant Abhaya in threatening the witnesses. About the use of knife and the identification thereof the PW 1 has deposed “while we were following the accused persons (both the accused persons) told as to why we were chasing and saying so they threw one Kati (Again tie-witness says that they threw one knife, but not Kati). M. O. I is that knife. That M. O. I was brought by Rebika”. Further he has deposed “Rebika brought M. O. I to the village Narayanpur”. Rebika has been examined as PW 5. Though this witness has deposed that appellant Abhaya Jena showed a knife to her, her testimony does not show that the knife was thrown at them or that she picked up the same and took, it to her village. The victim girl, PW 3, and her companion, PW 4 have not also stated that the knife was thrown by any. of the appe Hants while they were going away from the Mahishikotha hill taking with them the victim girl. Contrary to the above evidence of PW 1, the brother (PW 6) of the victim girl has deposed that he saw the knife in the hands of appellant Abhaya from a distance of 250 cubits while he was at Bhaliatota. He has also identified the M. 0.I to be the knife which he saw in the hands of appellant Abhaya Jena. The evidence of all these witnesses becomes highly suspicious where ‘the evidence of PW 7, the I. O. is looked into. PW 7 in his evidence has stated that the IV). O. I was seized in connection with another case i. e., S.C. No. 13 of 1990 and the same had no role to play in this case. From the above evidence, it is difficult to accept that the witnesses PWs 1,3, 4, 5 and 6 saw the M. O. I. in the hands of Abhaya. Therefore the alleged threats given by the appellant Abhaya Jena by showing a knife to the witnesses cannot also be accepted base a conviction for an offence under Section 506, IPC.

8. In the result, the appeal is allowed. The order of conviction and sentence passed against the appellants by the trial Court in Sessions Trial No. 11/92-5/92 GDC is set aside and the appellants are acquitted from the charges under Sections 366 and 506, IPC. They be set at liberty forthwith if their detention is not required in any other case.

Uncategorized

Conviction u/s 306 IPC in absence of a charge to the effect.

Comments : In this case the court held that even though no specific charge u/s 306 is framed – the accused can be convicted under the same (S.221(2) CrPC) if otherwise 304B/498A was framed. 
 
Supreme Court of India
K. Prema S. Rao And Anr. vs Yadla Srinivasa Rao And Ors. on 25 October, 2002
Equivalent citations: AIR 2003 SC 11, 2002 (2) ALD Cri 871
Author: Dharmadhikari
Bench: M Shah, K Balakrishnan, D Dharmadhikari

JUDGMENT

Dharmadhikari, J.

1. “Frailty thy name is woman”, that is how in one of his plays Shakespeare described one of the female characters in his play. This description is more and more in evidence particularly in rural Indian society where married woman, who are unable to muster courage to fight against cruelty and harassment meted out to them by their spouses and family members, find no escape other than ending their own life.

2. The deceased Krishna Kumari, second daughter of PW1 was married to Yadla Srinivasa Rao (hereinafter referred to as accused No. 1), on 26.6.1988. Accused No. 1 was employed as Branch Post Master in the village where the spouses lived jointly with the parents of accused No.

1.

3. At the time of marriage father of the deceased, who was a teacher, gave a cash dowry of Rupees fifteen thousand and jewels wroth fifteen thousand besides gift of five acres of land and a house site in the course of marriage ritual described as “Pasupukumkuma.” It is explained that this gift of land was in the nature of ‘Stridhana’ given to the bride by the father for her maintenance.

4. After three or four months of the marriage accused No. 1, husband of the deceased started demanding from the deceased execution of a deed in his favour of the land and house site gifted to her. Refusal on the part of the deceased to meet the demand was the cause of her continuous harassment. Taking advantage of his position as the Post Master in the village, accused No. 1 never delivered mail sent to the deceased by her father and her sister Nagamani. Her younger sister after passing tenth class examination had to appear for Polytechnic Entrance Test. As a part of harassment of the deceased, accused No. 1 did not deliver the Entrance Card received from Kakatiya University addressed to the younger sister of the deceased which resulted in the former losing the admission to the test.

5. The deceased somebody was able to lay her hand on the letters addressed to her and which had been concealed by accused No. 1. On finding those letters, she handed over the same to her father. This incident led to extreme point of harassment. Accused No. 1 and his parents, accused Nos. 2-3, drove the deceased out from their house with stern warning to her to restore those letters. This incident of cruelty was so grave and unbearable that she committed suicide by consuming a poisonous insecticide Endo-Sulphan on 22.10.1989, PW4, who had witnessed the incident of the deceased having been driven out of the house the previous day, also saw accused No. 1 taking deceased to the hospital at Madhira. PW4 informed about it to father (PW1) of the deceased who rushed to the house of the accused to find Krishna Kumari, dead. The father then lodged a First Information Report, Ex.P1 within eight hours on the same day.

6. All the three accused were charged in Session Case No. 157 of 1999 by the Court of Assistant Sessions Judge, Nuzwid for offence of dowry death under Section 304B, IPC and in the alternative under Section 498A, IPC for cruelty and harassment of such magnitude as to drive the deceased to commit suicide. The prosecution examined the parents of the deceased of PW 1-2, PW 3-4 were examined who had seen the deceased being driven out of the house and taken back only on their persuation.

7. The trial court by judgment dated 19.8.1991 accepted the evidence led by the prosecution of alleged cruel treatment and harassment of the deceased which drove her to commit suicide. It, however, held that on the evidence only reference under Section 498A, IPC is made out. It acquitted them of the offence under Section 304B, IPC. The three accused on their conviction for offence under Section 498A were sentenced to rigorous imprisonment for two years and a fine of Rs. 500/- each. In default of payment of fine, they were sentenced to two months simple imprisonment each.

8. The appellants i.e. parents of the deceased filed Criminal Revision No. 564/91 in the High Court of Andhra Pradesh against the acquittal of the accused under Section 304B, IPC. The accused preferred Criminal Appeal No. 1291/99 before the High Court of Andhra Pradesh assailing their conviction and sentences.

9. The learned Single Judge of the High Court of Andhra Pradesh decided the revision preferred by the parents of the deceased and the appeal preferred by the accused by a common Judgment dated 24.8.1994 which is the subject matter of these two separate criminal appeals preferred by the parents of the deceased and the State of Andhra Pradesh.

10. The learned Single Judge of the High Court of Andhra Pradesh dismissed the Criminal Revision filed by the parents of the deceased and confirmed the verdict of the trial court that the accused are liable to conviction and sentences only under Section 498A, IPC and not under Section 304B, IPC.

11. By the same common judgment the High Court allowed the appeal preferred by accused Nos. 2-3 (Parents of accused No. 1) and acquitted them of the alleged offences.

12. Against the common judgment of the High Court, State of Andhra Pradesh has preferred Criminal Appeal Nos. 1458-59 of 1995 challenging the acquittal of accused Nos. 2-3 and the parents of the deceased have preferred connected Criminal Appeal No. 1457 of 1995 seeking conviction of all the accused under Section 304B of the IPC.

13. The High Court in its common judgment passed in Criminal Appeal and Criminal Revision before it after appreciating the evidence led against accused Nos. 2-3, has found that the allegation against them of their participation with accused No. 1 in driving out the deceased from their house was for the first time made by PW1-father of the deceased only in his deposition in the Court. At no earlier point of time either in the first information report Ex.P1 or in the statements made under Section 161 of Cr.P.C. to the police, such allegation was made against accused No. 2 and accused No. 3. Apart from the oral testimony of PW1 (the father of the deceased) there is no other evidence on record to prove that the two accused Nos. 2-3 joined accused No. 1 in harassing or cruelly treating the deceased. On appreciation of the evidence the conclusion drawn by the High Court in favour of accused No. 2 and accused No. 3 is reasonable and does not justify interference by us in their acquittal. Consequently, we uphold the acquittal of accused Nos. 2-3 and dismiss the two appeals preferred by the State of Andhra Pradesh which are filed to seek their conviction.

14. We now take up for consideration Criminal Appeal No. 1457 of 1995, preferred by the parents of the deceased seeking conviction of accused No. 1 for offence under Section 304B of the Indian Penal Code. In its common Judgment after appreciating the evidence on record, the conclusion reached by the High Court that the accused No. 1 cannot be convicted under Section 304B, IPC appears to be legally sound. There is no evidence against accused No. 1 that at the time of marriage there was any demand or settlement for giving dowry in cash or by way of transfer of property. The father of the deceased PW1 has not stated that cash, ornaments and the land were given at the time of marriage pursuant to any demand of dowry by the parents of the husband. He merely states that according to the custom of the community declaration was made of gift of five acres of land to the deceased as he “Stridhana” called in the community as pasupukumkuma. As promised and declared in the ritual at the time of marriage the land was transferred in the name of the wife. The couple lived happily thereafter. It is only 2-3 months thereafter that the husband started harassing the wife to force her to transfer the land to him This harassment or cruel treatment to pressurize her to transfer the land cannot be said to be ‘in connection with any alleged dowry demand’. For the purposes of Section 304B, IPC the legislature has borrowed the definition of ‘dowry’ from Section 2 of the Dowry Prohibition Act of 1961. The relevant provisions of the Penal Code, Dowry Prohibition Act and Evidence Act are quoted hereunder:

304-B Dowry death – (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

“Explanation – For the purposes of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

Section 2 of the Dowry Prohibition Act, 1951 defines “dowry” as under:-

2. Definition of “dowry” – In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly –

(a) by one party to a marriage to the other party to the marriage, or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person.

At or before or any time after the marriage in connection with the marriage of said parties, but does not include Dower or Mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I – For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II – The expression ‘valuable security’ has the same meaning as in Section 30 of the Indian Penal Code.

Section 113B of the Evidence Act raises a presumption against the accused and reads:-

113-B Presumption as to dowry death – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall be presume that such person had caused the dowry death.

Explanation – For the purpose of this section, “dowry death” shall have the same meaning as in Section 304B of the Indian Penal Code.”

15. The legal position firmly established is that ‘suicidal death’ of a married woman within seven years of her marriage is covered by the expression “death of a woman is caused ….. or occurs otherwise than under normal circumstances” as used in Section 304B of the Indian Penal Code. See Satvir Singh v. State of Punjab .

16. The evidence which has been found acceptable by the courts below against accused No. 1 is that the cruel treatment and harassment of the deceased by him led her to commit suicide which was a death “otherwise than under normal circumstances”. To attract the provisions of Section 304B IPC, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment ‘in connection with the demand for dowry’. There is no evidence on record to show that the land was demanded as a dowry. It was given by the father to the deceased in marriage ritual as pasupukumuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was ‘not in connection with any demand for dowry’. One of the main ingredients of the offence of “demand of dowry” being absent in this case, the High Court cannot be said to have committed any error in acquitting accused No. 1 for offence under Section 304B, IPC.

17. We, however, find that the same evidence on record which was held reliable by convict accused No. 1 for offence of ‘cruelty’ under Section 498A, IPC, clearly makes out a case for his conviction for offence of abetting suicide under Section 306, IPC read with Section 113A of the Evidence Act. Section 498A (SIC) cruelty by husband to wife as a punishable offence The word “cruelty” is defined in the Explanation appended to the said Section. Section 498A with Explanation thereunder reads thus:

Section 498A: “Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to find.

Explanation – For the purpose of this section, “cruelty” means –

(a) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or

(b) Harassment of the woman where such harassment is with a view to coercing her to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

(underlining for emphasis)

18. Clause (a) of the Explanation under Section 498A, IPC defines cruelty to mean a ‘wilful conduct of the husband of such nature as is likely to drive the women to commit suicide.’ In the instant case, the accused pressurised and harassed the deceased to part with the land received by her from her father as “Stridhana.” As a method adopted for harassment the Postal Mail of her relatives sent to her was suppressed by the husband who was in a position to do so being a Branch Post Master in the village. When the letters were discovered by the wife and she handed them over to her father (PW1) she was driven out of the house. This cruel conduct of the husband led the wife to commit suicide. The trial court and the High Court were, therefore, perfectly justified on this evidence to hold accused No. 1 guilty of the offence of ‘cruelty’ under Section 498A. As a result of such cruel treatment the wife was driven to commit suicide. Thus offence of abetment of committing suicide punishable under Section 306, IPC is clearly made out against accused No. 1 and for that purpose presumption under Section 113A of the Evidence Act can be raised against him. Section 306, IPC reads thus:

“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.”

113A. Presumption as to abetment of suicide by a married woman – When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within 6 period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation – For the purposes of this section, “cruelty; shall have the same meaning as in Section 498A of the Indian Penal Code.”

(underlining for emphasis)

19. Both the Courts below have found the husband guilty of cruel treatment of his wife and as a result the wife committed suicide within seven years of their marriage. On such evidence the presumption which arises under Section 113A of the Evidence Act is that the husband abetted the suicide. The word “cruelty” as mentioned in the Explanation below Section 113A of the Evidence act has been given the same meaning as contained in the Explanation below Section 498A, IPC. On the fact found, ‘the wilful’ conduct of the husband in forcing the deceased to part with her land which she had received in marriage as “stridhana” and for that purpose concealing her postal mail was so cruel that she was driven to commit suicide. A case of conviction and sentence of accused No. 1 under Section 306, IPC has thus clearly been made out even though his acquittal for commission of the offence of ‘dowry death’ punishable under Section 304B, IPC is not found liable to be disturbed.

20. The learned counsel for the accused has argued that in the absence of a charge framed against the accused under Section 306 IPC, the accused cannot be convicted under the said Section.

21. From the record we find that although a charge specifically under Section 306 IPC was not framed but all facts and ingredients constituting that offence were mentioned in the Statement of Charges framed under Section 498A and Section 304B of IPC. The statement of charge framed by the trial courts reads thus:

“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 of you and daughter-in-law of A2 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 and within the cognizance of this Court.

OR ALTERNATIVELY

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 498A of the Indian Penal Code and within the cognizance of this Court.”

(underlining for emphasis)

22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the Alternative Section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on fats found in evidence, he could have been charged for such offence. Section 221 of Cr.P.C. needs reproduction:-

“221. Where it is doubtful what offence has been committed. – (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

23. The provision of Sub-section (2) of Section 221 read with Sub-section (1) of the said Section can be taken aid of in convicting and sentencing the accused No. 1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498A of IPC.

24. Section 215 allows criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 of Cr.P.C. which reads:-

“215. Effect of errors – No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

25. As provided in Section 215 of Cr.P.C. omission to frame charge under Section 306 IPC has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately complain of any want of opportunity to defend the charge under Section 306, IPC and a consequent failure of justice. The said fats found in evidence, which justify conviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing “dowry death” under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act could also be raised against him on same fats constituting offence of cruelty under Section 498A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to me the charge under Section 498A, IPC.

26. It may be mentioned that against confirmation of his conviction by the High Court under Section 498A, IPC, the accused No. 1 has not preferred any special leave to appeal to this Court. The facts found-proved for his conviction and sentence under Section 498A, IPC, cannot now be questioned by the accused. Our conclusion, therefore, is that same facts and evidence on which accused No. 1 was charged under Section 498A and Section 304B, the accused can be convicted and sentenced under Section 306 IPC. We find no legal or procedural impediment in doing so.

27. The legislature has by amending the Penal Code and Evidence Act made Penal Law more strident for dealing with and punishing offences against married women. Such strident laws would have a deterrent effect on the offenders only if they are so stridently implemented by the law courts to achieve the legislative intent. On the facts found and the offence proved to have been committed leading to suicidal death of the wife, imprisonment of two years with fine of Rs. 500/- is too light a sentence. For offence under Section 306 IPC the sentence may extend to ten years. In this case the husband is found to have harassed his wife to such an extent as to drive her to commit suicide. Sentence of five years would, in our opinion, be a proper sentence for the crime with the amount of fine increased to Rs. 20,000/- to be paid as compensation to the parents of the deceased. On non-payment of fine the accused No. 1 shall suffer further sentence of one year.

28. We, thus, allow Criminal Appeal No. 1457 of 1995 preferred by the parents of the deceased. We maintain the conviction and sentence of accused No. 1 under Section 498A, IPC. The accused No. 1 is also convicted under Section 306, IPC and sentenced to five years rigorous imprisonment with a fine of Rs. 20,000/- to be paid as compensation to the parents of the deceased. In the event of non-payment of fine, accused No. 1 shall suffer imprisonment for a further period of one year. The sentences imposed under Section 498A, IPC and under Section 306, IPC shall run concurrently.

29. Connected Criminal Appeal Nos. 1458-59 of 1995 preferred by the State against acquittal of accused Nos. 2 & 3 are dismissed.

Uncategorized

Women convicted of murder on jumping in well with children…

Comment : In this case a women driven to despair and torture jumped into a well with her three children, was convicted u/s 300 (4) for causing death by act with knowledge that such act is so imminently dangerous that it must in all probability cause death. The defence took the specios plea that such act was justified in the facts of the case – i.e there was a circumstantial compulsion – the court turned down the plea – differentiating the case from likes of Emproer v. Dhirajia and convicted for murder – but gave the lesser punishment for life. 
 
Madhya Pradesh High Court
Gyarsibai W/O Jagannath vs The State on 23 October, 1952
Equivalent citations: 1953 CriLJ 588
Author: Dixit
Bench: Dixit, Chaturvedi

JUDGMENT

Dixit, J.

1. The appellant has been convicted by the Sessions Judge of Shajapur of an offence under Section 302, Penal Code, for the murder of her three children and also of an offence under Section 309, Penal Code, for an attempt to commit suicide. She has been sentenced to transportation for life under Section 302 Penal Code, and to six months simple imprisonment under Section 309, Penal Code. Both these sentences have been directed to run concurrently. She has now preferred this appeal from Jail against the convictions and sentences.

2. The facts of this case are very simple. The prosecution alleged that the appellant, her children, her husband Jagannath and her sister-in-law Kaisar Bai used to reside together. There were constant quarrels between the appellant and her sister-in-law and very often Jagannath used to slap the appellant for picking up a quarrel with her sister-in-law Kaisar Bai. It is alleged that one such quarrel took place on the morning of 14.8.1951 when Jagannath was away from his home. In this quarrel Kaisar Bai asked the appellant to leave the house. Thereupon, the appellant left the house, taking her three children aged 7 years, 5 years and 1 years and saying that on account of her sister-in-law she would jump into a well. Soon after, the appellant went to a well in the village and threw herself into the well along with her three children. A few hours after, some inhabitants of the village found Gyarasibai supporting herself on an edge of the well and the three children dead in the well. The appellant admitted before the Committing Magistrate as well as before the Sessions Judge that she jumped into the well together with her children on account of her sister-in-law Kaisar Bai’s harassment.

3. The facts have been amply established by the prosecution evidence. From the statement of Kaisar Bai and Narayan it is Clear that on the morning of the day ox occurrence, there was a quarrel between Kaisar Bai and Gyarasi Bai, and during this quarrel when Kaisar Bai asked the appellant to leave the house, she left the house with her three children, saying that she would jump into a well. Kaisar Bai also admits that some times Jagannath used to give two or three slaps to the appellant for quarrelling with her. The other prosecution witnesses deposed to the recovery of the bodies of three children and to the rescue of the appellant. There is no eye-witness of the fact that the appellant jumped down the well herself together with her three children. But from the statements of Kaisar Bai, Narayan and the statement of the appellant herself before the Committing Magistrate and the Sessions Judge, I am satisfied that the version given by the appellant in her own statement is correct and that she jumped into the well herself along with her three children in order to escape harassment at the hands of her sister-in-law Kaisar Bai.

4. On these facts the only question that arises for consideration is whether the appellant is guilty of the offence of murder of the three children and of attempted suicide. The learned Sessions Judge has found her guilty under Section 302, Penal Code, but he has not stated under which clause of Section 300, Penal Code, the act of the appellant in jumping down into a well together with her three children is murder. I think this act of the appellant clearly falls under the 4th clause of Section 300, Penal Code, which defines murder. On the facts it is clear that the appellant Gyarasi Bai had no intention to cause the death of any of her children and she jumped into the well not with the intention of killing her children but with the intention of committing suicide. That being so, Clauses 1, 2 and 3 of Section 300, Penal Code, which apply to cases in which death is caused by an act done with the intention of causing death or causing such bodily injury as is likely to cause the death of person or sufficient in the ordinary course of nature to cause death cannot be applied to the present case. The only clause of Section 300. Penal Code, which then remains for consideration is the 4th clause. This clause says:

If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

5. It will be seen from this clause that if death is caused merely by doing an act with the knowledge that it is so imminently dangerous that it must, in all probability, cause death, then the act is not murder as is defined in Clause 4, but is mere culpable homicide not amounting to murder. In order that an act done with such knowledge should constitute murder, it is essential that it should have been committed “without any excuse for incurring the risk of causing death or such bodily injury”. The question, therefore, is whether when the appellant jumped into the well together with her three children, she had the knowledge that her act was so imminently dangerous, as to cause in all probability the death of her children and further whether if she had such knowledge her act in jumping into a well with her children was “without any excuse for incurring the risk of causing death or such bodily injury as is mentioned in Clause 4 of Section 300, Penal Code. Now I think it cannot be said in the present case, with any degree of force that when the appellant jumped into a well with her children she had not the knowledge that her act was so imminently dangerous as to cause the death of her children. Her life might have become unbearable owing to domestic troubles and perhaps on account of these troubles, she decided to take her own life. I am also prepared to hold that on account of the discord in the house, the appellant was subjected to severe exasperation and to a long course of conduct causing suffering and anxiety. But when on account of all these reasons, she left the house on the day of the occurrence saying that she would jump into a well with her children, it cannot be said that she was in such an abnormal state of mind that could not have any Knowledge of the nature of her act.

Every sane person – and in this case we are bound to take it that the appellant was sane – is presumed to have some knowledge of the nature of his act. This knowledge is not negatived by any mental condition short of insanity. In my opinion, the act of the appellant in jumping into a well with her children is clearly one done by the appellant knowing that it must in all probability cause the death of her children. I do not find any circumstances to come to the conclusion that the appellant had some excuse for incurring the risk of causing the death of her children. The fact that there were quarrels between the appellant and sister-in-law and that her life had become unbearable on account of this family discord, cannot be regarded as a valid justification for appellant’s act of jumping into a well with her children.

The words used in Clause 4 of Section 300, Penal Code are “without any excuse for incurring the risk of causing death or such injury as aforesaid”. These words indicate that the imminently dangerous act is not murder if it is done to prevent a greater evil. If the evil can be avoided without doing the act, then there can be no valid justification for doing the act which is so imminently dangerous that it must, in all probability, cause death or such injury as is likely to cause death. Here there is no material, whatsoever, to come to the conclusion that the appellant could not have escaped the harassment at the hands of her sister-in-law except by jumping herself into a well with her three children. I am, therefore, inclined to think that the appellant’s act is clearly murder under Clause 4 of Section 300, Penal Code.

6. I must, however, notice two cases in which the question of the offence constituted by an act of a woman deliberately jumping into a well with a child in circumstances somewhat different to those present in this case has been considered. The first case is one reported in – Emperor v. Dhirajia ILR (1940) All 647. In this case a village woman left her home with her six months old baby in her arms on account of her husband’s illtreatment; after she had gone some distance from the home, she turned round and saw her husband pursuing her. She became panicky and jumped down into a well nearby with the baby in her arms. The baby died, but the woman survived. On these facts, the learned Judges of the Allahabad High Court held that an intention to cause the death of the child could not be attributed to the woman, though she must be attributed with the knowledge that such an imminently dangerous act as jumping down the well was likely to cause the child’s death.

But the learned Judges held that considering the state of panic she was in, the culpable homicide did not amount to murder as there was an excuse for incurring the risk of causing death. Mst. Dhirajia was thus found guilty under Section 304, Penal Code. It is not necessary to consider whether upon the facts of that case, the conclusion that the woman was guilty of culpable homicide not amounting to murder was justified. But it must be observed that the learned Judges of the Allahabad High Court thought that the fear of her husband and the panic into which she was thrown could be an excuse for incurring the risk of causing death. Here there is no question of any panic or fright of the appellant. It is, no doubt, true, as the learned Judges of the Allahabad High Court say that in assessing what is excuse or is not excuse, we must consider the state of mind in which the accused person was.

But I think in considering the question we must take into account the state of mind of a reasonable and legally sane person and then determine whether the risk of causing death could have been avoided. On this test, there can be no room for thinking in the present case that the appellant was justified in jumping into a well with her three children merely on account of her sister-in-law’s attitude towards her. The other decision is of the Bombay High Court in – Supadi Lukada v. Emperor AIR 1925 Bom 310. In that case too, a girl of about 17 years of age who was carrying her baby on her back jumped into a well because her husband had ill-treated her and had prevented her from returning to her parents.

The learned Judges of the Bombay High Court held that when the girl attempted to commit suicide by jumping into a well she could not be said to have been in a normal condition and was not, therefore, even aware of the child’s presence and that as she was not conscious of the child, there was not such knowledge as to make Section 300(4) applicable. The learned Judges of the Bombay High Court found the girl guilty under Section 304A. The Bombay case is clearly distinguishable on the facts. In the present case when the evidence shows that the appellant left her home saying that she would jump into a well with her three children, it cannot clearly be held that she was not aware that her children were with her. In my opinion, these two cases are not of much assistance to the appellant.

7. As regards the conviction of the appellant for an attempt to commit suicide, I think she has been rightly convicted of that offence. When she jumped into the well, she did so in a conscious effort to take her own life.

8. The appellant has been sentenced to transportation for life under Section 302, Penal Code, This is the only sentence which could legally be passed in this case. But having regard to the fact and circumstances of the case and also to the fact that the appellant though not legally insane was not and could not be in a normal state of mind when she jumped into a well with her three children, I think this is not a case deserving of a severe punishment. I would, therefore, recommend to the Government to commute the sentence of transportation for life to one of three years rigorous imprisonment. The sentence of six months’ simple imprisonment awarded to the appellant for the offence under Section 309 is appropriate.

9. In the result this appeal is dismissed.

Chaturvedi, J.

10. I agree.


Uncategorized

Father in law convicted u/s 202 for failure to inform the authorities as to DIL’s suicide

Comment : In this case of unnatural death of a DIL – notwithstanding failure of prosecution to bring home offences 302/306/304B against the accused – convicted the FIL u/s 202 for failure to inform the police – intentional ommission to give information having reason to believe that an offence is committed. 
 
Supreme Court of India
Bhagwan Swarup And Anr vs State Of Rajasthan on 28 August, 1991
Equivalent citations: 1991 AIR 2062, 1991 SCR (3) 820
Bench: Reddy, K Jayachandra

PETITIONER:

BHAGWAN SWARUP AND ANR.

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT28/08/1991

BENCH:

REDDY, K. JAYACHANDRA (J)

BENCH:

REDDY, K. JAYACHANDRA (J)

PANDIAN, S.R. (J)

CITATION:

1991 AIR 2062 1991 SCR (3) 820

1991 SCC (4) 54 JT 1991 (6) 309

1991 SCALE (2)414

ACT:

Penal Code, 1860–Sections 302, 201 and 120-B—Charges-Conviction by High Court–Modification of sentence by convicting accused no. I u/s. 202. IPC for making illegal omission to inform the authorities and ac- quitting the accused of the offences by Supreme Court u/s. 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act. 1970.

Supreme Court (Enlargement of General Appellate Juris- diction) Act, 1970–Section 2(a)–Appeal–Appreciation of evidence–conspiracy cannot be proved by conjectures and surmises–Absence of evidence to connect accused with the offences–Modification of sentence by convicting accused no. 1 u/s. 202, IPC. for making illegal omission to inform the authorities.

Evidence Act, 1872—Section 3–Appreciation of evi- dence-Failure of prosecution to prove guilt of accused–Conviction of accused no. 1 u/s. 202, IPC for making illegal omission to inform the authorities. Penal Code, 1860—Section 202–Ingredients to prove by prosecution indicated.

Penal Code, 1860–Sections 202, 306–Suicide–Whether offence of abatement punishable–Whether father-in-law has obligation to inform the authorities the suicide of daugh- ter-in-law.

HEADNOTE:

The appellants-father and son (A 1 and A 2)-were tried under Sections 302, 201 and 120-B I.P.C. for causing murder of the wife of A.2.

The deceased was married to A 2 in 1961. Two sons and one daughter were born to them. Their matrimonial fife was not smooth. There were frequent quarrels. It was in the evidence that the deceased was not healthy both physically and mentally. She was also admitted in

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mental hospital once. She used to confine herself to her room and she appeared to be somewhat mentally deranged. On 18.3.82 the dead body of the deceased was found in her room in the house of the accused. At that time admitted- ly A 2 was not in the house and he was at Suratgarh. On being informed about the death, A 1 sent for a doctor, who examined the deceased and declared her to be dead. Thereaf- ter A 1 informed P.W. S, the father of the deceased. The brother of the deceased, P.W. 6 told P.W. 5 that he had seen the dead body lying in the room and that it was giving rotten smell. P.W. 6 lodged a report before the Police. The investigation was taken up, held the inquest, exam- ined the witnesses and sent the dead body for post-mortem. The Doctor P.W. 2, who conducted the post-mortem, opined that the death was due to head injury and pressure in the neck region.

After completion of the investigation, the charge-sheet was laid. 22 witnesses were examined on behalf of the prose- cution. The accused denied the offences. A 1 stated that he was away from 14.3.1982 onwards and was at Jodhpur in his daughter’s house. In support of his plea D.W. 1, the neighb- out of A 1’s daughter and his grand-danghter, D.W. 2, namely the daughter of A 2 and the deceased were examined. A 2 stated that he was at Suratgarh from 11.3.1982 onwards. Both of them ‘denied the allegations of the pfrosecution. The trial court held that there was no evidence of conspiracy between the A 1 and A 2 for murdering the de- ceased and the circumstances relied upon by the prosecution were hardly sufficient to connect them with the murder and the accused were acquitted by the trial court. The State preferred an appeal before the Division Bonch of the High Court and the High Court convicted them under Section 120-B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life, against which this appeal was preferred under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act, 1970.

The appellants contended that the High Court acted an prejudice and suspicion and that there was absolutely no material to prove the conspiracy and muchless to connect the two accused in any manner with the murder.

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The respondent supported the findings of the High Court and also contended that the accused would at least be liable of having committed other offences.

Disposing of the appeal by making modification in the sentence, this Court,

HELD: 1. The second accused was not present in the scene-house, where the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his daughter’s house from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82. Therefore, they were not present in the house when the deceased died. The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court. The evidence of D.W. 2 who is none other than the daughter of the deceased and was very much in the house throughout categorically stated that her mother was alive on 15th March, also. Apart from D.W. 2 the only other inmate of the house during the crucial period was the moth- er-in-law of the deceased who was not even charge-sheeted. The letter Ex.P-15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjectures and surmises drawn from theletter. P.Ws. 4, 9 and 10 have not supported the prosecu- tion case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother-in-law of the deceased, was not even suspected. Therefore having given anxious and careful con- sideration to the facts and circumstances of the case it is felt by the Court that the prosecution has miserably failed to bring home the guilt of the appellants. [835A-E]

2. Section 202 I.P.C. punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give, particular- ly being the head of the family. Under this provision it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed (2) that the accused had intentionally omit- ted to give information respecting that offence and (3) that the accused was legally bound to give that information. [836G-H]

3. A 1 was at least under an obligation to give infor- mation about the death of the deceased since the same was unnatural. From the

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medical evidence, it is clear that it was not a natural death and consequently the death should at least be noted as one of suicide. Even in the case of suicide an offence of abetment punishable under Section 306 is inherent. Therefore even in the case of a suicide there is an obligation on the person, who knows or has reason to believe ‘that such a suicidal death has occured, to give information. [835G-836A]

4. In the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death. Therefore he had knowledge or at least had reason to believe that an offence had been commit- ted even if, at that stage, be thought that it was only a suicide. Therefore it was his bounden duty particularly as head of the family to inform the authorities. He omitted to do so. On the other hand, he went about telling that the deceased was still alive and her condition was serious. But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be Cremated and he intended to do so without informing the authorities. Therefore all the ingredients of Section 202 are made out against him and he clearly committed the offence punishable under this Section at. that stage. [838B-D]

5. The fact that A 1 himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Sec- tion 202 I.P.C. [838D]

Kalidas Achamma v. The State ofA.P S.H.O. Karimnagar, I Town P.S., [1987] 2 ALT 937, Approved.

Harishchandrasing Sajjansingh Rathod and Another v. State of Gujarat, [1979] 4 SCC 502, Distinguished.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 303 of 1984.

From the Judgment dated 19.5.1984 of the Rajasthan High Court in D.B. Criminal Appeal No. 129 of 1983. R.K. Jain, R.P. Singh and R.K. Khanna for the Appellants. Sushil Kumar and AruneShwar Gupta for the Respondent. The Judgment of the Court was delivered by

824

K. JAYACHANDRA REDDY, J. There are two appellants. They are father and son respectively and they figured as A 1 and A 2 before the trial court. They were tried for offences punishable’ under Sections 302, 201 and 120-B I.P.C. for causing murder of Madhu Saxena, wife of A 2 and daughter-in-law of A 1, the deceased in the case. They were acquitted by the trial court. The State preferred an appeal before the Division Bench of the High Court and the Division Bench of the High Court convicted them under Section 120-B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life. They have preferred this appeal under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act. 1970.

The deceased was married to A 2 in the year 1961. Two sons and one daughter were born to them. A 1, father of A 2, was a practising lawyer after retiring from the Government Service. The matrimonial life of the deceased and A 2 was not smooth. There were frequent quarrels. The accused lived in their own house alongwith the deceased. It is in the evidence that the deceased was not healthy both physically and mentally. She was also admitted in mental hospital once. She used to confine herself to her room and she appeared to be somewhat mentally deranged. The daughter of the deceased, who was examined as D.W. 2, aged 13 years was studying in 1Oth Class and she was also living in the same house. On 18.3.82 the dead body of the deceased was found in her room in the house of the accused. At that time admittedly A 2 was not in the house and he was at Suratgarh. On ‘being informed about the death A 1 sent for Dr. Madan Lal Arora, who exam- ined the deceased and declared her to be dead. Thereafter A 1 informed P.W. 5, Jagmohan Prasad, the father of the de- ceased. P.W. 5 went there and enquired. A 1 told P.W. 5 that the deceased be cremated at 9 A.M. The brother of the de- ceased told P.W. 5 that he has .seen the dead body lying in the room and that it was giving rotten smell. P.W. 6 lodged a report before the Police. P.W. 22 took up the investiga- tion, held the inquest, examined the witnesses and sent the dead body for post-mortem. The Doctor P.W. 2 conducted the postmortem. He found that the body was giving rotten smell and the skin here and there was peeled off, nails were loose and the tongue was found in between the teeth. He found an injury on the head. He also found that some of the organs were decomposed and noticed greenishbrown discolouration on the neck. He opined that the death was due to head injury and pressure in the neck region. He, however, sent the tissues of the trachea though decomposed and a piece of neck skin and also viscera for histopathology and for chemical analysis, but the

825

pathologist could not give opinion regarding the piece of skin and the tissues of the trachea. The pathologist noted that the skin was discoloured and that the tissues and the mussle attached to the trachea showed no abnormality. The Doctor P.W. 2 opined that the head injury was caused by blunt weapon: and that death is. result of neck injury. The pressure on the left and front of the neck was apparent. After completion of the investigation, the charge-sheet was laid. 22 witnesses were examined on behalf of the prosecu- tion. The accused dented the offences. A 1 stated that he was away from 14.3. 1982 onwards and was at Jodhpur in his daughter’s house. In support of his plea D.W. 1, Dr. Ram Krishna Mehta, the neighbour of A 1’s daughter, was exam- ined. He also examined his grand-daughter D.W. 2, namely the daughter of A 2 and the deceased. A 2 stated that he was at Suratgarh from 11.3.1982 onwards. Both of them denied the allegations of the prosecution.

The case registered rests on circumstantial evidence: The trial court held that there was no evidence of conspira- cy between the A 1 and A 2 for murdering the deceased. It further held that there is no legal proof also that the Circumstances relied upon by the prosecution are hardly sufficient to connect them with the murder. The trial court. however, severely criticised about the iII-treatment and hard behaviour of A 1 and A 2 towards the deceased. The High Court, however, took a different view. The High Court mainly relied on the evidence regarding the ill-treat- ment of the deceased by A 1 and A 2 and held that the ac- cused had strong motive. The High Court has also referred to the earlier incidents in some of the letters. The High Court accepted the medical evidence in to and reached the con- clusion that the death was homicidal and due to asphyxia due to head injury and pressure on the neck. Finally, the High Court, relying on the conduct of the accused after coming to know about the death of the deceased, reached the conclusion that the two accused conspired and got .the deceased mur- dered and accordingly convicted them under Sections 302 read with 34 I.P.C. and 120-B I.P.C.

Shri R.K.Jain, the learned counsel for the appellants submitted that the High Court has merely acted on prejudice and suspicion and that there is absoluteIy no material to prove the conspiracy and muchless to connect the two accused in any manner with themurder

The prosecution examined 22 witnesses. P.W. 1 an Assistant 826

School teacher in Jaipur and related to the deceased deposed that she attended a dinner in the house of the deceased and A 2 and in the year 1978 when the deceased came to her house she was having some spots ‘ of beating by sticks on her back and the deceased told PW. 1 that she was beaten by her hus- band. On 18.3.82 P.W. 1’s neighbour told her that there was a telephone message fxom A 1 that the deceasd was about to die. On that P.W. 1 and others went to the house of the deceased. They opened the room from where bad smell was coming and in that room they saw the dead body of the de- ceased which was decomposed. A 1 who was present there told them that they would cremate the dead body that night. On that P.W. 5, the husband of P.W. 1 and the brother of the deceased objected to. P.W. 1 has also mentioned about other incidents of cruel treatment meted out to the deceased. P.W. 2 is the Doctor, who conducted the post-mortem and we shaft advert to his evidence later. P.W. 3 is the eider sister of the deceased. She only stated that she got the information about the death of the deceased. P.W.. 4 is the son of the deceased and A 2. He deposed that on 11th March, 1982 his father A 2 came with him to the bus-stand to see him off. P.W. 4 met the deceased before leaving on the evening of 11th March, 1982 and talked to her. At that time the condi- tion of the deceased was very weak and she was unhealthy. P.W. 4 also deposed that his father A 2 was to go to Surat- garh by the evening of 11.3.82. This witness was treated hostile.In the crossexamination by the defence this witness stated that his sister Gianwati who was examined as D.W. 2 told him that she went regularly to the room of the deceased to give food from 11.3.82 to 15.3.82 and-that on 16.3.82 D.W. 2 did not meet the deceased due to headache and on 17th and 18th March the deceased did not respond when D.W. 2 called her. P.W. 4 further deposed that D.W. 2 also told the same to her grand-mother. P.W. 5 is the father of the de- ceased. He also deposed about the iII-treatment of the deceased by the accused and their demand for dowry. He further deposed that the neighbour told them that he re- ceived a telephone message from A 1 that the deceased was ‘ about to die. Thereupon P.W. 5 sent his son P.W. 6 to A 1 s house. Later he was told by A 1 who came to his house that the deceased died and the Doctor has declared her dead. ThereUpon P.W. 5 wanted to know the name of the Doctor. Thereupon A 1 told him that the deceased would be cremated. A little later P.W. 6 also came and told him that the de- ceased had died before many days and her dead body was giving rotten smell. P.W. 6 is brother of the deceased and son of P.W. 5. He also.deposed about the ill-treatment meted out to the deceased. He further stated that on 18.3.82 on receiving the information about the serious condition of the deceased he went to house of

827

the deceased and he found that the deceased had already died and the A 1 told him that the dead body would be cremated, whereupon he informed his father P.W. 5 and then lodged a report before the police. The police arrived and prepared a panchnama. P.W. 7 is the neighbour of the accused. He only attested the site plan prepared by the police. P.W. 8 is a practising Doctor and he deposed that on 18.3.82 A 1 came to him’ at about 5.30. P.M. and told him that his daughter-in- law namely the deceased was in serious condition. Thereupon he went to the house and saw the deceased. He examined the deceased and declared her to be dead. P.W. 9 also was exam- ined to speak about the cruelty but he was treated hostile. P.W. 10 also belongs to the same locality. He only deposed that the body was emitting foul smell and he signed the inventory prepared by the police. P.W 11 is a photographer who took the photographs of the room and the dead body. P.W. 12 is Gurubux Saxena who got the telephonic message from A 1 that the deceased was seriously ill and thereupon he in- formed P.Ws 1, 5 and 6. P.W. 13 is the cousin of the de- ceased. He also deposed about the cruelty meted out to the deceased. He further deposed that on 18.3,82 the deceased died and he was asked by P.W. 5 to go to the house of the deceased. He was informed by A 1 that the body would be cremated. Thereupon he and P.W. 6 went and .gave a report to the police. P.Ws 14 to 21 are the formal official witnesses. Out of them P.Ws 17, 18, 19 and 20 are examined who spoke about the movements of A 2. The sum and substance of their evidence is that A 2 was posted as expert of plant protec- tion in Suratgarh and that leave was granted to him on 11.3.82. This evidence may not be very much relevant because it is not the prosecution case that A 2 was present in the house at the time of the death of the deceased. P.W. 22 is the Sub-inspector who investigated the case. He deposed that on receipt of the report he went to the place of occurrence, held the inquest and sent the dead body for postmortem. He also speaks the seizure of some letters.

In the examination under Section 313 Cr. P.C. both the accused stated that they are innocent. A 1’s case was that he was away at Jodhpur from 15th March, 1982 onwards and was staying in her daughter’s house and he’ came to Jaipur only on 18th March, 1982 and then he was told about ‘the death of the deceased. Thereupon he called the Doctor P.W. 8 who examined and pronounced the deceased to be dead. He denied about the allegations of iii-treatment of the deceased. A 2 stated that he married the deceased in the year 1961 and they were blessed with two sons land one daughter. He also stated that he was a Gazetted Officer in Agriculture Depart- ment and he was transferred to various places and he also took the deceased with him. He further

828

stated that the deceased was sick and unhealthy and was staying at Jaipur. He also stated that his daughter used to give food to the deceased. On 11.3.82 he left for Suratgarh and later he came to know about the death of the deceased. The accused examined D .Ws 1 to 3 on their behalf. D .W. 1 is a Doctor at Jodhpur. He deposed that he knew A 1 and that he was staying in his daughter’s house in Jodhpur from 15th March, 1982 to 17th March, 1982. D.W. 2 is the daughter of A 2 and the deceased aged about 13 years. She in general stated that her mother was sick and unhealthy and used to confine herself to the room and she used to give food to her. She also stated that she gave food to the deceased on 15.3.82 and that she could not give food on 16.3.82 due to her own sickness. Then on 17th and 18th March, 1982 her mother did not talk to her, therefore she returned with the food. She also stated that A 1 went to Jodhpur on the evening of 14th March and returned from Jodhpur on 18th March, 1982. On that day they found that the deceased was not talking and two ladies who came to meet the deceased, told that there was something wrong. When her grand-father A 1 returned from Jodhpur he sent for a Doctor and the Doctor after examining pronounced the deceased to be dead. D.W.2 further stated that the relations between the deceased namely her mother and grand-mother were not good. In the cross-examination she affirmed that she fell ill on 16.3.82 after coming from school and therefore could not give food to her mother. She denied the suggestion that the body was decomposed even on 16th and 17th March, 1982. D.W. 3 is the son of A 1 and brother of A 2 residing at Jodhpur. He also deposed that A 1 came to Jodhpur and stayed from 15th on- wards upto 17th March, 1982.

From the above resume of evidence it is clear that the case rests entirely on circumstantial evidence. The dead body was found in the house of A 1 and A 2, where admittedly the deceased’ was also living but she used to confine her- self to that room where the dead body was found- She was sick and unhealthy and that she was not even coming out of the room. From the evidence it is also clear that the food was given to her in the room itself and she was not even going out to answer the calls of nature. Some of the wit- nesses, no doubt, have deposed that the accused used to ill-treat the deceased. But the main question is whether A 1 and A 2 conspired, as held by the High Court and got the murder committed. From the record it is clear and it is also not disputed thatA 2 was not in the house and that A i also left Jaipur and was staying at Jodhpur with his daughter upto 17th March, 1982 and came to Jaipur only on 18th March, 1982. Therefore he was also not in the house at the time of death. There is no other evidence to

829

show that as to who could have caused the death of the deceased if it is held to be homicidal. The trial court has doubted the prosecution case that the death was homicidal. The High Court after having elaborately examined the medical evidence reached the conclusion that it was homicidal. But .even assuming that it was homicidal, there is absolute paucity of evidence, suggesting even remotely as to who could have caused the death. Though, in our view, it is not strictly necessary in this case to decide the nature of death because even assuming it ‘to be homicidal, the accused A 1 ‘and A 2 cannot be convicted unless there is other material to connect them with the crime either ,directly or indirectly. However, we shall first consider the medical evidence regarding the cause of the death.

P.W. 2 Dr. M.R. Goel examined the dead body on 19.3.82 and found 10 injuries which were ante-mortem. Many of them were in the shape of bruises and swellings. He found the dead body as highly decomposed and had reached an advanced stage of putrefaction. In his opinion the death was due to the injury on the head and pressure on the neck due to asphyxia. He was cross-examined at length. He admitted that since the brain was decomposed and was in semi-liquid condi- tion no injury therein could be traced. He also admitted that the swelling of the eye was not due to the injury.on the forehead. Coming to the injury on the neck, the Doctor stated that no injury was found on the bones of wind pipe and that portion also was decomposed. In further cross- examination he admitted that he did not make the culture of the maggots crawling on the head. He also stated that he could not say definitely whether the death in the circum- stances should’ have occurred before four days. He, however, denied the suggestion that he could not form a definite opinion. As far as this medical evidence is concerned, the trial court also considered the same at length. The learned Sessions Judge noted the details in the post-mortem certifi- cate Ex. P, 1,. There he found against the column cause of death, the Doctor has put only a question mark. It is also noted in the postmortem certificate that P.W. 2 sent a part of the neck and viscera for chemical and histopathological examination. After considering the whole evidence of the Doctor, the trial court was of the opinion that it was very difficult to say that the injuries on the head were antemor- tem. In nature and at any rate P.W. 2’s evidence has not proved beyond reasonable doubt that the death of the de- ceased was due to injuries causing asphyxia and that the death was homicidal. The High Court, on the other hand, has also noted that the death of the deceased was 4 to 8 days’ earlier ,as shown in the post-mortem certificate. The learned Judges observed thus:

830

“It is to be noticed that Dr. M.R. Goyal, who conducted the post mortem examination, is not a novice but a ‘senior Medical Jurist of the S.M.S. Hospital. According to him there was’ sub-dural hammatoma over occipital region. Bruises were found on the forehead left side …………

We have carefully examined the reasons given by the Sessions Judge for holding that the posecution has failed to prove thatit was homicidal death ….. ……………. In ‘our considered opinion, all these injuries wereanti-mortem in nature.”

The learned Judges thereafter explained away the dis- crepancies between the post-mortem and the medical evidence. We may observe that the learned Judges of the High Court have bestowed considerable part of the judgment on the aspect of medical evidence and ultimately held thus: “In substance, we are convinced that it was a case of homicidal death. We cannot accept the finding of the trial court on this aspect of the case and have got no hesitation in revers- ing it and holding that the finding is not based on just and proper appreciation of the evidence.”

We have also gone through the medical evidence carefully and we may observe that ‘we are unable to hold that the view taken by the learned Sessions Judge is altogether unreasona- ble. However, for the purpose of this appeal it may not be necessary for us to go through the details of the medical evidence. Even accepting that the death was homicidal, we cannot on that ground alone hold the appellants guilty. The proSecution has to, satisfactorily and beyond reasonable doubt, establish that the two accused conspired and pursuant to that conspiracy, the offence was committed. We ,have already given a brief resume of the evidence’ adduced on behalf Of the prosecution. We have ,noticed that both the accused were not in the house on the day the occur- rence is said ‘to have taken place even assuming that, the same took place on 14.3.82. the evidence of D.W. 2 who is the only inmate of the house that was examined and whose evidence cannot be brushed aside establishes that the occur- rence probably took place on 15th or 16th March, 1982. It is only on 18.3.82 that the dead body was discovered and it is only on that day the A 1 Came to his house, at Jaipur .from Jodhpur and A 2 admittedly was 831

away on official duty- The D.W. 2 also speaks to the same. The High Court, however, drew some inferences based on the alleged conduct of the accused and held that the two accused conspired to kill the deceased. In the first instance the High Court held that the accused has a strong motive to get rid of the accused. For this reliance is placed on the evidence of some witnesses who spoke about the cruel treat- ment meted out to the deceased by the accused. The learned Judges have also relied on some letters written by the deceased. P.W. 6, the brother of the deceased deposed that the two accused used to be angry with the deceased and they did not allow him and his family members to see the de- ceased. Reliance is placed on the evidence of P.W. 5 who spoke about the demand of money. The learned Judges of the High Court mainly relied on this evidence to infer that the accused had motive to do away with the deceased. The High Court was not prepared to place reliance on the evidence of P.W. 4 and D.W. 2 who did not support the theory of cruelty. The High Court, after considering the above evidence, ob- served as under:

“Now the question is whether in these circum- stances although there are circumstances of strong motive and of cruelty and of strong desire on the part of accused Bhagwan Swarup and Parmeshwar Swarup to get rid of Madhu, there is any further evidence of other circum- stances, by which it can be said that no other hypothesis except the guilt of the accused is possible in the present case.”

Then the learned Judges proceeded to consider the evidence of P.W. 8 and others. P.W. 8 is a local Doctor who deposed that A 1 informed him in the evening of 18.3.82 that his daughter-in-law was serious. He went and examined the de- ceased and pronounced her to be dead. P.W. 8 also deposed that the body was giving bad smell and it was also in a decomposed condition. Then the High Court relied on the evidence of P.W. 12 who stated that he received a telephonic message from A 1 stating that his daughter-in-law was at her last breathing and he must inform P.W. 5, the father. Then the High CoUrt proceeded to consider some other circum- stances which took place from 11th March onward namely A 2 leaving on official duty. The High Court suspected that A 2 designedly left Jaipur to Suratgarh and also surmised that A 2 marking his attendance in the register at Suratgarh was with a view to create evidence of alibi. Then there is reference to a letter Ex. P. 15 written by A 1 to A 2 on 18.3.82 and according to the learned Judges, this letter was an effort to show that the deceased was alive even after 11th March and according to learned. Judges Ex. P. 15 a letter of A 1

832

on the alleged death of the deceased, written by him to his son is a significant feature. This letter is dated 18th March, 1982. In that A 1 has simply informed A 2 that the deceased breathed her last and that Doctor, P.W. 8, pro- nounced her dead and that on the next day they are going ahead with cremation. This letter which is on a post-card, is the most crucial feature, according to the High Court and that its contents show that both A 1 and A 2 were guilty- conscious. We think we need not refer to the further sur- mises made by the High Court. Suffice it to say that in the rest of the entire judgment only such suspicions and sur- mises have been mentioned or drawn to reach a conclusion that A 1 and A 2 conspired.. At one stage the learned Judges observed thus:

“The more and more we read this letter Ex. P. 15 dated 18.3.82 more and more we are con- vinced that it was a case of pre-planned, pre-determined conspiracy of committing murder of Madhu, which was done on 11th March, 1982 by both accused, who were anxiously waiting the time when they could get rid of her. It is also not Without significance that Suratgath is in Ganganagar District and a far. place from Jaipur and post-card would not reach there at least before 24 hours as it reached on 20th March and further even if telephone message is sent one would take at least 12 to 18 hours to reach this place. The fact that cremation was decided for the morning and the information was sent in the night only goes to show that since the death was a result of murder, in which both the accused were in- volved, there was no occasion to wait for son, who was husband of the ill fated unfortunate lady Madhu to perform last rite or see her face at least before she is put on fire. The merciless inhuman approach exhibited by this letter is heart beating, hair raising and society lacking and consicious shocking and we are convinced that such a conduct would not have been possible but for the fact that the object of conspiracy of Bhagwan Swarup and Parmeshwar Swarup was achieved by putting an. ,end to the life of Madhu, which was done on 11th and during all this time, all that Par- meshwar and Bhagwan Swamp were being Were the unsuccessful effort to conceal the murder of helpless lady and to create a plea of alibi or pretended the natural death. We are, there- fore, convinced that these circumstances, if taken as a whole, proves beyond all reasonable doubts that Bhagwan Swarup and Parmeshwar Swarup entered into a criminal conspiracy

833

to commit the murder of Madhu and with this abode intention, common object to fulfill the object of conspiracy they committed the murder of Madhu in their house on 11th March, 1982, by causing 11 injuries on her person after they had made it sure that the son Prakash Swamp leaves for Ajmer in the morning and then Parmeshwar Swarup left for Suratgarh in the evening and Bhagwan Swarup ultimately left for Jodhpur on 14th. These were all preplanned pre-determined well calculated steps of the conspiracy to commit the murder and then to avoid its detection by these two accused, who had deep rooted patience and hatred towards the unfortunate lady Madhu, who was being treated with cruelty which started in the beginning with the demand of dowry but contin- ued later on account of various other reasons.”

We have extracted the main part of the judgment only to show that how the High Court has acted merely on suspicion. We are unable to say as to on what basis the High Court could reach the conclusion that on 11th March, 1982 itself both A 1 and A 2 committed the murder of the deceased and left the dead body. Such a conclusion should be based on acceptable evidence. There is absolutely no material that the deceased was murdered on 11th March, 1982 itself. The medical evi- dence simply states that the death could have taken place 4 to 8 days prior to post-mortem. D.W. 2, the daughter is categorical that her mother, the deceased, was alive till 16th March, 1982 and that being the nature of the evidence On record, we are unable to appreciate the above conclusion of the High Court purely based on suspicion and surmises. Further, the learned Judges of the High Court have mentioned in the above passage that both the accused conspired to commit the murder of deceased and having conspired they themselves committed the murder. In our view there is no evidence worth men-, tioning to establish these offences. Naturally in a case of this nature, the question that arises from a layman’s point of view is then who else could have committed the murder in .the house itself? Perhaps if A 1 and A 2 were present in the house on the day of homicide then the situation would have been different and ‘both of them would have been under an obligation to give an explana- tion and the-absence of a plausible explanation or giving a false explanation could have been very much incriminating against them. The same coupled with other circumstances would have perhaps brought home the guilt to the accused. But the circumstances

834

are different now. A 1 and A 2 were away from the house. The medical evidence does not at all support that the murder, assuming it to be one, could have taken place on 11th March itself as conjectured by, the High Court. If the murder has taken place some time after 11th March, then A 1 and A 2 cannot directly be connected with the murder. That being so unless conspiracy as such is established, they cannot be held liable. Then the other inmates in the house are only the mother-in-law and the children of the deceased. None of them was suspected and at any rate no one of them was charge-sheeted or tried. Therefore the question of any one of them being held responsible for the death does not arise. No doubt a grave suspicion does arise namely that some of the inmates of the house must have been responsible and an accusing finger Can be pointed against A 1 and A 2 but from 11th March onward they were not in the house. D.W. 2’s evidence clinches the .issue that the death must have been taken place only after 16th and before 18th March. It is in this situation the High Court surmised on mere suspicion that A 1 and A 2 conspired and also committed the murder on 11.3.82 itself. If the murder has been committed on 11th March itself the body would have been highly decomposed by 18th March, 1982 and would have been emitting very bad smell. One cannot imagine that the other remaining inmates of the house would have simply and silently suffered in the house without informing anybody. On the other hand D.W. 2’s evidence is different and she categorically stated that the deceased was alive upto 16th March. That appears to be natural and there is no reason whatsoever to doubt the same. As indicated supra we are inclined. to agree with the Sessions ‘Court that the medical evidence does not establish the death to be one of homicidal. At any rate there is a grave doubt in this regard. The evidence on record clearly shows that the deceased was not mentally sound. The fact that she was not coming out of the room and used the same for answering the calls of nature also would snow that there was something abnormal about her and she confined her move- ments to the four corners of the room. 15th March, 1982 was the last day when D.W. 2 served food to the deceased. There- after she did not go inside the room and on 18th March, 1982 the dead body was discovered. The evidence of P.W. 2, the Doctor, also shows that no brain injury could be traced and he also did not find any injury on the bones of wind pipe. In view of these and other admissions the trial court right- ly felt that there was a reasonable doubt about the cause of death also and accordingly acquitted the accused. From the above discussion the following important points 835

emerge; It is an undisputed case that the second accused was not present in the scene house were the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his .daughter’s houseI from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82. There- fore they were not present in the house when the deceased died- The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court. The evidence of D.W. 2 who is none other than the daughter of the de- ceased and was very much in the house throughout ategorical- ly stated that her mother was alive on 15th March also. Apart from D .W. 2 the only other inmate of the house during the crucial period was the mother-in-law of the deceased who was not even charge-sheeted. The letter Ex. P-15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjec- tures and surmises drawn from the letter. P.Ws 4, 9 and 10 have not supported the prosecution case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother-ln-law of the deceased, was not even suspected. Therefore having given our anxious and careful consideration to the facts and circumstances of the case we feel that the prosecution has miserably failed to bring home the guilt of the appellants and consequently we are inclined to allow the appeal. The accused were tried for offences punishable under Sections 302 read with Section 34, 201 and 120-B I,P.C. only and in our view the trial court rightly held that none of these charges-were proved against them.

The learned counsel for the respondent State of Rajas- than, however, submitted that the accused would atleast be liable of having committed other offences. It may be noted that the question whether they would be liable under Section 498-A or 304-B does not arise for consideration inasmuch as these provisions were not on the statute on the day of occurrence. However, A 1 was atleast under an obligation to give information about the death of the deceased since the same was unnatural. Assuming that the prosecution has not positively proved that the death was homicidal yet from the medical evidence it is clear that it was not a natural death and consequently the death should atleast be noted as one of suicide. Even in the case of suicide an offence of abetment punishable under Section 306 is inherent. There- 836

fore, even in the case of a suicide there is an obligation on the person, who knows or has reason to believe that such a suicidal death has occured, to give information. In Kali- das Achamma v. The State of A.P., S.H.O. Karimnagar. I Town P.S., [1987] 2 ALT 937 it was observed as under: “In the case of every suicide abetment is inherent. Whether ultimately it is proved or not, it is a different aspect. Abetment of suicide is an offence punishable under Section 306 I.P.C. and therefore whenever a case of suicide is there, the body cannot be disposed of without informing the Police and further as provided under Section 174 Cr. P.C. the Police have to hold an inquest Since it is an unnatu- ral death. ‘ ‘

In the instant case A 1, who reached his house on 18.3.82 knowing fully well that the deceased had already died, informed P.W. 8 that the deceased was in a serious condi- tion. Likewise he informed P.W. 12 on telephone without disclosing that the deceased was already dead. However, when P.W. 6, the brother of the deceased, came to the house where the dead body was lying, A 1 told him that the body would be cremated. To the same effect is the evidence of P.W. 13. P.W. 6, the brother of the deceased, on his own went and gave a report to the police. It can thus be seen that A 1 intentionally omitted to give the information in respect of the death of the deceased which he was legally bound to give. Section 202 I.P.C. is in the following .terms: “202. Intentional omission to give information of offence by person bound to inform–Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

This Section punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give particularly being the head of the family. Under this provision it is necessary for the prosecution to prove (1) that the accused had knowl- edge or reason to believe that some offence had been commit- ted (2) that the accused had intentionally omitted to give information respecting that offence and (3) that the accused was legally bound to give that information. Shri R.K. Jain, however, relied

837

on a judgment of this Court in Harishchandrasing Sajjansinh Rathod and AnOther v. State of Gujarat, [ 1979] 4 SCC 502 and contended that the word “Whoever” occurring in the opening part of the Section refers to a person other then the offender and has no application to the person who is alleged to have committed the principal offence- In that case the accused were tried for offences punishable under Sections 331 and 304 read with Section 34 I.P.C. in respect of the death of the deceased and were acquitted..On appeal by the State the High Court, however, convicted them under Section 202 I.P.C. A Bench of this Court while reversing the order of High Court observed thus:

“We have gone through the entire evidence bearing on the aforesaid offence under Section 202 but have not been able to discern anything therein which may go to establish the afore- said ingredients of the offence under Section 202 of the Penal Code. The offence in respect of which the appellants were indicted viz. having intentionally omitted to give informa- tion respecting an offence which he is legally bound to give not having been established, the appellants could not have been convicted under Section 202 of the Penal Code. It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main offence before making a person’ liable under this section. The offence under Section 304 (Part II) and the one under Section 33.1 of the Penal Code not having been established on account of several infirmities is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code. The High Court has also missed to notice that the word ‘whoever’ occurring at the

opening part of Section 202 of the Penal Code refers to a person other than the offender and has no application to the person who is al- leged to have committed the principal offence. This is so because there is no law which casts duty on a criminal to give information which would incriminate himseft. That apart the aforementioned ingredients of the offence under Section 202 of the Penal Code do not

appear to have been made out against the prosecution There is not an iota of evidence to show that the appellants knew or had reason to believe that the aforesaid main offences had been committed.”

(emphasis supplied)

From these observations it is clear that there was .no evidence to show

838

that the accused therein knew or had reason to believe that the said offences have been committed and on the other hand they were made principal offenders. In such a situation the ingredients of Section 202 can not be said to have been made out. It is in this context that the meaning of the word “whoever” has been considered. But in the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death. Therefore he had knowledge or atleast had reason to believe that an offence had been committed even if, at that stage; he thought that it was only a suicide. Therefore it was his bounden duty particularly as head of the family to inform the authorities. He omitted to do so. On the other hand, he went about telling that the deceased was still alive and her condition was serious. But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be cremated and he intended to do so without informing the authorities. Therefore all the ingredients of Section 202 are made out against him and he clearly commit- ted the offence’ punishable under this Section at that stage. The fact that he himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Section 202 I.P.C. So far A 2 is concerned, he came to the house only after the investigation commenced. Therefore his-case stands on a different footing. In the result the convictions and sentences awarded against A 1 and A 2 are set aside. A 1, however, is convicted under Section 202 I.P.C. and sentenced to undergo six months’ R.I. The appeal is disposed of ac- cordingly.

V.P.R. Appeal disposed

1

839

Criminal Justice System

Scope of Scrutiny at the stage of discharge …Supreme Court

This Judgment highlights the scope of scrutiny at the stage of discharge. 
 Supreme Court of India
R.S. Mishra vs State Of Orissa & Ors. on 1 February, 2011
Bench: J.M. Panchal, H.L. Gokhale

HELD:1.1. The provision concerning the framing of a charge is to be found in Section 228 of Cr.P.C. This Section is however, connected with the previous section, i.e. Section 227 which is concerning `Discharge’. From Section 227 it is clear that while discharging an accused, the Judge concerned has to consider the record of the case and the documents placed therewith, and if he is so convinced after hearing both the parties that there is no sufficient ground to proceed against the accused, he shall discharge the accused, but he has to record his reasons for doing the same. Section 228 which deals with framing of the charge, begins with the words "If after such consideration". Thus, these words in Section 228 refer to the `consideration’ under Section 227 which has to be after taking into account the record of the case and the documents submitted therewith. These words provide an inter-connection between Sections 227 and 228. That being so, while Section 227 provides for recording the reasons for discharging an accused, although it is not so specifically stated in Section 228, it can certainly be said that when the charge under a particular section is dropped or diluted, (although the accused is not discharged), some minimum reasons in nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the charge is to be framed `after such consideration’ and therefore, that consideration must be reflected in the order. [Paras 17, 18] [357-F-G; 358-G-H; 359-A-C]

1.2. A discharge order is passed on an application by the accused on which the accused and the prosecution are heard. At the stage of discharging an accused or framing of the charge, the victim does not participate in the proceeding. While framing the charge, the rights of the victim are also to be taken care of as also that of the accused. That responsibility lies on the shoulders of the Judge. Therefore, on the analogy of a discharge order, the Judge must give his reasons atleast in a nutshell, if he is dropping or diluting any charge, particularly a serious one as in the present case. It is also necessary for the reason that the order should inform the prosecution as to what went wrong with the investigation. Besides, if the matter is carried to the higher Court, it will be able to know as to why a charge was dropped or diluted. [Para 19] [359-D-F]

1.3. At the initial stage of the framing of a charge, if there is a strong suspicion/evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. Further, at the stage of the framing of the charge, the Judge is expected to sift the evidence for the limited purpose to decide if the facts emerging from the record and documents constitute the offence with which the accused is charged. This must be reflected in the order of the judge. Thus it cannot be disputed that in this process the minimum that is expected from the Judge is to look into the material placed before him and if he is of the view that no case was made out for framing of a charge, the order ought to be clear and self-explanatory with respect to the material placed before him. In the present case, all that the appellant stated in his judicial order was, that on consideration of the material available in the case diary, he had found that there was no sufficient material to frame the charge under Section 302 of IPC. This is nothing but a bald statement and was clearly against the statement of the injured eye witness, and supporting medical papers on record. The appellant has not even referred to the same. He has also not stated in his order as to why he was of the opinion that the material available in the case diary was insufficient. Such a bald order raises a serious doubt about the bona fides of the decision rendered by the Judge concerned. A young person had been killed. It was not a case of grave and sudden provocation. The material on record showed that there was an injured eye witness and there was the supporting medical report. The material on record could not be said to be self- contradictory or intrinsically unreliable. Thus, there was a prima facie case to proceed to frame the charge under Section 302 IPC. The reason given for dropping the charge under Section 302 was totally inadequate and untenable, and showed a non-application of mind by the appellant to the statements in the charge-sheet and the medical record. The order does not explain as to why a charge under Section 304 was being preferred to one under Section 302 IPC. In fact, since the material on record revealed a higher offence, it was expected of the appellant to frame the charge for more grievous offence and not to dilute the same. [Paras 20, 21 and 22] [359-G-H; 360-G-H; 361-A-G]

1.4. The impugned order of the High Court deciding Revision notes that the appellant had been functioning in the rank of the District Judge from August 1991 onwards, i.e. for nearly 5 years prior to his judicial order and further states that a Judicial Officer, before being posted as an Additional Session Judge, gets experience of taking the sessions cases as Assistant Session Judge. It cannot, therefore, be said that the appellant did not have requisite experience to pass a correct legal order under Section 228 of Cr.P.C. That apart, all that the impugned order in Revision did was to suggest to the High Court Administration, that if the appellant was not yet confirmed, his probation should wait and if he was already confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court did on the administrative side was to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision was a suggestion to the Administration of the High Court. It was not a case of making any adverse or disparaging remarks. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the High Court), and having noted the serious deficiencies, the High Court had denied the selection grade to the appellant. The impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted. [Para 24] [362-C-H; 363-A]

1.5. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. By the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years and, therefore, the Revisional Court did not deem it fit to reopen the case. The appellant cannot take advantage of this part of the judgment of the Revisional Court, to challenge the observations of the Revisional Judge making a suggestion to the High Court to scrutinize appellant’s record for the dereliction of duty on his part. The appellant was responsible for an unjustified dilution of the charge and, therefore, thorough checking of his service record was necessary which is, what was directed in the impugned order of the Revisional Court/High Court. There is no reason to interfere in the said order making certain observations and suggestions which were necessary in the facts and circumstances of the case. [Paras 25, 26] [363- B-F]

In the matter of `K’ A Judicial Officer, 2001 (3) SCC 54; V.K. Jain v. High Court of Delhi through Registrar General and Others, 2008 (17) SCC 538 and Prakash Singh Teji v. Northern India Goods Transport Company Private Limited and Anr, 2009 (12) SCC 577 – distinguished.

State of Bihar v. Ramesh Singh AIR 1977 SC 2018; Nirmaljit Singh Hoon v. State of West Bengal1973 (3) SCC 753; Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430; Niranjan Singh v. Jitendra Bhimraj 1990 (4) SCC 76 – relied on.

Case Law Reference:

2001 (3) SCC 54 distinguished Para 12

2008 (17) SCC 538 distinguished Para 13

2009 (12) SCC 577 distinguished Para 14

AIR 1977 SC 2018 relied on Para 20

1973 (3) SCC 753 relied on Para 20

AIR 1963 SC 1430 relied on Para 20

1990 (4) SCC 76 relied on Para 20

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 232 of 2005.

From the Judgment & Order dated 28.10.2002 of the High Court of Orissa in Suo Motu Criminal Revision Petition No. 367 of 1997.

Uday Gupta, D.K. Mishra, Manoj Swarup for the Appellant.

Suresh Chandra Tripathy, Janaranjan Das, Swetaketu Mishra for the

Respondents.

Criminal Justice System

Causing Death of Tresspasser by Rash & Negligent Act

Supreme Court of India
Cherubin Gregory vs The State Of Bihar on 31 July, 1963
Equivalent citations: 1964 AIR 205, 1964 SCR (4) 199
Bench: Ayyangar, N Rajagopala

PETITIONER:

CHERUBIN GREGORY

Vs.

RESPONDENT:

THE STATE OF BIHAR

DATE OF JUDGMENT:

31/07/1963

BENCH:

AYYANGAR, N. RAJAGOPALA

BENCH:

AYYANGAR, N. RAJAGOPALA

SINHA, BHUVNESHWAR P.(CJ)

SHAH, J.C.

CITATION:

1964 AIR 205 1964 SCR (4) 199

ACT:

Criminal trial-Trespasser-Duty of owners towards trespassers Indian Penal Code S. 99, 103, 304A.

HEADNOTE:

The appellant was charged under s. 304-A of Indian Penal Code for causing the death of a woman. The deceased was residing near the house of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of occurrence and so the deceased along with others started using the latrine of the accused. The accused protested against their coming there. The oral warnings however, proved ineffective and so he fixed up a naked copper wire across the passage leading upto his latrine and that wire carried current from the electrical wiring of his home to which it was connected. On the day of the occurrence, the deceased went to the latrine of the appellant and there she touched the aforesaid fixed wire as a result of which she died soon after. The trial and the appellate court convicted and sentenced the appellant under S. 304A of the Indian Penal Code. Hence this appeal. 200

Held : (1) The plea of the right of private defence of property was not sustainable for the reason that the type of injury caused by the trap laid by the accused could not be brought within the purview of S. 99 or 103 of the Indian Penal Code.

(2) A trespasser was not an outlaw, a caput lupinem. The mere fact that the person entering a land was a trespasser did not entitle the owner or occupier to inflict on him personal injury by direct violence and the same principle would govern the infliction of injury by indirectly doing something on the land the effect of which he must know was likely to cause serious injury to the trespasser.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3 of 1962.

Appeal by special leave from the judgment and order dated September 20, 1961 of the Patna High Court in Criminal Appeal No. 124 of 1960.

D. Goburdhan, for the appellant.

S.P. Ferma, for the respondent.

July 31, 1963. The judgment of the Court was delivered by AYYANGAR J.-This is an appeal by special leave against the judgment of the High Court of Patna dismissing an appeal by the appellant against his conviction and the sentence passed on him by the Sessions Judge, Champaran. The appellant was charged with an offence under S. 304A of the Indian Penal Code for causing the death of one Mst. Madilen by contact with an electrically charged naked copper wire which he had fixed up at the back of his house with a view to prevent the entry of intruders into his latrine. The deceased Madilen was an inmate of a house near that of the accused. The wall of the latrine of the house of the deceased had fallen down about a week prior to the day of the occurrence-July 16, 1959, with the result that her latrine had become exposed to public view. Consequently the deceased among others, started using the latrine of the accused. The accused resented this and made it clear to them that they did not have his permission to use it and protested against their coming there. The oral warnings, however, proved inef-

201

fective and it was for this reason that on the facts, as found by the courts below, the accused wanted to make entry into his latrine dangerous to the intruders. Though some of the facts alleged by the prosecution were disputed by the accused, they are now concluded by the findings of the courts below and are no longer open to challenge and, indeed, learned Counsel for the appellant did not attempt to controvert them. The facts, as found, are that in order to prevent the ingress of persons like the deceased into his latrine by making such ingress dangerous (1) the accused fixed up a copper wire across the passage leading up to his latrine, (2) that this wire was naked and uninsulated and carried current from the electrical wiring of his house to which it was connected, (3) there was no warning that the wire was live, (4) the deceased managed to pass into the latrine without contacting the wire but that as she came out her hand happened to touch it and she got a shock as a result of which she died soon after. On these facts the Courts below held that the accused was guilty of an offence under s. 304A of the Indian Penal Code which en- acts :

“304A. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

The accused made a suggestion that the deceased had been sufficiently warned and the facts relied on in this connection were two : (1) that at the time of the accident it was past day break and there was therefore enough light, and (2) that an electric light was burning some distance away. But it is manifest that neither of these could constitute warning as the conditions of the wire being charged with electric current could not obviously be de- tected merely by the place being properly lit. The voltage of the current passing through the naked wire being high enough to be lethal, there could be no dispute that charging it with current of that voltage was a ‘rash act’ done in reckless disregard of the serious consequences to people coming in contact with it.

It might be mentioned that the accused was also cliar- 14–2 S. C. India/64

202

ged before the learned Sessions Judge with an offence under section 304 of the Indian Penal Code but on the finding that the accused had no intention to cause the death of the deceased he was acquitted of that charge. The principal point of law which appears to have been argued before the learned judges of the High Court was that the accused had a right of private defence of property and that the death was caused in the course of the exercise of that right. The learned judges repelled this defence and in our opinion, quite correctly. The right of private defence of property which is set out in s. 97 of the Indian Penal Code is, as that section itself provides, subject to the provisions of s. 99 of the Code. It is obvious that the type of injury caused by the trap laid by the accused cannot be brought within the scope of s. 99, nor of course of s. 103 of the Code. As this defence was not pressed before us with any seriousness it is not necessary to deal with this at more length.

Learned Counsel, however, tried to adopt a different approach. The contention was that the deceased was a trespasser and that there was no duty owed by an occupier like the accused towards the trespasser and therefore the latter would have had no cause of action for damages for the injury inflicted and that if the act of the accused was not a tort, it could not also be a crime. There is no substance in this line of argument. In the first place, where we have a Code like the Indian Penal Code which defines with particularity the ingredients of a crime and the defences open to an accused charged with any of the offences there set out we consider that it would not be proper or justifiable to permit the invocation of some Common Law principle outside that Code for the purpose of treating what on the words of the statute is a crime into a permissible or other than unlawful act. But that apart, learned Counsel is also not right in his submission that the act of the accused as a result of which the deceased suffered injuries resulting in her death was not an actionable wrong. A trespasser is not an outlaw, a Caput lupinem. The mere fact that the person entering a land is a trespasser does not entitle the owner or occupier to inflict on him personal in- jury by direct violence and the same principle would 203

govern the infliction of injury by indirectly doing some- thing on the land the effect of which he must know was likely to cause serious injury to the trespasser. Thus in England it has been held that one who sets springguns to shoot at trespassers is guilty of a tort and that the person injured is entitled to recover. The laying of such a trap, and there is little difference between the spring-gun which was the trap with which the English Courts had to deal and the naked live wire in the present case, is in truth “an arrangement to shoot a man without personally firing a shot”. It is, no doubt true that the trespasser enters the property at his own risk and the occupier owes no duty to take any reasonable care for his protection, but at the same time the occupier is not entitled to do willfully acts such as set a trap or set a naked live wire with the deliberate intention of causing harm to trespassers or in reckless disregard of the presence of the trespassers. As we pointed out earlier, the voltage of the current fed into the wire precludes any contention that it was merely a reasonable precaution for the protection of private property. The position as to the obligation of occupiers towards trespassers has been neatly summarised by the Law Reform Committee of the United Kingdom in the following words: “The trespasser enters entirely at his own risk, but the occupier must not set traps designed to do him bodily harm or to do any act calculated to do bodily harm to the trespasser whom he knows to be or who to his knowledge is likely to be on his premises. For example, he must not set man-traps or spring guns.

This is no more than ordinary civilised behaviour.” judged in the light of these tests, it is clear that the point urged is wholly without merit.

The appeal fails and is dismissed.

Appeal dismissed.


Uncategorized

Murder under Supposed Circumstances

Comment : The Court summed up the law on death caused under supposed circumstances. The Law in a nutshell is examine the initial mens rea ? and not the latter one because when the person takes another to be dead and then hangs him up to potrray this as a suicide he has mens rea only for 201 not 302, and in absence of conurrence of actus reaus and mens rea – criminal liability cannot be imposed. If the initial actus reus was for simple hurt – he would be convicted for the same and not murder. 
 
Madras High Court
 
In Re: Palani Goundan vs Unknown on 7 April, 1919
 
Equivalent citations: 51 Ind Cas 164
Author: Napier
Bench: J Wallis, S Aiyar, C Trotter

ORDER

Napier, J.

1. The accused has been convicted of the murder of his wife. The evidence shows that on Wednesday the 23rd of October 1918 at about 4 or 5 raligais before sunset she was seen by prosecution 6th witness weeping and she said that her husband had beaten her. The witness told her to go home, promised to send for her father and then went to the father himself, who lived in another hamlet of the same village a mile away a little before sunset, and told him of the occurrence. After sunset the father, prosecution witness No. 2, sent his son, prosecution witness No. 3, and his son in law, prosecution witness No. 4, to the house where his daughter was living. Their evidence is that they arrived at the house at 4 or 5 nalig is after sunset and that Just outside the door they found the mother and the brother of the accused in the vasal and that the mother was remonstrating with her son inside, saying ‘do not beat a woman’ According to their evidence they did not hear any cries inside the house at that time After they waited a few minutes the accused opened the door and came out. They say they went inside and found Ramayee lying dead on the floor with a ploughshare lying near her. They say they at once went and told Rasa Gaundan, who lives two doors off from the accused’s house, to go and call their father, prosecution witness No 2. Rasa Gaundan, prosecution witness No. 5, says that he went and informed prosecution witness No. 2, who at once came and found his daughter lying dead at about 10 or 11 o’clock in the night. Prosecution witness No, 2, says that he taxed the accused with the murder of his daughter and the accused said she hanged herself. Prosecution witness No. 2 further says that he went to the Monigar and reported, but the Monigar was busy with a procession and only promised to report. He thought that the Monigar was endeavouring to hush the matter up, so he went to report the matter to the Police himself at Kodumudi 3 or 4 miles away and laid a complaint. This complaint was recorded at 9. 15 a.M. the next morning. That the Monigar was endeavouring to hush the matter up there can he no doubt, for it is clear that he sent no report to the Police what scever as was his duty to do. The accused told a story to the effect that he came bark early in the evening to get his meals and found his wife banging with a rope sied to the roof, and he calls two witnesses who say that the accused came and told them that his wife would not let him in and they went in with him and found his wife hanging from a beam. I do not think there can be any doubt that the deceased was hanged, but the evidence of the two defence witnesses is so discrepant that it is impossible to believe their version of the occurrence. The medical evidence shows that the woman had received a severe blow on the side of her head which would probably have rendered her unconscious, and it also shows that she died of strangulation which may have been the effect of hanging. That she hanged herself is impossible because, as pointed out by the Medical Officer, the blow on the head must have produced unconsciousness, and therefore, she could not hang herself. I am satisfied on the evidence of the following facts: that the accused struck his wife a violent blow on the head with the ploughshare which rendered her unconscious, that it is not shown that the blow was likely to cause death and I am also satisfied that the accused hanged his wife very soon afterwards under the impression that she was already dead, intending to create fale evidence as to the cause of the death and to conceal his own crime. The question is, whether this is murder.

2. Section 299 of the Indian Penal Code provides: Whoever causes death by doing an act with the intention of causing…such bodily injury as is likely to cause death…commits the offence of culpable homicide,” and Section 300, Clause 3, provides that “if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be indicted is sufficient in the ordinary course of nature to cause death,” then in such cases culpable homicide is murder. Now, the hanging of a woman who dies from the effect of the hanging is on the face of it causing bodily injury which is sufficient in the ordinary course of nature to cause death, and the section only requires that there should be homicide, namely, the causing of death, to make this murder. It cannot, I think, be disputed that the accused intended to cause bodily injury, for he intended to hang and did hang whether the body was alive or dead, if he bad stabbed her or shot her intending it to be believed that she had stabbed or shot herself, I cannot see that he would have done other wise than intended to cause the wounds which he did cause. In this case the bodily injury was strangulation by hanging. It is, however, suggested that there is a necessary limitation, namely, that the person on whom the bodily injury is infected must be a person who is to the knowledge of the accused capable of being killed and that, therefore, if the accused thinks that the person is dead already he cannot be convicted of culpable homicide. One limitation of the strict words of the section and the difficulty is to say what that limitation is to be.

3. The protection would seem to be found in English Law by the application of the doctrine of mens rea, though this might again be affected by the doctrine of malice in law which makes the killing in the course of a felony homicide. This doctrine of mens rea, though extremely difficult of definition, operates to protect persons who have no wrongful intention or other blameworthy condition of mind. To what extent it would operate to protect persons who knew that they were committing a criminal offence, namely, concealment of murder, is a question which I do not propose to consider, though the decision in R. v. Prince (1875) 2 C.C. 154 ; 44 L.J.M.C. 122 ; 32 L.T. 700 ; 24 W.R. 70 ; 13 Cox. C.C. 138 referred to by the Public Prosecutor would seem to apply the mens rea to a person who intended to do an unlawful act but not the unlawful act which he in fact did. This is in fact the argument of the Public Prosecutor who asks us to apply this doctrine. I do not think, however, that it arises for consideration.

4. Mr. Mayne is quite clear that under the Penal Code the maxim is wholly out of place. He says that every offence is defined and the definition states not only what the accused must have done but his state of mind in regard to his act when he was doing it. The whole of his discussion in Sections 8, 9 and 10 on mens rea and knowledge is worthy of very close consideration, and he seems to be quite clear that all the protections found in the English Criminal Law are reproduced in the Chapter of General Exceptions in the Penal Code. Sections 79, 80 and 81 would seem to cover all cases where a person is not acting with a criminal intent. Now it seems to me that the particular clauses in Sections 299 and 300 which we have to interpret do create what I am tempted to call constructive murder. The first Clause of Section 299 requires the intention of causing death; the third Clause requires a knowledge that he is likely by such act to cause death. In the same way the first Clause of Section 300 requires an intention to cause death, the second Clause requires an intention to cause such bodily injury as the offender knows to be likely to cause death, and the fourth Clause requires the knowledge that the act is so imminently dangerous that it must, in all probability, cause death or is likely to cause death and the act is committed without any excuse for incurring the risk. In all these we have intention, knowledge and recklessness directed towards the causing of death. On the other hand, in the second Clause to Section 299 the intention is directed towards the bodily injury and in the third Clause to Section 300 the intention is the same. What makes the offence murder is that the bodily injury should in fact be likely to cause death entirely apart from intention or knowledge. The Legislature has thought fit to make the offence murder without proof of intention or knowledge directed towards death on the principle, of course, that a person must be deemed to intend the natural result of the injury which he inflicts; that is to say, if he inflicts an injury which is likely to cause death and that person dies, he must take the consequences of his action. But the intention provided for is confined to he bodily injury and not to the death. That is the law which we have to apply, and unless a person can be protected by one of the General Exceptions, I cannot see for myself how he is to escape from the larguage of the section. Apart from the actual offence of concealing a murder, it is the grossest violation of natural rights to stab, shoot or hang a person without absolute knowledge that that person is dead, unless of course it is done innocently, and I see no reason why the offender should not suffer the consequences of this act.

5. I shall now refer to the cases. The first is Gour Gobindo Thakoor, In re 6 W.R.Cr. 55. The facts are very similar. There one Gour Gobindo struck the deceased Dil Muhammad a blow which knocked him down, and then he and others, without enquiry as to whether he was dead or not, in haste hung him up to a tree so as to make it appear that he committed suicide. The accused were all convicted of hurt but the High Court quashed the proceedings and directed the accused to be re tried on charges of murder, culpable homicide not amounting to murder and hurt. Mr. Justice Seton Karr says, “if, however, the deceased was not actually killed by the blow, but was killed by the suspension, then Gour Gobindo himself and also all the other Thakoors who took part in hanging him up to the tree, would be clearly liable to a charge of culpable homicide amounting to murder; for, without having ascertained that he was actually dead, and under the impression that he was only stunned, they must have done the act with the intention of causing death, or bodily injury likely to cause death, and without the exceptions provided by the law, or they might have been committed for culpable homicide not amounting to murder.” Mr. Justice Norman fays: “Suppose, secondly, that the Thakoors had no intention of killing the deceased, but, finding him insensible, without enquiry whether he was dead or alive, or giving him time to recover, under an impression that he was dead, hung him to the tree, and thereby killed him. It appears to me that they might all have been put on their trial, under Section 304, for culpable homicide not amounting to murder. I think a Jury might fairly presume against them that they must have known that they were likely by that act to cause death”. The difficulty in this case is that the learned Judges did not wish to decide the case, and, therefore, their language is hypothetical. Mr. Justice Norman says that a Jury might fairly presume knowledge that they were likely to cause death, hereby introducing a limitation which is not to be found in the clauses we have under consideration. Certainly Seton-Karr, J., thinks the offence to be culpable homicide.

6. The next case is Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131. In that case it was found that the accused struck the deceased three blows on the head with a stick with the intention of killing him. The accused, believing him to be dead, set fire to the hut in which he was lying with a view to remove all evidence of the crime. The medical evidence showed that the blows were not likely to cause death and did not cause death and that death was really caused by injuries from burning. Mr, Justice Bird wood states the provisions of Section 299 and says, it is not as if the accused had intended, by setting fire to the shed, to make the deceased’s death certain,” and, therefore, acquits him of murder though be convicts him of an attempt to commit murder because of the accused’s own admission that he intended by the blow to kill. With great deference the learned Judge gives no reason for the view he takes. Mr. Justice Parsons took the view that the whole transaction, the blow and the burning, must be treated as one and that, therefore, the original intention to cause death applied to the act of burning which did cause death. The Chief Justice disagreed with Mr. Justice Parsons as to the transaction being one and without giving any other reason acquitted. With the greatest deference to the learned Judges I do not find any assistance from the manner in which they disposed of the case. Mr. Mayne deals with this case in Section 414 of his notes and is inclined to agree with the dissenting Judge that the intention should be treated as continuing up to the burning.

7. The last case is Emperor v. Dalu Sardar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709. In that case, the accused assauped his wife by kicking her below the navel. She fell down and became unconscious. In order to create an appearance that the woman bad committed suicide, he took up the unconscious body and, thinking it be a dead body, hung it by a rope. The post mortem examination showed that death was due to hanging. The Court, I think, assumed that at the time he struck her be was not intending to cause death, and, I think, we may also take it that the injury was not in fact likely to cause death. The learned Judges say that as he thought it to be adead body, he could not have intended to kill her if he thought that the woman was dead, and seem to assume that the intention to cause death is a necessary element in the offence of murder. With very great deference to the learned Judges, they seem to have ignored the language of Sections 299 and 300 and accordingly I can find no assistance from this case. That being the state of the authoreies, it seems to me to be advisable to get a definite pronouncement from this Court and I would, therefore, refer to a Full Bench the question whether on the facts found by us in this case the offence of murder has been committed.

Sadas. V. Ayyar, J.

8. I agree in referring the question to a Pull Bench as proposed by my learned brother. I shall, however, give my own opinion shortly on the matter referred. I do not think that the case of R. v. Prince (1875) 2 C.C. 154 ; 44 L.J.M.C. 122 ; 32 L.T. 700 ; 24 W.R. 70 ; 13 Cox. C.C. 138 relied on strongly by Mr. Osborne has much relevancy in the consideration of the question before us. In that case the decision mainly deoended upon the wording of the Statute 24 and 25 Vict. C. 100, Section 55, which made the taking unlawfully of an unmarried girl, being under the age of 16 years, out of the possession of the father a misdemeanour. The majority held in that case that there was no lawful excuse for taking her away, and the accused’s ignorance of her age did not make it not unlawful. We have simply to construe the definition of culpable homicide in Section 299. The intention “to cause such bodily injury as is hkely to cause death” cannot, in my opinion, mean anything except ‘bodily injury’ to a living human body. If this is not so, then, according to the strict letter of the definition, the relatives who burn the body of a man believing it to be dead would be guilty of culpable homicide ; I may even say that it is remarkable that the words “of a human being” are not added in the body of the definition after “death” and as the definition stands, the causing of the death of anything with intention will be culpable homicide which of course is a contradiction in terms. I think after the words ‘bodily injurs’ the following words most he understood, namely, ‘to some living human body or other’ [it need not be a particular person’s body according to illustration (a) and it may even be the body of another living person than the one intended actually that received the injury]. The case in Emperor v. D alu Saraar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709 is almost exactly a similar case to the present. Though (as my learned brother points out) the Judges refer only to the intention to kill and not the intention to cause bodily injury hkely to cause death, the two stand clearly on the same footing.

9. As regards Mr. Osborne’s argument that a person who dees an unlawful act such as trying to conceal a murder should take the cor sequences of the same if the act done in furtherance of that unlawful intention results unintentionally in homicide, I need refer only to illusiation (c) to Section 299, which indicates that the Indian Legislature did not wish to import the artificial rules of the English Law of Felony into the Indian Criminal Law.

10. A similar case in Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131 contains observations by Sargent, C.J., and Bud wood, J., that “what occurred from first to last cannot be regarded as one continuous act done with the intention of killing the deceased” and I agree with them respectfully. As regards the case, Gour Gobindo Thakoor, In re (3), no final opinion was expressed and the fact that the accused hastily and recklessly came to the conclusion that the woman was dead might make him liable for punishment under Section 30A (causing death by doing rash or negligent act) but not under culpable homicide, Sections 300 and 304 having the same relation to each other as Section 325 and Section 338 relating to grievous hurt.

11. This case came on for hearing in pursuance of the above Order of Reference to a Full Bench on the 17th March 1919.

12. Mr. E.R. Osborne, Public Prosecutor, for the Crown.–It is doubtful whether the English Law should be followed in India, If in fact death was caused by the act of hanging, is the knowledge of the accused material? Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131 is a case in point. See also Emperor v. Dalu Sardar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709 and Gour Gobindo Thakoor, In re (3). I do not propose, however, to argue that the act of the accused does constitute the offence of murder or culpable homicide.

[Wallis, C.J.

13. Suppose the offence is not under Section 300, Indian Penal Code, does it fall under Section 304A?]

14. The act is neither rash nor negligent. The act of hanging is a deliberate act.

15. Mr. V. R. Ponnusowmy Aiyangar, for the Accused, was not called upon.

16. Opinion.–The accased was convicted of murder by the Sessions Judge of Coim-batore. He appealed to this Court, which took a different view of the facts from that taken by the learned Sessions Judge and has referred to us the question whether on the facts, as found by the learned Judges who composed it, the accused has in law committed the offence of murder. Napier, J., inclined to the view that he had: Sadasiva Aiyar, J., thenght he had not. The facts as found are these: the accused struck his wife a blow on the head with a ploughshare, which knocked her senseless. He believed her to be dead and in order to lay the foundation for a false defence of suicide by hanging, which he afterwards set up, proceeded to hang her on a beam by a rope. In fact the first blow was not a fatal one and the cause of death was asphyxiation by hanging, which was the act of the accused.

17. When the case came before us, Mr. Osborne, the Public Prosecutor, at once intimated that he did not propose to contend that the facts as found by the learned referring Judges constitute the crime of murder or even culpable homicide. We think that he was right in doing so: but as doubts have been entertained on the subject, we think it proper to state shortly the grounds for our opinion. By English Law this would clearly not be murder but manslaughter, on the general principles of the Common Law. In India every offence is defined, both as to what must be done and with what intention it must be done, by the section of the Penal Code which creates it a crime. There are certain general exceptions laid down in Chapter IV, but none of them fits the present case. We must, therefore, turn to the defining Section 299. Section 299 defines culpable homicide as the act of causing death with one of three intentions:

(a) of causing death,

(b) of causing such bodily injury as is likely to cause death,

(c) of doing something which the accused knows to be likely to cause death.

18. It is not necessary that any intention should exist with regard to the particular person whose death is caused, as in the familiar example of a shot aimed at one person killing another, or poison intended for one being taken by another. ‘Causing death’ may he paraphrased as putting an end to human life: and thus all three intentions must be directed either deliberately to putting an end to a human life or to some act which to the knowledge of the accused is likely to eventuate in the putting an end to human life. The knowledge must have reference to the particular circumstances in which the accused is placed. No doubt if a man outs the head off from a human body, he does an act which he knows will put an end to life, if it exis’s. But we think that the intention demanded by the section must stand in some relation to a person who either is alive, or who is believed by the accused to be alive. If a man kills another by shooting at what he believes to be a third person whom he intends to kill, but which is in fact the stump of a tree, it is clear that he would be guilty of culpable homicide. This is because, though he had no criminal intention towards any human being actually in existence, he had such an intention towards what he believed to be a living human being. The conclusion is irresistible that the intention of the accused must be judged, not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. It follows that a man is not guilty of culpable homicide, if his intention was directed only to what he believed to be a lifeless body. Complications may arise when it is arguable that the two acts of the accused should be treated as being really one transaction, as in Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131 or when the facts suggest a doubt whether there may not be imputed to the accused a reckless indifference and ignorance as to whether the body he handled was alive or dead, as in Gour Gobindo’s case. 6 W.R. Cr. 55. The facts as found here eliminate both these possibilities, and are practically the same as those found in Emperor v. Dalu Sardar 26 Ind. Cas. 157 ; 18 C.W.N. 1279 ; 15 Cr.L.J. 709. We agree with the decision of the learned Judges in that case, and with clear intimation of opinion by Sargent, C.J., in Queen Empress v. Khandu 15 B. 194 ; 8 Ind. Dec. (N.S.) 131.

19. Though in our opinion, on the facts as found, the accused cannot be convicted either of murder or culpable homicide, he can, of course, be punished both for his original assault on his wife, and for his attempt to create false evidence by hanging her. These, however, are matters for the consideration and determination of the referring Bench.

Uncategorized

Emporer v. Dhirajia – On Murder S.300 IPC

 
Allahabad High Court
Emperor vs Mt. Dhirajia on 4 June, 1940
Equivalent citations: AIR 1940 All 486
Author: Braund

JUDGMENT

Braund, J.

1. This is an appeal of some little interest. The appellant is a young woman of 20 who was tried for murder by the Sessions Judge of Benares and who was tried at the same time for attempted suicide by a jury. The result of the trial by the Sessions Judge with the aid of his assessors-who were of course the same people who constituted the jury-was that he convicted the appellant of murder under Section 302, I.P.C. The result of the trial for attempted suicide by the jury was that she was found not guilty. The learned Judge, as logically he was bound to do, was unable to agree with the verdict of not guilty upon the charge of attempted suicide and he has therefore referred the case to us under Section 307, Criminal P.C., with the recommendation that the jury’s verdict should be set aside and that the appellant should be convicted under Section 309, I.P.C., as well as under Section 302. In this way we have before us the appellant’s own appeal against her conviction and sentence under Section 302, I.P.C., and the learned Sessions Judge’s reference recommending us to set aside the verdict of the jury and to substitute a conviction upon the charge of attempted suicide as well.

2. We need hardly say that this is one of those cases common in these provinces in which a young woman with her baby in her arms had jumped or fallen down a well. The facts of the case are comparatively simple. Mt. Dhirajia is a young woman married to a man named Jhagga. They had a six months old baby. They lived together in the village and we can accept it as a fact from the evidence that the husband did not treat his wife very well. We find as a fact that on the day in question there had been a quarrel between the husband and wife and that the husband Jhagga had uttered threats against his wife that he would beat her. There is more than a hint in the evidence that the wife desired to go to visit her parents at their village of Bhagatua and that the husband, as husbands sometimes do, objected to his wife going to her parents. Late that night Jhagga woke up and found his wife and the baby missing. He went out in pursuit of them and when he reached a point close to the railway line he saw her making her way along the path. When she heard him coming after her Mt. Dhirajia turned round in a panic, ran a little distance with the baby girl in her arms and then either jumped or fell into an open well which was at some little distance from the path. It is important to observe that obviously she did this in panic because we have the clearest possible evidence that she looked behind her and was evidently running away from her husband. The result was, to put it briefly, that the little child died while the woman was eventually rescued and suffered little or no injury. Upon these facts Mt. Dhirajia was, as we have said, charged with the murder of her baby and with an attempt to commit suicide herself. At that stage it is desirable that we should look at her own statements. She has put forward her version of the affair on three separate occasions: first by a statement in the nature of a confession; secondly, before the committing Magistrate, and thirdly in the Court of the Sessions Judge. The first two of these are identical and we need only, therefore, actually discuss the one before the Magistrate. She was asked:

Did you on 9th August 1939 at about sunrise jump into the well at Sultanpur in order to commit suicide?

3. This was her answer:

There had been a quarrel in my house for three or four days. My husband threatened to beat me. Thereupon I fled away. He followed me. When I saw my husband coming after me, I through fear jumped into the well.

4. And later in another answer she said:

Yes, I jumped into the well. I did not know that she would the (by doing so). I jumped into the well through fear of my husband.

5. That was perfectly clear and to our minds, quite straightforward statement of fact and we cannot but regret that in the Sessions Court her statement was changed. There-possibly on advice-she changed her story and alleged that she did not jump into the well at all but fell into it by accident. In those circumstances she was tried. The only issue to which the learned Sessions Judge appears to have addressed his mind, either in his own deliberations upon the charge under Sec. 302 or in his charge to the jury under Section 309 was whether as a fact Mt. Dhirajia jumped into the well or fell into it. His conclusion as expressed in his own judgment is:

I am, therefore, of opinion that the evidence of Jhagga supported as it is by the two previous statements of the accused clearly shows that the accused had jumped down into the well and had not fallen down accidentally.

6. He then assumes that it is a case of murder. In the same way the whole purport of his charge to the jury was that they had merely to decide whether she had jumped deliberately or fallen by accident into the well. We ourselves, having read the evidence with considerable care, are satisfied that the story of the falling into the well by accident is not true. We are satisfied upon the fact that the story told by the appellant in her own statement before the Magistrate is in substance the true version of what happened. It is, indeed, supported by the prosecution evidence itself because one cannot read her husband’s evidence without coming to the conclusion that the woman was in a panic when she saw her husband coming after her. And we believe that what she did, she did in terror for the purpose of escaping from her husband.

7. Now, upon those facts, what we have to consider-and what we think the learned Sessions Judge ought to have considered-is whether this satisfies the charges of murder and of attempted suicide, and if not what the woman has been guilty of. This raises questions which are not altogether free from difficulty and are of some interest. To take first the charge of murder, as we all know, according to the scheme of the Penal Code, ‘murder’ is merely a particular form of culpable homicide, and one has to look first to see in every murder case whether there was culpable homicide at all. If culpable homicide is present then the next thing to consider is whether it is of that type which under Section 300, Penal Code, is designated ‘murder’ or whether it falls within that residue of cases which are covered by Section 304 and are designated ‘culpable homicide not amounting to murder.’ In order to ascertain whether the case is one of culpable homicide we have to look at Section 299, Penal Code, which says:

Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

8. In this case we can say it at once that we do not, on the facts, attribute to Mt. Dhirajia an intention to cause the death of her baby. We are satisfied that no such intention was ever present in her mind. Indeed we think there was no room in her mind for any such intention having regard to the panic that she was in. But we have to consider whether what she did, she did with the ‘knowledge’ that she was likely by such act to cause death. It has been strongly and very ably argued before us by Mr. Shekhar Saran that we cannot in this case having regard to all the circumstances attribute to this unfortunate woman the ‘knowledge’ of anything at all at that particular moment. We desire to pause at this point to say that Mr. Shekhar Saran, who is holding the brief on behalf of the Government, has very properly and with great ability represented the appellant herself who was not otherwise represented. We are grateful for his argument from which we have derived great assistance. The way he puts it is that we must treat this woman as being in such a state of mind that not only could she have had no ‘intention’ but she could have had no knowledge either. We regret that we are unable to go as far as this. ‘Intention’ appears to us to be one thing and ‘knowledge’ appears to us to be a different thing. In order to possess and to form an intention there must be a capacity for reason. And when by some extraneous force the capacity for reason has been ousted, it seems to us that the capacity to form an intention must have been unseated too. But to our minds, knowledge stands upon a different footing. Some degree of knowledge must, we think, be attributed to every sane person. Obviously, the degree of knowledge which any particular person can be assumed to possess must vary. For instance, we cannot attribute the same degree of knowledge to an uneducated as to an educated person. But we think that to some extent knowledge must be attributed to everyone who is sane. And what we have to consider here is whether it is possible for us-treating Mt. Dhirajia as a sane person, which we are bound to do-to conclude that she could possibly have been ignorant of the fact that the act of jumping into a well with a baby in her arms was likely to cause that baby’s death. We do not think we can.

9. We think that however primitive a man or woman may be, and however frightened he or she may be, knowledge of the likely consequence of so imminently dangerous an act must be supposed to have remained with him or her. We have been pressed with cases by Mr. Saran in which when blows have been struck, it has been discussed whether knowledge of the likely consequences of those blows can be attributed to the striker. But we venture to think that such cases as these are fundamentally different from the case before us. A blow is not per se a necessarily fatal act, especially if the blow be given with the fist or with one of the less lethal weapons. This is a question of degree, a question of force, a question of position and so forth, and therefore in these cases there is ample room for argument as to whether in any particular case, having regard to the manner in which the particular blow or blows in that case was or were delivered, there was behind it knowledge that it was likely to result in death. But, in this case, the character of the act is in our opinion, fundamentally different. The act of jumping into a well with a six-months old baby in one’s arms can, in our opinion, but for a miracle, have only one conclusion and we regret that we have to assume that consequence must have been within the knowledge, but not within the intention of Mt. Dhirajia.

10. For these reasons we think that this was a case of culpable homicide. We must now proceed to consider whether or not it was murder. We do not propose to set out verbatim the whole of Section 300, I.P.C., because it is so well known. It provides that in four cases culpable homicide is always murder, subject to certain specified exceptions. The first three cases in which culpable homicide is designated as murder are all cases in which there is found a positive ‘intention’ in the doer of the act. We need not waste time on these because, as we have already said, we do not think that in the circumstances of this case it is possible to attribute to Mt. Dhirajia any positive or active intention at all. The only case we need discuss is the fourth which is in these words:

If the person committing the act knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

11. That is the fourth case in which culpable homicide is murder. We have already found that Mt. Dhirajia must be taken to have known that what she did must in all probability cause the death of her baby. But this is qualified by the further requirement that “such act” must be “without any excuse for incurring the risk of causing death….” The construction of this particular passage of Section 300 is well settled. It is well settled that it is not murder merely to cause death by doing an act with the knowledge that it is so imminently dangerous that it must in all probability cause death. In order that an act done with such knowledge should constitute murder it is necessary that it should be committed without any excuse for incurring the risk of causing the death or bodily injury. An act done with the knowledge of its consequences is not prima facie murder. It becomes murder only if it can be positively affirmed that there was no excuse. The requirements of the section are not satisfied by the act of homicide being one of extreme recklessness. It must in addition be wholly inexcusable. When a risk is incurred-even a risk of the gravest possible character which must normally result in death-the taking of that risk is not murder unless it was inexcusable to take it. That, as we understand it, in terms of this case, is the meaning of this passage of Section 300, I.P.C. Now looking at the facts of this case which we need not repeat again, we think that it is not possible to say that Mt. Dhirajia in jumping into this well did so without excuse. We must consider in assessing what is excuse or is not excuse the state of mind she Was in. She feared her husband and she had reason to fear her husband. She was endeavouring to escape from him at dawn and in the panic into which she was thrown when she saw him behind her she jumped into the well. We think she had excuse and that excuse was panic or fright or whatever you like to call it. For these reasons we do not think that Mt. Dhirajia is guilty of murder.

12. Upon this reasoning however we cannot escape from Section 304. It must inevitably follow, for reasons which are obvious, that Mt. Dhirajia is guilty of culpable homicide not amounting to murder and that, in our judgment, is the charge upon which she should have been convicted and not upon the charge of murder. Before we leave this part of the case we desire to refer to one more authority to which our attention has been called by Mr. Saran. That is Supadi Lukadu v. Emperor (25) 12 AIR 1925 Bom 310. The case was a curious one in which a girl of 17 years of age, who too was ill-treated by her husband jumped with her baby into a well when she found that her husband prevented her from returning to her parents. In that case she was carrying the baby on her back and the learned Judges who tried it in the Bombay High Court on appeal came to the conclusion that on the facts of that case she was not aware at all that she even had a baby with her. No doubt upon the facts of that particular case that conclusion was justified. But we desire to say that we are not ourselves prepared to apply it to the case before us. The facts in the case before us are different and we should not be justified, we think, in looking for evidence which does not exist in order to enable us to come to a conclusion which the facts do not warrant. There is nothing upon this record which could enable us upon any reasonable view of the matter to assume that Mt. Dhirajia was not aware that she had he baby with her. We have found it necessary to resist the temptation in this case to adopt the facts to what our own desires might be because we think that such a course must necessarily be dangerous and wrong.

13. As regards the charge of attempted suicide we think that upon that Mt. Dhirajia was rightly acquitted. To our minds, the word ‘attempts’ connotes some conscious endeavour to do the act which is the subject of the particular section. In this case the act was the act of committing suicide. We ask ourselves whether when Mt. Dhirajia jumped into the well, she did so in a conscious effort to take her own life. We do not think she did. She did so in an effort to escape from her husband. The taking of her own life was not, we think, for one moment present to her mind. For that reason we think that Mt. Dhirajia was rightly acquitted under Section 309, I.P.C. So far as the convictions are concerned therefore, the result of the appeal is that the appellant’s conviction under Section 302, I.P.C., is set aside and there is substituted for it a conviction under Section 304, I.P.C. So far as the learned Judge’s reference to us is concerned, we are unable to accept it and the verdict of not guilty passed by the jury must stand.

14. There only remains the question of sentence upon the conviction under Section 304 which we have substituted for the conviction under Section 302, I.P.C. It is obvious that this is not a case deserving of a severe punishment. The unfortunate woman has already been in prison for a period of eight months and we think the proper sentence is that she should be sentenced to undergo six months’ rigorous imprisonment which in effect means that she will be at once released unless she is required upon some other charge.